State of New Hampshire v. Dennis Surprenant

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0038, State of New Hampshire v. Dennis
Surprenant, the court on August 17, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Dennis Surprenant, appeals his convictions for domestic violence
second degree assault, see RSA 631:2, I(f), :2, III (Supp. 2022), attempted
domestic violence second degree assault, see RSA 631:2, I(f), :2, III; RSA 629:1
(2016), domestic violence simple assault, see RSA 631:2-b, I(a) (2016), and
criminal trespass, see RSA 635:2 (2016) (amended 2020). He argues that the
Trial Court (Nicolosi, J.) erred when it sustained the State’s objection to a
question by defense counsel that asked the investigating officer’s opinion
regarding whether pressure placed on a person’s neck sufficient to impair the
ability to breathe would cause some type of marking. We affirm.

The jury heard the following evidence. The defendant and the victim
began dating in September 2019, while she was living with her sister. The
victim moved with her five-year-old daughter into an apartment in Manchester
in November 2019. The defendant would frequently stay the night in her
apartment, leaving during the day and returning later around “dinner time.”
On December 17, 2019, while cleaning her home, the victim found drug
paraphernalia and a baggie that appeared to contain heroin. That afternoon,
the defendant came to her apartment and then quickly left saying that he had
“to make a phone call.” When the victim became aware that he had been gone
for a while, she went to a window and watched him exit his car and retrieve a
baggie containing needles from its trunk. He then reentered the car. While the
defendant was in the car with the window rolled down, the victim observed him
injecting drugs.

When the defendant returned to the apartment, the victim told him that
she had found his drug paraphernalia and thrown it out. She then told him
that their relationship was over and to leave.

Later that same night, the victim awoke to her dog barking. Her
daughter was sleeping in the bed with her. The victim left her bedroom to
investigate and found the defendant in her apartment. She had not asked him
to return. She surmised that he had entered through a broken window or that
he had used a key that she had lost. The defendant suspected that there was a
male in the victim’s bedroom and became agitated, asking her why she had
blocked him on her social media accounts. The victim told the defendant that
if he did not leave she would call the police. She attempted to return to her
bedroom and lock the door behind her but the defendant followed her and
overpowered her. He picked her up, threw her on the bed, and got on top of
her. He put his hand over her mouth so that she could not continue
screaming. As the victim continued to struggle, the defendant put his hands
on her neck and choked her until she could not breathe and her “eyes went
black.” When she woke up, the victim saw that the defendant was no longer on
top of her and her daughter was on the dog bed “screaming for [the victim].”
The victim called 9-1-1. When the defendant realized what she was doing, he
grabbed the phone from her and threw it. He then began “freaking out” and
punching himself in the face. The victim took a video of him doing so and later
showed it to the responding officer. She explained at trial that she found his
behavior “completely shocking” and recorded him “[i]n case he tried to say [she]
did it.”

The police arrived within ten minutes of the 9-1-1 call. Officer Blonigen
testified that as he approached the apartment, he could hear a female yelling
inside. When he knocked, the victim immediately opened the door, told him
that they needed to remove the defendant from the apartment, and said that he
had assaulted her. The defendant emerged from the apartment and remained
with other officers while Blonigen spoke with the victim inside. When asked at
trial, he observed that “you can hear on the body cam that she’s - - she’s fairly
raspy.” The victim’s young daughter, who had been present during the assault,
also reported to Blonigen that she saw the defendant “strangling Mama.”

The defendant was arrested. He was subsequently charged with
domestic violence second degree assault, and, as an alternative, attempted
domestic violence second degree assault, as well as domestic violence simple
assault, and criminal trespass. Following a jury trial, he was convicted on all
counts.

On appeal, the defendant argues that the trial court erred in sustaining
the State’s objection during the following exchange:

[DEFENSE COUNSEL]: Now, you would agree with me that,
having investigated domestic violence cases before, in order to have
somebody not be able to breathe while you’re putting pressure on
their neck that you would have to use a lot of pressure, correct?
[OFFICER BLONIGEN]: Yes, that’s correct.
[DEFENSE COUNSEL]: And to put a lot of pressure on somebody’s
neck you would expect there to be some type of marking on the
neck, right?

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 [PROSECUTOR]: Objection, Your Honor. I think this call is for
expert opinions.
....
[SIDEBAR DISCUSSION]
[DEFENSE COUNSEL]: I don’t think it calls for an expert opinion if
an officer had testified whether if somebody says that they had
their throat being squeezed whether she says a mark there or not.
....
THE COURT: I’m going to sustain the objection. It’s either an
expert opinion or it’s something that would be unhelpful to the jury
if it’s in common.

The defendant contends that the trial court erred in its ruling because: (1) if
the question called for an expert opinion, Blonigen had the requisite expertise;
or (2) if the question called for the opinion of a lay witness, the trial court erred
in ruling that Blonigen’s response would be unhelpful to the jury. Having so
framed the issues, the defendant has not asked us to determine whether the
challenged question called for expert or lay testimony; we therefore do not
decide that issue.

We review the trial court’s evidentiary ruling to determine whether its
exercise of discretion is sustainable. State v. Cochrane, 153 N.H. 420, 421
(2006). We will affirm the trial court’s ruling unless the defendant
demonstrates that the ruling was untenable or unreasonable and that the error
prejudiced his case. Id.

We note that the defendant did not argue at trial that Blonigen was an
expert. Rather, when the State objected on the basis that the question called
for an expert opinion, defense counsel responded: “I don’t think it calls for an
expert opinion . . . .” During the ensuing sidebar, the court observed: “I guess
he’s offering it as a layperson testimony . . . .”

Notwithstanding the sidebar exchange, we will assume without deciding
that the following issues have been preserved for our review: (1) whether
Blonigen was qualified to offer an expert opinion on the challenged question;
and (2) if not, whether it was error to exclude the question because it sought an
unhelpful lay opinion.

New Hampshire Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education, may testify in the form of an
opinion or otherwise if:

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 (a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.

The preliminary question for the trial court when determining whether
proffered expert testimony is admissible is “whether the witness, by either
study or experience, has knowledge on the subject matter of his or her
testimony so superior to that of people in general concerning it that his or her
views will probably assist the triers of fact.” State v. Newman, 148 N.H. 287,
291 (2002) (quotation omitted). “An established, widely-recognized corollary of
this rule is that the party offering a witness as an expert has the burden of
establishing the witness’ qualifications.” State v. Coleman, 133 N.H. 713, 715
(1990) (quotation and brackets omitted).

To support his argument that Blonigen possessed the requisite expertise
to answer the question, the defendant contends that the State had earlier
elicited opinion testimony from Blonigen that the injuries that he observed on
the defendant “were consistent with the degree of force he saw on the cellphone
video showing [the defendant] punching himself in the head.” To the extent
that this argument is based on the premise that Blonigen was qualified as an
expert because he had already offered an opinion that only an expert could
offer, we are not persuaded. Notably, the testimony was elicited without
objection. Moreover, as the State points out and the following excerpt
demonstrates, Blonigen was never asked about the “degree of force” that he
observed on the cell phone video:

[PROSECUTOR]: Okay. Did you notice anything about [the defendant]’s
face or appearance?
[BLONIGEN]: Yes. He had marks on his face and his head.
[PROSECUTOR]: And did he address those marks with you?
[BLONIGEN]: Yes, he did.
[PROSECUTOR]: And what did he say?
[BLONIGEN]: He stated that those marks were caused by a cousin of his
that he got into a physical altercation with earlier -- earlier than this
incident.
[PROSECUTOR]: Okay. Did anything that you had discovered during the
course of your investigation up to that point lead you to doubt that
statement?
[BLONIGEN]: Yes, it did.
[PROSECUTOR]: And what was that?

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 [BLONIGEN]: The video that I saw from [the victim] was consistent with
the marks that I saw on [the defendant]’s face and head.

The defendant did not qualify Blonigen as an expert witness. Although
he argues that his counsel established on cross-examination that Blonigen had
received training in domestic violence cases, Blonigen never testified to
investigating, learning about, or making arrests in domestic violence cases
involving strangulation. Nor did he testify to any knowledge regarding the
amount of pressure required to leave marks on a person’s neck. Accordingly,
assuming that the question called for an expert opinion, we conclude that the
trial court did not unsustainably exercise its discretion by failing to treat the
witness as an expert qualified to answer it.

The defendant also argues that, if the question did not call for an expert
opinion, Blonigen could have answered it based on what he observed at the
scene because he “was engaged in criminal investigation and could testify to an
opinion informed by the knowledge he learned through his past work as a
police officer.” New Hampshire Rule of Evidence 701 limits the admission of a
lay witness opinion to that which is:

(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical or other specialized knowledge
within the scope of Rule 702.

“Lay testimony is probative on the issue of physical injury and the cause
of that injury only if the cause and effect are so immediate, direct and natural
to common experience as to obviate any need for an expert medical opinion.”
Stachulski v. Apple New England, LLC, 171 N.H. 158, 168 (2018) (quotation
omitted). “Expert testimony is required if any inference of the requisite causal
link must depend on observation and analysis outside the common experience
of jurors.” Id. (quotation omitted). Assuming that defense counsel’s question
as to whether one would have expected there to have been observable marking
on the victim’s neck called for a lay opinion, it follows that the answer to that
question did not rely upon observation or analysis outside the common
experience of the jury. See id. Therefore, the jury was as capable of answering
the question as was the witness. Although the trial court may permit lay
opinion testimony when the witness’s opinion is “helpful” to the trier of fact,
N.H. R. Ev. 701, here the trial court could reasonably conclude that the jury,
being capable of answering the question itself, had no need for Blonigen’s lay
opinion.1 See State v. Cochrane, 153 N.H. at 421 (evidentiary rulings are

1 We note that Blonigen testified that he did not remember seeing any red marks on the

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within sound discretion of trial court). Thus, we conclude that the trial court
sustainably exercised its discretion in ruling that, as a lay opinion, Blonigen’s
answer to the question “would be unhelpful to the jury.”

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

victim’s neck, that he did not note any red marks in his police report, and that he would have
noted them in his report if he had observed them. Moreover, in his closing argument to the
jury, defense counsel argued that if the defendant had done the things with which he was
charged, “there would be some signs of it --something would show up. If you’re being that
physical with someone, something would appear. And as you heard from the testimony of Ofc.
Blonigen, . . . , he described no injuries whatsoever on [the victim] . . . .”

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