Issued the following order:
The defendant, Dickens Etienne, appeals his conviction on two counts of witness tampering, see RSA 641:5, I (2007), following a jury trial in superior court. The defendant argues that: (1) the trial court erred "in admitting a letter Etienne sent . . . months after the letters that were the basis of the witness tampering charge"; and (2) "the court committed plain error by sentencing Etienne to extended terms when the State had not filed a notice of its intent to seek extended terms on the pending charges." We affirm.
The following facts are drawn from the record. The defendant was convicted of first degree murder. He was subsequently indicted on several counts of witness tampering, see RSA 641:5, I, for making threats or sending messages intended to induce three named witnesses and other unnamed potential witnesses to testify falsely or absent themselves from his trial. Over the defendant's objection, the trial court admitted evidence of a statement that the defendant wrote in a letter to a friend four months after the charged acts. In that letter, he said, "I need Polo to come forward and tell them the truth that Larry [the murder victim] had his hand on his gun when he got shot that would help me more than me trying to get him to keep his mouth shut." Polo was not one of the witnesses named in the indictments.
Following a hearing on the State's motion in limine, the trial court admitted the statement, finding that it was "a material part of the entire course of conduct surrounding the commission of the alleged crimes" and that it "directly establish[ed] the requisite intent and belief required for witness tampering under RSA 641:5." The court also found that if the statement "did constitute other crimes, wrongs or acts, [it] would nevertheless be admissible under Rule 404(b) as evidence of intent."
We need not decide whether the trial court erred in admitting the statement, because we conclude that any error was harmless. An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error. State v. Gordon, 161 N.H. 410, 416 (2011). The State bears the burden of proving that an error is harmless. Id. An error may be harmless beyond a reasonable doubt if the alternative evidence of a defendant's guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. Id. at 416-17. In making this determination, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence itself. Id. at 417.
For a jury to convict the defendant of witness tampering, the State had to prove that, believing an official proceeding was pending, he purposely attempted to "induce or otherwise cause a person to testify or inform falsely, and/or withhold testimony or information, and/or absent him or herself from the proceeding or investigation." RSA 641:5, I. The alternative evidence of the defendant's witness tampering was overwhelming. It included multiple letters written by the defendant and telephone conversations between him and others containing references to violence against potential witnesses and references to witnesses absenting themselves from trial. The defendant admitted in testimony to many of these letters and telephone calls. Against this evidence, the challenged evidence was merely cumulative. Based upon our review of the record, we conclude that the State has met its burden of demonstrating that any error was harmless beyond a reasonable doubt.
The defendant next argues that the trial court committed plain error when it sentenced him to extended terms of imprisonment. See RSA 651:6 (2007 & Supp. 2012). To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. State v. Guay, 164 N.H. 696, 704 (2013).
In June 2004, the defendant was indicted on seven counts of witness tampering. In April 2009, the State filed notices of its intent to seek extended terms of imprisonment. On June 18, 2009, the State obtained three superseding indictments, based upon the same conduct by the defendant. However, for procedural reasons, the State did not enter nolle prosequis on the 2004 indictments until December 2010. On June 26, 2009, the State filed a motion in limine under the 2004 indictment docket numbers. In July 2009, the trial court ruled on the State's motion to join the charges for trial, which motion had been filed under the 2004 indictment docket numbers. The court noted that it was "adjudicat[ing] the motion for joinder based on the new indictments" because the defendant did not object to substituting the superseding indictments for the original ones.
The court heard the State's motion in limine on December 10, 2009, the same day that the State filed the nolle prosequis on the original 2004 indictments, without requiring the motion to be refiled under the 2009 indictment docket numbers. The defendant participated in this hearing without objecting to the fact that the motion was filed under the 2004 indictment docket numbers. Following his conviction, the defendant submitted a sentencing memorandum opposing the imposition of an extended term. In it he did not argue that he lacked notice of the State's intention to seek an extended term.
The objective of the pretrial notice requirement in RSA 651:6, III is to "give the defendant an opportunity to offer evidence to refute the findings required by the statute." State v. Russo, 164 N.H. 585, 597 (2013). We have held that such notice is accomplished where a defendant is sentenced after a second trial and the notice was given before the first trial. State v. Hurlburt, 135 N.H. 143, 148-49 (1991).
In this case, the defendant does not argue that he lacked notice that the State would seek extended terms. He participated in hearings on motions filed under the 2004 indictment docket numbers without objection. He filed a sentencing memorandum explaining in detail why the court should not impose an extended term. He had ample notice and opportunity to refute the State's arguments in favor of an extended term of imprisonment. Thus, we conclude that the trial court's imposition of such a sentence did not constitute error, plain or otherwise.
CONBOY, LYNN, and BASSETT, JJ., ...