2015-0457, The State of New Hampshire v. Kyree Rice

reverse and remand. agree that the court erred in failing to give the requested jury instruction, we victim’s use of cocaine and marijuana on the night in questi on. Because we 627:9, IV (2016), and in prohibiting cross - examination of the victim about the producing or displaying a weapon shall constitute non - deadly force,” RSA (Abramson, J.) erred by not instruct ing the jury on the principle that the “act of degree assault, see RSA 631:1, I (b) (2016). H e argues that the Superior Court count of attempted murder, see RSA 629:1, I (2016), and two counts of first LYNN, J. The defendant, Kyree Rice, appeals his conviction s for one

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

g eneral, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney

No. 2015 - 0457 Hil lsborough - northern judicial 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

fired the second shot because Clay was continuing to hit Raheem. According “warning shot,” which he believed did not hit Clay; the defendant said that he which hit Clay. The defendant testif ied that the first shot was intended as a straddling and punching Raheem, the defendant fired two gunsho ts, both of After recovering from being knocked into the booth and observing Clay knocked Raheem to the ground, straddled him, and repeatedly punch ed him. Clay again turned to Raheem and the two men continued to fight. Clay

him off his feet and into a booth. According to the defendant, Clay then punched the defendant twice, knocking action that caused the gun to “look[] like it did go into [Clay ’ s] torso.” as the State characterized his actions, testifying instead that it was Clay’s stop.” The defendant also disputed that he “jammed the gun into Clay’s belly,” wasn’t stopping and I just thought that if he seen [the gun] maybe he would testified that he “pulled out [his] firearm” at this point “[b]ecause Mr. Clay to a State witness, sticking it into Clay’s stomach. The defendant, however, defendant responded by removing the gun from his waistband and, according between Clay and Raheem, but Clay grabbed the defendant’s ar m. The back to Raheem. The defendant attempted to intervene by putting his arm pounds, with such force as to knock Vasquez to the floor. Clay then turned t he defendant observed Clay hit Vasquez, who was 6’4” tall and weighed p. 2 260 T he defendant overheard the commotion and ran inside. Upon entering,

general melee ensued. responded by punching Clay. Vasquez then pushed Clay from behind and a Clay pushed Raheem’s face with his hand and punched him. R aheem observed R aheem push Pierson away and Pierson fall to the floor. In response, Subsequently, Pierson stumbled and collided into Raheem. Clay

then exited the restaurant. to reveal a g un, cocked it, and said, “you know what time it is.” The defendant another patron about a woman. In response, the defendant pulled his shirt up waiting in line. The defendant overheard Raheem having a disagreement with defendant entered the restaurant and approached Raheem where he was Clay stood inside, near the front of the restaurant. At some point, the outside, while Raheem, Vasquez, and Pierson proceeded inside. Meanwhile, The restaurant was very crowded. The defendant initially remained

Vasque z (Vasquez), arrived at the restaurant around the same time. Rice (Raheem), his cousin Beverly Pierson (Pierson), and his friend Rudy six alcoholic drinks prior to his arrival. The defendant, his brother Raheem in Manchester. Clay, a large and powerful man, had consumed approximately May p. 2 24, 2015, the victim, Curtis Clay, and his girlfriend arrived at a restaurant T he following facts were adduced at trial. At app roximately 1:45 a.m. on

is going to affect somebody’s ability to perceive.... [A]nd also, the reasonable juror can assume that combining cocaine and alcohol If he says ‘no,’ I’m stuck with the answer but — and I think that a I think it’s a fair question to ask [Clay] if he did cocaine that day.

argued: had ingested cocaine and marijuana on the night of the fight. Defense counsel outside the presence of the jury regarding the relevance of evidence that Clay During trial, but prior to Clay ’s testimony, the trial court held a hearing

th e amount of force he used was not reasonably necessary. believed that Clay was about to use deadly force against Raheem, and because in shooting Clay because he neither believed nor reasonably could have citation omitted). T he State ’s position was that the defendant was not justified beyond a reasonable doubt.” Etienne, 16 p. 3 3 N.H. at 8 0 - 81 (quotation and becomes an element of the charged offense... which the State must prove defense or defense of another is admitted, “conduct negating the defense constitute deadly force,” RSA 627:9, IV. When, as in this case, evidence of self - “‘ [n]on - deadly force ’ means any assault or confinement which doe s not risk of causing d eath or serious bodily injury,” RSA 627:9, II, (2016), whereas commits with the purpose of causing or which he knows to create a substantial (2011). Deadly force “means any assault or confinement which the actor circumstances. See RSA 627:4, I - II(a); State v. Etienne, 163 N.H. 57, 77 reasonably believes that the amount of force he uses is necessary under the is about to use unlawful deadly force against himself or a third person and he force against another person when he reasonably believe s that the other person of Raheem. See RSA 627:4, II(a) (2016). A person is justified in using deadly he shot Clay, but argued that he was justif ied in using deadly force in defense At trial, the defendant pursued a justification defense. He admitted that

into . . . Clay’s right side.” “when he... shot . . . Clay in the left side” and “when he dischar ged a firearm committed attempted m urder “when he shot [Clay],” an d first degree assault See RSA 629:1, I; RSA 6 p. 3 31:1, I (b). The indictments alleged that the defendant with one count of attempted murder and two counts of first degree assault. Manchester Police Department. As is relevant to this appeal, h e was charged Approximately one week later, the defendant surrendered to the

screen ing. He teste d positive for alcohol, cocaine, and cannabis. Clay underwent a battery of tests at the hospital, including a urine toxicology drove Clay to Elliot Hospital where he received treatment for gunshot wounds. After the shooting, the defendant left the restaurant. Clay ’s girlfriend

necessary to prevent Clay from killing his brother. to the defendant, he engaged in this course of conduct beca use he believed it p. 4 4

probably better than — proba bly more danger than Mr. Clay. warning actually probably put his brother in greater danger, you learned during the cross - examination of Kyree Rice, the wa sn’t intended to. It was intended to be a warning shot and as Now as it turns out that warning shot did hit Mr. Clay;

booth. Firing a warning shot didn’t work. gun, didn’t work. For those efforts he got nailed, flew into the efforts didn’t work. Using his hands, it didn’t work. Show him the He used a range of efforts to try to stop M r. Clay and those

not. May 2 p. 4 4. Did he unload that weapon in to Mr. Clay? No. He did That’s the situation that presented itself to Kyree Rice on

Raheem Rice. (Pause) you at least twice now, got down and he was like this, whaling on did Mr. Clay doing [sic] in this video? Just as I’ve demonstrated to brother go down and Mr. Clay get on top of his brother. And what Ashley Francis described him. (Pause) And then he saw his (P ause) — what he saw was that. Mr. Clay, a wild man, just as When my client was able to get up out of the booth —

enraged and he was relentless. to stop. Mr. Clay didn’t stop. He was e ngaged in combat. He was care, but he tried to use it in a non - deadly manner to get Mr. Clay hopes that he would stop. Either Mr. Clay didn’t see it or didn’t the course of that he tried to show Mr. Clay the weapon in the He was — his arm was swung and he got punche d twice. During up; tried to hold Mr. Clay back. What happened when he did that? [Defense counsel]: He tried to use non - deadly force; put his arms

characterized these efforts as incrementally more forceful: used a variety of methods to halt the victim’s aggression to wards Raheem. He In closing argument, the defendant’s counsel asserted that the defendant

perception s and memory, or increased aggressiveness. through expert testimony or other evidence — to impairm ent of the victim’s substantive purposes because the defendant failed to link the drug use — evidence was irrelevant and, therefore, inadmissible for impeachment and demonstrate the evidence’s relevance. The trial court ruled that the drug use Defense counsel also proffered the deposition testimony of D r. Mi g uel Gaeta to

aggression, which is also an issue in this case. doctor testifie[d] [in his deposition] that it affects his level of p. 5 5

challeng e the other person to step outside, but instead said: “you know what time it is.” previously, the evidence was that, after displaying and cocking the gun, the defendant did not argument appears to be somewhat of a mischaracterization of the evidence. As discussed The State also claimed that the defendant challenged the man to come outside. However, this 1

and unnecessary at that time. Was deadly force needed at that point ? It was unreasonable

introduces deadly force, when he put the gun to Curtis’s belly. Curtis. That’s what happened up to the point where the defendant Rudy Vasquez. And Raheem reached out to make contact with running across the restaurant. Curtis landed a punch squarely on Rudy Vasquez voluntarily decided to fight with Curtis by

to punch Raheem, but was unsuccessful. force, Curtis pushed Raheem; pushed him in the face. Curtis tri ed occurred up to this point. When the defendant enters with deadly introduces deadly force into this event. So let’s review what’s S o now at this point, this is where the defendant, Kyree Rice

jamming that belly [sic] into Curtis’s stomach. his hand. Gun clearly pointed at Curtis’s belly. (Pause) He’s into the restaurant, here’s the gun, right there. There’s the gun in back into the restaurant. And when the defendant comes back [Prosecutor]: Now at this point that’s when the defenda nt comes

to the floor and turned back to confront Raheem: prosecutor next turned to the defendant’s actions when Clay knocked Vasquez arguing over a woman, by lifting up his shirt to “flash” his gun. The 1 that he intervened in a dispute between Raheem and another man, who we re up on the defendant’s actions the first time he entered the restaurant, arguing the incident that had been received in evidence, the prosecutor first focused deadly force was “unreasonable and unnecessary.” Utilizing the videotape of I ts the ory was that the defendant was “looking for a fight” and that his use of In its closing, the State was dismissive of the defense - of - another defense.

against Raheem Rice. reasonable and necessary to stop Mr. Clay from using deadly force that use of deadly force was reasonable and necessary. It was needed to use that deadly force. And based upon what he saw, circumstances that you must put yourself in his shoe s, felt that he circumstances as he saw them that evening, which is the And then finally, he felt that he had to use under the

danger? He was trying to stop him. Wasn’t inte nded to hit Mr. Clay. Why would he put his brother in p. 6 6

first. non - deadly force.” Because we find the last issue dispositive, we address it the jury that “[t]he act of producing or displaying a weapo n shall constitute specifically his perception and memory of the fight; and (3) de clining to instruct the victim’s use of cocaine and marijuana to impeach the victim’s credibility, the victim’s aggression; (2) prohibiting cro ss - examination of the victim about victim’s cocaine use for the substantive purpose of demonstrating the extent of court erred by: (1) prohibiting cross - examination of the victim about the The defendant raises three issues on appeal. He argues that the trial

assault charges pending any appeal. murder conviction only, and held in abeyance sentencing on the first degree attempted murder charge, the court sentenced the defendant on the attempted parties agreed that the first degree assault charges were alternatives to the The jury found the defendant guilty of all three charges, but because the

that the State has argued here.” where it’s merely brandishing a weapon and not an integral part of the crime concluding that the second sentence of RSA p. 6 627:9, IV “applies to a situation was required. Following a recess, the court declined to give the instruction, stated that it would review the matter further and decide if such an instruction might not have understood the prosecutor’s reference that way, the court formed his intent to use deadly force. W hen the defendant argued that the jury the defendant pulled his gun as an argument regarding when the defendant court responded that it viewed the prosecutor’s reference to the point at which “producing or displaying a weapon shall constitute non - deadly force.” The instructions the second sentence of RSA 627:9, IV, which states that force . . . when he pulled the weapon out,” and asked the court to include in its h er closing, the prosecutor “told the jury that [the def endant] injected deadly After the arguments were concluded, the defendant pointed out that, in

looking for revenge.”) restaurant. . . . And he knows who just sucker punched him. A nd he is has been disrespected in the ultimate epic way possible in a tiny, crowded he was angry that Clay had “sucker punched” him in front of his friends. (“He fight,” and asserted that the defendant’s real motive for shooting Clay was that the defendant “had no reason to bring deadly force, or self - defense to a mutual shots while aiming directly at Clay (both of which hit Clay). She argued that the defendant got up from the booth, moved toward Clay, and fired at least two mutual combat, with Raheem showing no signs that he was afraid of Clay; and Clay and Raheem “squared off,” demonstrating a willingness to engage in punch on the defendant and the defendant falls backwards . . . into the booth”; grabbed the defendant’s hand, pushed him away and landed “one good left (Emphasis added.) The prosecutor then review ed what happened next: Clay p. 7 7

matter. State v. Ayer, 154 N.H. 500, 514 (2006). defense, and that the defendant therefore was entitled to have the jury instructed about the The State does not dispute that there was “some evidence” to support a defense - of - others 2

and reckless conduct arisin g out of a road - rage incident during which he the defendant was charged with, among other offenses, criminal threatening governed by our decision in State v. Gingras, 162 N.H. 633 (2011). In Gingras, instruction. We disagree. W e conclude that the outcome here is largely 2 unsustainably exercise its discretion in refusing to give the requested With respect to the merits, the State argues that the trial court did not

jury instruction issue is properly before us for review. basis upon which he claims the trial court erred. We thus con clude that the this case. Furthermore, t he defendant has adequately set forth in his brief the the principle embodied in the second sentence of RSA 62 p. 7 7:9, IV is applicable to unpersuasive. The premise upon which the appeal is based is the claim that does not challenge the court’s interpretation. We find this argument not apply to the facts of this case, and it suggests that the defendant ’s brief the trial court’s ruling was based up on its interpretation that RSA 627:9, IV did instruction claim by not properly briefing it. Specifically, the State asserts that In response, the State first argues that the defendant waived this jury

relevant to the issues before the jury. producing or displaying a weapon shall constitute non - deadly force,” became contends, the legal principle embodied in this statute, i.e., that “[t]he act of B ecause the State’s closing focused on that earlier point in time, the defendant “jamm ed that [gun] into Clay’s stomach.” (Quotation and brackets omitted.) he fired his gun to th e moment he drew the gun, pointed it at Clay, and/or defendant’s] belief in the necessity of his use of deadly force” from the moment effect of shifting “the crucial moment for assessing the reasonability of [the issue the jury had to decide.” He contends that the State’s closing had the the instruction... depends on whether the principle became relevant to any The defendant argues that “whether the [trial] court should have given

omitted). clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation sustainable, the defendant must demonstrate that the court’s ruling was at p. 7 70 (quotation omitted). “To show that the trial court’s decision is not these matters for an u nsustainable exercise of discretion.” Etienne, 163 N.H. sound discretion of the trial court, and we review the trial court’s decisions on necessary, and the scope and wording of jury instructions, are within the deadly force.” RSA 627:9, IV. “Whether a particular jury instruction is jury that “[t]he act of producing or displaying a weapon shall constitute non - T he defendant asserts that the trial court erred by not instructing the

prejudicial to the defendant: omission of the second sentence of RSA 627:9, II from the instructions was been no need for the legislature to include it.” Id. We then explain ed how the without more, constitute the use of deadly force – otherwise there would have that, in the absence of this provision, such discharge of a firearm would not, sentence in RSA 627:9, II’s definition of “deadly force” was “a strong indication (brackets omitted). We reasoned that the legislature’s inclusi on of the second causing death or serious bodily injury,’ whereas the latter does not.” Id. is that the former must involve conduct that ‘creates a substantial risk of between an assault that involves the u se of deadly force and one that does not 627:9 does not define “assault,” the statute “make[s] clear that the difference victim, we focused on the term “assault.” We observed that, although RSA Id. at 639. Because there was no evidence that the defendant confined the “non - deadly force” require that there be either an “assault” or a “confinement.” In so ruling, we noted that the definitions of both “deadly force” and

constituted prejudicial error. Id. at 639 - 40. reversed on the grounds that failure to give the full definition of deadly force evidence that the defendant had actually fired his gun. Id. On appeal, we 63 p. 8 8. The court reasoned that doing so was unnecessary because there was no to read the emphasized second sentence of RSA 627:9, II. Gingras, 162 N.H. at except that, in instructing on the definition of deadly force, the court declined The court instructed the jury in accordance with the above definitions,

RSA 627:9, IV (2007) (amended 2011).

not constitute deadly force. “Non - deadly force” means any assault or confinement which does

RSA 627:9, II (2016) (emphasis added).

another is believed to be constitutes deadly force. or death in the direction of another person or at a vehicle in which Purposely firing a firearm capable of causing serious bodily i njury a substantial risk of causing death or serious bodily injury. commits with the purpose of causing or which he knows to create “Deadly force” means any assault or confinement which the actor

deadly force, which, at the time of the events at issue, were as follows: asked the court to instruct the jury on the definitions of deadly force and non sufficient to require a jury instruction on the issue. Id. at 637. The defendant self - defense, and the State conceded that the evidence p roduced at trial was back away. Gingras, 162 N.H. at 635 - 36. The defendant claimed he acted in pointed a gun at the other motorist and threatened to shoot him if he did not p. 9 9

degree assault indictments alleged use of a deadly weapon. See RSA 631:1, I(b). used deadly force.” Id. The same potential for confusion exists in this case, inasmuch as the first assumed that if the defendant had used a deadly weapon it automatically followed that he had weapon, there was a danger that, without proper instructions, “the jury could easily have same. Id. Yet because, as used by the defendant, his firearm clearly constituted a deadly N.H. at 640. We observed that the definitions of “deadly weapon” and “deadly force” are not the both indictments alleged that the defendant’s firearm constituted a deadly weapon. Gingras, 162 reckless conduct charges both included use of a deadly weapon as elements of the offenses, and on the definition of deadly force was enhanced by the fact that the criminal threatening and In Gingras, we also found that the likelihood of jury confusion in the absence of a full instruction 3

displays a weapon, the actor has used non - deadly force as a matter of law; and used deadly force as a matter of law; (2) if the actor merely produces or of a vehicle in which another person is believed to be l ocated, the actor has if the actor purposely discharges a firearm in the direction of another person or another person, the legislature has established three categories of such use: (1) respect to the defensive use of a firearm th at does not involve the shooting of others. Reading RSA 627: p. 9 9, II and IV together, we conclude that, at least with legislative intent regarding the use of a weapon in self - defense or defense of amendment demo nstrates that our rationale in Gingras accorded with weapon shall constitute non - deadly force.” Laws 2011, 268:4. The 2011 that case. The amendment provides: “The act of producing or displaying a accordingly, we had no occasion to consider that amendment in our decision in 627:9, IV (2016) that added the second sentence to paragraph IV and, The events in Gingras occurred prior to the 2011 amendment to RSA

Id. at 63 p. 9 9 - 40. 3

threatening and reckless conduct offenses. claim of self - defense and found him guilty of the criminal force. On this basis, the jury could have rejected t he defendant’s not threatened the defendant with the imminent use of deadly inasmuch as [the victim] was not armed with a weapon and had defendant’s use of deadly force in self - defense was not justified determined, in accordance with the court’s instruct ions, that the force. And if the jury made this finding, it may then have pointing his gun at [the victim] did constitute the use of deadly that the jury may have determined that the defendant’s act of sentence of RSA 627: p. 9 9, II, there is a significantly gr eater likelihood non - deadly force. However, without knowing about the second gun at [the victim] without discharging it constituted the use of deadly force, then the defendant’s cond uct of merely pointing his or a vehicle in order to capture such conduct within the ambit of specific provision dealing with the firing of a gun at another person found that, if the legislature deemed it necessary to include a in cluding the second sentence of RSA 627:9, II, it could well have If the jury had been given the full definition of deadly force, p. 10 10

Id., cmt. 2, a t 160. Restatement of Torts. formulation in these terms seems to reach the same result as does the by way of defense, provided that he does not intend to carry out the threat. The fears only slight injury, he may lawfully threaten his adversary with a knife or gun altered by Subsection (2). The object is to provide that even though the defendant considered an assault. This is an unduly severe rule, however, and it would be justificat ion for using extreme force in self - defense, threatening to use it may be There is some authority at common law for saying that where there is no commentary to this section explains its rationale: American Law Institute Model Penal Code and Commentaries § 3.11(2), at 157 (1985). The he will use deadly force if necessary, d oes not constitute deadly force. otherwise so long as the actor’s purpose is limited to creating an apprehension that A threat to cause death or serious bodily injury, by the production of a weapon or Section 3.11(2) of the Model Penal Code states, in relevant part: 4

about RSA 627:9, IV that he reques ted was necessary because, had it been effect. The entire point of the defendant’s argument is that the instruction brief does not use those words, the upshot of his argument is plainly to this argument constituted a misstatement of the law. Although the defendant’s The State asserts that the defendant does not claim that its closing

bodily injury, and that question of actor’s intent must be decided by jury). 4 th e actor will use deadly force if necessary, rather than to cause death or great person does not constitute deadly force if purpose is merely to threaten that brandishing or pointing a gun at another in self - defense or defense of a third consistent with Model Penal Code § 3. p. 11 11 and accompanying comments, that force.”); cf. Com. v. Cataldo, 668 N.E.2d 762, 764 - 6 8 (Mass. 1996) (holding, constitutes nondeadly force only, and does not amount to the use of deadly using a gun in a threatening manner without discharging the weapon Cannell, 916 A.2d 231, 234 (Me. 2007) (“[W]e have unequivocally held that did not, as a matter of established law, constitute deadly force.”); State v. Dist. Ct. App. 2016) (“Marty pointing a gun at [the victim] without firing at her N.E.2d 561 (Mass. 2011); s ee also Marty v. State, 2016 WL 4944 p. 10 100, *4 (Fla. omitted)), abrogated in part on other grounds by Com. v. Wynton W., 947 use of deadly force and n ondeadly force must be given.” (quotation and ellipsis level of force cannot be dete rmined as a matter of law, instructions on both the question.”); Com. v. Allen, 918 N.E.2d 92, 94 (Ma ss. App. Ct. 2009) (“Where the or nondeadly as a matter of law, the jury should be allowed to decide the claiming the right to use force [in self - defense or defense of another] is deadly (“When the evidence doe s not establish that the force used by a defendant decide. Accord Stewart v. State, 672 So. 2d 865, 868 (Fla. Dist. Ct. App. 1996) constitutes deadly force or non - deadly force is a factual matter for the jury to oth erwise not covered by (1) or (2), the determination of whether the use (3) if the actor’s use of a firearm falls somewhere between (1) and (2) or is 11

constituted the use of deadly force. difference between what the prosecutor argued constituted deadly force and what the court said difference between dea dly and non - deadly force, the jury may not have perceived that there was a the use of non - deadly force, and without such instructions as a benchmark for measuring the argument. The problem with this suggestion is that the court gave no instructions at all regarding instructions, was sufficient to cure any possible prejudice resulting from the prosecutor’s was to disregard anything the lawyers said about the law if it differed from the court’s We reject the suggestion th at the trial court’s boiler plate instruction, to the effect that the jury 5

defendant’s conduct in the moments before he used deadly force. 5 risk that the jury would misunderstand the legal implications of the the use of non - deadly force, the prosecutor’s argument created a significant course of conduct throughout thei r encounter, and without an instruction on jury undoubtedly focused on the reasonableness of the defendant’s (and Clay ’s) below, in arriving at its ultimate decision on the issue of guilt or i nnocence, the law in the case.” Gingras, 162 N.H. at 638 (quotations omitted). As explained not hesitated to reverse when “the instructions did not fairly cover the issues of and intelligible language, the rules of law applicable to the case”; and we have purpose of the trial court’s charge is to state and explain to the jury, in clear simply enumerating the elements of the charged offense(s). Instead, “[t]he judge’s responsibility to instruct the ju ry in a criminal case is not limited to sufficient confidence that the facts satisfy the burden of proof, etc. The trial conflicts in testimony, the reliability of certain evidence, whether it has invariably must resolve a host of subsidiary issues, such as witness credibility, was justified in using deadly force. Yet in deciding on the ultimate issue a jury to be decided by the jury was whether, at the time he shot Clay, the defendant distinction justifies a difference in outcome. We agree that the ultimate issue shooting of the victim. We are not persuaded, however, that this factual specific act that formed the basis for the charges against the defendant was his conduct that constituted the crimes with which he was charged, while here the Gingras, the defendant’s act of pointing his gun at the victim was the very We acknowledge that this case is distinguishable from Gingras, in that in

law. from the instructions deprived the jury of an essential part of that governing deadly force, and that the omission of the second sentence of RSA 627:9, IV law regarding what conduct does, and what conduct does not, constitute properly make that determination the jury needed a full understanding of the deadly force an issu e for the jury, the defendant’s point is that in order to authorities cited above — so as to make the question of whether it amounted to “pro ducing or displaying” a weapon — a dubious proposition in light of the use the State’s characterization) goes beyond the statutory language of conduct of pointing the gun at Clay (or “jamming [it] in Curtis’s sto mach,” to odds with the applicable law. Even if one assumes that the defendant’s given, the jury could have determined that the prosecutor’s argument was at p. 12 12

State had therefore failed to prove one of the elements of the charged offenses. force when he dre w/pointed his gun, he must be found not guilty because the not have had the effect of telling the jury that, if it found he used non - deadly his actions were justified. More importantly, the requested instruction would deadly force against Clay. H is defense was that, at the point when he did so, robbery, id. at 156, the defendant here admitted that he eventually did use Noucas, who did not admit to any of the facts constituting the charged armed crafted” instruction we contemplated in Noucas. Unlike the defendant in Here, the defendant’s request ed instruct ion was the kind of “narrowly

as an element of armed robbery. Id. at 156. distinguish between force used to defend his companion and the force required a “narrowly crafted” instruction designed to inform the jury of the need to however, that, had the defendant so requested, he might have be en entitled to that he was guilty of the armed robbery. Id. at 156 - 57. We specifically noted, found that he did use force to defend his companion, it could also have found As we pointed out, the flaw in the defendant’s p osition was that even if the jury robbery if it found that he acted in defense of his companion. Id. at 154 - 56. the effect of telling the jury that it must find the defendant not guilty of armed standard defense - of - others ins truction the defendant sought would have had jury instruction. Id. at 153 - 54. We rejected this argument because the physical force, the defendant argued that he was entitled to a defense - of - others fr om an attack by the victim. Id. at 153. Because he acknowledged using force against the alleged victim of the robbery in order to defend his companion robbery occurred in order to find his companion, and that while inside he used in the robbery and testified that he entered the house where the alleged accomplice liability theory. Noucas, 165 N.H. at 149. He denied participation Noucas, the defendant was charged with the crime of armed robbery under an O ur decis ion in State v. Noucas also supports our decision here. In

State alleges constitutes a criminal offense. unavailable when the conduct it describes is “an integral part” of what the second sentence of RSA 627:9, IV would be effectively eviscerated were it light of the charged offense and the evidence adduced at trial”). In short, the that to be entitled to jury instruction a defense must be “legally available in See RSA 627:1 (2016); cf. State v. Noucas, 165 N.H. 146, 155 (20 p. 13 13) (holding to the off enses with which a person may be charged under the Criminal Code. RSA chapter 627 is to describe justifiable conduct that constitutes a “defense” another, is obviously part of chapter 627. And, of course, the very pur pose of when deadly and non - deadly force may be used in self - defense or defense of “as used in this chapter,” and RSA 627:4, which describes the cir cumstances As the defendant correctly observes, the definitions found in RSA 627:9 apply display or brandish ment of a weapon is “an integral part” of the crime charged. construed the second sentence of RSA 627:9, IV as being inapplicable when the W e note that the State does not contend that the trial court correctly 13

would have been the case had the jury been properly instructed as to the terms of RSA 627:9, IV. significantly greater risk that the jury would make such a finding about the later conduct than failure to give the instruction on the legal implications of the earlier conduct is that it created a shooti ng Clay) was not justifiable. As explained in the text, however, the prejudice resulting from deadly force, it could also have found that his subsequent conduct of using deadly force (e.g., by the defendant’s conduct in drawing his gun and/or pointing it at Clay did not constitute the use of We acknowledge that in this case, as in Noucas, even if a properly instructed jury had found that 6

displaying a weapon constitutes the use of non - deadly force, then it may well On the other hand, if the jury had been instructed that producing or

was in mortal d anger a short time later when the defendant fired the gun. intended to shoot Clay all along, and did not reasonably believe that Raheem that the jury would have concluded that the defendant was “trigger happy,” merely by d rawing his gun or pointing it at Clay makes it much more likely by the jury that the defendant resorted to the use of unlawful deadly force conduct a few moments later when he fired the gun. Simply put, a conclusion could easily have influenced its assessment of the reasonableness of his illegally by resorting to deadly force when it was unreasona ble to do so, that force against Raheem. And if the jury concluded that the defendant had acted have reasonably believed that Clay posed an imminent threat of using deadly on the floor, the jury could well hav e found that the defendant could not then not yet brought Raheem down and begun punching him while straddling him evidence showed that, at the point the defendant pulled out the gun, Clay had about to use unlawful deadly force against himself or Raheem. Because the justified in using deadly force only if he reasonably believed that Clay was use of deadly force, and the court instructed the jury that the defendant was asserting that the defendant’s act of pulling out his gun itself constituted the prosecutor’s argument could readily have been understood b y the jury as the gun, and only after those measures failed, firing the gun. But the stop Clay’s attack on Raheem –– first using his hands, then drawing/pointing defendant contended that he us ed reasonable, incremental force in an effort to various points in an ongoing, stressful, and rapidly changing situation. The determine, among other things, what conduct was or was not reasonable at asse ssing the defendant’s defense it would have been necessary for the jury to span of time — a matter of minutes or perhaps even seconds. Thus, in The record makes it clear that the critical events occurred over a very brief confusion resulting from the court’s failure to give the requested instruction. as being “an integral part of the crime” highlight s the potential for jury description of the defendant’s conduct in drawing his gun/pointing it at Clay Although the trial court’s construction of RSA 627:9, IV was incorrect, its

jury on the law.” Id. instruction fell “within the scope of [the] judge’s respon sibility to instruct the claimed facts.” State v. Bruneau, p. 13 131 N.H. 104, 117 - 18 (1988). As such, the provided the jury with necessary guidance “about the legal significance of C f. Noucas, 165 N.H. at 156 - 57. Instead, the instruction would simply have 6 p. 14 14

the prospect that the jury would find that the defendant’s actions with the gun Awareness of the provisions of this statute would have significantly enhanced producing or displaying a weapon constitutes the use of non - deadly force. however, the legis lature made a n affirmative pronouncement that the act of 627:9, II. With the enactment of the second sentence of RSA 627:9, IV, principles from what the legislature did not capture within the terms of RSA comparatively sophisticated deductive process of drawing inferences as to legal 639, in order to make such finding the jury would have had to engag e in the without firing it did not constitute the use of deadly force, Gingras, 162 N.H. at jury to find that the defendant’s acts of drawing and/or pointing his gun the court’s reading of the second sentence of R SA 627:9, II could have led the to be non - deadly force. Third, although it is true, as we held in Gingras, that whether the defendant’s act of pulling and/or pointing the gun could be found non - deadly force. Th us, the jury was given no guidance in determining N.H. at 638, whereas in this case the court gave no instruction at all about deadly force by reading the first sentence of RSA 627:9, IV, see Gingras, 162 Gingras, the trial court gave at least some instruction on the matter of non defendant’s use of the gun for defensive purposes short of firing it. Second, in court to fully instruct the jury as to the governing legal principles regarding the this argument, there was an even greater need than existed in Gingras for the that producing the gun constitute d deadly force as a matter of law. In light of 633, here the prosecutor’s argument could have been understood as asserting the prosecutor ch aracterized the defendant’s conduct, see Gingras, 162 N.H. at First, unlike in Gingras, where there was no specific indication of how

not constitute d eadly force. T his argument fails for three reasons. understanding that the defendant’s act of drawing/pointing the gun at Clay did doing, the State contends, provided the jury with a suff icient basis for B ecause the trial court gave that instruction in the present case, the effect of so firing did not constitute the use of deadly force. Gingras, 162 N.H. at 639. may have found that the defendant’s act of pointing a gun at another without vehicle in which another is believed to be constitutes the use of deadly force, it accordance with RSA 627:9, II, that the act of firing a firearm at another or at a argument. I n Gingras we held that if the jury had been instructed, in Finally, we address what may be termed the State’s “good enough”

necessary to use deadly force when he did so. impacted the jury’s assessment of whether he reasonably believed it was incremental force against Clay as he thought was necessa ry, and could have would have supported the defense ’s contention that he used only such threat intended to cause Clay to cease his non - deadly attack on Raheem, that reasonably and lawfully in making non - deadly use of the gun at that time as a Raheem by Clay. And if the jury determined that the defendant acted unlawful, but instead was a reasonable response to a non - deadly attack upon Clay (or “jamming [the gun] in Curtis ’s stomach”) at the time he did so was not have concluded that the defendant’s action in pulling his gun or pointing it at p. 15 15

fundamental,” State v. Fichera, p. 15 153 N.H. 588, 598 (2006), and “an incident of “The right to cross - examine adverse witnesses in criminal cases is

(1983). upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - 33 irrelevant. We address this issue first under the State Constitution and rely agree with the State that the trial court properly excluded this evidence as amount of cocaine in Clay ’s system could cause increased aggressiveness. We relevant for this purpose because the defendant did not establish whether the Raheem. In contrast, the State argues that the cocaine evidence was not of t he defendant’s belief that Clay was about to use deadly force against in the fight would have provided circumstantial evidence of the reasonableness a great degree of force during the fight; and the actual degree of force Clay used aggression; Clay ’s use of cocaine, therefore, support s an inference that he used Clay ’s cocaine use: cocaine intoxication is associated with increased The defendant proffers a chain of inferences to establish the relevance of

that Clay was about to use unlawful deadly force against Raheem. that the evidence was releva nt to demonstrate the reasona bleness of his belief and Fourteenth Amendments to the United States Constitution. He argues rights under Part I, Article p. 15 15 of the New Hampshire Constitution and the Sixth The defendant asserts that the court’s ruling violated his constitutional

p. 15 151 N.H. 666, 674 (2005). of judicial economy because it may arise upon retrial. See State v. Sweeney, victim’s aggressiveness during the fight. We address this issue in the interest Clay about his cocaine use for the substantive purpose of demon strating the that the trial court erred by prohibiting the defendant from cross - examining Notwithstanding our remand, we next consider the defendant ’s argument

627:9, IV, we reverse the defendant’s convicti ons and remand for a new trial. the use of non - deadly force in accordance with the second sentence of RSA charge to the jury. Because the trial court failed to instruct the jury regarding court, upon request, must include an instruction regarding such law in its and which may have a critical bearing on the jury’s decision - mak ing, the trial implications of a view of the facts for which there is support in the evidence provision of law is necessary for the jury to fully understand the legal Properly understood, Gingras stands for the proposition that when a

failure to instruct as to the second sentence of RSA 627:9, IV. of RSA 627:9, II was “good enough” to alleviate the prejudice resulting from its the State’s argument that the trial court’s in struction on the second sentence above, could have resulted in a different verdict. For these reason s, we reject prior to firing it did not constitute the use of deadly force, which, as explained p. 16 16

Robinson v. State, 527 S.E.2d 845, 846 (Ga. 2000) (trial court properly court sustainably exercised its discretion in excluding that evidence. Compare demonstrate the r elevance of Clay ’s cocaine use, we conclude that the trial use and his behavior on the night in question. Because the defendant did not and the jury could not reasonably draw a connection between Clay ’s cocaine opposed to impairment from its abuse — and aggression would still be absent, consistent with his deposition testimony, a link between cocaine use — as as suming that Clay testified that he used cocaine that night and Gaeta testified hospitalized evidenced “impairment from the abuse of cocaine.” Thus, even opine that the amount of cocaine found in Clay ’s urine at the time he was to inquire whether Clay was impaired from the abuse of cocaine, nor did Gaeta wakefulness, [and] alertness.” (Emphas e s added.) The defendant did not se ek cocaine” is “associated with aggression, pain control or alleviation of pain, causes aggression; it established only that “impairment from the abuse of Howeve r, Gaeta’s deposition testimony did not establish that cocaine use

act aggressively during the fight. upon Gaeta’s proposed trial testimony, that Clay ’s cocaine use caused him to evidence would be relevant because the jury could reasonably infer, based assuming Clay admitted to using cocaine on the nigh t in question, that upon Dr. Gaeta’s expert deposition testimony. The defendant argued that, cocaine use and aggression, the defendant made a proffer based exclusively that cocaine use causes aggressive behavior. To establish this link between night of the fight. The relevance of this evidence depend ed upon the premise burden. The defenda nt sought to question Clay about his use of cocaine on the We agree with the trial court that the defendant failed to carry this

demonstrating its admissibility.” St ate v. Walters, 142 N.H. 239, 242 (1997). of his case.” Id. “The party offering evidence generally bears the burden of that the court’s ruling was clearly untenable or unreasonable to the prejudice show an unsustai nable exercise of discretion, the defendant must demonstrate absent an unsustainable exercise of discretion.” Mitchell, 148 N.H. at 294. “To the trial court’s sound discretion, and we will not overturn its determination Mitchell, 148 N.H. at 294 - 95. “Whether evidence is relevant is a question for less probable than it would be without the evidence.” N.H. R. Ev. 401; see also fact that is of consequence to the determination of the action more probable or Evidence is relevant if it has “any tendency to make the existence of any

Indeed, irrelevant evidence is inadmissible. N.H. R. Ev. 402. present irrelevant evidence.” State v. Mitchell, 148 N.H. 293, 294 (2002). proper matter of inquiry, as the defendant “has no constitutional right to examination....” Id. Cross - examination eliciting irrelevant evidence is not a courts have broad discretion to fix the limits of proper areas of cross this “right is not unfettered.” State v. McGill, 153 N.H. 81 3, 8 p. 17 17 (2006). “Trial Sto we, p. 16 162 N.H. 464, 4 67 (2011) (quotation omitted). Although fundamental, rights guaranteed by [P]art I, [A]rticle 15 of the State Constitution,” State v. 17

(quotation omitted)), with Hernandez v. Cnty. of Los Angeles, p. 17 173 Cal. Rptr. 3d affect one’s ability to see, to hear, and, generally, to perceive what is occurring.” is common knowledge that the quantity of alcohol and/or drugs consumed will on this question. Compare Lyba v. State, 583 A.2d 1033, 1036 (Md. 1991) (“It knowledge and understanding of an average juror. Other jurisdictions are sp lit marijuana, and alcohol upon perception and memory are within the common We have never addressed whether the combined effects of cocaine,

(Emphasis added.) intoxication by [cocaine and marijuana] could impair p erception and memory.” briefed this argument o n appeal, he argues only that “[n]obody disputed that realm of common knowledge and everyday experience”). To the extent he has expert testimony is not neces sary where matter to be determined “is within the Silva v. Warden, N.H. State Prison, 150 N.H. 372, 374 (2003) (stating that within the common knowledge and understanding of an average juror. See that the effect of cocaine, alcohol, and marijuana on perception and memory is However, on appeal, the defendant has not developed his trial argument

The defendant made no proffer as to Clay ’s expected testimony. combining cocaine and alcohol is going to affect somebody’s ability to perceive.” his memory and/or perception because “a reasonable juror can assume that proffer an evidentiary connection between Clay ’s drug use and impairment of a “go od faith basis” to inquire about Clay ’s drug use and that he need not assessment of his perceptions or memory of the fight. He asserted that he had use was relevant to impeach his credibility because it would bear on the jury’s objection at trial on relevanc e grounds, the defendant argued that Clay ’s drug marijuana in order to impeach his credibility. In response to the State’s prohibiting him from cross - examining Clay about his use of cocaine and Finally, we turn to the defendant’s argument that t he trial court erred by

Constitution as we do under the State Constitution. omitted)). Accordingly, we reach the same result under the Federal Amendment only protects cross - examination that is relevant.” (quotation at 294; Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir. 1993) (“[T] he Sixth does the State Constitution under these circumstances. See Mitchell, 148 N.H. The Federal Constitution offers the defendant no greater protection than

and her potential behavior at the operative time). connection between the presence of cocaine and alcohol in the victim’s body expert testimony provided outside the presence of the jury supported causal (trial court erred in excluding evidence of victim’s drug use where defense the relevant time), with McWilliams v. State, 632 S.E.2d 127, 130 (Ga. 2006) proffered expert “could not say what, if any, effect coc aine had” on the victim at excluded cross - examination regarding victim’s drug use and possession where p. 18 18

DALIANIS, C.J.