State of New Hampshire v. Charles Paul

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Understand you're reserve. One Minute. Uh, I have, thank you. Okay, please. Uh, good morning. May I please the court? My name is Thomas Barnard. I represent Charles Paul, uh, as the chief Justice just noted. I, I have reserved one minute for rebuttal plan to make three points this morning. First is used in Rule 6 0 9. Confinement means incarceration. It does not include as the state argues on appeal periods of conditional release. Second, the phrase confinement for the conviction means the initial incarceration that is imposed immediately upon conviction. It does not include as the trial court found revocations of conditional release. And third, the court's error here was not harmless. My first point is that confinement means incarceration. Both Websters and blacks use the word imprison to define confine. And I agree confinement can sometimes be used metaphorically. I could say that I feel confined by social norms or by legal or ethical duties. But we're talking here about a court rule, and court rules are phrased literally not metaphorically. So when Rule 6 0 9 uses the word confinement, it means literal physical confinement. This conclusion is buttressed by the history of Rule 6 0 9, uh, New Hampshire Rule of Evidence 6 0 9 comes from federal rule of evidence 6 0 9. And that in turn, was derived from, uh, a district of Columbia law that provided that set the operative date as either released from confinement or the expiration of the period of parole, probation, or sentence. And the House judiciary Committee rejected that version, which confirms that the rules drafters intended the word confinement to mean incarceration, not periods of conditional release. Federal rule of evidence 6 0 9 and and countless state analogs across the country have been interpreted, um, by numerous courts, and none of them have held that confinement includes periods of conditional release. And that would include parole violations. I'm sorry. Would that include parole violations? Um, it would not. Well, this is my second point that it doesn't include that confinement doesn't include revocations of conditional release. Um, and I'm turning to that now. Um, and there are three reasons that confinement does not include revocations of conditional release. Um, first, as this court held in Williams and Gibbs in New Hampshire, revocations of conditional release such as parole violations are fundamentally different from the initial imposition of a sentence. They are not part of a criminal prosecution. Revocations are remedial. They are imposed in response to non-compliance with some condition of release. They are not punishment for the original crime. And thus, there are various procedural protections that apply at an initial sentencing that don't apply. Uh, for revocations of conditional release. There's no right to be physically present at a revocation of conditional release, for instance, and the court can consider acquit conduct. These are, this court's holdings in Williams and Gibbs second rule 6 0 9 uses the singular forms of the words confinement and release. So this further indicates that the drafters envisioned that for each, that each conviction would correspond to at most a single period of confinement and a single release. As the parties agree that trial court's interpretation creates confusion because a particular conviction could jump back and forth between different balancing tests and therefore jump back and forth between being admissible and inadmissible. Um, if, uh, a defendant is initially sentenced only to a suspended sentence, um, but the sentence is suspended for a lengthy period of time, well, 10 years after sentencing, um, the more demanding balancing test applies, goes from the more relaxed balancing test to the more demanding balancing test. Um, but then if the suspended sentence is revoked and that defendant is imprisoned, well now the more demanding or now the more relaxed balancing test applies. So again, a broader question. We agree with you that the court should have analyzed it under 6 0 9 B. What do we do? What's our, what's our relief? Can we address that or is that a factual determination? Um, it's, it's a very discretionary determination. If the court should have addressed this under Rule 6 0 9 B, then the question becomes whether, um, the probative value of the conviction supported by specific facts and circumstances substantially outweigh their prejudicial effect. Um, and it's hard to imagine a trial court determination that is more deserving of deference than that type of balancing of, um, a prejudice and probative value. But We don't have that here. We don't have that here. The trial court didn't do it. Um, so, so under the Hayward line of cases, this court, um, could only affirm if it concluded that any reasonable court would conclude that the probative value substantially outweighed the prejudicial effect. There's no way that this court can, can conclude that that's the one and only one right answer to this question. Particularly because we know that convictions only rarely pass this more demanding balancing test under Rule 6 0 9. Um, it means the, the correct result is, is is to reverse. Um, Paul's interpretation, uh, of the statute is simple and, and straightforward. Um, once a triggering event occurs either conviction without initial sentence, um, or release from initial sentence that proverbial clock starts to tick, uh, and there's nothing then that can reset that clock back to zero. And after 10 years, the more demanding balancing it test applies and it applies to that conviction, um, for forever after that, that clock strikes 10 years. The court error was not harmless. As the parties agree, Paul's credibility, um, was central because ay had little to no recollection at all of the events. And Yet Mr. Paul admitted that he lied to the police. He did. He did. And he explained that he said that ay was his friend and that he didn't want, um, her to get in trouble for attacking him with a knife. The erroneously committed, erroneously admitted convictions were the only evidence that Paul had a criminal record. And the state exploited the attempted escape conviction in particular by using it to suggest that, um, Paul would do anything to avoid going back to prison. So the convictions were prejudicial in, in two respects. First, they made it more likely that the jury would reject, um, the defense of self-defense. Um, and second, they made it more likely that the jury would find that Paul acted with an intent to kill, which was a required finding for the attempted murder charge. Those are all my, um, prepared statements unless the court has further questions. Well, what, what's the import of the fact that the reference to the underlying conviction was not explicit? It was just, uh, referred to as a felony conviction? Right. So there were two convictions. Um, there was one a FSA conviction, and that was not referred to as, as, uh, as a sexual assault. Um, that was still prejudicial because it, it, it showed that, that Paul had a felony conviction. Um, and it was, and there was no other evidence other than these two convictions that Paul had any criminal record, um, whatsoever. Um, I think the more judicial of the two was the attempted escape conviction. 'cause that's the conviction that the state, um, named and described on cross-examination and very skillfully weaved into its its theme that Paul was someone that would do anything to avoid going to prison, even attempting to escape from custody by running across the parking lot of a courthouse. So you don't, uh, disagree that the convictions have a probative value, it's just that they don't substantially outweigh the pre, is that your argument? Um, if the convictions have a probative value, it is very minimal given their age. We're talking about one conviction from 1987, um, and another from 1984. We're talking about a trial that took place in 2021. I mean, these are convictions that are decades old. And the, did the jury find out how old these convictions were? Um, I don't believe, I'm not sure. I'm not sure what the answer to that is unless there are further questions. Thank You very much. Good morning. Your honors. I may it please The court, Adriana McCullough for the State of New Hampshire attorney Barnard is right 6 0 9 a does use the singular version of confinement, and it does contemplate a single period of confinement and a single period of release. And what the state is asking this court to do is define that single period of confinement as the entire length of a defendant's sentence, whether it's in incarceration, whether it's probation, whether it's a suspended or deferred sentence, whether it's incarceration and release on parole, and then release on a suspended sentence, whatever the sentence is, that is the confinement. So why didn't the statute use that language? They used confinement and I, when the New Hampshire Rules Committee adopted the Federal Rules Committee, at that point, the Fed no federal case had really interpreted what confinement meant. And so I think in an, in adopting all of the rules of evidence, they just adopted it over. And so They didn't use sentence. The general word was Confinement. Correct. Because a sentence could also be a fine, which I think is why the rule has the word conviction there. Because if you're sentenced to just a fine, you could pay that fine on the day of the conviction. And now your sentence is over on the day of the conviction, which is different than if you were sentenced to some length of confinement, whether it be incarceration or suspension or probation or some other combination of confinement. Those are different. And I would also point out that federal courts, since adopting the federal rules of evidence, at least one of two of them, have interpreted what confinement means, and they have interpreted it to mean incarceration. The state is not proposing that as a definition. The state is proposing that this court hold the length of a sentence is the confinement. But the fourth circuit and the ninth Circuit have both said that when parole is revoked and a defendant is incarcerated, or if a defendant is released on supervised release and they are recommitted or re-incarcerated, after violating that supervised release, that incarceration restarts the clock for that 10 year period. The state agrees also with the defendant that restarting the clock is not workable, which is why it's posing this definition of confinement, meaning the entire sentence. And that is not unlike what this, uh, what the state has in its annulment statute. And what this court has talked about in Gibbs and other cases about imposing suspended sentences. So in the annulment statute, a defendant, the period for the annulment does not begin running until the entire sentence is complete. That includes the suspended sentence ending that includes restitution being paid, that includes a fine being paid, that includes community service. All of that must be done. But that statute Doesn't use the Word confinement. No. It talks about conviction and sentencing. That is correct. Yeah. But this court in Gibbs talks about how when a defendant is released on a suspended or a deferred sentence, that release is a privilege and not a right. And then in Stapleford v Perrin, this court said that when a defendant is released on super on, um, deferment or a suspended sentence, the court retains the power to impose that incarceration after due process is provided because he is released on a conditional liberty. And it's conditional because the court can pull him back in and re incarcerate him if he violates a condition of his sentence, even if it's not a crime. Because if a condition of that sentence is perhaps payment of restitution, violating that condition is not in itself a crime, but it is a violation of the court sentence. Wouldn't That be two releases? It could be two releases, But that's not what the rule says. One release. No, the rule talks about confinement, but It says release from confinement. Correct. And a defendant is not released from confinement until the court can no longer pull him or her back in and provide some other form of restriction on his or her liberty. Because even if a defendant violates a suspended sentence, the remedy may not be incarceration. The remedy may be, um, a, a longer period of deferment, especially in deferred sentences. The court is allowed to extend the deferment period beyond the original sentence or in a probation violation context. The probation officer is allowed to impose up to seven days of incarceration without the defendant ever seeing a court. If McCool, let's assume we don't, we disagree with you. Sure. Now we, we decide that the trial court should have, uh, decided this under section B. What do we do then? Can we, can we do that, that analysis here, or is that a factual? You can do that analysis here. So under Hayward and it's progeny, and as this court cited in Kavanaugh, the court, if there's a discretionary decision involved that the trial court has made, this court can affirm the right result under that rule for the wrong reason. If the court had one option to choose without abusing its discretion. And in this particular case, based on these specific facts, the only correct option discretion, the only correct discretionary option was to allow the state to impeach the defendant with these two convictions. And that's because his credibility was such a central issue, not only because the victim had very little memory of the crime or the attack, but because the defendant had asserted self-defense. And so the state not only had to prove that the crime occurred, but then had to disprove his claim of self-defense to the jury. And so it was important for the state to be able to impeach him with his prior convictions. Because as this court has held in Duke, which is a case from the 1950s, about 6 0 9 in general, the object of a trial is not solely to surround and accused with legal safeguards, but also to discover the truth. What a person is often determines whether he should be believed. And the jury had a right to know that in 1987 and 1994, he had convictions. I, and I do believe, I tried to look in my brief, I'm not what's, What was, what's the probative value of knowing he had prior convictions to his self-defense. Defense. So they're probative of his credibility. It's not necessarily probative of the self-defense. Legally it's probative of his, but he Didn't lie about not having convictions. So how does it go to his credibility? It goes to Stuck there. It it goes to the weight. The jury can give his testimony because He committed some crime before, right? Not truthful. Yes. That's, I mean, that's what this court has held in Duke. That's the purpose of 6 0 9. Sorry, I keep moving my hands in the microphone. It's okay. Um, duke talks about a, a defendant when he testifies, takes his character with him. And the jury has a right to know that that defendant is somebody who in the past has disregarded the laws or has flouted, um, what, what a sentence is or flouted, what the court, what, what, um, conditions or restrictions the law has put on him. And so doing it the way the state did it in this case by just impeaching him with you had one felony conviction in 1987 and the attempted escape in 1994. And the state was allowed based on the trial court's order to go into minimal facts about that. The state was allowed to elicit that He ran across the courtroom parking lot while he was in official custody. And that was it. That's all the state elicited. The state did not in its closing argument, argue that because of the attempted escape conviction, this defendant is unbelievable. The state did not mention at all the convictions in its closing argument, but they were important to elicit because when the jury was deciding what parts of the defendant's testimony to believe or to give weight to that is relevant to that determination because the jury can decide to believe all of the defendant's testimony, none of the defendant's testimony or parts of the defendant's testimony, and those convictions are relevant to that determination and relevant to the weight that the jury gives his testimony. And that was especially important in this case, again, because of both the self-defense claim and because the victim had very little memory of the assault. And so he was really the only person offering any long di direct evidence about that assault. And so the jury had to really consider what, if any, of his testimony to believe in conjunction with his lies to the police in conjunction with what the victim did remember in conjunction with what her injuries were as testified to by her doctor. All of that was relevant to deciding did the victim attack him first or not. And do we believe his testimony about the the state of events at all or not? Well, if it's probative of his credibility and whether he's to be believed or not, how would seem that runs counter to your harmless error argument? It does seem that way on its face, but the reason it's runs counter is because if we're moving to harmless error, that means this court has decided admitting the convictions was error. But if we're in 6 0 9 B and you are analyzing whether the convictions were admissible and 6 0 9 B, you have not yet decided that it's error. So you can decide under 6 0 9 B right result, wrong reason, because it's still level playing field where you're deciding whether it was error if we're in harmless error. And I can move there now, please. Under that new standard, I know the brief talks about the old standard, but under the new standard, this was harmless error for multiple, um, of the factors that this court now considers under Boudreaux, the strength of the state's case and the, the overwhelming guilt of the defendant's evidence make this, these two convictions harmless. There was a lot of evidence about the victim's injuries and the force it would've caused the force it would've needed to cause those injuries. And also in reviewing the defendant's direct and cross examinations, much of his testimony was unbelievable on its own, regardless of his prior convictions. So he talked about the room being dark and him not really being able to see. And he testified about the victim running at him, him knocking her down with him, her dropping a knife, him picking up that knife, the two of them standing up her looking at a box cutter on a table. And then that was his decision to then stab her in the neck multiple times. But then on cross-examination, the state asked, well, how were you able to see the knife? How are you able to see any of this? If you testified that the room was so dark that you couldn't even find a phone in there to call nine one one, how were you able to com? How were you able to see what the victim was doing? Um, also this evid, the two convictions were not of an inflammatory nature. One was simply referred to as a felony. The other was an attempted escape. I do believe, I was trying to find in my brief, but I couldn't find it before now, I do believe the years of those convictions were elicited. If it's not in my brief, it's certainly in the record whether that happened. Um, but if the years were elicited that also the jury then would've known that they were over 30 years old at that point, at the time of trial. Um, and going back again to other evidence about the defendant himself that sort of cut against maybe these two convictions or coming in, the victim's parents testified that they were fine with the defendant staying with the victim while they were away for their two week vacation. They, no one said that explicitly, I trust him, but the victim's father said he had done work on our house. We knew him, the victim had been friends with him for a year. Uh, the victim also testified that they had been friends for a year and that she asked him to stay with her while her parents were away because she trusted him. She did not believe he would quote, do anything to her. She never explained what that meant. But I think she was trying to imply to the jury I thought he was a standup guy who would be safe for me to be around and would protect me from any harm that may come from outside the house. Um, and so that cut against sort of any negative implication the jury may have had from the convictions coming in on cross-examination. And again, as I pointed out earlier, the state did not mention these convictions in its closing. And that aligns with this court's holding. I believe the name of the case is Thibodaux. I know it's one of the cases listed in the Boudreaux site, um, that talks about if the um, error or the evidence that's harmless, that is admitted erroneously is used very minimally in the cross-examination and very minimally in the closing, then its error can also be harmless because the jury is not constantly reminded about its existence. And also I would point out too that the, I'm sure it was because of the trial court's order, but the defendant also admitted upfront in the beginning of his direct testimony that he had these convictions. And I'm sure he did that because he knew the state would impeach him with them, but he was upfront about them before he started his testimony. And so all of this taken together using all of the factors that this court can consider in the harmless error standard. So These convictions were coming in regardless of whether the defendant was testifying? No, they only came in to be testifying. Right. I I know that, um, attorney Barnard did not really speak to his in-camera review argument. I'm happy to address any of the court's questions on that. Um, just briefly, the request to re-review any records that were reviewed by the trial court in this case, based on the thought that maybe there is more in there that could be relevant is far too speculative for this court to reverse and remand that case for review or for this court to even review those records. Over 10,000 of pages of records were reviewed and we only know that because over 10,000 pages were released to the parties. It's okay. The records have been reviewed. I'm sorry, I couldn't hear you. The records have been reviewed. Yes, they have been reviewed By, by us, By the trial court, right By us too. By US two. Oh, okay. Good to know. Um, and so it's far too speculative for this court to order that those should be re-reviewed by the trial court to see if anything new should be released without some specific articulation of any prejudice or some specific articulation of something that's in the records that wasn't provided to the parties before trial. So if there are no further questions, I do have a question. Oh, sure. Which is going back to confinement. Did I understand the state's position to be that restitution hasn't been fully paid? So if it's 30 or 40 years later and restitution hasn't been fully paid, that that would not be, there would be no release from confinement at that point? That is true. That would be part of the confinement definition. However, defining confinement this way does not mean that automatically a defendant who testifies or a witness who testifies must be impeached. And that's because the court still retains its discretion to review the conviction and see if its probative value is outweighed by its prejudicial effect. And so in that case, if a defendant has completed all of the terms of his sentence, he has a payment plan set up, he's paying it, it's just not completed because it was a high amount, the trial court could, in that instance, find that the prejudicial effect of impeaching him with that conviction is too great for the probative value because the only remainder, the only remaining part of that sentence is a restitution obligation that he is working towards or not working towards. And that could be true for anything, even if it's not restitution, if it's a suspended sentence that's 50 years long, the trial court could say, I think that's too prejudicial to impeach somebody with a conviction that's 50 years that has that occurred 50 years ago, even though he still under the suspended sentence. But this definition of confinement is a clear definition. It is based on the end of a sentence, which is easy to understand. And I see my red lights on. So at this point I'll ask the court to affirm the defendant's convictions. Thank you. Attorney Cola. Attorney Barnett. Thank you. Uh, just briefly, I wanted to clear up, um, one point regarding the dates. The date of the 1994 attempted escape conviction was, um, elicited the date of the 1987 felony was not elicited. Um, generally under rule 6 0 9, there are two basis to admit a prior conviction. One is that the conviction inherently involves dishonesty, a crime like perjury or fraud. Um, and the other is that it's a felony, that it's punishable by more than one year in prison. The convictions here, A FSA and attempted escape, um, did not inherently involve dishonesty. Um, any probative value only came because they were, um, they were felonies punishable by more than a year. So it's impossible to say that, that any reasonable court would find that their probative value substantially outweighed their prejudicial effect. And just briefly on the in-camera review issue, I know as I know the, the court is aware, um, I don't have access to the records that weren't disclosed. So, so it's, it's hard for me to make specific prejudice arguments. Inherently this type of argument is, is speculative. I'm asking the court to simply review the records. Thank you very much. Thank You. Case submitted, court's in raise back. All rise, please.