Criminal Law

Jonathan P Killeen
Shareholder at Boyle, Shaughnessy Law PC in Manchester, NH

No. 2018-0433
August 4, 2020
Reversed and remanded

  • Whether criminal defendant provided adequate pre-trial notice of defense pursuant to N.H. R. Crim. P. 14(b)(2)(A) and whether witness statements satisfied medical diagnosis or treatment hearsay exception

The defendant was an inmate at the Rockingham County House of Corrections. A fight broke out between the defendant and another inmate resulting in injuries to the other inmate. The defendant was subsequently charged with one count of assault by a prisoner and found guilty. On appeal, the defendant challenged the trial court’s decision to strike the defendant’s notice of self-defense pursuant to N.H. R. Crim. P. 14(b)(2)(A) due to insufficient factual allegations to support the defense, as well as the trial court’s decision to permit a witness to testify over a hearsay objection.

Regarding the notice of defense, the trial court determined the factual grounds set forth in the defendant’s notice were in- sufficient to support a self-defense claim because the notice did not contain any facts to suggest that the injured inmate threatened the defendant. On appeal, the

Supreme Court stated that a defendant’s burden for setting forth the basis for a pure defense is not substantial. The Supreme Court held that the trial court erred when it assessed the grounds set forth in the defendant’s notice because N.H. R. Crim. P. 14(b)(2)(A) does not allow the trial court to require a defendant to identify evidentiary support for a noticed defense. In doing so, the Supreme Court explained that

N.H. R. Crim. P. 14(b)(2)(A) does not distinguish between a notice of a pure defense—a defense the State must disprove beyond a reasonable doubt—and notice of an affirmative defense—a defense a defendant must prove by a preponderance of the evidence. The Supreme Court reversed and remanded the matter for a new trial and held that the defendant shall be entitled to a jury instruction on self-defense as long as the defense was “supported by some evidence.”

Regarding the defendant’s hearsay objection, the State elicited testimony from the doctor that treated the injured inmate. The doctor testified to the identity of the inured inmate. On appeal, the Supreme Court held that the trial court unsustainably exercised its discretion in admitting the doctor’s testimony because the testimony did not satisfy the hearsay exception set forth in N.H. R. Ev. 802. Specifically, the Supreme Court stated that the statement concerning the injured inmate’s identify did not satisfy the second part of the N.H.

  1. Ev. 802 hearsay exception test because it did not describe medical history, past or present symptoms or sensations, their inception, or their cause.

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally) for the State. Kris- ten B. Wilson, Kristen Wilson Law, PLLC, of Portsmouth, for the defendant.