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THE STATE OF NEW HAMPSHIRE

SUPREME COURT

No. 2015-0457

The. State Of New Hampshire

V.

Kyree Rice

DIRECT APPEAL FROM A JUDGMENT OF THE HILLSBOROUGH (NORTH) SUPERIOR COURT . .

BRIEF FOR THE STATE OF NEW HAMPSHIRE

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THE STATE OF NEW HAMPSHIRE

Joseph A. Foster Attorney General

Elizabeth A. Lahey Assistant Attorney General 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3650 ( 15 minutes)

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TABLE OF CONTENTS

'TABLE OF AUTHORITIES .......................................... : ................ , ........................ ii

ISSUES PRESENTED ........ : ... ;.: .............................................................................. l. . ' .· . . . . .. ' ' ' .. · ,_,:... . . . .· ... : •.. :,':.•>>:;·~,<" . . . . STATEMENT OF THE CASE ..................................... ; ................ ;·.~ ..... ~-........ _.-, .• _, .. ,_.;-.~······2

STATEMENT OF THE FACTS .: ............................................................................ 4

SUMMARY OF THE ARGUMENT ........................................................................ 8 . ' '

ARGUMENT ...... ;.: .. : ................................. : .. : .................. ; ............ ; ........ ; ................ IO

. I. THE EVIDENCE OF COCAINE AND MARIJUANA IN CLAY'S SYSTEM WAS CORRECTLY RULED . IRRELEVANT BECAUSE THERE WAS NO GROUND UPON WHICH THE JURY COULD CONCLUDE THAT IT AFFECTED HIS MEMORY, PERCEPTION, OR LEVEL " -OF AGGRESSION-~ ............ _ ............................... : ................................ 9

II. THE, TRIAL COURT'S JURY INSTRUCTION DID NOT . CONSTITUTE AN UNSUSTAINABLE EXERCISE OF DISCRETION AND THE JURY'S'VERDICT SHOULD BE AFFIRMED

CONCLUSION ............ _ ................ ; .......................................... , .................................. 30.

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J ·I

I

TABLE OF AUTHORITIES

Aubert v. Aubert, 129 N.H. 42:2 (1987) ................................................... '. .... .-......... 26

-Bekendam v. State, 441 S.W.3d 295 (Tex. Crim·. App. 2014) ................................ 14

Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) ......................... 11, 13, 14

Lyba v. State, 583 A:2d 1033 (Md. 1991) .............................................................. 15

Pedeferh v. Seidn-er Enterprises., 163 Cal. Rptr. 3d 55 (Ct. App. 2013) ......... 11, 14 '

. People v. Phillips, 346 N.W.2d 344 (Mich. Ct. App. 1984) ............................ 16, 17

State vAyer, 154N-.H. 500(2006) ............................................ ; ........ ; ...... -........ 24,25 - .

State v. Besk, 13~ _N.J;I. 412 (1994) ····················································~······· 10, 14, 18

.·,

State v. Chen, 148 N.H. 656 (2002) ........................................................................ 25

State v. Crie, 154 N.H. 403 (2006) ...... :······················································~ ........... 24

State v. D 'Alessio, 848 A,2d 1118 (R.I. 2004) .............. : ........................................ 21 . . ' ~ .

State v. Fichera, 153 N.H. 588 (2006) ................................................. 11, 12, 14, 20

State v. Furgal, 164 N.H. 430 (2012) ....................................................................... 9

Sta_te v. Gingras, 162 N.H. 633. (2011) ........... ; ................................................. 27, 28

State v. Johnson, 157 N:H. 404 (2008) ................................................................... 24

11

State v. Kornbrekke, 156 N.H. 821 (2008) ....................................................... 24, 28 . '

State v. Larose, 157N.H. 28 (200.8) ....................................................................... 25 '

State v. Mitchell, 148 N.H. 293 (2002) ......................... :····················:····················:.9

State v. Palermo, 129,A.2d 1020 (N.H. 2015) ............................... ; •................ 18, 19

State ,v. Patterson, 1992 Ohio App. LEXIS 13_8 . (Ohio Ct. App., Jan. 15, 1992) ........................ , .................... -.................... 11, 14

State v. Perri, 164 N.H. 400 (2012) ........................................................................ 20

State v. Shepherd, 159 N.H. 163 (2009) ............................................... , ........... 19, 20

State v. Stangle, 166 N.H. 407 (2014) .................................................................... 19

State v. Staples, 120 N.H. 278 (1980) .......................... : ................. :················· 10, 18

State v. Taylor, 593 S.E.2d 645 (W.Va. 2004) ....................................................... 21

United States v. Kizer, 569 F.2d 504 (9th Cir. 1978) ............................................. 21

Statutes

RSA 627:4, II (Supp. 2015}.~ .............. , ................................................................... 25

RSA 627:9, II (Supp: 2015) ........................................................................ 25, 27, 28

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RSA 627:9,IV ., ................................. , .............................................................. passim

RSA 629: 1 ....... ; ........... · ................................................... ~ ......................................... 2·

RSA 630 ................. -................................................................................ : .................. 2

111

RSA 631:1 ................................................................................................................. 2

RSA 631 :3 ...... , ................................................ ; ........................................................ 2

Rules

NH. R. Ev. 401 ...................................................................................................... 5, 9

NH R. Ev. 402 ...................... : .............................................................. 10, 14, 18, 20

N.H R. Ev. 403 ............................................................... ; ....... ; ........... · ....... : .. 5, 20, 23

NH. R. Ev. 404.(b) ................ , ................................................................... " .... , .......... 5

Constitutional Provisions

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N.H. Const .. pt I, art. 15 .................. ,. ............................................................................ 9

lV

ISSUES PRESENTED

1. Whether the trial court erred by precluding inquiry on cross examination

into Clay's use of marijuana and cocaine on the night in question because it was

irrelevant.

· 2. Whether the trial court erred by refusing to instruct the jury that "[t]he act

qf producing or displaying a weapon shall constitute non-deadly force;" as provided in

RSA 627:9, IV.

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STATEMENT OF THE CASE

. , .. ; .. :./_,,_··~~~:i . Kyree Rice, the defendant, was indicted on four charges arising out of the

shooting of Curtis Clay at USA Chicken and Biscuits in Manchester, New Hampshire, on

May 24,2014~ See T 23-24. 1 The defendant was charged with.one count of attempted

murder, two counts of first degree .assault, and one count reckless conduct. T 23-24; RSA

630; RSA 629:1; RSA 631:1; RSA 631:3.

. At the defendant's three-day trial, the jury heard testi1:rn;my from various witnesses,

who recounted that Clay was involved in a fistfight on the night in question with Raheem

Rice, Rudy Vasquez, and the defendant. T 327, 329-30, 331, 353. The defendant

admitted that he fired the two shots that struck Clay. However, he contended that he did

so in defense of Rice. After the State rested, the trial court (Abramson, J.) dismissed the

reckless conduct charge against the defendant. T 379. The defendant was ultimately

convicted on the three remaining charges. V 3-5. He was sentenced to a term of twenty

years to life for attempted rriurder. A15.:.16. The trial court entered an order holding

pronouncement of sentence on the remaining assault charges in abeyance pending any

· subsequent appeal. Al 7. This direct appeal followed.

1 References to the record are as follows: "DB" refers to the defendant's brief; "DBA" refers to the appendix to the defendant'·s brief; "S" refers tq the transcript of the May 16, 2013 motion and sentencing hearing; and "T" refers to the transcript of the defendant's jury trial, held April 8-9, 2015. ·

2

·STATEMENT OF THE FACTS

A. May 23-24, 2015

On the night of May 23, 2014, Curtis Clay waited for his girlfriend, Sarpantha

Garon, to finish her shift as a bartender at the Nutfield Ale and Steak House in

Manchester. T. 81, 322. During this time, he and friends went out for drinks and

Chinese food, before returning to a friend's house on Western A venue in Manchester. T

3 22. Garon picked Clay up on Western A venue around 11 : 00-11 : 3 Op .in. after she ' .

completed her shift. T 323. Garon and Curtis then went toRaxx Billiards on Elm Street

in Manchester. T 323. Tl:iey saw several acquaintances and each had two drinks. T 324.

.. .

They did not have any problems with any other patrons. T 83, 324. After Raxx closed,

they drpve to USA Chicken and Biscuits to eat. T 324.

Around this same time, the defendant; his brother, Raheem Rice; and a friend,

Rudy Vasquez, also left Raxx and arrived at USA Chicken. T 69, 381, 409. They were

joined by the defendant's cou~in, Beverly Pierson, who was intoxicated. T 407.

USA Chicken wa,s crowded. T 84, 325. Garon got in line to order food for Clay

and herself. T 325; Clay stayed by the main entrance. T 326. Garon testified that

. people in line behind her started arguing. T 86. She turned and saw the defendant, whom

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she recognized from her childhood' as "Mikey." T 85-86. Garon testified that the

defendant "came in very aggressively," revealed a gun, cocked in, and said; "You know

what time it is.'; T86.

Garon testified that then ~he felt a woman get "thrown into the back of me." T.

86., Garon turned to help the woman. T87; 387. As she did, an fight broke out. T 87.

Garon recognized one of the participants as Clay. T 87.

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Cfay testified that the fight began after he saw a man, who he later learned was

Rice, push a woman to the ground. T 327. Clay was "disgusted" by this conduct, so he

approached Rice and '.'mushed l;iim in the face." T 327. Clay testified that Rice

. "retaliated" and hit him back. T 327. Clay testified that "it went into pandemonium after

that." T 327. Clay then felt someone push him from behind and saw a swing coming -

toward him. T 328. Clay responded by hitting the man, who was later identified as

Vasquez. T 329. Vasquez fell to the ground. T 329. As he fell, Vasquez hit his head on:

a table and was briefly knocked unconscious. T 88. Clay then continued fighting with

Rice, who was fighting back. T 329.

Upon hearing the commotion, the defendant reentered USA Chicken just as Clay

hit Vasquez. T 4 l3. The defendant testified that he tried to break up the ongoing fight

between Clay and Rice, but to no avail. T 414. The defendant then produced his gun and

pressed it into Clay's stomach. T 243. He testified that Clay did not stop, and instead )

punched the defendant twice. T 415. The defendant testified that he was "leveled off'

his feet as a result of the punches. T 415. The defendant was able to hold on to his gun

and stood up and fired what he described as a "warning shot." T 417, 456. However, the

defendant fired his "warning shot" down in the direction of Clay and Rice and struck

Clay. T 459-60. The defendant's gun subsequently jammed. T 418. He was able to re-

chamber another round by "sniack[ing] the bottom of the firearm." T 418~ He then shot

directly at Clay, striking him,again. T 418. The defendant left USA Chicken and went

home. T420. He did not attempt to~take Rice, Vasquez, or P_ierson with him, or call the

police to assist Clay. T 463, 465. Rice and Vasquez did not promptly leave the scene,

4

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and instead stayed behind to hit and kick Clay several more times beforeleaving. T. 247,

332.

Garon then drove Clay to Elliot Hospital where he was treated for two gunshot

wounds-one to his right tricep and other to his left shoulder. T 60-61, 91-92, 334, 336,

360-68, 366-67. The bullet that struck Clay's left shoulder came to rest between his

· fourth and fifth ribs, near his heart. T 362-68. As part of this treatment, Clay underwent

a urinalysis that showed detectable levels of alcohol, opiates, cocaine, and marijuana in

his system. T 312. The test for alcohol indicated that Clay's blood-alcohol concentration

was .209. T. 372. The test did not quantify the amount of opiates, cocaine, and

marijuana in Clay's system, nor did it indicate when these substances were ingested.

The defendant later turned himself in to police. T 427-28. He admitted that he

shot Clay twice, but contended that it was justified because he did so in defense of Rice.

T479.

B. Inquiry into Clay's drug use

The State filed a motion in limine prior to trial seeking to exclude any and all

references to the cocaine and marijuana in Clay's sy:stem on the night of May 23, 2015.

Al-A6. The State sought to exclude this evidence pursuant to Rules 401, 403, and

404(b). Id. The defense objected, arguing that the evidence was relevant to Clay's

perception, state of mind, and recollection of the events that occurred on May 23-24,

2015. A9. The defense also argued that it should be permitted to elicit testimony

regarding Clay's purported drug use to show both that Clay was the initial aggressor and

to prove the degree of force that he used during the fistfight with the defendant, Rice, and

Vasquez. A8-A9.

5

The trial court did not address or resolve the State's motion prior to trial. It

instead t9ok up the issues raised therein at trial prior to Clay's testimony. T 310. The

defense argued that inquiry into Clay's purported drug use on the night in question was

relevant for two reasons: (1) to impeach Clay's credibility under the theory that his

intoxication compromised his ability to perceive and remember events; and (2) fo

establish that Clay exhibited a heightened level of aggression, which supported the

defendant's self-defense theory. T 311, _315. The trial court stated such testimony would

only be relevant if the defense could establish that Clay's perceptions and level of .

aggression on the night in question were affected by cocaine or marijuana use. T 311-12;

314. Moreov~r, the defense "need[ed] somebody to make the link that it would affect his

memory, his perception, or his aggression that night." T 31 7. According to the trial

c'ourt, the defense could not do this unless it could establish the timing and level of Clay's

consumption of cocaine or marijuana, and that such timing and levels would af~ect an

average person's perception or memory. T 312, 314. The defendant's medical expert,

Miguel Gaeta, could not make this showing. T 314-15. Because the defense could not

establish a nexus and did not have evidence of the timing or level of Clay's consumption,

the trial court held that evidence that Clay had marijuana and c.ocaine in his system was

·not relevant and therefore inadmissible. T 315-16. Because, however, the test for

alcohol did measure the amount of the substance in Clay's system, the trial court ruled

that the defense could question Clay about his alcohol use on May 23-24, 2015. T 314.

Defense counsel cross examined Clay about his alcohol consumption. T 353. At ' .:. "

the conclusion of his questioning, defense counsel, citing the defendant's constitutional

rights; again sought permission to ask whether Clay had used any other substances on the

6

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night in question. T 354-55. The trial court properly affirmed its prior ruling, finding ·

that the "probative value of this evidence ... [is] substantially outweighed by the danger of

unfair prejudice and jury confusion." T 355.

7

' SUMMARY OF THE ARGUMENT

1. The trial court correctly precluded inquiry on cross examination into

Clay's drug intoxication on the night in question because it was irrelevant. Because there

was no competent evidence that.cocaine affected Clay's behavior or memory, the trial

court properly found that there was no ground upon which the jury could have concluded

. : ~

that Clay was not a competent witness or acted a particular way on the night in question -

because of his drug use. Thus, the trial court properly determined that inquiry into Clay's

use o°fcocaine was irrelevant. Even if the evidence had any probative value, the trial

court correctly ruled that it ~as substantially outweighed by its tendency tci create unfair

prejudice was needlessly cumulative.

2. The defendant waived the issue of whether the trial court erred by failing

to instruct the jury that the "act Of producing or displaying a weapon shall constitute non-

deadly force," as provided in RSA 627:9, IV, because he did not address or briefthe

proper interpretation of this statutory provision. Regardless, the trial court's decision not

to instruct the jury that "the act of producing or displaying a weapon shall constitute non-

deadly force" was not an unsustainable exercise of discretion. The trial court instructed

thejury regarding the full statU.tory definition of deadly force, which included the

instruction that "Purposely firing a firearm capable of causing serious bodily injury or

death in the direction of another person or at a vehicle in which another is believed to be

constitutes deadly force." Based on the statutory definition of deadly force, the jury

could have found that the defendant's conduct short of firing a gun constituted non-

deadly force.

8

ARGUMENT

I. THE EVIDENCE OF COCAINE AND MARIJUANA IN CLAY'S SYSTEM WAS CORRECTLY RULED IRRELEVANT BECAUSE THERE WAS NO GROUND UPON WHICH THE JURY COULD CONCLUDE THAT IT AFFECTED HIS MEMORY, PERCEPTION, OR LEVEL OF AGGRESSION.

The defendant claims that the trial court committed reversible error when it

precluded him from eliciting testimony regarding Clay's level of cocaine and marijuana

intoxication to impeach Clay's credibility and competence as a witness and to "support

the inference that C~ay in fac~ used a greater degree of force than he might otherwise have

used" had he not been under the influence of cocaine. DB 13, 19. "The decision to admit

or exclude evidence is within the discretion of the trial court." State v. Furgal, 164 N.H.

430, 43 8 (2012) (quotation omitted). "To show an unsustainable exercise of discretion,

the defendant must demons.trate that the trial court's ruling was clearly untenable or

unreasonable to the prejudice of his case." Id. (quotation omitted). The defendant cannot /

meet this test.

"A defendant has no constitutional right to present irrelevant evidence" and "no

right under Part I, Article 15 of the State Constitution to introduce evidence that will have

little effect other than to confuse the issues or confound the jury, for such evidence is not

competent, favorable proof." State v. Mitchell, 148 N.H. 293, 294 (2002). The test for

whether proffered evidence is relevant is whether it has "any tendency to make the

existence of any fact that is of ~onsequence to the determination of the action more

· _probable or less probable than it would be without the evidence." NH R. E~. 40i. For \

impeachment purposes, this Court has specifically stated that proffered evidence is only

relevant where there is a nexus between the proffered evidence and the effect thatit has

9

on the witness's ability and willingness to tell the truth. State v. Staples, 120 N.H. 278,

283 (1980); see State v. Besk," 138 N.H. 412, 415 (1994) ("Without such a nexus, the.

allegation lacks relevance and is inadmissible ur:ider New Hampshire Rule of Evidence

402.").

Defense counsel conceded at trial that he did not have any evidence that Clay's

d~ug use affected his memory on the night in question. T 314-15-(Q: "I'm reading here in -,

the doctor's deposition, he never opined that it would affecthis memory. A: "No, no, he

did not, Your Honor."). The trial court also properly noted that the defendant had no

evidence that Clay wasintoxica~ed and thereby aggressive. (A: "the doctor testl.fies that

it affects his level of aggression, which is also ah issue in this case." Q: "he said 'in

general, he sees patients with that issue."). On appeal, the defendant suggests that such

evidence was not necessary because, ifhe had been permitted to ask Clay whether he was

under the influence of cocaine on the night in question and Clay answered yes, the jury

could have concluded that Clay's memories and perceptions were not credible and that he

- acted aggressively as a result of his cocaine consumption. DB 16; see T 315 ("I think

that a reasonabl_e juror can assume that combining cocaine and alcohol is going to. affect

somebody's ability to perceive."). This assumption is fatal to the defendant's arguments

on appeal because it wrongly assumes that the physiological effects of illicit substances

are within the common experience and knowledge oflay jurors. T 316 ("I don't know if

these jurors have any expertise with alcohol and cocaine ... you want to take a test that

shows the presence of cocaine in his system that night, and ask the jury to conclude that

on that night it had t~ have affected his memory and-and/or his aggression .. .I think

' that's patently improper."); see Pedeferri v. Seidner Enters., 163 Cal. Rptr. 3d 55, 68 (Ct.

10

App. 2013) ("The probable effect of intoxicants other than alcohol is a topic sufficiently

beyond the common experience of most jurors that expert testimony is required."

(quotation and brackets omitted)); State v. Patterson; 1992 Ohio App. LEXIS 138, at *11

(Ohio Ct. App., Jan. 15, 1992) ("Although the average juror would understand the effects

of alcohol, we do not feel that the average juror would understand crack cocaine's

effects."); Layton v. State, 280 S.W.3d 235, 241-42 (Tex. Crim. App. 2009) (a lay juror is

· · not in a position to determine whether Xanax and Valium would have any effect on

Appellant's intoxication).

This Court has not addressed the issue of the sufficiency of evidence required to

establish a nexus between drug intoxication and credibility or competence. It has,

however, addressed this inquiry with regard to mental illness a:nd credibility. In State v.

Fichera, l 53 N.H. 588, 592, 598 (2006), the defendant sought to impeach the victim's

credibility at trial by cross-examining her about her bipolar diagnosis and certain

"delusional beliefs," asserting that a witness who holds delusional beliefs may not have

the ability accurately to perceive the important matters at issue at the trial. The defendant

based this proposed line of question on the victim's alleged diagnosis of bipolar disorder

and prescription for lithium made "at one point in the past," and over 300 pages of

documentation allegedly showing that the victim had "delusional',' beliefs. Id. at 600. He

did not, however, proffer any evidence that the victim had a mental illness or that her

delusionalbeliefs caused to her.lie or hallucinate or dramatically impaired her ability to

perceive and tell the truth. Id. at 601.

Adopting the rule held by a "[t]he overwhelming majority of courts," this Court

affirmed that the basis for impeachment cannot be "suggestion or innuendo with no

11

evidentiary foundation,;' and held th~t trial courts may prohibit cross-examination where

there is no nexus between the witness's claimed impairment and his or her ability to

perceive or remember the events to which she is testifying. Id. at 599. This Court •,_ .

applied this rule and held that that the trial court did not err by excluding as irrelevant

inquiry into the victim'~ mental health because the defendant could not link the victim's

' alleged bipolar diagnosis and history of delusional thinking to her ability to perceive and I .

remember the events at issue, implying that it would be improper for the jury to simply

conclude that the victim was not a credible witness withQut sufficient foundation. ·Id. at

600-01.

This Court has addressed the question of the sufficiency of evidence required to

establish the effects of drug intoxication on an individual. In State.v. Di/boy, 160 N.H.

135, 143 (2010), the central issue at trial was whether the defendant was under the

influence of drugs. The defendant argued the toxicology evidence was not relevant to

prove he was "under the influence" or suffering the effects of withdrawal because the )

amount of drugs found in the samples was too small. Id. at 142. Unlike here, however,

the defendant in Di/boy admitted twice to ingesting Kloriopin tablets on the afternoon at

issue. Id. at 140. He further admitted to "snort[ing] a couple bags" of heroin

approximately 48 hours prior to the time period at issue. Id. The defendant's blood and I .

urine were subs~quently tested, Which revealed a trace amount of Klonopin, trace

amounts of cocaine, and a quantifiable amount of a metabolite of cocaine in one sample

of the defendant's blood, and cocaine, a metabolite of cocaine, morphine, and Oxycodone

in the defendant's urine. Id. at 141. Moreover, the State's expert provided testimony to

establish the "physical and cognitive effects of these substances." 1d."

12

He stated that Kfono.pin is a central nervous system depressant that can - affect a person for l:!P to six hours, or longer if the person snorts it. He

stated that Klonopin can make a person feel "more tired, lethargic" and be . .

"less aware of [his] surroundings," and can slow a person's reaction time . . "It cari also impair coordination,_cognitive thinking, and vigilance, and · cause dizziness and blurredvisio'n. He further testified that symptoms of heroin withdrawal may begin within three to four hours after the last use: Within eight to twelv~ h9urs withdrawal may cause increased irritability and physiological changes in the body, including dry mouth, teary eyes, runny nose, .tremol"s, muscle cramps, chills, goose bumps, and leg cramps. He explainedthata_user will experience peak withdrawai symptoms within one to.three days after using heroin, afterwhich the symptoms decrease until up to te'n days. Withdrawal may impair a user's "decision-

. making process" and reaction time.-It may also produce ''risk taking behavior:" He opined that a·person who ingests heroin two to three times a week, and ~ho substitutes other drugs when un:able to get heroin, shows "an addictive profile.'; ' ·

Id at 141-42. Thus, the Court found that the toxicology report was relevant because

. .

there was a.sufficient basis for the jury to conclude that the defendant was intoxicated

· and that intoxication caused_ or contributed to the accident at issue. Id. at 143.

Other jurisdictions haye similarly required expert testimony to establish a nexus

-.. _ betWeen the presence of drugs in one's urine and intoxication. For example, in Layton,

the State introduced evidence that the defendant was under the influence of Xanax and

. ' -valium at the time of the accide~t at issue. Layton, 280 S.W.2d at 240. The defendant

argued that the evidence was not relevant without expert testimony to provide

foundation. Id. The Texas Court of Criminal Appeals agreed, holding that the State

- - -

.· fai_led to establish that the ingestion of the medications was relevant to.intoxication

- because it ~~d not present an expert witness to testify regarding what, if any, effect - . / .

prescription drugs that were taken more than 12 hours before the appellant's arrest might

have when combined with alcohol. Id. at 241-42.

13

. ' }

[. I

'\.

· Conversely,in Bekendam v. State, 441 S.W.3d 295, 302 (Tex. Crim. App,. 2014),

·the State presented expert testimony related to the amount of the drug detected in the

blood and tl:ie half-life of the drug in the human body, from which the expert was able to

determine t.he time ofingestion. Id. The expert also testi~ed to how the drug was

metabolized and the effect the drug ~ould have on the central nervous system. Ii

Unlike in Layton, the evidence related to the cocaine in defendant's blood sample was not

left to the interpretation ·of lay jurors and was therefore relevant. Id.

This case is like Fichera and Layton and distinguishable from Di/boy and

Bekendam,. Ev.en ifthe defendant had been permitted to ask Clay if he used cocaine on

· the night in que.stion and Clay said yes, Clay's response would not be relevant unless the

· defendant had some other evidence that use of cocaine affected Clay's competence as a

· witness. See, e.g., Besk, 138 N.H. at 415 ("Without such a nexus, the allegation lacks

relevance and is inadmissible under New Hampshire Rule of Evidence 402."). The

defense conceded thatthey did not have any such evidence. T 314-15. Without it, it

would be improper for,thejury to assume that cocaine use affects one's memory and

· perceptions, because knowledge of the· physiological effects of illicit substances are

outside the comt11on ·experience and knowledge oflay jurors. See Pedeferri, 163 Cal.

Rptr. 3d at 68; Patterson, 1992 Ohio App. LEXIS 138, at* 11; Layton, 280 S.W.3d at

241-A2. Moreover, permitting the jury to draw such a conclusion in this case would be

especially improper giveri Dr. ·oaeta's testimony that the opposite may in fact be true- .

that cocaine use can yield feelings of wakefulness and alertness, an.d clear the user's,

thoughts. A43. Without expert testimony establishing nexus, 'the trial court properly ' '

found that there was no ground upon which the jury could have reasonably concluded

14

__ that Clay's use of cocaine could have affected his memory and perception. Thus, the trial

court properly determined that inquiry into Clay's use of cocaine was irrelevant.

. The defendant attempts to avoid the requirement of establishing a nexus, claiming , . . . .

that no one disputed that intoxication by marijuana and cocaine could impair perception.

DB 16~ This is incorrect. Thetrial court disagreed, stating that the defense needed

someone-to link the use of cocaine to memory impairments and that it would be "patently

improper" for the jury .to conclude a link existed without such testimony. T 316, 317.

This was the case because the trial court did not know "if these jurors have any expertise

with alcohol and cocaine." T 316. Based on this misstatement; the defendant invites this . i

Court to adopt the analysis from Lyba v. State, 583 A.2d 1033 (Md. 1991), in which the

Court of Appeals of Maryland found that the trial court committed reversible error by

·prohibiting the defendant from cross-exarpining an eyewitness about whether she had

consumed any narcotics or alcohol on the day in question. Id. at568, 571. But this Court

should reject this invitation because the holding in Lyba is based on an assumption with

which the trial court squarely disagreed: "[i]t is common knowledge that the quantity of

alcohol and/or drugs consumed will affect one's ability to see, to hear, and, generally, to

perceive what is occurring." Id. at 570. Thus,.if this Court finds that the trial court

properly exercised its discretion and determined that the defendant was required to

produced sufficient evidence upon which a jury could base a finding that cocaine affects /

. credibility, the rationale in Lyba is inapposite.

The defendant next contends that inquiry into Clay's drug use was relevant

because it tended to show that he acted aggressively on the night in question and used

"great fore~" when he punched Rice. DB 18. This suggestion too rests c;m facts that the

15

proffered evidence could not establish. The defendant's expert did not and could not

testify thatthe cocaine in Clay's system caused increased aggression or strength because

he did not know when Clay ingested cocaine or how much was in his system during his

fight with Rice; A34, A43. While Dr. Gaeta testified that Clay must have had at least

300 nanograrns per milliliter of cocaine in his system to yield a positive result on his

urine test, he did not testify that trace ~mounts of cocaine could and did cause

aggressiveness,in this case. A34; A43. Instead, Dr. Gaeta only testified generally that in I

his practice, he has seen "cocaine abuse" cause a range of behaviors, including

aggression; wakefulness, and alertness. A43 ("[Cocaine is] a stimulant; So the ones I

tend to see in my practice are associated with aggression, pain control or alleviation of

pain, wakefulness, alertness. Some people say it clears their thoughts."). But such

general testimony is insufficient to enable the jury to conclude that the cocaine affected

the Clay's behavior in any·way.

The Michigan Cour~ of Appeals addressed a similar relevance question in People

v. Phillips, ,346N.W.2d 344, 348 (Mich; Ct. App. 1984), and found that the evidence at

issue was properly excluded. In that case, the defendant was charged with negligently

causing the victim's death by either operating his motor vehicle at an excessive speed or

by operating it while intoxicated. Id. at 346. Defendant argued that the victim's

negligent opera!ion of his bicycle may have caused the accident and sought to offer

evidence that the victim was high at the time of the accident. Id. This proffered evidence

included testimony that the victim had marijuana on his person at the time that he died,

testimony from an individual who saw the victim smoking marijuana on the evening of

the accident, as well as~ a separate statement from that same individual that he observed

16

the victim sharing as many as three marijuana "joints" with three or more other people

from 6 p.m. to 7 p.m. on the evening of the accident, as well as two to three more joints

from 8 p.m. to 8:30 p.m. ·Id. Despite this, the court affirmed the trial court's de9ision to

exclude this evidence because

there was no testimony indicating the strength of the marijuana allegedly 1 ingested by the victim. Nor was there any testimony as to the· amount of the active,ingredient of marijuana in the victim's bloodstream or testimony indicating that the victim showed signs of intoxication. Without these pieces of information, the jury would have been, as was the toxicologist, unable to make an accu.rate assessment of whether the victim was intoxicated.from marijuana use and whether his ability to operate the bicycle' was impaired. Thus, the proffered testimony relatin,g to marijuana use had little probative value on the question of whether the decedent operated his bicycle with due care.

Id. at 347 (emphasis added). Without such evidence, the court held that the proffered

evidence had "little probative value." Id.

Here, the only expert involved in the case could not opine on whether Clay was

under the influence of cocaine and thereby aggressive on the night in question. Thus,

there was no ground on which the jury could base any reasonable conclusion as to how

· much, if at all~ the cocaine affected Clay's level of aggression. It was therefore not ai;i

unsustainable exercise of the trial court's discretion to conclude that the evidence was not

relevant.

The defendant argues that the trial· court erred by requiring "too great a

foundational showing" to establish the relevance of questions about Clay's drug use .. DB

13. He contends that the trial court should have penrtitted him to cross-examine Clay

regarding his drug use because he had a "good faith basis~' forasking Clay whether he ' .

used drugs on the night in question. DB 13. Ifhe had been permitted to do so, he would

17

have been able to satisfy the relevancy requirement if Clay had admitte~ to using drugs

on the day in question. DB 1_4. These arguments fail for three reasons.

First, as a preliminary. matter, the defendant's· contention that he should have been

permitted to cross-examine Clay regarding his drug use without demonstrating a nexus

because "the relevance inquiry into Clay's use of drugs·depended on his answer to the ~- . .

question" is wrong. DB 14. Relevance is a threshold inquiry that must be satisfied

before a party may engage in a particular line of questioning. See Staples, .120 N.H. at . '

· 283 (relevance for impeachment pµrpos~s turns on the nexus between the proffered

conduct and.the effect that it·has on the witness's ability and_ willingness to tell the truth);

Besk, 138 N .H. at 415 ("Without such a nexus, the allegation lacks relevance and is

inadmissible under New H,ampshire Rule of Evidence 402."). The defendant's position

that he should have been permitted to engage in questioning prior to establishing

relevance is inconsistent with New Hampshire law.

Second, the defendant's argument ignores the fact that a jury cannot presume a

nexus between drug use and decreased credibility or increased aggressiveness. Even if

the defendant~hada good faith basis to inquire into Clay's' cocaine use, the inquiry would

. not be relevant without establishing nexus. The jury could not have found that Clay's use

of cocaine compromised his memory or ability to perceive, or caused increased

aggression because'the defendant did not proffer any evidence on this point.

Third, the cases that the defendant cites to support the proposition that inquiry

into Clay's dr:µg use was admissible so long as he had a "good faith basis" to ask the

question, do not stand for'this proposition. In State v. Palermo, 129 A.2d 1020, 1024

(N.H. 2015), the State wanted to admit Facebook messages that stated, "Hey, how do you

- 18

·crack aFm.d? I'm gofng to kill someone in a minute"; "I almost did the landlord's wife.

Her husband walked in''; '"sh.e's trying to play hard to get, Bro, I'm gonna gef mines";

"He caine homeJiom work and walked right in"; "Kids want iPad ... don't got much. . .

time left ... ; Give her my pumb~t ... tell to call"; and "I'm headed to Gloucester today,

Tll _be back later; love you, Bro.'' The Court, however, only addressed the question of

· ,whether the State properly a~thenticated the messages; it did not reach the separate

ques~ion at issue here: whether the evidence was relevant. Id. at 1025 ("[T]he contested

·evidence, if othei-Wise rel~vant, should be admitted once a prima facie .case has been

made on the issue of authentication."); see State v. Stangle, 166 N.H. 407, 409 (2014)

. ("In~tead,_[t]he contested evidence, if otherwise relevant, should be admitted once a

prima faci~ case has been made on the issue of authentication.';).

The.same is true in State v. Shepherd, 159 N.H. 163 (2009). That case addressed

the issue of whether.the State withheld favorable and m~terial evidence in violation of the

Brady and Laurie ~octrines, not the ~dmissibility of evidence: Id. at 170-71. ·This Court

c~refully differentiated between the inquiries of whether evidence was "favorable," and

·therefore subject to pretrial discovery, and the relevance and admissibility of that

, . · evidence. Id.. ("Our inquiry in this .due process analysis is not whether the evidence is

admissible, but instead whether it is favorable - i.e., whether it would have helped the

·defense in the preparation or presentation .of its case."). This Court was clear that a

finding offavorability did not guarantee the evidence would be admissible at trial. Id. '

('~Althoughthe defendant may nof have been able to introduce evidence ofE.T.'s mental

health history at trial, the evidence is sufficiently favorable to require disclosure."):·

19

Moreover, the Court only referenced the "good faith" standard in Sheppard once

the burden shifted to the State to prov'e beyond a reasonable doubt that the undisclosed I

evidence would not have affected the verdict. Id. at 171-72. The Court held that the

State could not.sustain this burden because its case hinged on the victim's credibility and

' "[p ]rovided the defendant had the evidence of E.T. 's mental health history, he would

have had a good faith basis to ask her if she is the type of person who has poor judgment

or makes impulsive decisions." Id. at 172 (emphasis added); see Fichera, 153 N.H. at

592, 598 (establishing requisite foundation for impeachment based on mental health) . .

Because the evidence of Clay's cocaine use was irrelevant, the trial court properly

found that it was inadmissible. NH R. Ev. 402. As the trial court ruled, however, even

if the evidence was relevant, it would also have been inadmissible under Rule 403

becaus~ ifs probative value was "substantially outweighed by the danger of unfair

prejudice and jury confusion." T 355.

Relevant evide~ce "may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudke, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence." State v. Perri, 164 N.H. 400, 408 (2012). "Evidence is unfairly . ,

prdjudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its

sense of horror, provoke its instinct to punish, or trigger other mainsprings of human

action that may c~use a jury to base its decision upon something other than the

established propositions in the case." Id.

Here, ·evenifthe evidence of Clay's drug use was relevant, its probati~e value

would have been minimal and would have been substantially ouhveighed by the danger

20

of unfair prejudice. While asserting that inquiry into Clay's drug use was necessary to

impeach his credibility and competence as a witness, the defendant overlooks the fact that

Clay's testimony is1argely consistent with that of other witnesses, including the

defendant's. DB 16-17. There is no dispute that Clay started the fight, repeatedly

punched Rice, punched Vasquez and knocked him unconscious, and was on the ground

on top of Rice when the defendant shot him. T 327, 329-30; 331; 353. While agreeing

with the majority of Clay's testimony, the defendant nevertheless seeks to impeach

Clay's ability to remember the one point on which they disagree-how hard Ciay

punched Rice just before.the defendant fired-based on his purported use of drugs on the

night in question. The jury was already unpersuaded by the defendant's attempt to

impeach Clay on this point based on his admitted alcohol consumption. T 353.

Any probative value of such evidence would have been substantially outweighed

by the d~ger of unfair prejudice. By potentially making the jury aware that Clay

ingested cocaine on the night in question, there is a substantial riskthat the jury could

have rejected Clay's testimony to the extent it conflicted with the defendant's simply

because. Clay is a drug user and therefore an unsavory, unsympathetic, or.bad person.

See, e.g., United States v~ Kizer, 569 F.2d 504, 506 (9th Cir. 1978) ("there is widespread

recognition that drug addiction is an issue fraught with potential prejudice"); State v . .

Taylor, 593 S.E.2d 645, 650 (W. Va. 2004) ("the prejudicial nature of the evidence of

drug use is particularly self-evident and overwhelming" (quotation and brackets 1 ~ .

omitted)); accord State v. D 'Alessio, 848 A.2d 1118, 1125 (R.I. 2004) (such evidence

may "generate a hostility based on the general odium of narcotics use" (quotation

omitted)). This pr:oposed inquiry is especially prejudicial given that the defendant did not

21

" l\

have competent evidence that ingesting cocaine would have any effect of Clay's memory,

ability to perceive, or aggressiveness. Thus, the only ground upon which the jury could

have afforded weight to this line of questioning was an improper one. Thus, there was no

unsustainable exercise of discretion.

Moreover, inquiry into Clay's drug use would only have yielded evidence that

,was needlessly cumulative. The defendant claims thathe needed to cross-examine Clay '

about his drug use so that he could impeach Clay's testimony that he was "not looking for

a fight," did not intend to hurt anyone during the fight, and did not deliver punches with

the maximum force of which he was capable, and to demonstrate that Clay was

intoxicated and thereby acting aggressively. DB 17. However, the evidence presented at

trial, including Clay's own testimony, already does this. Clay admitted that he started the

fight with Rice. T 327; seeT 390 (Clay "c[a]me flying towards my direction and just

started hitting people"). Thus, there was a sufficient basis for the jury to .disbelieve

Clay's testimony that he was not looking for a fight. Clay also admitted that he

repeatedly punched the defendant, Rice, and Vasquez, and that he punched Vasquez hard

en,eugh to knock him off his feet. T 329 ("I believe I hit the gentleman who tried to hit

me ... He went down. I saw him fall to the ground.");330 (Clay admitted that he hit the

defendant, but did not see what happened to him after). Multiple other witnesses,

including the defendant, corroborated this testimony. T 88 (Garon testified that Clay hit

Vasquez and caused him to "mannequin" on the floor); 390 (Ashley Francis testified that

. Clay struck Vasquez and caused him to fall to the floor); 415 (the defendant testified that ·

Clay hit him twice and that he was "levelled [sic] off[his] feet."). Finally, Clay

corroborated the defendant's testimony that he was on top of Rice on the floor at the time

22

he was shot, which the defendant uses to support his belief that Clay was exerting deadly ,.

force when he was shot. T 331; ·353; see DB 24. Thus, there was a sufficient basis upon

which the jury could reject Clay's testimony that he did not intend to hurt anyone and to

conclude that he was acting aggressively. There was also video footage of the fight and.

shooting at issue on appeal, which the jury was capable of viewing and interpreting for

itself. T 374. Thus, the court's ruling was correct under Rule 403.

23

II. THE TRIAL COURT'S JURY INSTRUCTION DID NOT CONSTITUTE AN UNSUSTAINABLE EXERCISE OF DISCRETION AND THE JURY'S VERDICT SHOULD BE AFFIRMED ..

The defendant next argues that the trial court erred by declining to instruct the . .

jury that "the act of producing or displaying a weapon shall constitute non-deadly force."

DB 21. This argument should berejected.

This Court "will review the trial court's decision ·not to give a jury instruction for

an unsustainable exercise of discretion." State v Ayer, 154 N.H. 500, 514 (2006)

(quotations omitted). "To prevail under this standard, the defendant must demonstrate

that the trial court's decision was clearly untenable or unreasonable to the prejudice of his

case." State v. Kornbrekke, 156 N.H. 821, 824 (2008).

A defendant "is not entitled to have the court use the exact words of requested

instructions." State v. Crie, 154 N~H. 403, 406 (2006). "The purpose of the trial court's

charge is to state and explain to the jury, in clear and intelligible language, the rules of

law applicable to the case." State v. Johnson, 157 N.H. 404, 407 (2008) (citation

omitted). When reviewing jury instructions, this Court evaluates "allegations of error by

interpreting the disputed instructions in their entirety, as a reasonable juror ~ould have

understood them, and in light of all the evidence in the case." Id. This Court determines

if the jury instructions adequately and accurately explain each element of the offense and

reverses only if the instructions did not fairly cover the issues of law in the case. Id.

"Although the scope and wording of jury instructions is generally within the

som:1d discretionofthe trial court, the court must grant a defendant's requested jury

instruction on a specific defense if there is some evidence to support a rational finding in

favor of that defense." Ayer, 154 N.H. at 514 (quotation omitted). "By some. evidence,

24

- [this Court has] inean[t]-that there' must be more than a minutia or scintilla of evidence."

Id. (quotation omitted). "To be more than a scintilla, evidence canhot be vague,

?Onjectural, or the mere ·suspicion about the existence ofa fact, but must be real and of

suchquality as to induce;conviction/' State v. Larose, 157 N.H. 28, 33 (2008). "{I]n

reviewing the trial qourt;s refusal to provide arequested ... instruction [this Court will]

·. search the record for evidence supporting the defendant's request." State v. Chen, 148

N.H. 656, 569-70 (2002).

At trial, the defendant raised a self-defense theory under RSA 627:4, n (Supp.

2015), asserting. that his use of deadly force was justified by the principle of defense of

-others. T 4 79. RSA 627 :9, II (Supp. 2015) dyfines "deadly force" as:

any assault-or confinement.which the actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury. Purposely firing a firearm capable of causing serious ,bodily injury or death in the direction of another person or at a vehicle in whiCh another is believed to be constitutes deadly force.

· The trial court, as· is relevant here, properly instructed the jury on the

complete statutory definition.of '.'deadly force," stating:

Deadly force means. any assault or confinement which the after [sic] ' . ~ . .

commits with the purpose of causing, or which he knows to create·a substantial risk of causing, death or serious bodily injury. Purposely firing a firearm capable of causing serious bodily harm or death in the direction of another person, or.atavehicle in which another is believed tcPbe, constitutes deadly force. ·

T 521. The defendant argues the trial coUrt committed reversible error, however, by

failing to instruct0

thejury·on the definition of non-deadly force because this definition

would have "offered useful guidance to the jury." DB 25. This argument .first fails

because it is assumes ari interpretation of RSA 627:9, IV that is contrary to that applied

25

I

- I

by the trial court and that has not been briefed. Regardless, however, of the proper

interpretation of the second sentence of RSA 627:9, IV, the trial court did not commit

reversible error by declining to instruct the jury on this sentence because this, Court has

already concluded that the given instruction sufficiently provided a basis for the jury to

finQ. that pointing a gun at someone without discharging it constituted the use of non-

deadly force.

·The trial court declined to instruct the jury that the "act of producing or displaying

a weapon shall constitute non-deadly force" because it interpreted RSA 627:9, IV and

determined that it "applies to a situation where it's merely brandishing a weapon and not

an integral part of the crime that the State has argued here." RSA 627:9, IV; T 512.

·While the defendant's brief addresses the trial court's ultimate decision not to include the

. second sentence of RSA 627:9, IV in its charge to the jury, it does not address the

foundation for this d~cision-the trial court's interpretation of RSA .627:9, IV. This

de_ficiency is fatal to theidefendant's argument on appeal. For the defendant's argument

to be viable, it must first be the case that the legislature intended RSA 627:9, IV to apply .

in circlimstances like this case, where an individual "produc[ es] or display[ s ]" a weapon

during an ongoing physical.fight. See T 512. This is a question of statutory

interpretation. The defendant does not address this foundational argument in his brief,

and instead simply assumes that RSA 627:9, IV applies in such circumstances.· DB 24-

. . .

· 26. However, the defendant is required to raise and brief this issue, and his failure to do

so constitutes a waiver of that argument. See, e.g., Aubert v. Aubert, 129 N.H.422, 428

. (1987) ("Arguments not briefed are waived on appeal."). ~ecause the proper

interpretation of RSA 627:9, IV is not before this Court, it cannot reach the ultimate

26

question raised by the defendant, namely, whether the trial· court commi.tted reversible

error by failing to instruct the jury on RSA 627:9, IV. The trial court's ruling should

therefore be affirmed.

Even if, however, the defendant had briefed and ultimately prevailed on the issue_

of the proper interpretation of the second sentence of RSA 627:9, IV, the trial court still ' '

did not commit reversible error by declining to instruct the jury on this sentence because

this Court has already concluded that the given instruction provided a sufficient basis for

the jury to find tha(pointihg a gun at someone without discharging it constitutes non-

deadly force. In State v. Gingras, 162 N.H. 633, 635-36 (2011), the defendant was

charged with reckless conduct after he pointed his gun at another man's chest and

threatened to shoot him. The defendant contended that he did so in self-defense. Id. at

637. At trial, the court failed to give the complete definition of "deadly force" and

limited its instruction to the first sentence of RSA 627:9, II. Id. ·It omitted the. secm1d

sentence because there was no evidence that the defendant had fired lµs gun. Id. at 638.

This Court held that the trial court's omission was reversible error, noting that the second

sentence of RSA 627:9, II illuminated the distinction between deadly and non-deadly

force "by indicating that discharging a firearm in the direction of another person or at a

vehicle in which a person is believed to be constitutes deadly force." Id. at 639. This

Court reasoned that "[i]f the jury had been given the full definition of deadly force,

including the second sentence of RSA 627:9, II, it could well have found that, ifthe

legislature deemed it necessary to include a specific provision dealing with the firing of a

gun at another person or a vehicle .in order to capture such conduct within the ambit of

deadly force, then the defendant's conduct of merely pointing his gun at [someone]

27

without discharging it constituted the use of non-deadly force." Id. at 639. Because the

jury did not know about the second sentence of RSA 627:9, II, the Court concluded that

"there [wa]s a signiV.cantly greater likelihood that the jury may have determined thatthe

defendant's act of pointing his gun at [someone] did constitute the use of deadly force."

Id. at 639-40. \

In the current case, the trial court properly instructed the jury on both sentences of

RSA 627:9, II. T 521. Accordingly, under Gingras, the jury could have found that the

defendant's initial conduct short of firing a gun did not constitute deadly force and that

the defendant did not use d~adly force-firing his gun-until after he saw "Clay ...

r straddling Raheem, punching him as he lay on the floor." DB 24; see Gingras, 162N.H.

at639. Therefore, the trial court's decision not to instruct the jury that "the act of

producing or displaying a weapon shall constitute non-deadly force" was not "clearly

untenable or unreasonable to the prejudice of [the defendant's] case." Kornbrekke, 156

N.H. at 824. The defendanfs conviction should be upheld.

)

28

CONCLUSION

For the foregoing reasons, the State respectfully requests that this Honorable

Court affirm the judgment below.

The State requests fifteen minutes of oral argillnent before a full panel.

April 19, 2016

Respectfully submitted,

THE STATE OF NEW HAMPSHIRE

By its attorneys,

Joseph A. Foster Attorney General

. Lahey . 20108

Assist ttorney General 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3650

I hereby certify that two copies of the foregoing were mailed this day, postage

prepaid, to Christopher M. Johnson, counsel ofrecord.

29