The defendant, Lee Russell, was convicted of armed robbery and reckless conduct, see RSA 636:3, III (2007); RSA 631:3 (2007), following a jury trial in the Superior Court (Brown, J.). On appeal, he argues that: (1) the trial court erred when it admitted evidence of his threatening statements pursuant to New Hampshire Rule of Evidence 404(b); and (2) the trial court committed plain error when it sentenced him to an extended term of imprisonment. We affirm.
The jury could have found the following facts. On November 14,2006, the defendant; his cousin, Jenika Senter; Vincent Cooper; Cooper’s girlfriend, Kimberly Dick; and Walter George were at Cooper and Dick’s apartment in Rochester. The
Between 11:03 p.m. and shortly after midnight, Senter and Baker spoke many times. Shortly after midnight, Baker told Senter that he could get her three grams. Senter and Baker agreed to meet on Adele Drive in Dover. Baker and his girlfriend, Laura Sabine, drove to the arranged meeting place. Senter walked up to Baker’s vehicle and got into the back seat. Senter said that she needed to get her purse out of her uncle’s car, so Baker began to drive slowly down Adele Drive.
A young white male, approximately five feet ten inches to six feet tall, wearing a black hooded sweatshirt, suddenly appeared at the front passenger side window. The man had a tattoo on his face or neck. Baker testified that he saw the man’s eyes and the bottom part of his face and neck, and Sabine testified that she saw the man’s eyes, cheekbones and forehead. The man had a small, revolver-style gun and told the occupants of the car to give him everything they had.- Baker refused and sped off. A .22 caliber bullet shattered the back window, ricocheted off the front windshield, and lodged in the dashboard. Senter laughed and told Baker to drive further down Adele Drive, but when Baker reached the end of the road, it was blocked by cars. Baker panicked and went back up Adele Drive. As they reached the spot where the shooting had occurred, Senter told Baker to stop the car and let her out. Baker refused and drove to Rochester, where, eventually, he let Senter out. Senter called Cooper to pick her up, and he took her to his apartment. Dick drove Senter home to Berwick, Maine. During the drive, Senter told Dick that the defendant had shot a gun at them. Baker and Sabine called 911 and went to the Dover Police Department, where they told the police what had happened.
The next morning, Detective Lance Watkinson of the Dover Police Department interviewed Senter at her home. Although at first Senter denied being at Adele Drive, she later admitted that she was there, described what had happened, and identified the defendant as the gunman. Her version of what had happened was consistent with Baker and Sabine’s story. Later that day, Baker and Sabine viewed photographic lineups containing the defendant’s photograph and, although neither had ever seen the defendant before, both identified the defendant as the person who looked most like the gunman.
Shortly after 5:00 p.m. on November 16, Detective Watkinson saw the defendant walking on Adele Drive. Detective Watkinson called the defendant’s name, but he kept walking. The second time Detective Watkinson called the defendant’s name, he looked at Detective Watkinson and then kept walking towards a car with his hands in the pocket of his sweatshirt. Detective Watkinson pulled out his gun, pointed it at the defendant, and ordered him to take his hands out of his pocket. The defendant complied and Detective Watkinson arrested him.
After his arrest, the defendant was held at the Strafford County House of Corrections. Some of his telephone calls were recorded. On December 2, 2006, the defendant had a conversation with his mother, Kathryn Smart, in which he said: “[Senter] says she’s not f_snitching. We’ll f_find out when we go to Court. If she’s f_telling....” The defendant also said: “I’ve, I’ve got people, I’ve got, just cause I’m in here doesn’t mean s_can’t be done. I don’t give a f_.” The defendant’s mother commented that Senter had
On December 4, 2006, Detective Watkinson testified at a probable cause hearing that Senter had identified the defendant as the gunman. The defendant’s mother, his friends, and other family members attended the hearing. A few hours later, Senter contacted Detective Watkinson, upset that people were saying that Detective Watkinson had testified that she had identified the defendant because she never had. Senter went to the Dover Police Department with her father and grandmother and gave a videotaped statement in which she stated that she did not identify the defendant as the gunman and that the defendant was not the gunman. Before Detective Watkinson took Senter’s statement, he played for her the recordings of the phone conversations between the defendant and his mother.
On December 8, 2006, the defendant and his mother had a telephone conversation in which they discussed someone named “Katie,” who was not otherwise involved. The defendant’s mother noted that “Katie’s pretty pissed off... [w]ith ... what happened to [the defendant].” The defendant stated that “[w]e should have [Katie] f_ up Jen ... [s]he’s a f_bulldog.” The defendant’s mother responded, “I’m not saying nothing” and “I already know what she said she’s gonna do. She’s already on it.” The defendant described Katie as “crazy” and his mother responded, “[It’s] because you are too.”
On December 10, 2006, the defendant and his mother had another conversation in which his mother said that if Baker and Senter “don’t show up to Court, the case is thrown.” The defendant agreed, and his mother responded, ‘Well I can’t wait to see [Senter] show up, I mean that’s gonna be quite the interesting case.” The defendant replied that he was “gonna try to stare at her the whole time. I’m . . . just gonna like stare both of them down. [Baker] and [Senter].”
On January 18,2007, Senter testified before the Strafford County Grand Jury that she never identified the defendant. She stated that she had been threatened: “I have had threats saying that I am going to be shot, I am going to be dead ... my father’s car had $2,000 worth of vandalism done to it and my grandmother’s as well.” She also testified that she had received threats on her cell phone and MySpace page. Senter stated that she did not know who was threatening her, but stated “that is exactly why I did not want to call the police. This is exactly why I did not want to get involved because I am going to lose my life either way.”
Before the defendant’s trial, the State moved in limine to cross-examine the defendant’s mother and Senter at trial with some of the telephone calls made by the defendant while he was in the Strafford County House of Corrections, and offer the conversations as substantive evidence of Senter and the defendant’s mother’s credibility and the defendant’s consciousness of guilt.
The trial court ruled that the State could cross-examine Senter about whether the defendant had threatened her because that evidence was probative of her credibility and motive to lie. The State could question the defendant’s mother about the defendant’s threats because they were admissions and probative of his consciousness of guilt. If his mother testified inconsistently with her prior statements, the State could admit the telephone conversations “for the limited purpose of witness credibility.” The trial court ruled that it would provide a limiting instruction that the defendant’s mother’s “conversations
Detective Watkinson testified at trial that Senter identified the defendant as the gunman when he interviewed her on November 16. Senter testified that the defendant was not the gunman and that she had never identified him as such. Specifically, she testified that the defendant went home before she walked to Adele Drive to meet Baker and Sabine. Senter claimed that she had received threats since the incident, although she did not attribute them to the defendant. Counsel for the defendant cross-examined Senter with evidence that she had heard parts of the audio recordings of the conversations between the defendant and his mother.
The defendant’s mother testified that at the time of the robbery the defendant lived with her in her apartment in Dover. She stated that on the night of the robbery she returned to her apartment “roughly after 9:30” and that the defendant came home approximately ten to fifteen minutes later. She claimed that the defendant and his younger brother then played a video game and that she went to bed at approximately 10:45 p.m. She testified that she woke at approximately 1:00 a.m., went into the defendant’s room to turn off his television, and saw him sleeping there. The State cross-examined the defendant’s mother with portions of the telephone calls to impeach her testimony. After the jury convicted the defendant on both counts, the trial court imposed an enhanced sentence pursuant to RSA 651:2, Il-g (2007).
I. The Threats
A. Senter’s credibility
We first consider the defendant’s argument that the trial court erred by admitting the three telephone calls pursuant to Rule 404(b). The defendant first argues that the threats were only minimally probative of Senter’s credibility: (1) because Senter exonerated the defendant before she learned of the threats; and (2) because the State presented other evidence that Senter was afraid to testify so that the threats were cumulative.
The State counters that Senter’s credibility was a central issue at trial and evidence that the defendant threatened her was highly probative of her credibility. Specifically, the State argues that it is reasonable to infer that Senter recanted after the probable cause hearing, and continued to deny that she had ever identified the defendant, after being threatened by the defendant and his family. The State contends that Senter impeached her own credibility, and that the threats were relevant to rebut Senter’s claim that Detective Watkinson lied when he testified at trial that Senter identified the defendant. The State also maintains that the threats were probative of Senter’s motive to continue to deny that she ever identified the defendant.
Although “[e]vidence of other crimes, wrongs or acts” is inadmissible “to prove the character of a person in order to show that the person acted in conformity therewith,” such evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b). Accordingly, Rule 404(b) ensures “that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes
To be admissible under Rule 404(b): “(1) the evidence must be relevant for a purpose other than proving the defendant’s character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to the defendant.”
State v. Costello,
“To meet its burden under the first prong, the State must demonstrate the relevancy of the evidence.”
Id.
Therefore, the State must “articulate the precise chain of reasoning by which the offered evidence will tend to prove or disprove an issue actually in dispute, -without relying upon forbidden inferences of predisposition, character, or propensity.”
Id.
(quotations omitted). “That chain of reasoning must demonstrate a sufficient logical connection between the . . . acts and the permissible purpose for which the State offers the evidence.”
Id.
(quotations omitted). “[F]or subsequent bad act evidence to satisfy the relevancy prong of our three-pronged test, the act must be fairly close in time and in some significant way connected to material events constituting the crime[s] charged.”
State v. Richardson,
The trial court ruled that the State could cross-examine Senter “as to whether she received threats from the defendant,” because the threats were probative of her credibility and motive to lie. The trial court further instructed the jury that “[a] witness may be examined on the issue of his or her credibility, and any reasons a witness may have for testifying inconsistently with earlier statements, including statements to the police.” The trial court instructed that if the jury found “that . . . Senter knew about the threats made against her by the Defendant,” it could “infer that this caused her to testify at trial in a manner that was inconsistent with earlier statements she gave to police officers who investigated this matter.”
Senter’s alibi testimony and credibility were critical given that the identity of the gunman was hotly contested at trial.
See State v. Beltran,
Moreover, the threats were not cumulative. Evidence that Senter had received threats on her cell phone and the internet and that her grandmother’s and father’s
Under the third prong, the defendant argues that the prejudicial effect of the threats outweighs their minimal probative value. Specifically, he argues that they are highly prejudicial because: (1) they were violent threats against his cousin, a teen-aged girl; (2) they are similar to the charged acts because the threats and the charged acts are both violent; and (3) he used vulgar language in the telephone calls. The defendant also argues that the calls contain prejudicial statements that have no probative value, specifically pointing to his statement that “Katie” is “crazy” and his mother’s response that the defendant is as well.
The State counters that the threats were only minimally prejudicial, given that: (1) the trial court admitted redacted versions of only three telephone calls; (2) the threats and vulgar language were not so inflammatory that they would provoke juror outrage and render the threats unfairly prejudicial; (3) the threats were not so similar to the shooting as to render them inadmissible; and (4) the trial court instructed the jury that it could consider the threats as they were probative of Senter’s credibility. The State also argues that the defendant’s comment about “Katie” and his mother’s reply were not unduly prejudicial and were probative of how far the defendant was willing to go to pressure Senter. Alternatively, the State argues that the threats did not prejudice the defendant and that then-admission was harmless beyond a reasonable doubt.
Under the third prong of Rule 404(b), evidence of bad acts “is admissible if the danger of unfair prejudice to the defendant does not substantially outweigh the probative value of the evidence.”
Beltran,
“We accord considerable deference to the trial court’s determination in balancing prejudice and probative worth under Rule 404(b).”
Beltran,
“First, we consider the probative value of the evidence.”
State v. Kim,
As “[u]nfair prejudice is inherent in evidence of other similar crimes or prior convictions,”
Beltran,
B. Smart’s credibility
Next, the defendant contends that the trial court erred in admitting his threats as probative of his mother’s credibility under the first prong of the Rule 404(b) analysis. The State argued that the threats were probative of his mother’s credibility because his mother knew and approved of the threats and discussed the possibility that Senter would be harmed. The defendant contends that, assuming that his mother condoned his threats, the State failed to articulate how that evidence would be probative of his mother’s credibility without relying upon propensity-based inferences. The State counters that the threats were probative of the defendant’s mother’s bias and motive to lie. The State argues that Smart’s alibi testimony was crucial to the determination of the defendant’s guilt or innocence, so that her credibility was critical.
The trial court ruled that the State could question the defendant’s mother about the defendant’s threats, finding that “[t]he statements made by the defendant are admissions, and are admissible as evidence.” If she testified inconsistently with her prior statements, the trial court ruled that the State could “introduce the telephone conversations for the limited purpose of witness credibility.” The trial court instructed the jury that it could consider the defendant’s conversations with his mother to “determine [her] credibility, and whether she has any bias or relationship or animosity towards individuals involved in this case that may have influenced her testimony at trial.”
Prior to trial, the defendant filed a Notice of Alibi, representing that his mother would testify that he was home the night of the shooting. His mother testified that at the time of the robbery, the defendant lived with her, that he returned to her apartment the night of the robbery at
The defendant also argues that the prejudicial effect of these statements substantially outweighs their minimal probative value under the third prong of the Rule 404(b) analysis. For the reasons described above in our discussion of the threats in relation to Senter’s credibility, we find that the defendant has failed to prove that the trial court’s ruling was clearly untenable or unreasonable to the prejudice of his case.
C. Consciousness of Guilt
Finally, the defendant argues that, because the threats were only minimally probative of his consciousness of guilt, the trial court erroneously admitted them under the first prong of the Rule 404(b) analysis. Specifically, he argues that: (1) instead of shedding light on his consciousness of guilt, the threats imply that he was upset at Senter’s false accusations; (2) the threats reveal his interest in trial developments, not his desire to exclude evidence or communicate to Senter that she would be harmed if she testified; (3) because evidence of his refusal to stop when arrested by Detective Watkinson was more probative of his consciousness of guilt than the threats, the threats were inadmissible; and (4) the December 10 telephone call had no probative value because it contained no threats. The State counters that the threats were probative of the defendant’s consciousness of guilt and demonstrated his knowledge and fear of Senter’s damaging statements.
The trial court ruled that the defendant’s threats were admissions and were therefore admissible. The trial court also ruled that the threatening statements were admissible substantively as they were probative of the defendant’s consciousness of guilt. The trial court instructed the jury that the threats against Senter could be considered “as substantive evidence of the Defendant’s guilt,” that “[t]hreats against a witness made or adopted by a defendant, which indicate a desire to exclude the witness’s testimony or other evidence at trial may indicate a guilty frame of mind,” and if the jury found that “the Defendant made threats against. .. Senter and that [the] threats indicate that he had a desire to prevent her from testifying at trial,” it could “consider it as substantive evidence of the Defendant’s guilt.” The trial court instructed the jury that Senter’s knowledge of the threats, or lack thereof, was irrelevant because the threats pertained to the defendant’s state of mind.
“Evidence of threats to witnesses can be relevant to show consciousness of guilt.”
United States v. Monahan,
The defendant’s argument that his statements imply that he was angry at Senter’s false accusations is unpersuasive. During the December 2 telephone call, the defendant stated that Senter “says she’s not f_ snitching.” He further stated that “[wje’ll f_find out when we go to Court. If she’s f_telling.” To “snitch” is “to give incriminating evidence against someone, esp. an associate.” Webster’s Third New International DICTIONARY 2157 (unabridged ed. 2002);
see also Henry v. Chapa,
No. 1:07-CV-00336-DGC,
Evidence that the defendant did not immediately stop before being arrested does not minimize the probative value of his threats. The State introduced this evidence on the second day of trial, “well after the trial court rendered its pre-trial ruling, and the defendant makes no suggestion that he asked the trial court to reconsider its ruling in light of” the admission of the evidence.
State v. Hebert,
Moreover, the defendant threatened Senter during the third telephone call. During that call, the defendant stated that, during trial, he was “gonna try to stare at [Senter] the whole time. I’m, I’m just gonna like stare both of them down. [Baker] and [Senter].” We disagree that the threats do not demonstrate a desire to exclude pertinent evidence at trial. The defendant implied that he could use other people to harm Senter, suggested that he and his mother have Katie “f_up Jen,” and told his mother that he would stare at Senter “the whole time” during trial, and that he would stare her down.
The defendant also argues that the prejudicial effect of his threats substantially outweighs their minimal probative value. For the reasons described above, we find that the defendant has failed to prove that the trial court’s ruling was clearly untenable or unreasonable to the prejudice of his ease.
Finally, the defendant argues that the trial court’s instructions did not explicitly prevent the jury from considering the threats as evidence of his bad character. The State maintains that the defendant never submitted proposed instructions, requested contemporaneous limiting instructions, or objected to the trial court’s limiting instructions. Because the defendant
II. Legality of the Sentence
Next, we consider the defendant’s argument that the trial court violated his due process rights under the Fifth Amendment to the Federal Constitution and Part I, Article 15 of the State Constitution when it sentenced him to an extended term under RSA 651:2, Il-g because the court did not instruct the jury that it must unanimously conclude that he used a firearm during the armed robbery. Specifically, the defendant argues that, based upon the jury instructions and evidence presented at trial, the jury could have convicted him of armed robbery with a BB gun. Although the defendant concedes that he did not object to the trial court’s jury instructions or to the imposition of the enhanced sentence, the defendant contends that we should review his sentence under the plain error rule. See SUP. CT. R. 16-A.
Under the plain error rule, we may consider errors not raised before the trial court.
State v. Matey,
The State concedes that the trial court erred, and that the error was plain. We agree. The defendant was not eligible for an enhanced sentence under RSA 651:2, Il-g unless he was “convicted of a felony, an element of which is the possession, use or attempted use of a firearm.”
State v. Henderson,
However, the United States Supreme Court has repeatedly declined to determine whether structural errors automatically satisfy the third prong under the federal plain error analysis.
See Puckett v. United States,
We next consider whether the fourth prong has been satisfied. Under the fourth prong, we must decide whether the trial court’s error “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.”
Matey,
In
Johnson
and
Cotton,
the Supreme Court determined that, because evidence supporting materiality and the uncharged element, respectively, was “overwhelming” and “essentially uncontroverted,” there was “no basis for concluding that the error[s] seriously affected the fairness, integrity or public reputation of judicial proceedings.”
Johnson,
Moreover, at trial, the defendant did not dispute that the deadly weapon used during the robbery was a firearm. The State argued throughout trial that the defendant had used a firearm or handgun to commit both of the charged offenses. During opening statements, the prosecutor argued that a fragment of a bullet had been found in Baker’s vehicle, and counsel for the defendant stated that “everything about this case is going to be identification” and asked the jury to determine “who stuck the gun in the car and threatened and then shot?” At the close of the State’s case, counsel for the defendant argued that the State had failed to prove that the defendant was the gunman or “trigger man,” but did not argue that the State had failed to prove that the gunman had used a firearm.
Accordingly, we decline to exercise our discretion under the fourth prong of our plain error rule to reverse the conviction and sentence.
See Johnson,
The defendant argues that, based on our decisions in
State v. Taylor,
Similarly, in
Henderson,
the defendant was charged with having a firearm in his possession or under his control.
Henderson,
Finally, our decision is consistent with our harmless error analysis in
State v. Kousounadis.
Unlike plain error review, which “is an exception to the contemporaneous objection rule [that] provides us with the discretion to review unpreserved error on appeal for plain error that affects substantial rights,”
Hebert,
Moreover, holding that the failure to instruct the jury on an element of the offense always constitutes plain error would create a windfall for criminal defendants. Under such a holding, a defendant would have no reason to object and every
Affirmed.