State v. Nightingale
| Decision Date | 23 July 2010 |
| Docket Number | No. 2009–321.,2009–321. |
| Citation | 160 N.H. 569,8 A.3d 136 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Darlene NIGHTINGALE. |
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.
The defendant, Darlene Nightingale, appeals her conviction by a jury of felony sale of a controlled drug (Oxycontin) within 1,000 feet of a school. See RSA 318–B:2, I (Supp.2009); RSA 318–B:26, V (Supp.2009). On appeal, she argues that the Superior Court (Arnold, J.) erred by: (1) denying her motion to preclude certain evidence; (2) denying her request for a jury instruction to limit the jury's consideration of that evidence; (3) denying her motion to dismiss; and (4) allowing the confidential informant to testify that she participated in another drug transaction for the New Hampshire Drug Task Force. We affirm.
The jury could have found the following facts. In July 2006, the confidential informant was arrested for driving after having been certified as a habitual offender. She contacted the New Hampshire Drug Task Force to see if she could obtain help with this charge in exchange for providing information regarding drug transactions. The informant understood that "if [she were] cooperative and helped in roughly two or three controlled buys" from two or three prospective targets, her cooperation "would work in [her] favor." The informant's "case agent" at the task force, Detective N., asked the informant to target the defendant, who shared a house with Nicole Moulton.
On October 21, 2007, the defendant asked the informant to accompany her to Concord to buy cocaine. The informant called Detective N., who said that he would be interested in buying an "eight ball" of cocaine from the defendant. An eight ball is approximately three and one half grams of cocaine. After speaking with Detective N., the informant told the defendant that her ex-boyfriend, "Porter," wanted to buy an eight ball of cocaine. "Porter" was, in fact, Detective N.
The defendant and the informant left Claremont for Concord at around 10:30 a.m. Throughout the day, the informant kept in close contact with Detective N. about the planned cocaine purchase by phoning and sending him text messages. At around 7:00 p.m., the informant told Detective N. that the defendant had purchased three eight balls of cocaine in Concord. At approximately 10:15 p.m., the informant told Detective N. that the defendant had said that he could not purchase the cocaine from her until the next day, but that she had offered to sell him Oxycontin that night "to tide [him] over until the next day when [he] would have a chance to get the cocaine." As Detective N. explained at trial: The parties agreed to meet at the Cumberland Farms store on Pleasant Street in Claremont for the Oxycontin sale. This store is less than 1,000 feet from Stevens High School.
At approximately 10:37 p.m., the defendant arrived at Cumberland Farms, and Detective N. entered her van. The defendant was in the driver's seat, the informant was in the passenger seat, and the detective sat in the middle of the back seat. The defendant told the detective that she had purchased three eight balls of cocaine, but that she had left them at the Plainfield house of her friend, Pat Poulin, because she was worried that her boyfriend would call the police if she brought them to her own house. The defendant told the detective that she could meet him between 9:00 and 10:00 a.m. the following day to sell him one of the eight balls. The defendant then opened her purse and removed a prescription bottle. The detective inquired whether the pills were ten or twenty milligrams, to which she responded that they were ten milligrams. The defendant offered to sell ten of the pills to the detective for sixty dollars. The detective handed the defendant the money, and the defendant opened the prescription bottle and dumped the pills into his hand. He wrapped the pills in a cellophane wrapper from a cigarette pack and left the vehicle. Thereafter, the defendant was charged with selling Oxycontin within 1,000 feet of a school.
The defendant first argues that the trial court erred when it denied her motion in limine to exclude evidence that she and the informant allegedly traveled to Concord to buy cocaine. The defendant argued to the trial court, and argues on appeal, that this evidence is inadmissible under New Hampshire Rule of Evidence 404(b). The record on appeal reveals that the trial court, in fact, granted this motion in part. In its order, the trial court ruled that evidence of the trip to Concord was inadmissible (although we note that this evidence was admitted at trial without objection) but that the conversations in which Detective N. placed an order for an eight ball of cocaine and in which the defendant said that she could not sell him the cocaine yet, but would sell him Oxycontin were admissible. These conversations, the trial court ruled, showed "the context of the sale as well as the defendant's motive for selling." The court ruled that they "indicate[d] a plan to sell cocaine" to the detective.
We review the trial court's ruling for an unsustainable exercise of discretion, and will reverse only if it was clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Russell, 159 N.H. 475, 482–83, 986 A.2d 515 (2009). Because the trial court ruled upon the admissibility of the challenged evidence before trial, "we consider only what was presented at the pretrial hearing." Id. at 483, 986 A.2d 515 (quotation omitted). "We so limit our review to avoid the pitfall of justifying the court's pretrial ruling upon the defendant's response at trial to the evidence." State v. Glodgett, 144 N.H. 687, 694, 749 A.2d 283 (2000) (quotation and brackets omitted).
Rule 404(b) 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 admissible when: (1) it is relevant for a purpose other than proving the defendant's character or disposition; (2) there is clear proof that the defendant committed the act; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. State v. Beltran, 153 N.H. 643, 647, 904 A.2d 709 (2006). The State bears the burden of demonstrating the admissibility of other bad acts. Id.
Although this test must be applied before evidence of "other crimes, wrongs or acts" may be admitted, Rule 404(b) does not apply here. See State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439 (1989). The challenged conversations are not "other crimes, wrongs or acts," but rather are "inextricably intertwined with evidence of the crime charged in the indictment." United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.1995) (quotation omitted); see United States v. LaDue, 561 F.3d 855, 857–58 (8th Cir.2009). The conversations at issue and the crime charged in the indictment "are part of a single criminal episode." Barnes, 49 F.3d at 1149 (emphasis added). Therefore, Rule 404(b) does not apply, see id., and the applicable test for admissibility is found in New Hampshire Rule of Evidence 403. Kulikowski, 132 N.H. at 287, 564 A.2d 439.
Under Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. State v. Ainsworth, 151 N.H. 691, 696, 867 A.2d 420 (2005). Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial. State v. Giddens, 155 N.H. 175, 180, 922 A.2d 650 (2007). Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged. Id. Among the factors we consider in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror's sense of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference. State v. Howe, 159 N.H. 366, 378, 986 A.2d 631 (2009).
"The trial court is in the best position to gauge the prejudicial impact of particular testimony, and what steps, if any, are necessary to remedy that prejudice." State v. Sonthikoummane, 145 N.H. 316, 324, 769 A.2d 330 (2000) (quotation and brackets omitted). Thus, we give the trial court broad latitude when ruling on the admissibility of potentially unfairly prejudicial evidence. Id. Accordingly, we will not disturb the trial court's decision absent an unsustainable exercise...
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...and whether it is necessary, to counter the prejudice created by the other party's opening of the door. See, e.g., State v. Nightingale, 160 N.H. 569, 579-80 (2010) (discussing the specific contradiction doctrine and whether rebuttal evidence specifically contradicted the admitted evidence)......