State v. Fichera

Decision Date09 June 2006
Docket NumberNo. 2005-122.,2005-122.
Citation903 A.2d 1030,153 N.H. 588
CourtNew Hampshire Supreme Court
Parties The STATE of New Hampshire v. Daniel FICHERA.

Kelly A. Ayotte, attorney general (Robert S. Carey, 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.


The defendant, Daniel Fichera, was convicted in Superior Court (Mohl, J.) of attempted murder, see RSA 629:1 (Supp.2005); RSA 630:1-a (1996), first degree assault, see RSA 631:1 (1996); kidnapping, see RSA 633:1 (Supp.2005), and criminal threatening, see RSA 631:4 (Supp.2005). We reverse and remand.

The jury could have found the following facts. In May 2003, the defendant and Monica King-Fichera separated after a seven-year relationship and one year of marriage. Prior to their separation, they lived in Milton, and jointly owned five acres of undeveloped land off Piggott Hill Road in Milton. Access to the land was through a neighbor's driveway and a trail. After the separation, King-Fichera moved to Lebanon, New Hampshire, and the defendant remained in Milton.

The defendant subsequently contacted King-Fichera and told her that their neighbor had agreed to a "variance," which would give them access to the land off Piggott Hill Road. King-Fichera agreed to meet with the defendant and the neighbor to reach an agreement concerning access rights.

On October 28, 2003, King-Fichera met the defendant in Milton, and they drove together to the Piggott Hill Road property. After they arrived, they sat at a picnic table and conversed cordially for about forty-five minutes. The defendant asked King-Fichera whether there was a possibility of getting back together and she said that she wanted to remain friends but did not think they were compatible as husband and wife. The defendant asked King-Fichera if she wanted to make love and she said no.

The defendant became angry and retrieved a shotgun. After a struggle, he forced King-Fichera to write a "confession" that she was an adulterous woman, and showed her a Bible with passages highlighted about adulterous women, divorce, revenge and prayer. The defendant threatened to spray King-Fichera with pepper spray. After unsuccessfully attempting to handcuff King-Fichera, the defendant threatened her with a large knife. He then hit her head several times with the butt of the shotgun and fired the shotgun into the air. The defendant told her that he intended to kill her and then himself.

As the sun was setting, King-Fichera told the defendant that she had to leave. He then aimed the shotgun at her chest and told her, "[W]oman, I love you so much, ... but you're going to die." He fired the shotgun into King-Fichera's chest. Although wounded, King-Fichera managed to run away. The defendant followed, hitting her repeatedly with the butt of the shotgun. King-Fichera then lay down and "pretended to be comatose." After the defendant left, she got up and ran into the woods. The defendant followed, but could not catch her before she arrived at the home of a neighbor who called 911.

The defendant was indicted for attempted murder, first degree assault, kidnapping and criminal threatening. Prior to trial, he timely filed a notice of insanity defense. See RSA 628:2, III (1996). The defendant's "Notice of Defense of Insanity" stated: "Now comes [the defendant] ... and respectfully notifies this Court and the State of his intention to assert the defense of insanity, as set forth in RSA 628:2, at trial." The State moved to strike the insanity defense and exclude testimony of defense experts on the issue of insanity.

The court conducted a pretrial hearing, at which the State argued that the defendant could not present an insanity defense because he had not proffered any evidence that his mental illness caused the charged conduct. The State argued that the jury should not be permitted to infer from testimony about the defendant's depression and post-traumatic stress disorder

(PTSD) that his mental condition caused his conduct. The trial court agreed, ruling:

In this case, the only evidence which the defendant can present is evidence that he suffered from PTSD and depression. None of the doctors upon which he relies ... can offer any opinion on his condition at the time of the incident .... The defendant offers no evidence that indicates his PTSD and depression deprived him of the ability to form the specific intent for the crimes upon which he is indicted.
Indeed, the defense counsel admitted at the hearing that no medical opinion evidence exists linking the defendant's conduct to a mental disease or defect .... By his own admission, the defendant can only present evidence as to one part of the analysis.

During trial, the defendant sought to cross-examine King-Fichera on what he characterized as her "mental health issue." The defendant sought to show that King-Fichera had been diagnosed with bipolar disorder

and prescribed lithium. The defendant also sought to cross-examine King-Fichera about what he alleged was her belief in UFOs, her ability to communicate with spirits, that she possessed shamanistic powers and that divine intervention had reversed her tubal ligation. He argued that cross-examination on these matters was necessary to challenge King-Fichera's credibility and perception of reality. The State objected, arguing that the defendant had not presented any evidence of King-Fichera's allegedly abnormal beliefs and that it knew of no basis for the claims that King-Fichera was bipolar other than statements by the defense. The trial court sustained the State's objection and disallowed cross-examination.

On appeal, the defendant argues that the trial court erred by: (1) granting the State's pretrial motion to strike the defendant's insanity defense; and (2) barring him from cross-examining King-Fichera on issues related to her mental condition and beliefs. We address each argument in turn.

I. Insanity

At the outset, the defendant argues that the trial court erroneously rejected his insanity defense on the grounds that he presented no expert testimony in support of it. He argues that expert testimony is not required to present an insanity defense. In support of his position, he relies upon cases holding that insanity may be proven by lay witness testimony, and implying that expert testimony is not required. See, e.g., State v. Hudson, 119 N.H. 963, 966, 409 A.2d 1349 (1979) ; see also State v. Plante, 134 N.H. 456, 460-62, 594 A.2d 1279 (1991) ; State v. Abbott, 127 N.H. 444, 448-49, 503 A.2d 791 (1985) ; State v. Rullo, 120 N.H. 149, 152, 412 A.2d 1009 (1980).

The State forthrightly concedes that a defendant may prove insanity by lay testimony and that expert testimony is not needed to support an insanity defense. It argues, however, that the trial court properly struck the insanity defense because the defendant "offered no evidence to show that a mental disease or defect caused his actions." The defendant argues that he did not need to proffer such evidence prior to trial. He contends that "[b]ecause [he] timely filed a Notice of Insanity Defense, he was entitled to the opportunity to present evidence relevant to that defense." He contends that "before trial, the court could not validly rule that [he] had failed to proffer sufficient lay witness testimony to support the insanity defense" and that "if he failed to produce sufficient evidence at trial, the court could then deny a jury instruction on the insanity defense."

Insanity is an affirmative defense in New Hampshire. Abbott, 127 N.H. at 448, 503 A.2d 791. A defendant asserting an insanity defense must prove two elements: first, that at the time he acted, he was suffering from a mental disease or defect; and, second, that a mental disease or defect caused his actions. See id. The defendant has the burden of proving insanity by clear and convincing evidence. RSA 628:2, II (1996).

There are four well-established principles relating to New Hampshire's unique insanity defense. See State v. Jones, 50 N.H. 369, 393-400 (1871). First, "sanity is a question of fact to be determined by the jury and ... there is no test for determining whether a defendant is insane." State v. Hall, 148 N.H. 394, 399, 808 A.2d 55 (2002). Second, the test for insanity does not define or limit the varieties of mental diseases or defects that can form the basis for a claim of insanity, State v. Plummer, 117 N.H. 320, 327, 374 A.2d 431 (1977). Thus, both PTSD, cf. State v. Place, 126 N.H. 613, 615, 495 A.2d 1253 (1985), and depression, cf. State v. Mercier, 128 N.H. 57, 65, 509 A.2d 1246 (1986), may form the basis of an insanity defense. Third, whether a mental disease or defect caused the charged conduct is a question of fact for the jury. Abbott, 127 N.H. at 448, 503 A.2d 791; State v. Pike, 49 N.H. 399, 438 (1869), overruled on other grounds by Hardy v. Merrill, 56 N.H. 227, 234, 252 (1875). Fourth, a defendant asserting an insanity defense "is free to present any and all evidence of his mental state at the time of the crime." Abbott, 127 N.H. at 449, 503 A.2d 791 (emphasis added); see also Plante, 134 N.H. at 462, 594 A.2d 1279. "It has long been recognized in this State that even the condition of insanity may be proved by lay witnesses," Hudson, 119 N.H. at 966, 409 A.2d 1349, and "lay testimony has ... been held to satisfy federal constitutional standards." Id. at 966-67, 409 A.2d 1349 (citing Moore v. Duckworth, 443 U.S. 713, 714-15, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979) (per curiam)).

The question of when a trial court may grant a pretrial motion to strike an insanity defense is an issue of first impression in New Hampshire. We will uphold the trial court's decision to strike an affirmative defense absent an unsustainable exercise of discretion. See Exeter Hosp. v. Hall, 137 N.H. 397, 400, 629 A.2d 88 (1993) ; cf. State v. Lambert, 147 N.H. 295, 296, 787 A.2d...

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