Argued September 12, 2013
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Michael A. Delaney, attorney general ( Susan G. Morrell, senior assistant attorney general, and Benjamin J. Agati, assistant attorney general, on the brief, and Ms. Morrell orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.
The defendant, Joshua Sprague, appeals his convictions, following a jury trial, for first-degree murder, burglary, and conspiracy to commit burglary. See RSA 630:1-a, I(b)(2) (2007); RSA 635:1 (2007); RSA 629:3 (2007). On appeal, he argues that the Superior Court ( Tucker, J.) erred when it: (1) instructed the jury regarding his state of mind defense; (2) denied his motion for a mistrial; (3) ruled that he had opened the door to rebuttal testimony; and (4) sentenced him for murder in the course of a burglary, as well as for the underlying burglary. We affirm in part and vacate in part.
The jury could have found the following facts. In October 2009, Elena Hann met with the defendant in order to sell him marijuana. After two failed attempts to consummate a sale, the defendant accused Hann of trying to set him up and threatened to harm her. Several days later, Hann discovered that the apartment which she shared with the victim had been burglarized. Because she suspected that the defendant was the perpetrator, Hann, accompanied by friends, went to the defendant's apartment. The defendant was not at home at the time. As they were leaving the apartment, one of Hann's friends threatened to harm the defendant's dog.
The defendant later was told that Hann and her friends had broken into his apartment and was also told about the threat to his dog. He was angry and afraid that Hann and her friends would return. The defendant decided to confront Hann. Armed with a handgun, he, together with several companions, walked to Hann's apartment building. When they arrived, they saw the victim. One of the defendant's companions yelled, " Shoot that n****r." The defendant chased the victim out of the apartment building and down the street. The defendant yelled to the victim to stop. The victim stopped, turned and raised his hands, and said, " I don't even know her." One of the defendant's companions screamed, " Shoot that mother f****r." The defendant then fired multiple shots at the victim, who died at the scene. The defendant testified that when the victim raised his hands, the defendant thought that he had a gun. Although the police found a cellular telephone next to the victim's body, they did not find a weapon. The defendant testified that prior to the incident, he was drinking, and using marijuana, cocaine, heroin, and Percocet.
The defendant ran from the scene and disposed of his gun. Several days after the shooting, the defendant and his friends fled to Massachusetts, where the police located him and took him into custody.
The defendant was charged with alternate counts of first-degree murder alleging that he purposely or knowingly caused the death of the victim. He was also charged with second-degree murder, alleging that he recklessly caused the death of the victim,
thus manifesting an extreme indifference to the value of human life. He was additionally charged with burglary and conspiracy to commit burglary. At trial, the defendant admitted that he shot and killed the victim, but claimed that he did not have the mens rea necessary to establish either first or second-degree murder. The jury acquitted the defendant of first-degree murder committed purposely, but found him guilty of first-degree murder committed knowingly during a burglary, burglary, and conspiracy to commit burglary. He was sentenced on the first-degree murder conviction to life in prison without eligibility for parole. On both the burglary and conspiracy to commit burglary convictions, he was sentenced to seven and one-half to fifteen years imprisonment, concurrent with each other, as well as with the first-degree murder sentence. This appeal followed.
On appeal, the defendant argues that the trial court erred in its instruction to the jury regarding his mistaken perception that the victim had a gun. He also contends that the trial court erred in denying his motion for a mistrial or for more detailed curative instructions after a relative of the victim had an outburst in the courtroom. He further argues that the court erred in ruling that he had opened the door to rebuttal evidence offered by the State concerning when the defendant learned that the victim had died. Finally, he asserts that in violation of his double jeopardy rights, the court erroneously sentenced him for murder in the course of burglary as well as for the underlying burglary. We address these arguments in turn.
I. Jury Instructions
The defendant argues that the trial court violated his due process rights under the State and Federal Constitutions when it instructed the jury that the defendant's claimed misperception that the victim had a gun could not be used as evidence of self-defense, and failed to instruct the jury that the defendant's claimed misperception could be relevant to the defendant's mental state defense. We disagree.
The defendant testified at trial that, when the victim spun around and raised his hands, he mistakenly thought that the victim had a gun. In closing, the defendant argued to the jury that his drug and alcohol induced intoxication contributed to his misperception and caused him to act recklessly, rather than purposely or knowingly. He also argued that his belief that the victim possessed a gun led ...