2011-322, State of New Hampshire v. Cory Furgal

Michael A. Delaney

No. 2011-322 Hillsborough-southern judicial district

, deputy chief appellate defender, of Concord, on the

home of Robert Brackett. Although not originally invited to the party, the October 31, 2009, the defendant attended a house party in Merrimack at the The jury could have found the following facts. On the evening of

RSA 630:1-b (2007). We affirm. defendant, Cory Furgal, appeals his conviction of second-degree murder. See LYNN, J. Following a jury trial in Superior Court (Nicolosi, J.), the

brief and orally, for the defendant. ___________________________ David M. Rothstein THE SUPREME COURT OF NEW HAMPSHIRE

assistant attorney 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 22 as out his knife, Vydfol told him to put it away.

p. 2 none of the guests were going to do anything. After the defendant again pulled At some point, Vydfol put his arms around the defendant and said that

the group may have held baseball bats.

granted the State’s motion in

that RSA 627:9, II (2007) defines deadly force as “any assault or confinement him to allow others to use deadly force against him. Defense counsel noted

gathered some distance away on the driveway. The defendant and members of driveway. A group of guests, some of whom had been involved in the fight, approached him. The two men proceeded around the house and down the The defendant then jumped over the porch railing, and Vydfol

Before trial, the court denied the State’s motion to strike the notice, but held onto the defendant to prevent his fall. Vydfol who acted in concert with other named and unnamed individuals.” create a substantial risk of causing death or serious bodily injury.” (Emphasis Some guests attempted to throw the defendant over the porch railing. Vydfol reasonably believed to be the use of deadly force against him by Christopher which the actor commits with the purpose of causing or which he knows to

against Vydfol if he reasonably believed that Vydfol had confined or restrained A grand jury indicted the defendant for second-degree murder. See court to instruct the jury that the defendant was entitled to use deadly force in the chest and ran away. Vydfol died of his injuries. At trial, outside the presence of the jury, defense counsel asked the trial

altercation involving Vydfol where the defendant was not present.

and helped persuade the defendant to put the knife away, a fight erupted. he stabbed Vydfol, he did so only “to defend himself against what he 630:1-b. In his amended notice of self-defense, the defendant asserted that if

that he saw someone approach with something in his hand, he stabbed Vydfol shoulders, heard the sound of metal dragging across concrete, and thought off” him. Shortly thereafter, when the defendant felt Vydfol’s hands on his

gathered around him. After Christopher Vydfol tried to defuse the situation brandished a knife and shouted obscenities at a group of guests who had was missing and the defendant refused to empty his pockets. The defendant

flared on the back porch of the house when a guest discovered that his iPod defendant was allowed inside without incident. Later in the evening, tempers to assault him. The jury found the defendant guilty of second-degree murder.

p. 3 against Vydfol if he reasonably believed that Vydfol acted in concert with others preclude the jury from finding that the defendant could use deadly force statute.” The trial court noted, however, that the instruction as given did not

“in-concert” instruction because “it is not consistent with the language of [the]

instruction. The trial court explained that it did not include the defendant’s contention that neither RSA 627:4, II(a) nor case law supported such an who joined to use force against the defendant.” The State repeated its

p. 3 against Vydfol if he reasonably believed that “Vydfol acted alone or with others

because it failed to inform the jury that the defendant could use deadly force Outside the presence of the jury, defense counsel objected to the instruction

bodily injury.

which he knows to create a substantial risk of causing death or serious

confinement which an actor commits with the purpose of causing or about to use unlawful deadly force. Deadly force means any assault or rather, the Defendant must reasonably believe that the other person was Self-defense does not require actual danger to the Defendant;

deadly force against him. Defendant to believe that the other person was about to use unlawful

be reasonable. In other words, there must be reasonable grounds for the

Defendant actually believed that such a danger existed, his belief must

use unlawful, deadly force against the actor or a third person . . . .” RSA 627:4, II(a). force upon another person when he reasonably believes that such other person . . . [i]s about to referring to RSA 627:4, II(a) (2007). This statute provides: “A person is justified in using deadly 1 Although the prosecutor did not specify the statute he was referencing, we presume he was

he was in danger of death or [serious]bodily injury; two, even if the other words, the Defendant could use deadly force if he actually believed Mr. Vydfol was about to use unlawful deadly force against . . . him. In Christopher Vydfol to defend himself if: One, he actually believed that The Defendant would have the right to use deadly force on

appear on detach[ed] reflection.

as they were presented to him at the time and not necessarily as they

You should consider how the Defendant acted under the circumstances you should consider all of the circumstances surrounding the incident. In deciding whether the Defendant acted in justifiable self-defense,

relevant part, as follows: At the conclusion of the trial, the trial court instructed the jury, in

case law did not support the defendant’s requested instruction. added.) The State objected, arguing that the language of “the statute”1 and p. 4 Etienne

his case.

court’s ruling was clearly untenable or unreasonable to the prejudice of decision is not sustainable, the defendant must demonstrate that the unsustainable exercise of discretion. To show that the trial court’s

deadly force upon another person when he reasonably believes that such other State focuses on the specific statutory text: “A person is justified in using reasonably believed was about to use unlawful deadly force against him. The

court, and we review the trial court’s decisions on these matters for an

permits a person to use deadly force only on the person whom the defendant

wording of jury instructions, are within the sound discretion of the trial 4

statute precludes the defendant’s requested instruction because the statute

Whether a particular jury instruction is necessary, and the scope and question of statutory interpretation, which we review de State notes that the common meaning of “such” is “having a quality already or person. . . [is] about to use unlawful, deadly force against the actor . . . .” The

cover the issues of law in the case.” Davidson

inconsistent with the language of RSA 627:4, II(a), the State argues that the In urging that the defendant’s requested “in-concert” instruction is

offense” (quotation omitted)). whether a statute provides a basis for a requested jury instruction raises a , 163 N.H. at 70 (citation and quotations omitted). Nevertheless,

each element of the offense and reverse only if the instructions did not fairly

State v. McDonald jury, in clear and intelligible language, the rules of law applicable to the case.” Rather, the purpose of the trial court’s charge is to state and explain to the

self-defense “conduct negating the defense becomes an element of the charged omitted); State v. p. 4 Etienne, 163 N.H. 57, 80-81 (2011) (when a defendant raises

“We determine whether the jury instructions adequately and accurately explain

, 163 N.H. 115, 126 (2011) (citation and quotations omitted).

court is not required to use the specific language requested by the defendant. State v. Davidson, 163 N.H. 462, 472 (2012) (quotation omitted). “The trial would have understood them, and in light of all the evidence in the case.” interpreting the disputed instructions in their entirety, as a reasonable juror “When reviewing jury instructions, we evaluate allegations of error by

We address each argument in turn. motion in limine to exclude all evidence of the prior altercation involving Vydfol. about to use unlawful deadly force against him; and (2) granting the State’s reasonably believed that Vydfol, acting alone or in concert with others, was refusing to instruct the jury that he could use deadly force against Vydfol if he On appeal, the defendant argues that the trial court erred in: (1) jury the law governing the permissible use of deadly force. See p. 5 instruction given, in its entirety, adequately and accurately explained to the defendant to a new trial. We still must determine whether the self-defense

requested language in the jury instruction, does not, without more, entitle the Nonetheless, the trial court’s decision not to include the defendant’s

627:9, II consistent with the intent of the legislature as expressed in the

substantial risk of causing death or serious bodily injury.

part, as “any assault or confinement defendant to allow others to assault him. did not see fit to include. Rather, we have construed RSA 627:4, II(a) and RSA there was some evidence to support a rational finding that Vydfol attempted to restrain the 370, 373 (2006) (emphasis added). Here, the State assumes for the purposes of this appeal that about to confine him with the purpose of causing or with knowledge of a is some evidence to support a rational finding in favor of that defense.” State v. Vassar, 154 N.H. 2 “The trial court must grant a defendant's requested jury instruction on a specific defense if there

N.H. at 472. We conclude that it did. by some evidence in the record, considered as a whole.” (quotation omitted)). In the future, where supported Davidson, 163

deadly force against him, and RSA 627:9, II defines deadly force, in relevant deadly force if he reasonably believes that another person is about to use argument, we have not added language to RSA 627:4, II(a) that the legislature RSA 627:4, II(a). The plain language of the statute allows a person to use allow others to employ deadly force against him. Contrary to the State’s reasonably believes that person is about to confine or restrain him so as to the defendant reasonably believed, acting alone or in concert with others, was defendant was entitled to use deadly force in self-defense against a person that Webster’s 2 a trial court should instruct the jury that a

final arbiters of the legislature’s intent as expressed in the words of the statute 163 N.H. 622, 627 (2012) (“In matters of statutory interpretation, we are the

concert” instruction the defendant requested is inconsistent with the terms of We find the State’s arguments unavailing and disagree that the “in- RSA 627:9, II, allows a person to use deadly force against another if he McDonald, supra at 476. Thus, RSA 627:4, II(a), when read in conjunction with “the act of confining or state of being confined; restraint within limits.” serious bodily injury.” (Emphasis added.) A “confinement,” in turn, means of causing or which he knows to create a substantial risk of causing death or

, 163 N.H. at 126 (quotation omitted).

have said nor add language that the legislature did not see fit to include.” statutory construction – that “[w]e will not consider what the legislature might 627:4, II(a) as the defendant urges would violate a well-established canon of Dictionary 1570 (9th ed. 2009). Thus, according to the State, to read RSA ed. 2002), or “[t]hat or those; having just been mentioned,” Black’s Law just specified,” Webster’s Third New International Dictionary 2283 (unabridged granting the State’s motion in enable others to inflict deadly force. Cf p. 6 believed that Vydfol had put his arms around him to confine him so as to was entitled to use deadly force against Vydfol if the defendant reasonably

We next address the defendant’s argument that the trial court erred in

RSA 627:9, II, a reasonable juror would have understood that the defendant III

instructions here accomplished this task. erred because the “instruction did not expressly and intelligible language, the rules of law that apply to the case. See We are not persuaded by the defendant’s argument that the trial court

because neither Vydfol nor anyone else fact, the State twice argued that the defendant had not acted in self-defense altercation involving Vydfol where the defendant was not present. According to the jury could not consider whether Vydfol acted in concert with others. In limine to exclude all evidence of a prior

discretion of the trial court. Id

knows to create a substantial risk of causing death or serious bodily injury,”

163 N.H. at 472. Considering all the circumstances, we conclude that the jury

instructions need only adequately and accurately explain to the jury, in clear and used the exact language of the statute”). posed a threat to him. Jury

defense counsel argued his theory of the case and the State did not argue that

could have properly considered self-defense as it related to the anticipated use but Vydfol and the group of men behind him.” (Emphasis added.) The consider [the defendant’s] force in light of the threat posed by not just Vydfol, which includes confinement “with the purpose of causing or which [the actor] the jury instruction quoted verbatim the statutory definition of deadly force, inform the jury that it could intention of all persons present at the time of the stabbing. Moreover, because

the juror had to consider all detach[ed] reflection.” Thus, a reasonable juror would have understood that jury instruction where “the trial court properly explained the law of self-defense were presented to him at the time and not necessarily as they appear on. McDonald, 163 N.H. at 128 (affirming

“based on the plain language of the instruction the court gave, the jury only

necessarily including the preceding fight and the location, conduct, and

added); and (2) “how the [d]efendant acted under the circumstances as they the circumstances surrounding the [defendant’s stabbing of Vydfol]” (emphasis

deadly force against the defendant. We disagree with the defendant that Vydfol, acting alone or in concert with others, was about to use unlawful reasonable juror would have understood that the juror had to consider whether Based on the entirety of the instruction, we are satisfied that a trial court.” State v. Dupont p. 7 “The decision to admit or exclude evidence is within the discretion of the

outsiders who refused to comply with their requests. displayed Brackett and his friends’ aggressive conduct towards relative

within one day of Vydfol’s death, involved some of the same actors, and

argues that evidence of the prior altercation was relevant because it occurred reasonably perceived a danger of serious bodily injury.” In sum, the defendant this group seemed, the more likely that the jury would believe [the defendant]

friends towards outsiders, and was admissible because “[t]he more menacing

evening’s altercation was evidence of the aggressive nature of Brackett and his

with which to evaluate the claims.” According to the defendant, the prior evidence of the prior altercation would have “afforded the jury additional facts the group of guests at Brackett’s house on the evening of Vydfol’s death,

argues that because the parties at trial offered competing characterizations of

because the parties agreed that the incident occurred. Third, the defendant insufficient proof that the prior altercation occurred, the trial court erred argues that if the trial court used the term “clear proof” to mean there was

not, as here, where the State seeks to exclude evidence. Second, the defendant

to admit prior bad act evidence under New Hampshire Rule of Evidence 404(b), “clear proof” standard because that standard applies only when the State seeks grounds. First, he argues that the trial court erred when it referred to the On appeal, the defendant challenges the trial court’s ruling on three

The defendant did not ask the trial court to reconsider its ruling.

are not similar enough in facts to be relevant.

decision made.” McDonald

record establishes an objective basis sufficient to sustain the discretionary

different reasons. Even if the incident could be established by clear exercise of discretion, “the defendant must demonstrate that the trial court’s different people and, even accepting the defendant’s proffer, occurred for circumstances of each incident differ. The prior incident involved, 163 N.H. at 121. To show an unsustainable

a ruling is a proper exercise of judicial discretion, we consider whether the

the charges currently pending against the defendant, as the facts and This court finds that the alleged assault on October 30th is irrelevant to

cigarette at one of them. In granting the State’s motion, the trial court ruled:

after Brackett and his friends chased the strangers to their truck and threw a uninvited and refused to identify themselves, and that Vydfol was punched the unidentified stranger was one of a group who came to Brackett’s house the defendant stabbed Vydfol the next evening. The defendant contends that

punched Vydfol in the face outside Brackett’s home, the same address where the trial court’s order, on October 30, 2009, an unidentified stranger allegedly their friends. Cf

p. 8 raised in his notice of appeal but did not brief. State v. Kelley

that he would have had reason to be especially wary of Brackett, Vydfol, or details of what had occurred on that occasion, thus undercutting any claim unspecified “trouble” the night before, he did not claim to know any of the specifically disallows. See the prohibited rationale of propensity for bad behavior, which Rule 404(b) Finally, we deem waived the remaining questions that the defendant

regarding the trial court’s use of the “clear proof” standard.

Affirmed

although he may have had a general awareness that there was some

aggressiveness on the night of the murder, the assertion is based entirely on

therefore, inadmissible, we need not address the defendant’s arguments

DALIANIS, C.J.