Following a jury trial in Superior Court (Garfunkel, J.), thе defendant, Bryan Alwardt, was convicted of second degree assault and criminal restraint based on accomplice liability principles.
I
Viewed in the light most favorable to the State, see, e.g., State v. Sideris,
Later in 2006 and 2007, King visited friends at an apartment on the second and third floors of 38 Dionne Drive in Manchester. David Storrs, Carl Lynn and his girlfriend, and the defendant lived in the apartment. Michael Hutchins also stayed there from time to time. In April 2007, King began dating Hutchins, and sometimes stayed with him at the apartment. King did not always get along with Hutchins’ roommates, including the defendant.
On April 14, 2007, King was at Boudreau’s home when several armed men entered the house and robbed, sexually assaulted, and shot at Boudreau. The intruders put a gun to King’s head and took her necklace, but she was not otherwise injured and left the apartment a few minutes later. Boudreau believed that King was responsible for the attack.
On May 8,2007, King was at 33 Dionne Drive. At some point Lynn called Boudreau and told him that King was at the apartment. Boudreau, Nutter, and another friend, Andrea Dunlop, then drove to 33 Dionne Drive. When they arrived, Lynn met them downstairs. Nutter grabbed a baton from the car and Lynn led them upstairs to the third floor porch where the defendant and several other people were standing.
When Boudreau, Nutter, and Dunlop encountered King inside the apartment, Boudreau immеdiately accused her of setting up the April 14 robbery. When she tried to respond, he punched her in the face and she fell to the floor. Boudreau, Nutter, and Dunlop then repeatedly punched and kicked King, beat her with the baton, and
Neighbors called the police after hearing screams and what sounded like a gunshot coming from the apartment. Several officers arrived shortly thereafter.
When the defendant saw that the police were outside, he shut the windows and shades and told Boudreau and his companions to “choke out” King to keep her quiet. They asked for something with which to tie up King, and the defendant went into аnother room and came back with tape and ACE bandages. Nutter and Dunlop taped King’s ankles and wrists, but the tape kept breaking so the defendant retrieved some electrical cords. The cords were wrapped around King’s ankles, wrists, and neck. Nutter and Dunlop stuck their hands in King’s mouth in an effort to keep her quiet, and Nutter tried to rip her tongue out with a metal tool given to her by the defendant.
When these efforts were unsuccessful in keeping King quiet, Boudreau picked her uр and, with the defendant holding her legs, brought her into the bathroom and tried to close the door. Boudreau continued to assault King in the bathroom and the defendant attempted to put a sock in her mouth. Dunlop hid the baton under the bathroom sink. The defendant told Dunlop to turn on the Jacuzzi to drown out King’s screams because the police were trying to enter the apartment; Nutter and the defendant also opened the water faucets and the defendant then left the bathrоom.
The defendant went to the third floor porch where he encountered the police, who took him into custody. Thereafter, several officers entered the apartment where they forced the bathroom door open and found King on the floor, with Nutter and Dunlop standing close by and Boudreau trying to hide. King, who was hysterical, had cords, tape, and bandages wrapped around her ankles, wrists, and neck, and was covered in bruises. Boudreau, Nutter, and Dunlop werе arrested. As King was being taken to an ambulance, she saw the defendant and said, “[Y]ou watched them as they beat me. You sat there and did nothing and helped them tie me up.”
When interviewed by the police, the defendant said that he had been in his bedroom when he heard King scream, that when he went upstairs to investigate he saw three people he did not recognize kneeling near the bathroom, and that he then went outside because someone said the policе were there.
II
The defendant first argues that the evidence was legally insufficient to support the jury’s finding that he was guilty as an accomplice to second degree assault. To prevail on this claim, the defendant must establish that no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. See State v. Young,
The defendant was convicted of being an accomplice to second degree assault. RSA 631:2, 1(c) makes it a crime to “[r]ecklessly cause[] bodily injury to another under circumstances manifesting extreme indifference to the value of human life.” The indictment charging the defendant alleged that the bodily injury was caused by “repeatedly” striking King with “hands, feet and objects.” Thus, for the defendant to be guilty as an accomplice, the evidence must have been sufficient to establish: (1) that one or more of the principаl offenders (Boudreau, Dunlop, and Nutter) caused bodily injury to King by striking her with hands, feet, and objects; (2) that the defendant aided or agreed or attempted to aid the principal offenders in the conduct of striking King with hands, feet, and objects; and (3) that the defendant acted recklessly with extreme indifference to the value of human life regarding the risk that bodily injury to King would be caused by the conduct he aided. See RSA 626:8, III, IV; State v. Rivera,
The defendant does not dispute that King was assaulted by Boudreau, Dunlop, and Nutter in the mаnner alleged in the indictment. Rather, he points to the absence of evidence that he either participated in planning the attack or joined in the assault at its outset. He argues that the evidence showed that he assisted Boudreau, Dunlop, and Nutter only in their attempt to keep King quiet when the police arrived on the scene, and asserts that because this conduct occurred after the assault was over, his participation in such activity does not make him an accomplice to the assault itself. We are not persuaded.
The defendant’s argument is based on a faulty premise — that the assault charged in the indictment was limited to the striking of King which occurred prior to the time he rendered aid and assistance to the primary assailants. The indictment, however, was not so limited; rather it encompassed bodily injury caused by the “striking with hands, feet and objects” that occurred throughout the criminal episode. And, contrary to the defendant’s claim, there was ample evidence that the assault of King was ongoing at the time the defendant began to provide aid and assistance to the principal assailants. For example, King testified that it was while she was being beaten by Boudreau, Dunlop, and Nutter that the defendant told the trio to choke her to stop her from screaming, and “[tjhat’s when they asked for stuff to tie me up.” King also testified that, after the defendant complied with this request by providing cords, tаpe, and ACE bandages, Boudreau and one of the women whipped her with the cords. In addition, King said that after the defendant assisted the other assailants in bringing her into the bathroom, Boudreau “repeatedly smashed my head in between the toilet seats,” “punch[ed] me in the face, [and] smash[ed] my face off the floor.”
In short, based on the evidence, the jury readily could have found that when the defendant provided aid and assistance to Boudreau, Dunlop, and Nutter, their assault on King was not a completed crime, but a work in progress. The evidence also was sufficient to permit a rational fact finder to determine that the defendant could reasonably have foreseen that King would sustain further bodily injury as a consequence of his acts of aid and assistance to the other assailants, and that, in
The defendant also points to the fact that Dunlop and Nutter, who testified at trial pursuant to plea agreements with the State, offered testimony that conflicted with King’s concerning some of the acts which King testified were committed by the defendant. However, evaluation of witness credibility, resolving conflicts in the testimony, and determining the weight to be given to the evidence are matters within the province of the jury. State v. Oakes,
Ill
At the close of the State’s case, the defendant moved to dismiss the criminal restraint indictment, arguing that a conviction on this charge would be against the weight of the evidence. The trial court denied the motion, and the defendant now seeks to assign such denial as error. However, as we recently held in State v. Hill,
W
Prior to trial, the trial court conducted an in camera review of King’s counseling records. See State v. Gagne,
On appeal, the defendant asserts that the trial court “may have erred in failing to disclose all of [King’s] counseling records,” and requests that we independently review the records to determine whether any portions not produced deprived the defendant of his constitutional rights under Part I, Article 15 of the State Constitution and the Fifth, Sixth, and Fourteenth Amendments to the Federal Constitution. The defendant contends that his thеory of defense was that King had “confabulated her memories of his involvement in the assault,” and was especially susceptible to having done so “because of her history of drug use and because she felt betrayed and angry that [the defendant] had not helped her during the attack.” Accordingly, he argues that any information contained in the counseling records that casts doubt on King’s “ability to form and recall memories, including information about
Based on our review of the counseling records in question, we are satisfied that the withheld portions of the records contain no information that would have been of assistance to the defense and that the trial court sustainably exercised its discretion in ordering the records redacted prior to disclosure. See State v. Guay,
V
Finally, the defendant argues that the trial court erred in prohibiting him from cross-examining King regarding certain drugs found in the apartment where the attack occurred.
The facts bearing on this issue are as follows. During a search of the apartment, the police found weapons, gang-related materials, and “lots of drugs,” including marijuana located in the bedroom King sometimes shared with her boyfriend, Hutchins.
Hutchins also initially admitted to the police that at least some of the marijuana found in the bedroom belonged to him, and, in connection with a pretrial deposition of Hutchins requested by the defense, the State granted him immunity with respect to this marijuana. However, during the deposition, in response to questions about the other drugs, weapons, and gang materials found in the apartment, Hutchins asserted his privilege against self-incrimination. Because the deposition led the State to conclude that Hutchins could not offer significant evidence pertaining to the assault, the State decided not to call him as a trial witness, and, therefore, declined to grant him any further immunity.
The defendant then moved to immunize Hutchins so that he could be called as a defense witness and questioned about all the drugs and other items found in the apartment. The defendant argued that this was necessary because Hutchins’ susceptibility to being charged with crimes arising out of the items found in his apartment provided a motive for King to falsely implicate the defendant in the assault. Specifically, the defense theory was that by implicating the defendant, King hoped to divert police attention from Hutchins and “keep him part of... the protective umbrella that’s given by [King’s] victim status.”
As the above recitation indicates, the defendant clearly articulated for the trial court the theory upon which he sought to elicit evidence from King about the drugs, other than her own, that were found in the apartment. Thus, we reject the State’s contention that this issue is not properly preserved for appeal. See State v. Ayer,
On the merits, however, we find that the trial court sustainably exercised its discretion in precluding the expanded cross-examination of King regarding drugs, other than her own, found in the apartment. See State v. Ainsworth,
Initially, we note that the theory of relevancy proffered by the defendant is hardly compelling. It may be plausible that King had a motive to keep Hutchins under the “protective umbrella of her status as a victim.” It strains credulity, however, that she could have thought falsely implicating the defendant, not in the possession of drugs (which she plausibly could have thought would otherwise be attributed to Hutchins), but in a completely separate crime — the аssault — would further this objective. This is particularly so given that King never claimed that the defendant was a major player in the assault — that status clearly fell upon Boudreau, Dunlop, and Nutter. Consequently, to the extent that King was motivated to protect Hutchins by keeping the focus on her victim status, she could accomplish this simply through providing evidence against these three major players without any need to embellish the role of a minor player (the defendant) in the venture. Furthеrmore, insofar as the defendant suggests that King may have wanted to protect Hutchins because she feared the police would want to hold someone who was a resident of the apartment (thus excluding Boudreau, Dunlop, and Nutter) responsible for the drugs, weapons, and other items of a criminal nature located therein, this theory could not have been fairly pursued before the jury by exposing only the drugs (other than King’s) found in Hutchins’ bedroom. Rather, to avoid leaving the jury with a misleading impression concerning the
We also are not persuaded by the defendant’s arguments that denial of cross-examination regarding the drugs found in Hutchins’ bedroom violated his rights under Part I, Article 15 of the State Constitution or the Confrontation Clause of the Sixth Amendment. Following our standard practice, we first consider the defendant’s arguments under the State Constitution, referencing federal decisions to aid our analysis only. State v. Ball,
The opportunity to impeach a witness’s credibility through cross-examination is an incident of rights guaranteed by part I, article 15 of the State Constitution. Cross-examination provides the defendant a right to meet the witnesses against him face to face, and be fully heard in his defense. This includes the right to expose the possible biases of witnesses.
The trial court has broad discretion to fix the limits of proper areas of cross-examination, including attacks upon a witness’s credibility. The trial court, however, may not completely deny a defendant the right to cross-examine a witness upon a proper matter of inquiry and must permit sufficient cross-examination to satisfy а constitutional threshold.
State v. Stowe,
In this case, the defendant was given ample opportunity to challenge King’s credibility and expose her bias. Defense counsel extensively examined her about numerous inconsistencies between her trial testimony and various statements she made before trial, including, in particular, that she had initially said the defendant merely stood by while she was attacked. Defense counsel also (1) elicited that in her first interviews with police, King would talk only about thе assault and would not answer questions about “other issues” as to which they inquired, (2) established that King had possessed and used marijuana on the morning of the day the assault occurred and had been given immunity for this conduct, and (3) reviewed her lengthy history of drug abuse, which began at age nine and included use of marijuana, LSD, cocaine, ecstasy, angel dust, crystal methamphetamine,
Affirmed.
Notes
The defendant was originally charged with one count of second degree assault, one count of criminal restraint, two counts of first degree assault, four counts оf kidnapping, and one count of conspiracy to commit first degree assault. Prior to trial the State dismissed two of the kidnapping charges, and at trial the court dismissed the other two kidnapping charges. The jury found the defendant not guilty of the two first degree assault charges and the conspiracy charge.
Prior to trial, King and Hutchins were married.
The defendant invoked his rights to a fair trial, effective assistance of counsel, confrontation, and due process under the State and Federal Constitutions in support of his argument.
We observe here that, based on the record before us, it does not appear that King ever specifically acknowledged before trial that the drugs other than her own that were found in Hutchins’ bedroom belonged to Hutchins. Thus, the defendant could not and did not represent to the trial court that if King were asked about these drugs, she would say they belonged to Hutchins (as opposed to saying they belonged to the defendant or some other occupant of the apartment).