State v. Samuel Pennock, 168 N.H. 294

Background

On July 9, 2013, an incident between Samuel Pennock and his wife led to charges including simple assault; Pennock was convicted by a jury of felony simple assault and acquitted of other counts. He was sentenced to 12 months with nine months suspended and two years probation.
At trial the victim (wife) made oral statements to Officer Nessa Platt at the police station while visibly upset and also completed a written statement; photographs showed her distraught appearance.
The State introduced the victim’s pretrial oral statements to Platt substantively under the excited utterance exception and used the written statement as both substantive evidence and as a prior inconsistent statement impeachment source.
Pennock moved to dismiss for insufficient proof of lack of self-defense; the motion was denied and the jury convicted him of simple assault. He later filed post-conviction motions to vacate sentence (arguing the assault was misclassified for sentencing) and for a new trial based on newly discovered evidence (a post-trial admission by the victim that she had exaggerated); the trial court denied those motions.
On appeal (consolidated direct and post-conviction), the Supreme Court of New Hampshire affirmed: (1) admission of the victim’s oral statements as excited utterances; (2) denial of the motion to dismiss (sufficient evidence negating self-defense); (3) no plain error in allowing the felony enhancement and sentencing; and (4) denial of a new trial because the post-trial admission was cumulative of trial testimony.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pennock)	Held
Admissibility of victim’s pretrial oral statements under excited utterance	Statements were spontaneous, made while victim still under stress from the altercation, so admissible under N.H. R. Ev. 803(2)	Statements were too delayed, made after opportunity to contrive, responsive to questioning, and thus not excited utterances; written statement especially not spontaneous	Court upheld admission of oral statements as within excited utterance exception; any error in admitting written statement was harmless beyond a reasonable doubt
Sufficiency re: self-defense (motion to dismiss)	Evidence (victim’s statements and other facts) allowed a rational jury to find Pennock was initial aggressor/provoked and used unreasonable force	Conflicting statements could support a reasonable inference of self-defense; State failed to disprove defense beyond reasonable doubt	Court held evidence, viewed in State’s favor, was sufficient to disprove self-defense; denial of dismissal affirmed
Classification/sentence (post-conviction) — whether simple assault required notice to seek higher misdemeanor/felony penalties	Enhancement statute (RSA 173-B:9, IV) can elevate unclassified misdemeanor and indictment alleging felony sufficed; interplay with RSA 625:9, IV(c) ambiguous so no plain error	Trial court should have treated simple assault as unclassified misdemeanor (class B misdemeanor by default) absent statutory notice; thus sentence illegal	Court declined to reverse under plain error: statutory scheme unsettled, error not “plain” or obvious; affirmed sentencing and denial of resentencing
Motion for new trial based on victim’s post-trial admission she exaggerated	The post-trial admission was cumulative of trial testimony (where she downplayed/changed facts); thus not newly material and not a basis for a new trial	Admission to friend that she exaggerated is newly discovered, non-cumulative, and would likely produce a different result	Court held the post-trial admission was cumulative of trial testimony and that denial of new trial was not clearly unreasonable; motion denied

Key Cases Cited

State v. Pepin, 156 N.H. 269 (2008) (timing of statements is a factor; delayed statements can qualify as excited utterances when declarant remains under stress)
State v. Woods, 130 N.H. 721 (1988) (temporal proximity not absolute; too long a delay can negate spontaneity)
State v. Cole, 139 N.H. 246 (1994) (exculpatory statements made in response to imminent accusation are deliberate, not excited utterances)
State v. Clay, 910 N.E.2d 14 (Ohio Ct. App. 2009) (written stationhouse statement cumulative of excited utterances, admission harmless)
State v. Martineau, 114 N.H. 552 (1974) (no absolute rule on elapsed time for excited utterance; discretion to trial court)
State v. Santamaria, 145 N.H. 138 (2000) (when self-defense is raised, State must prove elements negating it beyond a reasonable doubt)