State v. McMinn, 95-707

Decision Date07 March 1997
Docket NumberNo. 95-707,95-707
Citation141 N.H. 636,690 A.2d 1017
PartiesThe STATE of New Hampshire v. Matthew McMINN.
CourtNew Hampshire Supreme Court

Jeffrey R. Howard, Attorney General (Jeffrey S. Cahill, Assistant Attorney General, on the brief and orally), for the State.

Gary Apfel, Assistant Appellate Defender, of Orford, by brief and orally, for defendant.

HORTON, Justice.

Following a jury trial in Superior Court (Gray, J.), the defendant, Matthew McMinn, was convicted of criminal mischief, see RSA 634:2 (1996), and riot, see RSA 644:1, I(a) (1996). On appeal, the defendant argues that the trial court erred in: (1) denying his request for a mistrial based on circumstances surrounding the disclosure of perjured testimony; and (2) refusing to instruct the jury on the issue of self-defense. We affirm the conviction for criminal mischief, reverse the conviction for riot, vacate the sentences, and remand.

Although there was conflicting testimony at trial on several points, the State presented evidence from which the jury could have found the following facts. At approximately midnight on October 14, 1994, the defendant and a companion, Joey LaBonville, were walking down a sidewalk at a shopping center in Londonderry when a car containing Shayne Burke, Todd Degryse, and Timothy Bristol drove past them. After the car passed by the defendant and LaBonville, Bristol asked Burke to stop the car because he had seen something, possibly an object thrown at the car, "out of the corner of [his] eye." When Burke complied, Bristol emerged from the car and exchanged words with the defendant and LaBonville. The words escalated to violence, however, when the defendant and LaBonville suddenly attacked Bristol. Before Degryse or Burke could come to Bristol's defense, Joshua McMinn, the defendant's brother, arrived at the scene and temporarily disabled Degryse with a kick to the knee. Burke's effort to use her "pepper spray" on the attackers backfired; the wind blew the spray into Degryse's eyes. Having quickly gained the upper hand in the melee, the defendant and his companions kicked and beat Bristol as Degryse and Burke attempted to summon help at a nearby store. At some point during the incident, either LaBonville or Joshua McMinn produced a cut-down pool cue and used it as a weapon to beat Bristol. When the defendant and his two companions were finished with Bristol, they proceeded to damage Burke's car by jumping on the hood and roof, breaking its windows, and smashing its lights.

After the State charged the defendant with riot and criminal mischief for his role in the incident, the defendant filed notice of his intention to rely on the statutory defense of self-defense, see RSA 627:4, I (1996), with respect to the riot charge. See Super.Ct.R. 101. The notice of defense essentially asserted that one of the occupants of Burke's car had initiated the fight that formed the basis for the riot indictment.

I. Mistrial

The defendant's arguments concerning the trial court's denial of his mistrial request center on the testimony of LaBonville. Prior to the defendant's trial, LaBonville had pleaded guilty to felony criminal mischief and simple assault for his role in the altercation. Called as a witness by the State, LaBonville initially testified that: one of the occupants of the car started the fight by charging and swinging at the defendant; LaBonville, in an effort to protect the defendant and himself, started fighting with a different occupant of the car; the "baton" (pool cue) was introduced by one of the car's occupants, not by anybody on the defendant's side; LaBonville was the only person who damaged Burke's car; and Joshua McMinn never jumped on Burke's car. LaBonville's account of the fracas conflicted in material respects with those of Burke, Degryse, and Bristol, who had previously testified that the defendant and LaBonville started the fight by attacking Bristol, that somebody on the defendant's side produced the pool cue, and that at least two, and probably three, individuals caused the damage to Burke's car.

At the conclusion of the State's direct examination of LaBonville, the defendant's attorney informed the trial judge, outside the presence of the jury, that he believed that "something which is less than truthful" had been presented to the jury. The defendant's attorney further explained "that the testimony that was given [by LaBonville] was unexpected by me as a result of my prior involvement with my investigation of this case and specifically my discussions with this particular witness." The defendant's attorney did not identify any particular aspects of LaBonville's testimony that were inconsistent with the results of his pretrial investigation.

Upon hearing this, the trial judge addressed LaBonville:

If you continue your testimony, that's up to you, but I am going to order the County Attorney to investigate your testimony and the statements that you have made to other people and if a perjury charge is in order, they'll bring it, and if you're tried of perjury and are convicted of perjury, the penalty is three-and-one half to seven years in New Hampshire State's Prison and it will be tried, if it is tried, in front of me and if you are convicted of perjury in front of me, I will put you in the New Hampshire State Prison for three and one-half to seven years, guaranteed. You are looking right in the eyes of your worst nightmare if you are lying on the stand.

Shortly after the trial judge's warning, LaBonville stated that he wanted to change "a couple things" in his testimony. When the jury returned to the courtroom, the trial judge informed it of LaBonville's desire to revise certain testimony. During the renewed direct examination by the State, LaBonville acknowledged that he was now aware of the penalties for perjury and testified that he and Joshua McMinn caused the damage to Burke's car. LaBonville maintained that he did not know where the defendant was during the time that LaBonville and Joshua McMinn were jumping on the vehicle. LaBonville continued to claim that the pool cue was produced by one of the occupants of Burke's car.

After reminding LaBonville of their previous discussions about the incident, the defendant's attorney cross-examined LaBonville as follows:

[DEFENSE COUNSEL]: [D]o you recall me telling you that the only way that [the defendant] could get a fair trial is if when you took the witness stand, you told the absolute truth about your recollection of the events?

[LABONVILLE]: What I can remember, I am telling.

[DEFENSE COUNSEL]: Let's be straight with this jury, okay? What you told this jury the first time you testified was that somebody in the car had that club?

[LABONVILLE]: Yeah. That's not true.

[DEFENSE COUNSEL]: That's not true, is it?


[DEFENSE COUNSEL]: And you do, in fact, know where that club came from?

[LABONVILLE]: The vehicle that we were in.

[DEFENSE COUNSEL]: All right. And you do, in fact, know who brought the club into the fight?


[DEFENSE COUNSEL]: Why don't you tell the jury the truth.

[LABONVILLE]: I did. I've been. I'm trying to do that right now.

[DEFENSE COUNSEL]: What is the name of the person that brought the club into the fight?

[LABONVILLE]: Josh[ua McMinn].

The defendant's attorney then elicited testimony from LaBonville that Joshua McMinn did not join the fight until a few minutes after it began and that Joshua McMinn's ultimate entry into the fracas was unexpected by both the defendant and LaBonville.

At the conclusion of LaBonville's testimony, the State called a police officer who briefly testified about his role in the apprehension of the defendant and his discovery of a cut-down pool cue in the vehicle transporting the defendant and his companions. During a recess that immediately followed the police officer's testimony, the defendant personally addressed the court:

Your Honor, I think this whole day has been a disaster and, I mean, I don't think that--I don't think things are going too well. I have a request for the Court to take [my attorney] off of my case and I'd appreciate it if I could get a new trial, a fair trial.

The defendant's attorney similarly requested permission to withdraw from the case and a new trial for the defendant, citing the defendant's loss of confidence in him as a result of the events surrounding LaBonville's testimony. The trial court denied the requests, determining that it was too late in the trial to request new counsel and that the defendant's attorney was providing both competent representation to the defendant and appropriate information about possible perjury to the court. Although the trial court acknowledged that the LaBonville incident "didn't do [the defendant] any good," it concluded that the defendant was "getting a fair trial." The court further determined that neither the State nor the defendant bore responsibility for the circumstances surrounding LaBonville's testimony.

On appeal, the defendant first argues that the trial court erred in failing to grant a mistrial. The defendant contends that the mere fact that LaBonville apparently provided false testimony in an attempt to aid the defendant--and then changed that testimony in front of the jury--made it "impossible for the jury to dispassionately weigh the evidence." Relying on Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the defendant also points to the trial court's "coerc[ive]" and "lengthy excoriation" of LaBonville as an independent basis for a mistrial. The State initially counters with the assertion that neither of these arguments is preserved for our review. According to the State, the defendant's "general" request for a new trial during a court recess was both untimely and insufficient to inform the trial court of the grounds for the request. The State also contends that the defendant never objected to the nature or wording of the perjury warning given to LaBonville.


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