State v. Thomas Milton, 150 A.3d 926

Background

Defendant Thomas Milton, incarcerated at New Hampshire State Prison and a member of the Brotherhood of White Warriors (BOWW), was convicted by jury of second-degree murder, assault by a prisoner, and falsifying physical evidence arising from a July 26, 2010 prison attack on another inmate.
State alleged defendant struck the victim repeatedly and participated in cleaning up the scene; defendant admitted one strike but denied repeated blows and post‑attack conduct.
Before trial, State sought to admit expert testimony about BOWW’s existence, structure, membership process, and culture; trial court allowed expert testimony on structure, culture, motive, and witness fear but barred testimony on facts jury could understand (e.g., that BOWW ordered the attack or defendant’s specific rank).
At trial expert described BOWW as a white‑supremacist, paramilitary prison gang enforcing rules (including against "ratting") with violence; testimony also explained why witnesses might be reluctant to cooperate.
An inmate witness testified for the defense that defendant did not repeatedly strike the victim; on cross, State elicited that this witness had been assaulted pretrial by someone with a BOWW tattoo shortly before a hearing in a related prosecution.
Jury convicted on all counts; defendant appealed arguing unfair prejudice under N.H. R. Ev. 403 from gang‑related expert testimony, evidence of unrelated BOWW crimes, and testimony about retaliation against witnesses.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Milton)	Held
Admissibility of expert gang testimony under Rule 403	Testimony probative of motive, intent, and witness credibility; explains chain of command and why witnesses fear BOWW	Testimony was unfairly prejudicial, cumulative, and suggested generalized violent criminality not attributable to defendant	Court affirmed: probative value (motive, intent, credibility) outweighed prejudice; limited scope reduced risk
Admission of BOWW organizational rules and culture	Needed to explain why defendant would follow orders and why witnesses were reluctant to testify	Admission unduly prejudiced jury by portraying defendant as inherently violent BOWW member	Court affirmed: testimony materially explained motive/intent and witness fear; not substantially more prejudicial than probative
Cross‑exam testimony about separate pretrial assault by a BOWW member	Relevant to impeach the defense witness and explain motive to lie/deny defendant’s role	Prejudicial because jury might infer defendant’s involvement or continued gang membership	Court affirmed: probative of witness credibility and did not suggest defendant’s involvement; not unfairly prejudicial
Waiver of challenge to scope of expert testimony	State argued defendant waived appellate review by concessions at motion in limine	Defendant argued he preserved objections in his written motion and did not concede all points at hearing	Court held no waiver: defendant preserved objections and appellate review proceeded

Key Cases Cited

Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662 (N.H. 2006) (discusses waiver by concession at trial)
State v. Towle, 167 N.H. 315 (N.H. 2015) (trial court discretion on admissibility; Rule 403 balancing)
State v. Legere, 157 N.H. 746 (N.H. 2008) (gang evidence probative of intent and credibility)
State v. Kuchman, 168 N.H. 779 (N.H. 2016) (Rule 403 as an exclusionary rule)
State v. Pepin, 156 N.H. 269 (N.H. 2007) (when intent is contested, State must present evidence)
State v. Addison (Capital Murder), 165 N.H. 381 (N.H. 2013) (other-crimes evidence probative of motive/intent)
State v. Ayer, 154 N.H. 500 (N.H. 2006) (evidence relevant to intent may carry significant probative value)
Sanguedolce v. Wolfe, 164 N.H. 644 (N.H. 2013) (prisoner attitudes toward cooperators)
State v. Russell, 159 N.H. 475 (N.H. 2009) (subsequent bad-act evidence relevant to witness motive to lie)
State v. Cooper, 168 N.H. 161 (N.H. 2015) (issues not briefed on appeal are waived)