2018-0433, State of New Hampshire v. Michael Munroe

for a new trial. Professional Conduct; and (5) trying him in absentia. We reverse and remand withdraw their representation pursuant to the New Hampshire Rules of him leave to r epresent himself; (4) failing to allow his trial attorneys to testimony from a medical professional as to the victim’s identity; (3) denying striking his notice of self - defense; (2) overruling his hearsay objection to 642:9, I (2016). He argues that the Superior Court (Wageling, J.) erred by: (1) conviction following a jury trial on one count of assault by a prisoner. See RSA HANTZ MARCONI, J. The defendant, Michael Munroe, appeals his

and orally), for the defendant. Kirsten Wilson Law, PLLC, of Portsmouth (Kirsten B. Wilson on the brief

attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Sean R. Locke, assistant

No. 2018 - 0433 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

plea of not guilty, or within such further time as the court may case originated in circuit court - district division, after the entry of a the case originated in superior court, or thirty calendar days if the Criminal Code, the defendant shall within sixty calendar days if If the defendant intends to rely upon any defense specified in the

superior c ourt. The rule states: Rule 14(b)( p. 2 2)(A) governs criminal defendants’ general notice obligations in

585, 589 ( p. 2 2007) (construing a statute). will not add words to the plain language of a rule. Cf. State v. Pol k, 155 N.H. ordinary meaning where possible. See Lillie - Putz Trust, 160 N.H. at 722. We plain meaning of the words used and will ascribe to them their plain and procedural rule, as with a rule of evidence or a statute, we will first look to the 728, 734 (2019); Champagne, 152 N.H. at 428. When interpreting a 14(b)(2)(A), our review is de novo. See Petition of N.H. Sec’y of State, 171 N.H. striking the def endant’s notice turns on the proper interpretation of Rule Thus, because, in this case, our analysis of whether the trial court erred by N.H. 716, 721 - 22 (2010); State v. Champagne, 152 N.H. 423, 428 (2005). any other issue of law, see Lillie - Putz Trust v. Downe ast Energy Corp., 160 (2006), we review the trial court’s interpretation of court rules de novo, as with unsustainable exercise of discretion, see State v. Fichera, 153 N.H. 588, 594 ordinarily review a trial court’s decision to strike a notice of a defense for an Rule of Criminal Procedure 14(b)(2)(A) (Rule 14(b)(2)(A)). Although we striking his pretrial notice of self - defense filed pursuant to New Hampshire We first address the defendant’s argument that the trial court erred in

defendant’s motion a nd later sentenced the defendant. This appeal followed. notwithstanding the verdict, to which the State objected. The court denied the The jury found the defendant guilty. The defendant moved for judgment

with a complex facial fracture. his injuries. W.V. was ultima tely taken to the hospital where he was diagnosed Two officers then handcuffed W.V. and “brought him to see medical” because of punching him. Graham intervened and was able to separate the two men. were housed, observed the defendant pulling W.V. down and repeatedly Corrections Officer Graham, who was assigned to the unit where bo th men p. 2 2017, a fight broke out between the defendant and another inmate, W.V. was an inmate at the Rockingham County House of Corrections. On May 25, The jury could have foun d the following facts. In 2017, the defendant

which is justifiable under this chapter constitutes a defense to any of fense.”). a pure defense under New Hampshire law. See RSA 627:1 (2016) (“Conduct 627:4, I (2016); see State v. Pennock, 168 N.H. 294, p. 3 307 (2015). Self - defense is the imminent use of unlawful, non - deadly for ce by such other person.” RSA person in order to defend himself . . . from what he reasonably believes to be statute, a defendant is “justified in using non - deadly force upon another notice of the de fense of self - defense. Under New Hampshire’s self - defense In this case, the defendant argues that the court erred by striking his

defense when evidence relevant to the defense is admitted at trial. See id. however. See RSA 626:7, I(a). Instead, the State is required to disprove a pure 1 p. 3 39 N.H. at 352 - 53. The State need not disprove pure defenses in every c ase, reasonable doubt and must be submitted to the jury for determination,” Soucy, N.H. 26, 31 (2012), they “must be negated by the State by proof beyond a Because pure defenses are “elements of the crime,” State v. Marchand, 164 every fact necessary to constitute the crime with which he is charged.”). accused against conviction except upon proof beyond a reasonable doubt of (1970) (“[T] he Due Process Clause [of the Fourteenth Amendment] protects the Williams, 133 N.H. 631, 633 (1990); see also In re Winship, 397 U.S. 358, 364 reasonable doubt of all factual elements of the crime charged. State v. defendant to a jury determination as to whether there is proof beyond a well as Part I, Article 15 of the New Hampshire Constitutio n entitle a criminal Both the Fourteenth Amendment to the United States Constitution as

negate a justification). (defining element of an offense, in part, as conduct or circumstances that the element.” Soucy, 1 p. 3 39 N.H. at 352; see also RSA 625:11, III(c) (2016) of an element of the offense, while an affirmative defense is a defense overriding of the evidence. See RSA 626:7, I(b). Conceptually, a “pure defense is a denial defenses that the defendant has the burde n of establishing by a preponderance doubt. See RSA 626:7, I(a). By contrast, affirmative defenses are those defenses that the State has the burden of disproving beyond a reasonable pure defen ses, see, e.g., State v. Soucy, 139 N.H. 349, 352 (1995), are those affirmative defenses. See RSA 626:7, I (2016). Defenses, also referred to as The Criminal Code specifies two types of defenses: defenses and

make such “order as the interest of justice requires.” Id. set ting forth the grounds [therefor].” Id. If he does not do so, the court may defense sp ecified in the Criminal Code,” he must “file a notice of such intention N.H. R. Crim. P. 14(b)(2)(A). Thus, if the defendant “intends to rely upon any

as the interest of justice requires. any testimony relating to such defense or make such o ther order the defendant fails to comply with this rule, the court may exclude forth the grounds [therefor] with the court and the prosecution. If or der for good cause shown, file a notice of such intention setting p. 4 4

Accordingly, we limit our analysis to whether the court erred by s triking the notice of self - defense. an argument on appeal that the trial court erred by striking his notice of competing harms. Although the defendant’s notice also raised the defense of competing harms, he does not develop 1

for the defense noticed, the court could evaluate whether a defendant’s notice notices of affirmative defenses are not required to identify evidentiary support court reasoned that, although our decision in State v. Fichera established that differentiated notices of affirmative defenses from notices of pure defenses. The W.V. . . . threatened him with the use of non - deadly force.” The trial court his self - defense claim because he “ha[d] not alleged any f acts suggesting that the grounds set forth in the defendant’s notice were “insufficient to support” adequately set forth the grounds under Rule 1 p. 4 4(b)(2)(A). The court stated that The trial court subsequently ruled that the defendant’s notice failed to

self - defense was required to be determined at trial. forth the grounds under Rule 1 p. 4 4(b)(2)(A) and that whether there is evidence of then filed a supplemental notice arguing that his original notice sufficiently set to defend himself from any imminent use of force against him.” The defenda nt defense . . . defense because it does not allege[] how or why the Defendant had asserted that “the Defendant’s notice does not set forth the grounds of his self the offer of proof as contained within the Defendant’s notice.” The State defendant is not entitled to argue self - defense as a matter of law based upon The State filed an objection to the defendant’s notice, arguing that “[t]he

unclear “what is being said between the parties.” defendant further explained that “there is no audio in the video,” making it physical contact between the two men prior to Mr. Munroe hitting [W.V.]” The alleged fight,” thus it was “not clear” from the video “whether there was any was provided by the State in discovery, “does not show the entirety of the Furthermore, the defendant represented that the video of the incident, which “[b]oth Mr. Munroe and [W.V.] refused to give statements concerning the fight.” [W.V.] pled guilty to the charge of figh ting.” The defendant also stated that hearing was held on May 28, 2017 for [W.V.],” and “[d]uring that hearing, official custody.” According to the defendant’s notice, “[a] disciplinary board [W.V.] by p unching him” at a time when the defendant “was being held in that on May 25, 2017, Mr. Munroe recklessly caused serious bodily injury to prisoner. See RSA 6 p. 4 42:9, I, IV (2016). He explained that the State “alleged grounds for this notice,” that he stood accused of felony - level assault by a (Bolding, underlining, and capitalization omitted.) The defendant stated, “[a]s he “may rely on the defense of self - defense . . . pursuant to [RSA] 627:4.” Competing Harms” prior to trial, notifying the court and the prosecution that 1 Here, the defendant filed a “Noti ce of Self Defense and Notice of

(quotation omitted); see also Soucy, 139 N.H. at 3 p. 5 52 - 53. defense becomes an element of the charged offense.” Pennock, 168 N.H. at 307 Thus, “[w]hen evidence of self - defense is admitted, conduct negating the 5

which is precisely what the notice in this case did.” Id. Notwithstanding the requires that a notice of affirmative defense ‘set[ ] forth the grounds therefor,’ Rule 101. Champagne, 1 p. 5 52 N.H. at 429. We stated that the rule “expressly We held that the defendant’s notice was adequate under Superior Court

portion of notice of defense in Champagne). (emphasis omitted); see also Fichera, 1 p. 5 53 N.H. at 595 (highlighting pertinent and renounced any further part icipation.” Champagne, 152 N.H. at 429 further negotiations before any negotiations were complete. He walked away defense, in pertinent part, as follows: “The defendant withdrew from any crimes). The defendant’s notice set forth the grounds for the renunciation 629:1, III (2016) (establishing renunciation as an affirmative defense to attempt renunciation, as well as two suppression motions. I d. at 427; see also RSA N.H. at 426. The defendant filed a notice of defense raising the defense of of five pounds or more of marijuana with the intent to sell. Champagne, 152 N.H. at 427 - 29. There, the defendant was charged with attempted possession We addressed the scope of this requirement in State v. Champagne, 152

(quo tation omitted); see N.H. R. Crim. P. 14(b)(2)(A). his or her notice of defense, just as Rule 14(b)(2)(A) currently does. Id. Superior Court Rule 101 required the defendant to “set[] forth the grounds” in Fichera, 1 p. 5 53 N.H. at 594 - 95 (quoting Super. Ct. R. 101 (repealed 2013)). Thus,

other order as the interest of jus tice requires.” may exclude any testimony relating to such defense or make such shown. If the defendant fails to comply with this rule, the Court or within such further time as the Court may order for good cause the prosecution, in accordance with the tim e limitations in Rule 98 therefor shall be filed with the Court, with a copy of same going to Criminal Code, a notice of such intention setting forth the grounds “If a defendant intends to claim any defense specified by the

Former Superior Court Rule 1 01 provided: obligations. See Fichera, 1 p. 5 53 N.H. at 594 - 97; Champagne, 152 N.H. at 428 - 29. the former Superior Court Rule governing criminal defendants’ general notice Although we have yet to interpret Rule 14(b)(2)(A), we have interpreted

defendant’s notice was ultimately stricken. within 10 days would result in the defendant’s notice being stricken. The formed the basis for a claim of self - defense, and stated that failure to do so ordered the defendant to further supplement his notice to identify facts that supporting the defenses . . . which it must disprove at trial.” The trial court because “the State should have sufficient notice of the factual allegations set forth sufficient evidentiary support for a pure defense under Rule 14(b)(2)(A) p. 6 6

152 N.H. at 429, and in Fichera we specifically rejected the State’s argument validity of” the grounds set forth, Fichera, 153 N.H. at 59 p. 6 6; accord Champagne, cases we highlighted that trial courts are not permitted to “test the factual omitted); see als o Fichera, 153 N.H. at 595 (discussing Champagne). In both renounced any further participation.” Champagne, 152 N.H. at 429 (emphasis negotiations before any negotiations were complete [and] walked away and defense by stating, in pertinent part, that he “withdrew from any further defendant’s notice adequately set forth the grounds for h is renunciation Fichera, 153 N.H. at 591, 595 - 96. In Champagne, we concluded that the simply stating his “intention to assert the defense of insanity . . . at trial.” defendant’s notice adequately set forth the grounds for an insanity defense by grounds of a defense under Rule 14(b)(2)(A) is not substantial. In Fichera, the These precedents make clear that the defendant’s burden to set forth the

358, 370 - 71 (2019) (discussing “some evidence” standard). (quotation and citation omitted); see also, e.g., State v. Woodbury, 1 72 N.H. determining the adequacy of the notice given pursuant to Rule 101.” Id. defense is supported by some evidence, that standard does not apply when that a defendant is only entitled to a jury instruction on insanity if his insanity of that defense. Id. at 59 p. 6 6. Furthermore, we explained that “[w]hile it is true grounds for a noticed defense did not allow the trial court to “test the validity” that the defendant’s obligation under Superior Court Rule 101 to set forth the forth the grounds for his insanity defense. See id. at 595 - 96. We reiterated See id. at 593. We disagreed, finding that the defendant’s notice sufficiently set offered no evidence to show that a mental disease or defect caused his actions. defendant’s notice and the insanity defense because the defendant’s notice at 591. On appeal, the State argued that the trial court properly struck the the defense of insanity, as set forth in RSA 628:2, at trial.” Fichera, 153 N.H. . . . and respectfully notifies this Court and the State of his intention to assert responsible for his conduct.”). His notice stated: “Now comes [the defendant] 628:2, I (2016) (“A person who is insane at the time he acts is not criminally notice of defense before trial, raising the defense of insanity. Id.; s ee also RSA kidnapping, and criminal threatening. Fichera, 153 N.H. at 591. He filed a There, the defendant was charged with attempted murder, first degree assault, forth the grounds in a notice of defense in State v. F ichera, 153 N.H. at 594 - 97. We further de fined the scope of the requirement that the defendant set

interpretation.” Id. at 429. proceedings”; “[t] he clear language of the rule is not suscept ible of such an of such grounds against any factual findings it makes in the course of pretrial grounds for the defense noticed empowered “the trial court [to] test the validity We disagreed with the State that the defendant’s obligation to set forth the made the defense “unavailable to the defendant as a matte r of law.” Id. at 428. support the defendant’s claim [of renunciation],” which, according to the State, the evidentiary hearing [on the defendant’s suppression motions] did not sufficiency of the notice, the State a rgued on appeal that “[t]he facts adduced at p. 7 7

Rule 14(b)(2)(A), as applied to pure defenses, inhibits the State’s ability to rely 352 - 53; see also Pennock, 168 N.H. at 30 p. 7 7. To the extent the clear language of disproved by the State by proof beyond a reasonable doubt, Soucy, 139 N.H. at reasonable doubt, see Williams, 133 N.H. at 633, self - defense must be at 307, and because the State must prove all elements of the crime beyond a charged when evidence of that defense is admitted at trial, Pennock, 168 N.H. conceivable front.” Because self - defense becomes an element of the crime because it forces the prosecut ion to “walk into trial blind” and “fight on every Nor do we agree with the State that our interpretation is “absurd”

language of the rule, cf. Polk, 155 N.H. at 589. at 429; see N.H. R. Crim. P. 14(b)(2)(A), and we will not add words to the clear the rule is not susceptible of [the State’s] interpretat ion,” Champagne, 152 N.H. specified in the Criminal Code.” Id. (emphasis added). “The clear language of requires the defendant to “set[] forth the grounds” when raising “any defense notice of an affirmative defense. See N.H. R. Crim. P. 14(b)(2)(A). Instead, it procedures for providing notice of a pure defense and another for providing We are not persuaded. Rule 14(b)(2)(A) does not provide one set of

adequately set forth the grounds for an affirmative defense. adequately set forth the grounds for a pure defense than is re quired to has the burden of establishing an affirmative defense, more is required to because a pure defense must be disproved by the State, whereas the defendant State of what exactly it must disp rove.” The State appears to suggest that must disprove beyond a reasonable doubt without providing any notice to the self - defense” because, otherwise, the “defendant can change what the State defenda nt’s notice was required to allege “facts that supported his theory of setting forth the grounds for a pure defense. According to the State, the The State argues that the defendant’s notice was “woefully inadequate” in

the court did here, it erred. 153 N.H. at 596; see also Champagne, 152 N.H. at 429. Because that is what that defendants identify evidentiary support for a noticed defense. See Fichera, see Fichera, 153 N.H. at 596. The rule does not allow trial courts to require proffer evidence in support of the noticed defense. N.H. R. Crim. P. 14(b)(2)(A); “set[] forth the grounds” is not tantamount to a requirement that the defenda nt non - deadly force.” However, Rule 14(b)(2)(A)’s requirement that the def endant contain “any facts suggesting that W.V. . . . threatened him with the use of were “insufficient to support” a self - defense claim beca use the notice did not grounds set forth in the defendant’s notice of defense and concluded that they by striking the defendant’s notice of self - defense. The court assessed the In light of these precedents, we conclude that here the trial court erred

153 N.H. at 596. had not “proffered at least some evidence of insanity prior to trial,” Fichera, that the trial court was authorized to strike the defense because the defendant p. 8 8

than those of the defendant, N.H. R. Crim. P. 12(b)(4)(B). trial” as well as “all statements of witnesses the defendant anticipates calling at the trial,” o ther provide the State with a list of the names of the witnesses the defendant anticipates calling at the evidence at the trial,” N.H. R. Crim. P. 12(b)(2), and further states that such defendants “shall photographs, tangible objects, bui ldings or places which are intended for use by the defendant as superior court “shall provide the State with copies of or access to all books, papers, documents, We note that New Hampshire Rule of Criminal Procedure 12(b) states that defendants in 2

prejudice of his case. Id. show that the trial court’s ruling was clearly untenable or unreasonable to the To demonstrate an unsustainable exercise of dis cretion, the defendant must unsustainable exercise of discretion. State v. Lynch, 169 N.H. 6 p. 8 89, 701 (2017). admissibility of evidence, and we will not disturb its decision absent an We accord the t rial court considerable deference in determining the

argument. See State v. Blackmer, 149 N.H. 47, 4 p. 8 8 (2003). constitutional grounds in the trial court, however, we address only his hearsay constitutional rights. Because the defendant did not object to the testimony on hearsay, and further argues that the testimony violat ed several of his to testify as to W.V.’s identity. He argues that the testimony was inadmissible The defendant argues on appeal that the court erred in allowing Andrada

diagnosis or treatment. The tr ial court overruled the defendant’s objection. was excepted from the rule against hearsay as a statement made for medical medical treatment, thus the basis for Andrada’s knowledge of W.V.’s identity resp onded that one is required to give one’s name when seeking and obtaining W.V. on May 25, 2017, the defendant objected on hearsay grounds. The State attempted to elicit testimony from Andrada as to whether she recalled treating The State called Dr. Elizabeth Andrada to testify at trial. When the State

State v. Ayer, 150 N.H. 14, 30 (2003). the hearsay issue is likely to arise again on remand, we address it below. See new trial we need not address the defendant’s remaining arguments, because ligh t of our decision reversing the defendant’s conviction and remanding for a 7 p. 8 80, 788 (2010); State v. McMinn, 141 N.H. 636, 640 - 41 (1997). Although, i n such a defense is supported by some evidence. See State v. Richard, 160 N.H. defendant shall be entitled to a jury instruction on self - defense provided that conviction for assault by a prisoner and remand for a new trial. At trial, the striking the defendant’s notice of self - defense. We therefore reverse his For the foregoing reasons, we conclude that the trial court erred by

33. 2 the crime, such a result is entirely rational. See Marchand, 164 N.H. at 31 upon the defendant to assist it in meeting its burden to prove the elements of p. 9 9

error in admitting And rada’s testimony was harmless beyond a reasonable doubt. transportation to the hospital, the State does not argue in the alternative that the trial c ourt’s We note that, although Corrections Officer Graham testified as to W.V.’s identity, injuries, and 3

HICKS, BASSETT, and DONOVAN, JJ., concurred.

0 2. in overruling the defendant’s hearsay objection. See Lynch, 16 p. 9 9 N.H. at 70 1 - 3 three parts of Rule 803(4), the trial court unsustainably exercised its discretion because Andrada’s statement regarding W.V.’s identity does not satisfy all and rule out other possible causes of injuries (quotation omitted)). Accordingly, regarding the source of the injuries allowed the doctor to render a diagnosis extent reasonably pertinent to diagnosis or treatment” because information medical history, or symptoms, pain, sensations, or their ca use or source to an 274 - 75 (1995) (victim’s statement regarding assailant’s identity “describe[d] second part of this test. N.H. R. Ev. 803(4)(B); cf. State v. Lowe, 140 N.H. 271, symptoms or sensations; their in ception; or their general cause” under the such a statement does not “describe[] medical history; past or present diagnosis or treatment, thus satisfying the first part of the Rule 803(4) test, Although a patient ’s statement of identity would likely be made for medical person she treated was W.V. — does not satisfy all three parts of Rule 803(4). We conclude that the testimony at issue — Andrada’s statement that the

admissible under Rule 803(4). See Lynch, 16 p. 9 9 N.H. at 702. N.H. R. Ev. 803(4). The statement must satisfy all three parts of this test to be

indicating [its] trustworthiness. (C) the court affirmatively finds w[as] made under circumstances

sensations; their inception; or their general cause; and (B) describes medical history; past or present symptoms or

or treatment; (A) is made for – and is reasonably pertinent to – medical diagnosis

Made for Medical Diagnosis or Treatment,” applies to a statement that: 16 p. 9 9 N.H. at 701; see N.H. R. Ev. 802. One such exception, entit led “Statement is generally inadmissible, subject to certain well - delineated exceptions. Lynch, to prove the truth of the matter asserted. Id.; see N.H. R. Ev. 801(c). Hearsay Hearsay is generally defined as an out - of - court statement offered in court