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                 THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Hillsborough – northern judicial district
No. 2011-500


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                JOSHUA SPRAGUE

                          Argued: September 12, 2013
                        Opinion Issued: January 17, 2014

      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. 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.


                                        2
      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 to panic and fear, and that, out of a concern for “self
preservation,” he recklessly fired.

      Following closing arguments, the defendant objected to the court
instructing the jury that it could not consider the defendant’s misperception
that the victim had a gun as evidence of self-defense in the absence of an
instruction explaining to the jury that it could consider his misperception with
respect to his mens rea at the time of the crime.

       The trial court denied the defendant’s request and instructed the jury
that were it to “accept [the defendant’s testimony that he thought the victim
was holding a gun,] you may not consider it as evidence that the Defendant
acted in self defense.” The trial court explained that this instruction was
necessary to avoid confusing the jury because the defendant’s argument that
he had acted out of a concern for self-preservation “came very close to arguing
self defense.” It declined to add the defendant’s suggested language, stating:
“I’m telling the jury how it may not use the evidence. I’m not telling the jury
how it may use the evidence.”

       On appeal, the defendant does not dispute that self-defense was not a
valid defense in this case, nor does he challenge the propriety of the instruction
                                        3
given by the trial court. Rather, he argues that the instruction failed to inform
the jury that his testimony regarding his misperception that the victim had a
gun could be relevant to his mental state. As a result, he contends that the
instruction unfairly prejudiced his defense because it “made clear the forbidden
use of the ‘perception of a gun’ evidence (self-defense) without clarifying its
permissible use (mental state defense).”

      We first address the defendant's claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). “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.”
State v. Hernandez, 159 N.H. 394, 400 (2009). “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 a particular jury instruction is necessary, and the scope
and wording of jury instructions, are within the sound discretion of the trial
court.” Id. “To show that the trial court’s decision is not sustainable, the
defendant must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” State v. Lambert, 147 N.H. 295,
296 (2001) (quotation omitted).

       Upon review of the instructions in their entirety, we find no error. A
reasonable juror would have understood that the jury could consider the
defendant’s misperception for all purposes except self-defense. Notably,
immediately after the defendant testified that he believed that the victim had a
gun, the trial court instructed the jury that, while it could not use the
defendant’s testimony as evidence that the defendant acted in self-defense,
“[a]s with any witness, if you believe this witness’ testimony, you may give it
such weight as you think proper.” Furthermore, in the final jury instructions,
the trial court repeatedly instructed the jury to consider all of the evidence.
The trial court explained: (1) “[w]hen you have considered and weighed all of
the evidence you must make one of the following findings with respect to each
crime charged”; (2) “[y]ou should carefully scrutinize all the testimony given”;
and (3) “[y]ou will consider all of the facts and circumstances in evidence to
determine which of the witnesses are worthy of belief.” (Emphases added.)
Further, the trial court instructed the jury that the State had the obligation to
prove each element of each of the charged crimes, including the relevant mens
rea. Thus, in view of the jury instructions in their entirety, a reasonable juror
would have understood that he or she had to consider all of the evidence when
determining the defendant’s state of mind, including the defendant’s testimony
that he shot the victim because he believed that the victim had a gun.

      Moreover, the defendant does not dispute that the trial court properly
instructed the jury on the elements of first-degree murder, second-degree
murder, and the lesser-included crime of manslaughter, and provided accurate
                                        4
definitions of the mens rea of “purposely,” “knowingly,” and “recklessly.”
Because the State did not object to the instruction on the lesser included
offense of reckless manslaughter, we need not decide whether the defendant’s
version of the events was sufficient to entitle him to a reckless manslaughter
instruction. If the jury had believed that the prosecution did not prove beyond
a reasonable doubt that the defendant acted purposely or knowingly, the jury
could have convicted him of second-degree murder or manslaughter.

       A defendant does not have the right to a particular jury instruction
“when he simply presents evidence of a different factual scenario than that
presented by the State.” Cf. State v. Noucas, 165 N.H. 146, 155-56 (2013)
(quotation omitted) (finding that trial court did not err in failing to instruct jury
in accordance with model jury instructions on self-defense and defense of
another when defendant merely presented evidence of a different factual
scenario than the State). Here, although the defendant admitted that he shot
and killed the victim, he asked the jury to believe his testimony that, because
of his misperception that the victim had a gun, he had acted recklessly, rather
than purposely or knowingly. Under these circumstances, the trial court did
not err in declining to specifically instruct the jury that it could consider the
defendant’s misperception as evidence of his mens rea at the time of the crime.
See State v. Furgal, 164 N.H. 430, 437 (2012) (jury instruction did not need to
expressly inform jury it could consider particular evidence in a manner
favorable to defendant); State v. Shannon, 125 N.H. 653, 662-63 (1984)
(finding that trial court did not err in declining to give instruction that would
support defendant’s theory of the case).

       The defendant cites Francoeur v. Piper, 146 N.H. 525 (2001), in support
of his argument that while a jury instruction may be legally correct, it is
improper if it misleads or confuses the jury. In Francoeur, we held that the
trial court’s jury instruction in a medical malpractice suit — that “a mere error
in judgment, made in the proper exercise of judgment, is not professional
negligence” — although perhaps an accurate statement of the law, was
reasonably capable of confusing or misleading the jury about the reasonable
standard of professional practice. Francoeur, 146 N.H. at 528-31. Here,
however, the instruction was not likely to mislead or confuse the jury. The trial
court did not prohibit the jury from considering the defendant’s claimed
misperception when assessing his state of mind at the time of the crime. It
merely prohibited the jury from considering his claimed misperception as
evidence of self-defense. Thus, Francoeur is inapposite.

      Accordingly, we conclude that the jury instructions, considered in their
entirety, did not prevent the jury from considering the defendant’s claimed
misperception for purposes of establishing his state of mind at the time of the
crime. Therefore, the trial court’s refusal to give the requested instruction was
not an unsustainable exercise of discretion and did not unfairly prejudice the
defendant in violation of his right to due process.
                                          5
      As the Federal Constitution offers the defendant no greater protection
than the State Constitution under these circumstances, see United States v.
Park, 421 U.S. 658, 674-75 (1975); State v. Littlefield, 152 N.H. 331, 342
(2005), we reach the same result under the Federal Constitution as we do
under the State Constitution.

II.   Motion for Mistrial

       The defendant next argues that the trial court erred when it denied his
request for a mistrial and failed to give a more expansive curative instruction
following an emotional outburst in the courtroom. While a witness was
testifying, a relative of the victim uttered: “This is b******t . . . . “This is
b******t, mother f****r. I’m going to get you.” The incident lasted
approximately ten seconds. Notably, the trial judge did not hear the
statements. The relative was removed from the courtroom, and the trial court
excused the jury.

      Immediately thereafter, the court informed counsel that it intended to
instruct the jury to “disregard what happened [because] [i]t’s not part of the
evidence in the case.” The defendant moved for a mistrial. The court denied
the motion, explaining, “I don’t think . . . there’s any reason to think the jury
won’t decide the case based solely on the evidence and the law.”

        The defendant then requested that the trial court expand upon its
proposed instruction by including “words to the effect of, you know, this is the
reason why we go through the extensive process of picking an impartial jury
. . . so that, you know, passions are not arisen that influence the decision-
making process.” Although the trial court denied the defendant’s request, it
offered to question each juror as to whether he or she could disregard the
outburst. The defendant declined the court’s offer. Accordingly, upon the
jury’s return to the courtroom, the trial judge instructed the jurors to disregard
the outburst, explaining:

      You have to decide this case based on the evidence that you receive
      during the trial and the law that I’ll give you at the end of the case.
      You can’t let any other factors influence your verdict. So keep it out of
      your mind. [The outburst] shouldn’t play any role in your decision-
      making process.

       “Mistrial is the proper remedy only if the evidence or comment
complained of was not merely improper, but also so prejudicial that it
constitutes irreparable injustice that cannot be cured by jury instructions.”
State v. Neeper, 160 N.H. 11, 15 (2010) (quotation omitted). “When
reviewing a trial court’s ruling on a motion for mistrial, we recognize that
the trial court is in the best position to gauge the prejudicial nature of the
conduct at issue and has broad discretion to decide whether a mistrial is
                                         6
appropriate.” State v. Ainsworth, 151 N.H. 691, 698 (2005). “We will not
overturn the trial court’s decision on whether a mistrial or other remedial
action is necessary absent an unsustainable exercise of discretion.” Id.

      On appeal, the defendant argues in essence, as he argued before the trial
court, that the court erred when it denied the motion for a mistrial because
“the image of a family member of the victim expressing animosity toward him
could not be erased by a jury instruction.”

       We find State v. Guay, 162 N.H. 375 (2011), to be instructive. In Guay,
while the defendant was testifying, the victim shouted that the defendant was a
liar. Guay, 162 N.H. at 378. The defendant appealed the court’s denial of his
request for a mistrial, arguing that the outburst exposed the jury to
inadmissible evidence — the victim’s opinion of the defendant’s character. Id.
We upheld the trial court’s ruling, concluding that, given the conflicting
testimony of the victim and the defendant, “it could hardly have been a
surprise to the jury that the victim did not believe the defendant to be testifying
truthfully. Moreover, credibility issues are within the jury’s province, and it
could reasonably have concluded that the defendant lied during his testimony.”
Id. at 379.

       Here, we conclude that the outburst was not so prejudicial as to
constitute an irreparable injustice. See State v. Ploof, 165 N.H. 113, 119
(2013). The relative did not comment on the character or truthfulness of the
defendant, nor did he address the sole contested issue at trial — the
defendant’s mental state when he shot the victim. The court never told the
jury that the speaker was a relative of the victim. Moreover, as in Guay, it
could not have been a surprise to the jury that someone was angry with the
defendant in light of the defendant’s admission that he shot the victim.

       Our conclusion is consistent with the analyses adopted by courts in
other jurisdictions that have confronted similar circumstances. See People v.
Chatman, 133 P.3d 534, 553 (Cal. 2006) (concluding that “prejudice is not
presumed” when outbursts by the victim’s mother were unrelated to
defendant’s guilt or innocence and “provided the jury with no significant
information it did not already know or might not readily surmise. Even without
observing [victim’s mother] in person, any reasonable juror would know that
the crime had caused the victim’s family anguish.” (quotation omitted));
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (concluding that
“[n]othing in the record suggests that the [family member of victim’s] outburst
was of such a nature that the jury could not ignore it and fairly examine the
evidence in arriving at a verdict”).

       Moreover, the trial court’s curative instruction directed the jury to
disregard the outburst. The trial court instructed the jury to decide the case
solely on the evidence and not “any other factors.” See Guay, 162 N.H. at 379
                                        7
(upholding trial court’s denial of mistrial, in part, because court instructed jury
to ignore victim’s outburst during defendant’s testimony). We presume that the
jury followed these instructions. State v. Russo, 164 N.H. 585, 591 (2013).

       The defendant further contends that the trial court erred in failing to
include a more detailed instruction “addressing the fact that passion cannot
enter into the decision-making process.” We disagree. “The defendant is not
entitled to have the court use the exact words of requested instructions.” State
v. Crie, 154 N.H. 403, 406 (2006). Here, although the instruction did not
include specific language telling the jury that it could not decide this case
based on passion, it clearly directed the jury to disregard the outburst in its
decision-making process. This instruction was, in substance, the curative
instruction that the defendant had requested.

      To the extent that the defendant argues that the trial court’s denial of his
request for a mistrial violated his right to due process and a fair trial under the
State and Federal Constitutions, he has not adequately developed this
argument for our review, so we decline to address it. See State v. Euliano, 161
N.H. 601, 608 (2011).

      Accordingly, we conclude that the trial court sustainably exercised its
discretion when, after the outburst, it denied the defendant’s request for a
mistrial and for a more detailed instruction.

III.   Rebuttal Witness

      The defendant next contends that the trial court erred when it permitted
the State to call a rebuttal witness to impeach the defendant’s testimony. The
defendant testified that, although he had watched televised news reports of the
shooting before he fled to Massachusetts, he did not learn that the victim had
died until days later when he saw a subsequent news report. After the defense
rested, the State sought to recall a witness to impeach the defendant’s
testimony as to when he learned that the victim had died. The defendant
objected, arguing that the testimony was inadmissible under New Hampshire
Rules of Evidence 403, 608, and 613. The trial court overruled the objection.

       On appeal, the defendant argues that the trial court erred in ruling that
the defendant’s testimony had opened the door to the rebuttal testimony. He
contends that the testimony was inadmissible because he did not create a
misleading impression, nor did the State’s rebuttal witness directly contradict
his testimony. The State counters that the testimony was admissible, and that
even if the court erred in admitting it, the error was harmless beyond a
reasonable doubt.

      We need not determine whether the trial court properly admitted the
rebuttal testimony because, even assuming error, we conclude that the error
                                        8
was harmless beyond a reasonable doubt. The State bears the burden of
proving that an error is harmless, a burden satisfied by proof, beyond a
reasonable doubt, that the erroneously admitted evidence did not affect the
verdict. See State v. Prudent, 161 N.H. 320, 323 (2010). In deciding whether
the State has met its burden, we consider the strength of the alternative
evidence presented at trial. See State v. Vandebogart, 139 N.H. 145, 158
(1994). We also consider the character of the inadmissible evidence, including
whether the evidence was cumulative or inconsequential in relation to the
strength of the State's evidence. See id.

      Here, the State’s alternative evidence of the defendant’s guilt was
overwhelming. The evidence included: a series of video recordings showing the
defendant chasing the victim down the street, as well as the testimony of an
eyewitness that the defendant shot the victim three to four times after the
victim had raised his hands. The witness, who did not know either the victim
or the defendant, testified that the victim was not holding a cellphone, a gun,
or anything else, when he was shot.

      The alternative evidence of guilt also included testimony that the
defendant acted knowingly. The defendant admitted that he was angry with
Hann and texted her a threatening message prior to the shooting. Several of
the defendant’s companions testified that the group intended to assault Hann.
They also testified that members of the group armed themselves, and were
ready to fight.

      Moreover, the challenged testimony was cumulative given that the State
had introduced substantially the same evidence in its direct case. A witness
had previously testified that several individuals, including the defendant, were
watching the news on the morning after the shooting and that the television
news broadcast reported the victim’s death. See State v. Garcia, 162 N.H. 423,
434-35 (2011) (finding disputed evidence cumulative because defendant
repeatedly testified to substance of the challenged evidence).

       Further, the challenged rebuttal testimony was inconsequential. The
defendant had previously admitted that he had watched the news on the
morning after the shooting, so the jury had a basis independent of the rebuttal
testimony from which it could have reasonably inferred that the defendant
knew that the victim had died. The rebuttal testimony was not lengthy: it
lasted for fewer than three minutes. The State utilized the rebuttal testimony
to attack the defendant’s credibility during only a short portion of its closing
argument. Moreover, other evidence undermined the defendant’s credibility:
he admitted that he had lied to the police about where he was at the time of the
shooting. See State v. Barnes, 150 N.H. 715, 718 (2004) (impeachment of
defendant with respect to three inconsistent statements was rendered
inconsequential when State introduced evidence of defendant’s numerous prior


                                       9
convictions). Although the defendant argues that the timing of the rebuttal
testimony rendered it especially prejudicial, we are not persuaded.

      In light of the State’s alternative evidence, the cumulative nature of the
challenged evidence, and the limited manner in which the State used it, we
conclude, beyond a reasonable doubt, that the rebuttal testimony did not affect
the jury’s verdict. We therefore hold that, even if there was error, the
admission of the challenged testimony was harmless.

IV.   Double Jeopardy

      The defendant also argues, and the State concedes, that the imposition
of sentences for both first-degree murder in the course of burglary and
burglary violated the Double Jeopardy Clauses of the New Hampshire and the
United States Constitutions. See N.H. CONST. pt. I, art.16; U.S. CONST.
amends. V, XIV. He argues that because the crime of burglary does not
contain an element which is not also contained in the first degree murder
charge, he was placed in double jeopardy when he was sentenced for both the
lesser-included offense and the greater offense. We agree. Thus, we vacate the
sentence for the burglary conviction.

                                                 Affirmed in part;
                                                 vacated in part.

      DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.




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