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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2015-0457


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                   KYREE RICE

                           Argued: October 13, 2016
                          Opinion Issued: May 12, 2017

      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.
                                        I

       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


                                        2
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



                                         3
      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.



                                           4
       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
       reasonable and necessary to stop Mr. Clay from using deadly force
       against Raheem Rice.

       In its closing, the State was dismissive of the defense-of-another defense.
Its theory was that the defendant was “looking for a fight” and that his use of
deadly force was “unreasonable and unnecessary.” Utilizing the videotape of
the incident that had been received in evidence, the prosecutor first focused
upon the defendant’s actions the first time he entered the restaurant, arguing
that he intervened in a dispute between Raheem and another man, who were
arguing over a woman, by lifting up his shirt to “flash” his gun.1 The
prosecutor next turned to the defendant’s actions when Clay knocked Vasquez
to the floor and turned back to confront Raheem:

       [Prosecutor]: Now at this point that’s when the defendant comes
       back into the restaurant. And when the defendant comes back
       into the restaurant, here’s the gun, right there. There’s the gun in
       his hand. Gun clearly pointed at Curtis’s belly. (Pause) He’s
       jamming that belly [sic] into Curtis’s stomach.

              So now at this point, this is where the defendant, Kyree Rice
       introduces deadly force into this event. So let’s review what’s
       occurred up to this point. When the defendant enters with deadly
       force, Curtis pushed Raheem; pushed him in the face. Curtis tried
       to punch Raheem, but was unsuccessful.

             Rudy Vasquez voluntarily decided to fight with Curtis by
       running across the restaurant. Curtis landed a punch squarely on
       Rudy Vasquez. And Raheem reached out to make contact with
       Curtis. That’s what happened up to the point where the defendant
       introduces deadly force, when he put the gun to Curtis’s belly.

            Was deadly force needed at that point? It was unreasonable
       and unnecessary at that time.

1The State also claimed that the defendant challenged the man to come outside. However, this
argument appears to be somewhat of a mischaracterization of the evidence. As discussed
previously, the evidence was that, after displaying and cocking the gun, the defendant did not
challenge the other person to step outside, but instead said: “you know what time it is.”


                                               5
(Emphasis added.) The prosecutor then reviewed what happened next: Clay
grabbed the defendant’s hand, pushed him away and landed “one good left
punch on the defendant and the defendant falls backwards . . . into the booth”;
Clay and Raheem “squared off,” demonstrating a willingness to engage in
mutual combat, with Raheem showing no signs that he was afraid of Clay; and
the defendant got up from the booth, moved toward Clay, and fired at least two
shots while aiming directly at Clay (both of which hit Clay). She argued that
the defendant “had no reason to bring deadly force, or self-defense to a mutual
fight,” and asserted that the defendant’s real motive for shooting Clay was that
he was angry that Clay had “sucker punched” him in front of his friends. (“He
has been disrespected in the ultimate epic way possible in a tiny, crowded
restaurant. . . . And he knows who just sucker punched him. And he is
looking for revenge.”)

       After the arguments were concluded, the defendant pointed out that, in
her closing, the prosecutor “told the jury that [the defendant] injected deadly
force . . . when he pulled the weapon out,” and asked the court to include in its
instructions the second sentence of RSA 627:9, IV, which states that
“producing or displaying a weapon shall constitute non-deadly force.” The
court responded that it viewed the prosecutor’s reference to the point at which
the defendant pulled his gun as an argument regarding when the defendant
formed his intent to use deadly force. When the defendant argued that the jury
might not have understood the prosecutor’s reference that way, the court
stated that it would review the matter further and decide if such an instruction
was required. Following a recess, the court declined to give the instruction,
concluding that the second sentence of RSA 627:9, IV “applies to a situation
where it’s merely brandishing a weapon and not an integral part of the crime
that the State has argued here.”

      The jury found the defendant guilty of all three charges, but because the
parties agreed that the first degree assault charges were alternatives to the
attempted murder charge, the court sentenced the defendant on the attempted
murder conviction only, and held in abeyance sentencing on the first degree
assault charges pending any appeal.

                                        II

       The defendant raises three issues on appeal. He argues that the trial
court erred by: (1) prohibiting cross-examination of the victim about the
victim’s cocaine use for the substantive purpose of demonstrating the extent of
the victim’s aggression; (2) prohibiting cross-examination of the victim about
the victim’s use of cocaine and marijuana to impeach the victim’s credibility,
specifically his perception and memory of the fight; and (3) declining to instruct
the jury that “[t]he act of producing or displaying a weapon shall constitute
non-deadly force.” Because we find the last issue dispositive, we address it
first.


                                        6
                                                A

       The defendant asserts that the trial court erred by not instructing the
jury that “[t]he act of producing or displaying a weapon shall constitute non-
deadly force.” RSA 627:9, IV. “Whether a particular jury instruction is
necessary, and the scope and wording of jury instructions, are 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.” Etienne, 163 N.H.
at 70 (quotation omitted). “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.” Id. (quotation
omitted).

       The defendant argues that “whether the [trial] court should have given
the instruction . . . depends on whether the principle became relevant to any
issue the jury had to decide.” He contends that the State’s closing had the
effect of shifting “the crucial moment for assessing the reasonability of [the
defendant’s] belief in the necessity of his use of deadly force” from the moment
he fired his gun to the moment he drew the gun, pointed it at Clay, and/or
“jammed that [gun] into Clay’s stomach.” (Quotation and brackets omitted.)
Because the State’s closing focused on that earlier point in time, the defendant
contends, the legal principle embodied in this statute, i.e., that “[t]he act of
producing or displaying a weapon shall constitute non-deadly force,” became
relevant to the issues before the jury.

       In response, the State first argues that the defendant waived this jury
instruction claim by not properly briefing it. Specifically, the State asserts that
the trial court’s ruling was based upon its interpretation that RSA 627:9, IV did
not apply to the facts of this case, and it suggests that the defendant’s brief
does not challenge the court’s interpretation. We find this argument
unpersuasive. The premise upon which the appeal is based is the claim that
the principle embodied in the second sentence of RSA 627:9, IV is applicable to
this case. Furthermore, the defendant has adequately set forth in his brief the
basis upon which he claims the trial court erred. We thus conclude that the
jury instruction issue is properly before us for review.

      With respect to the merits, the State argues that the trial court did not
unsustainably exercise its discretion in refusing to give the requested
instruction.2 We disagree. We conclude that the outcome here is largely
governed by our decision in State v. Gingras, 162 N.H. 633 (2011). In Gingras,
the defendant was charged with, among other offenses, criminal threatening
and reckless conduct arising out of a road-rage incident during which he

2The State does not dispute that there was “some evidence” to support a defense-of-others
defense, and that the defendant therefore was entitled to have the jury instructed about the
matter. State v. Ayer, 154 N.H. 500, 514 (2006).


                                                7
pointed a gun at the other motorist and threatened to shoot him if he did not
back away. Gingras, 162 N.H. at 635-36. The defendant claimed he acted in
self-defense, and the State conceded that the evidence produced at trial was
sufficient to require a jury instruction on the issue. Id. at 637. The defendant
asked the court to instruct the jury on the definitions of deadly force and non-
deadly force, which, at the time of the events at issue, were as follows:

      “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.
      Purposely firing a firearm capable of causing serious bodily injury
      or death in the direction of another person or at a vehicle in which
      another is believed to be constitutes deadly force.

RSA 627:9, II (2016) (emphasis added).

      “Non-deadly force” means any assault or confinement which does
      not constitute deadly force.

RSA 627:9, IV (2007) (amended 2011).

      The court instructed the jury in accordance with the above definitions,
except that, in instructing on the definition of deadly force, the court declined
to read the emphasized second sentence of RSA 627:9, II. Gingras, 162 N.H. at
638. The court reasoned that doing so was unnecessary because there was no
evidence that the defendant had actually fired his gun. Id. On appeal, we
reversed on the grounds that failure to give the full definition of deadly force
constituted prejudicial error. Id. at 639-40.

       In so ruling, we noted that the definitions of both “deadly force” and
“non-deadly force” require that there be either an “assault” or a “confinement.”
Id. at 639. Because there was no evidence that the defendant confined the
victim, we focused on the term “assault.” We observed that, although RSA
627:9 does not define “assault,” the statute “make[s] clear that the difference
between an assault that involves the use of deadly force and one that does not
is that the former must involve conduct that ‘creates a substantial risk of
causing death or serious bodily injury,’ whereas the latter does not.” Id.
(brackets omitted). We reasoned that the legislature’s inclusion of the second
sentence in RSA 627:9, II’s definition of “deadly force” was “a strong indication
that, in the absence of this provision, such discharge of a firearm would not,
without more, constitute the use of deadly force – otherwise there would have
been no need for the legislature to include it.” Id. We then explained how the
omission of the second sentence of RSA 627:9, II from the instructions was
prejudicial to the defendant:




                                         8
              If the jury had been given the full definition of deadly force,
       including the second sentence of RSA 627:9, II, it could well have
       found that, if the legislature deemed it necessary to include a
       specific provision dealing with the firing of a gun at another person
       or a vehicle in order to capture such conduct within the ambit of
       deadly force, then the defendant’s conduct of merely pointing his
       gun at [the victim] without discharging it constituted the use of
       non-deadly force. However, without knowing about the second
       sentence of RSA 627:9, II, there is a significantly greater likelihood
       that the jury may have determined that the defendant’s act of
       pointing his gun at [the victim] did constitute the use of deadly
       force. And if the jury made this finding, it may then have
       determined, in accordance with the court’s instructions, that the
       defendant’s use of deadly force in self-defense was not justified
       inasmuch as [the victim] was not armed with a weapon and had
       not threatened the defendant with the imminent use of deadly
       force. On this basis, the jury could have rejected the defendant’s
       claim of self-defense and found him guilty of the criminal
       threatening and reckless conduct offenses.

Id. at 639-40.3

       The events in Gingras occurred prior to the 2011 amendment to RSA
627:9, IV (2016) that added the second sentence to paragraph IV and,
accordingly, we had no occasion to consider that amendment in our decision in
that case. The amendment provides: “The act of producing or displaying a
weapon shall constitute non-deadly force.” Laws 2011, 268:4. The 2011
amendment demonstrates that our rationale in Gingras accorded with
legislative intent regarding the use of a weapon in self-defense or defense of
others. Reading RSA 627:9, II and IV together, we conclude that, at least with
respect to the defensive use of a firearm that does not involve the shooting of
another person, the legislature has established three categories of such use: (1)
if the actor purposely discharges a firearm in the direction of another person or
of a vehicle in which another person is believed to be located, the actor has
used deadly force as a matter of law; (2) if the actor merely produces or
displays a weapon, the actor has used non-deadly force as a matter of law; and

3 In Gingras, we also found that the likelihood of jury confusion in the absence of a full instruction
on the definition of deadly force was enhanced by the fact that the criminal threatening and
reckless conduct charges both included use of a deadly weapon as elements of the offenses, and
both indictments alleged that the defendant’s firearm constituted a deadly weapon. Gingras, 162
N.H. at 640. We observed that the definitions of “deadly weapon” and “deadly force” are not the
same. Id. Yet because, as used by the defendant, his firearm clearly constituted a deadly
weapon, there was a danger that, without proper instructions, “the jury could easily have
assumed that if the defendant had used a deadly weapon it automatically followed that he had
used deadly force.” Id. The same potential for confusion exists in this case, inasmuch as the first
degree assault indictments alleged use of a deadly weapon. See RSA 631:1, I(b).


                                                  9
(3) if the actor’s use of a firearm falls somewhere between (1) and (2) or is
otherwise not covered by (1) or (2), the determination of whether the use
constitutes deadly force or non-deadly force is a factual matter for the jury to
decide. Accord Stewart v. State, 672 So. 2d 865, 868 (Fla. Dist. Ct. App. 1996)
(“When the evidence does not establish that the force used by a defendant
claiming the right to use force [in self-defense or defense of another] is deadly
or nondeadly as a matter of law, the jury should be allowed to decide the
question.”); Com. v. Allen, 918 N.E.2d 92, 94 (Mass. App. Ct. 2009) (“Where the
level of force cannot be determined as a matter of law, instructions on both the
use of deadly force and nondeadly force must be given.” (quotation and ellipsis
omitted)), abrogated in part on other grounds by Com. v. Wynton W., 947
N.E.2d 561 (Mass. 2011); see also Marty v. State, 2016 WL 4944100, *4 (Fla.
Dist. Ct. App. 2016) (“Marty pointing a gun at [the victim] without firing at her
did not, as a matter of established law, constitute deadly force.”); State v.
Cannell, 916 A.2d 231, 234 (Me. 2007) (“[W]e have unequivocally held that
using a gun in a threatening manner without discharging the weapon
constitutes nondeadly force only, and does not amount to the use of deadly
force.”); cf. Com. v. Cataldo, 668 N.E.2d 762, 764-68 (Mass. 1996) (holding,
consistent with Model Penal Code § 3.11 and accompanying comments, that
brandishing or pointing a gun at another in self-defense or defense of a third
person does not constitute deadly force if purpose is merely to threaten that
the actor will use deadly force if necessary, rather than to cause death or great
bodily injury, and that question of actor’s intent must be decided by jury).4

       The State asserts that the defendant does not claim that its closing
argument constituted a misstatement of the law. Although the defendant’s
brief does not use those words, the upshot of his argument is plainly to this
effect. The entire point of the defendant’s argument is that the instruction
about RSA 627:9, IV that he requested was necessary because, had it been

4   Section 3.11(2) of the Model Penal Code states, in relevant part:

          A threat to cause death or serious bodily injury, by the production of a weapon or
          otherwise so long as the actor’s purpose is limited to creating an apprehension that
          he will use deadly force if necessary, does not constitute deadly force.

American Law Institute Model Penal Code and Commentaries § 3.11(2), at 157 (1985). The
commentary to this section explains its rationale:

          There is some authority at common law for saying that where there is no
          justification for using extreme force in self-defense, threatening to use it may be
          considered an assault. This is an unduly severe rule, however, and it would be
          altered by Subsection (2). The object is to provide that even though the defendant
          fears only slight injury, he may lawfully threaten his adversary with a knife or gun
          by way of defense, provided that he does not intend to carry out the threat. The
          formulation in these terms seems to reach the same result as does the
          Restatement of Torts.

Id., cmt. 2, at 160.


                                                   10
given, the jury could have determined that the prosecutor’s argument was at
odds with the applicable law. Even if one assumes that the defendant’s
conduct of pointing the gun at Clay (or “jamming [it] in Curtis’s stomach,” to
use the State’s characterization) goes beyond the statutory language of
“producing or displaying” a weapon — a dubious proposition in light of the
authorities cited above — so as to make the question of whether it amounted to
deadly force an issue for the jury, the defendant’s point is that in order to
properly make that determination the jury needed a full understanding of the
law regarding what conduct does, and what conduct does not, constitute
deadly force, and that the omission of the second sentence of RSA 627:9, IV
from the instructions deprived the jury of an essential part of that governing
law.

       We acknowledge that this case is distinguishable from Gingras, in that in
Gingras, the defendant’s act of pointing his gun at the victim was the very
conduct that constituted the crimes with which he was charged, while here the
specific act that formed the basis for the charges against the defendant was his
shooting of the victim. We are not persuaded, however, that this factual
distinction justifies a difference in outcome. We agree that the ultimate issue
to be decided by the jury was whether, at the time he shot Clay, the defendant
was justified in using deadly force. Yet in deciding on the ultimate issue a jury
invariably must resolve a host of subsidiary issues, such as witness credibility,
conflicts in testimony, the reliability of certain evidence, whether it has
sufficient confidence that the facts satisfy the burden of proof, etc. The trial
judge’s responsibility to instruct the jury in a criminal case is not limited to
simply enumerating the elements of the charged offense(s). Instead, “[t]he
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”; and we have
not hesitated to reverse when “the instructions did not fairly cover the issues of
law in the case.” Gingras, 162 N.H. at 638 (quotations omitted). As explained
below, in arriving at its ultimate decision on the issue of guilt or innocence, the
jury undoubtedly focused on the reasonableness of the defendant’s (and Clay’s)
course of conduct throughout their encounter, and without an instruction on
the use of non-deadly force, the prosecutor’s argument created a significant
risk that the jury would misunderstand the legal implications of the
defendant’s conduct in the moments before he used deadly force.5



5 We reject the suggestion that the trial court’s boiler plate instruction, to the effect that the jury
was to disregard anything the lawyers said about the law if it differed from the court’s
instructions, was sufficient to cure any possible prejudice resulting from the prosecutor’s
argument. The problem with this suggestion is that the court gave no instructions at all regarding
the use of non-deadly force, and without such instructions as a benchmark for measuring the
difference between deadly and non-deadly force, the jury may not have perceived that there was a
difference between what the prosecutor argued constituted deadly force and what the court said
constituted the use of deadly force.


                                                 11
       We note that the State does not contend that the trial court correctly
construed the second sentence of RSA 627:9, IV as being inapplicable when the
display or brandishment of a weapon is “an integral part” of the crime charged.
As the defendant correctly observes, the definitions found in RSA 627:9 apply
“as used in this chapter,” and RSA 627:4, which describes the circumstances
when deadly and non-deadly force may be used in self-defense or defense of
another, is obviously part of chapter 627. And, of course, the very purpose of
RSA chapter 627 is to describe justifiable conduct that constitutes a “defense”
to the offenses with which a person may be charged under the Criminal Code.
See RSA 627:1 (2016); cf. State v. Noucas, 165 N.H. 146, 155 (2013) (holding
that to be entitled to jury instruction a defense must be “legally available in
light of the charged offense and the evidence adduced at trial”). In short, the
second sentence of RSA 627:9, IV would be effectively eviscerated were it
unavailable when the conduct it describes is “an integral part” of what the
State alleges constitutes a criminal offense.

       Our decision in State v. Noucas also supports our decision here. In
Noucas, the defendant was charged with the crime of armed robbery under an
accomplice liability theory. Noucas, 165 N.H. at 149. He denied participation
in the robbery and testified that he entered the house where the alleged
robbery occurred in order to find his companion, and that while inside he used
force against the alleged victim of the robbery in order to defend his companion
from an attack by the victim. Id. at 153. Because he acknowledged using
physical force, the defendant argued that he was entitled to a defense-of-others
jury instruction. Id. at 153-54. We rejected this argument because the
standard defense-of-others instruction the defendant sought would have had
the effect of telling the jury that it must find the defendant not guilty of armed
robbery if it found that he acted in defense of his companion. Id. at 154-56.
As we pointed out, the flaw in the defendant’s position was that even if the jury
found that he did use force to defend his companion, it could also have found
that he was guilty of the armed robbery. Id. at 156-57. We specifically noted,
however, that, had the defendant so requested, he might have been entitled to
a “narrowly crafted” instruction designed to inform the jury of the need to
distinguish between force used to defend his companion and the force required
as an element of armed robbery. Id. at 156.

      Here, the defendant’s requested instruction was the kind of “narrowly
crafted” instruction we contemplated in Noucas. Unlike the defendant in
Noucas, who did not admit to any of the facts constituting the charged armed
robbery, id. at 156, the defendant here admitted that he eventually did use
deadly force against Clay. His defense was that, at the point when he did so,
his actions were justified. More importantly, the requested instruction would
not have had the effect of telling the jury that, if it found he used non-deadly
force when he drew/pointed his gun, he must be found not guilty because the
State had therefore failed to prove one of the elements of the charged offenses.



                                       12
Cf. Noucas, 165 N.H. at 156-57.6 Instead, the instruction would simply have
provided the jury with necessary guidance “about the legal significance of
claimed facts.” State v. Bruneau, 131 N.H. 104, 117-18 (1988). As such, the
instruction fell “within the scope of [the] judge’s responsibility to instruct the
jury on the law.” Id.

        Although the trial court’s construction of RSA 627:9, IV was incorrect, its
description of the defendant’s conduct in drawing his gun/pointing it at Clay
as being “an integral part of the crime” highlights the potential for jury
confusion resulting from the court’s failure to give the requested instruction.
The record makes it clear that the critical events occurred over a very brief
span of time — a matter of minutes or perhaps even seconds. Thus, in
assessing the defendant’s defense it would have been necessary for the jury to
determine, among other things, what conduct was or was not reasonable at
various points in an ongoing, stressful, and rapidly changing situation. The
defendant contended that he used reasonable, incremental force in an effort to
stop Clay’s attack on Raheem –– first using his hands, then drawing/pointing
the gun, and only after those measures failed, firing the gun. But the
prosecutor’s argument could readily have been understood by the jury as
asserting that the defendant’s act of pulling out his gun itself constituted the
use of deadly force, and the court instructed the jury that the defendant was
justified in using deadly force only if he reasonably believed that Clay was
about to use unlawful deadly force against himself or Raheem. Because the
evidence showed that, at the point the defendant pulled out the gun, Clay had
not yet brought Raheem down and begun punching him while straddling him
on the floor, the jury could well have found that the defendant could not then
have reasonably believed that Clay posed an imminent threat of using deadly
force against Raheem. And if the jury concluded that the defendant had acted
illegally by resorting to deadly force when it was unreasonable to do so, that
could easily have influenced its assessment of the reasonableness of his
conduct a few moments later when he fired the gun. Simply put, a conclusion
by the jury that the defendant resorted to the use of unlawful deadly force
merely by drawing his gun or pointing it at Clay makes it much more likely
that the jury would have concluded that the defendant was “trigger happy,”
intended to shoot Clay all along, and did not reasonably believe that Raheem
was in mortal danger a short time later when the defendant fired the gun.

      On the other hand, if the jury had been instructed that producing or
displaying a weapon constitutes the use of non-deadly force, then it may well

6 We acknowledge that in this case, as in Noucas, even if a properly instructed jury had found that
the defendant’s conduct in drawing his gun and/or pointing it at Clay did not constitute the use of
deadly force, it could also have found that his subsequent conduct of using deadly force (e.g., by
shooting Clay) was not justifiable. As explained in the text, however, the prejudice resulting from
failure to give the instruction on the legal implications of the earlier conduct is that it created a
significantly greater risk that the jury would make such a finding about the later conduct than
would have been the case had the jury been properly instructed as to the terms of RSA 627:9, IV.


                                                13
have concluded that the defendant’s action in pulling his gun or pointing it at
Clay (or “jamming [the gun] in Curtis’s stomach”) at the time he did so was not
unlawful, but instead was a reasonable response to a non-deadly attack upon
Raheem by Clay. And if the jury determined that the defendant acted
reasonably and lawfully in making non-deadly use of the gun at that time as a
threat intended to cause Clay to cease his non-deadly attack on Raheem, that
would have supported the defense’s contention that he used only such
incremental force against Clay as he thought was necessary, and could have
impacted the jury’s assessment of whether he reasonably believed it was
necessary to use deadly force when he did so.

       Finally, we address what may be termed the State’s “good enough”
argument. In Gingras we held that if the jury had been instructed, in
accordance with RSA 627:9, II, that the act of firing a firearm at another or at a
vehicle in which another is believed to be constitutes the use of deadly force, it
may have found that the defendant’s act of pointing a gun at another without
firing did not constitute the use of deadly force. Gingras, 162 N.H. at 639.
Because the trial court gave that instruction in the present case, the effect of so
doing, the State contends, provided the jury with a sufficient basis for
understanding that the defendant’s act of drawing/pointing the gun at Clay did
not constitute deadly force. This argument fails for three reasons.

       First, unlike in Gingras, where there was no specific indication of how
the prosecutor characterized the defendant’s conduct, see Gingras, 162 N.H. at
633, here the prosecutor’s argument could have been understood as asserting
that producing the gun constituted deadly force as a matter of law. In light of
this argument, there was an even greater need than existed in Gingras for the
court to fully instruct the jury as to the governing legal principles regarding the
defendant’s use of the gun for defensive purposes short of firing it. Second, in
Gingras, the trial court gave at least some instruction on the matter of non-
deadly force by reading the first sentence of RSA 627:9, IV, see Gingras, 162
N.H. at 638, whereas in this case the court gave no instruction at all about
non-deadly force. Thus, the jury was given no guidance in determining
whether the defendant’s act of pulling and/or pointing the gun could be found
to be non-deadly force. Third, although it is true, as we held in Gingras, that
the court’s reading of the second sentence of RSA 627:9, II could have led the
jury to find that the defendant’s acts of drawing and/or pointing his gun
without firing it did not constitute the use of deadly force, Gingras, 162 N.H. at
639, in order to make such finding the jury would have had to engage in the
comparatively sophisticated deductive process of drawing inferences as to legal
principles from what the legislature did not capture within the terms of RSA
627:9, II. With the enactment of the second sentence of RSA 627:9, IV,
however, the legislature made an affirmative pronouncement that the act of
producing or displaying a weapon constitutes the use of non-deadly force.
Awareness of the provisions of this statute would have significantly enhanced
the prospect that the jury would find that the defendant’s actions with the gun


                                        14
prior to firing it did not constitute the use of deadly force, which, as explained
above, could have resulted in a different verdict. For these reasons, we reject
the State’s argument that the trial court’s instruction on the second sentence
of RSA 627:9, II was “good enough” to alleviate the prejudice resulting from its
failure to instruct as to the second sentence of RSA 627:9, IV.

      Properly understood, Gingras stands for the proposition that when a
provision of law is necessary for the jury to fully understand the legal
implications of a view of the facts for which there is support in the evidence
and which may have a critical bearing on the jury’s decision-making, the trial
court, upon request, must include an instruction regarding such law in its
charge to the jury. Because the trial court failed to instruct the jury regarding
the use of non-deadly force in accordance with the second sentence of RSA
627:9, IV, we reverse the defendant’s convictions and remand for a new trial.

                                        B

       Notwithstanding our remand, we next consider the defendant’s argument
that the trial court erred by prohibiting the defendant from cross-examining
Clay about his cocaine use for the substantive purpose of demonstrating the
victim’s aggressiveness during the fight. We address this issue in the interest
of judicial economy because it may arise upon retrial. See State v. Sweeney,
151 N.H. 666, 674 (2005).

      The defendant asserts that the court’s ruling violated his constitutional
rights under Part I, Article 15 of the New Hampshire Constitution and the Sixth
and Fourteenth Amendments to the United States Constitution. He argues
that the evidence was relevant to demonstrate the reasonableness of his belief
that Clay was about to use unlawful deadly force against Raheem.

       The defendant proffers a chain of inferences to establish the relevance of
Clay’s cocaine use: cocaine intoxication is associated with increased
aggression; Clay’s use of cocaine, therefore, supports an inference that he used
a great degree of force during the fight; and the actual degree of force Clay used
in the fight would have provided circumstantial evidence of the reasonableness
of the defendant’s belief that Clay was about to use deadly force against
Raheem. In contrast, the State argues that the cocaine evidence was not
relevant for this purpose because the defendant did not establish whether the
amount of cocaine in Clay’s system could cause increased aggressiveness. We
agree with the State that the trial court properly excluded this evidence as
irrelevant. We address this issue first under the State Constitution and rely
upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33
(1983).

     “The right to cross-examine adverse witnesses in criminal cases is
fundamental,” State v. Fichera, 153 N.H. 588, 598 (2006), and “an incident of


                                        15
rights guaranteed by [P]art I, [A]rticle 15 of the State Constitution,” State v.
Stowe, 162 N.H. 464, 467 (2011) (quotation omitted). Although fundamental,
this “right is not unfettered.” State v. McGill, 153 N.H. 813, 817 (2006). “Trial
courts have broad discretion to fix the limits of proper areas of cross-
examination . . . .” Id. Cross-examination eliciting irrelevant evidence is not a
proper matter of inquiry, as the defendant “has no constitutional right to
present irrelevant evidence.” State v. Mitchell, 148 N.H. 293, 294 (2002).
Indeed, irrelevant evidence is inadmissible. N.H. R. Ev. 402.

       Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.H. R. Ev. 401; see also
Mitchell, 148 N.H. at 294-95. “Whether evidence is relevant is a question for
the trial court’s sound discretion, and we will not overturn its determination
absent an unsustainable exercise of discretion.” Mitchell, 148 N.H. at 294. “To
show an unsustainable exercise of discretion, the defendant must demonstrate
that the court’s ruling was clearly untenable or unreasonable to the prejudice
of his case.” Id. “The party offering evidence generally bears the burden of
demonstrating its admissibility.” State v. Walters, 142 N.H. 239, 242 (1997).

      We agree with the trial court that the defendant failed to carry this
burden. The defendant sought to question Clay about his use of cocaine on the
night of the fight. The relevance of this evidence depended upon the premise
that cocaine use causes aggressive behavior. To establish this link between
cocaine use and aggression, the defendant made a proffer based exclusively
upon Dr. Gaeta’s expert deposition testimony. The defendant argued that,
assuming Clay admitted to using cocaine on the night in question, that
evidence would be relevant because the jury could reasonably infer, based
upon Gaeta’s proposed trial testimony, that Clay’s cocaine use caused him to
act aggressively during the fight.

      However, Gaeta’s deposition testimony did not establish that cocaine use
causes aggression; it established only that “impairment from the abuse of
cocaine” is “associated with aggression, pain control or alleviation of pain,
wakefulness, [and] alertness.” (Emphases added.) The defendant did not seek
to inquire whether Clay was impaired from the abuse of cocaine, nor did Gaeta
opine that the amount of cocaine found in Clay’s urine at the time he was
hospitalized evidenced “impairment from the abuse of cocaine.” Thus, even
assuming that Clay testified that he used cocaine that night and Gaeta testified
consistent with his deposition testimony, a link between cocaine use —as
opposed to impairment from its abuse — and aggression would still be absent,
and the jury could not reasonably draw a connection between Clay’s cocaine
use and his behavior on the night in question. Because the defendant did not
demonstrate the relevance of Clay’s cocaine use, we conclude that the trial
court sustainably exercised its discretion in excluding that evidence. Compare
Robinson v. State, 527 S.E.2d 845, 846 (Ga. 2000) (trial court properly


                                       16
excluded cross-examination regarding victim’s drug use and possession where
proffered expert “could not say what, if any, effect cocaine had” on the victim at
the relevant time), with McWilliams v. State, 632 S.E.2d 127, 130 (Ga. 2006)
(trial court erred in excluding evidence of victim’s drug use where defense
expert testimony provided outside the presence of the jury supported causal
connection between the presence of cocaine and alcohol in the victim’s body
and her potential behavior at the operative time).

      The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. See Mitchell, 148 N.H.
at 294; Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir. 1993) (“[T]he Sixth
Amendment only protects cross-examination that is relevant.” (quotation
omitted)). Accordingly, we reach the same result under the Federal
Constitution as we do under the State Constitution.

                                         C

      Finally, we turn to the defendant’s argument that the trial court erred by
prohibiting him from cross-examining Clay about his use of cocaine and
marijuana in order to impeach his credibility. In response to the State’s
objection at trial on relevance grounds, the defendant argued that Clay’s drug
use was relevant to impeach his credibility because it would bear on the jury’s
assessment of his perceptions or memory of the fight. He asserted that he had
a “good faith basis” to inquire about Clay’s drug use and that he need not
proffer an evidentiary connection between Clay’s drug use and impairment of
his memory and/or perception because “a reasonable juror can assume that
combining cocaine and alcohol is going to affect somebody’s ability to perceive.”
The defendant made no proffer as to Clay’s expected testimony.

       However, on appeal, the defendant has not developed his trial argument
that the effect of cocaine, alcohol, and marijuana on perception and memory is
within the common knowledge and understanding of an average juror. See
Silva v. Warden, N.H. State Prison, 150 N.H. 372, 374 (2003) (stating that
expert testimony is not necessary where matter to be determined “is within the
realm of common knowledge and everyday experience”). To the extent he has
briefed this argument on appeal, he argues only that “[n]obody disputed that
intoxication by [cocaine and marijuana] could impair perception and memory.”
(Emphasis added.)

       We have never addressed whether the combined effects of cocaine,
marijuana, and alcohol upon perception and memory are within the common
knowledge and understanding of an average juror. Other jurisdictions are split
on this question. Compare Lyba v. State, 583 A.2d 1033, 1036 (Md. 1991) (“It
is common knowledge that the quantity of alcohol and/or drugs consumed will
affect one’s ability to see, to hear, and, generally, to perceive what is occurring.”
(quotation omitted)), with Hernandez v. Cnty. of Los Angeles, 173 Cal. Rptr. 3d


                                         17
226, 238 (Ct. App. 2014) (“The probable effect of intoxicants other than alcohol
is a topic sufficiently beyond the common experience of most jurors that expert
testimony is required.” (quotations and brackets omitted)). Because the parties
have not fully briefed the issue, we decline to address it now. See State v.
Blackmer, 149 N.H. 47, 49 (2003) (“[W]e confine our review to only those issues
that the defendant has fully briefed.”). Because there must be a new trial, the
parties may address this issue further before the trial court.

                                                 Reversed and remanded.

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




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