State v. Lesnick

Decision Date06 June 1996
Docket NumberNo. 95-011,95-011
Citation677 A.2d 686,141 N.H. 121
PartiesThe STATE of New Hampshire v. Denise LESNICK.
CourtNew Hampshire Supreme Court

Jeffrey R. Howard, Attorney General (Janice K. Rundles, Senior Assistant Attorney General, on the brief and orally), for State.

Richard N. Ivker, on the brief and orally, Boston, Massachusetts, and Paul A. Maggiotto, on the brief, Concord, for defendant.

BRODERICK, Justice.

The defendant, Denise Lesnick, was convicted of second degree murder. See RSA 630:1-b (1986). On appeal, she argues that the Superior Court (Sullivan, J.) erred in admitting evidence of prior bad acts under New Hampshire Rule of Evidence 404(b) and in failing to restrict certain cross-examination of a defense witness. We affirm.

I

In the early morning of September 9, 1993, Manchester Police Officers David Connare and William Jones went to the Colonial Village Apartments to investigate a domestic disturbance. There they discovered Paul Lesnick lying on the floor, bleeding from a stab wound to his chest. The apartment was in disarray and the lights were out. Connare asked the defendant what had happened, and she replied that she "didn't know it was him." Emergency medical technicians soon arrived, and Officer Connare took the defendant aside to question her in more detail; as he did so, the victim said, "Don't arrest my wife. She didn't mean to do it."

The defendant waived her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and told Connare that after she and the victim, her husband, had argued, he had gone to his mother's house and she had returned to the apartment. She said she had "lost her mind," cutting up furniture and the victim's clothing, and destroying his stereo equipment. The defendant explained that she was destroying the property because she did not want her husband to "take anything out of the relationship."

The defendant stated that she next began to pack some of her belongings in her car and was resting for a moment when she heard a noise. She located a knife and went to investigate. Seeing a "shadow" that "reached out and grabbed her shoulder," she turned and stabbed at it, thinking the "shadow" was one of two men who had earlier been heckling her as she was moving her things to her car.

While Connare was questioning the defendant, the victim stated to another police officer that he did not want his wife arrested because "it was an accident." Later, in the ambulance, he stated: "I know I am not going to make it," and "my wife didn't do this on purpose." He died shortly after arriving at the hospital.

The defendant was indicted for second degree murder. See RSA 630:1-b. The indictment charged that the defendant caused her husband's death "recklessly ... under circumstances manifesting an extreme indifference to the value of human life, by stabbing him in the chest with a knife." Prior to trial, the defendant filed a notice of intent to claim self-defense. She intended to admit that she stabbed her husband believing he was an unknown intruder. Following trial, the jury found the defendant guilty, and she was subsequently sentenced to twenty years to life in the New Hampshire State Prison. This appeal followed.

II

The defendant first argues that the trial court erred in admitting evidence that she had used a knife against her husband in July 1993, two months prior to his death. The State sought to introduce this evidence to counter the defendant's assertion that she mistook her husband for an intruder. Before trial, the court heard testimony on the incident.

Pauline Deselits, a neighbor at the Colonial Village Apartments, testified that she saw the defendant smashing the windows of a grey two-door car with a clothes iron. She did not see the victim, but she heard him yell, "Hey, that's my brother's car." After the defendant drove away in another car, Ms. Deselits phoned the police. Her call was received at 12:57 p.m.

Manchester Police Officer John D. Murphy arrived at the scene at 1:02 p.m. The victim was upset. According to Officer Murphy, the victim stated that he and the defendant had argued and she had left the apartment. She returned at about 12:55 p.m. and a confrontation ensued, during which the defendant stuck a knife in the bathroom door twice; threw a candlestick holder at the victim, cutting his ear; stabbed him in the back of the neck; and threw the knife at him. The victim told the officer that the defendant had then smashed his car's windshield with a clothes iron.

Officer Murphy testified that he observed a fresh two-inch surface cut on the back of the victim's neck, a cut on one of his ears, a quarter-inch cut below his right eye, and the shattered windshield. The officer radioed the defendant's name and a description of her car to his dispatcher, and he informed the victim that the defendant would be arrested if she was stopped in the next six hours. In response, the victim stated that his wife just wanted to scare him, and that his injuries had been an accident. He refused medical treatment and told Officer Murphy that he did not want a restraining order against his wife.

The trial court ruled the evidence of the July 1993 incident admissible under Rule 404(b). The rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Other bad acts evidence "is only admissible if relevant for a purpose other than to prove the defendant's character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence." State v. Kirsch, 139 N.H. 647, 653, 662 A.2d 937, 942 (1995). We will not disturb a decision to admit this evidence absent an abuse of discretion. Id. The defendant challenges the admissibility of evidence of the July 1993 incident on each prong of the Rule 404(b) analysis.

A

The defendant asserts that the July 1993 incident was irrelevant to the crime charged because it demonstrated only her bad character and violent disposition. "The State bears the burden in criminal matters of demonstrating the relevance of other bad acts." State v. Melcher, 140 N.H. 823, ----, 678 A.2d 146, 149 (1996). To be relevant, the other bad act evidence must "tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity." Id. (quotation omitted).

The State argued below, as it does before us, that evidence of the July 1993 incident was relevant to refute the defendant's claim of accident. The foundational premise for admitting other bad acts on the grounds of absence of mistake or accident is a defendant's claim of mistake or accident as a defense. See State v. Whittaker, 138 N.H. 524, 527, 642 A.2d 936, 938 (1994). In addition, there must exist some clear and logical connection between the other acts and the conduct the defendant maintains was mistaken or accidental. See United States v. Hogue, 827 F.2d 660, 663 (10th Cir.1987). At a minimum the other acts and the crime for which the defendant was charged must be similar in kind. See id. at 662-63, 642 A.2d 936.

These requirements were met here. The defendant filed timely notice that she intended to utilize a justification defense at trial. See Super.Ct.R. 101 (requiring notice of intent to claim defenses set forth in Criminal Code); RSA 627:4, II(d) (1986) (justifying use of deadly force in self-defense). In view of her assertion that she would not have attacked the victim had she known who he was, the defendant's self-defense claim necessarily raised the issue that she committed the stabbing without the requisite culpable mental state--in other words, mistakenly or accidentally.

Further, the July 1993 incident and the crime charged were clearly and logically connected. Separated by only two months, the incidents involved the same victim and a similar weapon, and each occurred in like circumstances--following a confrontation between the defendant and her husband. Evidence of the July 1993 incident would thus tend to negate a defense of mistake or accident by showing that "the defendant had strong feelings toward a particular individual that may have contributed to the formation of intent." Hogue, 827 F.2d at 664; see also People v. Illgen, 145 Ill.2d 353, 164 Ill.Dec. 599, 604, 583 N.E.2d 515, 520 (Ill.1991).

The defendant suggests the trial court's ruling is undermined by the court's failure to articulate how this evidence was relevant apart from its tendency to show propensity. In State v. McGlew, 139 N.H. 505, 658 A.2d 1191 (1995), we announced the requirement that the trial court "explain precisely how the evidence relates to the disputed issue, without invoking propensity." Id. at 510, 658 A.2d at 1195. The court in this case, however, did not have the benefit of our decision in McGlew. In addition, the court provided a detailed order explaining the basis of its ruling with regard to the relevance of the July 1993 incident. There was no error.

B

The defendant next argues that there was no clear proof of the July 1993 incident under the second prong of our Rule 404(b) analysis. The "clear proof" requirement is satisfied when the State presents evidence "firmly establishing that the defendant, and not some other person, committed the prior bad act." State v. Michaud, 135 N.H. 723, 727, 610 A.2d 354, 356 (1992). Whether there was clear proof of the July 1993 incident for purposes of Rule 404(b) is a preliminary determination concerning the admissibility of evidence, and the trial court is not bound by the rules of evidence in making this determination. See N.H.R.Ev. 104(a).

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