State v. Ainsworth

867 A.2d 420, 151 N.H. 691, 2005 N.H. LEXIS 12
CourtSupreme Court of New Hampshire
DecidedFebruary 4, 2005
DocketNo. 2003-614
StatusPublished
Cited by26 cases

This text of 867 A.2d 420 (State v. Ainsworth) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ainsworth, 867 A.2d 420, 151 N.H. 691, 2005 N.H. LEXIS 12 (N.H. 2005).

Opinion

GALWAY, J.

The defendant, Douglas Ainsworth, was convicted after a jury trial in the Superior Court (Perkins, J.) on two counts of attempted murder, see RSA 629:1 (Supp 2004); RSA ch. 630 (1996); one count of reckless conduct, see RSA 631:3 (1996); and one count of attempted first-degree assault, see RSA 629:1 (Supp. 2004); RSA 631:1 (1996). We affirm.

The record supports the following facts. In September 2002, the defendant drove to the home of his former wife, Kerrell Betourne, and fired a shotgun at her through her window. He then drove to his mother’s home, where he fired at Officers Jeff Buskey and William Wright. He was indicted on five charges: attempted murder of Officer Buskey; attempted murder of Officer Wright; attempted murder of Ms. Betourne; attempted first-degree assault of Ms. Betourne; and reckless conduct against Officer Buskey.

[693]*693Prior to trial, the defendant filed a notice of self-defense in which he stated “that he may rely on the defense of physical force to defend [him]self against Officer Jeff Buskey... and Officer William Wright.” The court found the defendant’s notice to be inadequate, but allowed the defendant to supplement it. The trial judge’s instructions to the jury did not include an instruction on self-defense. Defense counsel did not object, and in fact responded affirmatively that the instructions were proper.

Also, prior to trial, the defendant filed a motion for discovery requesting personnel records of both Officers Buskey and Wright. The defendant requested that the State “conduct a good faith review of the files and notify the court of its findings,” and alleged that information contained in them might have some bearing on his defense of self-defense. The court denied the motion upon the basis that it “[did] not find that probable cause exist[ed] to produce the personnel records of the officers involved.”

During the trial, the State was allowed, over the defendant’s objection, to introduce into evidence the tape of Betourne’s 9-1-1 call from the night of the shooting.

In her closing argument, defense counsel argued that portions of the testimony of the defendant’s children amounted to “gratuitous cruelty” to the defendant. In response, the State argued: “At the outset of this case, the defense attorney told you that she cares about the defendant... I’m asking you to care about these people who were targets. I’m asking you to care about three terrified children____” Defense counsel objected and requested a curative instruction or a mistrial. Both requests were denied.

On appeal, the defendant argues that the trial court erred in: (1) failing to give a jury instruction on self-defense; (2) denying him access to the officers’ personnel files; (3) finding that the tape of the 9-1-1 call was not more prejudicial than probative; and (4) denying his motion for a mistrial. We address each argument in turn.

7. Jury Instruction

The defendant first argues that the trial court should have given a jury instruction on self-defense. The State contends that the defendant failed to timely object to the court’s jury instructions, and thus has not preserved the issue for appellate review. We agree.

A contemporaneous objection is necessary to preserve a jury instruction issue for appellate review. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 457 (2003). This requirement affords the trial court an opportunity to correct an error it may have made and is [694]*694particularly appropriate where an. alleged error involves a jury instruction. Id. This long-standing requirement is grounded in common sense and judicial economy, and applies equally to civil and criminal matters. Id.

Because the defendant did not contemporaneously object to the jury instructions before the trial court, but rather indicated satisfaction therewith, the court had neither an opportunity to rule in a timely fashion on the issue nor a timely opportunity to correct añy error; accordingly, the issue is not preserved for our review. See Transmedia Restaurant Co., 149 N.H. at 457.

II. Personnel Files

Next, the defendant argues that the denial of his discovery motion was an unsustainable exercise of discretion because it “denfied] him both the right to cross-examine and the right to put on all proofs favorable,” citing Part I, Article 15 of the New Hampshire Constitution. The State responds that the defendant failed to make a sufficient showing of probable cause under RSA 105:13-b (2001). We agree.

RSA 105:13-b provides in pertinent part:

No personnel file on a police officer who is serving as a witness ... in a criminal case shall be opened for the purposes of that criminal case, unless the sitting judge makes a specific ruling that probable cause exists to believe that the file contains evidence relevant to that criminal case. If the judge rules that probable cause exists, the judge shall order the police department employing the officer to deliver the file to the judge. The judge shall examine the file in camera and make a determination whether it contains evidence relevant to the criminal case.

We review the trial court’s decisions on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. State v. Amirault, 149 N.H. 541, 543 (2003). To meet this standard, the defendant must demonstrate that the trial court’s rulings were clearly untenable or unreasonable to the prejudice of his case. Id.

In order to trigger in camera review of the officers’ personnel files, the defendant must establish a reasonable probability that the files contain information that is material and relevant to his defense. State v. Gagne, 136 N.H. 101, 105 (1992); see Amirault, 149 N.H. at 544. It is the defendant’s burden to establish that there is a realistic and substantial [695]*695likelihood that evidence helpful to his defense would be obtained from the officers’ personnel files. State v. Gaffney, 147 N.H. 550, 556-57 (2002). To meet this threshold requirement, the defendant must present a plausible theory of relevance and materiality sufficient to justify review of otherwise protected documents. Amirault, 149 N.H. at 544.

Although this standard for in camera review is not unduly high, we conclude that the defendant’s representation falls short of meeting it. By representing only that the information contained in the files might have some bearing on his defense of self-defense, the defendant failed to establish a reasonable probability that the records contained information that was material and relevant to his defense. See Gagne, 136 N.H. at 105. Thus, he did not meet his burden of establishing that there was a realistic and substantial likelihood that evidence helpful to his defense would be obtained from the officers’ personnel files, see Gaffney, 147 N.H. at 556-57, and did not present a plausible theory of relevance and materiality sufficient to justify review of otherwise protected documents. See Amirault, 149 N.H. at 544. Thus, the defendant did not demonstrate that the trial court’s ruling was untenable or unreasonable to the prejudice of his case. See id.

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Cite This Page — Counsel Stack

Bluebook (online)
867 A.2d 420, 151 N.H. 691, 2005 N.H. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ainsworth-nh-2005.