State v. Littlefield
| Decision Date | 16 June 2005 |
| Docket Number | No. 2003–627.,2003–627. |
| Citation | 152 N.H. 331,876 A.2d 712 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Daniel J. LITTLEFIELD. |
Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
Sisti Law Offices, of Chichester (Jonathan Cohen, on the brief, and Mark L. Sisti orally), for the defendant.
The defendant, Daniel J. Littlefield, appeals his conviction for negligent homicide, see RSA 630:3 (Supp.2004), following a jury trial in the Superior Court (Smukler , J.). We affirm.
The defendant's conviction stemmed from his operation of his father's thirty-six foot Baja performance boat on Lake Winnipesaukee during the night of August 11, 2002. The night was dark, clear and moonless, with light boat traffic, smooth water, and good visibility. At a speed of approximately twenty-eight miles per hour, the bow of the defendant's boat collided with the stern of a twenty-foot Wellcraft motorboat and then the length of the larger boat rode over the smaller boat. Both boats had departed from the Meredith public docks and headed into Meredith Bay. The collision occurred at approximately 9:30 p.m. and resulted in the death of John Hartman, the owner of the smaller boat.
The grand jury returned two indictments against the defendant, alleging alternative theories of negligent homicide. The first indictment (# 03–S–006) alleged that he negligently caused the death of another by failing to keep a proper lookout while operating a boat, a class B felony. The second indictment (# 03–S–007) alleged that he negligently caused the death of another by being under the influence of intoxicating liquor while operating a boat, a class A felony. The defendant moved unsuccessfully to have the indictments dismissed. At the conclusion of a nineteen-day jury trial, the defendant was found guilty solely of the class B felony. This appeal followed.
The defendant argues that the trial court erred by: (1) instructing the jury concerning his alleged post-collision flight; (2) admitting testimony of an individual who saw a boat acting "furtively"; (3) not instructing the jury on the differences between the duties imposed upon a boater and a motorist involved in an accident; (4) failing to instruct the jury that certain deposition testimony of a forensic laboratory analyst could be considered substantively; (5) allowing the State to argue that the jury should discount the testimony of a witness because her husband lied; (6) failing to define "gross," as used in the term "gross deviation," in response to a jury question; (7) denying his motions to dismiss for insufficiency of the evidence; and (8) utilizing flight as an aggravating factor in his sentencing. We address each issue in turn.
Several of the defendant's arguments involve jury instructions. In addressing these arguments, we recognize that State v. Bortner, 150 N.H. 504, 512, 841 A.2d 80 (2004) (quotations and citations omitted). Whether or not a particular jury instruction is necessary, the scope and wording of jury instructions, and the response to a question from the jury are all within the sound discretion of the trial court, see State v. Cook, 148 N.H. 735, 741–42, 813 A.2d 480 (2002) (necessity); State v. Evans, 150 N.H. 416, 420, 839 A.2d 8 (2003) (scope and wording); State v. Poole, 150 N.H. 299, 301, 837 A.2d 307 (2003) (), and we review the trial court's decisions on these matters for an unsustainable exercise of discretion, see Poole, 150 N.H. at 301, 837 A.2d 307.
The defendant argues that the trial court erred by instructing the jury concerning his alleged post-collision flight. At the outset, we note that in his brief, the defendant made passing reference to "due process" within the context of Part I, Article 19 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. As these constitutional arguments were neither made in his objection to the relevant jury instruction at trial, nor identified in his notice of appeal, we decline to address them. See, e.g. , Smith v. Shepard, 144 N.H. 262, 264, 740 A.2d 1039 (1999).
The defendant contends that the trial court erred by giving a flight instruction that differed from the pattern jury instruction "in that it lacked the language concerning ‘flight from the police.’ " He argues that his actions were "totally inconsistent with the concept of flight," and that he was prejudiced because:
[B]y giving the flight instruction when there was no evidence to support it, the jury could easily infer that there was evidence that the defendant fled and further, the jury could have followed the trial court's instruction and could have inferred guilt from the defendant's flight.
The trial court gave the following instruction:
Earlier, the trial court had also specifically instructed the jury:
Throughout the trial I have tried to be fair and impartial. Just as you are required to be. If anything that I have said or done during the trial or in these instructions has caused you to think that I favor any party, I now instruct you that I do not favor any party. If you believe that I have expressed or suggested an opinion as to the facts in my rulings, you should ignore such an opinion. It is up to you alone to decide the facts in this case.
While it is correct that the trial court's instruction did not contain explicit language concerning flight "from the police," see N.H. Criminal Jury Instruction 1.19 (1985), we find no error either in that omission or in the instruction as a whole. There need not be evidence that a defendant was in direct flight from immediate police apprehension before an instruction on the significance of purported flight may be properly given. See State v. Torrence, 134 N.H. 24, 26–27, 587 A.2d 1227 (1991) (); see also State v. Bruneau, 131 N.H. 104, 117, 552 A.2d 585 (1988) ().
An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. Flight manifestly does require, however, a purpose to avoid being observed or arrested.
People v. Crandell, 46 Cal.3d 833, 251 Cal.Rptr. 227, 760 P.2d 423, 442 (1988) (en banc) (citation omitted), cert. denied, 490 U.S. 1037, 109 S.Ct. 1936, 104 L.Ed.2d 408 (1989), overruled on other grounds by People v. Crayton, 28 Cal.4th 346, 121 Cal.Rptr.2d 580, 48 P.3d 1136, 1147 (2002).
We also disagree with the defendant's contentions that no evidence of flight was introduced, and that his actions were totally inconsistent with the concept of flight because the "evidence showed that [he] actually contacted the police and voluntarily gave them access to himself, the passengers that were on the boat, and consented to have the police search and seize the boat itself." The State presented extensive testimony indicating that the collision of the two boats was not minor, that the defendant must have been aware that he had collided with another boat, and that the individuals on the smaller boat required assistance.
On the evening of August 11, the Hartman boat was occupied by four individuals: John Hartman; his wife, Karen Hartman; their son, Kevin Hartman; and Stephanie O'Brien. Karen and Kevin Hartman and Stephanie O'Brien all testified that Karen screamed before the impact of the collision, and that the collision was violent and loud. Sergeant Ouellette and Lieutenant Dunleavy of the Marine Patrol, and Linda DeNoble, a criminalist with the State Police forensics laboratory, all offered expert testimony that the Hartman boat suffered significant damage.
Kevin Hartman testified that, immediately after the collision, he could see three individuals on the other boat looking toward the Hartman boat. His mother screamed at them for help and to call 911, but he heard no response and saw no action being taken by the individuals. The other boat departed the scene as he attempted to return the Hartman boat to the Meredith docks. Karen Hartman and Stephanie O'Brien corroborated this testimony. Sergeant Ouellette and Lieutenant Dunleavy testified that during sound tests conducted under...
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