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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________

Merrimack
No. 2015-0289


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                  THOMAS MILTON

                          Argued: October 19, 2016
                      Opinion Issued: November 17, 2016

      Joseph A. Foster, attorney general (John J. McCormack, assistant
attorney general, on the brief and orally), for the State.


      Lothstein Guerriero, PLLC, of Keene (Richard Guerriero on the brief and
orally), for the defendant.

       HICKS, J. The defendant, Thomas Milton, appeals his conviction,
following a jury trial in Superior Court (Smukler, J.), on one count of second
degree murder, one count of assault by a prisoner, and one count of falsifying
physical evidence. See RSA 630:1-b (2016); RSA 642:9 (2007) (amended 2010);
RSA 641:6 (2016). We affirm.

I. Background

      The relevant facts follow. The charges against the defendant stem from
events occurring on July 26, 2010, at the New Hampshire State Prison where
the defendant and the victim were then incarcerated. The defendant was a
member of a prison gang known as the Brotherhood of White Warriors
(BOWW), and had been ordered by Frankie Philbrook, a high-ranking member
of BOWW, to assault the victim because Philbrook believed the victim was a
“rat” (i.e., that the victim had provided incriminating information about
Philbrook to authorities). The relevant indictments allege that the defendant
assaulted the victim by striking him in the head, and that he, acting in concert
with another inmate, caused the victim’s death by repeatedly striking him in
the head and face. The defendant admitted to striking the victim once in the
head, but denied striking him repeatedly thereafter.

       Before trial, the State moved in limine to admit expert testimony relating
to BOWW’s existence, organizational structure, membership process, and
culture, as well as evidence of the defendant’s affiliation with the organization.
The defendant filed a partial objection, which stated that he had “no objection
to disclosure to the jury of his membership in BOWW,” but argued that the
“[a]dmission of evidence regarding BOWW[’s] organizational structure,
membership process, and culture” would violate New Hampshire Rule of
Evidence 403. (Quotation omitted.) After a hearing, the trial court granted the
State’s motion, in part. In its ruling, the trial court permitted the State to
present expert testimony relating to BOWW’s organizational structure and
culture to “establish a motive for the inexplicable attack on [the victim],” and to
explain “how fear of gang retaliation would affect the testimony of witnesses,
and tend to make them less cooperative with law enforcement.” However, the
ruling prohibited the expert from testifying “to evidence a jury could readily
understand,” including evidence that BOWW believed the victim “ratted” on a
gang member, that BOWW ordered the attack, and that the defendant held the
position of “lieutenant” within the organization. The trial court explained that
this evidence “would be admissible if obtained from a percipient witness,” but
that it was “not expert testimony.”

       At trial, the State’s expert testified that BOWW’s members, all white
males, formed the gang in 2005 to protect themselves from other gangs at the
prison. He explained that BOWW maintains a paramilitary ranking structure,
that its members generally share a common “white supremacy” ideology, and
that its motto is “God forgives and BOWW don’t.” According to the expert,
members must abide by certain rules including following orders under the
chain of command, and not “ratting.” He explained that a member’s failure to
follow the rules results in a “violation” and that possible consequences for
violations include “a punch in the ribs,” being “punch[ed]” by “a couple [of]
guys,” or being “thrown out” of BOWW. He also explained that there are
varying levels of violations, and that a BOWW member who “rats” would “most
likely be kicked out of the gang, assaulted, or really anything.” Additionally,
the State’s expert testified that gang-related cases in the prison are generally
difficult to investigate because people are typically reluctant to cooperate with



                                         2
investigators, and because victims of gang-related assaults do not usually
report the incident to prison authorities.

      Also at trial, the defendant presented the testimony of an inmate who
corroborated the defendant’s description of events by testifying that the
defendant did not repeatedly strike the victim. On cross-examination, the
State elicited testimony, over the defendant’s relevance objection, that the
inmate had been assaulted by another inmate several months before testifying
at the defendant’s trial. The inmate admitted that his attacker had a BOWW
tattoo, and that, during the assault, his attacker said, “You want to tell on [the
victim].” He agreed that the assault occurred shortly before a hearing in
another criminal case in which the State planned to call him as a witness.
That case did not involve the defendant, but was related to the July 26, 2010
attack on the victim.

      The jury found the defendant guilty on all charges, and this appeal
followed.

II. Analysis

       On appeal, the defendant argues that the trial court erred by failing to
properly limit the introduction of evidence relating to BOWW. Specifically, he
asserts that the following evidence was inadmissible under New Hampshire
Rule of Evidence 403: (1) “BOWW crimes [in] which [the defendant] played no
role”; (2) BOWW’s organizational rules; and (3) BOWW’s retaliation against
witnesses. He contends that, because such evidence was admitted, he “was
tried, in significant part, on evidence of a prison gang’s wide-ranging criminal
conduct which was not fairly attributable to [him] and which unfairly
prejudiced him in the eyes of the jury.”

      As a threshold matter, the State argues that the defendant waived his
argument related to evidence of BOWW’s organizational rules. We disagree.
Contrary to the State’s contention, defense counsel did not limit the scope of
his objection at the motion in limine hearing. Rather, when asked whether the
admission of expert testimony to explain witnesses’ reluctance to testify was
“the one ruling [he took] the most issue with,” defense counsel stated, “that’s
about as much of an objection as I’m going to make beyond . . . what’s in my
pleading.” (Emphasis added.) Thus, although the defendant focused primarily
upon a single argument at the hearing, he did not concede the remaining
arguments raised in his objection. Cf. Milliken v. Dartmouth-Hitchcock Clinic,
154 N.H. 662, 669-70 (2006) (concluding that plaintiffs waived appellate
argument by conceding issue in trial court). Accordingly, we address the
merits of the defendant’s arguments.

      “The trial court has broad discretion to determine the admissibility of
evidence, and we will not upset its ruling absent an unsustainable exercise of


                                        3
discretion.” State v. Towle, 167 N.H. 315, 320 (2015). To demonstrate an
unsustainable exercise of discretion, the defendant must show that the trial
court’s ruling was clearly untenable or unreasonable to the prejudice of his
case. State v. Legere, 157 N.H. 746, 758 (2008).

       Evidence is relevant if it “ha[s] 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.
Relevant evidence is generally admissible. See N.H. R. Ev. 402. However, New
Hampshire Rule of Evidence 403 operates as “an exclusionary rule that cuts
across the rules of evidence.” State v. Kuchman, 168 N.H. 779, 789 (2016)
(quotation omitted). It states, in relevant part, that “[a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” N.H. R. Ev. 403.

      “Evidence is unfairly prejudicial if its primary purpose or effect is to
appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to
punish, or trigger other mainsprings of human action that may cause a jury to
base its decision on something other than the established propositions in the
case.” Towle, 167 N.H. at 323. “Unfair prejudice is not mere detriment to a
defendant from the tendency of the evidence to prove guilt, in which sense all
evidence offered by the prosecution is meant to be prejudicial.” Id. “Rather,
the prejudice required to necessitate reversible error is an undue tendency to
induce a decision against the defendant on some improper basis, commonly
one that is emotionally charged.” Id.

      Among the factors we consider in weighing [the probative value of]
      the evidence [against the danger of unfair prejudice] are: (1)
      whether the evidence would have a great emotional impact upon a
      jury; (2) its potential for appealing to a juror’s sense of resentment
      or outrage; and (3) the extent to which the issue upon which it is
      offered is established by other evidence, stipulation, or inference.

Id. at 323-24.

       “The trial court can, however, obviate the danger of unfair prejudice by
such actions as issuing a limiting instruction to the jury or limiting the scope
of the evidence that the parties are permitted to present to the jury.” Id. at
324. “The trial court is in the best position to gauge the potential prejudicial
impact of particular testimony, and to determine what steps, if any, are
necessary to obviate the potential prejudice.” Id.




                                        4
      A. Expert Testimony

      The defendant first argues that the trial court should have excluded the
expert testimony regarding BOWW pursuant to New Hampshire Rule of
Evidence 403 because the evidence’s probative value was substantially
outweighed by the danger of unfair prejudice.

      To convict the defendant of second degree murder, the State was
required to prove that the defendant acted “recklessly . . . under circumstances
manifesting an extreme indifference to the value of human life . . . .” “A person
acts recklessly with respect to a material element of an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct.” RSA 626:2, II(c)
(2016). “The risk must be of such a nature and degree that, considering the
circumstances known to him, its disregard constitutes a gross deviation from
the conduct that a law-abiding person would observe in the situation.” Id.

         With respect to probative value, the defendant acknowledges that the
expert’s testimony was relevant to his motive, opportunity, and intent, and to
the credibility of witnesses. However, he asserts that the expert’s testimony
was only minimally probative of his motive and intent because he admitted that
“he hit [the victim] and knocked him down” and that “he committed the assault
at the behest of other BOWW members.” Essentially, he contends that, as a
consequence of his admissions, “there was little need for the State to prove
motive.” He also asserts that the expert’s testimony was only minimally
probative of the witnesses’ credibility and reluctance to testify, claiming that
“[i]t is well-known . . . that cooperating witnesses are disfavored by all prison
inmates.” We disagree.

       As the parties recognize, the expert’s testimony was probative of the
defendant’s intent and motive. See Legere, 157 N.H. at 760 (concluding expert
gang testimony was relevant to the defendant’s intent and motive). It helped to
explain BOWW’s rules, particularly those regarding “ratting” — conduct in
which the gang believed the victim had engaged. It also informed the jury of
BOWW’s chain of command and the violent manner in which the gang enforces
its orders. This information helped to explain why the defendant would act
against the victim and the degree of violence that he used. See id. (concluding
expert gang testimony was admissible to explain why the defendant would
murder a man wearing a particular shirt). The expert testimony regarding the
violent nature of BOWW’s enforcement methods created a strong inference that
the defendant acted with the requisite level of intent in order to avoid BOWW
retribution. Cf. State v. Addison (Capital Murder), 165 N.H. 381, 467 (2013)
(reasoning that evidence of the defendant’s participation in other crimes was
probative of the defendant’s motive and intent to “take extreme measures to
avoid capture”), cert. denied, 136 S. Ct. 812 (2016).



                                        5
       We disagree with the defendant’s contention that “there was little need
for the State to prove motive.” Although the defendant admitted that he
committed the assault at the direction of BOWW leadership, he denied that it
was he who struck the victim repeatedly in the head and cleaned up the crime
scene afterwards. Moreover, he did not concede the issue of intent with respect
to any of the three charges. His motive and intent thus remained at issue. See
State v. Pepin, 156 N.H. 269, 279 (2007) (“When intent is not conceded by the
defense, and it is an element of the crime to be proven by the State, it is
sufficiently at issue to require evidence at trial.” (quotation omitted)).

       The expert’s testimony was also probative on the issue of witness
credibility. Specifically, the expert’s testimony helped to explain why some of
the witnesses at trial were reluctant to cooperate. See Legere, 157 N.H. at 761
(explaining that evidence of street gang’s violent nature and general disregard
for societal rules was probative of witness credibility “because it explained why
some witnesses might be reluctant to cooperate”). A number of the parties’
witnesses were current and former prison inmates who had been reluctant to
cooperate with investigators out of fear for their safety. The expert’s testimony
regarding BOWW’s violent enforcement of its rules helped to explain this fear.
See id. Additionally, the expert’s testimony that such reluctance is
commonplace in gang-related cases was helpful to further aid the jury in
assessing the reluctant witnesses’ credibility. See id. (“Knowledge of the
witnesses’ fears of retaliation coupled with the understanding that such fears
were common in cases of this nature would give the jury a basis to evaluate
their credibility.”).

       We are not persuaded by the defendant’s argument that the expert’s
testimony on this point was unnecessary because it is “well-known” that
contempt for cooperating witnesses is “part of prison culture[.]” We have
noted, in another context, that prisoners may “look unkindly upon those who
willingly cooperate with the authorities.” Sanguedolce v. Wolfe, 164 N.H. 644,
647 (2013). However, even if we were to assume that the average juror is
aware of such sentiments, here, the State theorized that the witnesses’
reluctance to cooperate stemmed, not from fear of retaliation from the general
prison population, but rather from a particularized fear of retaliation from
BOWW. The average juror would be ill-equipped to assess the reasonableness
of this particularized fear absent expert testimony on the matter. We,
therefore, cannot conclude that the expert’s testimony offered “limited value”
on the issue of witness credibility.

       As to unfair prejudice, we have previously recognized that “the potential
for prejudice in the introduction of gang evidence is apparent.” Legere, 157
N.H. at 761. However, this potential “does not necessarily make the evidence
inadmissible.” Id. Rather, we must consider “whether the probative value is
substantially outweighed by the danger of unfair prejudice.” Id. “[W]e afford



                                        6
considerable deference to the trial court’s determination in balancing
prejudicial impact and probative worth.” Towle, 167 N.H. at 324.

       The defendant argues that the probative value of the expert’s testimony
was substantially outweighed by the danger of unfair prejudice. He claims that
the expert’s testimony, in effect, “told the jury that [violent] crimes are routine
for BOWW members” and “wrongly labeled [him] as the paradigmatic BOWW
member, bent on violence and obstruction of the truth.” He also argues that,
in light of other evidence admitted at trial, the expert’s testimony was
unnecessarily cumulative. We disagree.

        The record supports the trial court’s determination that the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice. As noted above, the expert testimony was probative of witness
credibility and the defendant’s motive and intent. Because these issues were
contested at trial, the probative value of the expert testimony was not
insignificant. Cf. State v. Ayer, 154 N.H. 500, 513 (2006) (concluding that
evidence relevant to the defendant’s intent carried “significant” probative value
because his “intent was central to the trial”). Further, the prejudicial impact of
the expert’s testimony on the defendant was limited. Although the expert
testified that BOWW members generally share a common white supremacy
ideology, he also admitted on cross-examination that “there are people who”
join BOWW “strictly for protection without really buying into the whole
ideology,” which helped to limit the impact of any prejudice. Additionally,
although the expert testified that BOWW regularly responded to rule violations
with violence, this testimony was not graphic, and was, consequently, less
likely to provoke the jury’s instinct to punish.

       The prejudicial impact of the expert testimony was also limited by the
introduction of other evidence at trial. Specifically, the defendant offered
testimony that BOWW held white supremacist views and that he “would
probably have gotten jumped” if he refused to follow BOWW’s orders.
Additionally, certain of the inmate witnesses agreed that they were initially
reluctant to testify out of fear for their safety. A jury could infer from this
testimony that BOWW was likely to respond with violence to the defendant’s
failure to follow orders and to the inmates’ “ratting.” This inference limited the
prejudicial impact of the expert’s testimony that BOWW members generally
share a common white supremacy ideology and that BOWW generally responds
to rule violations with violence. See Addison (Capital Murder), 165 N.H. at
473-74 (affirming trial court’s decision to display video of defendant committing
armed robbery, in part, because jury had heard evidence that he participated
in the robbery through the testimony of other witnesses).




                                        7
      B. Inmate’s Testimony about Separate Assault

       The defendant also challenges the trial court’s ruling admitting evidence
of the pretrial assault on an inmate witness by another inmate with a BOWW
tattoo. The defendant argues that the trial court should have excluded the
inmate’s testimony relating to the pretrial assault pursuant to New Hampshire
Rule of Evidence 403. He appears to acknowledge that the testimony was
relevant to the credibility of the inmate. He argues, however, that the
evidence’s probative value was substantially outweighed by the danger of unfair
prejudice. He claims that he was unfairly prejudiced because the inmate’s
testimony “allowed for the possible inference by the jury that [he] was involved
in the attack.” We disagree.

       Evidence of the pretrial assault was probative of the inmate’s credibility
because it evidenced his motive to deny the defendant’s involvement in the acts
underlying the second degree murder charge. Cf. State v. Russell, 159 N.H.
475, 485 (2009) (concluding subsequent bad act evidence of defendant’s
threats against witness was relevant to witness’s motive to lie); see also Legere,
157 N.H. at 761 (“Evidence that a witness is afraid to testify or fears retaliation
for testifying is relevant to the credibility of that witness.” (quotation and
ellipsis omitted)).

       As to the matter of prejudice, we disagree that the inmate’s testimony
supported an inference that the defendant continued his affiliation with BOWW
or that he was complicit in the assault on that inmate. The inmate did not
testify that the defendant was still a member of BOWW or that he was involved
in the attack. Rather, at the defendant’s request, the State elicited testimony
that the attack occurred just before a hearing that did not involve the
defendant. Additionally, the defendant later offered testimony that he had
severed his connection with BOWW in the year leading up to his trial.

       Given these circumstances, we conclude that the record supports the
trial court’s determination that the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice. We hold that the
trial court did not unsustainably exercise its discretion when it admitted the
inmate’s testimony about the pretrial assault.

      Finally, any issues raised in the defendant’s notice of appeal, but not
briefed, are deemed waived. See State v. Cooper, 168 N.H. 161, 171 (2015).

                                                   Affirmed.

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




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