State v. Newcomb

• Decision Date: 01 August 1995
• Docket Number: No. 93-341,93-341
• Parties: The STATE of New Hampshire v. Bruce NEWCOMB.
• Court: New Hampshire Supreme Court

Page 613

663 A.2d 613

140 N.H. 72

The STATE of New Hampshire v. Bruce NEWCOMB.

No. 93-341.

Supreme Court of New Hampshire.

Aug. 1, 1995.

Jeffrey R. Howard, Atty. Gen. (Cynthia L. White, Asst. Atty. Gen., on the brief and orally), for State.

Judith M. Kasper, Asst. Appellate Defender, Concord, and Tower, Bean & Crocker, Jaffrey (Ms. Kasper and Jefferson K. Allen, by brief, and Mr. Allen orally), for defendant.

BATCHELDER, Justice.

The defendant, Bruce Newcomb, was convicted of two counts of first degree murder after a jury trial in Superior Court (Manias, J.). On appeal he argues that the trial court erred in admitting evidence of a subsequent armed robbery committed by the defendant; in improperly instructing on the use of the evidence of the defendant's other crimes; in refusing to instruct the jury that a witness's prior inconsistent statement could be used substantively; and in improperly instructing the jury on circumstantial evidence. He also argues that he was denied the effective assistance of counsel. We affirm.

In the early morning hours of August 4, 1991, Herbie Flanders and Audrey Whitten were shot to death in their Warner home. The murders followed a small party held there, at which the defendant had been present. Prior to the murders, the defendant had been threatening Flanders because Flanders had provided information to the police incriminating the defendant in the theft of a truck. Charged with the felony of receiving stolen property, the defendant told several friends that he was going to "get" Flanders for informing on him, saying that Flanders was "going to die" and that the defendant would kill him. Hours before the murders, the defendant stated to friends that "Herbie's all taken care of," and that when they read in the newspaper that something bad had happened, they would know who had done it.

Discharged bullets and casings found at the scene came from a .380 caliber weapon. The defendant had bought a .380 Llama semi-automatic pistol on July 15, 1991, and was target-shooting in a Warner sandpit in July. On July 28, he fired it during an attempted armed robbery at a Dunkin' Donuts in Somerville, Massachusetts. Ballistics testing of the evidence recovered at the murder scene showed that it matched the bullets and casings previously fired from the defendant's gun. The gun was not recovered.

The defendant was indicted in Massachusetts for an armed robbery committed on August 5, the day after the murders, at the Lil' Peach Convenience Store in Somerville. The State sought to introduce evidence of the robbery at the defendant's murder trial in order to establish identity and opportunity, arguing that the robbery evidence showed the defendant's subsequent possession of the murder weapon. After a hearing during which eyewitnesses to the robbery testified and a security videotape of the actual robbery was played, the trial court ruled the evidence admissible. At trial, when the evidence of the robbery was introduced and again during its final charge, the court gave the jury a limiting instruction on the use of the robbery evidence.

The defendant first argues that the trial court abused its discretion in allowing evidence of the Lil' Peach robbery to be admitted pursuant to New Hampshire Rule of Evidence 404(b).

Evidence of other bad acts 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, ----, 662 A.2d 937, 942 (1995). The defendant challenges only the second prong of this test for admissibility, contending that the State failed to show "clear proof" that the gun used in the robbery was the defendant's .380 Llama pistol. Assuming, without deciding, that the State's burden was to establish clear proof of the identity of the firearm used in the robbery, but see State v. Michaud, 135 N.H. 723, 727, 610 A.2d 354, 356 (1992) (test requires proof "firmly establishing that the defendant, and not some other person, committed the [other] bad act"), we find that this burden was met.

The trial court found clear proof that the defendant committed the Lil' Peach robbery and, further, clear proof that the gun used in the robbery was the defendant's .380 Llama pistol. The defendant does not challenge the former finding, and the record supports the latter.

Evidence at the hearing showed that the defendant owned a black .380 Llama semi-automatic pistol, purchased in July 1991, that was the same as one purchased by the State and introduced for demonstrative purposes. Mark Ruff, the defendant's friend, testified about his familiarity with the defendant's gun and that the defendant had it with him on the evening of the murders. He stated that at the party at the Flanders home, he heard the defendant say that he was "gonna do it" while making a clicking sound like the hammer of a gun in his pocket. Ruff testified that the State-purchased black pistol resembled the defendant's gun.

Employees of the Lil' Peach store who witnessed the robbery also testified at the hearing. Carl Davis, who stood about five feet away from the robber, described a black gun with a silver chamber on top. The .380 Llama, purchased by the State, is all black except for a silver cartridge ejection port. Examining the State-purchased Llama, Davis stated that the gun looked "basically the same." Shown diagrams of six different types of semi-automatic guns, Davis pointed out dissimilarities between the robber's gun and those displayed, until shown the .380 Llama, which he said was "[p]retty close to it from what I can remember."

Bruce Ambrose, behind the counter when the robbery occurred, observed a black semi-automatic handgun with a hammer, held by the robber near the countertop. Looking at the .380 Llama purchased by the State, Ambrose stated, "Yes, this does look like the weapon that could have been used at the time." Ambrose had prepared a drawing of the robber's gun in order to show the size of the barrel, and when the Llama was placed on it at the hearing, Ambrose observed that it "[a]lmost" looked as though he had traced it.

Although the defendant points to isolated portions of the witnesses' testimony in which they admitted to uncertainty, the standard for admissibility under Rule 404(b) is not proof beyond a reasonable doubt. See generally State v. Gruber, 132 N.H. 83, 89, 562 A.2d 156, 159-60 (1989) (evidence of cancelled checks, receipts and telephone records established clear proof of defendant's prior relationship). Sufficient similarity between the weapon used in the robbery and a .380 Llama was established to support the trial court's finding that the robbery was committed by the defendant with the murder weapon.

With respect to the evidence that the defendant committed the two Massachusetts robberies, the defendant challenges the trial court's limiting instructions to the jury. He argues that the court erred in refusing to give his requested instruction that the jury should consider the evidence only for the limited purpose of determining the defendant's control over the Llama firearm. We disagree.

The trial court need not instruct the jury in the specific language requested by the defendant so long as the instructions adequately and accurately state the relevant law. See State v. Dedrick, 135 N.H. 502, 505, 607 A.2d 127, 129 (1992). Whether or not a particular instruction is necessary is a decision left to the sound discretion of the trial court. State v. St. John, 129 N.H. 1, 3, 523 A.2d 26, 28 (1986).

The trial court ruled that the evidence of the other robberies was relevant and admissible to prove the identity of the defendant as the person in possession of the murder weapon. In its charge to the jury, the court instructed:

Now you have heard evidence that the defendant committed certain illegal acts that are not charged in the indictments. This evidence was admitted for certain limited purposes....

The evidence concerning the Dunkin' Donuts robbery was offered to prove the identity of the murder weapon and the defendant's possession of the murder weapon during that robbery. If you do not believe that the defendant committed the Dunkin' Donuts robbery, or if you do not believe that the defendant used the murder weapon during the Dunkin' Donuts robbery, then you must not consider this evidence for any purpose at all and you must ignore this evidence. If you believe that the defendant committed the Dunkin' Donuts robbery using the same gun that was used in the Flanders and Whitten murders, then you may use this evidence in deciding whether the defendant is the person who committed the crimes for which he stands charged.

The evidence concerning the Lil' Peach Convenience Store robbery was offered to prove that the defendant had possession of his 380 Llama handgun during that robbery on August 5th, 1991. If you do not believe that the defendant committed the Lil' Peach robbery, or if you do not believe that the defendant used his 380 Llama during the Lil' Peach robbery, then you must not consider this evidence for any purpose at all and you must ignore this evidence. If you believe that the defendant committed the Lil' Peach robbery using his 380 Llama, then you may use this evidence in deciding whether the defendant is the person who committed the crimes for which he now stands charged.

Keep in mind that you may not consider any of this evidence, that is ... the Dunkin' Donuts robbery or the Lil' Peach robbery, as proof of the defendant's character or as proof that the defendant was disposed to commit the crimes charged. The defendant's character is not an issue in this case. Your duty is to decide whether the State has proven beyond a reasonable doubt the identity of the defendant as the person who committed the crimes charged as well as...