State of New Hampshire v. Benjamin L. Duling, Sr.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0653, State of New Hampshire v.
Benjamin L. Duling, Sr. the court on April 29, 2015, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Benjamin L. Duling, Sr., appeals his conviction by a jury on
alternate counts of second degree murder. See RSA 630:1-b (2007). On
appeal, he argues that the Superior Court (Nicolosi, J.) erroneously: (1)
concluded that his amnesia did not render him incompetent to stand trial; (2)
allowed the State to display repeatedly photographs and videos of the victim’s
dead and bloody body; (3) found certain evidence inadmissible; (4) ruled that a
defense witness was not qualified to testify as an expert; (5) did not allow
defense counsel’s closing argument to exceed 80 minutes; and (6) instructed
the jury. We affirm.

The jury could have found the following facts. The defendant, the victim,
and their two young children were scheduled to leave for a London vacation on
April 19, 2008. On the evening of April 18, 2008, the defendant and the victim
argued. During the argument, the defendant grabbed a knife from the victim
and stabbed her in the neck and back. The defendant was charged with
alternate counts of knowing and reckless second degree murder, and, following
a six-day jury trial, was convicted of both charges. This appeal followed.

I. Competency Determination

The trial court evaluated the defendant’s competency both before and
after trial. Before trial, the court found that, although the defendant has
amnesia, it did not render him incompetent because, despite his lack of
memory about the actual moment of the victim’s stabbing, he had “other tools
at his disposal in formulating [his] defense.” The court observed that the
defendant “does have a memory of the tumultuous nature of his relationship
with [the victim], particularly in the days leading up to the incident.” The court
also found that the defendant “is aware of [the victim’s] character for violence,”
his own character for violence, “his feelings for [the victim],” and whether “he
desired to harm her in the past.” The court further found that the defendant is
“able to recall much of the day of April 18, 2008,” and that his recall “combined
with the physical evidence and the context of his relationship [might] lead to a
successful justification or provocation defense.”
 The court determined that, although the defendant’s amnesia might
“present challenges to constructing a defense,” he could “work with his lawyers
and evaluate his chances at trial based on the evidence . . . presented by both
sides.” The court found that he had the ability to “decide whether to testify in
order to explain the relationship he had with [the victim] and the
circumstances leading to and following the ultimate confrontation” and could
“provide his lawyers background about [the victim] in order to focus an
investigation.” The court also found that the defendant had the capacity “to
decide whether to go to trial or engage in a plea bargain based on his lawyers’
and his evaluation of the available evidence.”

After trial, the court confirmed its competency determination based, in
part, upon its observations of the defendant during trial. For instance, the
court observed that the defendant “was able to rationally evaluate the evidence
with his attorney and consult with counsel” about strategic decisions, such as
moving to exclude all evidence and argument about his amnesia. The court
also observed that, during trial, the defendant “was attentive, wrote notes and
communicated with his lawyer, and appeared actively involved as the evidence
developed.”

Although defense counsel argued that, because of the defendant’s
amnesia, it was “impossible” for him to testify, the court disagreed. The court
found that he could have testified “as to what he did know, what he felt about
[the victim], the events leading up to the killing, his feelings and actions before
and after, his character and hers for violence, etc.” The court noted that the
defendant could have explained his amnesia to the jury.

The court observed that, during the course of the trial, “the defendant
presented several alternative and viable defenses to the State’s allegations.”
The court noted that defense counsel “extensively cross-examined the State’s
medical examiner” and that he argued to the jury in his closing argument that
the defendant “had acted in self-defense or had not formed the requisite mental
state to convict him of second degree murder.” The court stated, “Not only did
defense counsel cross-examine the State’s witnesses based on his theory of
defense, he also presented several witnesses on the defendant’s behalf in order
to further his assertion of self-defense and/or his mens rea defense.”

Moreover, although the defendant argued that “he was prejudiced by his
inability to knowingly enter an Alford plea,” the court found this claim did not
appear genuine and was not timely made. See North Carolina v. Alford, 400
U.S. 25 (1970). The court observed that there was “no indication whatsoever
that the defendant ever sought to negotiate or considered negotiating an Alford
plea with the help of any [of] his lawyers.” Indeed, the court noted, “the letters
between counsel concerning pre-trial negotiations include the defendant’s offer
to plead guilty in exchange for certain concessions by the State, without
limitation on his ability to admit guilt.” The court stated that all of the letters

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“from both current and former defense counsel indicate that the defendant
authorized the enclosed offer.”

On appeal, the defendant argues that his amnesia rendered him “unable
to meaningfully plea bargain [or] take the stand.” He further contends that,
because of his amnesia, “he could not begin to mount any viable form of mens
rea defense, . . . [and] could not effectively challenge prosecution witnesses, . . .
or the flood of prosecutorial inferences of his guilt.” Accordingly, he contends,
the trial court erred when it found him competent to stand trial.

A criminal defendant has a constitutional right not to be tried if he is
legally incompetent. State v. Decato, 165 N.H. 294, 296 (2013). The State has
the burden of proving, by a preponderance of the evidence, that a defendant is
competent to stand trial. Id. at 296-97. Our two-pronged test for competency,
which is based upon the test set forth in Dusky v. United States, 362 U.S. 402
(1960), requires that a defendant have: “(1) a sufficient present ability to
consult with and assist his lawyer with a reasonable degree of rational
understanding; and (2) a factual as well as rational understanding of the
proceedings against him.” Id. at 297 (quotation omitted); see Dusky, 362 U.S.
at 402; see also RSA 135:17, II (Supp. 2014). The defendant challenges only
the first prong of the competency test.

To satisfy the first prong of the competency test, “the defendant must be
able to communicate meaningfully with his attorney so as to be able to make
informed choices regarding trial strategy.” Decato, 165 N.H. at 297 (quotation
omitted). “He must be sufficiently coherent to provide his counsel with the
information necessary to construct a defense.” Id. (quotation omitted). We
defer to the trial court’s determination of competence unless we conclude that
no reasonable fact finder could have found as the trial court did. Id. at 296.

We have previously concluded “that a defendant can consult with and
assist his trial counsel with a reasonable degree of rational understanding
without necessarily remembering an event.” State v. Kincaid, 158 N.H. 90, 94
(2008). Thus, we have rejected the notion that an accused possesses the
ability to assist his attorneys only if he is able to remember the circumstances
of the crime with which he is charged. Id. at 94-95; see Decato, 165 N.H. at
297.

The defendant has failed to provide a sufficient record for any further
review of the trial court’s competency determination. Specifically, the
defendant has not provided copies of the evaluations conducted by a number of
forensic experts, even though those evaluations were admitted as exhibits at
the pretrial competency hearing. It is the burden of the appealing party, here
the defendant, to provide this court with a record sufficient to decide his issues
on appeal. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
Because our rules affirmatively require the moving party both to provide a

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sufficient record on appeal and to demonstrate where each question presented
on appeal was raised in the trial court, see Sup. Ct. R. 13, 16(3)(b), failure of
the moving party to comply with these requirements may be considered by the
court regardless of whether the opposing party objects on those grounds.
Bean, 151 N.H. at 250.

Without a sufficient record, we must assume that the evidence supports
the trial court’s factual findings. See id. Our review is limited to questions of
law. See Rix v. Kinderworks Corp., 136 N.H. 548, 553 (1992). Having failed to
persuade us that the trial court’s competency determination is legally
erroneous, we uphold that determination.

II. Trial Court Decisions on Evidentiary Matters

We review challenges to a trial court’s evidentiary rulings under our
unsustainable exercise of discretion standard and reverse only if the rulings
are clearly untenable or unreasonable to the prejudice of a party’s case. State
v. Costella, 166 N.H. 705, 714 (2014). “In determining whether a ruling is a
proper exercise of judicial discretion, we consider whether the record
establishes an objective basis sufficient to sustain the discretionary decision
made.” Id. (quotation omitted). “The defendant bears the burden of
demonstrating that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” Id. (quotation omitted).

The defendant first argues that the trial court erred when it allowed the
State to display to the jury photos and videos of the victim’s dead and bloody
body. However, he has failed to provide a sufficient record for our review of
this issue. Although the record on appeal includes his motion in limine, it does
not include a transcript of the hearing on the motion. Nor does it include the
trial court’s pretrial ruling on the motion. Without a sufficient record, we must
assume that the evidence supports the trial court’s factual findings. Bean, 151
N.H. at 250. Having failed to persuade us that the trial court’s decision was
legally erroneous, we uphold it. See Rix, 136 N.H. at 553.

The defendant next argues that the trial court’s decision concerning the
testimony of nine defense witnesses was erroneous. Rather than specifically
address the trial court’s rulings with respect to each witness, “the defendant
respectfully asks this Court to . . . address each in turn, from the attached . . .
lower court Order, and in the context of . . . [his] brief argument.” (Quotation
omitted.) We decline his invitation to do so and consider his argument
insufficiently developed for our review. See State v. Letoile, 166 N.H. 269, 278
(2014).

The defendant next challenges the trial court’s determination that one of
his witnesses was unqualified to testify as an expert. However, he again has
failed to provide a sufficient record for our review of this issue. The defendant

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has not provided a copy of the witness’s report or a copy of the witness’s
deposition, both of which are referenced by the trial court in its order. Without
a sufficient record, we must assume that the evidence supports the trial court’s
factual findings. See Bean, 151 N.H. at 250. Because the defendant has failed
to persuade us that the trial court’s decision was legally erroneous, we uphold
it. See Rix, 136 N.H. at 553.

III. Plain Error

The defendant raises two issues under our plain error rule. See Sup. Ct.
R. 16-A. Under the plain error rule, we may consider errors not raised in the
trial court. State v. Guay, 164 N.H. 696, 703 (2013). The rule should be used
sparingly, its use limited to those circumstances in which a miscarriage of
justice would otherwise result. Id. at 704. Our plain error rule sets forth four
requirements: (1) there must be an error; (2) the error must be plain; (3) the
error must affect substantial rights; and (4) the error must seriously affect the
fairness, integrity, or public reputation of the judicial proceedings. Id.

The defendant first argues that the trial court committed plain error
when it allowed defense counsel to argue for 80 minutes, but no more. We
disagree that this was error. The applicable court rule limits closing
arguments “to one hour each, unless otherwise ordered by the Court in
advance.” Super. Ct. Crim. R. 71. Absent any evidence that the trial court
ordered that the parties’ closing arguments could exceed one hour, we find no
error in the decision to limit defense counsel’s closing argument to no more
than an hour and 20 minutes. Although, on appeal, the defendant cites
various constitutional provisions, such “offhand invocations” of constitutional
rights supported by neither argument nor authority warrant no extended
consideration. Keenan v. Fearon, 130 N.H. 494, 499 (1988).

The defendant next asserts that the trial court committed plain error
when it misspoke while instructing the jury. The State concedes that the trial
court so erred, but argues that the error does not require reversal. We agree.

“The purpose of the trial court’s charge is to state and explain to the jury,
in clear and intelligible language, the rules of law applicable to the case.” State
v. Etienne, 163 N.H. 57, 70 (2011) (quotation omitted). “When reviewing jury
instructions, we evaluate allegations of error by interpreting the disputed
instructions in their entirety, as a reasonable juror would have understood
them, and in light of all the evidence in the case.” Id. (quotation omitted). “We
determine whether the jury instructions adequately and accurately explain
each element of the offense and reverse only if the instructions did not fairly
cover the issues of law in the case.” Id. (quotation omitted). “Whether a
particular jury instruction is necessary, and the scope and wording of jury
instructions, are within the sound discretion of the trial court, and we review
the trial court’s decisions on these matters for an unsustainable exercise of

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discretion.” Id. (quotation omitted). “To show that the trial court’s decision is
not sustainable, the defendant must demonstrate that the court’s ruling was
clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation
omitted).

The trial court misspoke when instructing the jury about circumstantial
evidence:

There are two types of evidence, direct and circumstantial.

Direct evidence is direct proof of a fact, such as the
testimony of an eye-witness, or a witness who has the information
based upon his or her own personal knowledge. So that is, a
witness, saw, heard, or otherwise directly experienced.

Circumstantial evidence is indirect evidence that tends to
prove a fact disputed by facts – by the proof of other facts.

So the classic example of direct and circumstantial evidence
to distinguish them is as follows:

So imagine you’re in a library. You decide you’re going to go
to read some books, and as you head to the library it’s sunny out,
and you go in and you go into a room that has no windows. You
can’t see anything to the outside. And as you’ve been sitting there,
after about an hour, somebody comes in, they’re wearing a
raincoat, they’re dripping wet, and they have an umbrella in their
hand. Based on that, you could infer, based on that
circumstantial evidence, that it’s raining outside, even though you
haven’t directly experienced it.

That would be opposed to something where you’re walking
into the library and it’s raining. You feel the rain, you see the rain,
that’s direct evidence.

There’s no distinction on the weight to be given either direct
or circumstantial evidence. It’s for you to decide how much weight
to give any evidence, whether it be direct or circumstantial.

However, if you rely solely on circumstantial evidence and
reach a conclusion that the Defendant is guilty, for that
circumstantial evidence to be sufficient to establish guilt beyond a
reasonable doubt, the circumstantial evidence must exclude all
other rational conclusions other than guilt.

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 This mean[s] that if, from the circumstantial evidence, it is
rational to arrive at two conclusions, one rational conclusion
consistent with evidence, and one rational conclusion consistent
with guilt, you must choose the rational conclusion that is
consistent with innocence.

However, you do not need to consider each item of
circumstantial evidence in isolation in determining whether all
rational conclusions, other than guilt, have been excluded, and in
deciding this case. You should consider each item of
circumstantial evidence in the context of all of the other direct and
circumstantial evidence that you’ve heard.

(Emphasis added.)

Although the trial court may have inadvertently said, “one rational
conclusion consistent with evidence,” instead of “one rational conclusion
consistent with innocence,” we conclude that this error did not affect the
defendant’s substantial rights. See United States v. Ancheta, 38 F.3d 1114,
1117 (9th Cir. 1994); see also Richardson v. Finn, No. 2:06-cv-01731 ALA (HC),
2008 WL 4952554, at *12-13 (E.D. Cal. Nov. 18, 2008). The instructions as a
whole were not plainly erroneous. Moreover, the trial court provided the jury
with written instructions that the State contends, and the defendant does not
dispute, properly instructed the jury. Additionally, the absence of any defense
objection during the trial court’s jury instructions “suggests that the mistake
was not noticeable or confusing.” Ancheta, 38 F.3d at 1117. Under these
circumstances, “there is no reason to suppose that any juror was confused by
the judge’s slip of the tongue.” Id. The jury probably understood the judge to
say “orally what [she] meant to say and did say in the written instructions.” Id.
Thus, we hold that the trial court’s misstatement did not affect the defendant’s
substantial rights. See Guay, 164 N.H. at 704.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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