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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 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. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2006-814 THE STATE OF NEW HAMPSHIRE v. MICHAEL J. LABRANCHE, JR. Argued: January 16, 2008 Opinion Issued: February 26, 2008 Kelly A. Ayotte, attorney general (N. William Delker, senior assistant attorney general, on the brief and orally), for the State. James T. Brooks, assistant appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. The defendant, Michael J. Labranche, Jr., appeals his first degree murder conviction. See RSA 630:1-a (2007). He argues that the Superior Court (Conboy, J.) erred by permitting the State's expert psychiatrist to testify that the charged offense was not the product of his mental illness. We affirm. The following is supported by the record. On the afternoon of August 29, 2005, motorists witnessed the defendant's mother, Jane Labranche, lying by the road outside of the home she shared with the defendant in Franklin. Several witnesses stopped to help Jane, who was covered in blood from repeated stab wounds. One witness testified that Jane told him that it was her

son, the defendant, who stabbed her and that he was still in the house. Jane later died from multiple stab wounds. After Jane was seen lying by the road, the defendant was seen leaving the house and driving away in his Chevrolet Nova. Later that day, police found the defendant in Concord sitting in his parked Nova. He was arrested for the murder of Jane Labranche. Before trial, the defendant provided notice to the court that he intended to enter a plea of not guilty by reason of insanity. See RSA 628:2 (2007). He submitted a motion to exclude the testimony of the State's expert psychiatrist "on the question of whether or not the death of Jane Labranche was the product of [the defendant's] mental illness or mental defect." The court denied the motion. At the nonbifurcated trial, the State's expert psychiatrist, Dr. Albert Drukteinis, testified that while the defendant "did have a psychotic disorder," it was his opinion that the defendant's "actions were not the product of a mental illness." Dr. Drukteinis testified that because he has a medical degree, he has a "broader understanding of the body and the brain and brain function." He further explained that in an insanity case such as this, he offers his opinion on whether the defendant has "a mental disorder," whether "that mental disorder rise[s] to the level of a mental illness," "the features of that illness, and then whether the behavior or actions . . . are a product of that mental disorder or mental illness." At the close of the evidence, the court instructed the jury: The opinion of an expert may assist you in understanding the evidence and in deciding the facts in the case. But you are not bound by the opinion of an expert. You are free to ignore the expert's opinion if you find that the reasons given in support of the opinion are not sound, or if you find that other evidence outweighs the opinion. The court further instructed: "It's up to you, the jury, to determine as questions of fact whether the Defendant suffered from a mental disease or defect, and that such caused him to act as he has been charged." The jury returned a guilty verdict. The defendant now appeals, arguing that "the trial court erred in permitting the State's expert psychiatrist to testify that the homicide was not the product of [the defendant's] mental illness" and that the admission of this testimony "rendered the trial fundamentally unfair," which violated his right to due process under the New Hampshire Constitution.

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The trial court retains the discretion to admit expert testimony and we review its decision under an unsustainable exercise of discretion standard. Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 665 (2006). To show that the trial court's decision was not sustainable, the defendant must show that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id. RSA 628:2, I, provides, in pertinent part, "A person who is insane at the time he acts is not criminally responsible for his conduct." Insanity is an affirmative defense in New Hampshire. State v. Abbott, 127 N.H. 444, 448 (1985). A defendant asserting an insanity defense must establish that he suffered from a mental illness and that the crime charged was a product of that illness. Id. These are questions of fact for the jury. Id. The defendant argues that Dr. Drukteinis' testimony on whether his conduct was the product of a mental illness was inadmissible pursuant to New Hampshire Rule of Evidence 702 because it "did not aid the jury in its search for the truth." He argues that this issue is "not outside the ken of an average juror" and involves "a moral component, an inquiry as to which psychiatrists . . . have no more expertise than jurors." Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The test generally employed to determine the admissibility of opinion evidence is not to inquire whether the issue to which it relates is for the jury, nor whether it is a matter of daily occurrence and open to common observation, but whether the witness' knowledge of the matter in question will probably aid the triers in their search for the truth. Brown v. Cathay Island, Inc., 125 N.H. 112, 116 (1984) (quotations omitted); see also State v. St. Laurent, 138 N.H. 492, 495 (1994). The defendant argues: Nothing about New Hampshire's jury-defined insanity standard gives the expert predominance in defining the characteristics of the link between mental illness and crime. Moreover, as trial counsel observed, [Dr.] Drukteinis used very basic factual considerations to

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draw his conclusion, including whether [the defendant] tried to hide the crime, whether he fled the scene, and whether, upon his arrest, he responded appropriately to questions posed by the police. Such issues are within the ken of the average juror. (Citations omitted.) The question for the trial court, however, is whether the proffered testimony will aid the jury. Dr. Drukteinis, as a psychiatrist, has a medical background and experience in treating mental illness. His medical opinion likely aided the jury to understand the complexities of mental illness and the multitude of behaviors likely to stem from mental illness. Cf. Currier v. Grossman's, 107 N.H. 159, 161 (1966) ("[I]n matters of common knowledge about which the jury know as much as a witness, an opinion cannot help them and therefore should not be introduced. This familiar principle is sound but inapplicable here, as it could reasonably be found by the Presiding Justice that the officer's testimony, due to his superior knowledge and the investigation he made, might aid the jury."). While Dr. Drukteinis may have emphasized "very basic factual considerations" in stating his opinion, we do not believe this constitutes a valid basis upon which to exclude his testimony. "[E]xpert testimony is admissible if it will . . . assist the trier of fact to understand the facts already in the record, even if all it does is put those facts in context." 4 J. McLaughlin, Weinstein's Federal Evidence

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