State v. Scott
| Decision Date | 12 May 2015 |
| Docket Number | No. 2014–407,2014–407 |
| Citation | 117 A.3d 716,167 N.H. 634 |
| Parties | The STATE of New Hampshire v. Richard SCOTT |
| Court | New Hampshire Supreme Court |
167 N.H. 634
117 A.3d 716
The STATE of New Hampshire
v.
Richard SCOTT
No. 2014–407
Supreme Court of New Hampshire.
Argued: March 31, 2015
Opinion Issued: May 12, 2015
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Dana Alan Curhan, of Boston, Massachusetts, by brief and orally, for the defendant.
CONBOY, J.
The defendant, Richard Scott, appeals his convictions, following a jury trial, on one count of attempted murder, see RSA 629:1
(2007); RSA 630:1–a (2007), and one count of being a felon in possession of a deadly weapon, see RSA 159:3 (2014). We affirm.
I
The jury could have found, or the record supports, the following facts. On July 26, 2013, Terrence Jackson was at a friend's apartment in Manchester with a woman named Darlene. At around 6:00 a.m., Jackson heard another friend, "Jay," banging on the back door of the apartment. Jackson testified that he had known "Jay" for only a few months, but that the two of them often spent time together "hang[ing] out" and selling drugs. Jackson later identified "Jay" as the defendant.
Jackson testified that he did not open the door for the defendant because he had "never seen [the defendant] that angry before." Shortly thereafter, Jackson received a telephone call from a woman who wanted to stop by the apartment because he was selling drugs. Jackson testified that it was "not unusual" for someone to come to the apartment at 6:00 a.m.
Approximately 20 minutes later, the woman who had called Jackson entered the apartment, followed by the defendant. The defendant and Jackson had "words." Darlene and the other woman left, leaving only Jackson and the defendant in the apartment.
The defendant confronted Jackson about threatening text messages that he had received from one of Jackson's friends. The defendant was also upset because Jackson owed him approximately $600 for drugs. The defendant eventually pulled out a gun, which was the same gun that Jackson had previously lent to the defendant. Jackson threw approximately $600 on the floor, but the defendant did not pick up the money, stating that he knew that Jackson had more money on him. Jackson testified that he did have about $10,000 in his back pocket from selling drugs.
As the conversation between the defendant and Jackson escalated to an argument, two women entered the apartment for a short period of time, during which the defendant put the gun away. Once the women left, the defendant pulled the gun out again, pointed it at Jackson, and asked him for the money. Jackson told the defendant that if he wanted the money, he would have to shoot him. The defendant then said "[t]ake this," shot Jackson in the face, and took the $10,000 that Jackson had in his pocket. As he left the apartment, the defendant pointed the gun at Jackson again and Jackson heard a "click."
After being shot, Jackson disposed of drugs in his possession and changed his shorts because there was drug residue in his pockets. He then called 911. Jackson told the 911 operator that he had been shot, but that he did not know who shot him or the type of gun used; however, at trial, Jackson testified that he lied to the operator about not knowing who shot
him and not knowing what gun was used because he was afraid of the defendant and the police. After the police arrived at the scene, Jackson told an officer that he was shot while sleeping and that he could not identify the shooter.
Jackson was taken to the hospital, and the police interviewed him there. Jackson again told the police that he was sleeping when he was shot. At trial, however, he admitted that he lied to the police because he was scared. Jackson also provided the police with a description of the shooter.
The day after the shooting, Detective Mucci and another detective interviewed Jackson while he was still in the hospital. Mucci testified that he knew that the apartment where Jackson had been shot was being investigated for drug activity. He also testified that he had had prior contact with various individuals from that apartment, including Jackson and someone who went by the name of "Jay."
When the other detective stepped out of the hospital room, Mucci asked Jackson whether one of his acquaintances had shot him. When Jackson did not respond to this question, Mucci asked if "Jay" had shot him. Although Jackson did not respond initially, he eventually asked Mucci to repeat the name. Mucci repeated the name and Jackson responded that it was "Jay" who shot him. Jackson then provided a more detailed description of the shooter than he had provided earlier. After Jackson was released from the hospital, the police presented him with a photographic lineup. Jackson selected the defendant's photograph and wrote on the lineup document that it was the defendant who shot him.
II
The defendant was charged with attempted murder and being a felon in possession of a deadly weapon. Before trial, he moved to suppress Jackson's identification, arguing that it was unnecessarily suggestive and amounted to an improper one-man show-up because Mucci provided Jackson with the name "Jay." After a hearing, the court (Mangones, J.) denied the motion. The court concluded that the identification was not unnecessarily suggestive because Jackson was "very familiar with his alleged attacker"; thus, "the fact that Detective Mucci had asked if ‘Jay’ may have been the shooter likely had little influence over Jackson's identification of the defendant." The court also determined that, even if the identification was unnecessarily suggestive, the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), weighed in the State's favor.
At trial, Jackson testified under a grant of immunity. Although he admitted to committing certain drug-related crimes and to lying to the police during the investigation, he testified that he told the truth at trial, which included identifying the defendant as the person who shot him.
Jackson further explained that his reluctance to initially identify the shooter and talk with police was because he did not "want to look like a rat or a snitch" as that could affect his "street reputation."
The defendant stipulated that he was a convicted felon, and that, if he were convicted by the jury on the attempted murder count, he would, consequently, be guilty of the felon in possession count. At the close of the State's case-in-chief, the defendant moved to dismiss the attempted murder charge. The trial court (Brown, J.) denied the motion. Subsequently, the jury found the defendant guilty of attempted murder, and, pursuant to the stipulation, he was deemed guilty of the remaining count. This appeal followed.
III
On appeal, the defendant first argues that the trial court erred by denying his motion to dismiss because the court failed to consider his challenge to the weight of the evidence. The State counters that the defendant did not preserve this issue. We agree with the State.
In State v. Hill, 163 N.H. 394, 396, 42 A.3d 842 (2012), we explained that "the nature of a challenge to the weight of the evidence requires that it be raised as a motion to set aside a verdict actually rendered. " Here, although the defendant moved to dismiss the attempted murder charge at the close of the State's case, he failed to file a motion to set aside the verdict after the verdict was rendered. Accordingly, this issue has not been preserved for our review. See Hill, 163 N.H. at 396, 42 A.3d 842 ; see also State v. Alwardt, 164 N.H. 52, 57, 53 A.3d 545 (2012) ("Because the relief requested by the defendant was dismissal of the indictment
rather than a new trial and because his challenge was made at the close of the State's case rather than after the jury returned its verdict, we conclude that this issue was not properly preserved for our review.").
We decline the defendant's suggestion, made for the first time at oral argument, that we address this argument under the plain error rule. See Sup.Ct. R. 16–A. Because the defendant has not briefed this contention, we consider it waived. See State v. Davis, 149 N.H. 698, 703, 828 A.2d 293 (2003) (argument made at oral argument, but not briefed or raised in the trial court, deemed waived).
The defendant further urges us to modify our standard for reviewing claims based upon the sufficiency of the evidence. Pursuant to our standard, "[w]hen considering a challenge to the sufficiency of the evidence, we objectively review the record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, considering all the evidence and all reasonable inferences
therefrom in the light most favorable to the State." State v....
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