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State v. Milton

Supreme Court of New Hampshire, Merrimack

November 17, 2016


          Argued: October 19, 2016

          Joseph A. Foster, attorney general (John J. McCormack, assistant attorney general, on the brief and orally), for the State.

          Lothstein Guerriero, PLLC, of Keene (Richard Guerriero on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, Thomas Milton, appeals his conviction, following a jury trial in Superior Court (Smukler, J.), on one count of second degree murder, one count of assault by a prisoner, and one count of falsifying physical evidence. See RSA 630:1-b (2016); RSA 642:9 (2007) (amended 2010); RSA 641:6 (2016). We affirm.

         I. Background

         The relevant facts follow. The charges against the defendant stem from events occurring on July 26, 2010, at the New Hampshire State Prison where the defendant and the victim were then incarcerated. The defendant was a member of a prison gang known as the Brotherhood of White Warriors (BOWW), and had been ordered by Frankie Philbrook, a high-ranking member of BOWW, to assault the victim because Philbrook believed the victim was a "rat" (i.e., that the victim had provided incriminating information about Philbrook to authorities). The relevant indictments allege that the defendant assaulted the victim by striking him in the head, and that he, acting in concert with another inmate, caused the victim's death by repeatedly striking him in the head and face. The defendant admitted to striking the victim once in the head, but denied striking him repeatedly thereafter.

         Before trial, the State moved in limine to admit expert testimony relating to BOWW's existence, organizational structure, membership process, and culture, as well as evidence of the defendant's affiliation with the organization. The defendant filed a partial objection, which stated that he had "no objection to disclosure to the jury of his membership in BOWW, " but argued that the "[a]dmission of evidence regarding BOWW['s] organizational structure, membership process, and culture" would violate New Hampshire Rule of Evidence 403. (Quotation omitted.) After a hearing, the trial court granted the State's motion, in part. In its ruling, the trial court permitted the State to present expert testimony relating to BOWW's organizational structure and culture to "establish a motive for the inexplicable attack on [the victim], " and to explain "how fear of gang retaliation would affect the testimony of witnesses, and tend to make them less cooperative with law enforcement." However, the ruling prohibited the expert from testifying "to evidence a jury could readily understand, " including evidence that BOWW believed the victim "ratted" on a gang member, that BOWW ordered the attack, and that the defendant held the position of "lieutenant" within the organization. The trial court explained that this evidence "would be admissible if obtained from a percipient witness, " but that it was "not expert testimony."

         At trial, the State's expert testified that BOWW's members, all white males, formed the gang in 2005 to protect themselves from other gangs at the prison. He explained that BOWW maintains a paramilitary ranking structure, that its members generally share a common "white supremacy" ideology, and that its motto is "God forgives and BOWW don't." According to the expert, members must abide by certain rules including following orders under the chain of command, and not "ratting." He explained that a member's failure to follow the rules results in a "violation" and that possible consequences for violations include "a punch in the ribs, " being "punch[ed]" by "a couple [of] guys, " or being "thrown out" of BOWW. He also explained that there are varying levels of violations, and that a BOWW member who "rats" would "most likely be kicked out of the gang, assaulted, or really anything." Additionally, the State's expert testified that gang-related cases in the prison are generally difficult to investigate because people are typically reluctant to cooperate with investigators, and because victims of gang-related assaults do not usually report the incident to prison authorities.

         Also at trial, the defendant presented the testimony of an inmate who corroborated the defendant's description of events by testifying that the defendant did not repeatedly strike the victim. On cross-examination, the State elicited testimony, over the defendant's relevance objection, that the inmate had been assaulted by another inmate several months before testifying at the defendant's trial. The inmate admitted that his attacker had a BOWW tattoo, and that, during the assault, his attacker said, "You want to tell on [the victim]." He agreed that the assault occurred shortly before a hearing in another criminal case in which the State planned to call him as a witness. That case did not involve the defendant, but was related to the July 26, 2010 attack on the victim.

         The jury found the defendant guilty on all charges, and this appeal followed.

         II. Analysis

         On appeal, the defendant argues that the trial court erred by failing to properly limit the introduction of evidence relating to BOWW. Specifically, he asserts that the following evidence was inadmissible under New Hampshire Rule of Evidence 403: (1) "BOWW crimes [in] which [the defendant] played no role"; (2) BOWW's organizational rules; and (3) BOWW's retaliation against witnesses. He contends that, because such evidence was admitted, he "was tried, in significant part, on evidence of a prison gang's wide-ranging criminal conduct which was not fairly attributable to [him] and which unfairly prejudiced him in the eyes of the jury."

         As a threshold matter, the State argues that the defendant waived his argument related to evidence of BOWW's organizational rules. We disagree. Contrary to the State's contention, defense counsel did not limit the scope of his objection at the motion in limine hearing. Rather, when asked whether the admission of expert testimony to explain witnesses' reluctance to testify was "the one ruling [he took] the most issue with, " defense counsel stated, "that's about as much of an objection as I'm going to make beyond . . . what's in my pleading." (Emphasis added.) Thus, although the defendant focused primarily upon a single argument at the hearing, he did not concede the remaining arguments raised in his objection. Cf. Milliken v. Dartmouth-Hitchcock ...

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