State v. Thomas

908 A.2d 774, 154 N.H. 189, 2006 N.H. LEXIS 144
CourtSupreme Court of New Hampshire
DecidedSeptember 27, 2006
DocketNo. 2005-405
StatusPublished
Cited by6 cases

This text of 908 A.2d 774 (State v. Thomas) 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. Thomas, 908 A.2d 774, 154 N.H. 189, 2006 N.H. LEXIS 144 (N.H. 2006).

Opinions

HICKS, J.

The defendant, Raymond Paul Thomas, appeals his conviction of one count of attempted murder, see RSA 629:1 (Supp. 2005), and one count of first degree assault, see RSA 631:1 (1996), following a jury trial in the Superior Court (Hampsey, J.). He argues that the trial court erred by refusing to instruct the jury on the ostensibly lesser-included offenses of attempted first degree assault, see RSA 631:1,1(a) (1996); RSA 629:1, and reckless conduct, see RSA 631:3, I (1996). We reverse and remand the conviction for attempted murder.

The record supports the following facts. On March 24, 2002, the defendant used a knife to repeatedly stab his girlfriend, Rebecca McKenzie, in their apartment after accusing her of having an affair the night before. The defendant also stabbed McKenzie’s friend, Cheryl Ann Voight, after she entered the apartment to help McKenzie.

At trial, McKenzie testified that she had stayed out all night and returned to the apartment around 6 a.m. on the morning of March 24. The defendant was waiting for McKenzie and appeared to have been drinking throughout the night. The defendant and McKenzie argued about where she had been. The argument continued into the afternoon, when McKenzie called Voight to come get her. McKenzie testified that they continued arguing and she ended up on the floor with the defendant on top of her. She further testified that she was unsure what happened after that, but she woke up on the floor, unable to move her head and with the taste of blood in her mouth. She testified that while still kneeling on her back, the defendant told her that he wanted her to die.

Voight testified that she arrived a few minutes later and, after breaking into the apartment, pulled the defendant off McKenzie. She testified that the defendant took the knife out of McKenzie’s back and turned on her, slashing her on the arm. Voight ran into the kitchen where she continued to struggle with the defendant who followed her. She testified that the defendant stabbed her two more times, repeatedly saying that he was going to kill the women. Voight ran outside to call 911, where she saw Officer McNulty’s cruiser approaching and flagged him down. Voight explained that she and her friend had been stabbed and that McKenzie was still in the apartment with the defendant.

McNulty approached the apartment, announced his presence and ordered the defendant to surrender. The defendant claimed that he had a gun and would kill McNulty if he entered. Officer Donahue arrived at the scene. The two officers entered the apartment and found McKenzie on the floor, unresponsive in a pool of blood. The defendant yelled that McKenzie was badly hurt and needed an ambulance. The defendant, however, repeatedly refused to surrender, telling the officers he would kill them if they came after him.

[191]*191Other officers arrived on the scene, including Sergeant Timothy Goulden. Concerned about McKenzie’s condition, Goulden decided to advance on the defendant, who was hiding in a back bedroom. As the officers entered the bedroom, the defendant held his right hand behind his back and refused to surrender. The defendant walked towards the officers, refusing to obey their orders. Goulden pushed the defendant to throw him off balance and punched him three times in the face, stunning him. The defendant was then taken into custody, allowing the paramedics to enter the apartment and care for McKenzie.

At the hospital, McKenzie was treated for stab wounds, a fractured nose and considerable blood loss. The most serious stab wounds were those to her back, which had punctured a lung. McKenzie’s treating surgeon testified that McKenzie would have died without treatment.

Voight was taken to the hospital and treated for cuts on her hands, a puncture wound in her back, a superficial cut on her left upper arm, and a deep cut on her left forearm.

The defendant was taken to a different hospital and treated for minor injuries, including a minor concussion and cuts to his fingers. At the hospital, the defendant seemed confused and smelled of alcohol. A blood sample showed that his blood alcohol concentration (BAC) was .278. The treating physician at the hospital testified that the defendant’s speech was slurred and that he was sedate, although it was uncertain whether these symptoms were due to alcohol, his concussion or both. Both the treating physician and Goulden testified that it was difficult to determine what the effect of the .278 BAC was because seasoned alcoholics can function almost normally with a BAC equal to or greater than the defendant’s.

Detective George McCarthy waited until the following day to question the defendant, who was intoxicated and babbling on the day of the incident. In the interview, the defendant said that he loved McKenzie “completely.” He claimed to have consumed only four or five beers by the time McKenzie returned home that morning. The defendant said that McKenzie had started the fight by punching him in the right eye, at which point he “flipped out” and pushed her away. She then came after him and he stabbed her.

The defendant was indicted for attempted murder for stabbing McKenzie and first degree assault for stabbing Voight. At trial, the defendant requested an instruction on attempted first degree assault and reckless conduct as lesser-included offenses of the indictment for attempted murder. The trial court rejected this request and instructed the jury as to attempted murder for stabbing McKenzie and first degree assault with the lesser-included offense of second degree assault for stabbing Voight.

[192]*192The jury convicted the defendant of attempted murder for stabbing McKenzie and first degree assault for stabbing Voight. This appeal followed.

On appeal, the defendant argues that the trial court erred by refusing to instruct the jury on attempted first degree assault and reckless conduct as lesser-included offenses of the attempted murder of McKenzie.

Whether the defendant is entitled to a lesser-included offense instruction involves two distinct inquiries. First, the lesser offense must be embraced within the legal definition of the greater offense. In re Nathan L., 146 N.H. 614, 617 (2001). This entails a comparison of the statutory elements of each offense without reference to the evidence. Id. Second, the evidence adduced at trial must provide a rational basis for a finding of guilt on the lesser offense rather than the greater offense. Id.

A person is guilty of attempted murder if he “does or omits to do anything which ... is an act or omission constituting a substantial step toward,” RSA 629:1, purposely causing the death of another. State v. Allen, 128 N.H. 390, 396 (1986). A person is guilty of attempted first degree assault if he “does or omits to do anything which ... is an act or omission constituting a substantial step toward,” RSA 629:1, “purposely causing] serious bodily injury to another.” RSA 631:1, 1(a). Finally, a person is guilty of reckless conduct if he “recklessly engages in conduct which places or may place another in danger of serious bodily injury.” RSA 631:3,1.

Because the State concedes for the purposes of this appeal that the statutory elements of attempted first degree assault and reckless conduct are subsumed within the elements of attempted murder, we assume without deciding that attempted first degree assault and reckless conduct are lesser-included offenses of attempted murder.

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Cite This Page — Counsel Stack

Bluebook (online)
908 A.2d 774, 154 N.H. 189, 2006 N.H. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-nh-2006.