2015-0329, The State of New Hampshire v. William Edic

State Prison where the defendant and the victim were then incarcerated. The defendant stem from events occurring on July 26, 2010, at the New Hampshire The record supports the following facts. The charges against the

evidentiary rulings made at trial. We affirm. (2016); RSA 64 1:6, I (2016). On appeal, the defendant challenges various murder and one count of falsifying physical evidence. See RSA 630:1 - b, I(b) a jury trial in Superior Court (McNamara, J.), on one count of second degr ee HICKS, J. The defendant, William Edic, appeals his conviction, following

brief and orally, for the defendant. Christopher M. Johnson, c hief a ppellate d efender, of Concord, on the

a ttorney g eneral, on the brief and orally), for the State. Joseph A. Foster, attorney general (Peter Hinckley, s enior a ssistant

No. 2015 - 0329 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

erroneously applied Rule 608(b) to preclude him from introducing the second failed to preserve the following arguments: (1) his argument that the trial court Based upon our review of the record, we conclude that the defendant

are presented to the appellate court.” Id. (quotation omitted). should h ave an opportunity to rule on issues and to correct errors before they based on common sense and judicial economy, recognizes that trial forums Blackmer, 149 N.H. 47, 48 ( p. 2 2003) (quotation omitted). “This rule, which is specific objection is required to preserve an issue for appellate review.” State v. “The general rule in this jurisdiction is that a contem poraneous and

not preserved as it relates to the correctional officers’ testimony. recordings are not preserved; and (3) the defendant’s Rule 608(b) argument is audio recordings; ( p. 2 2) the d efendant’s constitutional arguments relating to the defendant’s Rule 608(b) argument is not preserved as it relates to the first two arguments are not preserved. Specifically, the State argues that: (1) the As an initial matter, the State asserts that a number of the defendant’s

opened the door to it. 608(b) in ex cluding the officers’ testimony, and, alternatively, that the State officers ’ te stimony, t he defendant contends that the trial court misapplied Rule not open the door to his disciplinary record. With respect to the correctional history was beyond the scope of redirect examination, and that the inmate did defendant challenges the trial court’s rulings that the inmate’s disciplinary amends. V, VI, XIV. As to the other inmate’s prison disciplinary histo ry, the present all proofs favorable. See N.H. CONST. pt. I, art. 15; U.S. CONST. state and federal constitutional rights to due process, confrontation, and to the three audio recordings, and that the exclusion of the recordings violated his erroneously relied upon New Hampshire Rule of Evidence 608(b) in excluding correctional officers to testify at trial. The defendant asserts that the trial court inmate about that inmate’s prison di sciplinary history; and (3) c alling certain other inmates at the New Hampshire State Prison; ( p. 2 2) questioning another him from: (1) introducing three audio recordings of telephone calls made by On appeal, the defendant argues that the trial court erred in prohibiting

the jury found the defendant guilty on both counts. with a purpose to impair their availability in such investigation.” After a trial, blood evidence and cleaning materials, including towels and similar cloths, was about to be instituted, destroyed, con cealed, and/or removed items, to wit, that an official law enforcement investigation into the. . . attack on [the victim] defendant, acting in concert with and aided by Milton and/or others, “believing face areas.” The falsifyi ng physical evidence indictment alleged that the to the value of human life by striking [the victim] repeatedly in the head and death of [the victim] under circumstances manifesting an extreme indifference w ith and aided by another inmate, Thomas Milton, “recklessly cause [d] the second degree murder indictment alleged that the defendant, acting in concert p. 3 3

witness’ character for truthfulness or untruthfulness . . . . into on cross examination of the witness . . . concerning the court, if probative of truthfulness or untruthfulness, be inquired by extrinsic evidence. They may, however, in the discretion of the c onviction of crime as provided in Rule § 609, may not be proved attacking or supporting the witness’ credibility, other than Specific instances of the conduct of a witness, for the purpose of

this audio recording under Rule 608(b). Rule 608(b) provides, in relevant part: On appeal, the defendant ar gues that the trial court erred in excluding

clearly untenable or unreasonable to the prejudice of his case.” Id. standard, the defendant must demonstrate that the trial court ’ s decision was discretion.” State v. Stowe, 162 N.H. 464, 470 (2011). “To prevail under this evidence, and we will not upset its ruling absent an unsustainable exercise of “The trial court has broad discretion to determine the admissibility of

and t he trial court sustained the State’s objection. exchange for providing testimony against the defendant. The State objected, received a benefit — specifically, a reduction in his inmate classification — in The defendant sought to admit this recording at trial to demonstrate that Morel implicated the d efendant in the July 26, 2010 incident, and an investigator. William Morel, an inmate at the New Hampshire State Prison whose testimony The third audio recording is of a conversation between State witness

I. Exclusion of Third Recording — Evidentiary Argument

testimony. his prison disciplinary history, and the exclusion of t he correctional officers’ of the first recording, the limitation of cross - examination of an inmate about ( p. 3 3) collectively, the defendant’s evidentiary arguments relating to the exclusion constitutional rights to confrontation a nd to present all proofs favorable; and that exclusion of the third recording violated his state and federal arguments relating to the third audio recording; (2) the defendant’s argument and co nsider the following issues in turn: (1) the defendant’s evidentiary We conclude that t he defendant’s rema ining arguments are preserved,

challenge before trial court). appellate review where defendant did not specifically assert constitutional (determining that defendant’s constitutional argument not preserved for appeal. See id.; see also State v. Alexander, 1 p. 4 4 p. 3 3 N.H. 216, 2 20 (1998) accordingly, decline to consider these arguments in t he first instance on arguments in the trial court, they are not preserved for our review. We, Because t he record demonstrates that t he defendant did not raise these recordings; and (3) h is due process argument relating to the third recording. recording; (2) his constitutional arguments relating to the first and second 4

CONST. pt. I, art. 15. to face, and to be fully heard in his defense, by himself, and counsel.” N.H. proofs that may be favorable to himself; to meet the witnesses against him face provid es, in pertinent part: “Every subject shall have a right to produce all Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). Part I, Article 15 of the State Constitution State Constitution and rely upon federal law only to aid our analysis. State v. CONST. amends. V, VI, XIV. We first address the defendant’s claim under the and to present all proofs favorable. See N.H. CONST. pt. I, art. 15; U.S. recording violated his state and federal constitutional rights to confrontation, The defendant next argues that the trial court’s exclusion of the third

II. Exclusion of Third Recording — Constitutional Arguments

secondary basis on appeal). articulated second basis for ruling and plaintiff did not properly challenge judgment without addressing merits of plaintiff’s argument where trial court Lebanon, 1 p. 4 48 N.H. 618, 624 (2002) (upholding trial court’s grant of summary defendant’s argument under Rule 608(b). C f. Koor Communication v. City of court’s decision to exclude the recording without addressing the merits of the recording from trial — one which the defendant did not appeal — we uphold the court’s hearsay ruling provided a secondary basis for the exclusion of the third challenge this basis for the trial court’s ruling on appeal. Because the trial we agree that the trial court made such a ruling. The defendant does not Court pursuant to statutory authority.”). Based upon our review of the record, except as provided by these rules or by other rules prescribed by the Supreme truth of the matter asserted.”); N.H. R. Ev. 802 (“Hearsay is not admissible declarant while testifying at the trial or hearing, offered in evidence to prove the N.H. R. Ev. 801(c) (“‘Hearsay’ is a statement, other than one made by the trial court ruled that the third audio recording was inadmissible hearsay. See The State also suggests that, i n addition to relying upon Rule 608(b), the

the recording was proper. contends that the trial court’s ruling precluding the defendant from introducing 608(b) did not bar introduction of the recording at trial. In response, the State general character for truthfuln ess or untruthfulness, and that, therefore, Rule third recording evidences Morel’s motive to provide testimony rather than his on a witness’s character for truthfulness or untruthfulness. He claims that the The def endant contends that Rule 608(b) applies only to a general attack

statements.” Id. (quotation omitted). extrinsic evidence, such as calling other witnesses, to rebut the witness ’ s gives it.” Id. This is because the rule “prohibits the examiner from introducing p. 4 470. “Generally, however, the examiner must take the answer as the witness the witness’ s character for truthfulness or untruthfulness.” Stowe, 162 N.H. at This rule “permits a cross - examiner to inquire into conduct t hat is probative of p. 5 5

Morel about the statements he made o n the third recording. Specifically, Morel reclassification or provided him with any other benefits. She also questioned from investigators, and about whether investigators in fact assisted with his Morel at length a bout whether Morel requested benefits such as reclassification issues relat ed to the recorded conversation. Defense counsel cross - examined T he trial court permitted the defendant to extensively cross - examine Morel on to persuade the jury of the validity of the line of attack on [Morel’s] credibility.” during cross[- examination], the [trial] court deprived counsel of the opportunity that, “by preventing counsel from playing the recording[] in the jury’s presence Morel about the recording was either denied or limited. Rather, he asserts Here, t he defendant does not argue that his ability to cross - examine

(quotation omitted). was clearly untenable or unreasonable to the prejudice of his case.” Id. at 2 p. 5 54 cross - examination unless the defendant demonstrates that the court’ s ruling allowed, we will uphold the trial court’s decision limiting t he scope of further omitted). “Thus, when the record reveals that a threshold level of inquiry was an unsustainable exercise of discretion standard.” Id. at 253 - 54 (quotation is satisfied, and the judge’s limiting of cross - examination is measured against ha s been permitted a threshold level of inquiry, . . . the constitutional standard cross - examine a witness on a proper matter of inquiry,” but “[o]nce a defendant 253 (2007). The trial court “may not completely deny a defendant the right to witness’s credibility through cross - examination. State v. Miller, 155 N.H. 246, rights guaranteed under Part I, Article 15, is the opportunity to impeach a recording vi olated his right to confrontation. We have held that, incident to the The defendant further argues that the trial court’s preclusion of the third

See Graf, 143 N.H. at 29 p. 6 6 – 97. introduce the third recording violated his right to produce all proofs favorable. we reject the defendant’s arg ument that the trial court’s refusal to allow him to recording on hearsay grounds — a ruling not challenged on appeal. Accordingly, standard rules of evidence.”). Here, the trial court excluded the third audio offer testi mony that is incompetent, privileged, or otherwise inadmissible under 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to of evidence.” State v. Graf, 143 N.H. 294, 296 – 97 (1999); see Taylor v. Illinois, provision “entitle[s] the defendant to introduce evidence in violation of the rules evidence that might influence the determination of guilt”). However, neithe r attendance of favorable witnesses at trial and the right to put before a jury defendants have the right to the government’s assistance in compelling the as part of the specific rights secured by the Sixth Amendment, “criminal 79 (199 p. 5 5); see Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (explaining that, to produce all proofs favorable to his defense.” State v. Newcomb, 140 N.H. 72, Amendment to the Federal Constitu tion guarantee the defendant “the right . . . the State Constitution and the Compulsory Process Clause of the Sixth recording violated his right to present all proofs favorable. Part I, Article 15 of The defendant argues that the trial court’s preclusion of the third 6

defendant maintains that the officers’ testimony evidenced Chapman’s motive to the issue of Chapman’s motive to testify at the defendant’s trial. The argu es that exclusion of this testimony was erroneous because it was relevant fight, and may have acted in concert with another inm ate. The defendant was no longer available, suggested that Chapman may have instigated the had been involved in a fight, and that video footage of th at altercation, which Specifically, the defense ass erted that the officers would testify that Chapman whose testimony implicated the defendant in the July 2 p. 6 6, 2010 incident. Prison involving State witness Randall Chapman — another inmate at the prison regarding a physical altercation that occurred at the New Hampshire State T he defendant sought to introduce the testimony of the two correctional offic ers The trial court also excluded the testimony of two correctional officers.

relevant to the issue of Mendoza’s motivation to testify against the defendant. obtain favorable consideration at an upcoming parole hearing, it was also impeach Mendoza’s general credibility and, because it evidenced his desire to According to the defendant, Mendoza’s disciplinary history was relevant to about Mendoza’s prison disciplinary history during re cross - examination. T he trial court also prohibited the defendant from questioning Mendoza

defendant. recording was relevant to Mendoza’s motivation to testify against the defendant contends th at exclusion of this recording was error because the in the July 2 p. 6 6, 2010 incident, and his wife during which the two argued. The at the New Hampshire State Prison whose testimony implicated the defendant recording captured a conversation between Michael Mendoza, an other inmate T he trial court excluded the first audio recording from trial. This

Prison Disciplinary History, and Exclusion of Correctional Officers’ Testimony III. Exclusion of First Audio Recording, Limitation of Cross - e xamination about

under the State Constitution. Accordingly, we reach the same result under the Fe deral Constitution as we do does the State Constitution under these circumstances. Roy, 1 p. 6 67 N.H. at 290. The Federal Constitution offers the defendant no greater protection than

recording did not violate the defendant’s right to confrontation. of the jury. See id. Accordingly, we conclude that exclusion of the third audio sufficient threshold level of inquiry in his attempt to discredit Morel in the eyes Our review of the record demonstrates that the defendant was able to make a question of whether Morel received a benefit in exchange for his testimony. Morel’s statements, defense counsel was nevertheless able to explore the defense counsel was precluded from elicit ing the investigator’s responses to “send Santa Claus a thank you message.” (Quotation omitted.) Although “appreciate [ed] the secretive [reclassification]” and asked the investigator to agreed with defense counsel that he had told an investigator that he p. 7 7

or will result from his conduct.” RSA 626:2, II(c) (2016). “The risk must be of disregards a substantial and unjustifiable risk that the material element exists to a material element of an offense when he is aware of and consciously value of human life.” RSA 630:1 - b, I(b). “A person acts recklessly with respect “recklessly under circumstances manifesting an extreme indifference to the prove beyond a reasonable doubt that he caused the death of another defendant of the applicable variant of second degree murder, the State had to physical evidence. See RSA 630:1 - b, I(b); RSA 641:6, I. To convict the The defendant was convicted of second degree murder and falsifying

or excluded evidence itself. Id. evidence presented at trial as well as the characte r of the erroneously admitted evidence of guilt. Id. In making this determination, we consider the other merely cumulative or inconsequential in relati on to the strength of the State’ s or weight, and if the evide nce that was improperly admitted or excluded is other evidence of the defendant’s guilt is of an overwhelming nature, quantity, evidence.” Id. An error may be harmless beyond a reasonable doubt if the “This standard applies to both the erroneous admission and exclusion of the error did not affect the verdict.” State v. Peters, 162 N.H. 30, 36 (2011). an error was harmless, the State must prove beyond a reasonable doubt that State v. Dupont, 149 N.H. p. 7 70, 74 (2003) (quotation omitted). “To establish that

immateri al error. the trial rather than on the virtually inevitable presence of for the criminal process by focusing on the underlying fairness of of the defendant’s guilt or innocence, and promotes public respect central purpose of a criminal trial is to decide the factual question The harmless - error doctrine recognizes the principle that the

any error was harmless. See State v. Botelho, 165 N.H. p. 7 751, 756 (2013). correctional officers’ testimony because, even if these rulings were err oneous, examination about Mendoza’s disciplinary histo ry, and excluding the trial court erred in exclu ding the first audio recording, limiting cross excluding this evidence was harmless. W e need not determine whether the arguments on their merits, and argues, in the alternative, that any error in ruled that the State did not open the door to it. The State responds to these Rule 608(b) in excluding the correctional officers’ testimony and erroneously regarding his disciplinary record; and (3) the trial court erroneously relied upon because, among other things, Mendoza opened the door to questioning prohibited him from cross - examining Mendoza about his disciplinary history Rule 608(b) in excluding the first recording; (2) the trial court erroneously The defendant argues that: (1) the trial court erroneously relied upon

with which he and the defendant were associated “turned on him.” Chapman agreed to testify against the defendant only because the prison gang to testify for the prosecution, and that it countered the State’s position that p. 8 8

motive, stating that, before the attack, the high - ranking gang member told him [the high - ranking gang member] wanted.” Morel also testified on the issue of the victim, and that the defendant told Chapman that “he was going to do what Chapman further testified that he tried to talk the defendant out of attacking victim because that is what the high - ranking gang member wanted them to do. victim had informed on him, and that the defendant and Milton attacked the gang member, testified that a high - ranking gang member believed that the testified that the defendant was a member of a prison gang. Chapman, a fellow motive for attacking the victim. S pecifically, Mendoza, Morel, and Chapman The other evidence also included testimony that the defendant had a

inmates had access to cleaning supplies. showers, sinks, toilets, and drains, and a correctional officer testified that the investigator t estified that, at the time of the attack, the inmates had access to defendant flushed the towel the defendant had used down a toilet. A prison that he assisted the defendant in cleaning up after the attack, and that the defendant clean ed up both “blood” and “b rain matter.” Chapman also testified to help clean the victim’s “[b] lood” off of the floor. Chapman testified that the evidence. Mendoza testified that, after the attack, the defendant used a towel Chapman who witnessed the defendant’s participation in the destruction of The other evidence also included the testimony of Mendoza and

death. presented medical testimony linking t he attack to the victim ’ s subsequent bloody” and “making an abnormal respirati on sound.” Moreover, t he State She testified that the victim’s “face was swollen,” and that he “was bruised and “laying on the mezzanine full of blood, not responsive and in very bad shape.” that she was called to r espond to a medical emergency and observed the victim the area where the attack occurred. A nurse employed by the prison testified testified that the defendant helped to move the victim’s unconscious body from “lif t ing” off of the concrete floor as the defendant stomped on it. They also multiple times. They variously described the victim’s head as “bouncing” or participated in the attack on the victim by “stomping” on the victim’s head witnesses identified the defendant in court, and testified that the defendant and another inmate who witnessed the attack on the victim. All three of these overwhelming. The other evidence included the testimony of Mendoza, Morel, Here, the other evi dence of the defendant’s guilt of these crimes wa s

or investigation.” RSA 641:6, I. any thing with a purpose to impair its verity or availability in s uch proceeding instituted, [the defendant]. . . [a]lter [ed], destroy [ed], conceal [ed] or remove [ed] that, “believing that an.. . investigation [was] pending or about to be applicable variant of falsifying physical eviden ce required the State to show person would observe in the situation.” Id. Additionally, p roof of the its disregard constitutes a gross deviation from the conduct that a law - abiding such a nature and de gree that, considering the circumstances known to him, p. 9 9

guilt.” Id. “merely cumulative . . . in relation to the strength of the State’s eviden ce of of prison really bad.” We thus conclude that the first audio recording was arguments with his wife were “hard,” and that they made him “want to get out difficulties his wife faced. He further agreed wit h defense counsel that these “having a husband in prison,” including the financial, emotional, and social with defense counsel that these arguments were about the difficulties of audio recording — in the d ays leading up to the attack on the victim. He agreed so,” and that they had one such argument — the argument captured by the first agreed with defense counsel that he argued with his wife “every six months or testify by his desire to get out of prison. On cross - examination, Mendoza T he record contains ample other evidence that Mendoza was motivated to

the correctional officers’ testimony was relevant to Chapman’s motive to testify. history was relevant to both his general credibility and motive to testify, and was relevant to Mendoza’s motive to testify, Mendoza’s prison disciplinary the crimes charged. Rather, as the defendant argues, the first audio recording at 3 6. The evidence the defendant sought to admit was not direct evidence of would have been merely cumulative or inconsequential. See Peters, 162 N.H. Mendoza’s inmate disciplinary history, and the correctional officers’ testimony Against this evidence, the first audio recording, the evidence of

have got involved.” that “he should have listened [to C hapman],” and that “he frigging should never for [the victim] to get hurt and killed,” that “he never meant for it to happen,” him that “he had snapped and things got out of control,” that “he never meant toilet.” Moreover, Chapman testified that, after the attack, the defendant told that he had “flushed [the towel he used to clean up the victim’s blood] down the that the defendant told him that he “really didn’t mean to take it that far” and Milton “jumped [the victim] because [the victim] had snitched.” Morel testified Mendoza testified that, after the attack, the defendant confessed that he and inmates and evidence showing that the defendant was conscious of his guilt. Finally, t he other evidence included the defendant’s confession to other

could face retribut ion from the gang. explaining that members of the defendant’s gang who fail to follow gang rules testimony from a member of the East Coast Gang Investigat ors Association and/or Milton called the victim a “rat.” Additionally, the State presented Morel, and another inmate each testified that, during the attack, the defendant “being a snitch,” which he explained is the same thing as a “rat.” Mendoza, inmate, Milton and the defendant talked about the person they were waiting f or were “waiting on somebody” and were going to “hi t him.” According to the that, just prior to the attack, Milton and the defendant talked about how they incriminating information to the autho rities. Further, a nother inmate testified been telling on.” Chapman explained that a “rat” is someone who provides that the victim “was a rat and . . . was te lling on things that he shouldn’ t have p. 10 10

could interfere with his parole eligibility, that he was placed in secured housing further agreed with defense counsel that a disciplinary violation of this nature altercation, and testified that he pleaded guilty to the disciplinary charge. He prosecutor that he was charged with a disciplinary violation after the that his altercation was the product of gang ret aliation, he agreed with the examination. Although Chapman ’s testimony may have created the inference The officer s ’ testimony was cumulative of Chapman’s testimony on cross -

testify against the defendant only because the gang “turned on him.” prosecution; and (2) countered the State’s position that Chapman agreed to testimony because it: (1) evidenced his desire to c urry favor with the the officers’ testimony evidenced Chapman’s self - interested motive to offer cumulative and inconsequential. As noted above, the defendant argues that testify, rendering the anticipated testimony of the two correctional officers both T he record likewise contains ample evidence of Chapman’s motive to

inconsequential. trustworthiness, the impeachment value of Mendoza’s discip linary history was emphasis omitted)). I n light of this other evidence of Mendoza’s lack of for laws which he is legally and morally bound to obey.” (quotation and trustworthiness may be evi nced by a [witness]’s abiding and repeated contempt what sort of person is asking them to take his word, and lack of See State v. Mayo, 167 N.H. 443, 458 (2015) (“Jurors ought to be informed of Mendoza’s general credibility in the same fashion as his disciplinary history. count of carrying a concealed weapon. This type of evidence b ears on aggravated battery on a law enforcement officer with a deadly weapon and one 2008 and 2011 crimes, Mendoza had been convicted on two counts of and escape. Further, defense c ounsel elicited testimony that, in addition to his additional crimes, including possession of Oxycodone, possession of cocaine, conduct. She also elicited testimony that, in 2011, Men d oza was charged with of falsifying physical evidence, and one count of accomplice to reckless that, in 2008, he was convicted o n four counts of witness tampering, one count trustworthiness. At trial, defense counsel elicited testimony from Mendoza general credibility, there was ample other evidence demonstrating his lack of Moreover, a lthough Mendoza’s disciplinary history was relevant to his

would not get parole because he could not get into a certain program. “programs done,” and agreed with defense counsel that he was worried he “hoping to get parole.” He testified that, to be paroled, he had to have his cross - examination that he had an upcoming parole hearing and that he was testified that he had safety issues in prison. H e agreed with defense counsel on out of prison really bad” because it was hard on his marriage, Mendoza addition to Mendoza ’s agreement with defense counsel that he “want[ed] to ge t was inconsequential in light of other evidence of his motive to testify at trial. In For similar reasons, we also conclude that Mendoza’ s disciplinary history p. 11 11

DALIANIS, C.J.