State v. Bird
161 N.H. 31
N.H.2010Background
- Ward Bird was convicted in New Hampshire Supreme Court of criminal threatening by waving a firearm at Christine Harris and telling her to leave his property.
- Harris had driven onto Bird’s property while following directions; Bird emerged from his home, shouted, and pointed a gun at her.
- Bird sought to introduce Harris’s 2008 misdemeanor animal cruelty convictions to cast doubt on her credibility and to challenge her claimed purpose for seeking the property, but the court excluded the evidence.
- Bird argued the State failed to negate his defense of premises (non-deadly force) and that the gun qualified as a deadly weapon for enhancements.
- The court instructed the jury on defense of premises with a non-deadly force instruction; Harris testified about her intentions to purchase the property and to start an educational farm.
- Bird received a mandatory minimum sentence of three years under RSA 651:2, II-g, for a felony involving a deadly weapon (firearm).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly excluded animal-cruelty prior acts evidence | Bird asserts Harris’s animal-cruelty convictions were admissible to counter her credibility. | Bird contends the evidence was necessary to counter a misleading impression about Harris. | Court rejected; exclusion not an unsustainable discretion. |
| Whether the defense of premises non-deadly-force instruction was properly applied | State argues defendant’s conduct failed the reasonableness standard under RSA 627:7. | Bird argues non-deadly force was per se reasonable to stop trespass. | Reasonableness is objective; denial of motion to set aside affirmed. |
| Whether the indictment and evidence support felony criminal threatening | Indictment properly alleged use of a firearm as a deadly weapon. | Indictment insufficient to allege a firearm used as a deadly weapon; evidence insufficient. | Indictment sufficient; evidence supported felony criminal threatening. |
| Whether RSA 651:2, II-g sentence enhancement applied correctly | Enhancement requires jury finding that deadly weapon (firearm) was used. | No explicit finding required; Higgins permits application with related facts. | Court followed Higgins; enhancement properly applied. |
| Whether the mandatory three-year sentence violates constitutional proportionality | Sentence is constitutional under state and federal frameworks. | Sentence is constitutionally disproportionate. | affirmed; statutory mandate upheld under state and federal constitutions. |
Key Cases Cited
- State v. White, 155 N.H. 119 (2007) (standard of review for evidentiary rulings)
- State v. Wamala, 158 N.H. 583 (2009) (opening-the-door specific contradiction doctrine)
- State v. Kousounadis, 159 N.H. 413 (2009) (elements of felony criminal threatening and deadly weapon)
- State v. Gruber, 132 N.H. 83 (1989) (standard for appellate review of sufficiency of evidence)
- State v. Higgins, 149 N.H. 290 (2003) (unanimity and use of deadly weapon in firearm cases)
- State v. Dayutis, 127 N.H. 101 (1985) (constitutional analysis under state constitution)
- Harmelin v. Michigan, 501 U.S. 957 (1991) (severe mandatory penalties not unconstitutional per se)
- State v. Dean, 115 N.H. 520 (1975) (legislature may impose mandatory sentences)
- Russell, 159 N.H. 475 (2009) (unanimity requirement regarding firearm elements in deadly weapon cases)
- Deutscher, 225 Kan. 265 (1979) (deadly weapon concept in threatening statutes)