35 A.3d 523 (N.H. 2011), 2004-833, State v. Etienne

Docket Nº:2004-833, 2006-919.
Citation:35 A.3d 523, 163 N.H. 57
Opinion Judge:CONBOY, J.
Party Name:The STATE of New Hampshire v. Dickens ETIENNE.
Attorney:Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
Judge Panel:DUGGAN, HICKS and LYNN, JJ., concurred; DALIANIS, C.J., concurred in part and dissented in part. DALIANIS, C.J., concurring in part and dissenting in part.
Case Date:December 21, 2011
Court:Supreme Court of New Hampshire
 
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35 A.3d 523 (N.H. 2011)

163 N.H. 57

The STATE of New Hampshire

v.

Dickens ETIENNE.

Nos. 2004-833, 2006-919.

Supreme Court of New Hampshire.

December 21, 2011

Argued: May 12, 2011.

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Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

[163 N.H. 64] The defendant, Dickens Etienne, appeals his conviction, following a jury trial, for the first-degree murder of Larry Lemieux. See RSA 630:1-a, I(a) (1996 & Supp.2005)

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. On appeal, he argues that the Superior Court ( Barry, J.) erred by: (1) incorrectly defining the elements [163 N.H. 65] of self-defense or defense of another in its jury instructions; (2) permitting hearsay testimony; (3) failing to order a new trial based upon perjured testimony of a State's witness and the State's failure to disclose exculpatory information; and (4) failing to order the State to immunize a witness for the purpose of ascertaining the extent of his perjured testimony. We affirm.

I. Facts

The jury could have found the following facts. In January 2004, the defendant lived in a second-floor apartment at 265 Central Street in Manchester with his girlfriend, Cameo Jette, his friend, Israel Rivera, and Jette's friend, Jenna Battistelli. The defendant's other friends included Louis Pierre, Jose Gomez, Michael Roux and David Garcia. The defendant and Pierre were particularly close, because Amy Hannaford was then pregnant with the defendant's child, and her sister, Jennifer Hannaford, had three children with Pierre. The defendant and his friends were also acquainted with Larry Lemieux and Lemieux's friend, Latorre Johnson. The defendant was known as " D" among his friends and acquaintances.

Tensions developed between Lemieux and the defendant after Lemieux " hit on" Jette in December 2003, asking, " what somebody like [Jette was] doing with somebody like ‘ D.’ " The defendant, upset, informed Lemieux that he was not permitted to be in the apartment or around Jette unless he was present. Around the same time, the relationship between Lemieux and Pierre also became strained. Lemieux had briefly dated Jennifer Hannaford, who lived one floor above the defendant in the Central Street apartment building. Although their relationship ended in December 2003, Lemieux continued to visit with Hannaford and her children, and Pierre had concerns about Lemieux being around his children.

In January 2004, Lemieux told Tina Gobis, whom he was dating, that he was going to have to leave town because either the defendant or Pierre was going to kill him. Lemieux told Autumn Millette, another woman he was seeing, that he had a " bad feeling" that the defendant did not like him. Battistelli overheard the defendant and Pierre discussing that Lemieux would " get his some day." The defendant later told Gomez that he was thinking about killing Lemieux.

In the late evening of January 27, 2004, Lemieux went to the defendant's apartment. The defendant was not at home, as he, Pierre, Roux and Garcia had gone to Foxwoods Casino in Connecticut. Rivera answered the door and informed Lemieux that he was not allowed to enter. At approximately 2 a.m. on January 28, Lemieux went upstairs to Jennifer Hannaford's apartment, where he attempted to sexually assault her. Rivera called the defendant and Pierre and informed them of what had occurred in Hannaford's apartment.

[163 N.H. 66] The defendant was upset when he learned what Lemieux had done, and told Rivera not to allow Lemieux back into the house. The defendant, Pierre, Roux and Garcia did not return to Manchester immediately because it was snowing, but the defendant and Pierre made several telephone calls to people in Manchester who were close to Lemieux, including Nancy Vaillancourt, at whose apartment Lemieux was staying.

When Lemieux awoke later that morning he spoke with Johnson by telephone. Johnson told him that the defendant was looking for him, and had called Johnson to ask if Lemieux had " disrespected" him by going to the Central Street apartment

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when he was not there and by saying " f* * * ‘ D’ " or " forget about ‘ D.’ " After that conversation, Vaillancourt overheard an aggravated Lemieux yelling into the telephone, " I'll shoot the fair one with any of y'all bitch ass niggers." According to multiple witnesses, this phrase indicated that Lemieux was willing to have a " fist fight" with whoever was on the telephone. While the defendant, Pierre, Roux and Garcia were returning to Manchester from Foxwoods, Lemieux called Garcia's cellular telephone to speak with the defendant and Pierre. The defendant asked whether Lemieux had called him a " bitch" or a " bitch ass nigger." Lemieux responded in the negative, but Pierre and the defendant appeared upset and angry.

Lemieux left Vaillancourt's apartment driving Johnson's car, picked up Johnson and drove to Gobis's apartment. On the way there, Johnson heard Lemieux say into the telephone, " I'll be there," and Lemieux told him he had been speaking with Pierre. While at Gobis's apartment, Lemieux received a telephone call. Gobis heard Lemieux say, " [Y]es, I did call you a bitch ass nigger," and that he was on his way to Central Street. Once off the telephone, Lemieux told Gobis that he had been speaking to the defendant and that the defendant threatened to kill him. Lemieux then returned to Johnson's car and resumed telephone contact with the defendant, who was still on his way from Foxwoods. Although the defendant was already at the Bedford toll plaza, he told Lemieux that they were approaching Nashua, a lie Garcia believed was intended to allow them to arrive at the Central Street apartment before Lemieux. Lemieux told Pierre he was going to Central Street. The defendant telephoned Gomez and said that Lemieux had been disrespectful to him and " We have to wrap him up," meaning kill him. The defendant told Gomez to meet him on Central Street and bring a gun.

The defendant, Pierre, Roux and Garcia reached the Central Street apartment first. Jennifer Hannaford and her children were returning from grocery shopping, and Pierre told her to bring them upstairs right away. Inside the apartment, Pierre retrieved a .44-caliber pistol and some bullets from Rivera and the defendant retrieved his .9-millimeter Ruger pistol. [163 N.H. 67] Battistelli overheard that Lemieux was on his way and that Gomez was also on his way, in a cab. The men went down to the front porch of the building, though Roux did so reluctantly.

Lemieux arrived shortly thereafter and walked onto the porch with his hands in his pockets. He approached Pierre so they stood face to face, about six inches apart. Roux stood in the doorway leading to the porch while the defendant, Rivera and Garcia stood in the area behind Lemieux. Pierre's gun was in his waistband, and the defendant's gun was plainly visible in his hand. Witness accounts differed as to what was said next. Rivera heard, " So you want to shoot the fair one?" and heard either Pierre, Garcia or Roux ask, " Why you reaching?" Garcia reported hearing Lemieux say, " F* *k it. We can just shoot it out." Neither Johnson nor Pierre testified to hearing any of these statements. Pierre testified that he understood that, if Lemieux did not have a bullet in the chamber of his gun, he would have to take action to do so. (When Lemieux's gun was found, it was loaded, but there was no bullet in the chamber, and the slide would have to have been pulled in order to load the chamber.) The witnesses all agreed that the defendant and Pierre spoke to each other in Haitian Creole, and then the defendant stepped behind Lemieux, raised his gun, and shot Lemieux in the head behind his right ear. Lemieux's hands

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were inside his jacket when he was shot. He died immediately.

After the shooting, the group dispersed. The defendant, Pierre and Rivera drove toward Massachusetts. At some point, while they were still in New Hampshire, Pierre got out of the car. The defendant and Rivera continued to Rivera's brother's home in Brighton, Massachusetts, where the defendant showered and changed his clothes. He and Rivera then visited the defendant's sister's home, where he gave her a bag of his soiled clothing and spoke with her about being his alibi for the shooting. He telephoned Jette from a Massachusetts number and told her he was at his sister's home in Boston, and that he had heard about what had happened at the apartment. The defendant left his sister's home at 3 p.m., after approximately twenty minutes there, and drove to the Brighton Reservoir where he threw his gun, magazine and bullets onto the ice.

Around 6:30 p.m., the defendant visited the Manchester home of his friend Heather Metsch, who told the defendant she had heard that he had shot Lemieux. He responded that he had not been in Manchester at the time, and called his sister to have her verify that he had been in Boston with her that afternoon. After asking Metsch whether he should " go down to the police station to clear his name," the defendant left.

Upon arriving at the police station, the defendant approached Detective Sergeant Enoch Willard and said he was there to check on his friends' bail status. He told the detective that he had heard his friend Lemieux had been [163 N.H. 68] shot in the back of the head, and that Garcia and all of his friends were under arrest. He added that he had not been there. The...

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