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The State of New Hampshire v. Cory Furgal

December 21, 2012

THE STATE OF NEW HAMPSHIRE
v.
CORY FURGAL



The opinion of the court was delivered by: Lynn, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: October 11, 2012

Following a jury trial in Superior Court (Nicolosi, J.), the defendant, Cory Furgal, appeals his conviction of second-degree murder. See RSA 630:1-b (2007). We affirm.

I

The jury could have found the following facts. On the evening of

October 31, 2009, the defendant attended a house party in Merrimack at the home of Robert Brackett. Although not originally invited to the party, the defendant was allowed inside without incident. Later in the evening, tempers flared on the back porch of the house when a guest discovered that his iPod was missing and the defendant refused to empty his pockets. The defendant brandished a knife and shouted obscenities at a group of guests who had gathered around him. After Christopher Vydfol tried to defuse the situation and helped persuade the defendant to put the knife away, a fight erupted. Some guests attempted to throw the defendant over the porch railing. Vydfol held onto the defendant to prevent his fall.

The defendant then jumped over the porch railing, and Vydfol approached him. The two men proceeded around the house and down the driveway. A group of guests, some of whom had been involved in the fight, gathered some distance away on the driveway. The defendant and members of this group were swearing at each other and "talking trash." Some members of the group may have held baseball bats.

At some point, Vydfol put his arms around the defendant and said that none of the guests were going to do anything. After the defendant again pulled out his knife, Vydfol told him to put it away. The defendant told Vydfol to "get off" him. Shortly thereafter, when the defendant felt Vydfol's hands on his shoulders, heard the sound of metal dragging across concrete, and thought that he saw someone approach with something in his hand, he stabbed Vydfol in the chest and ran away. Vydfol died of his injuries.

A grand jury indicted the defendant for second-degree murder. See RSA 630:1-b. In his amended notice of self-defense, the defendant asserted that if he stabbed Vydfol, he did so only "to defend himself against what he reasonably believed to be the use of deadly force against him by Christopher Vydfol who acted in concert with other named and unnamed individuals." Before trial, the court denied the State's motion to strike the notice, but granted the State's motion in limine to exclude all evidence of a prior altercation involving Vydfol where the defendant was not present.

At trial, outside the presence of the jury, defense counsel asked the trial court to instruct the jury that the defendant was entitled to use deadly force against Vydfol if he reasonably believed that Vydfol had confined or restrained him to allow others to use deadly force against him. Defense counsel noted that RSA 627:9, II (2007) defines deadly force as "any assault or confinement which the actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury." (Emphasis added.) The State objected, arguing that the language of "the statute"*fn1 and case law did not support the defendant's requested instruction.

At the conclusion of the trial, the trial court instructed the jury, in relevant part, as follows:

In deciding whether the Defendant acted in justifiable self-defense, you should consider all of the circumstances surrounding the incident. You should consider how the Defendant acted under the circumstances as they were presented to him at the time and not necessarily as they appear on detach[ed] reflection.

The Defendant would have the right to use deadly force on

Christopher Vydfol to defend himself if: One, he actually believed that Mr. Vydfol was about to use unlawful deadly force against . . . him. In other words, the Defendant could use deadly force if he actually believed he was in danger of death or [serious]bodily injury; two, even if the Defendant actually believed that such a danger existed, his belief must be reasonable. In other words, there must be reasonable ...


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