2012-0886, State of New Hampshire v. Ashley Hayward

We reverse and remand. her from introducing evidence of Dodge’s past threatening and violent beha vior. in the robbery. On appeal, she argues that the trial court erred in precluding by threats mad e against her by Tyler Dodge, her boyfriend and a co - participant duress defense, claiming that she was coerced into participating in the robbery robbery. See RSA 626:8 (2007); RSA 636:1 (2007). At trial, she asserted a the defendant, Ashley Hayward, was convicted of one count of accompl ice to DALIANIS, C. J. Following a jury trial in Superior Court (Vaughan, J.),

and orally, for the defendant. Thomas Barnard, a ssistant a ppellate d efender, of Concord, on the brief

a ttorney g eneral, on the brief and ora lly), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, a ssistant

No. 2012 - 886 Grafton

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 reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 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 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

asked ― including putting a knife to her throat. officers that, in the past, Dodge threatened her when she did not do as he Additionally, at some time during her interviews, the defendant told the

Inn. toll booth in New Hampshire, Dodge stated that he wanted to rob the Baymont were g oing to Newport, New Hampshire to visit family, but that after reaching a defendant food. S he also said that she thought that she, Dodge, and Jones part because they had no money and were hungry, and he wanted to buy the interview, she explained to officers that Dodge wanted to commit the robbery in T he following day, the defendant was interviewed a third time. In that

robbery. want Dodge to go to jail and because she did not want to be implicated in the what he asked.” She also stated that she did not call 911 because she did not fight,” and that she was “afraid [she] was going to get hurt and so [she] did r obbery, he would have taken her car and “that would have been more of a interview, the defendant told the officers that if she had not driven Dodge to the had gotten into a f ight over Dodge’s intent to commit the robbery. During this was very controlling, that “it was his way or the. . . highway,” and that they would get angry at her very quickly. The defendant also explained that Dodge told the officers that Dodge had difficulty managing his anger and that he that Dodge was try ing to change his life, but “was getting out of control.” She interview s, the defendant cried and appeared scared and upset. She explained threatened to “beat the shit out of her” if she did not drive them. During both and Jones to and from the Baymont Inn. She explain ed that Dodge had denied participating in the robbery, but ultimately confessed to driving Dodge involvement during a second interview later that day, the defendant initially but denied knowledge of the robbery. When confronted with evidence of her interviewed the defendant about the robbery. The defendant appeared upset, On January 18, p. 2 2012, officers from the Lebanon Police Department

the defendant’s car, where she was waiting, and all three drove away. faces obscured and robbed the front desk clerk of $ p. 2 220. They then returned to January 10, Dodge and Jones entered the lobby of the Baymon t Inn with their period ending about one month earlier. A t approximately 12:30 a.m. on Baymont Inn in Lebanon, where the defendant h ad briefly been employed for a Dodge, and the defendant drove north in the defendant’s vehicle to the at Jones’s residence in Arlington, Massachusetts. At some point, Jone s, 9, 2012, the defendant and Dodge were visiting Dodge’s friend, Marvin Jones, The jury could have found the following facts. On the night of Janua ry

I. Background p. 3 3

was purposely acting to facilitate the commission of the crime of proving, by a preponderance of the evidence, that the Defendant serious bodily injury or death. The Defendant has the burden of Duress is defined as acting against [one’s] will under threat of T he d efendant has raised a common law defense of duress.

therefore, gave the following jury instruction: the evidence was sufficient to warrant an instruction on the defense. It, the duress defense until the close of the evidence, at which time it ruled that The court deferred ruling on whether it would permit the jury to consider

that I would allow to come in, not the prior incidents. focus on the event itself. And that’s the testimony, if it comes in, And the case law, the two cases we have in Ne w Hampshire

someplace else. So she stuck with him. previously threatened, could have left her companion and gone mean, as a practical matter, this woman, if she was at some point clear. You can’t reach back and pick up things in the past. I [A]s far as prior incidents, I think, my view of the case law is pretty

follows: held a knife to her throat. The court explained the basis for its decision as and acts of violence against the defendant, including the incident in which he for the robbery.” However, the court excluded evidence of Dodge’s prior threats robbery, including his threat to beat her “if she didn’t drive him to the Baymont introduce evidence regarding Dodge’s threats against her on the night of the hearing arguments from the parties, the court ruled that the defendan t could The court addressed the State’s motion on the day the trial began. After

duress. asserted that such evidence entitled her to an instruction on the defense of threats and violence against her, including putting a k nife to her throat. She made against her on the night of the robbery, but also referencing his prior defendant objected to the motion, referencing not only the threats that Dodge that the court, therefore, should preclude all evidence of duress. T he meet her burden of showing duress by a preponderance of the evidence, and committing the criminal act.” The State argued that the defendant could not because the defendant had “m ultiple alternatives at her disposal to avoid night of the robbery. The State argued that those threats were inadmissible presumed the defendant would seek to admit regarding Dodge’s threats on the dure ss during trial. The State’s motion was based solely upon the evidence it part, that the trial court preclude the defendant from arguing the defense of B efore trial, the State filed a motion in limine requesting, in pertinent p. 4 4

(quotation omitted). to the prejudice of his case.” State v. Furgal, 16 p. 4 4 N.H. 430, 438 (2012) demonstrate that the trial court’s ruling was clearly untenable or unreasonable “To show an unsustainable exe rcise of discretion, the defendant must unsustainable exercise of discretion. State v. White, 155 N.H. 119, 123 (2007). We review a trial court’s ruling admitting or excluding evidence for an

i nstruction. Accordingly, we have no occasion to decide th o se issues. instruction. Furthermore, neither party challenges the trial court’s duress contend on appeal that the evidence was insufficient to justify the duress dispute that duress was a cognizable defense in this case. Nor does the State have not yet recognized the common law duress defe nse, the State does not Before addressing the parties’ arguments, we observe that although we

occurring prior to that time were ruled inadmissible. made on the night of the robbery were admissible; all threats and violent acts time to the robbery. As noted above, the trial court ruled that only threat s the evidence as irrelevant because the prior threats were not made close in site of the robbery.” The State responds that the trial court properly excluded concludes, “to explain why she followed [Dodge’s] comma nd to drive him to the robbery, to beat her if she did not assist him. That evidence was probative, she death or serious bodily injury when Dodge threatened, on the night of the she argues, tends to make it mor e likely that she reasonably feared imminent a knife to her throat, was highly relevant to her duress defense. That evidence, Dodge’s prior threats and violence, including the incident during which he put before the night of the robbery. The defendant contends that evidence of as irrelevant, evidence of Dodge’s threatening and violent conduct against her On appeal, the defendant argues that the trial court erred by excluding,

II. Discussion

appeal followed. The jury foun d the defendant guilty of accomplice to robbery. This

to engage in conduct with which she is charged. death or serious bodily injury which threat caused the Defendant only when the Defendant is under an unlawful threat of imminent is not sufficient to prove duress. The defense of duress applies emotionally was unhappy facilitating the commission of the crime, influence to act, to aid in the commission of the offense or Evidence that the Defendant may have felt some pressure or

or serious bodily injury. robbery by threat of physical force under threat of imminent death p. 5 5

not offered for their truth. The defendant further responds that her statements Dodge’s out - of - court statements and actions are not hearsay because they were by [him] as an assertion.” N.H. R. Ev. 801(a)(2). The defendant counters that defendant’s throat, could be considered to be hearsay because it was “intended context, Dodge’s non - verbal conduct, such as the act of putting a knife to the statements to the police relaying Dodge’s statements and actions. In this second asserted level of hearsay is comprised of the defendant’s out - of - court hearsay is comprised of Dodge’s out - of - court statements and actions; the evidence constitutes inadmissible double hearsay. The f irst asserted level of violence by cross - examining the police officers who interviewed her, such extent the defendant sought to elicit evidence of Dodge’s prior threats a nd brackets omitted)). For the fir st time on appeal, t he State asserts that, to the we will affirm if valid alternative grounds support the decision.” (q uotation and (2013) (“Where the trial court reaches the correct result on mistaken grounds, because alterna tive grounds support it. See State v. Dion, 164 N.H. p. 5 544, 552 The State urges us to affirm the trial court’s decision, nonetheless,

and violence was irrelevant to the defendant’s duress defense. that the trial court erred when it found that evidence of Dodge’s prior threats evidence necessary to its assessment of her duress defe nse. Thus, we conclude including once putting a knife to her throat, the trial court deprived the jury of Dodge had previously threatened and been violent toward the defendant, of [the defendant’s] case.” Furgal, 164 N.H. at 438. By excluding evidence that the trial court’s ruling was “clearly untenable or unreasonable to the prejudice bodily injury than would have been the case without such evidence. Moreover, that the defendant acted under a reas onable fear of imminent death or serious relevant to the duress defense because they tended to make it more probable duress defense. This, too, was error. Dodge’s prior threats and violence were that the prior th reats and violence were too remote in time to be relevant to a affected its admissibility. Second, the trial court also apparently concluded have affected the weight the jury gave to the evidence, but should not have violence. This was error. The defendant’s decision to remain with Dodge could decision to remain with Dodge obviated any relevance of the prior threats and reasons. First, the trial court apparently concluded that the defendant’s Here, the trial court’s relevancy determination was erroneous for two

surrounding the cr ime and her delay in reporting). admissible to explain collaborator’s submission to defendant’ s deman ds N.H. p. 6 643, 64 8 (2006) (evidence of defendant’ s abuse of collaborator was relevant to explain that individual’s present behavior. See State v. Beltran, 1 p. 5 53 Evidence that an individual has been the victim of past violent acts may be less probable than it would be without the evidence.” N.H. R. Ev. 401. fact that is of consequence to the determination of the action more probable or Evidence is relevant it if has “any tendency to make the existence of any 6

gaining a misleading advantage.” State v. Warren, 143 N.H. p. 6 633, 636 (1999). “otherwise inadmissible evidence may be admitted to prevent a party from omitted). The rule does not render evidence automatically admissible, though and second, admission of only a portion would mislead the jury.” Id. (quotation conversations: first, the statements must be part of the same conversation; “Thus, there are two requirements to trigger the doctrine respecting advantage by misleading the jury.” Lopez, 156 N.H. at 421 (quotation omitted). also N.H. R. Ev. 106. The doctrine “exists to prevent one party from gaining an received.” State v. Lopez, 156 N.H. 416, 421 (2007) (quotation omitted); s ee hence tends to explain or shed light on the meaning of the part already or her opponent introduced so far as it relates to the same subject matter and writing, statement, correspondence, former testimony or conversation that his this court, whereby “a party has the right to introduce the remainder of a her. The doctrine of verbal completeness is a common law rule r ecognized by made to the police as elicited by the State through the officers who interviewed under the doctrine of verbal completeness in light of other statements she T he defendant argues that her statements nonethele ss were admissible

prior threats and violence, in fact, constituted hearsay. concession, we need not decide whether the defendant’s descriptions of Dodge’s and, therefore, fall squarely within the definition of hearsay. In light of that statements describing Dodge’s threats and violence were offered for their truth, conduct. Defense counsel stated at oral argument that the defendant’s statements to the polic e describing Dodge’s out - of - court statements and We next address the second asserted level of hearsay – the defendant’s

perceived by the defendant. of Dodge’s assertions were “true,” but merely that the threats or violence were time of the robbery. In sh ort, the point of such evidence was not whether any to provide a foundation for the reasonableness of the defendant’s fear at the the truth of any assertions he made; rather, such evidence was offered merely Here, the defendant did not seek to offer Dodge’s threats or violence to prove Sulloway, 1 p. 6 66 N.H. ___, ___, 90 A.3d 605, 613 (2014) (quotation omitted). prove simply that the statement was made, it is not hearsay.” State v. not offered to prove its truth, but is offered for some other reason, such as to hearsay because that evidence was not offered for its truth. “If a statement is the defendant that evidence of what Dodge said and did does not constitute level of hearsay – Dodge’s out - of - court statements and conduct. We agree with matter asserted.” N.H. R. Ev. 801(c). We be gin by address ing the first asserted testifying at the trial or hearing, offered in evidence to prove the truth of the “‘Hearsay’ is a statement, other than one made by the declarant while

of verbal completeness. to the police about what Dodge said and did are admissible under the doctrine p. 7 7

did not rely only if “there is only one way the trial court could have ruled as a discretion, we may sustain the trial court’s ruling on a ground upon which it discretionary decision is at issue and the trial court has not exercised that a doctrine that has relevancy as one of its requisites. When, as in this case, a evidence was irrelevant, it would have been futile for the defendant to rely upon evidence. Id. at 421. Given that the court had already determined that the to be ad mitted be relevant to explain or shed light on previously admitted verbal completeness doctrine. That doctrine requires that the evidence sought cause for the defendant to argue that the evidence was admissible under the Dodge’s prior threats and violence was inadmissible as irrelevant, there was no Moreover, after the trial court ruled before trial that all evidence of

to the police describing them. not to his prior threats and violence, nor was it to the defendant’s statements concerned Dodge’s statements on the night of the robbery. The objection was objection later in the trial, the hearsay objection to which the State refers although the State contends that the trial court “explored” the hearsa y defendant’s out - of - court description of Dodge’s general demeanor. Similarly, When the co urt made that statement, it was discussing the admissibility of the ‘relevant, but it [was] also hearsay,’” the State has m ischaracterized the record. expressed the opinion that the evidence [of prior threats and abuse] was completeness doctrine. Although in its brief, the State asserts that “the court the defendant’s out - of - cou rt description was admissible under the verbal constituted inadmissible hearsay. Nor was there any discussion about whether prior threats and violence or the defendant’s out - of - court description of them Neither the trial court nor the parties discussed whether either Dodge’s

irrelevant and, therefore, inadmissible. issue because it ruled before trial that Dodge’s prior threats and violence were N.H. at 420 - 21. However, in this case, the trial court never addressed the reviewed on appeal for an unsustainable exercise of discretion. See Lopez, 156 discretion in light of all of the relevant circumstances. Such a decision is address the issue, and the trial court has had the opportunity to exercise its com pleteness doctrine is made after the parties have had the opportunity to Ordinarily, a decision by a trial court regarding the applicability of the verbal Our review of this issue is informed by the context in which it arises.

the State to gain an advantage by misleading the jury.” while excluding her explanation of why she did so, clearly w ould have allowed that [she] admitted to driving Dodge and Jones to the location of the robbery, of the doctrine also is met because “[p] ermitting the State to inform the jury interviews with the police. The defend ant argues that the second requirement statements regarding Dodge’s past threats and violence were made during her inculpatory statements regarding her role in the robbery and her exculpatory Here, the fi rst requirement of the doctrine is met, as both the defendant’s p. 8 8

same theory. relevant, exculpatory statements, it may well have admitted them under the statements to the police regarding the prior threats and violen t acts were also police would be admitted. H ad the trial court understood that the defendant’s do ctrine of completeness, any exculpatory statement s by the defendant to the completeness, and the prosecutor expressed his opinion that under the made on the night of the robbery were admissible under the doctrine of prosecutor recognized, the hearsay statements to the police regarding threats statements regarding threats made on the night of the robbery. Yet, as the applies not only to her statements regarding prior threats, but also to her statements to the police constituted hearsay (when testified to by the police) (Emphasis adde d.) The State’s argument on appeal that the defendant’s

exculpatory statements would come in. the doctrine of completeness, both the inculpatory and any it was made during an interview with the police. And I think under robbery. That statement, the State assumes, will come in because [would] beat [her] . . . if she didn ’ t drive him to the Baymon t for the Defendant, which is essentially the basis for her claim, is that he concedes that the statement attributed to Tyler Dodge by the Briefly, as we reiterated in chambers, the State understands and

the threats on the night of the robbery were relevant, the prosecutor stated: During argument on the State’s motion in limine, after the court had ruled that defense, the court might have admitted it under the completeness doctrine. that the evidence of prior threats and violent acts was relevant to the duress Moreover, t he record in this case indicates that had the trial court ruled

misleading advantage. excluding relevant evidence for why she did so, allowed the State to gain a police to driving Dodge and Jones to the location of the robbery, while that permitting the State to inform the jury that the defendant admitted to the defen dant argues in her reply brief, the court reasonably could have decided evidence inadmissible under the verbal completeness doctrine. As the addressed the issue and exercised its discretion, it would have found the Here, we cannot say, as a matter of law, that had the trial court

law). without abusing its discretion, so that appellate court can affirm as a matter of ruling only in rare case where trial court had but one option it could choose affirm trial court that reached right r esult for wrong reason on a discretionary Wright v. United States, 50 p. 8 8 A.2d p. 9 915, 919 - 20 (D.C. 1986) (appel late court may matter of law.” Thomas v. United States, 59 A.3d 1252, 1266 (D.C. 2013); see 9

State v. Deschenes, 156 N.H. 71, 76 (2007) (emphasis added). In this case, “ruling was clearly untenable or unreasonable to the prejudice of his case.” rulings is that the party claiming error must demonstrate that the trial court’s Our traditional standard of review applicable to trial court evidentiary

requires the reversal of the defendant’s conviction. robbery were irrelevant to her duress defense, I do not agree that th is error against the defendant by Tyler Dodge on occasions prior to the day of the court erred in ruling that evidence regarding threats or violent acts directed LYNN, J., dissenting. Although I agree with the majority that the trial

HICKS, CONBOY, and BASSETT, JJ., concurred; LYNN, J., dissented.

and remand. beyond a reasonable doubt that the error did not affect the verdict, we reverse have credited the defendant’s duress defense. Because we are not persuaded of guilt. Had such evidence been admitted, it is possible that the jury would cumulative or inconsequential in relation to the strength of the State’s evidence Because of its nature, such evidence cannot be characterized as merely bodily injury when Dodge threatened to beat her on the night of the robbery. relevant to whether the defendant reasonably feared imminent death or serious evi dence, particularly evidence that Dodge put a knife to her throat, was highly or serious bodily injury.” We agree with the defendant that the excluded the crime of robbery by threat of physical force under threat of imminent death of the evidence, that she “was purposely acting to facilitate the commission of instructed that the defendant bore the burden of proving, by a preponderance relation to the strength of the State’ s evidence of guilt. Id. Here, t he jury was improperly admitted or excluded is merely cumulative or inconsequential in overwhelming nature, quantity, or w eight, and if the evidence that was a reasonable doubt if the altern ative evidence of the defendant’ s guilt is of an v. Souksamrane, 164 N.H. 425, 42 p. 9 9 (2012). An error may be harmless b eyond prove beyond a re asonable doubt that the error did not affect the verdict. State error was harmless. To establish that an error was harmless, the State must Finally, we briefly address the State’s contention that the trial court’s

right result for the wrong reason. decline to affirm the convict ion on the ground that the t rial court reached the admissible under the completeness doctrine. Under those circumstances, we to decide whether the evidence of Dodge’s prior threats and violence was there was only one way that the trial court could have ruled had it been asked In summary, we are unable to conclude on the record before us that p. 10 10

regarding Dodge’s alleged threats and violence toward the defendant on As applied to the disputed evidence here at issue, i.e., the evidence

ellipses omitted); see Bohan, 141 N.H. at 218. sufficient to meet that burden.” Montplaisir, 147 N.H. at 303 (quotation and 141 N.H. 2 p. 10 10, 218 (1996). “M ere conclusory assertions or speculation are not Montplaisir, 147 N.H. 297, 303 (2001) (quotation omitted); see Bohan v. Ritzo, the specific basis for admissibility of the proffered evidence.” Appeal of create a suf ficient record for our review on appeal, i.e., a record that sets forth omitted)). The party seeking admission of the evidence also has a burden “to grounds for admitting the evidence.” (quotation, brackets, and ellipses first, describe the evidence and what it tends to show, and, second, identify the proof. In order to qualify as an adequate offer of proof, the prop onent must, “[m]erely telling the court the content of proposed testimony is not an offer of United States v. Adams, 271 F.3d 1236, 1241 (10th Cir. 2001), for premise that the relevancy and competency of the evidence at is sue. See id. at 159 (citing content of proposed evidence; instead, the offer of proof must establish both this requirement, the proponent must do more than merely describe the court.” Noucas, 165 N.H. at 158 (quotation and brackets omitted). To satisfy so that it can be addressed before any damage is beyond correction in the trial (1989). “The object of Rule 103(b) is to advise the trial judge of a claim of error N. H., 159 N.H. 494, 503 (2009); State v. Saulnier, 132 N.H. 412, 413 - 14 evidence.” Id.; see also So. Willow Properties v. Burlington Coat Factory of of proof sufficient to apprise the court of the specific nature of the excluded proponent of the evidence bears the burden of making a contemporaneous offer “[i]n order to predicate error on a trial court’s ruling exclu ding evidence, the As we recently explained in State v. Noucas, 165 N.H. 146, 158 (2013),

evidence was contemporaneously made known to the court by offer of proof). right of the party challenging the ruling is affected and the substance of the may not be predicated upon a ruling excluding evidence unless a substantial demonstrating its admissibility.”); N.H. R. Ev. p. 10 103(b)(2) (providing that error 242 (1 997) (“The party offering evidence generally bears the burden of to introduce to support the defense. See, e.g., State v. Walters, 142 N.H. 239, defendant’s burden to demonstrate the admissibility of the evidence it sought unavailable to the defendant, when the court denied that request it became the requested in its motion in limine a pretrial ruling that the duress defense was It is important to note at the outset that, although it was the State that

view, there is no sound justification for employing such a relaxed standard. that the trial court’s erroneous ruling might have prejudiced her case. In my substitutes a standard that grants the defendant relief upon showing merely however, the majority deviates from this long - held standard and effectively p. 11 11

completeness. I am in complete agreement with the majority that neither the trial court nor the been about whether the prior threats evidence would have been admissible under the doctrine of the best that can be said is that the record is unclear as to what the State’s position would h ave the night of the robbery met the standard of admissibility. Since this statement was exculpatory, even the statement made by the def endant that Dodge threatened to “beat the shit out of her” on the transcript, the prosecutor stated that “the State takes exception” to the court’s ruling that the police interviews] would come in.” Ante at 8 (emphasis added). But on the very next page of suggest that he all but conceded that “any exculpatory statements [mad e by the defendant during By emphasizing a single word in a statement made by the prosecutor, the majority seems to 2 For ease of reference, I hereinafter refer to this evidence as the “prior threats evidence.” 1

the trial court. Had the defendant articulated her position and asked the trial 2 the verbal completeness doctrine was a decisi on committed to the discretion of prior threats evidence was admissible, notwithstanding the hearsay rule, under The majority correctly observes that the determination of whether the

of proof. prevented — or would have pre vented — the defendant from making a full offer for appeal. Nor is there any indication in the record that the trial court opportunity to make a full offer of proof for the purpose of preserving an issue for trial counsel, faced with an adverse ruling from the court, to request the was actually prejudiced by the trial court’s ruling? It is not at all uncommon that we have before us all the information we need to determine whether she should that fact excuse the defendant from making an appropriate record so pressing the second prong of the offer of proof, I do not dis agree. But why on relevancy, the defendant had little chance of changing the outcome by If what the majority means by “futile” is that, given the trial court’s ruling

completeness doctrine poignantly d emonstrates the fallacy of its position. conviction based on the trial court’s failure to rule on this second prong of the me, the very fact that the majority finds it necessary to reverse the defendant’s absent its admission, a misleading impression would be created. Ante at 6. To doctrine of completeness — the proponent of the evidence also must show that, however, is that relevancy is not the only requisite to admissibility under the admissibility under the doctrine of completeness. The important point, the defendant to do so given that relevancy is one of the requisites of that, in light of the court’s ruling on relevancy, “it would have been futile” for only explanation offered by the majority for adopting this approach is to say responsibility to satisfy the second requirement of a p roper offer of proof. The erroneous ruling on relevancy, this somehow relieved the defendant of her disagree with is the majority’s conclusion that, because the trial court made an to why the trial court erred in its r uling on the first point — relevancy. What I such conduct occurred. I am in full agreement with the majority’s analysis as was relevant; and (2) that the defendant had competent evidence to prove that the defendant ma ke an offer of proof showing: (1) that such conduct by Dodge placed a knife to the defendant’s throat, the above requirements mandated that occasions prior to the day of the robbery, including the incident when he 1 p. 12 12

Columbia for the proposition that where “a discretionary d ecision is at issue and the trial court The majority cites dicta from two cases decided by the Court of Appeals for the District of 4 from the defendant in order to preserve the issue for our review. by the defendant, then I would readily concede that noth ing more could reasonably be expected Of course, if the trial court had declined to make such a ruling, in the face of a full offer of proof 3 with the State. on these issues. The consequences of the defendant’s failure to do so should rest with her, not the defendant’s burden to make a complete offer of proof and to seek a ruling from the trial court the doctrine of completeness. But that is the very point. As the proponent of that evidence, it was parties discussed whether the prior threats evidence constit uted hearsay or was admissible under

admission of th e evidence she now claims was wrongly excluded. 4 seek a ruling from the trial court on all necessary prerequisites to the benefit on appeal from her own failure to make a complete offer of proof and run into woods). Unlike the majority, I would not permit the defendant to never to return,” and that witness and police officer saw differe nt individuals created misleading impression that witness saw someone “run into the woods, testifying witness’ s statement to police where portion admitted by defendant (1992) (doctrine of completeness r equired admission of remainder of non introduce more of such evidence”); compare State v. Keith, p. 13 136 N.H. 572, 575 prior to and during his arrest, “trial court did not err by not permitting him to permitted to introduce evidence that he cried when speaking with his family interview”); State v. Lopez, 156 N.H. 416, 423 (2007) (where defendant was for her children at several other points throughout the admitted portion of the concern for her children did not prejudice her “because she expressed concern (2013) (exclusion of portions of police interview in which defendant expressed claim of innocence”); State v. Botelho, 165 N.H. ___, ___, 83 A.3d 814, 824 admission of otherwise inadmissible evidence simply to bolster a defendant’s and observing that “the doctrine of completeness does not require the defendant was allowed to elicit other evidence that he adamantly denied guilt to take polygraph examination did not create misleading impression where (decided May 16, 2 014) (holding that exclusion of evidence of defendant’s offers entirely consistent with our case law. See State v. M itchell, 166 N.H. ___, ___ of both Dodge and Jones, such a ruling by the trial court would have been statements about Dodge’s threats on the day of the robbery and about her fear the defendant to elicit from the officers who interviewed her, including her Indeed, given the other extensive evidence of duress which the court permitted trial court would not have been erroneous as a matter of law. Ante at 7 - 8. admitted. The majority acknowledges that such a n alternative ruling by the from the portions of her statements that the court was permitting to be because they were not necessary to correct a misleading impression resulting such conduct wer e not admissible under the doctrine of verbal completeness relevancy of the evidence was erroneous, the defendant’s statements about alternative basis for excluding such evidence, that even if its view as to the the trial court could have determined, within its discretion and as an would have refused to do so. And if the defendant had follow ed this course, 3 court to make a ruling on this issue, there is no reason to believe the court 13

court nonetheless found the error harmless and affirmed the defendant’s conviction). “argumentative” nature because the court had never exercised its discretion on this iss ue, the statement could not be justified as a discretionary decision based upon the statement’s putative (after determining that tri al court’s ruling precluding defendant’s counsel from making an opening failure to exercise discretion error can constitute harmless error. See Wright, 508 A.2d at 921 position on these issues can be reconciled, however, the Wright opinion makes it clear that a from the trial, can be anything other than harmless erro r. Even assuming that the majority’s exercise its discretion, which has the exact same result, i.e., the disputed evidence is excluded to exclude the evidence. That being the case, it is hard to understand how the court’s failure to under its reasoning, there would have been no error at all if the court had exercised its discreti on the court’s failure to exercise its discretion as to the doctrine of completeness, then presumably, not harmless, on the other. If, as the majo rity asserts, the trial court error requiring reversal is Wright - Thomas line of cases, on the one hand, and its conclusion that the error at issue here is It must be noted that there is some analytical tension between the majority’s reliance on the 5 not support the result reached by the majo rity in this case. upon which the evidence was admissible. Thus, Thomas and Wright are distinguishable and do here, wherein the proponent of evidence failed to make a properly detailed proffer as to the basis abstract principle of law, the important point is that neither case involved a situation, as exists States, 508 A.2d 915, 919 - 20 (D.C. 1986)). Regardless of whether this dicta is sound as an at 7 - 8 (citing Thomas v. United States, 59 A.3d 1252, 1266 (D.C. 20 p. 13 13), and Wright v. United did not rely only if there is only one way the trial court could have ruled as a matter of law.” Ante has not exercised its discretion, we may sustain the trial court’s ruling on a ground upon which it

the majority, assume that duress was a legally available defense in this case. reasonable doubt. Because the State does not argue to the contrary, I, like 5 review, unlike the majority, I would find that any error was harmless beyond a Finally, even if this evidentiary ruling is adequately preserved for our

to order a new trial is inexplicable. alternative basis f or reversal of the conviction in this case, the majority’s rush Thomas v. United States, 59 A.3d 1252, 1267 (D.C. 20 p. 13 13). Since there is no alternative grounds upon which the defendant was entitled to a new trial. See would have imposed were it not for the fact that the court also found cases upon which the majority relies, this is exactly the remed y the court defendant to obtain review of that decision. Indeed, in Thomas, one of the admission of the disputed evidence, this court would remain available to the admitted at trial did not creat e a misleading impression necessitating court determines that the portions of the defendant’s statements to the police admitted, only then would a new trial be in order. On the other hand, if the the trial court determines that the disputed evidence should have been remand to the trial court to permit it to exercise its discretion. If, on remand, appropriate remedy, at least in the first instance, should be limited to a evidence should have been admitted under the doctrine of completeness, the the trial court’s failure to exercise its discretion as to wh ether the foregoing majority asserts, the only error that potentially prejudiced the defendant was to grant the defendant a new trial as the appropriate form of relief. If, as the prior threats evidence, I fail to see any justific ation for the majority’s decision defendant’s failure to make a proper offer of proof as to the admissibility of the Moreover, even assuming that there is some valid reason for excusing the p. 14 14

whatsoever of this version of events. the police. Needless to say, the defendant called no family members to offer any corroboration want her to know the names of his friends so that she would be unable to give such information to person — Jones — whose real name she did not know because Dodge had told her that he did n ot supposed nocturnal journey to visit the family, she and Dodge were accompanied by a third arrival time ther efore being somewhere around midnight. According to the defendant, on this her boyfriend Dodge left for a two - hour ride to New Hampshire to visit her family — the expected The defendant’s story to the police was that at about 10:00 p.m. on a Sunday evening, she and 7 availability to the defendant of alt ernatives to aiding and abetting the robbery. cumulative and inconsequential, particularly because it had no bearing on the issue of the a brutish, controlling criminal, the admission of the prior threats evidence would have been arrested on an unrelated criminal charge. Given this evidenc e, which already portrayed Dodge as and Dodge had prior criminal records and that, shortly after the robbery, Dodge had been and upset when she told the police these things. In addition, she also established that both Jones Jones because of his gang affiliation and possible retaliation against her; and that she was c rying she was scared and afraid she would get hurt if she did not do so; that she also was afraid of and that “it was his way or the f____ highway”; that she participated in the robbery only because would be more of a fight”; that Dodge was getting out of control, would become angry very quickly, and Jones to the robbery; that if she did not drive, Dodge would take her car anyway “and that night of the robbery, Dodge had threatened to “beat the shit out of her” if she did not drive him The defendant was permitted to present to the jury her statements to the police that, on the 6

defendant’s offer to prove that she was the victim of battered woman’s commission of the robbery. See Daoud, p. 14 141 N. H. at 148 (holding that Dodge and/or Jones, she did have alternatives to aiding and abetting in the plainly and overwhelmingly established that, regardless of any fear she had of understanding of the rea son for the trio’s trip to New Hampshire, the evidence 7 supposedly “came clean” — her patently implausible explanation of her initial about her knowledge of, or involvement in, the robbery, and — after she In this case, even putting aside the defendant’s initial lies to the police

existed. Id. at 1 47. burden of proving by a preponderance of evidence that no such alternative an affirmative defense, it is the defendant, rather than the State, who bears the p. 14 142, 147 - 48 (1996) (quotation and brackets omitted). And because duress is avoid the threatened harm, the defense will fail.” State v. Daoud, 141 N.H. violating the law, a chance both to refuse to do the criminal act and also to duress defense] remains constant: if there is a reasonable, legal alternative to serious bodily injury. As we recognized in State v. Daoud, “one principle [of the addition to being afraid, the fear must be of suffering imminent death or defendant is not all that is required to establish the defense of duress. In asserted fear. But fear — even great fear — of Dodge and/or Jon es by the 6 incremental bearing on the degree and reasonableness of the defendant’s Ante at 9. I agree that the prior threats evidence could have some marginal bodily injury when Dodge threatened t o beat her on the night of the robbery.” relevant to whether the defendant reasonably feared imminent death or serious the defendant. The majority asserts that the prior threats evidence was “highly perspective, this de fense was supported by little more than wishful thinking by That said, however, the record makes it abundantly clear that, from a factual p. 15 15

because she did not want to get Dodge in trouble and did not want to implicate herself. because she did not have possession of her cell phone; rather she said she did not call the police asked the defendant why she did not call 911. Her response was not that she was unable to do so could operate the vehicle, obviously strains credulity. As to the cell phone, the police specifically the trio’s flight from the scene while one of them returned the keys to the defendant so that she case, the notion that Dodge and Jones would have taken the car keys with them, thus d elaying defendant’s role in the robbery was to function as the driver of the getaway car. That being the As the prosecutor a ptly noted in his closing argument, the evidence plainly showed that the 8

submitted the morning of trial, and she never again mentioned the possibility through her own testimony in her written objection to the State’s motion limine. She made no mention of po tentially offering the prior threats evidence she might testify at the trial made prior to the court’s ruling on the motion in been victim to abuse.” This statement was the defendant’s only indication that would testify that [abuse by Dodge] did in fact happen in the past and she had stated: “And I think if we do present evidence through the Defendant, she During the hearing on the State’s motion in limine, defense counsel

review. testimony at trial. I conclude that this issue also is not preserved for our allow her to adduce the prior threats evidence through her own direct advanced by the defendant: that the trial court committed error in refusing to prior threats evidence, I also address what arguably is an alternative argument trial court’s exclusion of the defendant’s statem ents to the police regarding the Because I would not reverse the defendant’s conviction based upon the

crime. State’s compelling proof of the defendant’s purposeful participation in the any weakness in the ev idence on these points in no way undermined the proof to show the absence of alternatives to commission of the crime, and thus but even if that were not the case, it was the defendant who bore the burden of posses sion of both the car keys and her cell phone while she waited in the car, 8 not only was there weighty circumstantial evidence showing that she did have while her confederates were inside committing the robbery. To the contrary, no evidence she had either her cell phone or the car keys in her possession this interval. The defendant argued below and asserts on a ppeal that there is behind the Baymont or other businesses in the area, or call the police during commit the robbery. Yet she made no effort to drive away, run away, hide of approximately seven minute s while Dodge and Jones entered the motel to next - door business some 50 - 75 yards away from the Baymont Inn, for a period that the defendant was left alone in her car, which was parked in the lot of a lawful al ternatives to driving available). The undisputed evidence at trial was driving while intoxicated charge where evidence demonstrated that she had syndrome and was in fear of her boyfriend was properly rejected as defense to p. 16 16

defendant’s decision not to testify, especially given the defendant’s admission at oral argument. interpreted to me an that there was a causal connection between the court’s ruling and the came after (i.e., “followed”) the trial court’s rulings on the motion in limine. It cannot be mean only that the defendant declined to testify during the trial, and that this declination literally motion in limine], [the defendant] declined to testify.” However, this statement can be taken to In her initial brief on appeal, the defendant did state that “[f]ollowing these rulings [on the 9

testimony. the prior threats evidence could be admitted through the defendant’s court did not respond to — or even acknowledge — counsel’s statement that hypoth etical nature, prompted no ruling by the trial court. Indeed, the trial purported offer of proof, while similar to the proffer in Bennett in its court considered it and ruled on it.” Id. at 17. In this case, the defendant’s court to his argument, and the court’s written order demonstrate[d] that the As a result, we held that “the defendant’ s proffer was sufficient to alert the trial excerpts in question to be inadmissible hearsay. Bennett, 144 N.H. at p. 16 16 - 17. preserved for appeal, the trial court later issued a written order declaring the statement to police, prompting the State to cont end that the argument was not argued only that he “might want to introduce” certain excerpts of a pretrial readily distinguishable from Bennett. In that case, although the defendant nature of the exclu ded evidence.” Noucas, 165 N.H. at 158. This case is a contemporaneous offer of proof sufficient to apprise the court of the specific excluding evidence, the proponent of the evidence bears the burden of making As stated previously, “[i]n order to predicate error on a trial court’s ruling

offer of proof, see N.H. R. Ev. 103(b). I disagree. substance of the evidence was contemporaneously made known to the court by evidence, s ee State v. Bennett, 144 N.H. 13, 17 (1999), and (2) that the showing that (1) the trial court made a “definitive ruling” excluding the asserts that her argument is considered preserved for our review upon a eviden ce would have been admissible through her own direct testimony. She the police officers, and that we may also consider whether the excluded prior threats evidence is not limited to its admission through the testimony of Nonetheless, the defendant argues that our review of the exclusion of the

drove [her] from the witness stand or something like that.” 9 her counsel acknowledged that “[t]he claim here is not that the court’s ruling because of the court’s ruling on the motion in limine. In fact, at oral argument threats, and the defen dant does not argue on appeal that she did not testify address the admissibility of the defendant’s direct testimony as to Dodge’s prior rested without offering any evidence. At no time did the court ever specifically remainder of the trial, and, at the conclusion of the State’s case, the defendant further mention of the defendant potentially testifying was made during the during his opening statement that the defendant might testify. However, no evidence was not admissible, the defendant’s counsel did inform the jury during the pretrial hearing. A fter the court’s ruling that the prior threats p. 17 17

therefore respectfully dissent. For the reasons stated above, I would affirm the defendant’s conviction. I

did not testify); State v. Atkins, 145 N.H. 256, 257 - 58 (2000) (same). convictions was too speculative to warrant appellate review where defendant (holding that trial court ruling permitting defendant to be impeached with prior court’s evidentiary ruling); cf. Luce v. United States, 469 U.S. 38, 42 - 43 (1984) Noucas, 165 N.H at 159 (defendant must establish that he was prejudiced by connection between the ruling and the defendant’s decision not to testify. particularly in light of her counsel’s acknowledgm ent that there was no causal were to testify fails to establish that she was prejudiced by the court’s ruling, the prior threats could be offered through the testimony of the defendant if she In any event, counsel’s mere speculative assertion that testimony about