State v. Costello

• Decision Date: 23 July 2009
• Docket Number: No. 2008–332.,2008–332.
• Citation: 159 N.H. 113,977 A.2d 454
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Kurt COSTELLO.

159 N.H. 113

977 A.2d 454

The STATE of New Hampshire

v.Kurt COSTELLO.

No. 2008–332.

Supreme Court of New Hampshire.

Argued: May 5, 2009.

Opinion Issued: July 23, 2009.

Kelly A. Ayotte, attorney general (Nicholas Cort, 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.

DUGGAN, J.

Following a jury trial in Superior Court (Lewis, J.), the defendant, Kurt Costello, was convicted of burglary. See RSA 635:1 (2007). He appeals, arguing that the trial court erred by admitting evidence that he was addicted to heroin. We affirm.

The jury could have found the following facts. Around noon on July 5, 2006, fourteen-year-old David Smith was home alone sleeping when he heard a knock on the slider door. He woke up, opened the slider, and saw his neighbor, Stuart Markham, the defendant's stepson, walking away. Thinking Markham merely wanted to play catch, Smith went back to sleep.

Approximately thirty minutes later, Smith heard his dog barking, and as he looked out his bedroom door, he saw someone dressed completely in black, bending down at the slider door. A minute or two later, he heard banging at the door and heard someone calling his dog by name. Thinking it was someone he knew, Smith emerged from his bedroom and saw a man standing in his kitchen. He described the man as clean-shaven, short-haired, standing 5' 10? or 5' 11?, between thirty-five and forty years old and with tattoos of black flames on his forearms and neck. The man told Smith that he had let himself into the house because he had seen someone else trying to break in and he had wanted to let the homeowner know. After about two minutes, the man left and walked into the woods behind the house. Smith noticed that the back door, which was next to the slider, had been ripped off of its hinges; nothing was missing from the home.

The police were called and began investigating immediately. One officer, while walking around the neighborhood, noticed the defendant's stepson watching him and talking on a cell phone.

Within a day or two of the incident, the police gave the media Smith's description of the intruder. After the news broadcast, the defendant called a friend and asked if he knew a good tattoo artist who could cover up tattoos. The police also received an e-mail from Nicole Irvine, a friend of the defendant's wife, Kathy Markham–Costello. Irvine testified that, in July 2006, Markham–Costello had called and asked if she could "hide out" at Irvine's house. The police followed every lead arising from the media broadcast and eliminated all suspects except the defendant.

When the police spoke to the defendant, he told them he had been at home on July 5, 2006, and had not gone to Smith's house. He did, however, tell the police he was in the area where the suspect disappeared into the woods behind Smith's house, but said he was looking for his stepson. He also said he knew the police were looking for a person with tattoos who had entered a nearby property.

The grand jury indicted the defendant for burglary. See RSA 635:1. His wife was charged with hindering apprehension, a charge to which she eventually pled guilty. That charge alleged that on July 5, Markham –Costello concealed the defendant in the trunk of her car so as to prevent the police from discovering him. In a recorded interview, Markham–Costello told the police that on the afternoon of July 5, she and the defendant were home with her father when, at some point, the defendant left the house to check the mail. When she next saw the defendant, he "came running into the house, all excited, out of breath and sweaty." The defendant hid in the trunk of their car as she drove from the house so the police could not find him. Markham–Costello saw police in the area and knew "something bad happened."

At trial, the State moved in limine to introduce evidence that the defendant was a heroin addict. The State argued that this evidence was admissible to show that the defendant entered Smith's home with the intent to commit a crime therein, an element of burglary. See RSA 635:1. The State contended that this evidence, coupled with evidence that, at the time of the crime, the defendant was unemployed, would be relevant to show that he entered Smith's home with the intent to steal.

Over the defendant's objection, the court allowed the State to introduce the evidence through the testimony of his wife. Markham–Costello testified that, in July 2006, the defendant was addicted to heroin. She told the jury that he was "usually broke" because they had "two habits to support." She testified that in July 2006, the defendant had a heroin "problem." She also confirmed that she had told the police on August 3, 2006, that the defendant was out of the house and that she thought he was "using." Additionally, although she told the jury she was lying when she spoke to police, the jury heard a tape recording of her telling the police that in July 2006, the defendant had recently lost his job and that she supported him financially. Further, she testified that the defendant "is never clean-shaven. Junkies don't even like to shower, they are not going to get the razor out."

In light of this evidence, the trial court instructed the jury:

You may consider this evidence for the narrow purpose of deciding whether the State has proven beyond a reasonable doubt the motive of the defendant in connection with the burglary crime charged.

If you believe that the defendant committed the prior illegal act or acts in question, then you may use that evidence in deciding whether the State has met its burden of proof in establishing the motive element of the crime charged; that is, that the defendant entered the pertinent premises with a purpose to commit the crime of theft.

You may not, however, use this evidence for any other purpose. Specifically, you may not consider this to be evidence of the defendant's character or as proof that the defendant was disposed to commit the crime charged. The defendant's character is not at issue in this case. Keep in mind that it is your duty—that your duty is to decide whether the State has proven that the defendant committed the particular crime charged in the indictment.

The sole issue for our review is whether admitting evidence that the defendant was a heroin addict at the time of the alleged burglary violated New Hampshire Rule of Evidence 404(b). We review the trial court's decision for an unsustainable exercise of discretion. State v. Pepin, 156 N.H. 269, 276, 940 A.2d 221 (2007).

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The purpose of Rule 404(b) is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes or wrongs. State v. Kim, 153 N.H. 322, 326, 897 A.2d 968 (2006). The evidence must satisfy a three-part test to be admissible under Rule 404(b): (1) the evidence must be relevant for a purpose other than proving the defendant's character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to the defendant. Id. The State bears the burden of demonstrating the admissibility of the prior bad acts. Id. at 327, 897 A.2d 968. Here, the defendant challenges the trial court's decision with respect to the first and third prongs of the Rule 404(b) analysis.

To meet its burden under the first prong, the State must demonstrate the relevancy of the evidence. Id. at 326, 897 A.2d 968. This requires the State to "articulate the precise chain of reasoning by which the offered evidence will tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity." Id. at 327, 897 A.2d 968. That chain of reasoning must demonstrate "a sufficient logical connection" between the prior acts and the permissible purpose for which the State offers the evidence. Id.

Here, the defendant was charged with burglary, which required the State to prove unauthorized entry with intent to commit a crime therein. See RSA 635:1 ; State v. Collins, 133 N.H. 609, 617, 581 A.2d 69 (1990). The State contends that the defendant's heroin addiction

was relevant to show that he entered Smith's home with the motive to steal.

"Motive has been defined as supplying the reason that nudges the will and prods the mind to indulge in criminal intent." Kim, 153 N.H. at 328, 897 A.2d 968. Whether a defendant's drug addiction is relevant to show motive to steal is an issue of first impression. Courts that have addressed this issue are divided. See generally Annotation, Admissibility of Evidence of Accused's Drug Addiction or Use to Show Motive for Theft of Property Other Than Drugs, 2 A.L.R.4th 1298 (1980 & Supp.2008). Some courts bar the State from introducing evidence of habitual drug use to prove a motive to steal, see, e.g., State v. Mazowski, 337 N.J.Super. 275, 766 A.2d 1176, 1180 (App.Div.2001) (rejecting State's assertion that "[b]ecause defendant is a drug addict, ... he is constantly in need of money, he cannot hold onto money, and thus he has a ‘motive’ to commit crimes"), while others allow it, see, e.g., State v. Henness, 79 Ohio St.3d 53, 679 N.E.2d 686, 694 ("Appellant's drug addiction and use shows his need for money and, hence, his motive to steal and kill."), cert. denied, 522 U.S. 971, 118 S.Ct. 422, 139 L.Ed.2d 323 (1997).

We addressed a related issue in State v. Monroe, 142 N.H. 857, 711 A.2d 878 (1998), cert. denied, 525 U.S. 1073, 119...