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State v. Rice

Supreme Court of New Hampshire

May 12, 2017


          Argued: October 13, 2016

         Hillsborough-northern judicial district

          Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the State.

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         The defendant, Kyree Rice, appeals his convictions for one count of attempted murder, see RSA 629:1, I (2016), and two counts of first degree assault, see RSA 631:1, I(b) (2016). He argues that the Superior Court (Abramson, J.) erred by not instructing the jury on the principle that the "act of producing or displaying a weapon shall constitute non-deadly force, " RSA 627:9, IV (2016), and in prohibiting cross-examination of the victim about the victim's use of cocaine and marijuana on the night in question. Because we agree that the court erred in failing to give the requested jury instruction, we reverse and remand.


         The following facts were adduced at trial. At approximately 1:45 a.m. on May 24, 2015, the victim, Curtis Clay, and his girlfriend arrived at a restaurant in Manchester. Clay, a large and powerful man, had consumed approximately six alcoholic drinks prior to his arrival. The defendant, his brother Raheem Rice (Raheem), his cousin Beverly Pierson (Pierson), and his friend Rudy Vasquez (Vasquez), arrived at the restaurant around the same time.

         The restaurant was very crowded. The defendant initially remained outside, while Raheem, Vasquez, and Pierson proceeded inside. Meanwhile, Clay stood inside, near the front of the restaurant. At some point, the defendant entered the restaurant and approached Raheem where he was waiting in line. The defendant overheard Raheem having a disagreement with another patron about a woman. In response, the defendant pulled his shirt up to reveal a gun, cocked it, and said, "you know what time it is." The defendant then exited the restaurant.

         Subsequently, Pierson stumbled and collided into Raheem. Clay observed Raheem push Pierson away and Pierson fall to the floor. In response, Clay pushed Raheem's face with his hand and punched him. Raheem responded by punching Clay. Vasquez then pushed Clay from behind and a general melee ensued.

         The defendant overheard the commotion and ran inside. Upon entering, the defendant observed Clay hit Vasquez, who was 6'4" tall and weighed 260 pounds, with such force as to knock Vasquez to the floor. Clay then turned back to Raheem. The defendant attempted to intervene by putting his arm between Clay and Raheem, but Clay grabbed the defendant's arm. The defendant responded by removing the gun from his waistband and, according to a State witness, sticking it into Clay's stomach. The defendant, however, testified that he "pulled out [his] firearm" at this point "[b]ecause Mr. Clay wasn't stopping and I just thought that if he seen [the gun] maybe he would stop." The defendant also disputed that he "jammed the gun into Clay's belly, " as the State characterized his actions, testifying instead that it was Clay's action that caused the gun to "look[] like it did go into [Clay's] torso." According to the defendant, Clay then punched the defendant twice, knocking him off his feet and into a booth.

         Clay again turned to Raheem and the two men continued to fight. Clay knocked Raheem to the ground, straddled him, and repeatedly punched him. After recovering from being knocked into the booth and observing Clay straddling and punching Raheem, the defendant fired two gunshots, both of which hit Clay. The defendant testified that the first shot was intended as a "warning shot, " which he believed did not hit Clay; the defendant said that he fired the second shot because Clay was continuing to hit Raheem. According to the defendant, he engaged in this course of conduct because he believed it necessary to prevent Clay from killing his brother.

         After the shooting, the defendant left the restaurant. Clay's girlfriend drove Clay to Elliot Hospital where he received treatment for gunshot wounds. Clay underwent a battery of tests at the hospital, including a urine toxicology screening. He tested positive for alcohol, cocaine, and cannabis.

         Approximately one week later, the defendant surrendered to the Manchester Police Department. As is relevant to this appeal, he was charged with one count of attempted murder and two counts of first degree assault. See RSA 629:1, I; RSA 631:1, I(b). The indictments alleged that the defendant committed attempted murder "when he shot [Clay], " and first degree assault "when he . . . shot . . . Clay in the left side" and "when he discharged a firearm into . . . Clay's right side."

         At trial, the defendant pursued a justification defense. He admitted that he shot Clay, but argued that he was justified in using deadly force in defense of Raheem. See RSA 627:4, II(a) (2016). A person is justified in using deadly force against another person when he reasonably believes that the other person is about to use unlawful deadly force against himself or a third person and he reasonably believes that the amount of force he uses is necessary under the circumstances. See RSA 627:4, I-II(a); State v. Etienne, 163 N.H. 57, 77 (2011). Deadly force "means 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, " RSA 627:9, II, (2016), whereas "'[n]on-deadly force' means any assault or confinement which does not constitute deadly force, " RSA 627:9, IV. When, as in this case, evidence of self-defense or defense of another is admitted, "conduct negating the defense becomes an element of the charged offense . . . which the State must prove beyond a reasonable doubt." Etienne, 163 N.H. at 80-81 (quotation and citation omitted). The State's position was that the defendant was not justified in shooting Clay because he neither believed nor reasonably could have believed that Clay was about to use deadly force against Raheem, and because the amount of force he used was not reasonably necessary.

         During trial, but prior to Clay's testimony, the trial court held a hearing outside the presence of the jury regarding the relevance of evidence that Clay had ingested cocaine and marijuana on the night of the fight. Defense counsel argued:

I think it's a fair question to ask [Clay] if he did cocaine that day. If he says 'no, ' I'm stuck with the answer but - and I think that a reasonable juror can assume that combining cocaine and alcohol is going to affect somebody's ability to perceive. . . . [A]nd also, the doctor testifie[d] [in his deposition] that it affects his level of aggression, which is also an issue in this case.

         Defense counsel also proffered the deposition testimony of Dr. Miguel Gaeta to demonstrate the evidence's relevance. The trial court ruled that the drug use evidence was irrelevant and, therefore, inadmissible for impeachment and substantive purposes because the defendant failed to link the drug use - through expert testimony or other evidence - to impairment of the victim's perceptions and memory, or increased aggressiveness.

         In closing argument, the defendant's counsel asserted that the defendant used a variety of methods to halt the victim's aggression towards Raheem. He characterized these efforts as incrementally more forceful:

[Defense counsel]: He tried to use non-deadly force; put his arms up; tried to hold Mr. Clay back. What happened when he did that? He was - his arm was swung and he got punched twice. During the course of that he tried to show Mr. Clay the weapon in the hopes that he would stop. Either Mr. Clay didn't see it or didn't care, but he tried to use it in a non-deadly manner to get Mr. Clay to stop. Mr. Clay didn't stop. He was engaged in combat. He was enraged and he was relentless.
When my client was able to get up out of the booth - (Pause) - what he saw was that. Mr. Clay, a wild man, just as Ashley Francis described him. (Pause) And then he saw his brother go down and Mr. Clay get on top of his brother. And what did Mr. Clay doing [sic] in this video? Just as I've demonstrated to you at least twice now, got down and he was like this, whaling on Raheem Rice. (Pause)
That's the situation that presented itself to Kyree Rice on May 24. Did he unload that weapon into Mr. Clay? No. He did not.
He used a range of efforts to try to stop Mr. Clay and those efforts didn't work. Using his hands, it didn't work. Show him the gun, didn't work. For those efforts he got nailed, flew into the booth. Firing a warning shot didn't work.
Now as it turns out that warning shot did hit Mr. Clay; wasn't intended to. It was intended to be a warning shot and as you learned during the cross-examination of Kyree Rice, the warning actually probably put his brother in greater danger, probably better than - probably more danger than Mr. Clay.
Wasn't intended to hit Mr. Clay. Why would he put his brother in danger? He was trying to stop him.
And then finally, he felt that he had to use under the circumstances as he saw them that evening, which is the circumstances that you must put yourself in his shoes, felt that he needed to use that deadly force. And based upon what he saw, that use of deadly force was reasonable and necessary. It was ...

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