THE STATE OF NEW HAMPSHIRE SUPREME COURT

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. Dale Collinge, the court on November 7, 2014, issued the following order: Having considered the briefs and oral arguments of the parties, the court concludes that a formal written opinion is unnecessary in the case. The defendant, Dale Collinge, appeals his conviction by a jury of reckless manslaughter. See RSA 630:2, I(b) (2007). On appeal, he argues that the Superior Court (McNamara, J.) erroneously overruled his objections to a demonstration the prosecutor performed and to comments the prosecutor made during closing argument. We affirm. The jury could have found the following facts. The defendant and the victim had known each other for approximately twenty years. When the defendant killed the victim in November 2011, they had been romantically involved for approximately two years. They lived together in an apartment in Pembroke, which was owned by Patrick and Madeline St. Gelais, who also lived in the building. On November 13, 2011, the St. Gelaises heard someone pounding on their door. They opened their door to find the defendant, who was frantic, yelling that someone should call 911 because the victim had been shot. Madeline went to the defendant s apartment where she saw the victim on the floor with blood around her head. When Patrick arrived at the defendant s apartment, he saw the defendant hugging the victim, picking her up, squeezing her, and saying[,] Well, how could I have done this? How could I I know better. I know better than this. Shortly thereafter, the Pembroke police arrived on the scene. They saw the defendant leaning over the victim whose head was bleeding and who appeared to be dead. The defendant, who was visibly upset and crying, agreed to accompany the officers to the police station to talk further. There, after voluntarily waiving his Miranda rights, he spoke to two state police troopers about the events leading to the victim s death, and his interview with the police was videotaped. See Miranda v. Arizona, 384 U.S. 436 (1966). One of the first things that he told the troopers was that he f[ ]ng murdered [his] girlfriend. The defendant explained that, before the shooting occurred, he and the victim had been drinking. When the defendant came home that evening, the victim was talking on the telephone. The defendant said that when she hung up the telephone, she started flipping out about [her daughter],... flipping [out] about her ex-husband, and... screaming,... I

2 just want to die, I want to die[,] I m going to take all these pills. The defendant said that approximately four months earlier, the victim had tried to commit suicide by ingesting approximately 45 Valiums or... Xanax with alcohol. The defendant said that the next thing [he knew], the victim was facing him, pointing her rifle at him. She pulled the trigger, and the defendant heard a click. The defendant grabbed the rifle and said, You want to play guns? He then pointed the rifle at the victim, pull[ed] back the... bolt, push[ed] it forward, and pulled the... trigger, killing her. The defendant told the troopers that [a]ll [he] meant to do [was] put the same scare into her that she [put] into [him]. He explained that this was how [he d] always handled [the victim], you know, You want to twist my thumb, here I ll twist your thumb, how s it feel? You want to bite my ear I ll bite your ear, how s it feel? You want to pull the trigger at me I ll pull the trigger at you. He did not know that the rifle was loaded. The defendant told the troopers that although the rifle belonged to the victim, he had recently hunted with it. He told them: I m as familiar with that rifle as I am my.270. He also told the troopers that he collected rifles, which he intended to be collectibles for [his] kids. At several points during the interview, the defendant took responsibility for his actions. He told the troopers: But what happened tonight, guys, was an absolute stupid move and I fully accept responsibility for my actions because I know better. I made a friggin terrible terrible... mistake, you know. And I m willing to take the punishment for whatever comes with it, because I know better, you know. I should have pointed it at her... toe and shot her toe off. I didn t even know there was [a bullet] in there. I know better. I know better. That s why I know I deserve whatever I m (inaudible).... He also told them that there s no excuse for what he did and that he knew that he was going to pay the... ultimate fine for it. In his words: I took a life. I took a human s life. Not just any human, I took my best friend, my girlfriend.... Later he said: I pulled the God damn trigger[.] I made a mistake, you know. Mistakes come with consequences. He also said: I ll take full consequences for my actions. I m the idiot who pulled that f[ ]ing hammer. The defendant told the troopers the punishment he was likely to receive was what he deserve[d] for the simple reason that [he knew] so much better because [he had] taught [his] own children [that]... guns kill. As he told the troopers at the beginning of the interview: Absolutely everything that I grew 2

3 up to and everything that I believe in and everything I ve taught my children backfired on me tonight. At the end of the interview, the defendant was arrested. After his arrest, the defendant reiterated: You know I got many deer with that rifle. If I was going to shoot somebody it would have been with that rifle. What happened tonight I honestly didn t even think there d be a damn bullet in it. She just scared me and I thought she was going through one of her episodes. I f[ ]ed up, boys. You know, I tried to do the right thing and another thing happened. I take full responsibility for my actions. Maybe I ll probably do the rest of my life in prison for trying to do the right thing too, you know. After his arrest, he voluntarily took a breathalyzer test, which demonstrated that, five and one-half hours after the shooting incident, his blood alcohol content was.093. The defendant was indicted for second degree murder. See RSA 630:1-b (2007). Although the defendant did not testify at trial, the jury viewed his videotaped interview with the state troopers. Immediately before closing arguments, defense counsel informed the court that she intended to argue that the jury should find the defendant guilty of the lesser-included offense of negligent homicide. See RSA 630:3 (2007). After determining that the defendant had knowingly, intelligently, and voluntarily waived his constitutional rights with regard to that offense, the trial court allowed defense counsel to so argue. See State v. Anaya, 134 N.H. 346, (1991). In her closing argument, defense counsel argued that the defendant was not guilty of either second degree murder or the lesser-included offense of reckless manslaughter because [h]e did not act recklessly that night and could not have foreseen this tragic event. She maintained that because [h]e was operating at such a high degree of stress and terror, the jury could not find that he consciously disregarded a known risk, as required to convict him for either second degree murder or reckless manslaughter. She argued that a negligent homicide verdict would hold[ ] [the defendant] responsible for killing [the victim], a responsibility he didn t deny on November 13th, Almost a responsibility he wanted, because he felt so bad. This holds him responsible, but no more responsible than the facts support.... Defense counsel ended her closing argument by telling the jury that the only verdict consistent with justice, consistent with fairness, and consistent with the law and oath [the jurors] swore to uphold, is that [the defendant] is guilty of negligent homicide, and only negligent homicide. 3

4 The State began its closing by showing the jury a photograph of the victim and pointing a gun at that photograph. Defense counsel immediately objected, arguing that the photograph was inflammatory and emotional and that it was highly inappropriate for the prosecutor to point a gun at the photograph. Although defense counsel requested that the court issue a curative instruction, the court overruled the objection and denied the request. Counsel then argued that a curative instruction would be insufficient to cure the prejudice and moved for a mistrial because [the demonstration was] highly prejudicial and inflammatory. The trial court denied the motion, finding as a fact that this demonstration, even if improper, is not something that would so [a]ffect the fairness of the trial as to require a mistrial. The State continued its closing argument by contending that the crime the defendant committed was no accident. The State explained: You know, what he did can be characterized a lot of ways, tragic, senseless, rash, extremely unsafe, unreasonable, but accident, accident? No way. An accident is stubbing your toe, an accident is slipping on the ice, an[ ] accident is not taking what you know to be a dangerous, deadly weapon, a weapon that you re experienced with, and a weapon that you know works, putting it in a firing position, and then deliberately pulling the trigger on it at another human being, who you re mad at, from the distance in which you wouldn t miss. None of that was accident. It was all deliberately done by him, and that s why what he did is murder, and not accident. The State argued that the defendant knew just how unreasonable, how dangerous, and how reckless those actions were back in November of 2011, and that the jury knew this to be so from watching the video and hearing the testimony of the witnesses. However, the State also told the jury that it did not need the Defendant, himself, to acknowledge how extremely dangerous and reckless, and indifferent to the safety of others, his own acts were, because the jury was entitled to rely upon its own common sense. As the State explained: [Y]ou re reasonable people, you re law-abiding people, would any of you take a gun, not knowing whether it s loaded or not, operate the lever so that it s in a position to fire, aim it [at] any part of a another human being, standing just feet away, and pull that trigger? That s what this case is about. The State contrasted what the case is about with what the trial has been about, telling the jury that the trial was about the defendant trying to avoid the just and fair consequences of his own extremely reckless act[s], now refusing to accept responsibility for the life that he took. The State contended that the defendant accepted responsibility back when he killed the victim, as demonstrated by the videotaped interview. 4

5 Defense counsel objected to the State s contention that the trial was about the defendant refusing to accept responsibility. Defense counsel argued that this contention violated the defendant s constitutional right not to incriminate himself. She requested that the court issue an immediate curative instruction that informed the jury that the prosecutor s comment was improper and that the defendant had no obligation to present evidence or to testify. The trial court overruled the defendant s objection and declined the request for a curative instruction, reasoning that the comment was not improper in the context of this case, in light of the fact that the Defendant has..., after a waiver, stated that he accepts responsibility for a negligent homicide, but not second degree homicide. Continuing its closing argument, the State, on numerous occasions, contrasted the defendant s statements in the videotaped interview with his position at trial that the shooting was merely accidental. After the closing arguments were concluded, the trial court included the following in its general jury instructions: Now the Defendant has an absolute right not to take the witness stand and testify. The fact that the Defendant did not testify in this case, may not be considered by you in any way in deciding this case. The State has the burden of proving guilt beyond a reasonable doubt. The Defendant has no obligation to present evidence or prove that he is innocent..... Under our Constitutions, all Defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The burden of proving guilt is entirely on the State, the Defendant does not have to prove his innocence. The Defendant enters this courtroom as an innocent person, and you must consider him to be an innocent person until the State convinces you beyond a reasonable doubt that he is guilty of every element of the alleged offense. The jury acquitted the defendant of second degree murder, but convicted him of reckless manslaughter. The trial court sentenced him to ten-to-twenty years in prison, with two years of the minimum and two years of the maximum suspended for five years after his release. This appeal followed. The defendant argues that the trial court committed reversible error when it allowed the prosecutor, during his closing argument, to point a gun at the victim s photograph and to argue that, although the defendant accepted responsibility for the victim s murder in his police interview, he did not do so at trial. The State argues that pointing the gun at the photograph of the victim was proper advocacy, and that the prosecutor s references to the defendant s 5

6 not accepting responsibility were a proper response to the defendant s theory of the case and his closing argument, in which the defendant asserted that he had accepted responsibility for his actions but that his pretrial statement to the police did not amount to an admission that he acted recklessly. Because the trial court is in the best position to gauge any prejudicial effect that the prosecutor s closing may have had on the jury, we review its decision for an unsustainable exercise of discretion. State v. Mussey, 153 N.H. 272, 277 (2006). We need not decide whether the prosecutor s closing argument was improper because, even if we assume that it was, we conclude that the defendant has failed to show that the error was prejudicial. In considering whether the prosecutor s demonstration and/or his remarks require reversal of the verdict, we balance the following factors: (1) whether the prosecutor s assumed misconduct was deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether any prejudice surviving the court s instruction likely could have affected the outcome of the case. Id. at 280. The State concedes that the first factor weighs in favor of the defendant because the challenged remarks and conduct were not isolated. The State further concedes that the second factor also favors the defendant because the trial court did not issue a specific, detailed curative instruction. See id. at 281 (concluding that trial court s general instruction was insufficient to cure prejudice from prosecutor s remark because it did not signal[ ] to the jury that the court disapproved of the prosecutor s statement ). Accordingly, we focus our analysis upon the third factor whether any prejudice likely affected the outcome of the case. See id. at 280. Here, we conclude that any prejudice from the prosecutor s demonstration and/or his comments was minimal and that neither the demonstration nor the remarks affected the outcome of this case. See id. at 281. To convict the defendant of reckless manslaughter, the jury had to find, beyond a reasonable doubt, that the defendant recklessly caused the victim s death. RSA 630:2, I(b). The trial court instructed the jury that to find that the defendant acted recklessly, it had to find that he was aware of and consciously disregard[ed] a substantial and unjustifiable risk that his conduct would cause a certain result, which meant that the risk was of such a nature and degree, that concerning the circumstances known to him, it[s] disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in a situation. See RSA 626:2, II(c) (2007). The jury was also instructed that if voluntary intoxication made the Defendant unaware that his conduct created a substantial and unjustifiable risk, he, nonetheless, acted recklessly. See id. The evidence that the defendant acted recklessly when he killed the victim was overwhelming. The jury watched the video of the defendant s 6

7 interview with the police in which he confessed to intentionally pointing a rifle at the victim s head and pulling the trigger, causing her immediate death. The jury heard the defendant admit that he collected rifles and was, thus, familiar with them in general, and with the rifle that killed the victim, in particular. The jury heard the defendant confess that he pointed the rifle at the victim s head, pull[ed] back the... bolt, push[ed] it forward, and pulled the trigger, to teach the victim a lesson, to get back at her for having pointed the rifle at him. The jury heard him repeatedly admit that when he pointed the rifle at the victim, he asked her: You want to play guns? Moreover, on multiple occasions, the jury heard the defendant concede in his videotaped interview that he knew better. The jury also heard evidence that the defendant was intoxicated when he pointed the rifle at the victim s head, pulled back the bolt, pushed it forward, and pulled the trigger. After weighing the third factor against the other two factors in our analysis, we are convinced that neither the prosecutor s demonstration nor his comments affected the outcome of this case. See Mussey, 153 N.H. at 281. Therefore, we conclude that the trial court did not commit reversible error by overruling the defendant s objections to the demonstration and the comments. Affirmed. DALIANIS, C.J., and HICKS, CONBOY, LYNN and BASSETT, JJ., concurred. Eileen Fox, Clerk 7