State v. Heath

• Decision Date: 16 November 2021
• Docket Number: 2019-0737
• Parties: State of New Hampshire v. Mark Heath,
• Court: New Hampshire Supreme Court

State of New Hampshire
v.
Mark Heath,

No. 2019-0737

Supreme Court of New Hampshire

November 16, 2021

Having considered the briefs and oral arguments of the parties, we conclude that a formal written opinion is unnecessary in this case. The defendant, Mark Heath, appeals his conviction, following a jury trial in the Superior Court (Nicolosi, J.), on one count of second degree murder. See RSA 630:1-b, I(b) (2016). The defendant argues on appeal that the trial court erred by: (1) admitting evidence of the defendant's inconsistent statements concerning his prior animal-cruelty conviction; and (2) precluding the defendant from cross-examining the victim's mother about her prior statements regarding her use of makeup on the victim and involvement in the defendant's marijuana enterprise. We conclude that, even assuming that the trial court erred with respect to either or both of the evidentiary rulings challenged on appeal, the errors did not affect the verdict. Therefore, we affirm the defendant's conviction because any error was harmless beyond a reasonable doubt.

The jury could have found the following facts. In December 2017, the defendant lived in an apartment with his girlfriend and her two sons: the victim, age two; and the victim's older brother, age five. The victim's mother had recently separated from her husband, her two sons' biological father, who lived in an apartment upstairs with his uncle.

On December 11, 2017, the victim's mother awoke at 7:30 a.m. and drove her older son to school. She then briefly returned to the apartment, checked in on the victim, and left for work at 8:40 a.m., arriving shortly before 9:00 a.m. Thereafter, only the defendant and the victim remained in the apartment. At 10:17 a.m., the victim's mother received a text from the defendant with a picture of the victim lying on his bed amidst a bowl of cereal, root beer, a mango, a fruit cup, and a sippy cup - all of which the victim had taken from the kitchen and spread out on his bed.^[1] The caption to the text from the defendant read: "I fell back asleep, woke up to take a piss, and this is what [the victim's] bed looks like." After sending the text and image, the

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defendant observed the victim "eating away" and noticed he spilled cereal on his bed. While cleaning up the spill, the defendant also discovered that the victim had made a "mess" in his diaper, which the defendant then proceeded to change.

At approximately the same time, the victim's father and his uncle, who were upstairs in their apartment, heard a series of "loud bangs" come from the victim's room. The uncle stated the sound "shook the floor," as if "somebody had jumped off the bed and landed hard." Shortly thereafter, the defendant ran upstairs and knocked on the victim's father's door, asking for help because the victim was not breathing. The victim's father rushed downstairs, found the victim unresponsive on his bed, and carried the victim up to the third floor, where he performed CPR and instructed the defendant to call 911. The defendant made the call at 11:19 a.m. and emergency responders arrived approximately four minutes later.

When emergency responders arrived, the victim was unresponsive, with no pulse, and although his airway was unobstructed, he was not breathing. The emergency responders also observed significant bruising to his face, torso, and extremities. The victim was transported to the hospital where he was pronounced dead.

An autopsy revealed that the victim's death was caused by blunt impact injuries to his abdomen, resulting in severe internal bleeding. Based on the severity of the internal injuries and the significant bruising to the victim, the medical examiner concluded that the manner of death was a homicide. Police subsequently arrested the defendant after finding him hiding in the basement of his mother's house. The State charged the defendant with two alternative-theory counts of second degree murder, one count alleging the defendant recklessly caused the victim's death with extreme indifference to human life and the other alleging the same conduct with a knowing state of mind. See RSA 630:1-b, I (2016).

During the ensuing investigation, the police asked the victim's mother about the defendant's use and sale of marijuana. Initially, the victim's mother admitted to being minimally involved with the defendant's marijuana sales, claiming to have spoken to a friend about the defendant's sales on just one occasion. However, at a later evidentiary hearing, when confronted with a series of messages, the victim's mother admitted to attempting to sell the defendant's marijuana to multiple friends. Citing, among others, New Hampshire Rules of Evidence 403 and 404(b), the State filed a motion in limine to exclude evidence of the victim's mother's prior statements about selling marijuana. The defendant objected, arguing that the statements were inconsistent and therefore relevant to the victim's mother's credibility and

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consciousness of guilt. The trial court granted the motion, finding that the probative value of the evidence was "not terribly great" because it related to a collateral matter and was substantially outweighed by the danger of unfair prejudice that "the jury may develop an improper bias against the witness because of her bad acts."

Prior to trial, the defendant moved in limine to preclude evidence of his statements to police concerning his fifteen-year-old animal-cruelty conviction. Specifically, during an interview with police, when asked about the prior conviction, the defendant denied responsibility for the underlying offense of killing a cat, instead claiming that he took the "fall" for someone else. The State objected to the defendant's motion, arguing that the defendant's statements were relevant to attack his credibility and show consciousness of guilt. The trial court initially determined the evidence was inadmissible under Rule 403, reasoning, in part, that the defendant did not "provide misinformation or overtly lie, conduct which would have had substantially more probative value." The trial court further determined that the probative value of the evidence was...