At-a-Glance Contributor Katharine J. Phinney Practices family law at Russman Law Office in Concord, New Hampshire

Criminal Law

No. 2017-0443
Dec. 21, 2018

  • Multiple questions concerning the defendant’s conviction of second-degree murder, second degree assault and felon in possession of a dangerous weapon, including: the trial court’s failure to inquire how the defendant wanted to proceed if his motion to discharge his counsel was granted and the lack of a jury instruction with regard to considering the effect of alcohol intoxication on eyewitness identification testimony.

On May 12, 2015 the defendant was appointed representation by the Office of the New Hampshire Public Defender in connection with second degree murder, second degree assault and felon in possession of a dangerous weapon for events that transpired at a night club on May 8, 2015. On June 3, 2015, Attorney Paul Garrity filed an appearance and the court-appointed counsel withdrew representation. Attorneys Garrity and Justin Shepherd represented the defendant for the next two years in preparation for trial. On or about February 16, 2017, the defendant filed a motion indicating he was indigent and requested that the court appoint the two private attorneys as court appointed counsel, relying on the fact that the defendant had not made payment to them since July 15, 2015.

Two days later, the defendant met with his attorneys and asked them to withdraw. At a hearing on this request, the court had a lengthy colloquy with the defendant and subsequently denied the withdrawal, however authorized their compensation through the State based on the defendant’s indigency. The defendant had an eight-day trial by jury and was subsequently convicted of the aforementioned charges.

On appeal, the defendant first raised the argument that the trial court erred when it “did not inform [him] of his options nor determine whether [he] wished to proceed pro se.” In deciding this first issue on appeal, the parties agreed that the defendant’s request for a withdrawal by his attorneys was a “triggering statement” requiring a further inquiry by the court. The Supreme Court analyzed this colloquy that occurred at the hearing and concluded that the court “obtained sufficient clarity of the purpose of the defendant’s request” and the court was under no obligation to inquire if the defendant wanted to proceed pro se. The Court first recognized that a defendant does not have to recite a “talismanic formula” to revoke the right to self-representation. However, trial courts are under no obligation for further judicial inquiry on this issue without an indication of an intention to switch representational gears by the defendant. In this case, there was a clear indication of wanting counsel to withdraw only. Because there was no indication of wanting to proceed pro se, the trial court achieved ‘sufficient clarity of the purpose of the defendant’s request’ and therefore, did not err in providing additional judicial inquiry as to how the defendant would proceed if the motion was granted.

Next, the defendant argued that the trial court erred when it refused to include instructions to the jury that it should consider evidence of intoxication when it evaluated the reliability of eyewitness testimony, as there was evidence of eyewitness intoxication. After a review of the instructions provided to the jurors, the Court disagreed with the defendant and affirmed the trial court’s decision. The Court reasoned that the list of relevant factors provided to the jury when assessing identification testimony was non-exhaustive. This, coupled with the defense counsel’s closing argument and the fact that the trial court instructed the jury to consider the opportunity and capacity of each identification witness, was sufficient.

Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney on the brief and Stephen D. Fuller, senior assistant attorney general, orally), for the state. Eric S. Wolpin, assistant appellate defender, of Concord, for the defendant.