State v. Whittaker
| Decision Date | 03 June 2009 |
| Docket Number | No. 2008-312.,No. 2006-305.,2006-305.,2008-312. |
| Citation | 973 A.2d 299 |
| Parties | The STATE of New Hampshire v. Kevin C. WHITTAKER. |
| Court | New Hampshire Supreme Court |
Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann, on the brief and orally), for the defendant.
The defendant, Kevin C. Whittaker, appeals his conviction by a jury for negligent homicide. See RSA 630:3, II (2007). On appeal, he contends that the Superior Court (Fauver, J.) erred by: (1) denying his motion in limine to exclude the testimony of the State's accident reconstruction expert; (2) granting the State's motion in limine to exclude certain portions of the testimony of a state trooper; and (3) denying his motion for new trial based upon ineffective assistance of counsel. We reverse and remand.
The jury could have found the following facts. At approximately 12:50 a.m. on Sunday, November 21, 2004, a rainy and foggy night, the Durham police received a call telling them that a person was lying on Main Street. The man, later identified as Richard Hegerich, was lying parallel to the fog line, near the sidewalk curb. He was dressed in dark clothing. His face was covered with blood, and he was missing his shoes and socks. One of his shoes, a sock and his hat were in the roadway, some distance away from his body.
The police determined that Hegerich, who was twenty years old, was dead. A medical examiner later concluded that Hegerich died of multiple blunt trauma to the head caused by a motor vehicle accident. It was also determined that Hegerich had a blood alcohol content of .14. Based upon the position of his body, and the positions of his shoe, sock and hat, the police concluded that he had not been in the crosswalk when he was hit. The police found no evidence of skid marks.
At approximately 12:48 a.m., the defendant, then a nineteen-year-old student at the University of New Hampshire (UNH), called his girlfriend, Whitney Sawin, also a UNH student, and told her to meet him. Although she initially refused, Sawin eventually agreed to meet the defendant behind his fraternity house because he insisted. As Sawin walked towards the defendant's vehicle, she could see that the passenger side windshield was "completely shattered" and that "part of it was swinging inside." Sawin asked the defendant what had happened, and he told her that he had hit someone. The defendant seemed nervous and shaky. He asked Sawin to "go with" him. Sawin declined and told him to return to where he had hit the person; the defendant drove off.
At approximately 1:07 a.m., a UNH police officer stopped the defendant's car because one of its headlights was not working. The officer noticed that the car's passenger side windshield looked smashed. The defendant told the officer that a friend had been driving his car, but he could not name the friend, telling the officer instead that "it was some guy" whom he did not know very well.
While speaking to the defendant, the officer noticed that his eyes were glassy and bloodshot, he smelled of alcohol and his hands were shaking. She further observed that there were shards of glass all over the passenger seat. The defendant told the officer that he was on his way to see his girlfriend. When the officer asked the defendant if he had been drinking, he said, He told the officer that he had taken illegal substances a couple of weeks earlier.
The officer then administered field sobriety tests to the defendant, and, based upon his performance, arrested him for driving while intoxicated. The officer transported the defendant to the UNH police station, where he agreed to a breathalyzer test. While waiting for the test, the defendant made several comments about wishing that "[he] could be a rat" or a "snitch." The breathalyzer test results showed that the defendant's blood alcohol content was .16.
After additional breathalyzer tests, the defendant was taken to the Durham police station to be interviewed. The defendant told the police that he wanted "to talk to his girlfriend and get his story straight." He told police that he had been asleep at his fraternity house when someone woke him because his phone was ringing. He said that he then spoke to his girlfriend and was driving his car to meet her when the police stopped him. He was very evasive about whether he had been driving the car earlier in the evening.
At 8:30 a.m. the defendant volunteered that he had hit a pedestrian. He asked the booking officer, "[D]id I kill the man I hit[?]" After he was told that he had, the defendant said: He then told the police that he had been drinking in Dover with his girlfriend that night and had then gone to his fraternity, where he had continued to drink. He said that the accident occurred when he was heading south on Main Street up a hill, driving under the speed limit, and that he never saw the victim until he "felt a thump." He then said,
The grand jury returned three indictments against the defendant: two alternative counts of negligent homicide, see RSA 630:3; and one felony count of conduct after an accident, see RSA 264:25, :29 (2004). The trial court dismissed one of the negligent homicide indictments before trial.
At trial, the defendant stipulated that: (1) Hegerich died as a result of the injuries he sustained in the accident; (2) the defendant was driving the car that struck Hegerich; and (3) the defendant was impaired when he was driving. The issue for the jury on the negligent homicide charge, therefore, was whether the defendant's impairment had caused the accident. See RSA 630:3, II; State v. Wong, 125 N.H. 610, 620, 486 A.2d 262 (1984) ().
To establish causation, the State relied, in part, upon the testimony of Joseph DiGregorio, then a deputy sheriff for Strafford County and a consultant for Collision Forensics in Somersworth, whom the court certified as an expert in traffic accident reconstruction. Based upon his review of the accident report prepared by a state trooper, reports prepared by the Durham and UNH police, the medical examiner's report, his own view of the collision site and the vehicle, and certain research and data, DiGregorio testified that: (1) the defendant was driving thirty-five miles per hour when the accident occurred, which is ten miles over the posted speed limit; (2) the defendant did not see Hegerich before hitting him; (3) Hegerich was in the roadway, not in the crosswalk, when the defendant hit him; (4) Hegerich was walking, not running, when he was hit; (5) because Hegerich was wearing blue jeans and a dark fleece jacket, it was difficult to see him on the roadway; (6) the rain and fog also made it difficult to see on the night of the accident; (7) alcohol slows down perception and reaction time; (8) although a precise point of impact could not be calculated, the area of impact was approximately twenty feet to the east of where Hegerich's hat and sock were located; (9) after hitting Hegerich, the defendant applied normal braking and came to a stop approximately 167 feet from the area of impact; and (10) Hegerich came to rest approximately 160 feet from the area of impact.
Following a five-day trial, which included an early evening view, the jury convicted the defendant of both negligent homicide and conduct after an accident. He later moved for a new trial on the negligent homicide charge on the ground that his trial counsel was ineffective because he failed to consult with an accident reconstruction expert. The trial court denied the motion, and this appeal followed.
The defendant first challenges certain of the trial court's in limine rulings. Specifically, he argues that by granting the State's motion in limine to exclude portions of Trooper William Graham's testimony, the trial court violated his constitutional right to present all proofs favorable. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. The defendant also argues that the trial court erred when it denied his motion in limine to exclude DiGregorio's testimony because it was inadmissible under RSA 516:29-a (2007).
The defendant, however, has failed to demonstrate that he preserved these arguments by raising them in the trial court. As the appealing party, the defendant has the burden of providing this court with a record sufficient to demonstrate that he raised all of his appeal issues before the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004); see Sup.Ct. R. 13, 16(3)(b). The record provided on appeal fails to demonstrate that the defendant ever raised the same arguments that he raises here with respect to the trial court's in limine rulings. We, therefore, decline to address them.
The defendant next contends that the trial court erred when it denied his motion for a new trial based upon ineffective assistance of counsel. He asserts that his trial counsel was ineffective because he failed to consult an accident reconstruction expert.
The defendant's claim of ineffective assistance of counsel rests upon Part I, Article 15 of the State Constitution and the Sixth and Fourteenth Amendments...
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