State v. O'Leary

• Decision Date: 19 July 2006
• Docket Number: No. 2005–485.,2005–485.
• Citation: State v. O'Leary, 903 A.2d 997, 153 N.H. 710 (N.H. 2006)
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Anthony C. O'LEARY.

153 N.H. 710

903 A.2d 997

The STATE of New Hampshire

v.Anthony C. O'LEARY.

No. 2005–485.

Supreme Court of New Hampshire.

Argued: May 10, 2006.

Opinion Issued: July 19, 2006.

Rehearing Denied Aug. 24, 2006.

Kelly A. Ayotte, attorney general(Charles J. Keefe and David W. Ruoff, assistant attorneys general, on the brief, and Mr. Keefe orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, Anthony C. O'Leary, appeals his conviction of first degree murder, seeRSA 630:1–a (1996), following a jury trial in Superior Court(Mohl, J.).He argues that the trial court erred when it instructed the jury that it could consider provocation manslaughter only after it unanimously acquitted him of first and second degree murder.We affirm.

The jury could have found the following relevant facts.On June 7, 2004, the defendant killed Treasure Genaw by strangling her and stabbing her nine times with a utility knife.The defendant met Genaw approximately eighteen months before the murder.They began dating in the fall of 2003 and became engaged in February of 2004.In April 2004, Genaw became pregnant by the defendant.The relationship ended in May; the defendant, however, continued to pursue her.He would call various places looking for her or would drive past her home to see if she was there.

On the day of the murder, the defendant told a co-worker that he had an appointment in Rochester at 7:00 p.m. that evening.He left work and arrived at Genaw's sister's home at approximately 5:15 p.m.A witness testified that he saw the defendant drive past the home twice before stopping.The defendant asked Genaw to go with him and talk.With Genaw driving, they left to get ice cream.They began to argue about their relationship and whether she was seeing someone else.They drove to a secluded wooded area, parked the car and continued to argue.During the argument Genaw attempted to take the car keys, but the defendant physically restrained her.She slapped the defendant and he grabbed her.The defendant claimed she then tried to burn him with a cigarette.He put her in a headlock in an effort to calm her, and she punched him in the leg because, according to him, she could not breathe.She then picked up a utility knife and cut the defendant's fingers in an effort to free herself from the headlock.She dropped the knife and the defendant retrieved it.He began to slash and stab her brutally with the knife while she struggled and pleaded for her life.Following the attack, the defendant moved Genaw to the passenger's seat and drove to Maine.He drove down a dirt road in South Berwick, where he stopped and pulled her from the car while she continued to ask for help.He left her body in the tall grass and bushes.Before leaving, he took her license and a necklace she was wearing.

The defendant drove to Massachusetts, where he nearly collided with a Massachusetts State Police cruiser.At the time of his arrest, he and the front seats of his car were covered in blood, and he was actively bleeding from his fingers.

The grand jury indicted the defendant on one count of first degree murder.RSA 630:1–a.At trial, the defendant conceded that he killed the victim, but contended that he did so under circumstances that amounted to extreme provocation, and, thus, he committed manslaughter.SeeRSA 630:2, I(a)(1996).A jury found the defendant guilty of first degree murder.SeeRSA 630:1–a.This appeal followed.

On appeal, the defendant argues that the trial court erred by treating provocation manslaughter as a lesser-included offense of first degree murder and, as a result, erroneously instructed the jury that it could consider provocation manslaughter only if it first acquitted the defendant of first and second degree murder.Specifically, the defendant contends that, based upon the "acquittal first" instruction, the jury could not properly consider whether it should reduce the defendant's intentional murder of the victim to provocation manslaughter.

"The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case.When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case.We determine if the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case."State v. Bortner,150 N.H. 504, 512, 841 A.2d 80(2004)(quotations and citations omitted).The scope and wording of jury instructions are within the sound discretion of the trial court, State v. Evans,150 N.H. 416, 420, 839 A.2d 8(2003), and we review the trial court's decisions on these matters for an unsustainable exercise of discretion, seeState v. Poole,150 N.H. 299, 301, 837 A.2d 307(2003).

The trial court instructed the jury on first degree murder, RSA 630:1–a, and the lesser-included offense of second degree murder, RSA 630:1–b (1996).The trial court also instructed the jury on provocation manslaughter.RSA 630:2, I(a).In an effort to structure the jury's consideration of those crimes, the court issued the following "acquittal first" instruction:

You should render a verdict on [first-degree murder] first.If you find that the defendant is not guilty on the indictment alleging first-degree murder in connection with the death of Treasure Genaw, you should consider whether the defendant is guilty of the similar but less serious crime of second-degree murder as I have defined that offense for you.You may consider whether the defendant is guilty of second-degree murder only if you first find him not guilty of first-degree murder.Only if you find the defendant not guilty of second-degree murder may you go on to consider the lesser-included offense[s] of [provocation and reckless] manslaughter.

The defendant argues that because the instruction informed the jury it could consider provocation manslaughter only if it first acquitted him of two more serious offenses, it unfairly subordinated his defense.The State contends that the jury instructions were proper, but, in the alternative, that any error was harmless beyond a reasonable doubt.Specifically, the State contends that the defendant received a more favorable charge than he was entitled to because the record in this case did not support a provocation manslaughter instruction.

In State v. Taylor,we approved an acquittal first instruction with respect to reckless manslaughter.State v. Taylor,141 N.H. 89, 94, 677 A.2d 1093(1996).We also discussed a proper method for giving a provocation manslaughter instruction in first and second degree murder trials.The trial court in Taylor instructed the jury:

[I]n your deliberations you should first consider whether or not the defendant is guilty of first degree murder.If you so find, then you should consider whether or not that charge should be reduced to manslaughter based on provocation.If you find the defendant not guilty of first degree murder, then you should go on to consider whether or not he is guilty of second degree murder.If you so find, then you must consider whether or not that charge must be reduced to manslaughter based on ... provocation ....If you find the defendant not guilty of first degree murder or second degree murder, then you should go on to consider whether he is guilty of manslaughter based on recklessness.

Taylor,141 N.H. at 94, 677 A.2d 1093.We noted that this instruction required the jury to consider the defendant's provocation defense regardless of the outcome on the murder charge.Id. at 96, 677 A.2d 1093.In contrast, the trial court in this case treated provocation manslaughter as a lesser-included offense to murder by giving a pure "acquittal first" instruction.This was error.Nonetheless, after reviewing the record, we conclude that the State has satisfied its burden of proving that this error was harmless beyond a reasonable doubt.

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

Rose v. Clark,478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460(1986)(citation and quotation omitted).There are instances, however, when the error is so prejudicial that reversal is required "without regard to the evidence in a particular case."State v. Williams,133 N.H. 631, 634, 581 A.2d 78(1990).In Williams,we explained that "only such constitutional errors as necessarily render a trial fundamentally unfair require reversal without regard to the evidence in the particular case."Id.(quotation and ellipsis omitted).Errors that partially or completely deny a defendant the right to the basic trial process, such as the complete denial of a defendant's right to counsel, or adjudication by a biased judge, rise to the level of fundamental unfairness, thereby obviating consideration of the harmless error doctrine.SeeWilliams,133 N.H. at 634, 581 A.2d 78;see alsoState v. Soucy,139 N.H. 349, 352, 653 A.2d 561(1995).Generally, however, "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis."Rose,478 U.S. at 579, 106 S.Ct. 3101.

To establish that an error was harmless, the State must prove beyond a reasonable doubt that the error did not affect the verdict.State v. Etienne,146 N.H. 115, 118, 767 A.2d 455(2001)."An error may be harmless beyond a reasonable doubt if the alternative evidence...