2013-0512 State of New Hampshire v. Kevin Rawnsley

working at the K2 Market in Pittsfield when a masked man entered the store. 2008. At approximately 10:00 p.m. that night, Mohammed Ahmed was The defendant’s conviction arises out of events that occurred on February 16, The parties do not dispute, or the record establishes, the following facts.

A. We affirm. testimony by the defendant’s former wife, Stacey Rawnsley. See Sup. Ct. R. 16 - Court (McNamara, J.) commit ted plain error when it failed to strike certain jury of robbery. See RSA 636:1 (2007). On appeal, he argues that the Superior CONBOY, J. The defendant, Kevin Rawnsley, appeals his conviction by a

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

brief and orally), for the State. Joseph A. Foster, attorney general (Heather A. Flanner, attorney, on the

No. 2013 - 512 Merrimack

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

friend that she was “facin g p. 2 20 to 40 years in the State prison” and that giving telephone calls from jail. In one March 2012 telephone call, Stacey told a lie, using her deposition testimony and statements she made in recorded credibility, d efense counsel repeatedly questioned Stacey about her motive to to lie by her desire to minimize her future incarceration. To impeach her accused the defendant of committing the robbery and that she was motivated Defense counsel’s theory of the case was that Stacey lied when she

described details of the crime to her. robber. The defendant eventually admitted that he had robbed the store, an d robbery, she confronted the defendant with her suspicion that he was the Stacey testified that after seeing a television news report about the

had been, he told her not to worry about it. small bills out of his sweatshirt. When Stacey asked the defendant where he [our street] with their blue lights on.” Stacey saw the defendant pull money in “between . . . two and five minutes after he came in, two cop cars went down 9:45 p.m. and returned approximately thirty minutes later. She test ified that Stacey testified that the defendant left the apartment at approximately

gloves. She also saw him take a wooden baseball bat. black clothes, in cluding a hooded sweatshirt, a cold - weather face mask, and argued. She saw the defendant leave their Pittsfield apartment while wearing had been using cocaine at home for approximately two hours when they 16, p. 2 2008. At trial, Stacey testified that, on that evening, she and the defendant married. However, they were still married on the date of the robbery, February By the time of the defendant’s trial, he and Stacey were no longer

Ultimately, Stacey received a reduced sentence on her criminal charges. at trial, that she believed that the defendant had committed the robbery. that were then pending against her. Stacey reported to the police, and testified Market robbery in exchange for consideration with regard to criminal charges when Stacey co ntacted the police, offering to provide information about the K p. 2 2 No suspect was identified to the police until four years later, in 2012,

parts of downtown Pittsfield. The track failed to lead the police to a suspect. man’s clothing. A police tracking dog followed a scent from the store through The passerby called 911, and, when the police arrived, described to th em the A passerby saw the man flee the store and heard Ahmed’s cries for help.

opened, stuffed cash from the register into his sweatshirt, and fled the store. the ground. The man then struck the cash re gister with the bat until it display cases, and struck him on the head with a baseball bat, knocking him to The man approached Ahmed, who was turning off lights in the refrigerated When Ahmed as ked the man for his name, the man replied, “Jon Benedict.” p. 3 3

about what comes out of her mouth.” because his “theory of this case is the woman is lying,” he was “not concerned In a colloquy with the court and opposing counsel, defense counsel stated that

my client. Please hold her accountable for that. release from charges she had pending[,] to testify falsely against had an interest in her freedom, her continued freedom, in her early something at stake. She has an interest in the outcome. . . . She . . . [Y]ou must scrutinize her testimony because she has

discount her testimony because you can. unworthy of any belief. She is not credib le. You should completely only say it one more time, because it’s my last time. She is offered this information in exchange for that consideration. And I’ll It’s when she needed some consideration. And it’s when she

Why? Because it’s when she was arrested. [It] was four years [later] she gave the statement [to the police]. . . .

. . . .

That’s your role. my client, whatever you want to impute into her motives and bias. sent ence, that she dislikes my client, that she has malice towards motivated by the fact that she received consideration for her You can and should find that Stacey Rawnsley was Defense counsel reiterated this theme in his closing argument:

closely. you’ll have to do in the next couple of days. Please watch her credibility is the most and the single most important thing th at behind the eight ball and needed some assistance. [Assessing] her police couldn’t solve this for four years, until Stacey Rawnsley was bunch of fingerprints. The police saying that’s the person. The So this case is not a whole bunch of CSI. This case is not a

. . . .

February, March 2012, . . . she decides to come forward. Rawnsley wasn’t arrested for four years. . . . Some time in This case was not solved for four years because Stacey

counsel explained: would allow her to be released on bail. In his opening statement, defense the police information about the robbery was “[p]robably the only thing” that p. 4 4

have been obvious in the sense that the governing law was clearly settled to the the error is clear under current law. Thus, an error is plain if it was or should omitted). “At a minimum, a court of appeals cannot correct an error . . . un less “Plain is synonymous with clear or, equivalently, obvious.” Id. (quotation

was somehow “error,” that error was not plain. See id. strike” that t estimony. Id. at 161. Even if the failure to strike the testimony pertinent question is whether the trial court erred in failing sua sponte to the trial court never ruled it admissible, we agree with the defendant that “[t] he matter, because the defendant ne ver objected to the challenged testimony, and alleged error was not plain. See Noucas, 165 N.H. at 160 - 62. As an initial We need not address these arguments because we conclude that any

testimony did not constitute a waiver of the privilege. privilege. He further asserts that his counsel’s fai lure to object to the her testimony about his verbal statements, is subject to the marital evidentiary The defendant contends that Stacey’s testimony about his conduct, like

privileged matter without objection”). evidentiary privilege is waived “by allowing testimony of another to the objecting to the testimony. See N.H. R. Ev. 510 R eporter’s N otes (stating that marital evidentiary privilege, the defendant waived the privilege by not statements on that night because, altho ugh that testimony was subject to the err by admitting Stacey’s testimony related to the defendant’s verbal privilege (quotation omitted)). Second, the State argues, the trial court did not “attributab le to the husband - wife relation” are subject to the evidentiary privilege. See State v. Pelletier, 1 p. 4 49 N.H. 243, 247 (2003) (only acts that are 2008, because that testimony was not subject to the marital evidentiary testimony related to the defendant’s conduct on the evening of February 16, First, the State argues, the trial court did not err by adm itting Stacey’s The State contends that there was no error in this case for two reasons.

State v. Noucas, 16 p. 5 5 N.H. 1 p. 4 46, 160 (2013) (quotation omitted). have looked to the federal p lain error analysis in applying our plain error rule.” fairness, integrity, or public reputation of the judicial proceedings. Id. “We error must affect substantial rights; and (4) the error must seriously affect the requirements: (1) there must be an error; (2) the error must be plain; (3) the justice would otherwise result. Id. at 704. Our plain error rule sets forth four sparingly, its use limited to those circumstances in which a miscarriage of trial court. State v. Guay, 164 N.H. 696, 703 (2013). The rul e should be used 16 - A. Under the plain error rule, we may consider errors not raised before the testimony, the defendant argues under the plain error rule. See Sup. Ct. R. evidentiary privilege.” See N.H. R. Ev. 504. Because he never objected to that Stacey’s testimony because it “convey[ed] information covered by the marital On appeal, t he defendant argues that it was error to admit much of 5

without the defendant’ s consent primarily involve trial strategy and tactics, French, 163 F.3d 874, 88 p. 5 5 (4th Cir. 1998) (“Decisions that ma y be made al., Criminal Procedure § 11.6 (a), at 183 - 84 (3d ed. 2007); see Sexton v. trial strategy that counsel may make on behalf of a defendant. 3 W. LaFave et The decision of whether to object to inadmissible evidence is an aspect of

mouth.” woman is lying, and . . . I ’m not concerned about what comes out of her theory of the case”). As defense counsel stated: “My theory of this case is the grounds so as to “delve into . . . conversations [that] help[ed] establish his defense couns el may have elected to not object to testimony on marital privilege People v. Hommerson, 927 N.E.2d 101, 113 (Ill. App. Ct. 2010) (observing that which was that Stacey was a liar and that his client was not the robber. See counsel may have decided not to object so as to develop his theory of the case, “[d]efense counsel may have had strategi c reasons for not objecting”). D efense the court not to sua sponte strike” a witness’s remark and observing that F.3d 760, 770 (D.C. Cir. 1996) (declining to con clude “that it was plain error for to Sta cey’s testimony. Noucas, 16 p. 5 5 N.H. at 161; see United States v. Lin, 101 Here, d efense counsel “may have had strategic reasons for not objecting”

concurring). strategy. . . become[s] plain error at appellate coun sel’ s urging.” Id. (Tjoflat, J., errors.” Id. (Tjoflat, J., concurring). In this way, “[t] rial counsel ’ s sound ser ve to transform defense counsel’ s strategic decisions into [trial] court those circumstances, “[r]eviewing admission of evidence for plain error. . . can legitimate strategic reasons for doing so.” Id. (Tjoflat, J., concurring). Under that defense counsel can waive evidentiary restrictions, and often has Id. at 1300 (Tjoflat, J., concurring). The problem with the second scenario “is that admission of evi dence over no objection is error in some abstract sense.” evidence, if objected to, should have been excluded; it is quite another to say 1299 - 300 (11th Cir. 2006) (Tjoflat, J., concurring). “It is one thing to say that [trial] court committed error at all.” United States v. S mith, 4 p. 5 59 F.3d 1276, standard is that, without objection, it is almost impossible to conclude that the “What is often overlooked in the rote application of the plain error

proceedings, t he instant case does not present such a circumstance. See id. and adversely affect ed the fairness, integrity, or public reput ation of judicial no dispute that certain testimony impaired the defendant’s substantial rights conceivably, a trial court would have such an obligation when there could be witness[’ s] testimony,” i d., and w e decl ine to do so in this case. Although, “We have never held that a trial court must sua sponte strike . . . [a]

trial court cannot be plain error.” Id. (quotation omitted). t he time of trial, and remains unsettled at the time of appeal, a decision by the contrary . . . .” Id. (quotation omitted). “Generally, when the law is not clear at p. 6 6

DALIANIS, C.J.