State of New Hampshire v. Thomas M. Ludwig

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0263, State of New Hampshire v. Thomas
M. Ludwig, the court on March 18, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Thomas M. Ludwig, appeals his conviction for driving
while intoxicated, see RSA 265-A:2 (2014), arguing that the Superior Court
(Delker, J.) erred in denying his request for an instruction on the sequestration
rule.

Whether a particular instruction is necessary, and the scope and
wording of the instruction, are matters within the sound discretion of the trial
court. State v. Noucas, 165 N.H. 146, 154 (2013). We review the trial court’s
decisions on these matters for an unsustainable exercise of discretion. Id. 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. at 158. 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.

The State’s only witness, Officer Dawson, testified that at approximately
1:18 a.m. on May 26, 2012, he was on patrol in the area of the Hood Middle
School in Derry with Officer Clark when he observed the defendant’s motor
vehicle parked irregularly in the school parking lot. Dawson testified that when
he approached the vehicle, he noted that the defendant, who was in the driver’s
seat, had “glassy, bloodshot eyes.” Dawson also smelled an odor of an
alcoholic beverage emanating from the vehicle. After returning to his cruiser to
check the defendant’s license and registration, Dawson approached the
defendant’s vehicle a second time and smelled “an overwhelming odor of
cologne” emanating from the vehicle that had not been present previously.
Dawson then asked the defendant to perform field sobriety tests, starting with
the horizontal gaze nystagmus (HGN) test. Based upon his observations of the
defendant, and the defendant’s performance on the field sobriety tests, Dawson
arrested him for driving while impaired by alcohol.
 During Dawson’s cross-examination, the trial court called a brief recess.
During the break, which lasted approximately ten minutes, the prosecutor met
with Dawson in a conference room, together with Clark, who had been
sequestered from the courtroom during Dawson’s testimony. When defense
counsel resumed his cross-examination, he asked Dawson about the
discussion in the conference room. Dawson testified that Clark asked “where
we were in the trial,” but that the participants “didn’t go into any details about
the case.” Dawson testified that the prosecutor informed him that she planned
to re-examine him after defense counsel’s cross-examination, but he denied
knowing what questions the prosecutor planned to ask.

After re-direct examination of Dawson regarding certain details of the
investigation, including the administration of the HGN test, the State rested.
The defendant called Clark to testify regarding his conversation with Dawson
and the prosecutor during the break. Clark testified that Dawson and the
prosecutor discussed the progress of the trial and how to perform a HGN test.
Clark testified that he also asked the prosecutor during the break whether she
planned to have him testify, and the prosecutor asked Clark whether he had
observed the defendant apply the cologne. Clark did not testify in the State’s
case. After the break, Dawson offered no further testimony regarding the odor
of cologne.

Based upon the officers’ testimony, the defendant requested an
instruction on the sequestration rule, to allow the jury to consider whether
they had violated the rule. The trial court noted that it had issued an order
sequestering the witnesses, but it interpreted its order to mean that the
“witnesses can’t hear each other’s testimony . . . [or] discuss what was said in
court during testimony.” After considering the officers’ testimony, the court
concluded that there was no violation of the sequestration order and denied the
request for an instruction.

The defendant argues that Dawson violated the sequestration rule by:
(a) speaking to the prosecutor about the HGN test, a subject of his subsequent
re-direct examination, in Clark’s presence; and (b) remaining present when the
prosecutor asked Clark about his potential testimony regarding the cologne.

The record does not include the trial court’s sequestration order.
However, the court did not interpret its order or the sequestration rule
generally to prohibit the officers’ conduct. Rule 615 of the New Hampshire
Rules of Evidence excludes witnesses only from the courtroom. See N.H. R. Ev.
615 (“At the request of a party the court shall in criminal cases and may in civil
cases order witnesses excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion.”). There is no
evidence in the record which indicates that, during the recess, Dawson
revealed to Clark the testimony he had given before the recess. The defendant
has not identified any New Hampshire authorities, and we are not aware of
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any, to support his position that the sequestration rule prohibits the officers’
conduct in this case. Accordingly, we cannot conclude that the trial court’s
denial of the defendant’s request for a sequestration instruction constituted an
unsustainable exercise of its discretion. See Noucas, 165 N.H. at 158.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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