2020-0165, State of New Hampshire v. Daswan Jette

coun terfeit money; and (2) may have erred by failing to order the disclosure of before her death, the victim sold drugs to an individual who paid her with the trial court: (1) erred by excluding evidence that, more than one month reckless manslaughter. See RSA 630:2, I(b) (2016). The defendant argues that following a jury trial in the Superior Court (Kissinger, J.), on one count of DONOVAN, J. The defendant, Daswan Jette, appeals his conviction,

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

orally), for the State. general, on the brief, and Benjamin Agati, senior assistant attorney general, John M. Formella, attorney general (Nicole M. Clay, assistant attorney

No. 2020 - 0165 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are availabl e on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, 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

victim’s right knee and left buttock. According to the State’s medical examiner, the other two stab wounds were inflicted to the 1

wounds, one of which penetrated her heart and caused her death. SC, the 1 At some point during the altercation, the victim sustained three stab

passenger. one last time, SC returned to the vehicle accompanied by the victim and the disarmed the defendant, and discarded the knife. After pushing the defendant each of the defendant’s arms. The victim recovered the bag of marijuana, the defendant in a headlock, while the victim and the passenger restrained brandished a knife and threatened to stab someone. SC responded by placing demanding that the defendant return the bag of marijuana. T he defendant cornered the defendant in the vestibule. SC and the victim then began ensued. SC p ushed the defendant i nto a wall and, along with the victim, vestibule, while the driver remained in the vehicle. A physical altercation the victim, and the front seat passenger followed the defendant into the Believing that the defendant was attempting to steal the marijuana, SC,

vestibule of the apartment building. the defendant exited the vehicle with the bag of marijuana and ran toward the could weigh the marijuana, and SC agreed. Before completing the transaction, defendant entered the vehicle and sat next to SC. The defe ndant asked if he After identifying SC as the person with whom he had been negotiating, the were seated in the front. The defendant did not know anyone in the vehicle. vehicle, SC and the victim were seated in the back, and two of their friends that he was outside in a parked vehicle. When the defendant approached the On t he evening of the transaction, SC sent a text to the defendant stating

scheduled the delivery of the drugs at the Concord apartment. several days, SC and the defendant negotiated the sale of the marijuana and could provide some of her own. The victim agreed and, over the course of enough marijuana to fulfill the defendant’s request, he asked the victim if she victim’ s friends — about purchasing mariju ana. Because SC did not have apartment in Concord. In late May, the defendant texted SC — one of the defendant, a Massachusetts resident, was staying with his girl friend at her The jury could have found the following facts. In May p. 2 2017, the

we affirm. not err by withholding certain records that it reviewed in camera. Accordingly, Hampshire Rule of Evidence 40 p. 3 3. We further conclude that the trial court did trial court properly excluded evidence of the previous sale pursuant to New victim’ s prior drug sale was relevant to the defendant’s self - defense claim, the certain records submitted for in camera review. We conclude that, even if the 3

“[t]he danger of unfair prejudice and of misleading the jury is substantial upon New Hampshire Rule of Evidence 40 p. 3 3, t he court further concluded that and the victim] had reason to be aggressive toward [the defendant].” Relying suggest that, because of prior issues remote in time from current events, [SC had occurred. T he court reasoned that “[i]t would be highly speculative to involvement with [the defendant]” and that the defendant “was unaware” that it that the prior drug sale was “wholly unre lated to [SC and the victim’s] drug sale. Concluding that the evidence was irrelevant, the trial court noted The trial court granted the State’s motion to exclude evidence of the prior

friends “ha[d] a history of selling drugs.” unfair prejudice because other evidence would reveal that the victim and her probative val ue of the evidence was not substantially outweighed by the risk of which he had to defend himself.” The defendant further argued that the tensions, which led to the aggr essive physical assault of [the defendant], from way [in which SC] and [the victim] did business, which led to heightened of the homicide. The defendant posited that the prior drug sale changed “the and... may have influenced her behavior” toward the defendant on the night probative” because “the outcome of this prior drug deal angered [the victim], the altercation. According to the defendant, the evidence was “highly for the reactions of [the victim] and [SC]” toward the defendant on the night of drug sale and related text messages were “relevant to establish motive and bias In his objection to the State’s motion, the defendant argued that the prior

him back.” messages conveyed the victim’s desire to slash the prior buyer’s tires and “rob Yet it seems like these broke b**** * s never want to pay me.” Other text robbed. I don’t understand like I’ve literally never robbed anyone before.... frustration with the prior theft, stating, in part: “I’m just so sick of getting referred the individual to the victim. The victim’s text messages conveyed her to purchase marijuana, but because SC didn’t have enough product, he the victim with counterfeit money. The individual had origina lly co ntacted SC the defendant, an individual unrelated to this case purchased marijuana from the victim indicating that, more than one month before the transaction with Specifically, the defendant pointed to a seri es of text messages between SC and objected, arguing that the evidence was relevant to his self - defense claim. drug activity and information recovered from her cell phone. The defendant Prior to trial, the State moved to exclude evidence of the victim’s prior

and one count of second degree murder. investigation, the defendant was indicted on one count of first degree murder know that anyone had been stabbed until the next day. Following an girlfriend’s apartment immediately after the altercation and that he did not defendant denied returning to the vehicle, asserting that he ran to his to the vehicle, reached into the back seat, and stabbed her multiple times. T he driver, and the passenger testified that the defendant followed the victim back p. 4 4

the trial court’s Rule p. 4 403 analysis on appeal. trial court order presents a question of law for us to decide.”). Indeed, the defendant challenges drug activity was relevant. See State v. Surrell, 171 N.H. 82, 88 (2018) (“The interpretation of a alternative basis for excluding this evidence under Rule 403, even assuming evidence of the prior Although the trial court did not explicitly so state, we interpret its order as providing an 2

prejudice or of misleading the jury.” Thus, the defendant argues that the trial misconstrued Rule p. 4 403 by “fail[ing] to cite any distinct danger of unfair As an initial matter, the defendant argues that the trial court

to the prejudice of his case. Id. must show that the trial court’s ruling was clearly untenable or unreasonable (2016). To demonstrate an unsustainable exercise of discretion, the defendant unsustainable exercise of discretion. State v. Milton, 169 N.H. p. 4 431, 4 35 admissibility of evidence, and we will not upset its ruling absent an In general, t he trial court has broad discretion to determine the

N.H. R. Ev. p. 4 403. jury, undue delay, wasting time, or needlessly prese nting cumulative evidence.” or more of the following: unfair prejudice, confusing the issues, misleading the excluded “if its probative value is substant ially outweighed by a danger of one evidence pursuant to Rule 403. Under Rule 403, relevant evidence may be 2 401. Nonetheless, we conclude that the trial court prop erly excluded the concluding that evidence of the prior drug activity wa s ir relevant under Rule For the purposes of t his appeal, we assume that the trial court erred by

misleading the jury. evidence was not substantially outweighed by the risk of unfair prejudice or of activity pursuant to Rule p. 4 403 because, in his view, the probative value of the also argues that the trial court erred by excluding evidence of the prior drug defendant acted in self - defense when he stabbed the victim. The defendant trying to steal drugs from them,” thereby making it more likely that the a motive to respond aggressively when they believed that [the defendant] was contends that the evidence “was relevant to show that [the victim] and [SC] had pursuant to Rules of Evidence 401 and 402. Specifically, the defendant evidence of the prior drug activity was irrelevant, and, therefore, inadmissible, On appeal, t he defendant argues that the trial court erred by ruling that

offense of reckless manslaughter. This appeal followed. second degree murder indictments, but convicted him of the lesser included Following his trial, t he jury acquitted the defendant on the first and

little more than pure speculation.” because the connection of the evidence to the case relies on what amounts to p. 5 5

into the vestibule to retrieve it. Thus, when compared to the prior drug sale, believed the defendant was attempting to steal the marijuana and followed him confronted him. It follows from these undisputed facts that SC an d the victim dispute that SC and the victim followed the defendant into the vestibule and with the marijuana before completing the transaction. Nor was there any court’s ruling, there was no dispute t hat the defendant fled from the vehicle established by other evidence, stipulation or inference”). At the time of the trial consider, in part, “the extent to which the issue upon which it is offered is (2016) (noting that, when weighing evidence pursuant to Rule 403, we aggressively toward the defendant. See State v. Reinholz, 169 N.H. 22, 30 more probative evidence that SC and the victim had a motive to act Moreover, the evidence of the prior drug sale was cumulative of other,

the defendant. whether they were motivated by the prior incident to use deadly fo rce toward sale and related text messages offered minimal probative evidence as to aggressively toward the defendant on the night of the altercation, the prior drug counterfeit money. Thus, even if SC and the victim had a motive to act aggressively after discovering that the prior transaction had been funded with against him, there wa s no evidence that SC or the victim acted violently or her frustration with the prior buye r, as well as her desire to seek revenge in physical violence or aggression. Although the victim’s text messages reveal value”). Nothing about the evidence suggested that the prior drug sale resulted (noting that “altho ugh evidence may be relevant, it may have minimal probative justified in using deadly force. See State v. Kim, 1 p. 5 53 N.H. 322, 330 (2006) to the central premise of the defendant’s self - defense claim: whether he was that the evidence was relevant for that purpose, it was not highly probative as . . . [i]s about to use unlawful, deadly force against [him].”). Even assumi ng force upon another person when he reasonably believes that such other person homicide. See RSA 627:4, II(a) (2016) (“A person is justified in using deadly likely that they did, in fact, act aggressively toward h im on the night of the a motive to act aggressively toward the defendant — thereby making it more relevant to his self - defense claim because it show ed that SC and the victim had messages was minimal. The defendant contends that the evidence was the one hand, the probative value of the prior drug sale and related text substantially outweighed by the risk of misleading or confusing the jury. On did not err in determining th at the probative value of the evidence was Turning to the trial court’s Rule 4 03 ruling, we conclude tha t the court

ruling. See id. apply our unsustainable exercise of discretion standard to the trial court’s value of the eviden ce. A ccordingly, we reject the defendant’s argument and further concluded that this danger substantially outweighed the probative distinct danger of unfair prejudice and of misleading the jury. The trial court above, the trial court found that the speculative nature of the evidence posed a court’s ruling “should not be viewed with deference.” We disagree. As st ated p. 6 6

198 - 201; see N.H. R. Ev. 404(b)(2)(C). W e concluded that the evidence at issue evidence is substantially outweigh ed by the danger of unfair prejudice. Id. at like Ru le 403, requires the court to consider whether the probative value of the dealing activities satisfied the third prong of the Rule 404(b) analysis, which, Id. at 194 - 95. On appeal, w e held that evidence of the defendant’s prior drug after he shot the victim in an effort to protect one of his business associates. disagree. In Smalley, the defendant was convicted of second degree murder 151 N.H. 193 (2004), is “analogous” and compels a contrary conclusion. We The defendant nonetheless argues that our decision in State v. Smalley,

outweighed t he probative value of the evidence. when it determined that the risk of misleading the jury substantially We therefore conclude that the trial court sustainably exercised its discretion the issues or confound the jury.” State v. Mitchell, 1 p. 6 66 N.H. 288, 296 (2014). the right “to introduce evidence that will have little effect other tha n to confuse Fourteenth Amendments to the Federal Constitution, confer upon defendants neither Part I, Article 15 of the State Constitution, nor the Sixth and remoteness and speculative nature”). C ontrary to the defendant’s contention, and bias would tend to confuse and mislead the jury, . . . especially given its (upholding the trial court’s determination “that the proffered evidence of motive unrelated, prior drug sale. S ee State v. A lexander, 143 N.H. 216, 222 (1998) substantial risk of misleading the jury by introducing facts about an entirely victim’s encounter with the defendant was so attenuated that it created a relevancy under R ule 401, the connection between the prior drug sale and the prior drug sale. Thus, even if the evidence satisfied the low standard for there wa s no evidence that the defendant was part of, or even knew about, the drug sale occurred nearly six weeks before the victi m met the defendant, and unrelated to [SC and the victim’s] involvement with [the defendan t].” T h e prior both “remote in time” from the events that led to the victim’s death and “wholly than pure speculation.” As the trial court observed, the prior drug sale was the connection of the evidence to the case relies on what amounts to little more conclusion that “[t]he danger . . . of misleading the jury is substantial because evidence was relevant under Rule 401, we a cc ord deference to the trial court’s substantial. Although we assume, for the purposes of this appeal, that the The risk of misleading or confusing the jury, on the other hand, was

same purpose). value of the disputed evidence was reduced by other evidence offered for the See State v. Woodard, 14 p. 6 6 N.H. 221, 224 - 25 (2001) (holding that the probative the prior drug sale and related text messages had minimal probative value. in the middle of a drug transaction. In light of this evidence, we conclude that aggressively when confronted with an attempted theft of his or her contraband theft of their drugs. Indeed, it is unremarkable that a drug dealer would react and the victim a far greater motive to act aggressively in an effort to prevent the defendant, the d efendant’s actions on the night of the altercation provided SC which occurred nearly six weeks prior, and which did not involve the p. 7 7

have disclosed them. Work product is the result of an attorney’s activities not confidential work product and that, even if they were, the court should On appeal, the de fendant argues that the withheld employee notes were

N.H. 3 p. 7 75, 385 (2011). court’s decision for an unsustainable exercise of discretion. State v. Guay, 162 discoverable” and ordered that they “remain under seal.” We review the trial to the remain ing records, the court determined that they were “not the records in camera and ordered partial disclosure of the notes. With respect testimony of any witness.” At the defendant’s request, the trial court reviewed and [did] not contain information that [was] pertinent to the anticipated made by the prosecutor” and that the emails were “administrative in nature the State argued that the employee’s notes “contain[ed] strategic decisions was confidential work product that was not subject to disclosure. Specifically, employee and a prosecutor. The State claimed that the redacted information taken by a laboratory employee, as well as emails exchanged between the that the State disclosed to the defendant prior to trial. They consisted of notes the New Hampshire State Police Laboratory, were part of a larger set of records review. The redacted records, which related to forensic testing conducted at withholding certain redacted records that the State submitted for in camera We next address the defendant’s argument that the trial court erred by

question.” T he refore, the defendant’s reliance upon Smalley is misplaced. text messages were not “relevant to his state of mind during the events in motion hearing the defendant conceded that the prior drug sale and related the defendant’s state of mind on th e night of the homicide. Indeed, during the sale. As such, the disputed eviden ce offered little, if any, probative value as to defendant, who was not a party to, and had no knowledge of, the prior drug disputed evidence here related to a prior drug transaction by the victim, not the 199 (emphasis added). U nlike the evidence that we considered in Smalley, the value in addressing the central issue of [the defendant’s] state of mind.” Id. at motivation was “highly probative” because it “added significant increm ental persuaded. I n Smalley, we determined that evidence of the defendant’s motivation for acting violently during the events in question.” We are not “the evidence [in this case] was highly probative to explain the drug dealers’ The defendant argues that Smalley is analogous because, in his view,

outweigh its highly probative nature.” Id. at 199 - 200. pervaded the case” and because the evidence “was not so inflammatory as to unfairly prejudicial, in part because “evidence of drug s and drug - dealing business interests.” Id. We further concluded that the evidence was not going to the motel [where the victim was shot] to protect [the associate] and his relationship with the associate, but also h is “motivation, beyond friendship, for reasoned that the evidence was relevant to prove, not only the defendant’s he shot the victim, an issue that was “central” to the case. Id. at 199. We in Smalley “was highly probative of [the defendant’s] state of mind on the night” p. 8 8

withheld records. that the trial court did not err by declining to order the disclosure of the the withheld information was material or exculpatory. Accordingly, we hold exculpatory.” After revi ewing the withheld records, we conclude that none of withheld information should have been disclosed because it was material and Finally, the defendant requests that we determine “whether any of the

State was not obligated to produce them. witness on direct or cross examinatio n.” N.H. R. Crim. P. 12(b)(5). Thus, the “information that [was] not pertinent to th e anticipated testimony of the Procedure 12(b), they were administrative in nature and consisted of were “statements of witnesses” under New Hampshire Rule of Criminal After reviewing the withheld emails, we conclude that, even if the emails

Crim. P. 12(b)(5). anticip ated testimony of the witness on direct or cross examination.” N.H. R. hearing strategy of counsel” and “information that is not pertinent to the concerning the mental impressio ns, theories, legal conclusions or trial or The State may, however, redact from witness statements “information statements of witnesses the State anticipates calling at the trial or hearing”). 12(b)(1)(B); see N.H. R. Crim. P. 12(b)(4)(A) (requiring disclosure of “all to defendants “[c]opies of all . . . statements o f witnesses.” N.H. R. Crim. P. New Hampshire Rule of Criminal Procedur e 12(b) requires the State to disclose from disclosure under New Hampshire R ule of Criminal Procedure 12(b)(5). The defendant next argues that the withheld emails were not p rotected

emails pursuant to the standard set forth in Chagnon. unsustainably exercise its discretion by declining to compel d isclosure of the Zwicker, 151 N.H. at 191. W e further conclude that the trial court did not evidence, rather than the laboratory employee’s own observations. See product. The notes described the prosecutor’s mental impressions about the After reviewing the withheld notes, we conclude that the notes were work

adequate opportunity to properly prepare their cases. Id. the work product together with the desirability of giving the parties an the trial court, which should consider the reasons motivating the protection of determination of whether to compel disclosure of work product is a matter for pretrial discovery.” State v. Chagnon, 13 p. 9 9 N.H. 671, 674 (1995). The takes or how it was acquired. Id. However, work product “is not beyond information that the material contains, rather than the form the information information is protected work product depends upon the substantive inf ormation do not fall within the ambit of the doctrine. Id. Whether opinions, or legal theories, witness statements that contain purely factual product consists generally of the attorney’s mental impressions, conclusions, anticipated litigation. State v. Zwicker, 151 N.H. 179, 191 (2004). While work when those activities have been conducted with a v iew to pending or 9

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

Bazinet, 170 N.H. 680, 688 (2018). raised in his notice of appeal, but did not brief, are deemed waived. State v. manslaughter conviction. See RSA 630:2, I(b). Any issues that the defendant For the foregoing reasons, we affirm the defendant’s reckless