MEMORANDUM OF LAW IN LIEU OF BRIEF PURSUANT TO SUPREME COURT RULE 16(4)(b)

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No The State Of New Hampshire v. Marianne King MEMORANDUM OF LAW IN LIEU OF BRIEF PURSUANT TO SUPREME COURT RULE 16(4)(b) STATEMENT OF THE CASE The defendant, Marianne King, was indicted on one count theft by unauthorized taking contrary to RSA 637:3 (2014). DB Al. 1 Following a jury trial in the Carroll County Superior Court she was convicted as charged. T The trial court (Garfunkel, J.) sentenced the defendant to twelve months in jail with six months suspended for two years. DB A2-A3. She was ordered to pay restitution of $49, This appeal followed. STATEMENT OF THE FACTS A. The State's Case For approximately 20 years, the defendant worked for Ossipee Concerned Citizen ("OCC") as the director of the childcare center. Tl The OCC is a non-profit organization providing human services such as senior programs, Meals on Wheels, and a 1 Citations to the record are as follows: "DB" refers to the defendant's brief; "DB A" refers to the appendix to the defendant's brief; "Tl" refers to the trial transcript on June 24, 2014; "T2" refers to the trial transcript on June 25, 2014; "T3" refers to the trial transcript on June 26, 2014;

2 -2- childcare center. Tl 25. As director of the childcare center, the defendant was responsible for, among other things, billing, which included collecting payments from the parents and then recording the payment collection in a receipt book and on a computer spreadsheet. Tl If she was not available, Ann Adjutant, a long time childcare center staff member, would collect the payments; however, the defendant would often make herself available after her scheduled hours to collect payments. Tl 37-38, When a parent paid, whether by cash or check, the parent received a handwritten receipt. T The receipt came from a book that had triplicate copies: the white copy went to the parent, the yellow copy went with the payment to the executive director of the OCC, and the pink copy remained in the receipt book. Tl The receipt book was kept in the childcare center office with the defendant. Id. The receipts were all pre-numbered in sequential order. T Pursuant to industry standard and internal policy, employees were required to retain all records for at least seven years. Tl 33; Tl 89; T The defendant was aware of that policy. Tl 34; Tl 89; T The yellow copy, along with the cash or check, was placed in an envelope within a binder for the executive director to pick up. T Donna Sargent was the executive director at the OCC. Tl She was responsible for "running the entire organization." Tl 25. From 2009 through September 2012, as part of her responsibilities, Sargent would collect childcare payments and receipts from the defendant a "couple times a month." Tl 30. Most of the payments received were in the form of checks but Sargent "occasionally" received cash in small amounts. Tl 30. Sargent would count the money received, make sure "the amounts on the receipt match[ ed] the amount of the money" collected, and then deposit the funds into the bank. Tl 30.

3 -3- In 2012, the OCC was struggling financially and was unable to meet the costs of the childcare center. Tl Sargent attributed this to declining enrollment. Id. As a result, the agency cut staff from other programs. Tl 35. The governing board of the OCC developed a committee to work with the defendant to focus on recruiting more children to the childcare center. Tl 35. At that time, the OCC also hired a financial manager, John Whittier, to assist with accounting and billing. Tl 35. The OCC determined that if Whittier assisted the defendant with billing, then the defendant would have more time to focus on recruiting. Tl 35. Sargent met with the defendant and informed her she would no longer be responsible for collecting payment from parents. Tl 36. At the meeting, the defendant agreed to "try" her new role. Tl 36. The next day, September 19, 2012, however, the defendant submitted a resignation letter to Sargent indicating she was resigning effective September 30, Tl 37; DB A26. For the next two weeks, the defendant continued to collect payments at the childcare center. Tl 37. Once the defendant's resignation was final, Ann Adjutant took over as director and started collecting payments from parents. Tl Ann would also meet with Whittier and he would use the payment information he received from her to generate a monthly report related to the childcare center's billing. T Sargent noticed of Ann's payment collection that, in addition to the regular payments submitted routinely when the defendant was collecting, there were two $100 bills each week, along with some other cash. Tl 38. In total, the center noticed that it was now regularly receiving cash payments each week from about four families. Tl 38. At the same time, Whittier "noticed a significant spike in the private fee income" for the childcare center, which he described as payments submitted by parents. T The OCC also collected fundraising income, donations, and subsidized childcare payments from the State. T2 107.

4 -4- Kim Bishop was among the families that paid regularly with cash. Tl She explained that she was a bank manager at TD Bank and enrolled her two children at the childcare center in September of 2010 through the end of the school year in T The OCC charged Bishop a total of $200 a week for childcare for her two children. T For her first few payments back in 2010, Bishop would write a check to the OCC. T In November of 2010, however, Bishop started paying in cash because the OCC was "taking too long" to cash her checks. T Bishop paid in cash from November 2010 until her children left the center in 2013, using two $100 bills. Tl 38-39, 171. Bishop specifically recalled paying the defendant in $100 bills and testified that she paid in cash"[a]bout 98% of the time." T Additionally, four other women testified that they regularly paid the defendant in cash. Amy Newbury, a mother of three children who attended the childcare center, paid in cash on all but two occasions. T She paid weekly, would hand the cash to the defendant, and "always" received a receipt from the defendant. T Another parent, Misty Rider, paid $200 in cash every other week to the defendant from 2011 through T Tineka Houle paid $250 each week, in cash, from 2008 through 2012 to the defendant. T And, lastly, Kayla Bean occasionally paid in cash in 2012 to the defendant. T After learning of these cash payments, the OCC staff reviewed its yellow-receipt records. Tl 43. They were unable to find yellow receipts from most of these cash transactions. Tl 43; T For example, in 2012, there were no yellow receipts for cash payments until September, the month the defendant resigned. T Then, beginning on September 4, 2012 through September 26, 2012, there were ten receipts for cash payments. T When the OCC searched the defendant's old office they were unable to locate the receipt books containing the pink copies. T Whittier called the defendant to inquire about the

5 -5- missing receipt books. T The defendant told him that she and her support staff had shredded them. T Whittier also noticed that there were two active receipt books and, when looking at the sequentially numbered receipts, noticed that there was a fifty-receipt gap between transactions dated September 19, 2012-the date of the defendant's resignation-and a transaction dated September 21, 2012, the date the second receipt book was activated. T The OCC also noticed that there were "some gaps" in the sequential order of the yellow receipts that the defendant had submitted to Sargent. Tl 44; T B. The Defendant's Case The defendant denied stealing from the OCC. T She also denied the claim that she returned to the center after hours "for the purpose of being available to take payments." T The defendant did not contest that she was the staff member who collected cash payments from parents "most of the time." T , She further acknowledged that "three to five" families regularly paid in cash from 2009 through T However, she insisted that she took "the yellow copy [of the receipt] with the money and put it into the envelope in the binder" for Sargent to pick up. T The defendant also admitted to shredding the pink copies of the receipts, claiming that she "assumed [the OCC] only needed two copies, and so [she] didn't think [there was] any harm in getting rid of the third copy." T She testified that the OCC did not have a policy about document retention. T In her closing argument, the defendant implied that Sargent, or another alternative suspect, was stealing the cash. T3 296 ("Between the time of taking in the money and money going to Donna Sargent, no one looked, no one was checking to see whether the money that was going to Donna was the money that should have been going to Donna.").

6 -6- ARGUMENT I. THE TRIAL COURT DID NOT ERR WHEN IT INSTRUCTED THE JURY ON DIRECT AND CIRCUMSTANTIAL EVIDENCE, USING THE MODEL JURY INSTRUCTION PRESCRIBED BY THIS COURT IN STATE v. GERMAIN "Whether a particular jury instruction is necessary, and the scope and wording of the instruction, are within the sound discretion of the trial court." State v. Noucas, 165 N.H. 146, 154 (2013). This Court reviews "the trial court's decision on these matters for an unsustainable exercise of discretion." State v. Dupont, 165 N.H. 698, 702 (2014). "When reviewing jury instructions, [the Court] evaluate[s] allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case." Noucas, 165 N.H. at 154. Thus, instructions "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." State v. Saunders, 164 N.H. 342, 352 (2012) (citation omitted). This Court determines "whether the jury instructions adequately and accurately explain each element of the offense and reverse[ s] only if the instructions did not fairly cover the issues oflaw in the case." Id. at 350. Here, the defendant contends that the Germain instruction "improperly constrained the jury's factual findings and credibility determinations." DB 12; see State v. Germain, 165 N.H. 350, (2013). The defendant takes specific issue with the below portion of the Germain instruction: You must understand, however, that the circumstantial evidence rule does not apply to direct evidence. Therefore, if there was a conflict between witnesses who offer direct evidence concerning certain facts, you must decide which witness to believe. For example, suppose there are two eye-witnesses to a crime and one testifies that the defendant committed the crime, and the other testifies the defendant did not commit the crime. This presents a situation where there is a conflict in the direct evidence. In this situation you, the jury, must decide

7 -7- which witness to believe and whether, based upon all of the evidence, the State has proven the defendant's guilt beyond a reasonable doubt. T3 336.; DB This instruction is an accurate statement of the law. See Germain, 165 N.H. at 361. In Germain, this Court exercised its supervisory authority and endorsed this language for use by the trial courts. See id.; T As such, the trial court, in response to the defendant's objection to the instruction, informed her that "the New Hampshire Supreme Court has instructed us to give this instruction exactly as it appears, and so this instruction will remain." T Thus, because this Court has explicitly prescribed this instruction, for the defendant to prevail on appeal-and demonstrate that the trial court unsustainably exercised its discretion-she must ask this Court to overrule Germain. She has failed, however, to set forth any reason, let alone a compelling reason, as to why this court should consider the four stare decisis factors to overrule its decision. See State v. Smith, 166 N.H. 40, 44 (2014) (setting forth the four factors: (1) whether rule has proven intolerable; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether related principles oflaw have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification). Instead, the defendant merely contends the instruction is erroneous. DB 8; DB 15 ("[T]he Germain instruction created an erroneous impression of the law regarding assessment of directly conflicting testimony."). Thus, simply put, the defendant is unable to meet her burden in demonstrating that the trial court unsustainably exercised its discretion by providing the Germain instruction. See Smith, 166 N.H. at (2014) ("Principled application of stare decisis requires a court to adhere... to... precedent in the absence of some special reason over and above the belief that a prior case was wrongly

8 -8- decided."); Ford v. NH Dep 't oftransp. 163 N.H. 284, 290 (2012) ("Having failed to brief any of the four stare decisis factors, the plaintiff has not persuaded [the Court] that [its] decision... must be overruled."). Even ifthe Germain language about which the defendant complains was error, the charge, taken as a whole, correctly stated the law concerning the jury's responsibility to assess witness credibility and evaluate direct and circumstantial evidence. See Poulin v. Provost, 114 N.H. 263, 265 (1974) ("Although a particular instruction may be erroneous in isolation, this is no ground for a new trial if the charge taken as a whole could not have conveyed an erroneous conception of the law."). instructions: Here, after it issued the Germain instruction, the trial court provided the following In deciding whether the State has proven the charge against the Defendant beyond a reasonable doubt, you must consider the credibility of witnesses. That is, it is up to you decide who to believe. If there is any conflict between the witnesses, then you must resolve the conflict and decide what the truth is. Simply because a witness has taken an oath to tell the truth, does not mean that you have to accept the testimony as true. In deciding which witnesses to believe, you should use your common sense and judgment, and I suggest you consider a number of factors, the witness's age, intelligence, and experience; whether the witness appeared to be candid; whether the witness appeared worthy of believe; the accuracy of the witness's memory; the appearance and demeanor of the witness while testifying; whether the witness has an interest in the outcome of the case; whether the witness has any reason for not telling the truth; whether what the witness said seemed reasonable or probable; whether what the witness said seemed unreasonable or inconsistent with the other evidence in the case; and whether the witness had any friendship or animosity towards other people in the case. You should consider these factors in deciding the credibility of all the witnesses, whether they happen to be ordinary citizens or police officers. In short, you should consider the testimony of each witness and give it the weight that you think it deserves.

9 -9- T You can accept all of what a witness says, you can reject all of what a witness says, or you can accept some of it and reject some of it, it is up to you. In deciding whether to believe a witness and how much of his or her testimony to believe, you should consider both the direct and cross-examination of the witness. You need not believe a witness's testimony simply because it is uncontradicted. As I said, the determination of witness credibility is up to you. If you believe that a witness testified falsely as to part of his or her testimony, you may choose to distrust other parts also, but you are not required to do so. You should bear in mind that inconsistencies and contradictions in a witness's testimony or between his or her testimony and that of others, do not necessarily mean that you should disbelieve the witness, memory failures and mistaken memories are common and may explain some inconsistencies and contradictions. It is also common for two honest people to witness the same event and to see and hear things differently. You should evaluate inconsistencies and contradictions and determine whether they relate to important or unimportant facts. The defendant does not dispute that these instructions accurately state the law. See DB 15. Instead, she argues that they do not correct the juror's misimpression of the law related to "how the jury assesses conflicting direct evidence." Id She has failed, however, to demonstrate why the charge taken as a whole left the jury with a misimpression of the law. Moreover, the testimony at issue-sargent testifying she did not receive frequent cash payments from King and King testifying that she did not steal cash-was neither direct evidence of the crime nor conflicting. DB 9. Thus, a reasonable juror would not have referenced the Germain instruction for guidance on assessing the credibility of both Sargent and the defendant as to these facts. But, even assuming that the testimony of Sargent and the defendant constitutes conflicting direct evidence, the language set forth above in the additional instructions, properly instructs the jury

10 -10- that it may accept or reject, either wholesale or in part, a witnesses testimony. T Thus, these accurate instructions corrected any previous misimpression of the law. Moreover, the jury was told from the outset: that it "should not single out any one instruction, but instead apply these instructions as a whole to the evidence in this case." T As such, when read in its entirety, the charge would not have confused a reasonable juror as to the correct state of the law, and thus, the defendant cannot meet her burden in demonstrating the trial court's ruling prejudiced her case. See State v. Matton, 165 N.H. 35, 38 (2014) (to establish that trial court ruling is not sustainable, defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case). Lastly, the defendant contends that the Germain language "did not tell the jury that it had to believe any witness beyond a reasonable doubt." DB 16. By way of example, the defendant argues that "it was possible that the jury was slightly more convinced that Sargent was telling the truth than King, while still harboring reasonable about the truth of Sargent's testimony." DB 16. The defendant distorts the law applicable to the jury's credibility determination and the State's burden of proof: the jury does not have to believe a witnesses testimony in its entirety beyond a reasonable doubt. To convict, the jury must find the State has "proven all the elements of the offense beyond a reasonable doubt." State v. Etienne, 163 N.H. 57, 82 (2011). In doing so, the jury does not need to find each of the State's witnesses testified truthfully beyond a reasonable doubt. Thus, the trial court's instructions accurately explained the burden of proof and the jury's role in weighing evidence and making credibility determinations. See T As such, the defendant cannot meet her burden. See State v. Saunders, 164 N.H. 342, 350 (2012) (finding this Court will "reverse[s] only if the instructions did not fairly cover the issues of law in the case.").

11 -11- CONCLUSION For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below. The State waives oral argument. See Sup. Ct. R. 16(4)(b). Respectfully submitted, THE STATE OF NEW HAMPSHIRE By its attorneys, June 16, 2015 Assistant Attorney General Criminal Justice Bureau New Hampshire Department of Justice 33 Capitol St. Concord, NH CERTIFICATE OF SERVICE I, Patrick J. Queenan, do hereby certify that I have sent two copies of the within memorandum of law to counsel for the appellant by first-class mail postage prepaid, at the following address: Stephanie Housman, Deputy Chief A pellate Defender. June 16, 2015