State v. Dodds
| Decision Date | 21 August 2009 |
| Docket Number | No. 2008–308.,2008–308. |
| Citation | 159 N.H. 239,982 A.2d 377 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Gary DODDS. |
Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.
Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.
The defendant, Gary Dodds, appeals his convictions following a jury trial in Superior Court (Fauver, J.) for false public alarms, see RSA 644:3, I (2007), falsifying physical evidence, see RSA 641:6, I (2007), and conduct after an accident, see RSA 264:25, I (2004). We affirm.
The record supports the following facts. On April 5, 2006, the defendant, who was a candidate in the Democratic primary for the United States House of Representatives, was traveling southbound on Route 16 between Dover and Portsmouth in a snowstorm. Shortly after 8 p.m., a woman driving behind him observed his car swerve left and right and then veer off the road. At the point where his car left the road, she noticed that the guardrail was bent and that the defendant's car was on the far side of it. She drove her car onto the shoulder, stopped and dialed 911.
A short distance west of where the accident occurred, an adjacent roadway, Spur Road, runs parallel to Route 16. To the west of Spur Road lies the Bellamy River. Caren Peloso, who lives on Spur Road, heard the sound of the crash and went out to her driveway to investigate. When she observed the headlights of the defendant's car, she ran back into her house and dialed 911. She then walked through a brushy area to the accident scene. When she reached the defendant's car, she noticed that its interior light was on, that its passenger side window was down, and that its airbags had deployed. No one was inside the car. Peloso then approached the witness's car and asked her whether she knew the whereabouts of the driver. She did not.
Emergency personnel and firefighters soon arrived at the scene. They unsuccessfully searched the area for the driver of the vehicle. After determining that the car belonged to the defendant, the police called his wife and she came to the scene. She reported that the defendant was supposed to have been on his way to a campaign-related meeting in Somersworth.
The defendant's whereabouts remained a mystery for nearly twenty-seven hours, and his disappearance was the subject of extensive news coverage. Family, friends, emergency personnel and other state and federal officials searched for him on land, by boat on the Bellamy River, and by helicopter. He was eventually found by a search and rescue volunteer in a wooded area west of the Bellamy River, less than a mile from the accident scene, approximately 550 feet from the Garrison School. When he was found, the defendant was awake and knew who and where he was, but not what day it was. He was wearing casual business attire, including a button down shirt, khakis and a fleece pullover. He had on dress socks and one shoe, which were very wet. His oral temperature, taken in the ambulance about fifty minutes after he was found, was 96.8 but later dropped to 96.4 degrees. His face was gray and his feet were discolored, swollen and cold to the touch.
Route 16, also known as the Spaulding Turnpike, is a toll road. The defendant had an EZ pass transponder in his vehicle that automatically paid his toll when he passed through the toll plaza. The defendant's EZ pass records reflect that his car passed through the Dover toll plaza southbound at 7:39 p.m. on the night of the accident. However, the accident occurred north of the toll plaza approximately one half hour later, as the defendant was again driving southbound on the stretch of Route 16 he had already traversed. He could not recall why he backtracked northbound on a non-toll road and then headed south again.
The defendant claimed to have little memory either of the accident or the events leading up to it. He recalled that his car swerved and crashed, and that he left the scene because he smelled smoke and thought his car was on fire. He recalled swimming across a river, walking for a long time, following a power line up a steep hill, becoming exhausted and collapsing. He did not recall the details of what he was doing or where he was going immediately before his car swerved off of the road.
The defendant was initially charged with one count of false public alarms and one count of conduct after an accident. He was later indicted on one count of falsifying physical evidence. He filed a motion in limine to exclude a portion of the expert testimony of one of his treating neurologists, whom both he and the State had included on their witness lists, arguing that some of her opinions were not timely disclosed to him. See Super. Ct. R. 98(C)(1). Following a hearing, the trial court denied the motion in part. The State successfully moved to preclude the defendant from introducing computer animation evidence purportedly depicting the accident. After a sixteen-day jury trial, the defendant was convicted on all charges. This appeal followed. The defendant argues that: (1) his conduct did not fall within the meaning of the false public alarms statute or the falsifying physical evidence statute; (2) no reasonable jury could have found him guilty of any of the charges; (3) the trial court should have excluded the expert opinion of his treating neurologist; and (4) the trial court should have admitted the computer animation of the accident.
The defendant first contends that his conduct did not fall within the meaning of the false public alarms statute or the falsifying physical evidence statute. The false public alarms statute provides: "Any person who directly or indirectly communicates to any governmental agency that commonly deals with emergencies involving danger to life or property a report known by him to be false regarding a[n] ... emergency, shall be guilty of a misde meanor...." RSA 644:3, I (emphases added). With respect to this charge, he argues that he "is not guilty of false public alarm because he never made any sort of ‘communication’ and never ‘reported’ an emergency." The falsifying physical evidence statute provides: "A person commits a class B felony if, believing that an official proceeding ... or investigation is pending or about to be instituted, he ... [a]lters, destroys, conceals or removes any thing with a purpose to impair its verity or availability in such proceeding or investigation...." RSA 641:6, I. With respect to this charge, the defendant argues that he "is not guilty of falsifying physical evidence by injuring his feet because [they] were not anything that could be used in a proceeding or investigation." (Quotation omitted.)
The State asserts that these arguments have not been preserved for our review. We agree. The defendant's arguments on appeal concern interpretations of RSA 644:3, I, and RSA 641:6, I, whereas in the trial court he asserted only that the evidence was insufficient to support a conviction. Indeed, the defendant concedes that these arguments may have been "imperfectly preserved" because they "were couched in general terms" in his motions to dismiss and he "did not specifically address the State's failure to prove either a ‘report’ or a ‘communication.’ " " [P]reservation of an issue for appeal requires a contemporaneous and specific objection." State v. Ryan, 135 N.H. 587, 588, 607 A.2d 954 (1992). "Any objection not raised at trial is deemed waived." Id. By his own admission, the defendant did not raise at trial the statutory interpretation arguments he now advances; thus they are deemed waived.
The defendant nonetheless argues that we ought to review these issues under the plain error rule. See Sup.Ct. R. 16–A. The plain error rule allows us to consider errors either not brought to the attention of the trial court or not raised in the notice of appeal. The rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Thus, to fall within the plain error rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. State v. Lamy, 158 N.H. 511, 524, 969 A.2d 451 (2009).
Under the first prong of plain error review, "there must be an error." This requires us to examine the trial court's interpretation of the false public alarms statute and the falsifying physical evidence statute, which we review de novo. Id. at 515, 969 A.2d 451. In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. State v. Formella, 158 N.H. 114, 116, 960 A.2d 722 (2008). When interpreting statutes, we look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. State v. Duran, 158 N.H. 146, 155, 960 A.2d 697 (2008). We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (2007). We will neither consider what the legislature might have said nor add words that it did not see fit to include. Duran, 158 N.H. at 155, 960 A.2d 697. Absent an ambiguity, we will not look beyond the language of the statute to discern legislative intent. Formella, 158 N.H. at 116, 960 A.2d 722.
To be guilty of false public alarms, a defendant must (1) directly or indirectly communicate to a governmental agency (2) a report of an emergency (3) known by him to be false. See RSA 644:3, I. The defendant does not dispute that the police constitute a governmental agency within the meaning of the statute, and it is undisputed that he did not directly report an emergency. Accordingly, we are concerned only with whether the...
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