State v. Alexander
| Decision Date | 23 December 1998 |
| Docket Number | No. 96-339.,96-339. |
| Citation | 723 A.2d 22,143 N.H. 216 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Steven ALEXANDER. |
Philip T. McLaughlin, Attorney General (Malinda R. Lawrence, attorney, on the brief and orally), for the State.
Gary Apfel, assistant appellate defender, of Orford, by brief and orally, for the defendant.
After a jury trial in Superior Court (Morrill, J.), the defendant, Steven Alexander, was convicted of arson, see RSA 634:1, II(a) (1996), for setting fire to the apartment building in which he resided. On appeal, the defendant argues that the trial court erred: (1) in limiting his cross-examination of two prosecution witnesses; (2) in denying his motion to dismiss based on insufficient evidence; and (3) in fashioning certain instructions to the jury when it appeared to be deadlocked. We affirm.
At trial, the State presented the following evidence. In July 1993, the defendant rented a second floor apartment in the Eagle Block in Newport. On July 24, 1993, the day before the fire, the defendant and Debra Porter, a second floor neighbor, had an argument about Porter playing her stereo loudly. The defendant responded by playing his radio loudly as well, and the two exchanged profanities. When the police arrived, Porter turned her music down as instructed, and the two had no further contact that day.
On July 25, 1993, the day of the fire, Porter left her apartment at 2:20 p.m. and locked both apartment doors, which were then undamaged. Around three o'clock, the defendant stopped at a convenience store, an approximate ten to fifteen minute drive from the Eagle Block. The store's cashier testified that she received a phone call from an unidentified man who requested the store owner's phone number. A few minutes later she received a call from the owner telling her that Steven Alexander, who was unknown to the owner, would be coming to the store to charge a few items on store credit. The cashier testified that the defendant was acting "a little strange." He insisted that he knew the cashier, telling her not to deny that she knew him. He also asserted that he knew or was related to the owner, and that the owner had given him permission to charge wine. The cashier called the owner, who instructed her not to charge the wine. Following this, the defendant charged cigarettes and $3.00 worth of gasoline. At the owner's instruction, the cashier recorded the defendant's telephone and license plate numbers.
Between four and five o'clock, another tenant, Betty Andrews, who lived down the hall from the defendant, returned to her apartment with her boyfriend, Michael Tassinari. Within fifteen to thirty minutes, Andrews smelled gasoline. Unable to determine its source, she and Tassinari stepped into the hallway where they detected a very strong gasoline odor, but saw no smoke. While in the hallway, Andrews noticed the defendant leave and lock his apartment while holding something in his arms. When Andrews asked if he could smell gasoline, the defendant responded "no," acting "kind of shaky" or "nervous" as he walked toward the back door. Andrews returned to her apartment and promptly called the police to report the odor. During the call, the building's smoke alarms activated. Police dispatch received this call at 5:23 p.m. Andrews returned to the hallway, saw smoke coming from the direction of Porter's apartment, and made a second call to the police to report the fire.
At approximately 4:30 p.m., Neal Goldberg, a tenant who lived across the hall from the defendant, heard "constant banging" near Porter's apartment, which continued for several minutes. Goldberg assumed that someone was working on a door. At about five o'clock, several individuals in a meeting room located directly below Porter's apartment heard a crash, along with banging and scuffling noises coming from Porter's apartment. Shortly thereafter, they saw the defendant make two or three rapid trips up and down the outside staircase, removing various items from the building, including clothes and soda. After the defendant's third trip at approximately 5:20 p.m., a member of the group detected smoke, went outside, and witnessed the building engulfed in flames.
Hearing the smoke alarms, Goldberg fled his apartment and saw the defendant descending the staircase. While departing, Goldberg noticed a large hole in Porter's apartment door. It appeared to him that the apartment had been broken into.
At the scene, the police arrested the defendant for interfering with rescue efforts by encouraging a woman trapped on the roof to jump. The police released the defendant from custody but arrested him a second time, subduing him with pepper spray, when he continued to interfere with rescue efforts and disobey law enforcement. The police transported the defendant to the police station where he admitted to purchasing cigarettes and gasoline for his car that afternoon at a local convenience store. He claimed, however, that the Eagle Block was in flames when he returned. He denied being in or removing items from the building just prior to or at the time of the fire.
Through its investigation, the State Fire Marshall's office determined that the Eagle Block blaze was the result of arson, which began in Porter's apartment with gasoline used as an accelerant.
The defendant first argues that the trial court's refusal to permit him to cross-examine Michael Tassinari and Betty Andrews regarding motive and bias violated his right of confrontation under the State and Federal Constitutions and constituted an abuse of discretion under New Hampshire Rule of Evidence 403.
At trial, the defendant offered to prove that approximately one month before the fire, Andrews accused Tassinari of domestic violence, criminal mischief, and criminal trespass, and that one criminal charge was pending against Tassinari on the day of the fire. The defendant asserted that this evidence suggested that Tassinari harbored a grudge against Andrews, and set the fire to punish her. Based on this theory, the defendant sought to cross-examine both Tassinari and Andrews to establish Tassinari's involvement in the fire, their conflicting accounts of events on the day of the fire, and Tassinari's repeated efforts to direct police attention to the defendant. The trial court prohibited this cross-examination under Rule 403.
The defendant argues that the trial court's ruling violated his right of confrontation under the State and Federal Constitutions. He also asserts that while an evidentiary rule can limit cross-examination, it may not bar proposed interrogation of an adverse witness to establish motive and bias. See State v. Allison , 134 N.H. 550, 558, 595 A.2d 1089, 1094 (1991).
We first examine whether the defendant's constitutional objections were preserved. "[W]e will not review on appeal constitutional issues not presented below." Snow v. American Morgan Horse Assoc. , 141 N.H. 467, 472, 686 A.2d 1168, 1172 (1996) (quotation omitted). The defendant argues that the constitutional challenge was preserved at trial by his assertion that "bias is always relevant in impeachment." In context, however, the defendant's evidentiary argument was clearly directed to Rule 403 and not to the constitutional right of confrontation:
Given that motive is one of the things that is considered in an arson case, I think it is probative and not-and not substantially outweighed by the prejudice that in terms of relevance.... And bias is always relevant in impeachment. This is McCormick On Evidence , your Honor, Fourth Edition, under Impeachment, Section 39 under Partiality, recognize[s] that if anyone has any type of interest, it can be explored. That this is not-this is under the common law rules of evidence. It does not fall within the purview of a specific rule of evidence. That self-interest of the witness is always an issue.
The defendant's impeachment argument was specifically raised in terms of evidence generally admissible under the rules of evidence. See N.H. R. Ev. 403. Though the McCormick on Evidence section counsel cited mentions the constitutional aspect of impeachment evidence, see 1 J. Strong, McCormick on Evidence § 39, at 131 (4th ed.1992), counsel relied on that section for the proposition that no specific evidentiary rule is necessary to establish that witness motive and bias are permissible impeachment issues. We recognize that impeachment of a witness and a criminal defendant's right to confront adverse witnesses are somewhat intertwined. See State v. Kiewert , 135 N.H. 338, 347, 605 A.2d 1031, 1037 (1992) (). However, "despite the superficial similarity between the evidentiary rule and the constitutional clause, we are not eager to equate them." Id. at 348, 605 A.2d at 1037 (); cf. State v. Goding , 128 N.H. 267, 270, 513 A.2d 325, 328 (1986) ().
The defendant is not entitled to have the trial judge consider alternate grounds for admitting evidence that defense counsel has not articulated. See State v. Winn , 141 N.H. 812, 813, 694 A.2d 537, 538 (1997) ; see also State v. Mills , 136 N.H. 46, 49, 611 A.2d 1104, 1105 (1992) (). Because the defendant did not specifically assert a constitutional objection to the trial court's exclusion of the domestic violence evidence, the constitutional argument was waived and not preserved for appellate review. See State v. Nutter , 135 N.H. 162, 164, 600 A.2d 139, 140 (1991) (...
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