State of New Hampshire v. Kyle C. Buffum

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0191, State of New Hampshire v. Kyle C.
Buffum, the court on September 19, 2017, issued the following
order:

The defendant, Kyle C. Buffum, was indicted on one count each of
conspiracy to commit murder, accomplice to attempted murder, and criminal
solicitation. He pled not guilty by reason of insanity. After a four-day trial, the
jury found him sane and guilty of the three charged offenses. He appeals the
sentence imposed by the Trial Court (Nicolosi, J.) following his convictions. He
argues that the court erred by imposing a sentence “based, in part, on his
choices to have a trial and to appeal, and their effect on the victim” and asks that
we review his claim of error under our plain error rule. See Sup. Ct. R. 16-A. We
affirm.

The following evidence was adduced at trial. The defendant began to date
Samantha Heath when she was fifteen and he was nineteen years old. When
Heath’s parents found out, they attempted to end her contact with him. The
defendant provided Heath with a cell phone to continue the contact and offered
to let her move in with him. Heath moved in with the defendant, and his mother
and grandmother, when she was sixteen.

Heath and the defendant continued their relationship and eventually
moved into a duplex apartment. Although their relationship was originally
monogamous, they agreed to begin seeing other people. At some point, the
defendant was convicted of facilitating an underage alcohol house party, see RSA
644:18 (2016), and received a 30-day jail sentence. He served his sentence over
several weekends. During that time, Heath went to parties with the victim. The
defendant subsequently learned that Heath had been at parties and that she had
also had sexual relations with his friends.

The defendant began speaking of killing others who he believed had hurt
him. He and Heath developed a plan to kill the victim. After spending time with
the victim, Heath took her to an isolated area and stabbed her; the victim
survived.

Heath eventually pled guilty to attempted first degree murder. She
received a sentence of 20 years to life. The sentence included the condition that
five years of the maximum sentence could be suspended if she was of good
behavior and demonstrated genuine rehabilitation.
 The State obtained three indictments against the defendant. The
conspiracy to commit murder indictment alleged that the defendant agreed with
Heath to commit the crime of murder, and that in furtherance of the conspiracy,
Heath took the victim to a location and repeatedly stabbed her; and the
defendant sent text messages to Heath instructing her how to stab and dispose of
the victim’s body. The accomplice to attempted murder indictment alleged that:
(1) the defendant aided “Heath in planning and committing the crime of
attempted murder by encouraging Heath to murder [the victim] and telling her
how to kill [the victim] and dispose of the body”; (2) Heath, “[a]cting in concert
with and aided by [the defendant],” stabbed the victim multiple times; (3) the
defendant believed that the actions, “in concert with and aided by” Heath,
“constituted a substantial step towards the commission of the crime of attempted
murder”; and (4) the defendant acted with the purpose to cause the death of the
victim. The criminal solicitation indictment charged that the defendant
“commanded, solicited, and requested Samantha Heath to murder” the victim
and that he “acted with the purpose that Samantha Heath commit the offense of
murder.” The defendant pled not guilty by reason of insanity.

Following the jury’s verdict, the trial court sentenced him on the
accomplice to attempted murder conviction to 35 years to life, with the option
to “petition the court to reduce his minimum sentence by seven years if he has
been of good behavior while in prison.” The court sentenced the defendant on
the criminal solicitation and conspiracy to commit murder convictions to
concurrent fifteen-to-thirty-year sentences to run consecutively with the
attempted murder conviction if they were imposed; these sentences were
suspended for forty years.

On appeal, the defendant argues that the sentence imposed by the trial
court violated his rights under Part I, Articles 15 and 18 of the New Hampshire
Constitution and under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution. Specifically, he cites statements made by the trial
court during its sentencing soliloquy to argue that the court erred, when it
crafted his sentence, by considering his decisions to go to trial and to appeal
his convictions, and the effect of those decisions on the victim.

Because he failed to raise this argument in the trial court, he requests
that we review the issue under our plain error rule. See Sup. Ct. R. 16-A. For
us to find plain error: (1) there must be error; (2) the error must be plain; and
(3) the error must affect substantial rights. State v. Thomas, 168 N.H. 589,
604 (2016). If all three of these criteria are met, we may then exercise our
discretion to correct a forfeited error only if the error meets a fourth criterion:
the error must seriously affect the fairness, integrity, or public reputation of
judicial proceedings. Id.

We first address the defendant’s argument under the State Constitution
and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H.

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226, 231, 233 (1983). The State Constitution requires that the trial court
consider several objective factors before imposing any sentence, including
whether the sentence will meet the traditional goals of sentencing —
punishment, deterrence, and rehabilitation. State v. Burgess, 156 N.H. 746,
751 (2008); see N.H. CONST. pt. I, art. 18. We generally review a trial court’s
sentencing decision to determine whether its exercise of discretion is
sustainable. State v. Willey, 163 N.H. 532, 541 (2012). When, as here, the
defendant contends that his constitutional rights have been violated as a result
of that decision, our review as to whether there was a constitutional violation in
sentencing is de novo. Id. at 541; see also id. at 548 n.1 (Lynn, J., concurring
in part and dissenting in part).

The sentencing transcript includes 21 pages of statements made by the
State, defense counsel, the defendant, the defendant’s mother, and the victim.
After hearing these statements, the trial court took a brief recess and then
returned to impose sentence upon the defendant. The court first addressed the
three factors to be considered in sentencing:

My job as a sentencing judge is to consider three factors in
punishment. They are punishment, deterrence, and rehabilitation.
And all of the presentations I’ve heard today have addressed those.

I will tell you as for those factors, the most weighty one for
me today is punishment. And the least weighty one is
rehabilitation. Although my hope, as is in every single case, is that
when you are in prison that you manage to address whatever your
issues are or were that brought you to the place where you did
such an onerous act that led to the attempt to take the life of
another.

The reason why I’m not focusing on rehabilitation and that
my priority in this case is punishment, is that I don’t really see a
need for rehabilitation. You’ve presented to this Court without a
significant mental health history. I don’t see a significant mental
health issue as you stand before me today. I do not think that this
crime was borne out of mental health, mental illness. I do not
think it was the product of mental illness. And I think the jury’s
verdict on that has essentially said that. And as I say, I agree with
it.

Punishment is my focus. This case, your acts, combined
with Samantha Heath, came as close to one can come to murder.
There was not a stitch of conduct on your part that brought it
away from that end.

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 The court went on to state that it had “no sense that you truly believed
that what you did was wrong.” The court explained:

And I’m going to put on the record so that everybody
understands my thinking in rendering this sentence, I am issuing
this sentence because I believe after listening to all of the
testimony, after reading all of the text messages, after listening
particularly to your testimony, that this crime would not have
occurred but for your actions.

The court further explained that “when I look at the text messages, when
I listened to [Heath’s] testimony and your admissions, I think but for your
persistence in making this murder happen, but for your psychological
manipulation and your narcissism, I don’t think that this crime would ever
have been committed.” The court also addressed the defendant’s premeditation
and lack of remorse:

I am also sentencing you to those numbers because of the
premeditation that I saw in this case. There was a length of
planning that was not of impulse. It went on for months. It was
chilling to listen to the plans to shoot, stab, all the different ideas
that the two of you exchanged in order to cause [the victim’s]
death.

I’m also considering your prior criminal record. It’s not a
record that reflects violence, but it certainly reflects a disregard for
the law.

I am considering your defense, which as I say, I thought was
stretching beyond. And so I am considering the fact that to me
that was a defense of excuse and justification. And as I say, I
didn’t see much regard for the value of human life in your actions.

I am considering your statement to me today. It continues to
show a lack of acceptance of responsibility. Two years later, you’re
still passing the blame. And I don’t think I got this quote exactly
right. You said your homicidal and suicidal condition was
bestowed upon you by the acts of others.

I’m considering the fact that you also planned to kill others,
also innocent people who did nothing that was significant enough
to warrant death.

And I’m considering the extent of the injuries to [the victim].

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 The defendant cites the following excerpt from the trial court’s detailed
sentencing soliloquy to support his argument that the court impermissibly
considered his decision to seek a jury trial, his potential appeal, and the effect
on the victim when it crafted its sentence.

Samantha Heath pled. She had a plea bargain with the
State. That was her choice. The Judge who sentenced Samantha
Heath, it was not me, had different considerations, one of which
was closure to the victim in that there would be no appeal, that
there would be no sentence review, that she could walk free of this
and not have to ever look back again.

And I assume you’re going to appeal your conviction and
your sentence. I assume that you’re going to go to sentence
review. And each time that happens, [the victim] has to relive that
crime.

To review the defendant’s claim of error, we examine the challenged
language in the context of the court’s complete soliloquy. We note that a trial
court may impose a more severe sentence upon a defendant who rejects a plea
bargain and proceeds to trial. See State v. Fraser, 120 N.H. 117, 122-23 (1980)
(“Encouraging guilty pleas by providing the opportunity for lesser punishment
is not unconstitutional, but is an important part of plea negotiations. . . . This
does not entitle the defendant, who went to trial and was convicted, to the
same consideration.”); Corbitt v. New Jersey, 439 U.S. 212, 219 (1978) (“We
have squarely held that a State may encourage a guilty plea by offering
substantial benefits in return for the plea.”).

In this case, the record demonstrates that the trial court correctly
considered the requisite three factors in reaching its sentencing decision. See
Burgess, 156 N.H. at 751. The court also reviewed the applicability of any
mitigating factors. In closing, the trial court addressed remarks that had been
made by defense counsel earlier during the sentencing hearing, including the
argument that the defendant should receive no greater sentence than that
received by Heath. In rejecting that argument, the trial court explained that
the defendant was being punished more severely than Heath “because your
acts were the impetus for this crime.” The court then stated:

And if I had sentenced Ms. Heath, if she were before me
today without a plea bargain, she would get the same sentence
from me that you’re getting. I do think that you’re both equally
responsible for this crime, but she’s not before me today. And she
was not before the other judge without a plea bargain in place.

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Thus, the cited statements made by the trial court were made not in the
context of imposing sentence but rather in response to defense counsel’s earlier
remarks.

Having reviewed the challenged statements in the context of the trial
court’s entire sentencing soliloquy, we find no error under the State
Constitution. We similarly find no error under the Federal Constitution.

Affirmed.

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

Eileen Fox,
Clerk

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