State v. Fernandez
| Decision Date | 23 May 2005 |
| Docket Number | No. 2004-129.,2004-129. |
| Citation | 876 A.2d 221 |
| Parties | The STATE of New Hampshire v. Lucio E. FERNANDEZ. |
| Court | New Hampshire Supreme Court |
Kelly A. Ayotte, attorney general (Robert S. Carey, assistant attorney general, on the brief and orally), for the State.
Law Office of Paul J. Haley, of Hillsborough (Paul J. Haley on the brief and orally), for the defendant.
The defendant, Lucio E. Fernandez, appeals his conviction by a jury for second-degree murder. See RSA 630:1-b (1996). We affirm.
The jury could have found the following facts. The defendant stabbed another man to death. After the stabbing, the defendant threw away the knife and fled the scene. He later fled the East Coast. United States Marshals arrested him approximately seventeen months later in Los Angeles.
At trial, the defendant admitted that he stabbed the victim, but claimed to have acted in self-defense. The defendant testified that the victim initiated the fight, that he and the victim struggled, and that the victim came at him with a knife. Four eyewitnesses testified, however, that the victim was unarmed and that the defendant was the aggressor. Although the defendant testified that the victim injured him, no one who witnessed the incident saw any of the alleged injuries. Numerous witnesses, including the defendant, testified that the victim was quite drunk the night of the murder and that he staggered and appeared unsteady on his feet. His blood alcohol level at death was .33. The defendant was sober.
On appeal, the defendant argues that the Superior Court (Abramson, J.) erroneously: (1) denied his request for depositions; (2) denied his request that the court voir dire prospective jurors about his race and the fact that he lives in Lawrence, Massachusetts; (3) declined to voir dire a juror whom the State alleged was asleep during the State's closing; (4) denied his motion in limine to preclude the State from using the words "victim" and "murder" when eliciting testimony at trial; (5) permitted the State to introduce evidence that the defendant remained a fugitive after seeing himself on a television program about the murder; (6) permitted the State to introduce testimony that, before he fled, the defendant had a duffel bag that contained a police scanner and a gun; and (7) denied his motion in limine to preclude the medical examiner from testifying that the victim's wounds suggested torture. We address each argument in turn.
Before trial, the defendant requested permission to depose the four eyewitnesses to the murder. See RSA 517:13 (1997) (amended 2003). He argued that the depositions were necessary to permit him to discover the extent of the witnesses' criminal records, explore inconsistencies in their prior statements, and unearth further discoverable information. The trial court denied his request, finding that he failed to show by a preponderance of the evidence that deposing the witnesses was necessary. Specifically, the court found that the case was not complex and the State had already provided the defendant with "extensive open file discovery." The court also found that the defendant had other means of ascertaining the witnesses' criminal records such as by interviewing the witnesses.
We evaluate the trial court's decision under our unsustainable exercise of discretion standard. See State v. Hilton, 144 N.H. 470, 473, 744 A.2d 96 (1999); cf. State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001). To prevail, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Hilton, 144 N.H. at 473, 744 A.2d 96.
A defendant does not have an unqualified due process right to compel depositions in a criminal case. Id. Under RSA 517:13, II, the trial court may permit the defendant to depose a witness if the requested deposition is "necessary" to "preserve the testimony of any witness who is unlikely to be available for trial" or to "ensure a fair trial, avoid surprise or for other good cause shown." To determine whether a deposition is necessary, the court must "consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances which may exist." RSA 517:13, II(b).
On appeal, the defendant argues that the court erred because it did not find exceptional circumstances to justify his request for depositions. To the contrary, "[t]he record demonstrates that the trial court weighed the statutory factors and properly ruled that the defendant had not met his burden of establishing necessity." Hilton, 144 N.H. at 473, 744 A.2d 96.
Like the defendant in Hilton, the defendant here had "ample information to prepare his defense." Id. For each of the four witnesses, the State provided lengthy transcripts of interviews. For two of the witnesses, the State also provided transcripts from and copies of audiotaped interviews. In addition, the State provided police reports about witness statements and transcripts of testimony before the grand jury. Like the defendant in Hilton, the defendant here knew in advance of trial of the inconsistencies in the witnesses' statements. Id. at 474, 744 A.2d 96.
The State also provided the defendant with all requested record checks. Moreover, the court ordered the State to provide the defendant with criminal record checks on all names and aliases the defendant provided and to make individual requests to States that are not part of the criminal record database. Under these circumstances, we hold that the trial court's decision to deny the defendant's request for depositions was a sustainable exercise of discretion.
Before trial, the defendant, who is of Cuban descent, requested that the court ask prospective jurors about whether his ethnicity or the fact that he lives in Lawrence, Massachusetts, affected their ability to be impartial in this case. The court declined to do so.
The defendant first argues that he has a due process right under the Federal Constitution to have the trial court voir dire the jury about racial bias. See U.S. CONST. amend. XIV. "[T]he manner in which voir dire is conducted is wholly within the sound discretion of the trial judge." State v. Bone, 131 N.H. 408, 412, 553 A.2d 775 (1989) (quotation omitted). We will not disturb the trial court's decision with respect to voir dire unless it is manifestly against the law and the evidence. Id. at 410-11, 553 A.2d 775.
"The [United States] Supreme Court has determined that under certain limited circumstances special voir dire questioning is constitutionally mandated." United States v. Brown, 938 F.2d 1482, 1485 (1st Cir.), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 633 (1991). In Ham v. South Carolina, 409 U.S. 524, 526-27, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), for instance, the Court ruled that the Federal Due Process Clause required the court to ask questions concerning race where the defendant was black and had been active in the civil rights movement in South Carolina. In that case, the defendant's defense was that law enforcement had framed him because of his civil rights activities. Id. at 525, 93 S.Ct. 848. "Racial issues therefore were inextricably bound up with the conduct of the trial." Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976).
In Ristaino, the Court clarified that the Federal Constitution did not require a state court judge to question prospective jurors in every case where the races of the defendant and victim differed. Id. Rather, for such questioning to be constitutionally required, there must be "special factors" such as those involved in Ham. Id. As a plurality of the Court explained in Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981): "There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups." Nor is there a "per se constitutional rule in such circumstances requiring inquiry as to racial prejudice." Rosales-Lopez, 451 U.S. at 190, 101 S.Ct. 1629. The Court will find a trial court's denial of a defendant's request to examine jurors about racial prejudice unconstitutional "[o]nly when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case." Id.
"The broad inquiry in each case [is] whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as they stand unsworne." Turner v. Murray, 476 U.S. 28, 33, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (). Thus, in Turner, the court held that "a capital defendant accused of an interracial crime" has a constitutional right "to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." Id. at 36-37, 106 S.Ct. 1683.
The defendant has failed to show that there were "special factors" of the sort at issue in Ham. Based upon the circumstances in this case, we cannot conclude that racial issues were "inextricably bound up with the conduct of the trial." Ristaino, 424 U.S at 597, 96 S.Ct. 1017.
The defendant suggests that, in the exercise of our supervisory authority, we should mandate that trial courts ask prospective jurors questions about racial bias where, as here, the perpetrator and the victim are of different ethnicities and the crime at issue is a violent one. See Rosales-Lopez, 451 U.S. at 192, 101 S.Ct. 1629. While we agree with the United States Supreme Court that "the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant," Ristaino, 424 U.S. at 597 n. 9, 96...
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