State of New Hampshire v. Benjamin Boutin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0162, State of New Hampshire v.
Benjamin Boutin, the court on May 14, 2021, issued the
following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Benjamin Boutin, appeals his convictions, following a
jury trial in Superior Court (Bornstein, J.), on two counts of selling a controlled
drug and one count of possessing a controlled drug with intent to sell. We
affirm.

On appeal, the defendant first argues that the trial court unsustainably
exercised its discretion by limiting his attorney’s cross-examination of a
witness. The witness worked as a confidential informant for the New
Hampshire Drug Task Force in May 2018, when the events giving rise to the
charges against the defendant occurred. The defendant’s trial counsel cross-
examined the witness about his criminal history, including a 2014 forgery
charge to which he had pleaded guilty, and a September 2019 conviction.

Defense counsel sought to elicit testimony that, as a result of a
September 2019 conviction, the witness had a suspended sentence, and that,
“if he commits another offense,” the Coos County Attorney’s office, which was
prosecuting the defendant, was “the very office . . . that would be responsible
for imposing the [suspended] sentence or bringing it forward.” The State
objected to this inquiry on relevancy grounds. The trial court sustained the
State’s objection in part, and overruled it in part. The court ruled that defense
counsel could question the witness about the fact that he had a sentence,
which was suspended for five years on the condition that he remain in good
behavior, but that defense counsel could not ask the witness “who prosecuted
that matter.” The court explained, “[I]t doesn’t matter who prosecuted it. . . .
[Y]our argument is [the witness has the] motivation to cooperate with the State
because he’s got this suspended sentence that could be imposed on him by
anybody.”

Consistent with the trial court’s ruling, defense counsel elicited the
following testimony:

Q In the 2019 conviction for a felony, you received a suspended
sentence that [is] suspended for five years from September 3rd,
2019?
 A Yes, Sir.
Q And that requires that you remain of good behavior?
A Yes, Sir.
Q As part of the Drug Task Force agreement, you are asking the
State for consideration on an additional charge[]?
A Yes, Sir.

On appeal, although he acknowledges that the trial court “was correct
that [the witness] was at risk no matter what office previously prosecuted him,”
the defendant contends that “the court erred in finding no relevance that the
same office for whom he was offering testimony could influence his future
freedom.” The defendant argues that had the jury been informed that “the very
prosecutor’s office at whose behest [he] was currently testifying controlled the
decision whether to move to impose [his] suspended sentence,” the jury “could
reasonably [have] conclude[d] that [the witness] felt an especial need to please
this prosecutor with his testimony.”

A trial court has broad discretion to fix the limits of proper areas of
cross-examination, including attacks upon a witness’s credibility. State v.
Stowe, 162 N.H. 464, 467 (2011). “In determining the limits of cross-
examination, a trial court must balance the prejudice, confusion, and delay of
the proffered testimony against its probative value.” State v. Rodriguez, 136
N.H. 505, 509 (1992). When, as in this case, the defendant does not argue that
those limits violated his constitutional rights to confrontation, we review the
trial court’s decision under our unsustainable exercise of discretion standard.
See State v. Stowe, 162 N.H 464, 467-68 (2011). To prevail under that
standard, the defendant must demonstrate that the trial court’s ruling was
clearly untenable or unreasonable to the prejudice of his case. See id. at 468.

Here, we cannot conclude that the trial court struck the wrong balance
by allowing defense counsel to establish that the witness’s sentence was
conditioned on good behavior, but precluding defense counsel from identifying
the prosecuting office. The defendant was allowed an ample level of inquiry as
to the witness’s motive to lie. Moreover, in closing argument, defense counsel
made frequent reference to the witness’s purported lack of credibility:

The case literally comes down to – the two sales cases come
down to [the witness]. And you had the opportunity to watch [the
witness]. In the record, you have his forgery conviction, and you’ll
have the opportunity to remember what he had to say, how he
presented himself. He says he’s an honest, he’s a good, he’s a
trustworthy person, and he’s doing this for the better of the
community.
But he’s a long-time drug user.
....

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 And you also heard that [the witness] had a problem with [the
defendant]. He felt that [the defendant] was, you know, on the
outs, and he felt comfortable saying [the defendant] was the guy.
Now, these folks are – [the witness], in particular, he lied. He
cheats. He steals. This is the guy who says I’m honest. When did
he become honest?
So in 2014, he pled to a forgery. He comes to Court, and he
says he’s honest. He has another felony conviction in 2019. He
looks you in the eye and he says he’s honest. And he says he was
16. The paperwork has the math right there; he wasn’t 16. Like,
he had the audacity to look you in the eye and tell you that to try
to make himself look better. He would say or do whatever he had
to say or do.
Now, he also had consideration for the charges pending, and he
was looking to help someone else with that.
So can you trust him? Would you let him sell you a house, and
on his word say yeah, no radon. I’ll just take your word for it. No
lead paint. It’s a good foundation. The roof is solid. Would you
trust that?
....
If it’s a close race and you can’t tell who the winner is, that is a
reasonable doubt. If you don’t know that you can trust the lab, if
you don’t know if you can trust [the witness], if you don’t know
that you can trust the word and the information that’s getting put
out from somebody who’s a known forgerer and a known felon,
then that’s, maybe, close. And close isn’t good enough.
....
So last things that I want to talk to you about. I think that I –
how we view the credibility of the witness. You heard the Judge
give you an instruction about the credibility of a witness and that
you could accept everything a witness says, you can accept some
of what the witness says, you can disregard all of what a witness
says, based on their credibility. And that’s in the Judge’s
instructions.
But I ask you to be hyper-skeptical. Be like one of those people
from Missouri that says show me. Show me where it is that I can
trust the State’s case. Show me where the reliability is from [the
witness], from the lab, from the various problems that the State
has in this case.
And when you analyze this case, we feel that the State has
provided you with an untrustworthy, unreliable, and inaccurate
presentation. And it’s simply not worthy of finding [the defendant]
guilty of the charges that he stands before you with. Thank you.

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On this record, we conclude that the defendant has failed to establish that the
trial court’s decision limiting his counsel’s cross-examination of the witness
constituted an unsustainable exercise of discretion.

The defendant next asserts that the trial court erred when it denied his
request for the following jury instruction:

The testimony of some witnesses must be considered with more
caution [than] the testimony of other witnesses.
Thus,[] you have heard the testimony of an informant. An
informant is someone who provides information or evidence
against someone else in return for some consideration, usually
either the payment of money or an agreement by the State to
reduce or drop charges against the informant or otherwise provide
the informant with a more favorable disposition of the informant’s
own difficulties with the law than would otherwise be the case.
Under the law, the State has the right to use informants as
witnesses.
The testimony of such a person may be received in evidence,
considered by you, and given such weight as the jurors feel it
deserves. The testimony of an informant may be enough in itself
for conviction, if you find that it establishes the defendant’s guilt
beyond a reasonable doubt.
However, it also is true that the testimony of an informant must
be scrutinized by you with great care and caution in deciding what,
if any, weight it should be given. In particular, you must consider
whether the testimony of an informant has been affected by the
agreement the informant has struck with the State, or by the
informant’s own self-interest in the outcome of this case or by
prejudice against the defendant.

The State objected to the requested instruction. The trial court denied the
defendant’s request for the instruction. The court concluded that its standard
instruction on witness credibility “more than adequately cover[ed] the concerns
that the Defendant wants to alert the jury to as far as [the witness’s]
testimony,” and suggested that “this may be proper fodder for closing argument
on the Defendant’s part as far as why [the jury] should or should not believe
[the witness] or certain aspects of [his] testimony.”

The court subsequently instructed the jury:

In deciding which witnesses to believe, you should use your
common sense and judgment. I suggest that you consider a
number of factors: whether the witness appeared to be candid;
whether the witness appeared worthy of belief; the appearance and
the demeanor of the witness; whether the witness had an interest

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 in the outcome of the trial; whether the witness had any reason for
not telling the truth; whether what the witness said seemed
unreasonable or inconsistent with the other evidence in the case or
with prior statements by the witness; and whether the witness had
any friendship or animosity towards other people in the case.
In deciding which witnesses to believe and how much of the
testimony to believe, you should consider both the direct and the
cross-examination of that witness.
You should consider these factors in deciding the credibility of
all witnesses, whether they are ordinary citizens or police officers.
In short, you should consider the testimony of each witness and
give it the weight that you think it deserves. You can accept all of
what a witness has said, you can reject all of what a witness has
said, or you can accept some of it and reject some of it.

The defendant argues that in denying his request for the specific
instruction regarding the credibility of informants, the trial court erred. He
contends that “a specific instruction was necessary in this case” because of
“the importance of [the witness’s] testimony to the State’s case” and because
the witness minimized his interest in the case. He further argues that the
court “unreasonably relied on some facts while failing to consider other facts”
relevant to the issue of whether the witness had received any consideration for
his testimony or for his work as a confidential informant. The defendant also
argues that the trial court should have given his requested instruction because
it is worded similarly to an instruction that we approved in 1985 relating to
accomplice liability.

Whether a particular jury instruction is necessary, and the scope and
wording of jury instructions, are within the sound discretion of the trial court.
State v. Carr, 167 N.H. 264, 270 (2015). We review the trial court’s decisions
on these matters for an unsustainable exercise of discretion. Id. When
reviewing jury instructions, we evaluate allegations of error by interpreting the
disputed instructions in their entirety, as a reasonable juror would have
understood them, and in light of all the evidence in the case. Id. at 271. The
trial court is not required to use the specific language requested by the
defendant, id., and has the discretion to decide whether a particular charge will
assist the jury in reaching a verdict, State v. Johnson, 157 N.H. 404, 407
(2008). The purpose of the trial court’s charge is to state and explain to the
jury, in clear and intelligible language, the rules of law applicable to the case.
Carr, 167 N.H. at 271. We determine whether the jury instructions adequately
and accurately explain each element of the offense and reverse only if the
instructions did not fairly cover the issues of law in the case. Id.

The defendant has failed to persuade us that the trial court
unsustainably exercised its discretion when it declined to give his requested
instruction. “In this case, defense counsel had an opportunity to cross-

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examine [the witness] and highlight any potential motives or biases that he
may have had.” State v. Knight, 161 N.H. 338, 343 (2011). “The trial judge
chose to give a general credibility instruction, providing a number of factors for
jurors to consider when assessing the weight of each witness’s testimony.” Id.
Moreover, as the State aptly observes, the defendant’s requested instruction
“ran the risk of highlighting [the witness’s] testimony,” which could have
suggested to the jury that the court was commenting on the evidence. “In New
Hampshire, it is the practice of Superior Court judges not to comment upon
the evidence or upon the credibility of witnesses in the charge to the jury.”
State v. Gribble, 165 N.H. 1, 30 (2013) (quotation omitted). “Such practice is
prudent given that the influence of the trial judge on the jury is necessarily and
properly of great weight and his slightest word or intimation is received with
deference, and may prove controlling.” Id. (quotation omitted). Under these
circumstances, “[w]e cannot say that the choice to give the general credibility
instruction, which highlighted certain specific factors for jurors to consider,
rather than the defendant’s requested informant instruction, was beyond the
range of options from which one would expect a trial judge to select in such a
situation.” Knight, 161 N.H. at 343-44 (quotation omitted) (upholding the trial
court’s decision not to give the jury a special instruction regarding the
credibility of inmate informants).

Affirmed.

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

Timothy A. Gudas,
Clerk

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