2011-500, State of New Hampshire v. Joshua Sprague

well as for the underlying burglary. We affirm in part and vacate in part. testimony; a nd (4) sentenced him for murder in the course of a burglary, as his motion for a mistrial; (3) ruled that he had opened the door to rebuttal when it: (1) instructed the jury regarding his state of mind defense; (2) denied 629:3 (2007). On appeal, he argues that the Superior Court (Tucker, J.) erred commit burglary. See RSA 630:1 - a, I(b)(2) (2007); RSA 635:1 (2007); RSA following a jury trial, for first - degree murder, burglary, and conspiracy to BASSETT, J. The defendant, Joshua Spragu e, appeals his convictions,

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate d efender, of Concord, on the

brief, and Ms. Morrell orally), for the State. attorney g eneral, and Benjamin J. Agati, assistant attorney g eneral, on the Michael A. Delaney, attorney general (Susan G. Morrell, senior assistant

No. 2011 - 500 Hillsborough – n orthern j udicial d istrict

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, Concor d, 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

with the first - degree murder sentence. This appeal followed. one - half to fifteen years imprisonment, concurrent with each other, a s well as and conspiracy to commit burglary convictions, he was sentenced to seven and conviction to life in prison without eligibility for parole. On both the burglary conspiracy to commit burglary. He was sentenced on the first - degree murder first - degree murder committed knowingly dur ing a burglary, burglary, and defendant of first - degree murder committed purposely, but found him guilty of establish either first or second - degree murder. The jury acquitted the the vict im, but claimed that he did not have the mens rea necessary to to commit burglary. At trial, t he defendant admitted that he shot and killed value of human life. He was additionally charged with burglary and conspiracy caused the death of the victim, th us manifesting an extreme indifference to the was also charged with second - degree murder, alleging that he recklessly alleging that he purposely or knowingly caused the death of the victim. He The defendant was charged with a lternate counts of first - degree murder

the police located him and took him into custody. after the shooting, th e defendant and his friends fled to Massachusetts, where The defendant ran from the scene and disposed of his gun. Several days

he was drinking, and using marijuana, cocaine, heroin, and Percocet. they did not find a weapon. The defendant testified that prior t o the incident, gun. Although the police found a cell ular tele phone next to the victim ’s body, that when the victim raised his hands, the defendant thought that he had a multiple shots at the victim, who died at the scene. The defendant testified companions screamed, “Shoot that mother f**** r.” The defendant the n fired his hands, and sai d, “I don’t even know her.” One of the defendant’s defendant yelled to the victim to s top. T he victim stopped, turned and raised chased the victim out of the apartment building and down the street. The One of the defendant’s compa nions yelled, “Shoot that n****r.” The defendant walked to Hann’s apartment b uilding. When they arrived, they saw the victim. confront Hann. Armed with a handg un, he, together with s everal companions, afraid that Hann and her friends would return. The defendant decided to his apartment and was also told about the threat to his dog. He was angry and T he defendant later was told that Hann and her friends had broken into

Hann’s friends threatened to harm the defendant’s dog. was not at home at the time. As they were leaving the apartment, one of accompanied by friends, went to t he defendant’s apartment. The defendant Because s he suspected that the defendant was the perpetrator, Hann, the apartment which she shared with the victim had been burglarized. him up and threatened to harm her. Several days later, Hann discovered that attempts to consummate a sale, t he defendant accused Hann of trying to set H ann met with the defendant in order to sell him marijuana. After two failed The jury could have found the following facts. In October p. 2 2009, Elena p. 3 3 valid defense in this case, nor does he challenge the propriety of the instruction On appeal, t he defendant does not dispute that self - defense was not a

how it may use the evidence.” “I’m telling the jury how it may not use the evidence. I’m not telling th e jury self defense.” It declined to add the defendant’s suggested language, stating: he had acted out of a concern for self - preservation “came very close to arguing necessary to avoid confusing the jury because the defen dant’s argument that acted in self defense.” The trial court explained that this instruction was was holding a gun,] you may not consider it as evidence that the Defendant that were it to “accept [the defendant’s testimony that he thought th e victim The trial court denied the defendant’s request and instructed the jury

respect to his mens rea at the time of the crime. instruction explaining to the jury that it could consider his misperception with that the victim had a gun as evidence of self - defense in the absence of an instructing the jury that it could not consider the defendant’s misperception Following closing arguments, the defendant objected to the court

preservation,” he recklessly fired. possessed a gun led to panic a nd fear, and that, out of a conce rn for “self purposely or knowing ly. He also argued that his belief that the victim contributed to his misperception and caused him to act recklessly, rather than t he defendant argued to the jury that his drug and alcohol induced intoxication raised his hands, he mistakenly thought that the victim had a gun. In closing, T he defendant testified at trial that, when the victim spun around and

defense. We disagree. claimed misperception could be releva nt to the defendant’s mental state as evidence of self - defense, and fail ed to instruct the jury that the defendant’s defendant’s claimed misperception that the victim had a gun could not be used under the State and Federal Constitutions when it instruct ed the jury that the The defendant argues that the trial court violated his due process rights

I. Jury Instruction s

underlying burglary. We address these arguments in turn. sentence d him for murder in the course of burglary as well as for the asserts that in violation of his double jeopardy rights, the court errone ously concerning when the defendant learned that the victim had died. Finally, he ruling that he had opened the door to rebuttal evidence offered by the State h ad an outburst in the courtroom. He further argu es that the court erred in mistrial or for more detailed curative instructions after a relative of the victim gun. He also contends that the trial court erred in denying his motion for a instruction to the jury regarding h is mistaken perception that the victim had a On appeal, the defendant argues that the trial court erred in its p. 4 4 murder, and the lesser - included crime of manslaughter, and provided accurate instructed th e jury on the elements of first - degree murder, second - degree Moreover, the defendant does not dispute that the trial court properly

that he shot the victim because he believed that the victim had a gun. de termining the defendant’s state of mind, including t he defendant’s testimony woul d have understood that he or she had to consider all of the evidence when rea. Thus, in view of the jury instructions in their entirety, a reasonable juror prove each element of each of the charged crimes, including the relevant mens Further, the trial court instructed the jury t hat the State had the obligation to determine which of the witnesses are worthy of belief.” (E mphase s added.) and (3) “[y]ou will consider all of the facts and circumstances in evidence to crime charged”; (2) “[y] ou should carefully scrutinize all the testimony given”; the evidence you must make one of the following findings wit h respect to each T he trial court explained: (1) “[w] hen you have considered and weighed all of t he trial court repeatedly instructed the jury to consider all of the evide nce. such weight as you think proper.” Furthermore, i n the final jury instructions, “[a] s with any witness, if you believe this witness’ testimony, you may give it defenda nt’s testimo ny as evidence that the defendant acted in self - defense, gun, the trial court instructed the jury that, while it could not use the immediately after the defendant testified that he believed that the victim had a defendant’s misperception for all purposes except self - defense. Notably, reasonable juror woul d have understood that the jury could consider the Upon review of the instructions in their entirety, we find no error. A

296 (2001) (quotation omitted). unreasona ble to the prejudice of his case.” State v. Lambert, 1 p. 4 47 N.H. 295, defendant must demonstrate that the court ’ s ruling was clearly untenable or court.” Id. “To show that the trial court ’ s decision is not sustainable, the and wording of jury instruction s, are within the sound discretion of the trial case.” Id. “Whether a particular jury instruction is necessary, a nd the scope reverse only if the instructions did not fairly cover the issues of law in the instructions adequately and accurately explain each element of the offense and State v. Hernandez, 159 N.H. 394, 400 (2009). “We determine whether the jury would have understood them, and in light of all the evidence in the case.” by interpreting the disputed instructions in their entirety, as a reasonable juror 33 (1983). “When reviewing jury instructions, we evaluate allegations of error rely upon federal law only to aid our analysis. State v. Ball, 1 2 4 N.H. 226, 231 - We first address the defendant's claim under the State Constitution and

permissible use (mental state defense).” use of the ‘perception of a gun’ evidence (self - defense) without clarifying its instruction unfairly prejudiced his defense because it “made clear the forbidden gun could be relevant to his mental state. As a result, he contends that the the jury that his testimony regarding his misperception that the victim had a given by the trial court. Rather, he argues that the instruction failed to inform p. 5 5 defendant in violation of his right to due process. not an unsustainable exercise of discretion and did not unfairly prejudice the crime. Therefore, t he trial court ’ s refusal to give the requested instruction was misperception for purposes of establishing his state of mind at the time of the entirety, did not prevent the jury from considering the defendant’s claimed Accordingly, w e conclude that the jury instr uction s, considered in their

evidence of self - defense. Thus, Francoeur is inapposite. merely prohibited the jury from considering his claimed misperception as misperception when assessing his state of mind at the time of the crime. It court did not prohibit the jury from considering the defendant’s claimed however, the instruction was not likely to mislead or confuse the jury. The trial standard of professional practice. Francoeur, 146 N.H. at p. 5 5 2 8 - 31. Here, reasonably capable of confusing or misleading the jury about the reasonabl e negligence” — although perhaps an accurate statement of the law, was in judgment, made in the proper exercise of judgment, is not professional trial court’s jury instruction in a medical malpractice suit — that “a mere error improper if it misleads or confuses the jury. In Francoeur, we held that the of his argument that while a jury instruction may be legally correct, it is The defendant cites Francoeur v. Piper, 146 N.H. 525 (2001), in support

support defendant’s theory of the case). (finding that trial court did not err in declining to give instruction that would favorable to defendant); State v. Shannon, 12 p. 5 5 N.H. 653, 662 - 63 (1984) expressly inform jury it could co nsider particular evidence in a manner See State v. Furgal, 164 N.H. 430, 437 (2012) (jury instruction did not need to defendant’s misperception as evidence of his mens rea at the time of the crime. not err in declining to specifically instruct the jury that it could consider the than purposely or knowingly. Under these circumstance s, the trial court did of his misperception that the victim had a gun, he had acted recklessly, rather and killed the victim, he asked the jury to believe his test imony that, because scenario than the State). Here, although the defendant admitted that he shot another when defendant merely presented evidence of a different factual in accordance with model jur y instructions on self - defense and defense of (quotation omitted) (finding that trial court did not err in failing to instruct jury presented by the State.” Cf. State v. Noucas, 165 N.H. 146, 155 - 56 (2013) “when he simply presents evidence of a different factual scenario than that A defendant does not have the right to a particular jury instruction

c ould have convicted him of second - degree murder or manslaughter. a reason able doubt that the defendant acted purposely or knowingly, the jury instruction. If the jury had believed that the prose cution did not prove beyond version of the events was sufficient to entitle him to a reckless manslaughter offense of reckless manslaughter, we need not decide whether the defendant’s Because the State did not ob ject to the instruction on the lesser included definitions of the mens rea of “purposely,” “knowingly,” and “recklessly.” p. 6 6 the conduct at issue and has broad discretion to decide whether a mistrial that the trial court is in the best position to gauge the prejudicial nature of “When reviewing a trial court’s rulin g on a motion for mistrial, we recognize instructions.” State v. Neeper, 160 N.H. 11, 1 p. 5 5 (2010) (quotation omitted). constitute s an irreparable injustice that cannot be cured by jury complained of was not merely improper, but also so prejudicial that it “Mistrial is the proper remedy only if the evidence or comment

making process. your mind. [The outburst] shouldn’t play any role in your decision - You can’t let any other factors influence your verdict. So keep it out o f during the trial and the law that I’ll give you at the end of the case. You have to decide this case based on the evidence that you receive

the outburst, explaining: jury ’s return to the courtroom, the trial judge instructe d the jurors to disregard outburst. T he defendant declined the court’s offer. A ccordingly, upon the offered to question each juror as to whether he or she could disregard the making process.” Although t he trial court de nied the defendant’s request, it . . . so that, you know, passions are not arisen that influence the decision reason why we go through the extensive process of picking an impartial jur y proposed instruction by including “words to the effect of, you know, this is the The defendant then requested that the trial court expand upon its

won’t decide the case based solely on the evidence and the law.” the motion, explaining, “I don’t think. . . there’s any reason to think the jury evidence in the case.” The defen dant moved for a mistrial. T he court denied instruct the jury to “disregard what happened [because] [i] t’s not part of the Immediately thereafter, t he court informed counsel that it intended to

excused the jury. statements. The relative was removed from the courtroom, and the trial court approximately ten seconds. Notably, t he trial judge did not hear the b******t, mother f**** r. I’m g oing to get you.” T he incident lasted testifying, a relative of the victim uttered: “This is b****** t. . .. “This is following an emotional outburst in the courtroom. W hile a witness was requ est for a mistrial and failed to give a more expansive curative instruction The defendant next argues that the trial court erred when it de nied his

II. Motion for Mistrial

under the State Constitution. (2005), we reach the same result under the Federal Constitution as we do Park, 421 U.S. p. 6 658, 6 p. 7 7 4 - 7 5 (1975); State v. Littlefield, 152 N.H. 331, 342 than the State Constitution under th ese circumstances, see United States v. As the Federal Constitution offers the defendant no greater protection 7 solely on the evidence and not “any other factors.” See Guay, 162 N.H. at 379 disregard the outburst. The trial court instructed the ju ry to decide the case Moreover, the trial court’s curative instruction directed the jury to

evidence in arriving at a verdict”). was of such a nature that the jury could not ignore it and fairly examine the “[n] othing in the record suggests that the [fami ly member of victim ’s] outburst Gamboa v. State, 296 S.W.3d 5 p. 7 74, 580 (Tex. Crim. App. 2009) (concluding that the crime had caused the victim ’ s family anguish.” (quotation omitted)); observing [victim’ s mother] in person, any reasonable juror would know that information it did not already know or might not readily surmise. Even without defendant’s guilt or innocence and “provided the jury with no significant presumed” when outbursts by the victim’s mother were unrelated to Chatman, 133 P.3d 534, 553 (Cal. 2006) (concluding that “prejudice is not other jurisdictions that have confronted similar circumstances. See People v. Our conclusion is consistent with the analyses adopted by courts in

defendant in light of the defendant’s admission that he shot the victim. could not have been a surprise to the jury that someone was angry with the jury that the speaker was a relative of the victim. Moreover, as in Guay, it defendant ’s mental state when he shot the victim. T he court never told the defendant, nor did he address the sole contested issue at trial — the (2013). The relative did not comment on the character or truthfulness of the constitute an irreparable injustice. See State v. Ploof, 165 N.H. 113, 119 Here, we conclude that t he outburst was not so prejudicial as to

Id. at 3 p. 7 79. could reasonably have concluded that the defendant lied during his testimony.” truthfully. Moreover, credibility issues are within the jury ’ s province, and it surprise to the jury that the victim did not believe the defendant to be testifying testimony of the victim and the defendant, “it could hardly have been a We upheld the trial court’s ruling, concluding that, g iven the conflicting inadmissible evidence — the victim’s opinion of the defendant’s character. Id. request for a mistrial, arguing that the outburst exposed the jury to liar. Guay, 162 N.H. at 378. The defendant appealed the court’s denial of his while the defendant was testifying, the victim shouted that the d efendant was a We find State v. Guay, 162 N.H. 375 (2011), to be instructive. In Guay,

could not be erased by a jury instruction.” “the image of a family member of the victim expressing animosity toward him court, that the court erred when it denie d the motion for a mistrial because On appeal, t he defendant argue s in essence, as he argued be fore the trial

action is necessary absent an unsustainable exercise of discretion.” Id. overturn the trial court’s decision on whether a mistrial or other remedial is appropriate.” State v. Ainsworth, 151 N.H. 691, 69 p. 8 8 (2005). “We will not 8 rebuttal testimony because, even assuming error, we conclude that the error We need not determine whether the trial court properly admitted the

reasonable doubt. even if the court erred in admitting it, the error was harmless beyond a his testimony. T he State counters that the testimony was admissible, and that misleading impression, nor did the State’s rebuttal witness directly contradict contends that the testimony was inadmissible because he did not create a the defendant’s testimony had opened the door to the rebuttal testimony. He On appeal, the defendant argues that the trial court erred in ruling that

Rules of Evidence 403, 60 p. 8 8, and 613. The trial court overruled the objection. objected, arguin g that the testimony was inadmissible under New Hampshire testimony as to when he learned that the victim had died. The defendant rested, the State sought to r ecall a witness to impe ach the defendant’s died until days later when he saw a subsequent news report. After the defense shooting before he fled to Massachusetts, he did not learn that the victim had defendant testified that, although he had watched televised news reports of the the State to call a rebuttal witness to impeach the defendant’s testimony. T he The defendant next contends that the trial court erred when it permitted

III. Rebuttal Witness

mistrial and for a more detailed instruction. discretion when, after the outburst, it denied the defendant’s request for a Accordingly, we conclude that the trial court sustainably exercised its

N.H. 601, 60 p. 8 8 (2011). argument for our review, so we d ecline to address it. See State v. Euliano, 161 State and Federal Constitutions, he has not adequately developed this request for a mistrial violated his right to due process and a fair trial under the T o the extent that the defendant argues that the trial court ’s denial of his

instruction that the defendant had requested. decision - making process. This instructio n was, in substance, the curative based on passion, it clearly direct ed the jury to disregard the outburst in its include specific language telling the jury that it could not decide this case v. Crie, 154 N.H. 403, 406 (2006). Here, a lth ough the instruction did not entitled to have the court use the exact words of requested instructions.” State enter into the decision - making process.” W e disagree. “T he defendant is not include a more detailed instruction “addressing the fact that passion cannot T he defendant further contends that the trial court erred in failing to

jury followed these instructions. State v. Russo, 164 N.H. 5 p. 8 85, 5 p. 9 91 (2013). to ignore victim’s outburst during defendant’s testimony). W e presume that the (upholding trial court’s denial of mistrial, in part, because court instructed jury 9

inconsequential when S tate introduced evidence of defend ant’s numerous prior defendant with respect to three inconsistent statements was rendered shooting. See State v. Barnes, 150 N.H. 715, 718 (2004) (impeachment of he admitted that he had lied to the police about where he was at the time of the argument. Moreover, other evidence undermine d the defendant’s credibility: to attack the defendant’s credibility d uring only a short portion of its clo sing lasted for fewer than three minutes. The State utilized the rebuttal testimony knew that the victim had died. The rebuttal testimony was not lengthy: it testimony from which it could have reasonably infer red that the defendant morning after the shooting, so the jury had a basis independent of the rebuttal defendant had previously admitted that he had watched the news on the Further, the challenged rebuttal testimony was inconsequential. The

repeatedly testified to substance of the challenged evidence). 434 - 35 (2011) (finding disputed evidence cumulative because defendant news broadcast reported the victim’s death. See State v. Garcia, 162 N.H. 423, watching the news on the morning after the shooting and that the television had previously testified that several individuals, including the defendant, w ere had introduced substantially the same evidence in its direct case. A w itness Moreover, the challenged testimony was cumulative given that the State

ready to fight. They also testified that members of the group armed themselves, and were t he defendant’s companions testified that the group intended to assault Hann. Hann and texted her a threatening message prior to the shooting. Several of defendant acted knowingly. The defendant admitted that he was angry with The alternative evidence of guilt also included testimony that the

or anything else, when he was shot. or the defendant, testified that the victim was not holding a cellphone, a gun, victim had raised his hands. The witness, who did not know either the victim eyewitness that the defendant shot the victim three to four times a fter the de fendant chasing the victim down the street, as well as the testimony of an overwhelming. The evidence included: a series of video recordings showing the Here, the State’s alternative evidence of the defendant’s guilt was

strength of the State's evidence. See i d. whether the evidence was cumulative or inconsequential in relation to the (1 p. 9 994). We also consider the character of the inadmissible evidence, including evidence presented at trial. See State v. V andebogart, 139 N.H. 145, 158 the State has met its burden, we consider the strength of the alternative verdict. See State v. Prudent, 161 N.H. 320, 323 (20 p. 10 10). In deciding whether reasonable doubt, that the erroneously admitted evidence did not affect the proving that an error is harmless, a burden satisfied by proof, beyond a was harmless beyond a reasonable doubt. The State bears the burden of 10

DALIANIS, C.J.