State of New Hampshire v. Daniel King

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0306, State of New Hampshire v. Daniel
King, the court on September 19, 2017, 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, Daniel King, appeals his convictions on two counts of
indecent exposure, see RSA 645:1 (2016), following a jury trial, arguing that
the Superior Court (O’Neill, J.) erred in: (1) precluding hearsay testimony of
communications among witnesses about their observations of the incident;
(2) allowing evidence of his departure from New Hampshire after being
interviewed by the police; (3) denying his motion to set aside the verdicts as
against the weight of evidence; and (4) failing to order a new trial in response to
an incident of juror misconduct.

The defendant first argues that the court erred in precluding hearsay
testimony of communications among the juvenile eyewitnesses about their
observations of the incident. We accord the trial court considerable deference
in determining the admissibility of evidence. State v. Lisasuain, 167 N.H. 719,
725 (2015). We will not disturb its decision absent an unsustainable exercise
of discretion. Id. To demonstrate an unsustainable exercise of discretion, the
defendant must show that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. Id.

The record shows that defense counsel asked one of the juvenile
witnesses, “did everyone say they saw the man with his pants down?” The
State objected, stating, “He’s asking for hearsay about what everyone else saw.”
Defense counsel stated that the theory of the defense was that the witnesses’
memories had been “co-mingled, that they’ve heard things from other people.”
The trial court sustained the objection. On appeal, the defendant argues that
the trial court should have allowed the testimony pursuant to the residual
exception to the hearsay rule, New Hampshire Rule of Evidence 803(24). At
trial, the defendant did not specifically cite Rule 803(24) in arguing for the
admissibility of this evidence. Assuming, without deciding, that this issue is
preserved for review, but see State v. Gordon, 161 N.H. 410, 417 (2011)
(contemporaneous and specific objection is generally required to preserve an
issue for appellate review), we find no error.
 Unless it falls within a recognized exception, hearsay evidence is
generally inadmissible. State v. Lisasuain, 167 N.H. at 725; see N.H. R. Ev.
802 (hearsay not admissible except as provided by rules). Under former Rule
803(24) (revised and renumbered as Rule 807 effective July 1, 2017), a
statement not covered by other hearsay exceptions, but having signs of
trustworthiness, is not excluded by the hearsay rule “if the court determines
that: (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interest of justice will be best
served by admission of the statements into evidence.” N.H. R. Ev. 803(24)
(former rule).

We conclude that the defendant has failed to meet the test of Rule
803(24) because he failed to show that the hearsay statement that he sought to
introduce was more probative of what the witnesses observed than any other
evidence. The defendant was not precluded from cross-examining the State’s
witnesses about their observations, and he does not assert that other
eyewitnesses to the incident were unavailable for trial. Upon this record, we
cannot conclude that the trial court unsustainably exercised its discretion in
precluding the evidence. See State v. Lisasuain, 167 N.H. at 725.

The defendant also argues that the court’s decision deprived him of his
state constitutional right to cross-examine adverse witnesses. Assuming,
without deciding, that this issue is preserved for review, but see State v.
Winstead, 150 N.H. 244, 246 (2003) (constitutional issue must be brought to
trial court’s attention to preserve issue for appeal), the record shows that the
trial court allowed the defendant to cross-examine the State’s witnesses about
the fact that they communicated with one another about their observations
before they spoke with the police, and to argue that their testimony was
influenced by their communications. Upon this record, we conclude that the
trial court allowed the defendant sufficient cross-examination to meet
constitutional standards. See State v. Locke, 149 N.H. 1, 11 (2002).

The defendant next argues that the trial court erred in permitting the
State to introduce evidence that he left New Hampshire after being interviewed
by the police, asserting that there were reasonable explanations for his
departure other than consciousness of guilt. He asserts that, as a homeless
man, he had fewer ties to New Hampshire, and that a reasonable juror could
have concluded that he traveled south before the winter in search of warmer
weather. In addition, he argues, the circumstances did not evidence
consciousness of guilt. He states that he waived his Miranda rights and
answered the interviewing officer’s questions about the incident; moreover, he
asserts, the officer did not inform him that he would be arrested or that he
should remain in New Hampshire.

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 The State was not required to prove that the defendant was aware that
he was suspected of a crime before evidence of his flight could be admitted.
State v. Glidden, 123 N.H. 126, 134 (1983). When presented with evidence of
flight, the trial court makes the initial determination on its admissibility, and
the jury decides the weight and credibility to be given to the evidence. State v.
Torrence, 134 N.H. 24, 27 (1991). We will uphold the trial court’s ruling absent
an unsustainable exercise of discretion. See State v. Lisasuain, 167 N.H. at
725. Although evidence of post-offense flight may support a variety of
inferences, one such inference is that the defendant was conscious of his guilt.
State v. Philbrook, 138 N.H. 601, 603 (1994).

After admitting evidence that the defendant was arrested in Hot Springs,
Arkansas, the trial court instructed the jury as follows:

You have heard evidence that may show that the Defendant fled or
attempted to flee. It is up to you to decide whether the evidence
shows this. If you believe that it does, I instruct you that flight
may be motivated by a variety of reasons. Flight does not create a
presumption of guilt. . . . However, you may consider flight as
tending to show feelings of guilt, and you may also consider
feelings of guilt as evidence . . . tending to show actual guilt, but
you are not required to do so.

Based upon this record, we cannot conclude that the trial court’s decision to
allow the introduction of evidence of the defendant’s departure from New
Hampshire constituted an unsustainable exercise of discretion. See State v.
Lisasuain, 167 N.H. at 725.

The defendant also suggests, without elaboration, that the admission of
this evidence constituted an improper comment on his constitutional right to
travel. However, he cites no authority, and we are not aware of any, that
precludes comment, on constitutional grounds, on his decision to travel out of
state. Accordingly, we decline to address this issue further. See Keenan v.
Fearon, 130 N.H. 494, 499 (1988) (“off-hand invocations” of constitutional
rights supported by neither argument nor authority warrant no extended
consideration).

The defendant next argues that the trial court erred in denying his
motion to set aside the verdicts. Although the defendant argued in his motion
that the verdicts were against the weight of the evidence, he argues on appeal
that the evidence was insufficient to support them. To prevail upon a challenge
to the sufficiency of the evidence, the defendant must demonstrate that no
rational trier of fact, viewing all of the evidence and all reasonable inferences from
it in the light most favorable to the State, could have found guilt beyond a
reasonable doubt. State v. Collyns, 166 N.H. 514, 517 (2014). Our standard of
review is de novo. Id. To prevail upon a challenge to the weight of the evidence,
the defendant must establish that the verdict is one that no reasonable jury
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could have returned. State v. Durgin, 165 N.H. 725, 734 (2013). This presents a
question of fact for the trial court, which we review for an unsustainable exercise
of discretion. Id.

The State’s witnesses described acts of indecent exposure. Two of the
witnesses identified the defendant in a photo array before trial and in the
courtroom at trial as the person who committed the crimes. Based upon this
record, we conclude that the evidence was sufficient to support the verdicts.
See State v. Collyns, 166 N.H. at 517. The trial court found that although the
defendant arguably identified several discrepancies in the evidence, the verdicts
were not contrary to the weight of the evidence. Based upon this record, we
cannot conclude that the trial court’s decision denying the motion to set aside
the verdict as against the weight of the evidence constituted an unsustainable
exercise of discretion. See State v. Durgin, 165 N.H. at 734.

Finally, the defendant argues that the trial court erred in failing to order
a new trial in response to an incident of juror misconduct. A defendant has a
right to be tried by a fair and impartial jury. State v. Lamy, 158 N.H. 511, 522
(2009). Any juror found to be disqualified before or during trial should be
removed. Id. It is within the trial court’s discretion to determine what
constitutes an adequate inquiry into juror misconduct. Id. at 523. “The most
common approach is to remove the offending juror and undertake individual
voir dire of the panel.” Id. “This is a fact-specific determination, which we
review for an unsustainable exercise of discretion.” Id.

The record shows that, during a chambers conference before the third
day of trial, juror number three confirmed that, after the second day of trial,
she hugged the mother of one of the witnesses. In a separate chambers
conference, the court asked juror number six, who witnessed the incident,
whether she could remain impartial. After receiving such assurance from juror
number six, and confirming that juror number six had not discussed her
observations of juror number three with the other jurors, the court proposed
excusing juror number three and allowing juror number six to remain on the
jury. Defense counsel, after conferring with the defendant, agreed with the
court’s proposal and did not seek any additional remedy. We cannot conclude
that the trial court unsustainably exercised its discretion in failing to order a
new trial under these circumstances. See State v. Lamy, 158 N.H. at 523.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.

Eileen Fox,
Clerk

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