State v. Fandozzi

• Citation: 159 N.H. 773,992 A.2d 685
• Decision Date: 10 March 2010
• Docket Number: No. 2008–475.,2008–475.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Gurrie FANDOZZI, Jr.

159 N.H. 773

992 A.2d 685

The STATE of New Hampshire

v.Gurrie FANDOZZI, Jr.

No. 2008–475.

Supreme Court of New Hampshire.

Argued: Sept. 23, 2009.

Opinion Issued: March 10, 2010.

Kelly A. Ayotte, Attorney General (Nicholas Cort, Assistant Attorney General, on the brief and orally), for the State.

Mark L. Sisti, of Chichester, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Gurrie Fandozzi, Jr., was convicted by a jury of seven counts of first-degree assault. See RSA 631:1 (2007). He appeals orders of the Trial Court (Nadeau, J.) denying his motions to dismiss, motions in limine, motion for a mistrial, motions to set aside the verdict or for a new trial, and motion to conduct juror voir dire. We affirm.

The record evidences the following facts. When their six-month-old son, G.F., began exhibiting cold symptoms, the defendant and his wife, Tammy Fandozzi, brought him to their pediatrician. The pediatrician diagnosed G.F. with a viral cold. The child's condition worsened that night and he began to have difficulty breathing. The defendant called 911 early the next morning and, at the direction of the dispatcher, administered CPR to the child until the EMTs arrived. While en route to Parkland Medical Center in Salem, New Hampshire, the EMTs made three unsuccessful attempts to intubate G.F. The Parkland Medical staff determined that the child should be transported via helicopter to Children's Hospital in Boston, Massachusetts. At the hospital, a doctor informed the Fandozzis that although G.F. was in stable condition, he was suffering from several broken rib bones. A social worker told the Fandozzis that she was required to notify the State of New Hampshire of G.F.'s injuries.

In 2007, the defendant was indicted on twenty-six counts of first degree assault, alleging that he recklessly inflicted twenty-six bone fractures upon G.F. After a ten-day trial in November 2007, the defendant was convicted of seven charges and acquitted of the remaining nineteen. The court sentenced the defendant to fifteen to thirty years in the state prison.

I. Motion to Dismiss Indictments or Alternative Relief

The defendant argues that the trial court erred in denying his motion to dismiss the indictments or re-depose the State's primary witness. The State originally indicted the defendant on five counts of first-degree assault. Following the deposition of the State's medical expert, the State re-indicted the defendant on twenty-six counts of first-degree assault, one for each of the child's broken bones. The defendant asserts that the court should have dismissed the new indictments or permitted him to re-depose the witness.

"A trial court's decision to deny a motion for a deposition ... is reviewed by this court under the [unsustainable exercise] of discretion standard. Accordingly, we will overturn the trial court's rulings only if the defendant can show that they are clearly untenable or unreasonable to the prejudice of his case." State v. Chick, 141 N.H. 503, 504, 688 A.2d 553 (1996) (citations omitted). "[T]he court, in its discretion, may allow a deposition when a party has shown, by a preponderance of the evidence, that the deposition is needed to ensure a fair trial, avoid surprise or for other good cause shown." Id. at 505, 688 A.2d 553 (quotation omitted).

In denying the motion, the trial court found that "[t]he new indictments cover allegations contained within the old indictments and discovery" and "[d]efense counsel was able to question the Doctor with respect to each bone contained in each of the new indictments." Based upon these findings, we hold that the filing of the new charges did not impede the defendant's ability to prepare a defense. Because the defendant suffered no prejudice, we further hold that the trial court's ruling did not constitute an unsustainable exercise of discretion.

II. Motions in Limine

The defendant challenges the trial court's denial of his motions in limine to exclude certain evidence from trial. The defendant first argues that the trial court erred in denying his motion to exclude testimony from a pediatrician, arguing that she was unqualified to provide expert opinion on the causes of the bone fractures. Specifically, he argues that the doctor lacked radiological training and she relied upon the opinion of another doctor to reach her conclusions.

Because the trial judge has the opportunity to hear and observe the witness, the decision whether a witness qualifies as an expert is within the trial judge's discretion. We will not reverse that decision absent a clearly unsustainable exercise of discretion. Our inquiry is whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. To prevail on appeal, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case.

Goudreault v. Kleeman, 158 N.H. 236, 245, 965 A.2d 1040 (2009) (citations and quotations omitted). In addressing the motion, the trial court determined that the doctor "ha[d] the appropriate special knowledge to evaluate how another doctor's reading of G.F.'s x-rays relate[d] to what she knows about the appearance of a child's bones when they are broken, healing or intact." Accordingly, the court ruled that the pediatrician was properly qualified as an expert pursuant to New Hampshire Rules of Evidence 702 and 703.

Rule 702 provides that, "if scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." To determine whether a witness is qualified as an expert, the court considers whether the witness "by either study or experience, has knowledge on the subject-matter of his [or her] testimony so superior to that of people in general concerning it that the witness's views will probably assist the trier of fact." McMullin v. Downing, 135 N.H. 675, 679, 609 A.2d 1226 (1992) (quotations and brackets omitted).

Here, the trial court determined that the pediatrician has knowledge superior to that of a layperson regarding broken bones and "has focused her career on evaluating children's injuries to determine whether they are victims of abuse. Because it is her job to determine whether a child's injuries are accidental or inflicted, [the doctor] has meaningful experience working with other doctors to interpret x-rays." On the record, we find no error in the trial court's ruling permitting the pediatrician's testimony.

The defendant also challenges the trial court's denial of his motion to exclude evidence relating to: (1) marital conflict between him and his wife; (2) his strained relationship with his in-laws; and (3) evidence that the division of children, youth, and families (DCYF) had brought abuse and neglect petitions against him and his wife. He argues that all of this evidence was irrelevant and unfairly prejudicial.

All evidence must be relevant to be admissible. N.H. R. Ev. 402. Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401. As to the evidence of marital conflict, the court found that the evidence was probative of the defendant's state of mind and "how he handled the pressures of caring for a newborn and is relevant to whether he acted recklessly at the time." The court found the evidence regarding the defendant's strained relationship with his in-laws to be similarly probative. We conclude that given the nature of the charges against the defendant, the court reasonably found that such evidence was relevant to prove that the defendant acted with a reckless state of mind.

As to evidence regarding the DCYF abuse and neglect petitions, the court found that such testimony was probative of the defendant's wife's and in-laws' motivation to lie. The court reasoned that because DCYF could secure a transcript of the criminal trial for use in later family court proceedings against the Fandozzis, the witnesses may have been motivated to lie at trial to protect the defendant and his wife. Under these circumstances, we conclude that the court did not err in finding the evidence relevant.

The defendant argues that, notwithstanding its relevance, the admission of all this evidence was unfairly prejudicial because it portrayed him as someone who is subject to "stressors" and is unable to control his emotions. New Hampshire Rule of Evidence 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Evidence is unfairly prejudicial

if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.

State v. Giddens, 155 N.H. 175, 179–80, 922 A.2d 650 (2007) (citation and quotation omitted).

Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove his guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial. Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.

Id. at 180, 922 A.2d 650. Under the circumstances of this case, we cannot conclude that this evidence had an undue tendency to induce the jury to find against the defendant based upon emotion or some other improper basis. Moreover, any danger of unfair prejudice from this evidence did not substantially outweigh its probative value. Accordingly, we hold that the...