New Hampshire Supreme Court October 13, 2016 Oral Argument Case Summary CASE #1 State of New Hampshire v. Kyree Rice (2015-0457) Attorney Christopher M. Johnson, Chief Appellate Defender, for the defendant, Kyree Rice. Attorney Elizabeth A. Lahey, Assistant Attorney General, for the State of New Hampshire. QUESTIONS PRESENTED ON APPEAL The defendant appeals his convictions for Attempted Murder and two counts of First Degree Assault. The court must decide: (1) Did the trial judge make a mistake when she would not allow the defendant to prove that the victim used drugs in order to call into question his perceptions, and to show that the victim acted aggressively? (2) Did the trial judge make a mistake when she refused to instruct the jury that displaying a firearm is not deadly force? LAWS TO CONSIDER United States Constitution No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U. S. CONST. amend. VI. New Hampshire Criminal Code Chapter 627:9, IV, Justification Non-deadly force'' means any assault or confinement which does not constitute deadly force. The act of producing or displaying a weapon shall constitute non-deadly force. 1
Case Law The trial court has broad discretion to determine the admissibility of evidence, and [this court] will not upset its ruling absent an unsustainable exercise of discretion. State v. Towle, 167 N.H. 315, 320 (2015) (emphasis added). The right to cross-examine adverse witnesses in criminal cases is fundamental. State v. Fichera, 153 N.H. 588, 598 (2006). The New Hampshire Supreme 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). New Hampshire Rules of Evidence Rule 401. Definition of Relevant Evidence "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute or by these rules or by other rules prescribed by the New Hampshire Supreme Court. Evidence which is not relevant is not admissible. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 2
Rule 404 (b). Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. FACTS OF THE CASE The defendant, who was 22, his female cousin, who was intoxicated, a friend, and the defendant s brother, went to USA Chicken and Biscuits, a restaurant in downtown Manchester, after midnight. The defendant waited outside, chatting with some women, while the brother waited in line for food. When people in the line began to argue, the defendant came into the restaurant and displayed his gun. The people in line settled down, and the defendant went back outside. Meanwhile, the drunken cousin was staggering around the restaurant; she put her arms around the defendant s brother, who pushed her, and she fell to the ground. The victim objected to seeing a woman treated this way and put his hand into the brother s face and pushed his head back. The brother hit the victim, and pandemonium ensued. The brother and the victim were squaring off to fight when the defendant entered the restaurant again and stuck his pistol into the victim s stomach. Instead of being intimidated, the victim hit the defendant, knocking him off his feet and into a booth. The victim then fought the brother, knocked him to the ground, straddled him, and continued to hit him. The defendant fired a warning shot that hit the victim in the side. He then shot the victim in the shoulder, and the bullet came to rest near his heart. The defendant then left the restaurant, while the brother and his friend hit and kicked the victim several times before leaving. Subsequently, the defendant hired a lawyer and turned himself in to the police. At the hospital, the victim s blood showed a blood alcohol concentration of 0.209 and trace amounts of marijuana and cocaine. The defendant s medical expert could not say how much of either drug the victim had ingested or when he had taken them. 3
Both the victim and the defendant testified at the trial. The defendant argued that he acted in defense of his brother when he shot the victim. This required the State to prove that the victim did not use deadly force during the encounter. At trial, the trial judge allowed the defendant to cross-examine the victim regarding his alcohol consumption, but not his cocaine and marijuana consumption. In its closing, the State argued that the defendant had used deadly force when he stuck his gun into the victim s stomach. In response, the defendant asked the trial judge to instruct the jury that, under RSA 627:9, IV, [t]he act of producing or displaying a weapon shall constitute non-deadly force. The trial judge refused to give that instruction, stating that the statute applies only where it s merely brandishing a weapon and not an integral part of the crime. The defendant was convicted of attempted murder and, alternatively, first degree assault. He was sentenced to serve twenty years to life in the New Hampshire State prison. Kyree Rice now appeals his convictions to the New Hampshire Supreme Court. LEGAL ARGUMENTS Kyree Rice, through his lawyer, asks the New Hampshire Supreme Court to overturn his convictions of attempted murder and first degree assault. The defendant raises two issues. First, he argues that the trial judge made a mistake by barring him from cross-examining the victim about his drug use on the night of the shooting. Specifically, he says that the cocaine and marijuana in the victim s system could have constituted circumstantial evidence of the reasonableness of his belief that the victim was using deadly force against his brother an essential element of the defendant s justification defense and proof that when he shot the victim, he was acting in his brother s defense. Also, the drugs could have affected the victim s perception and memory of the incident; particularly, how hard he was punching the defendant s brother. The defendant argues that there was a reasonable basis for this line of questioning because there were trace amounts of marijuana and cocaine in the victim s blood. Therefore, the trial judge made a mistake when she barred the defendant from pursuing this line of questioning. 4
In response, the State argues that the defendant failed to prove that cocaine and marijuana use could have in fact diminished the victim s perception, memory, or credibility, and that without this evidence, it would have been improper for the trial judge to allow the jury to speculate about the drugs effects. Similarly, no witness in this case could say that (1) the victim was under the influence of cocaine on the night in question and (2) was aggressive because of the cocaine. Accordingly, the State argues, the relevance of this line of questioning is substantially outweighed by a risk of unfair prejudice specifically, that the jury would find for the defendant simply because the victim was an unsympathetic drug user. Second, the defendant argues that the trial judge made a mistake when she refused to instruct the jury that displaying a weapon constitutes nondeadly force. The defendant argues that the State misled the jury during its closing by arguing that the defendant s jamming of his gun into the victim s stomach constituted deadly force. See RSA 627:9, IV. The defendant argues that given the prosecutor s closing argument, the trial judge made a mistake when she failed to instruct the jury that displaying a weapon is non-deadly force this failure to instruct prejudiced his justification defense. In response, the State argues that the trial judge properly interpreted RSA 627:9, IV, when she found that that the relevant section only applies to instances when an individual merely brandishes a weapon, and not when the use of a weapon is an integral part of the crime. Nevertheless, even if the court disagrees with the trial judge s interpretation of RSA 627:9, IV, the State argues that the jury instruction provided by the trial judge was sufficient to allow the jury to decide whether the defendant used a lawful amount of force. QUESTIONS FOR STUDENTS TO CONSIDER (1) Is a jury capable of accurately determining the effects of cocaine and marijuana on an individual? (2) If the jury thought that the defendant used deadly force first, how might this have affected their decision to convict the defendant? This summary was prepared by the Judicial Branch Communications Office based on legal briefs filed by the parties to the appeal. 5