State v. Russell, No. 2008-458.

CourtSupreme Court of New Hampshire
Writing for the CourtDuggan
Citation986 A.2d 515,159 N.H. 475
PartiesThe STATE of New Hampshire, v. Lee RUSSELL.
Decision Date16 December 2009
Docket NumberNo. 2008-458.
986 A.2d 515
159 N.H. 475
The STATE of New Hampshire,
v.
Lee RUSSELL.
No. 2008-458.
Supreme Court of New Hampshire.
Argued: September 10, 2009.
Opinion Issued: December 16, 2009.

[986 A.2d 518]

Kelly A. Ayotte, Attorney General (Susan P. McGinnis, Senior Assistant Attorney General, on the brief and orally), for the State.

Stephanie Hausman, Assistant Appellate Defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.


The defendant, Lee Russell, was convicted of armed robbery and reckless conduct, see RSA 636:3, III (2007); RSA 631:3 (2007), following a jury trial in the Superior Court (Brown, J.). On appeal, he argues that: (1) the trial court erred when it admitted evidence of his threatening statements pursuant to New Hampshire Rule of Evidence 404(b); and (2) the trial court committed plain error when it sentenced him to an extended term of imprisonment. We affirm.

The jury could have found the following facts. On November 14, 2006, the defendant; his cousin, Jenika Senter; Vincent Cooper; Cooper's girlfriend, Kimberly Dick; and Walter George were at Cooper and Dick's apartment in Rochester. The

986 A.2d 519

defendant, Senter, Cooper and George discussed "wanting to rob somebody." At 6:40 p.m., Senter used the defendant's cell phone to contact Travis Baker to purchase cocaine, but Baker told Senter that he could not sell her cocaine at that time.

Between 11:03 p.m. and shortly after midnight, Senter and Baker spoke many times. Shortly after midnight, Baker told Senter that he could get her three grams. Senter and Baker agreed to meet on Adele Drive in Dover. Baker and his girlfriend, Laura Sabine, drove to the arranged meeting place. Senter walked up to Baker's vehicle and got into the back seat. Senter said that she needed to get her purse out of her uncle's car, so Baker began to drive slowly down Adele Drive.

A young white male, approximately five feet ten inches to six feet tall, wearing a black hooded sweatshirt, suddenly appeared at the front passenger side window. The man had a tattoo on his face or neck. Baker testified that he saw the man's eyes and the bottom part of his face and neck, and Sabine testified that she saw the man's eyes, cheekbones and forehead. The man had a small, revolver-style gun and told the occupants of the car to give him everything they had. Baker refused and sped off. A .22 caliber bullet shattered the back window, ricocheted off the front windshield, and lodged in the dashboard. Senter laughed and told Baker to drive further down Adele Drive, but when Baker reached the end of the road, it was blocked by cars. Baker panicked and went back up Adele Drive. As they reached the spot where the shooting had occurred, Senter told Baker to stop the car and let her out. Baker refused and drove to Rochester, where, eventually, he let Senter out. Senter called Cooper to pick her up, and he took her to his apartment. Dick drove Senter home to Berwick, Maine. During the drive, Senter told Dick that the defendant had shot a gun at them. Baker and Sabine called 911 and went to the Dover Police Department, where they told the police what had happened.

The next morning, Detective Lance Watkinson of the Dover Police Department interviewed Senter at her home. Although at first Senter denied being at Adele Drive, she later admitted that she was there, described what had happened, and identified the defendant as the gunman. Her version of what had happened was consistent with Baker and Sabine's story. Later that day, Baker and Sabine viewed photographic lineups containing the defendant's photograph and, although neither had ever seen the defendant before, both identified the defendant as the person who looked most like the gunman.

Shortly after 5:00 p.m. on November 16, Detective Watkinson saw the defendant walking on Adele Drive. Detective Watkinson called the defendant's name, but he kept walking. The second time Detective Watkinson called the defendant's name, he looked at Detective Watkinson and then kept walking towards a car with his hands in the pocket of his sweatshirt. Detective Watkinson pulled out his gun, pointed it at the defendant, and ordered him to take his hands out of his pocket. The defendant complied and Detective Watkinson arrested him.

After his arrest, the defendant was held at the Strafford County House of Corrections. Some of his telephone calls were recorded. On December 2, 2006, the defendant had a conversation with his mother, Kathryn Smart, in which he said: "[Senter] says she's not f____ snitching. We'll f____ find out when we go to Court. If she's f____ telling. . . ." The defendant also said: "I've, I've got people, I've got, just cause I'm in here doesn't mean s____ can't be done. I don't give a f____." The defendant's mother commented that Senter had

986 A.2d 520

"done this to so many people" that it would all "catch up to her." She also said, "See what she's got to say when she's cross examined."

On December 4, 2006, Detective Watkinson testified at a probable cause hearing that Senter had identified the defendant as the gunman. The defendant's mother, his friends, and other family members attended the hearing. A few hours later, Senter contacted Detective Watkinson, upset that people were saying that Detective Watkinson had testified that she had identified the defendant because she never had. Senter went to the Dover Police Department with her father and grandmother and gave a videotaped statement in which she stated that she did not identify the defendant as the gunman and that the defendant was not the gunman. Before Detective Watkinson took Senter's statement, he played for her the recordings of the phone conversations between the defendant and his mother.

On December 8, 2006, the defendant and his mother had a telephone conversation in which they discussed someone named "Katie," who was not otherwise involved. The defendant's mother noted that "Katie's pretty pissed off . . . [w]ith . . . what happened to [the defendant]." The defendant stated that "[w]e should have [Katie] f____ up Jen . . . [s]he's a f____ bulldog." The defendant's mother responded, "I'm not saying nothing" and "I already know what she said she's gonna do. She's already on it." The defendant described Katie as "crazy" and his mother responded, "[It's] because you are too."

On December 10, 2006, the defendant and his mother had another conversation in which his mother said that if Baker and Senter "don't show up to Court, the case is thrown." The defendant agreed, and his mother responded, "Well I can't wait to see [Senter] show up, I mean that's gonna be quite the interesting case." The defendant replied that he was "gonna try to stare at her the whole time. I'm . . . just gonna like stare both of them down. [Baker] and [Senter]."

On January 18, 2007, Senter testified before the Strafford County Grand Jury that she never identified the defendant. She stated that she had been threatened: "I have had threats saying that I am going to be shot, I am going to be dead . . . my father's car had $2,000 worth of vandalism done to it and my grandmother's as well." She also testified that she had received threats on her cell phone and MySpace page. Senter stated that she did not know who was threatening her, but stated "that is exactly why I did not want to call the police. This is exactly why I did not want to get involved because I am going to lose my life either way."

Before the defendant's trial, the State moved in limine to cross-examine the defendant's mother and Senter at trial with some of the telephone calls made by the defendant while he was in the Strafford County House of Corrections, and offer the conversations as substantive evidence of Senter and the defendant's mother's credibility and the defendant's consciousness of guilt.

The trial court ruled that the State could cross-examine Senter about whether the defendant had threatened her because that evidence was probative of her credibility and motive to lie. The State could question the defendant's mother about the defendant's threats because they were admissions and probative of his consciousness of guilt. If his mother testified inconsistently with her prior statements, the State could admit the telephone conversations "for the limited purpose of witness credibility." The trial court ruled that it would provide a limiting instruction that the defendant's mother's "conversations

986 A.2d 521

with the defendant [would] be considered for the limited purpose of her credibility with the exception of her testimony as to any threats by the defendant against . . . Senter." Finally, the trial court ruled that the telephone calls were admissible substantively as evidence of the defendant's consciousness of guilt, but ordered the State to redact certain portions of them.

Detective Watkinson testified at trial that Senter identified the defendant as the gunman when he interviewed her on November 16. Senter testified that the defendant was not the gunman and that she had never identified him as such. Specifically, she testified that the defendant went home before she walked to Adele Drive to meet Baker and Sabine. Senter claimed that she had received threats since the incident, although she did not attribute them to the defendant. Counsel for the defendant cross-examined Senter with evidence that she had heard parts of the audio recordings of the conversations between the defendant and his mother.

The defendant's mother testified that at the time of the robbery the defendant lived with her in her apartment in Dover. She stated that on the night of the robbery she returned to her apartment "roughly after 9:30" and that the defendant came home approximately ten to fifteen minutes later. She claimed that the defendant and his younger brother then played a video game and that she went to bed at approximately 10:45 p.m. She testified that she woke at approximately 1:00 a.m., went into the...

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8 practice notes
  • State v. Noucas, No. 2011–909
    • United States
    • Supreme Court of New Hampshire
    • July 16, 2013
    ...and the fairness of the trial. Under the plain error rule, we may consider errors not raised before the trial court. State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009) ; Sup.Ct. R. 16–A. To find plain error: "(1) there must be an error; (2) the error must be plain; (3) the error ......
  • State v. Page, No. 2017-0632
    • United States
    • Supreme Court of New Hampshire
    • March 19, 2019
    ...of the test because we conclude that, even assuming, without deciding, that they are satisfied, the fourth is not. Cf. State v. Russell, 159 N.H. 475, 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, a......
  • State v. Saintil-Brown, No. 2018-0222
    • United States
    • Supreme Court of New Hampshire
    • April 17, 2019
    ...that the first three prongs of the plain error test are met, but conclude that the fourth prong is not satisfied. See State v. Russell, 159 N.H. 475, 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, an......
  • Aranosian Oil Co. v. State, No. 2014–0553
    • United States
    • Supreme Court of New Hampshire
    • October 27, 2015
    ...simply waived this claim. Under the plain error rule, we may consider errors not raised before the trial court. State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009). "However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justic......
  • Request a trial to view additional results
8 cases
  • State v. Noucas, No. 2011–909
    • United States
    • Supreme Court of New Hampshire
    • July 16, 2013
    ...and the fairness of the trial. Under the plain error rule, we may consider errors not raised before the trial court. State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009) ; Sup.Ct. R. 16–A. To find plain error: "(1) there must be an error; (2) the error must be plain; (3) the error must ......
  • State v. Page, No. 2017-0632
    • United States
    • Supreme Court of New Hampshire
    • March 19, 2019
    ...of the test because we conclude that, even assuming, without deciding, that they are satisfied, the fourth is not. Cf. State v. Russell, 159 N.H. 475, 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, a......
  • State v. Saintil-Brown, No. 2018-0222
    • United States
    • Supreme Court of New Hampshire
    • April 17, 2019
    ...that the first three prongs of the plain error test are met, but conclude that the fourth prong is not satisfied. See State v. Russell, 159 N.H. 475, 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, an......
  • Aranosian Oil Co. v. State, No. 2014–0553
    • United States
    • Supreme Court of New Hampshire
    • October 27, 2015
    ...simply waived this claim. Under the plain error rule, we may consider errors not raised before the trial court. State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009). "However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice wou......
  • Request a trial to view additional results

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