State v. McDonald

• Decision Date: 28 December 2011
• Docket Number: No. 2010–235.,2010–235.
• Citation: 163 N.H. 115,35 A.3d 605
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Paul McDONALD.

163 N.H. 115

35 A.3d 605

The STATE of New Hampshire

v.Paul McDONALD.

No. 2010–235.

Supreme Court of New Hampshire.

Argued: Sept. 21, 2011.Opinion Issued: Dec. 28, 2011.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, Paul McDonald, appeals his conviction, by a jury, of first-degree murder. See RSA 630:1–a, I(a) (2007). On appeal, the defendant argues that the Trial Court ( Nicolosi, J.) erred by permitting the State to present certain lay opinion testimony, declining to give the defendant's requested self-defense jury instruction, and prohibiting the defense from referring to the aggravated felonious sexual assault statute in its closing argument. We affirm.

The record supports or the jury could have found the following facts. The victim, Richard Wilcox, owned a three-bedroom home in Danville. Wilcox lived in the house, but rented out the two spare bedrooms. He also worked full time in Burlington, Massachusetts, and owned a 2008 Toyota Tacoma truck.

In March 2008, McDonald moved into Wilcox's home and began renting one of the spare bedrooms. The other bedroom was occupied until late May, when the tenant renting it moved out. Shortly before McDonald moved in, he had only $220.05 in his checking account. By the end of May, his checking account had a deficit of $7.21. At trial, McDonald's ex-wife testified that he had lived in several places and frequently changed jobs. She also testified that since their divorce in 2000, McDonald never seemed to have any money.

McDonald owned a Harley Davidson Ironhead motorcycle, but was interested in purchasing a Harley Davidson Shovelhead. He frequently inquired about purchasing a Shovelhead from Dan Glidden, the owner of a motorcycle repair shop. Glidden was reluctant to part with the motorcycle, and quoted a price of $6,500. According to Glidden, this price was well above what the motorcycle was worth. McDonald attempted to pay the $6,500 with a credit card, but Glidden declined because the card was not in McDonald's name. Glidden later informed McDonald that Dan Eighmey, the owner of a car sales and repair business, also owned a Shovelhead.

Eighmey testified that in mid-to-late May 2008, a man who identified himself as Richard Wilcox, but who was actually Paul McDonald, came to his dealership and inquired about purchasing the Shovelhead. Eighmey also testified that McDonald, posing as Wilcox, was enthusiastic about the motorcycle, and called and visited the dealership several times over the next few weeks to negotiate a purchase. Early during these negotiations, McDonald gave Eighmey the title to Wilcox's 2008 Tacoma. Eighmey testified that McDonald agreed to give him the 2008 Tacoma in exchange for the Shovelhead, a 1994 Tacoma, and $4,200. McDonald, however, repeatedly made excuses, and postponed completion of the transaction for several weeks. Around June 9, Eighmey told McDonald to complete the deal or else Eighmey would put the motorcycle up for sale again. McDonald again requested more time, and agreed to take $1,000 less if Eighmey would hold the motorcycle for another week. Eighmey agreed.

On June 12, McDonald, still posing as Wilcox, completed the transaction. He arrived at Eighmey's dealership a little after 8:00 a.m. and traded Wilcox's 2008 Tacoma for the 1994 Tacoma, the Shovelhead motorcycle, and $3,200. McDonald then went to the motorcycle repair shop and asked Glidden's son, David, to fix the motorcycle that week. David testified that when McDonald arrived, he had something wrapped around his bleeding hand. Some time after leaving the repair shop, McDonald drove to Vermont.

On June 13, in response to a call from Wilcox's employer, Danville Police Sergeant Ryan Furman drove to Wilcox's home to check on his well-being. Finding the front door ajar, Furman entered the premises. Inside, he saw that the living room was orderly and noticed a plate of food on the kitchen counter. He then noticed a hole in the wall next to the counter and proceeded down the hallway. Furman found blood on the ceiling, floor, and walls of the hallway bathroom. He called for assistance. After another officer arrived, the two of them found pools of blood in one of the bedrooms and a towel soaked in blood. Eventually, they found bloody marks on the basement stairs, and blood that led to the corner of the basement, where they discovered the body of Richard Wilcox.

On June 17, McDonald registered the 1994 Tacoma in his brother's name in Vermont. The next day, the police learned that he was staying with friends in Castleton, Vermont. New Hampshire State Police Sergeants Mark Armaganian and Scott Gilbert went there and McDonald agreed to speak with them at the Vermont Police barracks. Once there, Gilbert and Armaganian read McDonald his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he waived them. Gilbert and Armaganian then questioned him about Wilcox's death.

At first, McDonald claimed that he had been gone and did not know anything about Wilcox's death. A short while later, he admitted that he killed Wilcox, but claimed he only attacked Wilcox because he “snapped” when he woke up with his pants around his ankles and felt Wilcox's mouth on his penis. He told the police that after he killed Wilcox, he panicked, attempted to clean up the blood, and left. He admitted to posing as Wilcox when negotiating the sale with Eighmey, but claimed that the murder was completely unrelated to the plan to steal Wilcox's truck, and described his plan to steal the truck as just a “stupid” idea. At trial, McDonald admitted to causing Wilcox's death. The only issue for the jury was whether he did so in self-defense.

I

Before trial, the defendant moved to exclude certain opinion testimony from Gilbert and Armaganian regarding the police interrogation. The defendant argued that the officers' “interpretations and observations of [his] demeanor and body language are inadmissible opinion evidence ... [that] comment on the credibility of a witness.” After a hearing, the trial court denied the defendant's motion, ruling that testimony describing the defendant's body language and demeanor was admissible, as was opinion testimony regarding whether the defendant's emotional reactions appeared genuine.

At trial, only Gilbert testified about the interrogation. During direct examination, the State asked Gilbert to “explain ... what [he] observed during the course of the interview.” Gilbert responded,

I observed how quickly he was able to turn his emotion on and off. He was succinct and clear to the point on certain questions, and then completely stammering nonsensical to other certain questions. He was able to turn his emotion on and off quickly and easily.... [H]is demeanor was ... his emotion to me seemed very feigned.

A few moments later, the State inquired of Gilbert

Q: All right. Did you make any observations about his body language throughout the interview?

A: I thought everything was overly—his body motions—emotions were overly dramatic.

Q. Okay. Can you explain what you mean by that?

A: Well, if ... I asked him a certain question and he says well, no, it would be a very flamboyant no, and he'd—goodness, no. And it's very over exaggerated.

Q: Okay. And since this is being recorded, you kind of raised your eyes and made a, sort of, exaggerated expression on your face.

A: Yeah. There was a lot of, you know, a lot of eye rolling and the hands that go—I—how could you think that? No. That kind of reaction.

The State then distributed a transcript of the interrogation and played a portion of the audio recording of the interview for the jury. The State later played the remainder of the recording for the jury. After playing the second portion of the audio recording, the State asked Gilbert to testify about the defendant's facial expression after Gilbert asked him whether the theft of the truck and the killing of Richard Wilcox were related. Gilbert explained, “[T]here was a very, I thought, over exaggerated, shook [ sic ], his eyes bugged out like shock, like oh, my goodness. I never thought of that. How could you possibly think that type of expression.”

On appeal, the defendant argues that the trial court erred by allowing the State to present opinion testimony from Sergeant Gilbert about the genuineness of his body language and demeanor during the police interrogation.

A

The admissibility of evidence is a matter left to the sound discretion of the trial court. State v. White, 155 N.H. 119, 123, 920 A.2d 1216 (2007). We will not reverse the trial court's decision to admit evidence absent an unsustainable exercise of discretion. State v. Lopez, 156 N.H. 416, 420, 937 A.2d 905 (2007). In determining whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001).

A witness need not qualify as an expert to give testimony in the form of an opinion. See N.H. R. Ev. 701. The trial court may permit lay opinion testimony as long as the witness's opinion is “rationally based on the perception of the witness” and helpful to the trier of fact. N.H. R. Ev. 701. However, it is the province and obligation of the jury to determine the credibility of witnesses. State v. Reynolds, 136 N.H. 325, 328–29, 615 A.2d 637 (1992). Therefore, while witnesses may give lay opinion testimony on a variety of topics, they are not permitted to give lay opinion testimony regarding the credibility of a witness. Id. Such testimony invades the province of the jury. Id. This prohibition applies with equal force to testimony about a criminal defendant who does not testify as a witness at trial. See State v....