State v. Shaw
| Decision Date | 19 November 2020 |
| Docket Number | No. 2019-0072,2019-0072 |
| Citation | 248 A.3d 366,173 N.H. 700 |
| Parties | The STATE of New Hampshire v. Joshua L. SHAW |
| Court | New Hampshire Supreme Court |
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Joshua L. Shaw, appeals his conviction following a jury trial for a violation count of driving after license suspension, see RSA 263:64 (2014), and misdemeanor counts of enhanced simple assault, see RSA 631:2-a, I(a) (2016); RSA 651:6, I(g) (2016); attempted enhanced simple assault, see RSA 629:1 (2016); RSA 631:2-a, I(a); RSA 651:6, I(g); resisting arrest, see RSA 642:2 (2016); and disobeying an officer, see RSA 265:4, I(e) (2014). On appeal, he argues the Superior Court (Delker, J.) erred by: (1) denying his motion for in camera review of any disciplinary actions involving the police officers in his case and any prior "use of force" reports they filed; and (2) instructing the jury that the crime of disobeying an officer requires the State to prove that the defendant "refused to produce his driver's license on demand of a law enforcement officer for the purposes of examination by the officer." We affirm.
The jury could have found the following facts. On March 14, 2018, while Salem Police Officer Feole was on patrol, he saw a pickup truck pass by with its rear plate area completely covered in snow. Because of the snow, the truck's registration sticker was not visible, but the truck was pulling a utility trailer with a visible Michigan registration. Feole ran the Michigan registration number and discovered that the trailer was registered to the defendant whose New Hampshire operating privileges had been suspended in 2015 for failing to pay child support.
Upon pulling over the truck, Feole walked to the driver's side of the vehicle, introduced himself, and explained that he had stopped the vehicle because its rear license plate was obscured by snow and because he suspected that the defendant was the registered owner of the trailer and was driving despite his privilege for doing so being suspended. The defendant was in the driver's seat, his girlfriend was in the passenger seat, and there was a large dog between them. When Feole asked the defendant for his license and registration, the defendant was immediately hostile and refused to provide his license. Feole explained again why he had pulled over the vehicle. Feole asked the defendant if he was the registered owner of the trailer, and the defendant confirmed that he was, but still refused to give Feole his license. The defendant's girlfriend started to record the encounter with her cell phone.
At one point, the defendant removed a card, which looked like a license, from the visor, telling Feole that "his license was all good," that he "got it a couple of weeks ago," and that, therefore, there was no reason for the stop. When Feole asked if the defendant would hand him the license, the defendant refused, folded papers around the card, and put the card back in the visor. Feole calmly explained that, by refusing to give him the license, the defendant was committing a misdemeanor for which he could be arrested. To this, the defendant said,
Feole informed the defendant that he was under arrest, and because he estimated that the defendant weighed approximately twice as much as he, Feole radioed for backup. Officer MacKenzie, Sergeant Genest, and Lieutenant Fitzgerald arrived on the scene. Feole, MacKenzie, and Genest approached the truck, and Feole told the defendant to leave the vehicle; however, the defendant refused to do so. Feole tried to open the door, but the defendant slammed it shut, locked it, rolled up the window, and yelled, The officers told the defendant several times that he was under arrest and had to exit the truck, but he refused. The officers informed the defendant that if he did not exit the truck, they would have to smash the window and pull him out because he was under arrest. When the defendant failed to exit, Genest smashed the truck window with his flashlight, and the officers attempted to unlock the driver's side door, but were unable to do so. As the officers tried to pull the defendant through the truck window, he began throwing punches, kicking his feet at them through the window, and yelling,
MacKenzie fired his taser's prongs into the defendant, who swatted them away and continued kicking at the officers and swinging his fists at them, with a set of keys held between his knuckles. The officers repeatedly ordered the defendant to open the door, but he kept kicking and punching. MacKenzie fired his taser's second set of prongs into the defendant; the defendant pulled them out and kept fighting. MacKenzie then put the taser on the defendant's leg and administered a "drive stun," which occurs when the end of the taser is held against the skin of a target, but the taser's prongs are not fired.
The defendant continued to resist, yelling, An officer responded, When the defendant asked why he was being arrested, he was told that he was being arrested for assaulting two police officers. At this point, Genest pulled out his taser and told the defendant, Genest then fired his taser's prongs into the defendant, and he and MacKenzie repeatedly yelled to the defendant to open the door. The defendant pulled out the prongs, but did not open the door.
The officers then went to the passenger side of the truck. Genest knocked on the passenger side door and told the defendant's girlfriend to exit the vehicle. She refused even after being told that she, too, was under arrest. The defendant yelled, "Nobody's getting out of this vehicle," and reached over to lock the passenger side door. After more yelling from the defendant, MacKenzie administered another drive stun.
Genest told the defendant's girlfriend to open her door and exit the truck or else he was going to smash her window. She yelled, Genest broke the window, and after more yelling from the defendant, Genest unlocked the passenger side door. The defendant's girlfriend got out of the truck and stopped recording the encounter.
The dog left the truck, and Genest and Feole tried to pull the defendant out. The defendant punched at Genest and Feole and held onto the steering wheel. Genest wrapped his arms around the defendant's head and pulled. MacKenzie hit the defendant's hands and wrists until the defendant lost his grip on the steering wheel. Then, Feole, Fitzgerald, and Genest pulled the defendant from the truck. He landed on his stomach and tucked his hands underneath his body.
Two more officers arrived, Officers DiChiara and DeFeudis. Officers repeatedly ordered the defendant to put his arms behind his back, but he refused. When they tried to pull his arms out from under his stomach, he resisted. DiChiara pulled out his taser and gave the defendant a direct shock on his bare back. Feole again tried to pull the defendant's right arm, but the defendant again resisted.
Because verbal commands, "soft-hand controls," and taser use had been ineffective, Feole punched the defendant in the rib area. The defendant released his right arm sufficiently so that Feole could put it behind his back and place handcuffs on it. The defendant refused to release his left arm, however, so DiChiara gave him another direct shock. The defendant then took his left arm out from under his stomach, and the officers placed handcuffs on it.
Before trial, the defendant filed a motion for in camera review of "information concerning any and all matters whereby force was used on an individual and involving any of the Salem Police officers involved in [his case]" and "information concerning any and all disciplinary actions regarding the Salem Police officers involved in [his case]." Citing State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992), the defendant argued that in camera review "is the appropriate method to be employed when [a] defendant seeks materials which are subject to a privilege." The defendant asserted that "[t]here is a reasonable probability that an in-camera review will reveal information relevant to [his] defense" that "any force used by him was justified due to the excessive and unlawful force of the Salem Police officers." He argued, "By way of example, information concerning disciplinary actions of the involved officers and any previous use of force employed by these officers is highly relevant to this defense." He observed that the arrest of another individual earlier in 2018 "involved an excessive use of force and use of tasers," and that some of the officers who arrested him "may very well have" been involved in that earlier arrest. He further noted that the officers who used tasers on him did not follow the Salem police department's internal practices and procedures.
The State objected, citing RSA 105:13-b (2013), and asserting that the defendant had failed to meet his burden under Gagne of demonstrating that there was a reasonable probability that the personnel files of the officers contained evidence relevant and material to his defense. The State informed the court that, contrary to the defendant's speculation, "[t]here were no officers that were involved in the traffic stop and arrest of the Defendant...
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