2012-323, State of New Hampshire v. William Ramsey

The defendant, William Ramsey, appeals his convictions

___________________________ and orally, for the defendant. Thomas Barnard, assistant appellate defender, of Concord, on the brief 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 strength of the State’s evidence of guilt.” Id.

bruises on her arms. The co-worker also testified that the victim’s “scalp not affect the verdict.” State v. Beede, 156 N.H. 10 p. 2 2, 109 (2007). “The State eyes,” bruises and cuts on her lips, red and bloody marks on her neck, and worker testified that on the morning after the assault, the victim had “black “An error is harmless if we can say beyond a reasonable doubt that it did The evidence of the defendant’s guilt was compelling. The victim’s co-

contested evidence is merely cumulative or inconsequential in relation to the the defendant’s guilt is of an overwhelming nature, quantity or weight, and if the error may be harmless beyond a reasonable doubt if the alternative evidence of evidence presented at trial and the character of the contested evidence.” Id. “An whether the State has met its burden involves consideration of the alternative the State and Federal Constitutions, see N.H. CONST. pt. I, art. 15; U.S. CONST. bears the burden of proving that an error is harmless.” Id. “The evaluation of Hampshire Rules of Evidence 403 and 608(b) and the Confrontation Clauses of On appeal, the defendant first argues that the trial court violated New

part of our problem. Should have finished what I started last week.” violation of State and Federal Confrontation Clauses). because he frightened her, he sent her a text message that said: “Not talking was 394, 401-0 p. 2 2 (2009) (applying harmless error review to admission of evidence in victim had explained that she no longer desired contact with the defendant with the State that any error was harmless. See State v. Hernandez, 159 N.H. although she was only able to do so “very quietly.” Eight days later, after the this appeal, we assume, without deciding, that the trial court erred, and we agree and when she regained it, she was in the kitchen, trying to scream for help, license. The State contends that any error was harmless. For the purposes of [it] inside of [her] throat,” causing her to choke. She again lost consciousness, allegedly false statement she made on a 2010 application to renew her driver’s amends. VI, XIV, by precluding him from cross-examining the victim about an victim saw the curling iron “coming right at [her]” as the defendant then “shoved her “really hard” with a curling iron, saying that he was going to kill her. The was in the bathtub, and the defendant was on top of her, strangling and beating throat. The victim lost consciousness. When she regained consciousness, she then punch a wall. He came into the bathroom and grabbed the victim by the changing, she heard the defendant say, “You’re not F’ing going anywhere” and announced that she was “just going to go home.” While she was in the bathroom apartment where he had cooked dinner for her. After they quarreled, the victim victim began dating in June 2010. On December 13, 2010, they were at his The jury could have found the foll owing facts. The defendant and the

conduct with a deadly weapon. We affirm. and (3) imposing consecutive sentences for second degree assault and reckless than he loved me and would regularly buy her steaks and stuff. p. 3 A They did very much so. I think [the defendant] loved her more

Q Okay. And did the dog and the Defendant get along?

See State v. Goodale, 144 N.H. 224, 234 (1999). 2010 application to renew her driver’s license would not have affected the verdict. 3 that the additional impeachment value of his proposed inquiry into the victim’s evidence of the defendant’s guilt, we are convinced beyond a reasonable doubt contest between the defendant and the victim, in view of the overwhelming Although we acknowledge that this case essentially presented a credibility

to introduce the following evidence that he treated the victim’s dog well: The defendant next asserts that the trial court erred by allowing the State

police. vigorously about inconsistencies between her testimony and her account to the marijuana on the night in question. He also cross-examined the victim cross-examined her about lying to medical personnel about having used Moreover, the defendant impeached the victim’s credibility. See id. He

last week.” said: “Not talking was part of our problem. Should have finished what I started admitted to sending the victim a text message eight days after the incident, which message, the defendant said: “I should have f***ed you while you were here.” He with me is that it took me doing what I did to get you to talk.” In another planned to call the police. Another text message read: “The only thing that Fs she planned to tell others about the bruising he had caused and asking her if she confirmed that later that evening, he sent the victim a text message, asking what and held her in the bathroom because he wanted to talk with her. The defendant up against a wall. The defendant testified that he grabbed the victim by the arms slapped her “hard” several times “across her face” while holding her by the neck her arms, used his hand to push her by her throat against the bathtub, and, told him that she no longer wanted to continue their conversation, he grabbed The defendant admitted that, on the night in question, when the victim

laceration” on her neck and bruises on her arms. approximately nine days after the assault, testified that he saw a “small photographic evidence. The emergency room physician, who examined the victim Several days later, the bruises were still visible, according to police testimony and few days after the assault and that he saw “bruising and red marks on her neck.” supervisor testified that he could barely hear the victim when she spoke to him a like she had laryngitis” and that she was “very upset” and “crying.” The victim’s . . . was covered in red dots.” The co-worker testified that the victim “sounded conduct, the two charges merged. Young, 159 N.H. at 342-43.

p. 4 relies primarily upon our decision in State v. Young, 159 N.H. 332 (2009). In

trial court. State v. McDonald, 163 N.H. 115, 121 (2011). We will not reverse the Id. at 341. We analyzed his claim only under the common law doctrine of The admissibility of evidence is a matter left to the sound discretion of the 4 doctrine of merger and the constitutional prohibition against double jeopardy. sentences, contending that the sentences violated both the common law A I was a bit jealous. charge “subsume[d]” the first degree assault charge based upon the same into the vehicle occupied by the victim – and because the attempted murder Young with the identical criminal activity – intentionally discharging a firearm because the attempted murder and first degree assault indictments charged case, State v. Naughton, 139 N.H. 73 (1994). Ultimately, we decided that degree assault and reckless conduct with a deadly weapon. In so arguing, he that case. Id. Instead, we attempted to glean general principles from a prior doctrine and that the parties’ “limited briefing” gave us no cause to do so in merger. Id. In so doing, we observed that we had not fully developed the

Young argued on appeal that the trial court erred by imposing consecutive Young was convicted of attempted murder and first degree assault. See id. into a parked car, seriously injuring the victim. Young, 159 N.H. at 335. Young, the jury could have found that the defendant fired multiple gunshots

law doctrine of merger when it imposed consecutive sentences for second Finally, the defendant contends that the trial court violated the common

that its admission prejudiced his case. may have been of questionable relevance, the defendant has not persuaded us untenable or unreasonable to the prejudice of his case.” Although the evidence to demonstrate that the court’s admission of the challenged evidence was “clearly Q Okay. (2011). Here, we uphold the trial court decision because the defendant has failed unreasonable to the prejudice of his case.” State v. Munroe, 161 N.H. 618, 626 than I was to her at that time. defendant must show that the trial court’s ruling was clearly untenable or buy her cheeseburgers. And they were very close. Probably closer discretion. Id. “To demonstrate an unsustainable exercise of discretion, the them up just for her. And go to fast food restaurants just for her to trial court’s decision to admit evidence absent an unsustainable exercise of her all the time. And like I said, would buy her full steaks and cook A They had a very, very, very close relationship. And he played with

. . . . p. 5 “Multiple punishment cases . . . come in two varieties.” Tarrant v. Ponte,

the same or different.” Com. v. Anderson, 650 A.2d 20, 23 (Pa. 1994); see Note,

Strazzella, The Lesser Included Offense Doctrine and the Constitution: The

were the “same” for purposes of the common law merger doctrine. and the operative consideration in both is whether the [two] . . . offenses are apply double jeopardy principles to analyze whether the two offenses at issue law] merger analysis; double jeopardy and merger are identical [in this context] should be “no difference between a double jeopardy analysis and a [common the problem is not that the same course of conduct is proscribed by more than

identical to the double jeopardy ‘same offense’ analysis”); Shellenberger &

law merger doctrine’ as repudiated or no longer necessary.”). Accordingly, we 5 In the context of multiple sentences stemming from a single act, there (quotation omitted). “Second, there are ‘unit of prosecution’ cases [in which] separate offenses or are merely different descriptions of the same offense.” Id. the [common law merger] doctrine as unnecessary or treat merger analysis as description’ cases, in which the issue is whether two statutes describe two 751 F.2d 459, 461 n.3 (1st Cir. 1985). “First, there are the so-called ‘double- Although Young is of analytic concern, neither party asks us to overrule

1, 132 n.455 (Fall 1995) (“Most jurisdictions now have discarded the ‘common Development of Due Process and Double Jeopardy Remedies, 79 Marq. L. Rev.

extend Young to this case. Therefore, we limit Young to its unique factual Rev. 1103, 1107 (2009) (observing that “[m]ost courts . . . have either abolished and the Substantive Crimes of Forcible Rape and Statutory Rape, 82 Temp. L. The Interplay of Double Jeopardy, the Doctrine of Lesser Included Offenses, controlled the clip). delivered video clip necessarily constituted proof that he possessed or

elements of the first degree assault charge were not proved. See State v. Farr, assault charge; once the attempted murder charge was proved, all of the circumstances. victim’s death, while the first degree assault charge did not. Id. Accordingly, attempted murder charge alleged that Young had the purpose to cause the it, and we are disinclined to do so at this juncture. We are also disinclined to caused bodily injury,” while the attempted murder charge did not, and the

allege[d] different mens reas and consequences of intentional conduct,” id. at

included offense of delivering pornography charge because proof that defendant 160 N.H. 803, 807-09 (2010) (possessing pornography charge was a lesser

in fact, the attempted murder charge did not “subsume[]” the first degree

342. Specifically, the first degree assault charge alleged that Young “knowingly

343, we also “acknowledge[d] that the indictments [for the two charges] the first degree assault charge based upon the same criminal activity, id. at instance, although we stated that the attempted murder charge “subsume[d]” In hindsight, we find our analysis in Young to be problematic. For charges did not merge. See McKean, 147 N.H. at 200-01. p. 6 indictment is different, even though based upon the same conduct, the two

assault indictment did not. Thus, because the evidence required to prove each

weapon” in the way he used or threatened to use it, while the second degree danger of “serious” bodily injury and that the curling iron “was a deadly deadly weapon charge required proof that the defendant placed the victim in

require proof of actual bodily injury. Similarly, the reckless conduct with a

period of time. The reckless conduct with a deadly weapon charge did not

impairing the victim’s ability to speak in her normal voice for a prolonged State to prove that the defendant “recklessly caused bodily injury,” to wit, necessary to the other. The second degree assault indictment required the

As charged, each indictment required the State to prove a fact not

or threatened to be used pursuant to RSA 625:11, V.” into her throat, and the curling iron was a deadly weapon in the manner used

[the victim] in danger of serious bodily injury in that he rammed a curling iron

indictment alleged that the defendant “recklessly placed or may have placed for a prolonged period of time.” The reckless conduct with a deadly weapon curling iron into [her] throat impairing her ability to speak in her normal voice

manifesting an extreme indifference to the value of human life by ramming a

defendant “recklessly caused bodily injury” to the victim “under circumstances

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

Affirmed. different evidence. The second degree assault indictment alleged that the assault and the other for reckless conduct with a deadly weapon, required Here, proof of the elements of the two charges, one for second degree

same victim during the same twenty-five minute encounter), and State v.

murder), and State v. McKean, 147 N.H. 198, 200-01 (2001) (“double

multiple indictments for being a convicted felon in possession of a firearm). Stratton, 132 N.H. 451, 454-55 (1989) (“unit of prosecution” case involving

involving multiple indictments for aggravated felonious sexual assault of the State v. Krueger, 146 N.H. 541, 542-43 (2001) (“unit of prosecution” case description” case involving kidnapping and criminal threatening charges), with

case involving charges for first degree murder and conspiracy to commit Compare State v. Sanchez, 152 N.H. 625, 630-32 (2005) (“double description” of the elements of the crimes as charged will require a difference in evidence. “double description” and “unit of prosecution” cases, we examine whether proof into more than one violation of a single statutory provision.” Id. In both one statute but that a defendant’s continuing course of conduct is fragmented