State of New Hampshire v. Brenna Cavanaugh

crime…requested Mark Gray to discharge a firearm in the direction of O.L.” Following the new indi ctments, the state told the Seacoast Online newspaper that “the new indictments do not contain new allegations and will replace prior charges brought against the couple.” See Exhibit A attached hereto – New Indictments in Portsmouth gunfire incident dated April 10, 2019. The defendant then filed her notice of defense on June 12, 2019 and in an introductory paragraph noted that the defendant stands charged with two alternative theories, Criminal Solicitation to commit first degree assault and criminal solicitation to commit reckless conduct. See Defendant’s Notice of Self Defense appended to Defendant’s Brief at 49-50.

The notice further states that each of these charges stems from an incident on August 18, 2018. Id. at 49. In successive paragraphs 2 through 4, the defendant’s notice presents facts from the discovery that includes O.L.’s entry into her third-floor bedroom in the middle of the night, her being awoken to find a man in her bedroom, and following O.L. out of her home. Id. The notice also mentioned the incident outside her home where the defendant was attempting to get information about the suspect’s vehicle while the suspect was revving the engine with the defendant standing in front of the vehicle. Id. The notice then notes that it was during this time that shots were fired by Mark Gray. Id. After noting the relevant facts, the notice then expressly puts the state and court on notice that “the actions of the alleged victim placed the defendant in a position where she reasonably believed that the alleged victim was about to use unlawful deadly force against her or another.” Id. The notice then concludes by notifying “the court and the government that she may rely on the defense of Physical Force in Defense of a Person under RSA 624:4 (II).” Id. Therefore, the notice was not expressly limited to the criminal solicitation charges.

The state filed an objection to the notice of self defense on June 20, 2019. See State’s Objection to Defendant’s Notice of Self Defense appended to Defendant’s Brief at 51-53. Noticeably, the state does not make any mention of the pending charges or whether the notice applies to some or all of the charges. The essence of the state’s objection surrounds the factual allegation and whether a person in the defendant’s position is entitled to a self-defense jury instruction. For example, in paragraph 3, the state seeks clarification of whether the defendant “believed the victim was about to use unlawful force against her, another, or both?” Id. at 51. In paragraph 4, the state again notes it s concern regarding whether the notice provides sufficient factual basis for the self-defense instruction claiming the notice “failed to allege any conduct to show that she reasonably believed O.L. was about to use unlawful deadly force against anyone.” Id. In paragraphs 5 through 7, the state argues that the defense is not available because the defendant “placed herself in a position that provoked a situation that she then relied on to claim self-defense or defense of others at trial” and she “could easily have moved to safety.” Id. at 51-52. The Court now seeks argument on whether the defendant waived the issue of her entitlement to a self-defense instruction on the charges of attempted first degree assault and criminal mischief for failing to expressly state those charges in the notice under State v. Champagne, 119 N.H. 118, 122 (1979). The defendant disagrees. In Champagne, the Court held that “consent of the owner was [not] available [in a prosecution for arson] as a defense…because that issue was effectively waived below.” Id. In reaching this conclusion, the Court noted that the defendant did not give the notice required by superior court Rule 102 that he intended to rely on the consent defense. Id. Importantly, the Court further noted that such a defense was inconsistent with the evidence relied on at trial, as the defendant’s testimony at trial corroborated the testimony of two alibi witnesses that he did not participate in the burning incident at all. Id. The court noted that is completely the opposite of a defense that relies on the consent of the owner and permission to burn the item. Id. As such, the Court found that failure to notice that issue constituted a waiver by the defendant. Id. That was not the case here. The defendant in this case made clear by formal notice that she intended to rely on the defense of Physical Force in Defense of a Person under RSA 624:4 (II). This defense applied to all the charges, whether expressly referenced or not, based on the grounds proffered in the notice and specifically responded to in the state’s objection. Here the facts that were intended to support the criminal solicitation charges were the same facts relied upon to support the attempted first degree assault and criminal mischief charges, that is whether the defendant either “caused 6 bullets to be discharged by means of a firearm at a vehicle occupied by O.L.” or whether she “requested Mark Gray to discharge a firearm in the direction of O.L.” As noted in Exhibit A, the state even agreed that the indictments for criminal solicitation do not contain new allegations and will replace prior charges brought against the defendant. This makes clear that the factual allegations supporting all of the charges were the same. If all of the charges are supported by the same facts and if the defendant put the state on notice of the factual grounds supporting the self-defense instruction, then the failure to specify which charges it specifically applies to should have no legal significance in this case, especially since paragraph 6 of the defendant’s notice makes a general blanket statement, not limited to particular charges, that she may rely on the defense of physical force in defense of a person. On these facts, the holding in Champagne is distinguishable and does not support the conclusion that the defendant effectively waived her right to the self-defense instruction on all charges not expressly referenced in the notice. Here, each charge relied upon the same set of facts properly noticed as grounds for the defense in the defendant’s notice of self-defense. Further, the defendant’s argument at trial for the self -defense instruction again referred to the same facts plead in the notice and the state’s objection at trial did the same. As such, there is no inconsistency in the notice and the evidence and/or strategy at trial, as there was in Champagne. For these reasons, the defendant should not be deemed to have waived her right to a self-defense instruction based on the notice given in this case, as it clearly and directly related to the facts supporting all of the charges, whether expressly referenced or not.

The next issue is whether the defendant’s entitlement to the self-defense instruction is moot because the jury found her not guilty of the charges for which she requested that instruction. Pursuant to the New Hampshire Rules of Criminal Procedure, “[i]f the defendant intends to rely upon any defense specified in the Criminal Code, the defendant shall…file notice of such intention setting forth the grounds therefore with the court and the prosecution.” N.H. R. Crim. Pro. 14(b)(2)(A). In a recent decision, this Court has held that “Rule 14(b)(2)(A)’s requirement that the defendant ‘set[] forth the grounds’ is not tantamount to a requirement that the defendant proffer evidence in support of the noticed defense. State v. Munroe, No. 2018-0433, decided August 4, 2020 at page 5. The Court went further in rejecting the state’s argument and noted that the rule only requires the defendant to ‘set[] forth the grounds’ when raising any defense specified in the Criminal Code…[and that they] will not add words to the clear language of the rule.” Id. This is important in this case, as the Court is asking whether the Rule requires the defendant to expressly indicate what charges the defense applies too, a requirement above and beyond the Rule’s clear direction to ‘set forth the grounds’ relied upon. Here, the defendant clearly and plainly ‘ set forth the grounds’ relied upon and went above and beyond to specify the relevant factual basis of the claimed defense of Physical Force in Defense of a Person under RSA 624:4 (II).

In her notice, the defendant made clear the grounds she relied upon for the defense. The notice specifies the alleged victim’s entry into her home, her actions of following him out, her actions of standing near the car, the alleged victim’s actions of revving the engine of his car and her location relative to it, and it further notes that shots were fired. Each of these facts is used as grounds to justify the self-defense instruction for all charges, as they are all based on the defendant’s actions relative to the discharge of a weapon by another in defense of her or another under RSA 624:4 (II).

Another important consideration when determining whether a defendant has waived her right to a self-defense instruction is whether the state was prejudiced by the notice provided. See State v. Chen, 148 N.H. 565 (2002) (affirming trial court’s refusal to give self-defense instruction following an oral motion in the middle of trial due to the prejudice to the state). In this case, the defendant filed a notice of self-defense prior to trial and since the charges represent alternative legal theories covering the same facts, the state was not prejudiced by a failure to list each specific charge pending. Unlike Chen, the state did not argue in this case that it was prejudiced by the defendant’s notice. The state filed a written objection and made no mention of its application to any particular charges. After all, even the state went back and forth regarding the true nature of the charges. As noted above in Exhibit A, in April 2019, the state is quoted as saying the solicitation charges are replacements for the first degree assault and criminal mischief charges. Then in the state’s objection to the defendant’s motion in limine to exclude expert filed on July 1, 2019, the state notes that the “[d]efendant is charged with alternative counts of Criminal Solicitation to Commit First Degree Assault (1610355C), Criminal Solicitation to Commit Reckless Conduct with a Deadly Weapon (1610356C), Criminal Mischief [Principal/Accomplice] (1562275C), and Attempted First Degree Assault [Principle/Accomplice] (sic) (1562276C).” See Exhibit B attached hereto – State’s Objection to Defendant’s Motion in Limine to Exclude Expert. And then in the state’s objection to defendant’s motion in limine to exclude statements, the state only notes that the “[d]efendant is charged with alternative counts of Criminal Solicitation to Commit First Degree Assault (1610355C) and Criminal Solicitation to Commit Reckless Conduct with Deadly Weapon (1610356C).” See Exhibit C attached hereto – State’s Objection to Defendant’s Motion in Limine to Exclude Statements. Thus, in just these three examples, the state discusses the charges (i.e., the principal/accomplice and the criminal solicitation charges) in three different ways: (1) as alternative theories (Exhibit B), (2) as the criminal solicitation charges are replacement charges for the principal/accomplice charges (Exhibit A), and (3) as only the solicitation charges are pending (Exhibit C).

Finally, if this Court finds that a self-defense notice must articulate the specific charges it applies to and not just the grounds, then the defendant asks this Court to still find that her request is not moot based on the fact that this Court has “long recognized that justice is best served by a system that reduces surprise at trial by giving both parties the maximum amount of information.” Sate v. Cromlish, 146 N.H. 277, 280 (2001). The Cromlish Court made clear that the discovery of truth in criminal proceedings should not suffer by an overly technical application of a scheduling order or the rules of court. Id. As is stated in the Rules of Criminal Procedure, “these rules shall be construed to provide for the just determination of every criminal proceeding.” N.H. R. Crim. Pro. 1(b). Here, failing to give the self-defense instruction did not allow for the just determination at trial. Thus, when the facts of this case are viewed in the context of the purpose of the notification requirements, that is, to reduce surprise at trial, the defendant clearly articulated the grounds upon which her stated defense rested and the state was put on notice that it was a pure defense and they were sufficiently apprised of the grounds for the defense and what it would have to disprove at trial. See Cromlish, 146 N.H. 277 (2001); Chen, 148 N.H. 565 (2002); State v. Champagne, 152 N.H. 423 (2005); State v. Fichera, 153 N.H. 588 (2006); and State v. Etienne, 163 N.H. 57 (2011). Since the state never claimed any prejudice or confusion about what charges the notice of defense was related to in the trial court, as clearly it was factually related to all of them, there is no just basis for this Court to find that the defendant’s requested instruction is moot. Here the defendant was charged with two sets of alternative theories of criminal liability for the same conduct. Her notice of defense made clear that her self-defense was grounded on the facts that supported all of the pending charges. Her notice expressly stated that she intended to rely on the defense of physical force in defense of a person under RSA 624:4 (II). And the state was neither prejudiced nor surprised at trial by the defendant’s notice, evidenced by the fact it never argued such to the trial court. As such, the defendant’s argument is not moot, as she was entitled to the self-defense instruction on all charges, as all charges were supported by the same grounds noticed in the defendant’s notice of self- defense.

I hereby certify that a copy of the Defendant’s Memorandum of Law was forwarded to all parties of record.

December 3, 2020 /s/ Michael J. Zaino Michael J. Zaino, Bar #17177

Exhibit A - New Indictments in Portsmouth gunfire incident dated April 10, 2019……..10

Exhibit B - State’s Objection to Defendant’s Motion in Limine to Exclude Expert…….13

Exhibit C - State’s Objection to Defendant’s Motion in Limine to Exclude Statements..17

New indictments in Portsmouth gunfire incident - News - seacoastonline... https://www.seacoastonline.com/news/20190410/new-indictments-in-po... 1 of 3 11/27/2020, 5:33 PM State v. Cavanaugh, No. 2019-0608 Defendant's Exhibit A New indictments in Portsmouth gunfire incident - News - seacoastonline... https://www.seacoastonline.com/news/20190410/new-indictments-in-po... 2 of 3 11/27/2020, 5:33 PM New indictments in Portsmouth gunfire incident - News - seacoastonline... https://www.seacoastonline.com/news/20190410/new-indictments-in-po... 3 of 3 11/27/2020, 5:33 PM State v. Cavanaugh, No. 2019-0608 Defendant's Exhibit B

v.

218-2018-CR-01583

NOW COMES theStateofNew Hampshire, by-andthrough theOfficeofthe Rockingham County Attorney, toobjecttotheDefendant'sMotion InLimine and insupport thereofstatesas follows: 1. The DefendantischargedwithalternativecountsofCriminalSolicitationtoCommit First Degree Assault (1610355C)and CriminalSolicitationtoCommit RecklessConduct witha Deadly Weapon (1610356C).

2. DuringthenightofAugust 18, 2018, the minorvictim, O.L., enteredtheDefendant's home underthemistakenbeliefthathe hadbeen invited.The Defendantand co-defendantwoke and the Defendantchasedthevictimoutofthehouse.The victimenteredhisvehicle.The co­ defendantcame outofthehousewitha handgun.The Defendanttoldtheco-defendantt-0shoot thevictim, and the co-defendantfired severalshotsatthevictim'svehicleashe trieddriving away.1 3. Portsmouthpoliceofficersinvestigatedtheincidentand conductedinterviewswithseveral parties, includingthevictim.Duringa recorded interviewwithDetectiveSergeantRebecca Hester, O.L. wasaskedwhetherhe heardanything, and O.L. stated hecouldnot. 4. The victimalsospokewithOfficerKeegan Pearl, and statedthathe heardtheDefendant tellthe co-defendantto"shoothim, shoothim."

5. The Defendantnow challengestheadmissibilityofO.L.'sstatementsand contendsthat theyareimpermissiblepursuant toRules601 and 602 oftheNew Hampshire RulesofEvidence. 6. Rule 60l(a)statesthateverypersoniscompetenttotestify unlessanotherprovisionofthe rulesorapplicablestatuteapplies.See N.H. R. Ev. 60l(a).Rule 60l(b)clarifiesthefirst Allfactsreferencedinthisobjectionarederivedfrom discovery thattheStatehasprovidedtotheDefendant. State v. Cavanaugh, No. 2019-0608 Defendant's Exhibit C provisionoftheruleby statingthat"[a]personisnotcompetenttotestifyas a witnessifthe courtfindsthatthewitnesslackssufficient capacitytoobserve, remember and narrateas wellas understandthedutytotellthetruth."N.H. R. Ev. 601(b). 7. "An inconsistencyintestimonyorthefailuretoremember aspectsofsome observedevent typicallydoesnotdisqualifya witnesson competencegrounds; such gaps intestimony'present questionsofcredibilityforresolutionby thetrieroffact.'"Statev.Hungerford, 142 N.H. 11 O, 118 (1997).

8. Inthe instantmatter, the Defendantarguesthatthevictimlacksthe sufficientcapacityto remember whethertheDefendanttold theco-defendanttoshootbasedon an inconsistencyinthe victim'sstatementstopolice.See Def.'sMot. il9.

9. The victimhaspersonal knowledgeofwhat he saw and heardon August 18, 2018.See N.H. R. Ev. 602.The factthathe hasgiveninconsistentstatementstothe policedoesnotmake histestimonyinadmissible; indeed, ithas longbeenthecasethata witnessmay be impeachedby hispriorinconsistentstatements.See Villineuvev.ManchesterSt.Ry., 73 N.H. 250 (1905). Furthermore, theRulesofEvidenceaccountforthefactthata witness'smemory isnotwithout flawand thathe may forgetdetails.See N.H. R. Ev. 612; Statev.Chickering, 97 N.H. 368 (1952).

10. The Defendant'sargumentgoestothe weightofthevictim'stestimony, notits admissibility. Indeed, the Defendantdoesnotseektopreventthewitnessfrom testifyingentirely, norhas shearguedthatthevictimlacksthecapacitytoobserve, remember, and narrateany ofhis experienceson thenight inquestion. Instead, theDefendantseekstoprecludeonlya small portionofthewitness'stestimony, despiteseemingly acceptingthevictim'sgeneralcompetency totestify abouttheremainderofhisobservationsthatnight. 11. The victim'stestimonymust be deemedadmissibleby thisCourt, and theweightassigned tothattestimonyisa questionoffactthatmust be lefttothejury.See UnitedStatesv.Gaudin, 515 U.S. 506, 514 (1995)(discussingjury'sroleasa factfinderincriminaltrials). WHEREFORE, theStaterequeststhatthisHonorableCourt:

RespectfullySubmitted,

July15, 2019

Iherebycertifythata copy oftheforegoingState'sPleadinghas on thisdatebeen forwardedto defensecounselMichaelJ.Zaino, attorneyfordefendant, atP.O.Box 787Hampton, NH 03843. July15, 2019