Preview:

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 ___________________________ Hillsborough-southern judicial district No. 2008-248 THE STATE OF NEW HAMPSHIRE v. ARTHUR KOUSOUNADIS Argued: February 18, 2009 Reargued: September 10, 2009 Opinion Issued: December 4, 2009 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Francis G. Holland, of Nashua, by brief and orally, for the defendant. BRODERICK, C.J. The defendant, Arthur Kousounadis, was convicted by a jury in Superior Court (Lynn, C.J.) of felony criminal threatening, see RSA 631:4, I(a), II(a)(2) (2007); RSA 625:11, V (2007), and violation of a protective order, see RSA 173-B:9, III (2002). He was sentenced under RSA 651:2, II-g (2007). We affirm in part, reverse in part and remand. I The record supports the following facts. The defendant and his former wife, Aspasia Kousounadis, married in 1972. They divorced in 1996. They

reconciled in 2001, and lived together in Lowell, Massachusetts, until the defendant moved out in October 2006. The following month, Aspasia obtained a restraining order against him in a Lowell court. The defendant was present in the courtroom when the order was issued. On December 1, 2006, the defendant purchased a semi-automatic shotgun with a special scope and ammunition from a sports shop in Hooksett. When he was filling out the required federal forms, he falsely stated that he was not subject to a restraining order. On December 6, he drove to the Pheasant Lane Mall in Nashua, where Aspasia worked at Macy's. He parked his GMC Jimmy in the parking garage near her Honda. At around 8:30 p.m., Aspasia approached her car. When she opened her car door, she saw the defendant standing in front of her car, near his GMC. He said he wanted to talk; she responded, "No, I don't want to. We're through." After saying, "okay," the defendant opened a back door to his vehicle and took out a shotgun. Aspasia ran as soon as she saw it. While she was running, she heard a gunshot. She kept running until she reached the Macy's employee entrance, where she rang the security bell. She testified at trial that, although she was scared, she was not fearful that she would be shot. In their investigation of the scene, the police found a shell casing and plastic packing material used in shotgun shells near Aspasia's vehicle. They also found a hole in the wall at Macy's and a shotgun slug inside the store. The defendant went to the Nashua police station the next morning of his own volition and was arrested. He was booked by an officer using standard procedure, and placed in a holding cell. He was subsequently indicted on one count of attempted murder, one count of felony criminal threatening and one count of violation of a protective order. Prior to trial, he moved to suppress all evidence obtained as a result of his statements to the Nashua police following his arrest on December 7, 2006. After a hearing, the Trial Court (Mohl, J.) denied his motion. The defendant also moved to dismiss the charge that he violated a protective order, contending that New Hampshire courts lacked jurisdiction to try him for allegedly violating an order issued in Massachusetts. This motion was also denied. Following a four-day trial, the jury found the defendant guilty of felony criminal threatening and violating a protective order, but not guilty of attempted murder. The defendant filed two post-trial motions to set aside his conviction for criminal threatening. In the first, he contended that in closing argument, the State had "argued a different crime than was alleged in the indictment." In the second, he argued that because the court failed to instruct the jury on the definition of "deadly weapon," the jury could not have found that the shotgun he used was a deadly weapon, an element of criminal threatening. He also

2

moved to bar application of the enhanced sentencing provisions for use of a deadly weapon, see RSA 651:2, II-g, because the jury had not made a factual finding that he used one. The trial court denied all three motions. On appeal, the defendant argues that the trial court erred in: (1) denying his motion to suppress; (2) denying his motion to dismiss the charge of violating a protective order; (3) denying his two motions to set aside the criminal threatening verdict; and (4) denying his motion to bar an enhanced sentence. We address each argument in turn. II The defendant first argues that the police subjected him to custodial interrogation without first reading him his Miranda rights in violation of Part I, Article 15 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. See State v. Gagnon, 139 N.H. 175, 177 (1994); Miranda v. Arizona, 384 U.S. 436 (1966). He further contends that the police failed to "scrupulously honor[ ]" his invocation of his right to counsel. As a result, he asserts that "the [S]tate could not prove beyond a reasonable doubt that [his] confession as to the location of the gun was . . . voluntary." We first address the defendant's arguments under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231-33 (1983). When reviewing a trial court's ruling on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. Plch, 149 N.H. 608, 613, cert. denied, 540 U.S. 1009 (2003). Our review of the trial court's legal conclusions, however, is de novo. Id. The police must give Miranda warnings before conducting custodial interrogation. State v. Turmel, 150 N.H. 377, 382 (2003). It is the State's burden to establish beyond a reasonable doubt that a defendant's constitutional rights under Miranda were not violated before it is permitted to admit a defendant's statements into evidence. State v. Chapman, 135 N.H. 390, 394 (1992). "[O]nce a defendant has invoked his right to counsel by declining to speak to the police without a lawyer present, the police must refrain from or stop interrogation, and scrupulously honor the defendant's right to stop it." State v. Elbert, 125 N.H. 1, 9 (1984) (citation omitted) (conducting analysis under the Fifth Amendment to the United States Constitution). The State then bears the burden of proving beyond a reasonable doubt that it was the defendant who initiated further conversation without any prompting from the police. Plch, 149 N.H. at 616. The police have a duty to see to it that an opportunity to consult with counsel is provided before further questioning may proceed. State v. Tapply, 124 N.H. 318, 325 (1983).

3

The State does not dispute that the defendant was in custody after he was arrested, booked and placed in a holding cell. However, the record contains conflicting testimony on what occurred following the defendant's arrest. Detective Daniel Archambault, who interviewed the defendant, testified that he did not ask him any questions before he gave him his Miranda warnings and had the defendant sign a form waiving them. In contrast, the defendant testified that Detective Archambault "asked [him] right away . . . what happened at the mall" before informing him of his Miranda rights or turning on the interview recording equipment. The trial court considered the defendant's recorded interview with Detective Archambault as well as their conflicting testimony in resolving the issue of credibility in favor of the State. The defendant argues that because he and Detective Archambault each had a markedly different version of what happened following his arrest, the State failed to prove beyond a reasonable doubt that it had not violated his Miranda rights. We disagree. Determining whether the defendant was interrogated prior to his Miranda warnings required the trial court to weigh the credibility of the witnesses. It has broad discretion in doing so. See State v. Patch, 142 N.H. 453, 458-59 (1997). Based upon the record before us, we cannot say that the trial court's factual finding that the defendant was not subject to custodial interrogation before receiving and waiving his Miranda rights either lacked support in the record or was clearly erroneous. With respect to the defendant's invocation of his right to counsel, we similarly conclude that the trial court's factual finding that the police scrupulously honored it was supported by the record and not clearly erroneous. Detective Archambault interviewed the defendant twice. The first interview was terminated immediately when the defendant requested counsel. The detective told him that if he wanted to speak further, he should tell the booking officer. The defendant was then returned to his cell, and approximately fifteen minutes later, he asked to speak once again with the detective. After they were back in the interview room, the detective turned on the recording equipment and advised the defendant again of his Miranda rights, which he again waived. During the second interview, the defendant told the detective where the gun and ammunition were located. As the trial court observed, the interview transcript established that Detective Archambault terminated the first interview upon the defendant's request for a lawyer. During the second interview, he offered the defendant an opportunity to use the telephone to contact an attorney, which the defendant declined. The detective did not have an obligation to independently contact a public defender on behalf of the defendant, as the defendant's argument suggests. See Jackson v. Frank, 348 F.3d 658, 663 (7th Cir. 2003) ("Neither Miranda nor any other provision of federal law requires a public defender to be immediately available to a suspect during interrogation."), cert. denied, 541

4

U.S. 963 (2004). Although the defendant may have made some voluntary statements without first adequately waiving his right to counsel, "[v]olunteered statements of any kind are not barred by the Fifth Amendment." Miranda, 384 U.S. at 478. We conclude that the record does not support the defendant's contention that the police failed to scrupulously honor his invocation of his right to counsel. The State met its burden of proving beyond a reasonable doubt that the defendant's statements were untainted. Accordingly, we hold that the trial court did not err in denying the defendant's motion to suppress. Because the Federal Constitution does not provide any greater protection than does the State Constitution with regard to the defendant's claims of error, we reach the same result under the Federal Constitution. See Plch, 149 N.H. at 620. III Next, the defendant argues that the trial court erred in failing to dismiss the charge that he violated a protective order because "New Hampshire has no jurisdiction over the enforcement of [the Massachusetts] order." He cites no authority to support this argument and concedes that this assertion is contrary to statute. We review the trial court's statutory interpretation de novo. State v. Bernard, 158 N.H. 43, 44 (2008). RSA 173-B:13, II (2002), entitled "Orders Enforceable," provides: "Any protective order issued by any other state . . . shall be deemed valid if the issuing court had jurisdiction . . . and the person against whom the order was made was given reasonable notice and opportunity to be heard." In addition, "[a] person shall be guilty of a class A misdemeanor if such person knowingly violates . . . any foreign protective order enforceable under the laws of this state." RSA 173-B:9, III (2002). The defendant does not argue that the Massachusetts order was invalid for lack of jurisdiction or due process, nor does he offer any other reason why it should not be enforced. Accordingly, we hold that the trial court properly denied his motion to dismiss. IV Next, the defendant argues that the trial court erred in denying his first motion to set aside the criminal threatening verdict because the State "argued a different crime [during closing argument] than [it] alleged in the indictment." Specifically, the defendant points to the prosecutor's argument that: "When Aspasia took off running, mission accomplished, she's scared, ladies and gentlemen. She's terrified. But he didn't stop there." The prosecutor later stated: "[The defendant] pulled that trigger and he wasn't trying to scare her because she was already terrified at that point. He was trying to kill her." The defendant contends that these statements are an "admission" that the criminal

5

threatening was complete before the shotgun was fired, when Aspasia took off running in fear. The indictment charges that the defendant "purposely attempted to place [her] in fear of imminent bodily injury" when he "pulled out a firearm . . . and fired the shotgun." (Emphasis added.) Thus, he argues the State's "admission" in closing argument that Aspasia was scared before the shotgun was fired precludes the jury from finding him guilty of each element of the crime. We disagree. We will uphold a trial court's denial of a motion to set aside the verdict unless its ruling was made without evidence or constituted an unsustainable exercise of discretion. State v. Spinale, 156 N.H. 456, 466 (2007). Here, the challenged language in the State's closing argument was neither an "admission" nor directed to the criminal threatening charge. The prosecutor was attempting to persuade the jury that it should find the defendant guilty of attempted murder. In any event, closing arguments are intended to persuade the jury to adopt one party's view of the evidence and are not considered statements of fact. See State v. Belkner, 117 N.H. 462, 471 (1977). The court properly instructed the jury that "what is said by the lawyers in closing arguments . . . is not evidence." The record reflects that the jury's verdict was supported by the evidence, and we cannot say that the trial court committed an unsustainable exercise of discretion in denying the defendant's motion. The defendant further argues that the trial court erred in denying his first motion to set aside the verdict because the State "failed to provide sufficient evidence upon which the jury could enter a finding of guilty on the charge of criminal threatening." Specifically, he argues that the State presented no evidence establishing that when the defendant pulled out the shotgun, he was acting with the purpose of placing Aspasia in fear of imminent bodily injury, as opposed to merely placing her in fear generally. To the extent that the defendant is contending that the trial court should have dismissed his case based upon insufficient evidence, we disagree. To succeed on his motion, the defendant had the burden of establishing that the evidence, viewed in its entirety and with all reasonable inferences drawn in favor of the State, was insufficient to prove beyond a reasonable doubt that he was guilty of the crime charged. State v. Huffman, 154 N.H. 678, 685 (2007). By the defendant's own admission, he pulled out the gun with the purpose of frightening Aspasia. Whether the defendant purposely placed or attempted to place Aspasia in fear of imminent bodily injury was a question of fact for the jury, and the jury was so instructed. On this record, viewed in the light most favorable to the State, we hold that there was sufficient evidence presented for the jury to conclude that the defendant acted with the purpose of placing the victim in fear of imminent bodily injury.

6

V Next, the defendant argues that because the trial court failed to instruct the jury on the definition of "deadly weapon," the jury could not have made a finding that the shotgun he used was a "deadly weapon," a necessary element of the felony criminal threatening charge. The State disagrees, and further contends that any error was harmless. The defendant requested the trial court to include the statutory definition of deadly weapon in the jury instructions. Ultimately, the court instructed the jury on the criminal threatening charge as follows: The definition of this crime has three elements, each of which the State must prove beyond a reasonable doubt in order for you to find the defendant guilty of this offense. These elements are: First, that the defendant attempted to place Aspasia Kousounadis in fear of imminent bodily injury; second, that the defendant did so through conduct that is by removing a deadly weapon, a shotgun, from his car and firing it in the vicinity of Aspasia Kousounadis; and third, that the defendant acted purposely, that is that it was the defendant's conscious object or specific intent to withdraw the shotgun from his car and fire it in the vicinity of Aspasia Kousounadis for the purpose of placing her in fear of imminent bodily injury. After he was convicted, the defendant moved to set aside the verdict, arguing that the trial court's failure to instruct on the definition of a deadly weapon precluded the jury from rendering a finding on a necessary element of the felony criminal threatening charge. "The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. McMillan, 158 N.H. 753, 756 (2009) (quotation omitted). "When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case." Id. "We determine whether the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case." Id. "Whether or not a particular jury instruction is necessary, and the scope and wording of the instruction, is within the sound discretion of the trial court, and we review the trial court's decisions on these matters for an unsustainable exercise of discretion." Id.

7

A person commits the crime of criminal threatening when "[b]y physical conduct, the person purposely places or attempts to place another in fear of imminent bodily injury or physical conduct." RSA 631:4, I(a). The crime is a class B felony if the person "[u]ses a deadly weapon as defined in RSA 625:11, V." RSA 631:4, II(a)(2). A deadly weapon is "any firearm, knife or other substance or thing which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury." RSA 625:11, V. The defendant contends that for the shotgun to constitute a deadly weapon, it must be "used, intended to be used or threatened to be used" in a manner "known to be capable of producing death or serious bodily injury." The State disputes the application of the qualifying phrase to "firearm," and argues that a firearm is a deadly weapon per se under the statute. We first address the parties' dispute regarding the statutory meaning of "deadly weapon," and then turn to consider whether the instructions fairly covered the issues of law in the case. The interpretation of a statute is a question of law, which we review de novo. State v. Dodds, 159 N.H. ___, ___ (decided August 21, 2009). "In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole." Id. at ___. We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (2007). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Dodds, 159 N.H. at ___. Further, we interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include. State v. Hynes, 159 N.H. 187, 193 (2009). Finally, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id. In construing the plain meaning of deadly weapon, we must discern whether the term "firearm" is modified by the phrase "which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury," RSA 625:11, V. Reviewing the composition and structure of the statute, we conclude that at least two interpretations of the deadly weapon statute are reasonable. On one hand, the comma after "firearm" and the lack of a comma after "knife" might indicate that the legislature composed a list of items to be modified by the qualifying phrase in the latter part of the statute. Under this interpretation, each item listed (any firearm, any knife, any substance and any thing) would be modified by the qualifying phrase, "which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury." On the other hand, the comma after "firearm" could set off the category of "any firearm" from the category of "knife or other substance or thing," such that the qualifying phrase would modify only the latter category of

8

items. Accordingly, on its face, the statute is subject to two reasonable interpretations with respect to firearms as deadly weapons, i.e., (1) a firearm is a deadly weapon only when it is used, intended to be used, or threatened to be used in a manner that is known to be capable of producing death or serious bodily injury; or (2) a firearm is a deadly weapon per se. See In re Richard M., 127 N.H. 12, 17 (1985) (while the legislature is not compelled to follow technical rules of grammar and composition, the court examines the composition and structure of the text to discern its intended meaning). The manner in which the term "deadly weapon" is functionally used throughout the Criminal Code does not resolve the ambiguity. See Hynes, 159 N.H. at 193 (we interpret a statute in the context of the overall statutory scheme). Each of the crimes that rely upon "deadly weapon" as an element, as well as the enhanced sentencing statute itself, could be implemented using either interpretation. See, e.g., RSA 630:1-a, I (2007) (first degree murder); RSA 635:1, II (2007) (class A felony burglary); RSA 644:1, IV (2007) (class B felony riot); RSA 651:2, II-g (deadly weapon enhanced sentencing). Accordingly, we turn to the legislative history of the deadly weapon statute to discern legislative intent. See State v. Jennings, 159 N.H. 1, 5 (2009) (court reviewed legislative history to discern legislative intent where statutory phrase was subject to more than one reasonable interpretation). The term "deadly weapon" has been part of our substantive criminal law for nearly 150 years. See, e.g., GS 264:7 (1867) (manslaughter enhanced to first degree when perpetrated by person bearing a "deadly weapon"). The legislature first defined the term, however, when it adopted the revised Criminal Code, Laws 1971, 518:1, which became effective in November 1973, see RSA 625:2, I (2007). The revised Criminal Code was recommended by the Commission to Recommend Codification of Criminal Laws (Commission), which was created by legislative directive in 1967. Laws 1967, ch. 451. In April 1969, the Commission, chaired by Chief Justice Frank R. Kenison, issued the Report of Commission to Recommend Codification of Criminal Laws (Report) providing a comprehensive draft revised Criminal Code, see Report at iv, and included comments that detail the source of the recommended language for each draft section, see, e.g., id. at iii. In the Report, the Commission identified its "basic aim" as "produc[ing] a more concise and simplified criminal law than now applies in this state." Id. at iv; see also N.H.S. Jour. 1641-42 (1971). In performing this task, the Commission reviewed draft laws and comments from a wide variety of sources, but "found especially useful the Model Penal Code, the Michigan Revised Criminal Code, Final Draft--September 1967, and the New York Penal Law, 1967." Report, supra at iii. The Report notes that ultimately, the Commission had been "continuously desirous of shaping a criminal law that is adapted to the conditions and traditions of the State of New Hampshire." Id.; see also

9

N.H.S. Jour. 1642 (1971) (revised Criminal Code intended, among other things, to align New Hampshire criminal law with decisions of the supreme court with respect to individual rights). With respect to the draft definition section, the comments explain that while some defined terms were adopted from the Model Penal Code, the "deadly weapon" definition was based upon terminology found in the Michigan Revised Criminal Code, Final Draft (1967). Report, supra

Download 2008-248, STATE OF NEW HAMPSHIRE v. ARTHUR KOUSOUNADIS.pdf

New Hampshire Law