State of New Hampshire v. Joshua D. Shea

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I understand you reserve one minute for Rebuttal. Yes, your honor. Please speak. May I please the court? Christopher Johnson on behalf of Joshua Shea. I plan this morning to focus on the first issue involving the jury instructions, and first to set a little context to talk for a moment just about how the law treats the options a person has when they're faced with a threat. And second, uh, make some points about the interpretive error embodied in the jury instructions. And third, to talk about prejudice, how that interpretive error define improper path to conviction. You're having to take the court's questions, so beginning with context. So what are the options a person has when they're the target of a threat? One option is retreat. The legislature, however, has not chosen to require retreat of us even when it's completely safe, except in narrow circumstances not applicable here. A second option, a person can stay and just suffer the assault. But again, the legislature has not required us to turn the other cheek. A third option is that we can use force in self-defense when we are threatened. Um, we can punch somebody. RSA 6 27 allows this. So in enacting 6 31 4 4 and more generally, this display a weapon option. The legislature, I think was trying to define a fourth option for people that isn't retreat. It isn't turning the other cheek, it isn't hitting somebody, it's displaying a weapon with an intent to warn them away. The idea, I think, is that it has less damage than a punch, but without, um, altering the general sense in which retreat is sort of a, a disfavored option except in narrow circumstances. So this gets us to the second point. The, um, the jury instruction error. The gist of the court's jury instructions on this point was that there is not really a threat if the target has an avenue of safe retreat. There's two problems with that. First, it misunderstands the meaning of threat. Threat depends on the intent of the speaker, as the target reasonably understands that intent. So for example, if somebody says to me, they're gonna beat me up, but they're obviously joking, that's not a threat. They're an actor in a play. It's not a threat. It's transitory anger. It's not a threat because the reasonable perception of the target understands that's not a threat. But the law does not make the threat dependent on other things like the, the availability to the target of an avenue of retreat. Doesn't that, doesn't that get into the reasonableness of, of the threat then? Well, I, I think it's crucial to kind of keep conceptually separate sort of two sort of steps in the analysis. And so one is, um, did the speaker utter a threat or was it transitory anger or a joke or something like that. And then the second step in the analysis is, um, what are, what are the choice? What, what does the law, what command or allow the target of the threat to do? And as I said, the legislature in this state has chosen only in very narrow circumstances to require retreat. And so that's baseline here. So, so It's, so the fact that the, the, uh, trial court used the word may as opposed to should or must does not, it does not resolve that issue? No, because even may sort of opens to the jury a path to conviction which shouldn't be there. And the conception, I, I'm trying to express of the law, and, and here's a way we can know that the court misunderstood the law. First, the jury instruction had to rewrite the statute. The court added words not in 6 31 4. And secondly, that instruction tended to erase the difference between the defense codified in 6 31 4 and the more general defense of display a weapon codified in 6 27 by incorporating this idea of retreat. And indeed, 6 27 itself doesn't require retreat acceptance of narrow circumstances when you're a trespasser or a first aggressor. They're not, not pertinent here. So this is the prejudice under the law as statutes, as a legislature has chosen to define it, a person can display a weapon if one, or to put it in the terms here, Shea could display a weapon if one he reasonably perceived Mm, to be making, to be threatening serious bodily injury. And two, shay's intent in displaying the weapon was to warn MMA, the jury instructions wrongly added a third thing. And that's the problem also per the instructions, it has to be true that Shay did not have a safe of retreat. And if he didn't, then he's convicted. But that's not what the statutes say. That's what I, what i, what I have for today unless, Well, let me ask you about the, the second issue. Yeah. Um, the answer to the jury's question, um, the state says, well, the question was really about the five el elements of criminal threatening, not about the actual indictment. What's your response to that? I'm not sure. I don't know know that I disagree with that. I, what, what I think the question was sort of not about, it was getting at a different thing than what I'm talking about now. That sort of the 6 3 1 4 display weapon defense. The, the question was getting at, well, let me back up. Um, there are fact findings the jury could theoretically have made and we'll never know what they did make. Like they might have thought that mm, didn't state a threat at all, that Shea's testimony was not believable on that point. And if they thought that then Shea would lose this 6 31 4 display a weapon defense. But if Shea didn't point the weapon, maybe the state can't prove the general elements of criminal threatening. Isn't it a response to the defense that was offered at trial though? I mean, the defense was he didn't point the gun, right? Right. So, and this is what the jury was asking, does the state really need to prove that Yes, he pointed the gun. Yes. Right. And so the defense, I think there was two defenses or two defense theories that were in play. And one was sha and pointed a gun. He didn't do the elements of criminal threatening. And secondly, to the extent that he used the gun, he did sue in a way authorized by this defense 6 3 1 4 defense, and sort of either one of those defenses could the theoretically led to acquittal. And so the instruction that says, it doesn't matter whether he pointed it or not, kind of cut the knees out from under that first theory, which is that she didn't do anything in the first place that a MM could reasonably construe as a threat, whereas, but pointing it could qualify as the defense showing it True pointed could, could true. There's a sense in which, yeah, pointing could be a version of display. Right. Um, but again, I think it's, um, you know, it would not be helpful. It was better for the defense if the gun were not pointed, but merely sort of showed for both points. But our, the, for the purposes of this jury question that this is like Elliot, I think is the case in the brief where the case is litigated at trial, like, like as if it matters a lot, whether he pointed it or didn't point it. And then all of a sudden, and that's what the indictment says, and then all of a sudden when the jury asks the question, it doesn't matter much whether he pointed it or not. Um, and that's the problem. And the, the state says, well, you have to show actual prejudice, not mere speculation, and you don't do that. Right. What's your response to that? I, what I would say is that, um, I think the prejudice again, appears in that the path to conviction becomes easier than the defense understood it to be based on the indictment and throughout the trial. Because now the state doesn't have to win that, that factual question. Did he point it or just show it to get its conviction? Now the state can win, its win the conviction even if Shea didn't point the gun And there was conflicting testimony on, and there Was conflicting. It was, it was sort of until jury instructions that was sort of a, an important factual dispute. And then the answer, the question as answered made it not an important factual. But the Only conflict was when with the defendant, the defendant testified that he didn't point the gun. Everybody else testified that he did. That's right. That's right. But nevertheless, I mean, he, he, he could have been believed. And, and so it was like an important factual dispute in the case. So, so your response to the question of whether there's actual prejudice is that because there was this open avenue that the state could, the jury could have followed that what more can I prove other than that was a possibility? That's the actual prejudice. That's Right. That's right. And it's like Elliot in the sense, if I remember if I'm naming the case, right, but that's the manslaughter case where the indictment had said Elliot shot the victim. And then the way the evidence came out at trial was, um, Elliot may not have held the gun when the victim was shot, but he had some role in causing some other person to pull the trigger. And the, and this court said, you know, that's, that's the, there is prejudice in that shift from the theory of prosecution as expressed in the indictment to this whole other theory. And I think it's, this is similar in that sense. So for these reasons, we ask the court to reverse his convictions. Thank you very much. Attorney Johnson. Attorney Nicole. Good morning. It may have please the court, Adriana Mula for the state of New Hampshire. I wanna start by pointing out that this instruction on the display of a weapon defense does not condition a threat on the ability to retreat. The beginning of the instruction on this defense was talking generally about the three elements for this defense. That there's a threat that the defendant feels threatened, um, that the threat is feeling must be of a nature that a reasonable person would believe would cause serious bodily injury or death. And third, that the defendant's display of that weapon would warn off the vic the person making the threat. In this case, it was the victim who was making the supposed threat. None of those elements and none of the instructions on those three elements of this defense conditioned those elements on retreat. But in it, it inserted retreat as a factor for the jury to consider. It did. So it almost infected all four of those points. So it didn't infect any of those points. It introduced that as a factor in determining whether there was even a threat. So if anything, that particular sentence went to, So I have to consider whether I can get away if someone is threatening me. I think the court, that is what the court was doing in this instruction based on the specific facts of this case. And I, and I want that distinction to be a little clearer, so I'll try to restate it. These, the elements that judge gave regarding the defense were general, sorry, elements I talked in my hands and I knew that was gonna happen. Um, and this, this list of factors or this little paragraph at the end of that instruction about you should consider these circumstances in the way that defendant faced them, you must consider all the circumstances in the case. And one factor you may consider is the ability to leave safely. Those instructions were about the specific facts of this case. And back in the transcript, there are a few different places where the trial court talks about this instruction, but it's pages 1 93 to about 2 0 1 where they really get into the meat of this factor and they're discussing two instruct on, and the judge says, I'm, I want to give this instruction because it goes to whether a threat even occurred. It goes to the reasonableness of the threat. And I think that gets at the question you asked Chief Justice McDonald about doesn't the may change it and the May does change it because in this case, based on these facts about the defendant being in his car, the victim being out of his car, the defendant being in a parking lot of a gas station near the Epsom traffic circle, with the ability to go back into the traffic circle fairly easily, all of those facts are relevant to whether the victim posed any sort of threat to him at all. This, although It wasn't that disputed, wasn't there some dispute about whether the vehicle was blocked or could easily escape? I mean, it was an issue that got inserted into the trial, Sort of, I think there was some dispute about whether the victim's car was blocked in basically by defendant said he parked 20 to 30 feet away from the victim. The victim said he was five or six feet away or a car length away. But that would go to whether the victim could retreat or believe the situation and whether the defendant sort of created a threat to the victim by where he parked his car, which would go to the elements of criminal threatening. And The jury would be able to sort that out. I think the jury could, I think the jury could hear the defendant's testimony about that day and consider it and compare it to not only the victim's testimony, but the fiance and the gas station attendant and sort of sort out those discrepancies and fact by using this factor as a way to sort of make those facts or find those facts or sort out the discrepancies in the testimony. But the trial court found that the principles of 6 27 don't apply here. And then he actually instructed the jury on one side principle. How do you, how do you reconcile that? So I reconcile that by pointing you to 6 27 4, where when you've used deadly force, it's required that the jury be instructed to determine whether the defendant could retreat. So shouldn't the jury also have been been instructed on whether or not the defendant was the first aggressor? No, and that's because he did not use deadly force in this particular case. And the legislature when they enacted this statute, and for whatever reason, they put it in criminal threatening and in the self-defense statute. But when they put it in self-defense, they could have included any exceptions. They wanted to this defense like they did with use of force and use of non-deadly force. So they could have said, if you're displaying a weapon display means this, you cannot point it, you can only brandish it or, or any other exception. They could have applied all of the exceptions to non-deadly and deadly force to this defense. But they did not. And they did that because for use of deadly force, it has to be a requirement that the jury determine whether he was the initial aggressor or whether he retreat because the use of that deadly force is such a serious elevation of whatever the threat was or the injury that was occurred to the person using the, and when you're displaying a firearm, as my colleague pointed out, this is sort of a fourth option that is maybe less violent or less aggressive than a punch or a, a death kill, a death fraud. But more than just accepting the assault. And so that's I think what the trial court was getting at with this one factor you may consider. So does the defendant have to prove that he could not retreat or is that something that the state needs to prove in order to rebut the defense? I don't think either person needs to prove anything specifically about retreat. I think in this particular case, based on the facts, the trial court was saying to the jury, a factor you may consider in determining whether the victim posed a threat is whether the defendant could have left the scene. And that goes to the reasonableness of the threat. And that really goes to the fact finding Michigan. But On that point, isn't that a fact that would be up to the jury to find and therefore someone would bear the burden of proof? I think the difference between proving facts and proving elements are that the, the facts the jury finds then prove the elements. And so there's no burden because this is not a requirement that they be instructed on retreat or initial aggressor. You, you admit then it's not an element of the defense Retreat is not No. The elements of this defense are the three, I think that the trial court laid out pretty clearly to the jury Where the statute specifically defines the threat. Where where is the basis to, to discern a duty of retreat, The basis to discern the duty of retreat? I I, I think the issue here is calling it a duty to retreat. And I don't think that's what the trial court was doing. I don't think it was saying there is a duty to retreat in this case jury. I think the trial court was trying to say you can consider all the circumstances that the defendant faced. And by including that one factor, it was reminding the jury you're not just to consider the words used by the defendant or the words used by the victim to consider everything else. So the time of day where people were parked, what people's body language was doing, whether people could leave or not, not in the duty to retreat in self-defense, but in determining whether there was a threat. And that's because a threat as this court has found and it's found sufficient evidence for criminal threatening is always about more than just words. Which is also why the trial court instructed the jury earlier in the, in laying out those three elements that it can't just be the words of the threat, which is what the defense wanted the instruction to be. That has to, so is this something that the state stressed in their, in their case, that the defendant had the ability to retreat and he shouldn't have, didn't need to brandish the weapon? I don't know. I would agree with the word stressed, but the state did bring this up in its closing argument, not under the guise of duty to retreat and self-defense. But the, the state talked about when you're thinking about whether this victim posed a serious threat of death or serious bodily injury, consider all the facts, including where everybody was parked, somebody was in their car or somebody was not. Somebody could leave the scene and avoid an entire altercation. And that's fair. That is fair. I think that's fair to determining whether there was a threat. Because a threat has to be more than just words. It has to, the defendant for this defense to apply to him has to reasonably believe that whatever threat the victim was making towards him, he says it was to beat his ass. I think that that could actually happen to him and that that fight could cause death or serious ly injury. But the defense was stressing other factors, for example, the size of, uh, MS as opposed to the size of the defendant and the jury. The, the trial court didn't instruct the jury to consider that The trial court did not instruct on those specific factors, but it did instruct that the jury could consider all the circumstances as the defendant knew them and the defendant did in his closing, I can't remember exactly what he talked about in his closing, but I'm sure he referenced the size. I'm sure he referenced the words the victim used. I'm sure he referenced the road rage incident on the road going to whether the defendant thought that this victim posed a credible threat. 'cause the defendant's story about what happened on the road was much different from the victims. The defendant talked about the victim trying to push him into the middle of the road by driving aside him in the breakdown lane, which the victim and his fiance never testified about. Um, and the defendant did say he felt that that was childish and silly, but I think in his closing, the defense brought in all those factors and circumstances to talk about whether this victim posed serious threat to his client or to the defendant. Um, I would like to move to the jury answering question and we'll start further. I'd like to ask you about that too, right? Which is why, why is this case distinguishable from Elliot? This case is distinguishable from Elliot one because this did not amend the specific complaint. This question was a general question about what are is, what are the elements of criminal threatening is displaying a gun a crime based on on the definition paperwork the jury received? And the definition paperwork the jury received were the general jury instructions in which the trial court defined one of the elements of criminal threatening as the use of a firearm. I'm paraphrasing that particular sentence, but the trial court only ever defined the element as use the indictment, which the jury was read, said, use of a firearm to wit pointing the firearm or something along those lines. Did The jury have the indictment with them when they were deliberating? I don't believe so, and I think that's because the indictment's not evidence, it was not admitted as an exhibit. So usually I think they rely on having not been on a jury. I think they rely on what's in the instructions regarding the elements and what's, Well, they could have been relying on what the defense was. They could, they could have and they could have been relying on their memory of the reading of the indictment. Um, and maybe that's what motivated this question. They could have been relying on the definitions that they received about the elements of this defense. And maybe they were trying to determine if pointing is displaying or not. Because unfortunately display brandish, none of those are defined by the legislature. And so the trial court did not give any definition of what display of a firearm meant. Um, And it seems to me that they weren't thinking, they likely weren't parsing it so thinly as to whether this had to do with the elements or whether it had to do with the indictment. They wanted to know whether the state had to prove that the defendant had pointed the gun at Mm and isn't that a critical issue and isn't Mr. Johnson that it opened an avenue that wouldn't have been available to the state? So again, I don't think it amended the indictment. I think it instructed the jury to look back to its definition of what the elements were and the elements were use of a firearm, which the defendant did not challenge prior to those jury instructions being read to the jury. But to the extent this court believes it did amend that indictment, which the state is not conceding, there was no prejudice here as you pointed out, that prejudice has to be actual And the defendant, but how can they ever prove actual prejudice when, when it's the, the argument is it opened an avenue for conviction that shouldn't have been there. So I don't think this particular instruction opened a new avenue for conviction in that Elliot case. I think the, the way the trial court instructed the jury was initially he was charged as shooting, being the shooter of the gun that killed the victim. And the way the trial court instructed the jury was if his actions caused the gun to go off. And so that leads to another avenue of conviction because that particular defendant could have directed another person to shoot the gun or could have loaded the gun or could have on safety of the gun. I don't know a lot about guns, but could have done some other action aside from being the one to pull the trigger. And that was prejudicial because he was only ever charged with being the one to pull the trigger. But the, the question of as to whether or not he pointed the gun at Mm was it a contested issue at trial? Correct. It was a contested issue to the extent that the defendant did not agree he pointed the gun at the victim. But as the trial court pointed out when they were discussing this issue of how to answer the question, the trial court said pointing a gun would be using a gun and the state, the element the state had to prove was that the defendant used the firearm to threaten the victim. Well, but showing the gun could be using the gun too. Exactly. And so I think that the, that was so how, How do we think the jury distinguishes between the two, given the words of the indictment? The jury can distinguish between the two because one pointing the gun I would argue is superfluous language because it's just about using the gun and that fact. So it can be the element of the crime and also the defense. Yes. I think it, especially for this display of a firearm defense, I think that is true because I also think you could criminally threaten somebody by pointing the gun at the ground and saying something to them. Mm-Hmm. But you would also be able to use this defense depending on the facts of the case. And so I think quite often the use of the gun would, the fact would prove the use element of criminal threatening and the use element of the defense. But We can't be certain what the jury was focused on when they asked the Question. That's true. We cannot be certain. And that's why I do think the answer here was the best option for the trial court to give because it just redirected the jury back to its prior instructions that it had provided that nobody had challenged, nobody had challenged the elements. The only other challenges were really about the one factor you may consider and the defendant wanted a different instruction or definition of what threat was, but nobody challenged the elements of criminal threatening that the trial court proposed to give to the jury. And this again, the defendant at trial and in his brief never said his defense would not have been this display of firearm defense. And that's what I think, I think you would have to allege that this amendment to use of a firearm versus pointing a firearm would have led him to not even use that display of firearm defense to be prejudicial because that was his theory of the case. I see. My red light is on. Thank you. Thank You very much, attorney rebuttal. Unless The court has other questions. Very good case.