State v. Mentus

35 A.3d 572, 162 N.H. 792
CourtSupreme Court of New Hampshire
DecidedDecember 14, 2011
DocketNo. 2010-017
StatusPublished
Cited by3 cases

This text of 35 A.3d 572 (State v. Mentus) 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. Mentus, 35 A.3d 572, 162 N.H. 792 (N.H. 2011).

Opinion

DUGGAN, J.

The defendant, Adam Mentus, appeals his conviction of manslaughter, see RSA 630:2 (2007), following a jury trial in Superior Court {Lewis, J.). We affirm.

The jury could have found the following facts. On June 26, 2008, the defendant drove with his friend, Nathan Caron, to State Line Ammo in Plaistow, where Caron bought a Lorcin L380 handgun. The two then returned to Caron’s house, where Anthony Palla joined them.

Eventually, the defendant left Caron’s house and took the Lorcin to his house to show his brother. In the meantime, Deirdre Budzyna and Christina Sorrentino went to Caron’s house. Upon their arrival, Caron left to go shopping, and, approximately ten minutes later, the defendant returned to Caron’s house. Budzyna, Sorrentino, Palla and the defendant decided to go to a sandpit in Hampstead to fire the Lorcin. Budzyna agreed to drive. Before they left, the defendant put a full clip of ammunition in the Lorcin and took additional ammunition from Caron’s room. The defendant put the Lorcin into his left pocket. Budzyna got into the driver’s seat and the defendant sat. behind her.

Moments later, the defendant reached into his pocket and retrieved the Lorcin. As he held the gun in his right hand, it fired. The bullet traveled through the back of the driver’s seat and punctured Budzyna’s left lung. Budzyna said “Adam,” slammed the car into park and got out. The defendant helped her into Caron’s house, where she collapsed on the floor. The defendant called 911. An ambulance arrived later and took her to the hospital, where she died.

[795]*795After the shooting, the police questioned the defendant. He told them that after he sat down in the car, he wanted to put the gun under his seat, so he took the gun out of his left pocket, transferred it to his right hand, and, when he was bending down to place it on the floor, it fired. He also said that “[his] finger hit the trigger,” that his finger was on the trigger or in the trigger guard area, and that he did not know whether there was a round in the chamber when the gun fired. At trial, he said that his finger was not in the trigger guard area and that he did not put his finger on the trigger. However, he also testified, “I might have hit the trigger. I might have hit the slide, but... I did not pull that trigger.”

On appeal, the defendant argues that the trial court erred: (1) by providing him with only $1,200 of the $3,000 he requested to hire a firearms expert, see RSA 604-A:6 (Supp. 2005); and (2) by overruling his objection to the State’s closing argument.

Prior to trial, pursuant to RSA 604-A:6, the defendant requested $3,000 from the court to hire Gregory Danas, a firearms expert, to examine the Lorcin. The defendant argued that he needed an expert to support his theory that the gun had fired without him pulling the trigger — that is, that it had misfired. The court initially allocated $750 and, after reconsideration, increased its allocation to $1,200. This amount was not sufficient to hire Danas. As a result, the defendant hired Thomas McDermott, a lawyer involved in litigation against gun manufacturers. The court ultimately ruled that McDermott was not qualified to testify as an expert and thus no expert testified on the defendant’s behalf. On appeal, the defendant argues that the court erred in denying his request for $3,000.

To obtain funds for an expert, a defendant must demonstrate to the trial court that the expert is necessary to ensure effective preparation of his defense. See State v. Sweeney, 151 N.H. 666, 674 (2005). Necessity may be established where the expert will advise or testify on a matter directly in issue, or where the expert’s testimony-is essential to a matter in issue or could be conclusive on that issue. Id. “Regardless of whether a defendant has invoked equal protection, fundamental fairness necessary for due process, or the right to services to enable his counsel to assist him effectively, an indigent defendant’s access to experts has been said to lie within the sound discretion of the court.” State v. Wellington, 150 N.H. 782, 784 (2004). Therefore, we review the trial court’s decision under our unsustainable exercise of discretion standard. Sweeney, 151 N.H. at 675.

At the RSA 604-A:6 hearing, the judge said, “[T]hese are hard economic times. I’m not going to just easily approve $3,000 for a firearms expert.” Based upon this statement, the defendant argues the judge denied his “request solely because of concerns about the source of funding.” The [796]*796defendant argues that this amounts to reversible error, for we have said that “the fact that RSA 604-A-.6 funds are in limited supply is not an appropriate reason for denying access and reliance upon it, without more, would constitute an [unsustainable exercise of discretion].” State v. Stow, 136 N.H. 598, 605 (1993); see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).

The judge here, though, did rely on more — specifically, he considered whether $3,000 was actually necessary to cover the cost of a firearms expert. At the hearing, he asked the defendant why the amount was necessary, saying “$3,000 to look at a gun? I need some explanation.” He also said that he would supplement the $750 he initially approved if the defendant could get the “firearms expert to give . . . some detailed information as to what he can really do for [$3,000].” Thus, the judge was open to approving more funds if the defendant demonstrated that additional funds were needed; indeed, the judge ultimately approved $1,200. Therefore, the judge did not rely solely on the limited supply of State funds in reaching his decision.

Accordingly, to succeed on appeal the defendant “must demonstrate by clear and convincing evidence that his request to the court included as complete a showing of necessity for the desired services as could be expected of him, and that the denial of funds substantially prejudiced him at trial.” Wellington, 150 N.H. at 784. For three reasons we hold that the defendant has not shown that he was substantially prejudiced.

First, even without Danas, the defendant’s misfire theory was substantially explored at trial. Cf. People v. Seavey, 762 N.Y.S.2d 435, 437 (App. Div. 2003) (holding that trial court’s denial of funds for psychiatric expert did not prejudice defendant given that defendant’s treating psychiatrist testified at trial). The State’s expert witness thoroughly examined the gun, and found the safety and trigger pull in good working condition. In his research, he did find a safety warning that said the Lorcin L380 “may create an extremely dangerous condition and a potential for serious injury by firing when dropped.” To test the gun for this condition, he struck it with a two-pound rubber mallet from several directions, the same method used in the study which initially discovered the potential defect. However, this experiment did not cause the gun to misfire. All of this information was provided to the jury and, therefore, even though the State’s witness concluded that this particular gun was not susceptible to misfiring, the jury was informed that this model of gun was capable of misfiring.

Second, the defendant’s own versions of the shooting were not consistent with how this particular gun could have misfired. Cf. Hall v. State, 566 S.E.2d 374, 378 (Ga. Ct. App. 2002) (“[The defendant] was not prejudiced by

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Related

State of New Hampshire v. Steven P. Collins
168 N.H. 1 (Supreme Court of New Hampshire, 2015)
State v. Wang
Supreme Court of Connecticut, 2014
Mentus v. Warden
2014 DNH 119 (D. New Hampshire, 2014)

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Bluebook (online)
35 A.3d 572, 162 N.H. 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mentus-nh-2011.