State v. William Edic

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2015-0329

THE STATE OF NEW HAMPSHIRE

v.

WILLIAM EDIC

Argued: September 14, 2016
Opinion Issued: January 31, 2017

Joseph A. Foster, attorney general (Peter Hinckley, senior assistant
attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

HICKS, J. The defendant, William Edic, appeals his conviction, following
a jury trial in Superior Court (McNamara, J.), on one count of second degree
murder and one count of falsifying physical evidence. See RSA 630:1-b, I(b)
(2016); RSA 641:6, I (2016). On appeal, the defendant challenges various
evidentiary rulings made at trial. We affirm.

The record supports the following facts. The charges against the
defendant stem from events occurring on July 26, 2010, at the New Hampshire
State Prison where the defendant and the victim were then incarcerated. The
second degree murder indictment alleged that the defendant, acting in concert
with and aided by another inmate, Thomas Milton, “recklessly cause[d] the
death of [the victim] under circumstances manifesting an extreme indifference
to the value of human life by striking [the victim] repeatedly in the head and
face areas.” The falsifying physical evidence indictment alleged that the
defendant, acting in concert with and aided by Milton and/or others, “believing
that an official law enforcement investigation into the . . . attack on [the victim]
was about to be instituted, destroyed, concealed, and/or removed items, to wit,
blood evidence and cleaning materials, including towels and similar cloths,
with a purpose to impair their availability in such investigation.” After a trial,
the jury found the defendant guilty on both counts.

On appeal, the defendant argues that the trial court erred in prohibiting
him from: (1) introducing three audio recordings of telephone calls made by
other inmates at the New Hampshire State Prison; (2) questioning another
inmate about that inmate’s prison disciplinary history; and (3) calling certain
correctional officers to testify at trial. The defendant asserts that the trial court
erroneously relied upon New Hampshire Rule of Evidence 608(b) in excluding
the three audio recordings, and that the exclusion of the recordings violated his
state and federal constitutional rights to due process, confrontation, and to
present all proofs favorable. See N.H. CONST. pt. I, art. 15; U.S. CONST.
amends. V, VI, XIV. As to the other inmate’s prison disciplinary history, the
defendant challenges the trial court’s rulings that the inmate’s disciplinary
history was beyond the scope of redirect examination, and that the inmate did
not open the door to his disciplinary record. With respect to the correctional
officers’ testimony, the defendant contends that the trial court misapplied Rule
608(b) in excluding the officers’ testimony, and, alternatively, that the State
opened the door to it.

As an initial matter, the State asserts that a number of the defendant’s
arguments are not preserved. Specifically, the State argues that: (1) the
defendant’s Rule 608(b) argument is not preserved as it relates to the first two
audio recordings; (2) the defendant’s constitutional arguments relating to the
recordings are not preserved; and (3) the defendant’s Rule 608(b) argument is
not preserved as it relates to the correctional officers’ testimony.

“The general rule in this jurisdiction is that a contemporaneous and
specific objection is required to preserve an issue for appellate review.” State v.
Blackmer, 149 N.H. 47, 48 (2003) (quotation omitted). “This rule, which is
based on common sense and judicial economy, recognizes that trial forums
should have an opportunity to rule on issues and to correct errors before they
are presented to the appellate court.” Id. (quotation omitted).

Based upon our review of the record, we conclude that the defendant
failed to preserve the following arguments: (1) his argument that the trial court
erroneously applied Rule 608(b) to preclude him from introducing the second

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recording; (2) his constitutional arguments relating to the first and second
recordings; and (3) his due process argument relating to the third recording.
Because the record demonstrates that the defendant did not raise these
arguments in the trial court, they are not preserved for our review. We,
accordingly, decline to consider these arguments in the first instance on
appeal. See id.; see also State v. Alexander, 143 N.H. 216, 220 (1998)
(determining that defendant’s constitutional argument not preserved for
appellate review where defendant did not specifically assert constitutional
challenge before trial court).

We conclude that the defendant’s remaining arguments are preserved,
and consider the following issues in turn: (1) the defendant’s evidentiary
arguments relating to the third audio recording; (2) the defendant’s argument
that exclusion of the third recording violated his state and federal
constitutional rights to confrontation and to present all proofs favorable; and
(3) collectively, the defendant’s evidentiary arguments relating to the exclusion
of the first recording, the limitation of cross-examination of an inmate about
his prison disciplinary history, and the exclusion of the correctional officers’
testimony.

I. Exclusion of Third Recording — Evidentiary Argument

The third audio recording is of a conversation between State witness
William Morel, an inmate at the New Hampshire State Prison whose testimony
implicated the defendant in the July 26, 2010 incident, and an investigator.
The defendant sought to admit this recording at trial to demonstrate that Morel
received a benefit—specifically, a reduction in his inmate classification—in
exchange for providing testimony against the defendant. The State objected,
and the trial court sustained the State’s objection.

“The trial court has broad discretion to determine the admissibility of
evidence, and we will not upset its ruling absent an unsustainable exercise of
discretion.” State v. Stowe, 162 N.H. 464, 470 (2011). “To prevail under this
standard, the defendant must demonstrate that the trial court’s decision was
clearly untenable or unreasonable to the prejudice of his case.” Id.

On appeal, the defendant argues that the trial court erred in excluding
this audio recording under Rule 608(b). Rule 608(b) provides, in relevant part:

Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility, other than
conviction of crime as provided in Rule § 609, may not be proved
by extrinsic evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired
into on cross examination of the witness . . . concerning the
witness’ character for truthfulness or untruthfulness . . . .

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This rule “permits a cross-examiner to inquire into conduct that is probative of
the witness’s character for truthfulness or untruthfulness.” Stowe, 162 N.H. at
470. “Generally, however, the examiner must take the answer as the witness
gives it.” Id. This is because the rule “prohibits the examiner from introducing
extrinsic evidence, such as calling other witnesses, to rebut the witness’s
statements.” Id. (quotation omitted).

The defendant contends that Rule 608(b) applies only to a general attack
on a witness’s character for truthfulness or untruthfulness. He claims that the
third recording evidences Morel’s motive to provide testimony rather than his
general character for truthfulness or untruthfulness, and that, therefore, Rule
608(b) did not bar introduction of the recording at trial. In response, the State
contends that the trial court’s ruling precluding the defendant from introducing
the recording was proper.

The State also suggests that, in addition to relying upon Rule 608(b), the
trial court ruled that the third audio recording was inadmissible hearsay. See
N.H. R. Ev. 801(c) (“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”); N.H. R. Ev. 802 (“Hearsay is not admissible
except as provided by these rules or by other rules prescribed by the Supreme
Court pursuant to statutory authority.”). Based upon our review of the record,
we agree that the trial court made such a ruling. The defendant does not
challenge this basis for the trial court’s ruling on appeal. Because the trial
court’s hearsay ruling provided a secondary basis for the exclusion of the third
recording from trial—one which the defendant did not appeal—we uphold the
court’s decision to exclude the recording without addressing the merits of the
defendant’s argument under Rule 608(b). Cf. Koor Communication v. City of
Lebanon, 148 N.H. 618, 624 (2002) (upholding trial court’s grant of summary
judgment without addressing merits of plaintiff’s argument where trial court
articulated second basis for ruling and plaintiff did not properly challenge
secondary basis on appeal).

II. Exclusion of Third Recording — Constitutional Arguments

The defendant next argues that the trial court’s exclusion of the third
recording violated his state and federal constitutional rights to confrontation,
and to present all proofs favorable. See N.H. CONST. pt. I, art. 15; U.S.
CONST. amends. V, VI, XIV. We first address the defendant’s claim under the
State Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983). Part I, Article 15 of the State Constitution
provides, in pertinent part: “Every subject shall have a right to produce all
proofs that may be favorable to himself; to meet the witnesses against him face
to face, and to be fully heard in his defense, by himself, and counsel.” N.H.
CONST. pt. I, art. 15.

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 The defendant argues that the trial court’s preclusion of the third
recording violated his right to present all proofs favorable. Part I, Article 15 of
the State Constitution and the Compulsory Process Clause of the Sixth
Amendment to the Federal Constitution guarantee the defendant “the right . . .
to produce all proofs favorable to his defense.” State v. Newcomb, 140 N.H. 72,
79 (1995); see Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (explaining that,
as part of the specific rights secured by the Sixth Amendment, “criminal
defendants have the right to the government’s assistance in compelling the
attendance of favorable witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt”). However, neither
provision “entitle[s] the defendant to introduce evidence in violation of the rules
of evidence.” State v. Graf, 143 N.H. 294, 296–97 (1999); see Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”). Here, the trial court excluded the third audio
recording on hearsay grounds—a ruling not challenged on appeal. Accordingly,
we reject the defendant’s argument that the trial court’s refusal to allow him to
introduce the third recording violated his right to produce all proofs favorable.
See Graf, 143 N.H. at 296–97.

The defendant further argues that the trial court’s preclusion of the third
recording violated his right to confrontation. We have held that, incident to the
rights guaranteed under Part I, Article 15, is the opportunity to impeach a
witness’s credibility through cross-examination. State v. Miller, 155 N.H. 246,
253 (2007). The trial court “may not completely deny a defendant the right to
cross-examine a witness on a proper matter of inquiry,” but “[o]nce a defendant
has been permitted a threshold level of inquiry, . . . the constitutional standard
is satisfied, and the judge’s limiting of cross-examination is measured against
an unsustainable exercise of discretion standard.” Id. at 253-54 (quotation
omitted). “Thus, when the record reveals that a threshold level of inquiry was
allowed, we will uphold the trial court’s decision limiting the scope of further
cross-examination unless the defendant demonstrates that the court’s ruling
was clearly untenable or unreasonable to the prejudice of his case.” Id. at 254
(quotation omitted).

Here, the defendant does not argue that his ability to cross-examine
Morel about the recording was either denied or limited. Rather, he asserts
that, “by preventing counsel from playing the recording[] in the jury’s presence
during cross[-examination], the [trial] court deprived counsel of the opportunity
to persuade the jury of the validity of the line of attack on [Morel’s] credibility.”
The trial court permitted the defendant to extensively cross-examine Morel on
issues related to the recorded conversation. Defense counsel cross-examined
Morel at length about whether Morel requested benefits such as reclassification
from investigators, and about whether investigators in fact assisted with his
reclassification or provided him with any other benefits. She also questioned
Morel about the statements he made on the third recording. Specifically, Morel

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agreed with defense counsel that he had told an investigator that he
“appreciate[ed] the secretive [reclassification]” and asked the investigator to
“send Santa Claus a thank you message.” (Quotation omitted.) Although
defense counsel was precluded from eliciting the investigator’s responses to
Morel’s statements, defense counsel was nevertheless able to explore the
question of whether Morel received a benefit in exchange for his testimony.
Our review of the record demonstrates that the defendant was able to make a
sufficient threshold level of inquiry in his attempt to discredit Morel in the eyes
of the jury. See id. Accordingly, we conclude that exclusion of the third audio
recording did not violate the defendant’s right to confrontation.

The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. Roy, 167 N.H. at 290.
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution.

III. Exclusion of First Audio Recording, Limitation of Cross-examination about
Prison Disciplinary History, and Exclusion of Correctional Officers’ Testimony

The trial court excluded the first audio recording from trial. This
recording captured a conversation between Michael Mendoza, another inmate
at the New Hampshire State Prison whose testimony implicated the defendant
in the July 26, 2010 incident, and his wife during which the two argued. The
defendant contends that exclusion of this recording was error because the
recording was relevant to Mendoza’s motivation to testify against the
defendant.

The trial court also prohibited the defendant from questioning Mendoza
about Mendoza’s prison disciplinary history during recross-examination.
According to the defendant, Mendoza’s disciplinary history was relevant to
impeach Mendoza’s general credibility and, because it evidenced his desire to
obtain favorable consideration at an upcoming parole hearing, it was also
relevant to the issue of Mendoza’s motivation to testify against the defendant.

The trial court also excluded the testimony of two correctional officers.
The defendant sought to introduce the testimony of the two correctional officers
regarding a physical altercation that occurred at the New Hampshire State
Prison involving State witness Randall Chapman—another inmate at the prison
whose testimony implicated the defendant in the July 26, 2010 incident.
Specifically, the defense asserted that the officers would testify that Chapman
had been involved in a fight, and that video footage of that altercation, which
was no longer available, suggested that Chapman may have instigated the
fight, and may have acted in concert with another inmate. The defendant
argues that exclusion of this testimony was erroneous because it was relevant
to the issue of Chapman’s motive to testify at the defendant’s trial. The
defendant maintains that the officers’ testimony evidenced Chapman’s motive

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to testify for the prosecution, and that it countered the State’s position that
Chapman agreed to testify against the defendant only because the prison gang
with which he and the defendant were associated “turned on him.”

The defendant argues that: (1) the trial court erroneously relied upon
Rule 608(b) in excluding the first recording; (2) the trial court erroneously
prohibited him from cross-examining Mendoza about his disciplinary history
because, among other things, Mendoza opened the door to questioning
regarding his disciplinary record; and (3) the trial court erroneously relied upon
Rule 608(b) in excluding the correctional officers’ testimony and erroneously
ruled that the State did not open the door to it. The State responds to these
arguments on their merits, and argues, in the alternative, that any error in
excluding this evidence was harmless. We need not determine whether the
trial court erred in excluding the first audio recording, limiting cross-
examination about Mendoza’s disciplinary history, and excluding the
correctional officers’ testimony because, even if these rulings were erroneous,
any error was harmless. See State v. Botelho, 165 N.H. 751, 756 (2013).

The harmless-error doctrine recognizes the principle that the
central purpose of a criminal trial is to decide the factual question
of the defendant’s guilt or innocence, and promotes public respect
for the criminal process by focusing on the underlying fairness of
the trial rather than on the virtually inevitable presence of
immaterial error.

State v. Dupont, 149 N.H. 70, 74 (2003) (quotation omitted). “To establish that
an error was harmless, the State must prove beyond a reasonable doubt that
the error did not affect the verdict.” State v. Peters, 162 N.H. 30, 36 (2011).
“This standard applies to both the erroneous admission and exclusion of
evidence.” Id. An error may be harmless beyond a reasonable doubt if the
other evidence of the defendant’s guilt is of an overwhelming nature, quantity,
or weight, and if the evidence that was improperly admitted or excluded is
merely cumulative or inconsequential in relation to the strength of the State’s
evidence of guilt. Id. In making this determination, we consider the other
evidence presented at trial as well as the character of the erroneously admitted
or excluded evidence itself. Id.

The defendant was convicted of second degree murder and falsifying
physical evidence. See RSA 630:1-b, I(b); RSA 641:6, I. To convict the
defendant of the applicable variant of second degree murder, the State had to
prove beyond a reasonable doubt that he caused the death of another
“recklessly under circumstances manifesting an extreme indifference to the
value of human life.” RSA 630:1-b, I(b). “A person acts recklessly with respect
to a material element of an offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct.” RSA 626:2, II(c) (2016). “The risk must be of

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such a nature and degree that, considering the circumstances known to him,
its disregard constitutes a gross deviation from the conduct that a law-abiding
person would observe in the situation.” Id. Additionally, proof of the
applicable variant of falsifying physical evidence required the State to show
that, “believing that an . . . investigation [was] pending or about to be
instituted, [the defendant] . . . [a]lter[ed], destroy[ed], conceal[ed] or remove[ed]
any thing with a purpose to impair its verity or availability in such proceeding
or investigation.” RSA 641:6, I.

Here, the other evidence of the defendant’s guilt of these crimes was
overwhelming. The other evidence included the testimony of Mendoza, Morel,
and another inmate who witnessed the attack on the victim. All three of these
witnesses identified the defendant in court, and testified that the defendant
participated in the attack on the victim by “stomping” on the victim’s head
multiple times. They variously described the victim’s head as “bouncing” or
“lifting” off of the concrete floor as the defendant stomped on it. They also
testified that the defendant helped to move the victim’s unconscious body from
the area where the attack occurred. A nurse employed by the prison testified
that she was called to respond to a medical emergency and observed the victim
“laying on the mezzanine full of blood, not responsive and in very bad shape.”
She testified that the victim’s “face was swollen,” and that he “was bruised and
bloody” and “making an abnormal respiration sound.” Moreover, the State
presented medical testimony linking the attack to the victim’s subsequent
death.

The other evidence also included the testimony of Mendoza and
Chapman who witnessed the defendant’s participation in the destruction of
evidence. Mendoza testified that, after the attack, the defendant used a towel
to help clean the victim’s “[b]lood” off of the floor. Chapman testified that the
defendant cleaned up both “blood” and “brain matter.” Chapman also testified
that he assisted the defendant in cleaning up after the attack, and that the
defendant flushed the towel the defendant had used down a toilet. A prison
investigator testified that, at the time of the attack, the inmates had access to
showers, sinks, toilets, and drains, and a correctional officer testified that the
inmates had access to cleaning supplies.

The other evidence also included testimony that the defendant had a
motive for attacking the victim. Specifically, Mendoza, Morel, and Chapman
testified that the defendant was a member of a prison gang. Chapman, a fellow
gang member, testified that a high-ranking gang member believed that the
victim had informed on him, and that the defendant and Milton attacked the
victim because that is what the high-ranking gang member wanted them to do.
Chapman further testified that he tried to talk the defendant out of attacking
the victim, and that the defendant told Chapman that “he was going to do what
[the high-ranking gang member] wanted.” Morel also testified on the issue of
motive, stating that, before the attack, the high-ranking gang member told him

8
that the victim “was a rat and . . . was telling on things that he shouldn’t have
been telling on.” Chapman explained that a “rat” is someone who provides
incriminating information to the authorities. Further, another inmate testified
that, just prior to the attack, Milton and the defendant talked about how they
were “waiting on somebody” and were going to “hit him.” According to the
inmate, Milton and the defendant talked about the person they were waiting for
“being a snitch,” which he explained is the same thing as a “rat.” Mendoza,
Morel, and another inmate each testified that, during the attack, the defendant
and/or Milton called the victim a “rat.” Additionally, the State presented
testimony from a member of the East Coast Gang Investigators Association
explaining that members of the defendant’s gang who fail to follow gang rules
could face retribution from the gang.

Finally, the other evidence included the defendant’s confession to other
inmates and evidence showing that the defendant was conscious of his guilt.
Mendoza testified that, after the attack, the defendant confessed that he and
Milton “jumped [the victim] because [the victim] had snitched.” Morel testified
that the defendant told him that he “really didn’t mean to take it that far” and
that he had “flushed [the towel he used to clean up the victim’s blood] down the
toilet.” Moreover, Chapman testified that, after the attack, the defendant told
him that “he had snapped and things got out of control,” that “he never meant
for [the victim] to get hurt and killed,” that “he never meant for it to happen,”
that “he should have listened [to Chapman],” and that “he frigging should never
have got involved.”

Against this evidence, the first audio recording, the evidence of
Mendoza’s inmate disciplinary history, and the correctional officers’ testimony
would have been merely cumulative or inconsequential. See Peters, 162 N.H.
at 36. The evidence the defendant sought to admit was not direct evidence of
the crimes charged. Rather, as the defendant argues, the first audio recording
was relevant to Mendoza’s motive to testify, Mendoza’s prison disciplinary
history was relevant to both his general credibility and motive to testify, and
the correctional officers’ testimony was relevant to Chapman’s motive to testify.

The record contains ample other evidence that Mendoza was motivated to
testify by his desire to get out of prison. On cross-examination, Mendoza
agreed with defense counsel that he argued with his wife “every six months or
so,” and that they had one such argument—the argument captured by the first
audio recording—in the days leading up to the attack on the victim. He agreed
with defense counsel that these arguments were about the difficulties of
“having a husband in prison,” including the financial, emotional, and social
difficulties his wife faced. He further agreed with defense counsel that these
arguments with his wife were “hard,” and that they made him “want to get out
of prison really bad.” We thus conclude that the first audio recording was
“merely cumulative . . . in relation to the strength of the State’s evidence of
guilt.” Id.

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 For similar reasons, we also conclude that Mendoza’s disciplinary history
was inconsequential in light of other evidence of his motive to testify at trial. In
addition to Mendoza’s agreement with defense counsel that he “want[ed] to get
out of prison really bad” because it was hard on his marriage, Mendoza
testified that he had safety issues in prison. He agreed with defense counsel on
cross-examination that he had an upcoming parole hearing and that he was
“hoping to get parole.” He testified that, to be paroled, he had to have his
“programs done,” and agreed with defense counsel that he was worried he
would not get parole because he could not get into a certain program.

Moreover, although Mendoza’s disciplinary history was relevant to his
general credibility, there was ample other evidence demonstrating his lack of
trustworthiness. At trial, defense counsel elicited testimony from Mendoza
that, in 2008, he was convicted on four counts of witness tampering, one count
of falsifying physical evidence, and one count of accomplice to reckless
conduct. She also elicited testimony that, in 2011, Mendoza was charged with
additional crimes, including possession of Oxycodone, possession of cocaine,
and escape. Further, defense counsel elicited testimony that, in addition to his
2008 and 2011 crimes, Mendoza had been convicted on two counts of
aggravated battery on a law enforcement officer with a deadly weapon and one
count of carrying a concealed weapon. This type of evidence bears on
Mendoza’s general credibility in the same fashion as his disciplinary history.
See State v. Mayo, 167 N.H. 443, 458 (2015) (“Jurors ought to be informed of
what sort of person is asking them to take his word, and lack of
trustworthiness may be evinced by a [witness]’s abiding and repeated contempt
for laws which he is legally and morally bound to obey.” (quotation and
emphasis omitted)). In light of this other evidence of Mendoza’s lack of
trustworthiness, the impeachment value of Mendoza’s disciplinary history was
inconsequential.

The record likewise contains ample evidence of Chapman’s motive to
testify, rendering the anticipated testimony of the two correctional officers both
cumulative and inconsequential. As noted above, the defendant argues that
the officers’ testimony evidenced Chapman’s self-interested motive to offer
testimony because it: (1) evidenced his desire to curry favor with the
prosecution; and (2) countered the State’s position that Chapman agreed to
testify against the defendant only because the gang “turned on him.”

The officers’ testimony was cumulative of Chapman’s testimony on cross-
examination. Although Chapman’s testimony may have created the inference
that his altercation was the product of gang retaliation, he agreed with the
prosecutor that he was charged with a disciplinary violation after the
altercation, and testified that he pleaded guilty to the disciplinary charge. He
further agreed with defense counsel that a disciplinary violation of this nature
could interfere with his parole eligibility, that he was placed in secured housing

10
after the incident, and that he remained uninjured while his purported
attacker sustained injuries during the altercation.

In addition, the officers’ testimony was inconsequential in light of other
evidence of Chapman’s motive to testify. At trial, Chapman agreed with
defense counsel that he “[did not] want to be in jail or prison.” He testified that
he entered into a cooperation agreement with the State in exchange for “[a] few
months knocked off [his] minimum sentence” and, consequently, “[e]arly
release on [his] parole.” See United States v. Spriggs, 996 F.2d 320, 323 (D.C.
Cir. 1993) (explaining that a cooperation agreement “obviously gives the
witness an incentive to incriminate the defendant, guilty or not, in the hope of
leniency for himself”). He also agreed with defense counsel that he was paroled
despite having a major disciplinary violation on his record, and moved to
another correctional facility after he entered into the cooperation agreement.

For these reasons, we conclude that the State has met its burden of
proving that any error in excluding the evidence the defendant sought to admit
was harmless beyond a reasonable doubt.

Finally, any issues raised in the defendant’s notice of appeal, but not
briefed, are deemed waived. See State v. Cooper, 168 N.H. 161, 171 (2015).

Affirmed.

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

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