State v. Anthony Collins

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0097, State of New Hampshire v. Anthony
Collins, the court on March 1, 2018, issued the following order:

Having considered the brief filed by the defendant, Anthony Collins, the
State’s memorandum of law, and the record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
defendant appeals his conviction for first degree assault, following a jury trial
in Superior Court (Kissinger, J.). See RSA 631:1, I(b) (2016). On appeal, he
argues that the trial court unsustainably exercised its discretion when it
admitted into evidence color photographs depicting the victim’s injuries. He
also argues that the trial court committed plain error when it failed to strike,
sua sponte, certain testimony by the victim. See Sup. Ct. R. 16-A. We affirm.

I. Admissibility of the Photographs

The defendant was charged with having committed first degree assault
when he “knowingly caused bodily injury” to the victim “by means of a deadly
weapon, when he stabbed [the victim] in the hand and cut [the victim’s] face
with a knife.” See RSA 631:1, I(b). The indictment further alleged that the
knife was a deadly weapon because “the manner in which it was used is known
to be capable of producing death or serious bodily injury.” See State v. Hatt, 144 N.H. 246, 248 (1999).

During the State’s direct examination of the victim, the State sought to
introduce color photographs depicting the victim’s injuries. Defense counsel
objected, arguing that the photographs were inadmissible under New
Hampshire Rule of Evidence 403. See N.H. R. Ev. 403 (2016) (amended 2017).
The trial court overruled the objection and allowed the photographs to be
admitted into evidence.

On appeal, the defendant argues that the trial court misapplied Rule
403. Under Rule 403, the trial court may exclude relevant evidence if its
probative value is substantially outweighed by “the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Id.
Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a
jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or
trigger other mainsprings of human action that may cause a jury to base its
decision on something other than the established propositions in the case.
State v. Ainsworth, 151 N.H. 691, 696 (2005). However, “[u]nfair prejudice is
not . . . mere detriment to a defendant from the tendency of the evidence to
prove his guilt, in which sense all evidence offered by the prosecution is meant
to be prejudicial.” State v. Jordon, 148 N.H. 115, 117-18 (2002) (quotation
omitted). “Rather, the prejudice required to predicate reversible error is an
undue tendency to induce a decision against the defendant on some improper
basis, commonly one that is emotionally charged.” Id. at 118 (quotation
omitted).

Because the trial court is in the best position to gauge the prejudicial
impact of particular evidence, see State v. Tabaldi, 165 N.H. 306, 323 (2013),
we accord the trial court considerable deference in determining whether the
probative value of evidence is substantially outweighed by the danger of unfair
prejudice, Ainsworth, 151 N.H. at 696. We will not disturb its decision absent
an unsustainable exercise of discretion. Id. To show an unsustainable
exercise of discretion, the defendant must demonstrate that the court’s ruling
was clearly untenable or unreasonable to the prejudice of his case. Id.

The trial court reasonably determined that the probative value of the
photographs was not substantially outweighed by the danger of unfair
prejudice to the defendant. See Tabaldi, 165 N.H. at 323. The photographs
“were relevant as bearing on the nature and the degree of the crime and the
defendant’s purpose and mental state, as well as an aid in making clear to the
jury oral descriptions of the [victim’s] injuries.” State v. White, 105 N.H. 159,
162 (1963). The photographs were also probative of whether the knife was
used as a deadly weapon. See Hatt, 144 N.H. at 248 (explaining that a weapon
is deadly if it may be objectively understood to be capable of causing death or
serious bodily injury in the manner in which it is used, intended to be used or
threatened to be used).

In the context of this case, we cannot say that the photographs were
likely to have any greater emotional impact on the jury than the victim’s
testimony describing his injuries. See Tabaldi, 165 N.H. at 323. Although the
photographs “may have been prejudicial, we cannot conclude that [they were]
so inflammatory as to substantially outweigh [their] probative value.” Id.
(quotation omitted).

II. Plain Error

During the State’s direct examination of the victim, the prosecutor asked
him how he felt waiting for the fire department to arrive after the stabbing, and
the victim responded:

Oh, what did it feel like waiting? Complete panic. You know,
having a wife who is pregnant with your daughter and not
knowing. You know, I hadn’t seen my face. I didn’t know the
severity of the injuries. And all I could think about was my wife

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 and my unborn daughter and my son. I mean it was torture. I
didn’t know if whoever this was was going to come back and do it
again. Just shock and terror and fear.

Shortly thereafter, the prosecutor asked the victim to explain his prior
testimony that one of the long-term effects of the stabbing had been
“emotional,” and the victim responded:

It’s been the worst 14 months of my life. I’ve had to deal with this
with no closure, you know. I feel like I’m always having to look
behind my shoulder because I had — I didn’t have any idea who it
was that did it and if it was going to happen again. It’s just — it’s
been a nightmare, you know. My family’s been looking at moving
to try to escape it. I don’t know how else to describe it, other than
just a nightmare.

The defendant did not object to the admission of this testimony. On appeal, he
argues that the admission constituted plain error. 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) (quotation omitted). “If all three of these conditions 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. (quotation omitted).
“The plain error rule is used sparingly, however, and is limited to those
circumstances in which a miscarriage of justice would otherwise result.” Id.
(quotation omitted).

“Because the defendant did not object to the challenged testimony, and
the trial court made no ruling on its admissibility, the pertinent question is
whether the trial court erred in failing sua sponte to strike that testimony.” Id.
(quotation omitted). “We have never held that a trial court must sua sponte
strike a witness’s testimony.” Id. (quotation omitted). “A trial court might have
that obligation when there could be no dispute that certain testimony impaired
the defendant’s substantial rights and adversely affected the fairness, integrity,
or public reputation of judicial proceedings”; however, “this case . . . does not
present such a situation.” Id. (quotation omitted).

“Even if we were to assume that there was error and that it was plain,
the error must affect substantial rights.” Id. at 606. This third prong of the
plain error test “is similar to the harmless error analysis we use to evaluate
preserved claims of error, with one important distinction: whereas the State
bears the burden under harmless error analysis, the defendant bears the
burden under the plain error test.” State v. Mueller, 166 N.H. 65, 70 (2014).
“To meet this third prong, the defendant must demonstrate that the error was

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prejudicial, i.e., that it affected the outcome of the proceeding.” Thomas, 168
N.H. at 606 (quotation omitted). “We will find prejudice under the third prong
when we cannot confidently state that the jury would have returned the same
verdict in the absence of the error.” Id. (quotation omitted).

The defendant has failed to demonstrate that admission of the challenged
testimony, even if erroneous, affected the outcome of the proceeding. The
challenged testimony was merely cumulative of testimony to which the
defendant did not object at trial and that he does not challenge on appeal. For
instance, in response to the prosecutor’s question about why the victim tried to
contact his wife after he was stabbed, the victim testified: “My wife was
pregnant with my now nine month old daughter and it was all I could think of
because I didn’t know — you know, I was in shock. I didn’t know the severity
of the injuries. I was terrified.” The victim also testified that, when he first saw
the assailant walking towards him “at an extremely brisk pace with his hand
up with a knife in his hand,” he first felt confused “[a]nd then sheer terror.”
Additionally, in response to the prosecutor’s question about “the long-term
physical effects” of the stabbing, the victim testified that “[e]motional stress has
been the worst part of it.”

The challenged testimony was inconsequential in relation to the evidence
of the defendant’s guilt, which was overwhelming. The victim was the manager
of a store in Manchester and, while he was working behind the cash register,
he was stabbed by an assailant wearing a white sweatshirt and a black ski
mask. Another store employee saw that the assailant had a backpack. A
customer observed the attack and saw the assailant run from the store. The
customer gave chase. He saw the assailant pull off his mask and throw
something. The customer never lost sight of the assailant. The assailant ran
into the woods and, then, waded into nearby water.

When police arrived on the scene, they observed that the assailant was
wearing a white sweatshirt and had a backpack. The police yelled to the
assailant to come out of the woods and show his hands. Eventually, the
assailant dropped his backpack and went up a hill toward the police where the
police grabbed him, put him on the ground, and subdued him with a “Taser.”
The assailant, later identified as the defendant, was arrested. The customer
testified that the man whom the police arrested was “absolutely” the same man
who had assaulted the victim. A black ski mask was found on the trail to the
woods, and a backpack was found near the water. The mask and backpack
were approximately 100 feet apart. Inside the backpack was a cardboard
“wrapper” for “a Royal Norfolk three-inch paring knife.” The knife used in the
assault was never recovered.

Given the record before us, we are confident that the jury would have
returned the same verdict even if it had not heard the challenged testimony.

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See id. Accordingly, we conclude that the defendant has failed to demonstrate
that the trial court committed plain error.

Affirmed.

Hicks, Lynn, Bassett, and Hantz Marconi, JJ., concurred.

Eileen Fox,
Clerk

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