2009-0451, State of New Hampshire v. Saad Moussa

The defendant, Saad Moussa, appeals his convictions, and

brief and orally, for the defendant. ___________________________ Christopher M. Johnson, chief appellate defender, of Concord, on the THE SUPREME COURT OF NEW HAMPSHIRE

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

have sent a letter to her if he was in custody at the time. He asked, “Does she

On cross-examining the victim, the defendant inquired how he could

victim testified that she did not know anyone by that name.

Nusret had been incarcerated with the defendant and had been released. The

that he investigated that claim and discovered that an individual named Oner know, that guy seeking trouble.” Salem Police Sergeant Eric Lamb testified defendant] and he got out from jail.” The letter further stated, “As far as I

The third letter mentioned “a Lebanese who was in prison with [the

her in the past: “Exactly – same words in them.” testified that some of the letters repeated threats the defendant had made to

that the defendant’s fingerprints were found on each letter. The victim also

postmarked from Manchester, New Hampshire. The State produced evidence

and the Bronx, respectively. The third had no return address but was purportedly sent by Carlos Santana, with return addresses of New York City “a benefactor and a family friend.” The first and second letters were

someone other than the defendant – specifically, in the words of the first letter,

in the defendant’s handwriting. Nevertheless, each letter purported to be from At trial, the victim testified that each of the letters was written in Arabic

the case.

from the proceedings, the court released Reardon from further involvement in mind.” On the second day of trial, after the defendant had absented himself courtroom in case “something should come up or [the defendant] changes his

had not done. The court denied that request and asked Reardon to stay in the

him “a little bit more time” to conduct the investigation he claimed Reardon

Reardon. He said that he would represent himself, but asked the court to give The defendant confirmed that his “final decision” was that he did not want case either, you’re going to represent yourself. If you want to do that, you can.”

represent you, I’m not going to force it on you, but I’m not going to continue the

court stated: “Well, here’s where we are. I mean, if you don’t want him to sent [him] correspondence to that effect.” After hearing from the defendant, the defendant] asked [him] not to represent him,” and that the defendant had “also

informed the court that he “had spoken with [the defendant] earlier and [the

On the morning of trial, the defendant’s appointed lawyer, Neil Reardon,

with [her].”

the Salem Family Court on 1 p. 2 2/10/04, that prohibited him from having contact

been served with or otherwise provided notice of a protective order issued by involved the defendant allegedly sending a letter to the victim “after having testimony, they were divorced at the time of trial. Each charged incident he had been married for approximately eleven years. According to the victim’s the defendant, each alleging a separate incident of stalking the victim, to whom p. 3 II. Analysis

argument in turn.

counsel at sentencing; and (4) imposing felony sentences. We address each to dismiss; (2) making certain evidentiary rulings; (3) denying his request for choose between self-representation and representation by a lawyer he wanted

The defendant argues that the trial court erred in: (1) requiring him to

appeals his convictions and sentences. run consecutively to the defendant’s previously-imposed sentences. He now to three and a half to seven years in state prison, to run consecutively and to

mail because he knows these letters can’t come from him. another envelope, sending it to a friend who can drop it in the

on appeal. We therefore address his claim only under the Sixth Amendment to cited a specific provision of the State Constitution on this issue either below or and, in doing so, should balance the defendant’s interest in retaining defendant’s claim implicates his constitutional right to counsel, he has not . . . Nothing is going to prevent him from putting this letter in

. . . Thus, a trial court has discretion to limit the exercise of the right, who has deficiently prepared for trial, and self-representation.” While the The right of an accused to counsel of his choice . . . is not absolute.

not something that has to be proven beyond a reasonable doubt. and representing [him]self.” United States v. Woodard the mailbox himself. You’re not required to find that he did. It’s

could not put him “to the choice between representation at trial by a lawyer Cir. 2002).

“It is well-established that it is within the [trial] court’s discretion to force

encompasses the right to the effective assistance of counsel,” the trial court The defendant first contends that because “[t]he right to counsel

A. Representation Choice [letters]. He told you he was incarcerated at the time and they

[The defendant] says to you, I couldn’t possibly have sent these

closing argument: have a stamp from the jail or not?” The State addressed this issue in its p. 4 4

do that.” interest to contact witnesses and have them potentially testify, . . . [he] would in those letters that ma[de] [him] think that it’s in [the defendant’s] best

Id agreement that if, after having reviewed the letters at issue, “there’s something

about discovery by continuing trial for two months and securing Reardon’s dismiss Reardon at that time, however, and the court addressed his concerns communication preventing an adequate defense. of communication between Reardon and himself. He did not attempt to

counsel was so great that it resulted in a total lack of indicates that the defendant had concerns about discovery and the infrequency complaint, and whether the conflict between the defendant and his motion, the adequacy of the court’s inquiry into the defendant’s

on March 16, 2009. The record of the pretrial conference on January 5 representation as early as January 5, 2009, two months before the start of trial discretion, we consider the following factors: the timeliness of the The defendant counters that he expressed concerns about Reardon’s

substitution of counsel constituted an [unsustainable exercise] of “waited until the day of trial to tell the court he was dissatisfied with” Reardon. evaluating whether a [trial] court’s denial of [a] motion for should inquire into the reasons for the dissatisfaction. In

With regard to the first factor, the State argues that the defendant When a defendant voices objections to counsel, the trial court

. at 107 (quotations and citation omitted). Circuit, instructive:

ineffective assistance of counsel. Cf

continuance to prepare to proceed pro The defendant did not request substitute counsel, but instead sought a

unsustainable exercise of discretion. Cf we find the following test, from the United States Court of Appeals for the First

unconstitutionality of a forced choice between self-representation and to a request for substitute counsel because the crux of both claims is the

of discretion standard). State v. Lambert, 1 p. 4 47 N.H. 295, 296 (2001) (explaining unsustainable exercise court reviews denial of request for substitute counsel for abuse of discretion);

omitted). We therefore review the trial court’s ruling on this issue for an United States v. Richardson, 89 p. 4 4 F.2d 492, 496 (1st Cir. 1990) (quotation

ethical administration of justice. counsel of his choice against the public’s interest in the prompt, fair and p. 5 5

He further explained:

fingerprints could be or could not be, but that’s subject for cross-examination.” defendant] wrote these letters and his fingerprints are on the letters and other unnecessary: “[T]here’s relevant evidence in this case as to whether or not [the

[trial] court’s decision” on the matter. Id

defendant wanted him to perform an investigation that he thought was

minute continuance,” and we therefore “accord extraordinary deference to the

The court then sought input from Reardon, who stated that the

who sent that letter to [his] wife.”

motivation, however, the remedy he sought would have “necessitate[d] a last-

any other fingerprints on the letters, as they could have been from “the person

Reardon “in order to disrupt the proceedings.” Regardless of the defendant’s by the State that he waited until the commencement of trial to complain about The defendant asserts that the foregoing facts belie the inference urged

obtained paper with his fingerprints on it. In addition, he wanted to identify that his wife had access to his office, seeming to suggest that she could have prison, and thus, inferentially, could not have been sent by him. He stated

to his wife, he contended, would prove that those letters were not sent from the

of trial.” opportunity . . . to address the court in person came on March 16, the first day have been no hearing on March p. 5 5. Thus, the defendant contends that his “first

all mail sent from there was stamped. The lack of such a stamp on the letters

and requested to be transported to the court for the hearing. There appears to

wanted to call a witness from the jail where he was incarcerated to testify that his witnesses could have sent the letters to his wife. He also stated that he had declined to subpoena nearly all of them. The defendant maintained that

stated that he would like to address these issues “at the hearing on March p. 5 5,” represent me.” In a letter to the court dated the same day, the defendant communication between us has broken down, and I NO longer wish for you to

provided Reardon with a list of witnesses he wanted to subpoena, but Reardon

defendant’s complaint.” Id The second factor assesses “the adequacy of the court’s inquiry into the

you.” The letter, which was sent to the trial court, concluded, “I believe the

failed to conduct a proper investigation. The defendant explained that he had that communications with Reardon had “broken down” and that Reardon had defendant to explain his dissatisfaction with Reardon. The defendant stated

anything or you file any motion in my behalf in this case, and NO visit from conduct discovery, he did nothing. The defendant stated, “you didn’t do represented the defendant for nearly two months and had almost one month to

a letter to him dated February 21, 2009, claiming that although he had The defendant’s first attempt to dismiss Reardon appears to have been in p. 6 Strickland v. Washington

counsel’s judgments. the circumstances, applying a heavy measure of deference to

to investigate must be directly assessed for reasonableness in all

unnecessary. In any ineffectiveness case, a particular decision not reasonable decision that makes particular investigations counsel has a duty to make reasonable investigations or to make a

judgments support the limitations on investigation. In other words

information.

are reasonable precisely to the extent that reasonable professional and strategic choices made after less than complete investigation facts relevant to plausible options are virtually unchallengeable; of one and he definitely indicated that he didn’t have any relevant

insubstantial.” Woodard light of informed professional judgment, that a defense is implausible or preventing an adequate defense.” Id “An attorney is not obligated to pursue weak options when it appears, in and his counsel was so great that it resulted in a total lack of communication The final factor considers “whether the conflict between the defendant

I mean, I went through his witness list with him and there

of counsel. United States v. Allen, 291 F.3d at 108 (quotation omitted).

relevant, Judge.

the level of a claim of a Sixth Amendment deprivation”). counsel to render effective assistance at trial due to lack of preparation rise to We conclude that the court conducted an adequate inquiry. 389 A.2d 811, 820 (D.C. 1978) (noting that “allegations of the inability of deficient as to constitute ineffective assistance. Cf. Monroe v. United States, In this case, we must determine whether Reardon’s preparation was so subjective standard of what the defendant perceives.” Id. (quotation omitted). cause for substitution of counsel cannot be determined solely according to the

reviewing court must determine whether there was good cause for substitution

his case. And I’m trying to help this man if he’d only listen to me. nonsensical things in front of a jury because . . . it will only hurt

and I’ve tried to explain that to him and I don’t want to do [H]e wants me to pursue frivolous avenues that don’t go anywhere which we review counsel’s performance. See p. 7 true. This uncertainty, however, underscores the high degree of deference with We, of course, have no way of knowing whether the State’s supposition is

(Citations omitted.)

counsel. urged the defendant for a second time to retain Reardon as his this case understood Reardon’s remarks in this light, and therefore

this policy. It seems more than a possibility that the trial court in

exploit the State’s failure to call a jail witness who could confirm

issues for cross-examination,” implied that he was planning to the State’s job easier. His comment that he was “reserving those not make his comments more explicit, since this would have made

theory to be valid. It is entirely understandable that Reardon did

stamped the outer envelope, thus making it possible for the State’s inquiry, and had discovered that, in fact, the jail would only have Reardon’s remarks strongly suggest that he had made such an that, under the circumstances, the challenged action might be considered

professional assistance; that is, the defendant must overcome the presumption the State’s witnesses on that issue. It then argues: investigate the jail’s mail policy, but rather that he planned to cross-examine find no error. The State notes that Reardon did not say that he failed to Even assuming, however, that the defendant did make such a proffer, we

presumption that counsel’s conduct falls within the wide range of reasonable

envelope sent from the prison and should be stamped.” the prison.” He stated that even if the envelope was his, “you need that what I see in the copy, there’s no stamp present and that letter is not sent in

difficulties inherent in making the evaluation, a court must indulge a strong

I need letter sent[] out from the prison should be stamped. As the result of

no mail sent from the prison, okay, from the – from the jail without stamp. . . . identified as “Captain Church” or “Lieutenant Captain Church,” who had “said the trial court that he had twice spoken with a prison official, whom he

person, without the letters and envelopes bearing a jail stamp.”

and significance of the evidence.” court’s finding on that issue, “demonstrated a failure to understand the nature

internal contents of an envelope mailed from the prison. The defendant told We note that it is not clear that the defendant’s proffer related to the

enclosing the . . . letters and envelopes in mail sent from the jail even to a third hearing, [he] proffered that jail policies would have prevented him from

point about the lack of a prison stamp on cross-examination, and the trial The defendant argues that Reardon’s assertion that he could make the p. 8 8

constitute plain error if such testimony is merely cumulative to

An allegedly wrongful admission of hearsay testimony does not

the defendant’s handwriting. effect. The same is true of Sergeant Lamb’s testimony about her recognition of

she did not know Nusret is merely duplicative of her own testimony to that

The State argues that Sergeant Lamb’s testimony that the victim told him

victim told him she did not know Nusret.

State v. Euliano

that he knew the defendant from time they spent in jail together; and (4) the

miscarriage of justice would otherwise result. however, and is limited to those circumstances in which a confirmed the release of a Lebanese man named Nusret; (3) Nusret told him reputation of judicial proceedings. This rule is used sparingly, recognized the defendant’s handwriting on the letters; (2) prison officials form of statements by Sergeant Lamb that: (1) the victim told him she

i.e.

the error must seriously affect the fairness, integrity or public

The defendant asserts that the court erroneously admitted hearsay in the

1. Hearsay the defendant must demonstrate that the error was prejudicial,

correct a forfeited error only if the error meets a fourth criterion:

B. Evidentiary Rulings

burden of demonstrating that an error affected substantial rights,

, 161 N.H. 601, 605 (2011) (quotation and citations omitted).

these conditions are met, we may then exercise our discretion to , that it affected the outcome of the proceeding. If all three of

representation by Reardon. the error must affect substantial rights. Generally, to satisfy the error: (1) there must be error; (2) the error must be plain; and (3) correct errors not raised before the trial court. For us to find plain

The plain error rule allows us to exercise our discretion to

court constituted plan error. The defendant next argues that certain evidentiary rulings by the trial

requiring the defendant to choose between self-representation and Accordingly, the trial court did not unsustainably exercise its discretion in Church was not supported by reasonable professional judgment. Id. at 6 p. 9 91. Reardon’s judgment, we cannot say that his strategic decision not to subpoena overcome that presumption. “[A]pplying a heavy measure of deference to” sound trial strategy.” Id. (quotation omitted). The defendant here has failed to 9

person who took the prints purporting to be his on the cards and “introduced

The defendant notes that the State failed to introduce testimony from the

Hampshire.

The jury heard the victim testify that she lived at 8 Lawrence Road, Salem, New

226.” She confirmed that the prints on both cards were of the same person. Hampshire.” The second bore an address of “Route 28, Manor Motel, Room defendant’s name and an address of “8 Lawrence Road, Salem, New

of them.” Specifically, she testified that she had two cards. The first bore the

fingerprints on the letters] to,” and she replied, “Yes. I had a known recording sample of the defendant’s fingerprints in this case to compare the [latent fingerprint analysis on each of the three letters. She was asked if she had “a

The State’s fingerprint examination expert testified that she performed a

error affected the outcome of the proceeding, we do not find plain error. See “asked for comparison prints to a known suspect, [the defendant].” this case, he completed an evidence examination request form in which he lab for fingerprinting.” After describing the general procedure, he stated that in

and fingerprints. Because the defendant has not demonstrated that the alleged

explain how the “procedure work[s]” for having “something transferred to the

evidence pointing to him as the author of the letters, including his handwriting defendant would have possessed, it was inconsequential in light of all the other defendant wrote the letters, by reflecting knowledge that allegedly only the bearing known prints of the defendant. At trial, Sergeant Lamb was asked to that the State failed to establish a foundation for the fingerprint cards allegedly The defendant next challenges the fingerprint evidence on the ground

letters. To the extent the State relied upon the testimony to show that the

2. Fingerprint Evidence

Euliano, 161 N.H. at 605.

State v. Garth

another witness who was subject to cross-examination. before the trial court, especially if that evidence was presented by the State was not required to prove the truth of the assertions made in the testimony about Nusret’s actual existence was minimal, particularly because wrote the letters, was inconsequential.” We agree. The significance of the which was minor circumstantial evidence tending to show that the defendant The State argues that the other challenged “testimony about Nusret,

We find no plain error with respect to that testimony.

, 352 S.W.3d 644, 656-57 (Mo. Ct. App. 2011) (citation omitted).

hearsay testimony that is merely cumulative of evidence already other evidence properly admitted. A defendant is not prejudiced by p. 10 Roebuck

testimony is a question for the jury.

the exclusion of the testimony; rather, the weight given the

p. 10 Roebuck v. State A more analogous case, then, is the Georgia Supreme Court’s decision in opinion on hearsay. The presence of hearsay does not mandate hearsay, the rule in this state is that an expert may base his failure to proffer the print card as a business record renders it

using the business records exception, see

(Citation omitted.) Noting that a foundation for fingerprint cards is often laid

bring the hearsay within some exception. statement, the State had to introduce a foundation sufficient to

letters should not have been admitted.” purporting to identify [him] as the source of the latent prints found on the to link the known fingerprint on the cards to [him], the experts’ testimony depend upon the admission of the print used by the witness to concluded that the trial court did not err in admitting the opinion testimony of the crime, and admissibility of that inculpatory testimony does not omitted). Similarly, the court in In re D.Y. However, the testimony of the expert is what connects Appellant to, 34 A.3d 177 (Pa. Super. Ct. 2011),

, 586 S.E.2d at 655 (quotation, citations, brackets and ellipsis

These cases, as well as Howe

hearsay. In order to justify the admission of that out-of-court

unauthenticated fingerprint cards. See

expert’s testimony. Thus, he argues: “In the absence of a foundation adequate

was never formally tendered and admitted as a business record. Appellant contends that the print card is hearsay, because it

, 586 S.E.2d 651 (Ga. 2003):

the card between [himself] and the fingerprint amounted to

then cites a number of out-of-state cases finding error in the admission of

admissibility of the cards themselves, but to the admission of the fingerprint defendant’s fingerprints. The defendant’s challenge, then, is not to the never sought to introduce the fingerprint cards purporting to bear the

noted in dicta that its admission would have been error). Foster, 200 S.E.2d 782, 793 (N.C. 1973) (although card not introduced, court Dist. Ct. App. 1994); State v. Rich Insofar as the card was prepared out-of-court, the link asserted on, 359 S.E.2d 281 (S.C. 1987); cf. State v.

(2009), he contends that the State failed to lay such a foundation here. He

argues: nothing about a system of collecting and maintaining fingerprint records.” He p. 11 State v. Ortiz 11 obvious in the sense that the governing law was clearly settled to the contrary.”

purposes of the plain error rule, an error is plain if it was or should have been testimony without a more thorough foundation, the error is not plain. “For the deciding, that it was error to admit the fingerprint examination expert’s the error, if any, is not plain. Parson to testify to an alleged hearsay statement – i.e. adequate foundation linking the “known” prints to the defendant. Accordingly, testimony linking latent fingerprints with ostensibly “known” prints without an

remaining prongs of the plain error analysis. First, even assuming, without the trial court abused its discretion in permitting Technician Francis’ home belonged to Appellant. The only issue is whether asked previously to decide whether Rule 703 permits admission of expert We need not go as far as Roebuck Department, and determined that the fingerprints taken from Ms. because this case presents an issue of first impression.” Id In re D.Y.. We have not been truth and thus fall outside the scope of the Confrontation Clause”). error in this matter could not have been ‘clear’ or ‘unequivocally obvious’ Rule of Evidence] 703 and 705., 162 N.H. 585, 591 (2011) (quotation omitted). “The trial court’s

N.H. R. Ev. the expert’s opinion or inference is based] need not be admissible in evidence.” forming opinions or inferences upon the subject, the facts or data [upon which whether there was actual error where the defendant has not met any of the review on this issue is for plain error, it is not necessary for us to determine

explaining the assumptions on which that opinion rests are not offered for their of court statements that are related by the expert solely for the purpose of permitted to testify to the hearsay statement under [Pennsylvania 2202981, at * 6 (U.S. June 18, 2012) (plurality opinion) (concluding that “[o]ut Confrontation Clause issue. Cf. Williams v. Illinois, No. 10-8505, 2012 WL

703. We also note that the defendant does not raise a

“[i]f of a type reasonably relied upon by experts in the particular field in is identical to Pennsylvania Rule of Evidence 703, and provides, in part, that

, 34 A.3d at 182. We note that New Hampshire Rule of Evidence 703 fingerprints taken from the scene of the burglary at Ms. Francis’ In this particular case, Technician Parson compared latent

upon the hearsay statement to form his opinion, he was properly find that because Technician Parson was an expert and relied Appellant’s name and fingerprints were on the ten print card. We

appellant: a fingerprint technician linking latent fingerprints from the crime scene to the p. 12 12

on that point.”

presence of the defendant’s name and address on the cards, and cites Thomas defendant has not demonstrated error affecting his substantial rights. See threats in the letters to prior threats made by him, we conclude that the admitted at trial, including recognition of his handwriting and the similarity of most incriminating and damaging interpretation of [her] ambiguous testimony

authenticity was supported by circumstantial evidence, specifically, the testified to by” the expert). Moreover, the State asserts that the cards’ challenge was made to the genuineness of the handwriting comparisons and where other evidence identifying the defendant as the letters’ author was physically abused her during their marriage,” and, in doing so, “endorsed the jury, “the court described [the victim] as having testified that [the defendant] commenting on the evidence. Specifically, he argues that in the presence of the to correct any deficiency in the proof.” People v. Sparks The defendant next argues that the trial court committed plain error in foundation of technical evidence is necessary to give the State the opportunity C. Comments on Evidence We emphasize that “[a] timely objection in the trial court as to the

United States v. Ward, 182 Fed. Appx. 779, 793 (10th Cir. 2006).

defendant].” Id

court to contain the [defendant’s] genuine signature,” where “[n]o actual challenged and their authenticity was supported by circumstantial evidence, (Ill. App. Ct. 2002). In this case, where the genuineness of the cards was not

sufficient factual similarity to inform our decision. admission of hearsay rather than a lack of authentication, Thomas presents

. at 64. Although the challenge raised here was to the

reasonably conclude that the fingerprints on [the card] were those of [the record presents ample circumstantial evidence from which one could purposes were identified at trial, admitted in evidence or found by the trial should have laid a proper foundation for the card, by other information, the expert’s testimony, although “none of the documents used for comparison 2d at 15, 64. The Thomas court concluded that “[a]lthough the prosecution birth, social security number, height, eye color, sex and race. Thomas, 824 So. plain error” where, inter alia, the card contained the defendant’s name, date of parte Carter, 889 So. 2d 528, 533 (Ala. 2004), as rejecting “a similar claim of v. State, 824 So. 2d 1 (Ala. Crim. App. 1999), overruled on other grounds by Ex

no plain error affecting substantial rights in admission of handwriting analysis his. Cf. United States v. Shields, 573 F.2d 18, 20, 22 (10th Cir. 1978) (finding the print cards are not in fact genuine; i.e., that the prints on the cards are not proceedings.” Euliano, 161 N.H. at 605. The defendant has not argued that or “seriously affect[ed] the fairness, integrity or public reputation of judicial affected substantial rights, “i.e., that it affected the outcome of the proceeding,” Moreover, the defendant has not demonstrated either that the error as he does not manifest bias in the presentation of evidence.” Euliano p. 13 “[A] trial judge is not prohibited from summarizing the evidence, so long

testimony” by “saying that . . . [she] did allege physical violence.” We disagree.

erroneously “endorsed the most incriminating interpretation of [the victim’s] ambiguity as to the issue of physical abuse.” He then argues that the court physical violence,” and that her testimony, therefore, “reflects at least some

victim “unequivocally alleged verbal threats, but . . . did not clearly allege The defendant asserts that in her cross-examination testimony, the

yes. I don’t think we need to know the details.

THE COURT: And her answer to the general question is

– towards her, pushed her, hit her, anything of that nature which is

Judge, he opened the door when he asked her if he was violent

[THE STATE]: I understand that but just for the record,

threatened. yet unchanged, that she had a good faith basis for feeling

not there’s a basis for her feeling threatened. Her testimony is, as

victim’s “answer to the general question is yes” and that there was no need to N.H. at 607 (quotation and brackets omitted). The court stated that the State too that we’re trying here, the three letters and whether or

THE COURT: Well, let me stop. Let me just remind the, 161

Q: Now you said that he was violent. What would he do?

himself violent. A. He used to – he was violent in a way – he did not consider

you? threatened you, things of that nature. Did the defendant ever hurt Q. Now the defendant asked you if he ever hurt you,

During redirect, the State asked:

and send [her] dead in a box before Christmas to [her] family.” she decided to leave. Specifically, she testified that he threatened to “kill [her]

defendant was “intimidating” throughout their marriage and “threatening” once

respond. After a break in the proceedings, the victim testified that the I punch you? Did I threaten you?” The State objected and the victim did not asking, “What I did to you in my life?” and, specifically, “Did I push you? Did At trial, the defendant cross-examined the victim about her fear of him, p. 14 14

repeating that the fact that the defendant did not have counsel was due

since the indictments were handed down, and added, “Again, it is worth

named six “experienced criminal lawyers” who had represented the defendant

In a written order issued following the sentencing hearing, the court

sentencing.

not appointing a lawyer for him with respect to the issue of seasoned criminal lawyers have had in the past, and that’s why I’m might appoint for him would have any more success tha[n] those

lawyers. It would be highly unlikely that any other lawyer that I

instances, he was unable to communicate and work with those criminal matters, has represented him. And in both of those Reardon has also been a 25-year lawyer, dealing exclusively in

state and has been for many years, has represented him. Neil

Joe Malfitani, who’s one of the top five criminal lawyers in this

several lawyers, including Attorney Reardon and Attorney Joe Malfitani: had been involved with the criminal justice system, he had been represented by

The court stated from the bench that during the nearly five years the defendant

to counsel at trial “and this is obviously a continuation of the trial proceeding.” sentencing hearing on May 27, arguing that the defendant had waived his right counsel[] to represent[] [him] in this matter.” The State objected at the

affecting the defendant’s substantial rights.” Id

to represent[] [him] at the sentence hearing” and asked the court to “[a]ppoint[]

and, therefore, “we are not persuaded that [they] give rise to plain error

that he “had filed and sen[t] a Financial Affidavit for appoint[ment] of counsel

was irrelevant. We fail to see how these comments prejudiced the defendant, that whether the violence involved physical abuse, such as pushing or hitting, was not inaccurate. The remainder of the court’s statement advised the State 1. Request for Counsel

counsel at sentencing. In a motion dated May 12, 2009, the defendant alleged The defendant argues that the trial court erred in denying his request for

that the defendant “was violent in a way,” the court’s comment on the evidence conviction. We now turn to the defendant’s challenges to his sentence. Having rejected the defendant’s first two claims of error, we affirm his

D. Sentencing

“details” to refer to whether he pushed or hit her. Because the victim testified interpret the “general question” to mean whether he was violent and the was violent towards her, pushed her, hit her, anything of that nature,” we

reference by the State to the defendant’s inquiring of the victim whether “he inquire into the details. (Emphasis added.) Given the immediately preceding p. 15 15

withdrawal from representation, and the court eventually held that

Id

sufficient reason if that request is to be denied. previously waived that right. Instead, the trial court must have a

several successively appointed trial attorneys to request

and cannot be denied on the grounds that the defendant has

counsel at sentencing . . . [where] Defendant’s conduct forced

Irorere [him] with representation and had thereby waived his right to counsel.” conduct, had already frustrated four attempts by the district court to provide re-assert that right for the purposes of a sentencing proceeding

justify denial of counsel at sentencing. For instance, the court in Irorere attorneys in the past. Other courts have upheld that reason as sufficient to The reason given here was the defendant’s inability to work with his

Defendant was not unconstitutionally deprived of his right to Constitution.” Euliano confine our constitutional analysis to the requirements of the Federal (9th Cir. 2007), the court held: , 228 F.3d at 827. Similarly, in United States v. Sutcliffe, 505 F.3d 944,

no error where the trial “court found that the defendant, through his own [A] defendant who has waived his right to counsel may nonetheless

justify a denial of counsel at sentencing. See

Robinson v. Ignacio. at 1059.

constitutional error without any showing of prejudice. failed to raise a state constitutional claim in the trial court,” however, “we . . .

federal circuits have concluded:

That the defendant has previously waived his right to counsel at trial does not

during sentencing, the Supreme Court has uniformly found sentencing under the State and Federal Constitutions. Because “the defendant “critical” stage. Thus, whenever a defendant is denied counsel On appeal, the defendant challenges the denial of appointed counsel at of the prosecution and has held that sentencing is one such Supreme Court has extended the right to various “critical” stages Though the right to counsel was originally a trial right, the

unsustainable exercise of discretion standard). F.3d 816, 827 (7th Cir. 2000); cf. Lambert, 147 N.H. at 296 (explaining unsustainable exercise of discretion. See, e.g., United States v. Irorere, 228

the past.” exclusively to his inability to work with a series of lawyers appointed for him in p. 16 16

violation of this section shall be guilty of a class A misdemeanor. (b) In all other cases, any person who is convicted of a

has one or more prior stalking (a) Any person convicted of a violation of this section and who

RSA 633:3-a, VI (1996), the stalking statute, provides:

plain error in imposing felony sentences.”

class B felony.

misdemeanor sentences under the circumstances here, the court committed

following the date of the first or prior offense shall be guilty of a

felony sentences. He contends that because RSA 633:3-a, VI “authorizes only

state when the second or subsequent offense occurs within 7 years 2. Felony Sentences

appointed for him in the past.” We find no unsustainable exercise of counsel “was due exclusively to his inability to work with a series of lawyers

with numerous appointed counsel.” United States v. Fazzini take into account that it is dealing with “a defendant who refused to cooperate Finally, the defendant argues that the trial court erred by imposing

United States v. Traeger

the particular facts and circumstances of each case, including the conduct of

waiver, but explicitly explained that the denial of the defendant’s request for 642 (7th Cir. 1989). The court here did not rely upon the mere fact of the prior Irorere, 871 F.2d 635,

conclude that a trial court making the determination here at issue is entitled to “through his own contumacious conduct.” Irorere, 228 F.3d at 826. We Sutcliffe, 289 F.3d 461, 475 (7th Cir. 2002) – in particular, defendant can waive his right to counsel through conduct as well as words,” that right through his conduct . . . ., 228 F.3d at 827 (quotation and ellipsis omitted). “A attorney to represent him at sentencing, having already waived has waived his right to counsel is a practical determination that depends on effectively waived his right to counsel at sentencing. “Whether the defendant surrounding that waiver in determining whether the defendant has also and Sutcliffe is that the trial court may look to the circumstances of counsel does not justify a denial of counsel at sentencing, the lesson of We find these cases persuasive. Although the mere fact of a prior waiver

, 505 F.3d at 962 (reviewing issue de novo).

Defendant was not entitled to the appointment of yet another Defendant had implicitly waived his right to counsel. . . . p. 17 State v. Kidder

scheme. light of the policy sought to be advanced by the entire statutory

statutes in light of the legislature’s intent in enacting them and in

overall statutory scheme and not in isolation. Our goal is to apply used. Furthermore, we interpret statutes in the context of the statute and ascribe the plain and ordinary meanings to the words

considered as a whole. We first examine the language of the of legislative intent as expressed in the words of the statute In matters of statutory interpretation, we are the final arbiter

then, is one of statutory construction.

felony sentencing and RSA 633:3-a, VI prohibiting it. The issue before us,

as applied to this case, ostensibly conflict, with RSA 173-B:9, IV authorizing The parties appear to agree that RSA 173-B:9, IV and RSA 633:3-a, VI,

defined in RSA 633:3-a, constitutes abuse for purposes of RSA 173-B:9, IV. 17

RSA 173-B:1, I(d) (2002) (amended 2010). Thus, the crime of stalking, as “[i]nterference with freedom as defined in RSA 633:1 through RSA 633:3-a.”

addition, “[w]e construe provisions of the Criminal Code according to the fair

, 150 N.H. 600, 602 (2004) (quotation and citations omitted). In convicted in another jurisdiction of violating a protective order Any person convicted under RSA 173-B:9, III, or who has been

B:9, IV provides in relevant part:

convicted of one or more offenses involving abuse RSA 173-B:9, IV (2002) (emphasis added). “Abuse” is defined to include

. . . .

contends that his felony sentences are authorized by that statute. RSA 173-

such conviction, whichever is later, subsequently commits and is such conviction or the completion of the sentence imposed for

A misdemeanor, it may be charged as a class B felony; (c) If the subsequent offense would otherwise constitute a class

. . . dealing with violations of domestic violence protective orders, and the State

The defendant’s indictments, however, also reference RSA 173-B:9, IV (c), with an enhanced penalty for each subsequent offense as follows:

enforceable under the laws of this state, who, within 6 years of

was for violating a protective order, and not stalking. (Emphasis added.) The defendant points out that his prior conviction in 2004 p. 18 18

633:3-a, IV. “When a conflict exists between two statutes, the later statute will

into RSA 173-B:9, IV(c), so that it would apply to subsequent offenses “except also notes that RSA 173-B:9, IV was enacted in 1999, six years after RSA

statutes. As the State notes, to do so would require us to read an exception violating a protective order.” (Quoting RSA 173-B:1, I (Supp. 2011).) The State petitioner’s safety,’ and where the defendant has previously been convicted of We cannot subscribe to the defendant’s strained interpretation of these such conduct is determined to constitute a credible present threat to the

Appeal of Johnson

enactment where the two conflict. way, the latter will be regarded as an exception to the general

173-B:2, II (2002); :4, I (2002), and :5 (Supp. 2011). household member or by a current or former sexual or intimate partner, where

another deals with a part of the same subject in a more detailed where one statute deals with a subject in general terms, and It is a well-recognized rule of statutory construction that

sentencing context controlled by RSA 633:3-a, VI.” He cites, for instance, RSA covered by RSA 633:3-a”; namely, “those offenses . . . committed ‘by a family or We instead find the following rule instructive: stalking within the definition of ‘abuse’ has applications outside the criminal IV(c) applies to “a much more specific subset of the general group of offen[ses] asserts, “That problem does not arise here, though, because the inclusion of points out that while RSA 633:3-a deals with stalking in general, RSA 173-B:9,

Sanborn Regional Sch. Dist. v. Budget Comm. of the Sanborn Regional Sch. reasonable results and effectuate the legislative purpose of the statute.”

have said nor add words that it did not see fit to include.” Id. those we do not,” and “[w]e will neither consider what the legislature might RSA 173-B:1, I(d)’s reference to the stalking statute superfluous.” He then “pick and choose those portions of the language we find controlling and subvert for offenses under RSA 633:3-a.” (Quotation omitted.) We do not, however,

them so that they do not contradict each other, and so that they will lead to

convictions under RSA 633:3-a so long as that interpretation does not “render[] (2008). He posits that RSA 173-B:9, IV can be read as not including stalking or that leads to an absurd result. See State v. Duran, 158 N.H. 146, 155 that we will avoid an interpretation that renders a statutory term superfluous Dist., 150 N.H. 241, 242 (2003) (quotation and ellipsis omitted). He also notes

interpreting two statutes which deal with a similar subject matter, we construe The defendant urges another rule of statutory construction: “When

461 (2011) (quotation omitted); RSA 625:3 (2007). import of their terms and to promote justice.” State v. Burke, 162 N.H. 459, p. 19 19

conclusion. See

173-B:9, IV, as the more specific statute, controls. See

that we need not find an implied repeal of RSA 633:3-a, VI to reach that

failed to meet the first prong of the plain error test. See

this State”). Rather, we conclude that to the extent the statutes conflict, RSA DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Affirmed. We conclude that RSA 173-B:9, IV applies in this case. We point out 605.

did not err in imposing felony sentences, and, therefore, the defendant has “enhanced penalty” designation. RSA 173-B:9, IV. Accordingly, the trial court 424. We find this conclusion further supported by RSA 173-B:9, IV’s

( p. 19 1978) (noting that “implied repeal of former statutes is a disfavored doctrine in

Board of Selectmen v. Planning Bd, 118 N.H. 150, 152-53

Public Serv. Co. of N.H., 130 N.H. 265, 283 ( p. 19 1988) (quotation omitted). and the earlier enactment treats that subject in a general fashion.” Petition of control, especially when the later statute deals with a subject in a specific way