State of New Hampshire v. Blake Colella

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0442, State of New Hampshire v. Blake
Colella, the court on April 16, 2021, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. Following
a jury trial in Superior Court (Colburn, J.), the defendant, Blake Colella, was
convicted of witness tampering, see RSA 641:5, I(b) (2016), and was acquitted
of first degree assault, second degree assault, criminal threatening, and on two
counts of cruelty to animals, see RSA 631:1 (2016) (amended 2017); RSA 631:2
(2016) (amended 2017); RSA 631:4 (2016); RSA 644:8 (2016) (amended 2018,
2019).1 He appeals, arguing that the trial court erred in admitting evidence of
an alleged incident in Fall River, Massachusetts, (“Fall River conduct”). The
State counters that the trial court did not err in admitting this evidence and,
alternatively, that any error was harmless. We affirm.

I

The following facts and procedural history are taken from the record of
the hearing on the State’s motion in limine or from trial. The defendant’s first
and second degree assault, criminal threatening, and cruelty to animals
charges stemmed from his alleged conduct occurring on or about April 22,
2017. The witness tampering charge resulted from his conduct on August 16,
2018. In June 2019, the defendant went to trial on all of his charges.
Evidence of the Fall River conduct, allegedly occurring on April 19, 2017, was
admitted at trial.

Prior to trial, the court addressed the admissibility of the Fall River
conduct evidence in response to the State’s motion in limine. The court ruled,
over the defendant’s objection, that this evidence was intrinsic to the charged
conduct occurring on or about April 22, 2017, i.e., to the alleged conduct
underlying the first and second degree assault, criminal threatening, and
cruelty to animals charges. It also ruled in the alternative that the Fall River
conduct was admissible under New Hampshire Rule of Evidence 404(b), “for
largely the same reasons” cited in its intrinsic evidence ruling, but also to
“understand why [the victim] would not have simply run away from [the]
defendant, [because] evidence of . . . the prior assaults committed upon [the

1 The defendant was also acquitted of the domestic-violence variants of first degree assault,

second degree assault, and criminal threatening. See RSA 631:1, :2, :4.
victim] by [the] defendant, would indeed [be] quite relevant. Viewed in this
light, the evidence tend[s] to prove, not necessarily [the] defendant’s state of
mind but rather [the victim’s].” (Quotation omitted.)

At trial, the following evidence was presented to the jury. On April 19,
2017, the victim drove to Plymouth, Massachusetts, picked up the defendant,
her then husband, and drove him to Fall River, where the Fall River conduct
allegedly occurred. According to the victim’s testimony: The defendant took the
victim’s cell phone and began searching it, telling her that he wanted to find
out if she had been cheating on him. After finding a male co-worker’s name in
the victim’s phone, the defendant accused her of cheating. The victim
attempted to explain that she did not cheat on the defendant, but the
defendant became “irate” and punched her in the arm so hard that her head
bounced off the driver’s-side window. She continued to drive, and the
defendant continued to scream at her. The victim eventually pulled the car
over, at which point the defendant punched her in the face three times. The
defendant then grabbed the victim by the throat, pushed her into the backseat,
and told her to get down so that no one would see her because her face was
bleeding. While confining the victim to the backseat of the car, the defendant
kept her cell phone, and he drove to her apartment in Nashua. The victim
testified that she did not leave her apartment that night or call the police
because she was afraid of the defendant, and he told her that if she called the
police, he was going to kill her.

On or about April 22, 2017, the defendant allegedly engaged in conduct
that resulted in the first and second degree assault, criminal threatening, and
cruelty to animals charges being brought against him in New Hampshire.
According to the victim’s testimony: That day, the defendant and the victim
went out to dinner and went shopping, where the defendant applied for a store
credit card. His application was denied, and he blamed the victim. After
returning to her apartment, the defendant told the victim to sit down in the
kitchen and not to move. He repositioned his watch so its face was on top of
his knuckles and told the victim that he was “going to cave [her] face in for
ruining his credit, [and] ruining his life.” When the victim’s cat walked into the
kitchen, the defendant told the victim that he was either going to “break [her]
cat’s neck and make [her] bury him,” or “brand [her] for what [she was].” The
victim pleaded with the defendant not to hurt her cat, but the defendant kicked
the cat, which “flew through the air” and “skidded into the living room.” Next,
the defendant grabbed the victim by the throat and choked her. He then told
her to stand up and take off her shirt. The defendant began carving letters into
her back with a kitchen knife, then pointed the knife at her and said, “if I stab
you . . . you’ll die in five minutes.” The incident stopped when the victim
begged the defendant to kill her. Neither she nor the defendant left the
apartment that night.

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 The next day, April 23, the defendant left in the victim’s car, and she
called the police “several hours” later. She was interviewed by the police, and
the defendant was subsequently arrested and was charged with first and
second degree assault, criminal threatening, and cruelty to animals. The
victim’s call to the police on April 23 was the first time she reported the alleged
incident on April 22 and also the first time she reported the alleged Fall River
conduct on April 19. The victim was confronted on cross-examination with her
delay in reporting, and she testified that she was afraid of the defendant and
what would happen if he knew she had called the police. As related to the Fall
River conduct, the jury heard that the charges brought by the Commonwealth
of Massachusetts were later dropped, apparently due to the victim’s lack of
cooperation. She testified that, in that case, she “claimed spousal privilege out
of fear and intimidation.”

Evidence was also adduced that the victim sent two letters to the New
Hampshire prosecutors, one in June 2018 and one on August 10, 2018, both
explaining that she did not want to participate in the case against the
defendant, that she was writing the letters of her own accord, and that her
reasons for writing the letters were “private.” However, the victim testified that
she wrote these letters because she was afraid that the defendant would hurt
her, or have “certain third parties” hurt her, if she testified against him, and
also that the defendant told her to write the letters.

On August 16, 2018, the defendant engaged the victim in a text message
exchange, which formed the basis for his witness tampering charge. The
exchange read:

Defendant: “My lawyer is going to eat you alive. Everything will
come out.”

Victim: “Such as?”

Defendant: “Every sick secret you have in front of the jury.”

Victim: “Okay, whatever those are.”

Defendant: “And I will have recorded everything.”

Victim: “My questioning you as my spouse, okay.”

Defendant: “You forgot everything I know.”

Victim: “Apparently I h[a]ve.”

Defendant: “And he’s getting all your records, every jail you’ve been
to.”

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The victim testified that she understood these messages to mean that the
defendant was telling her not to testify, and if she did, then the things
referenced would occur. The victim denied that she responded, “Absolutely
not,” when the defendant’s mother sent a text message to her saying, “And he’s
definitely not tampering with you.”

Before the Fall River conduct was admitted at trial through the victim’s
testimony, the defendant noted his pretrial objection again. No limiting
instruction was requested at that time, but the State inquired as to an
instruction during trial later that day. The parties agreed to the trial court’s
proposed limiting instruction and agreed that the court would instruct the jury
after the prosecutor completed his direct examination of the victim and before
the defendant began his cross-examination. The jury was then instructed:

Evidence has been introduced that the Defendant is alleged to have
engaged in other crimes, wrongs, or acts associated with
assaulting [the victim] on April 19th, 2017, in Fall River,
Massachusetts. You may not consider this as evidence of the
Defendant’s character or to conclude that he acted in conformity
therewith on April 22nd, 2017. Rather, you may only consider this
evidence for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Keep in mind that the Defendant is not on
trial for the events that allegedly occurred in Fall River,
Massachusetts. It is your duty to decide whether the State has
proven beyond a reasonable doubt that the Defendant committed
the particular crimes charge[d] on April 22nd, 2017 and August
16, 2018, only.

When instructing the jury after closing arguments, the trial court
delivered the same instruction, with, as emphasized, one addition: “Rather, you
may only consider this evidence for other purposes, such as, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident, or delay in reporting by the alleged victim.” (Emphasis added.)
The defendant had objected to the addition of this language, as proposed by the
trial court, because “it’s not part of the standard instruction and may highlight
too much coming from the Court as an instruction to — that [the jury] should
find it,” and due to his standing pretrial objection to the admissibility of the
Fall River conduct.

The case was submitted to the jury, and it found the defendant not guilty
of the first and second degree assault charges, the criminal threatening
charges, and the cruelty to animals charges. The jury found him guilty of
witness tampering. See RSA 641:5, I(b). This appeal followed.

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 II

On appeal, the defendant makes several arguments that the admission of
evidence of the Fall River conduct was error. We review the trial court’s ruling
on the admissibility of evidence for an unsustainable exercise of discretion, and
will reverse only if it was clearly untenable or unreasonable to the prejudice of
the defendant’s case. State v. Papillon, 173 N.H. 13, 24 (2020). However, we
need not decide whether the trial court erred in admitting the Fall River
conduct because we agree with the State that any error in admitting this
evidence was harmless beyond a reasonable doubt.

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.

Id. at 28 (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. Id. This standard applies to both the erroneous admission and
exclusion of evidence. Id. An error may be harmless beyond a reasonable
doubt if the alternative evidence of the defendant’s guilt is of an overwhelming
nature, quantity, or weight and if the improperly admitted evidence is merely
cumulative or inconsequential in relation to the strength of the State’s evidence
of guilt. Id. at 28-29. In making this determination, we consider the
alternative evidence presented at trial as well as the character of the
erroneously admitted evidence itself. Id. at 29.

Any error in admitting the Fall River conduct was harmless beyond a
reasonable doubt with respect to the defendant’s witness tampering conviction.
To convict the defendant of witness tampering as charged, the State was
required to prove that on or about August 16, 2018, he, believing that an
official proceeding as defined in RSA 641:1, II was pending, purposely
attempted to induce or otherwise cause the victim to withhold her testimony by
sending her text messages stating, “my lawyer is going to eat you alive,”
“everything will come out,” “every sick secret you have in front of a jury,” “I will
have recorded everything,” and “I know everything about you,” while
indictments were pending against him for assaulting her. See RSA 641:5, I(b);
see also RSA 641:1, II (2016) (defining “official proceeding”). See generally RSA
641:5, I(b) (a person is guilty of witness tampering if, “[b]elieving that an official
proceeding . . . or investigation is pending or about to be instituted, he
attempts to induce or otherwise cause a person to . . . [w]ithhold any
testimony, information, document or thing”); State v. Moscone, 161 N.H. 355,
359 (2011) (explaining that in State v. Kilgus, 125 N.H. 739, 743 (1984), “[w]e
concluded, without analysis, that the trial court used the proper mens rea

5
when it instructed the jury that ‘the defendant had to act purposely when he
attempted to get a person to give the police false information.’ Since Kilgus, we
have required a purposeful mental state for witness tampering convictions.”
(brackets and citation omitted)).

The evidence of the defendant’s guilt on the witness tampering charge
was overwhelming. The text message exchange on August 16, 2018, was
presented to the jury as an exhibit and discussed at length in the victim’s
testimony. Those text messages from the defendant included, “My lawyer is
going to eat you alive. Everything will come out,” and “Every sick secret you
have in front of the jury.” The jury heard that the victim understood those text
messages to mean “[t]hat [she] was being told not to testify and this is what
would happen, this would be the outcome should [she] go and testify.” The
jury also heard that earlier in August 2018, and in June 2018, the victim sent
letters to the prosecutors “regarding [her] intention not to testify against [her]
husband,” saying she did not want to participate in the case against him, and
that her reasons for not wanting to do so were “private.” The victim testified
that the defendant told her to write those letters and that she was afraid of
what would happen if she testified against him, including that “certain third
parties had been instructed” to deal with her accordingly. See State v. Castine, 172 N.H. 562, 565 (2019) (“The evaluation of witness credibility and the weight
given to witnesses’ testimony are issues for the jury to resolve.” (brackets and
quotation omitted)).

Against this evidence of the defendant’s guilt, the admission of the Fall
River conduct was cumulative and inconsequential. See State v. Edic, 169
N.H. 580, 590 (2017). To the extent the defendant argues that the Fall River
conduct was prejudicial because of its similarity to the charged conduct, any
similarity between the Fall River conduct and the conduct underlying the
defendant’s witness tampering charge pales in comparison to the similarity
between the Fall River conduct and the conduct underlying the first and
second degree assault, criminal threatening, and cruelty to animals charges, of
which the defendant was acquitted. Cf. State v. Cossette, 151 N.H. 355, 357
(2004) (“[T]he verdict demonstrates that the jury considered each charge
separately.”). To the extent he argues that this evidence inflamed the jury or
caused them to decide his case based upon emotion rather than reason, we,
again, note that the jury acquitted the defendant of all the charged conduct
that allegedly occurred three days after the alleged Fall River conduct. Cf. id.
The Fall River conduct was inconsequential with respect to the evidence of guilt
before the jury on witness tampering. See Papillon, 173 N.H. at 30.

Additionally, to the extent the defendant argues that the victim’s fear of
him or her reluctance to participate in prosecutions against him was irrelevant,
the admission of the Fall River conduct tending to show the reason for her fear
and reluctance was cumulative of other evidence tending to show the same.
See RSA 641:5, I(b); Edic, 169 N.H. at 590-91. The jury was presented with

6
similar evidence through the victim’s description of alleged events on April 22
and 23, 2017, the two letters she wrote to the New Hampshire prosecutors and
her reasons for writing them, and her understanding of the defendant’s text
messages sent on August 16, 2018. Accordingly, we conclude that the State
has met its burden of proving that any error in admitting evidence of the Fall
River conduct did not affect the verdict on the witness tampering charge, and
was, therefore, harmless beyond a reasonable doubt. See Papillon, 173 N.H. at
30; Edic, 169 N.H. at 592.

Arguments raised in the defendant’s notice of appeal that were not
briefed are considered waived. See State v. Barr, 172 N.H. 681, 694 (2019).

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

Distribution:
Hillsborough County Superior Court South, 226-2018-CR-00695
Honorable Jacalyn A. Colburn
Honorable Tina L. Nadeau
Charles J. Keefe, Esquire
Elizabeth C. Woodcock, Esquire
Attorney General
Carolyn A. Koegler, Supreme Court
Lin Willis, Supreme Court
File

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