the state of new hampshire supreme court … · state of new hampshire v. ... state v. beltran, ......
TRANSCRIPT
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THE STATE OF NEW HAMPSHIRE
SUPREME COURT
State of New Hampshire
v.
Eric R. Cable
Case Nos. 2014-0163 and 2015-0025
BRIEF FOR ERIC R. CABLE
APPELLANT
Richard J. Lehmann, Esquire, (NH Bar #9339)
DOUGLAS, LEONARD & GARVEY, P.C.
14 South Street, Suite 5
Concord, NH 03301
(603) 224-1988
ORAL ARGUMENT BY:
Richard J. Lehmann, Esq.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES………….…………………………………………………………..ii
QUESTIONS PRESENTED ........................................................................................................... 1
CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR
REGULATIONS INVOLVED IN THE CASE. ............................................................................. 1
STATEMENT OF THE CASE……………………………………………………………………1
STATEMENT OF FACTS……………………………..…………………………………………1
SUMMARY OF THE ARGUMENT……………………………………………………………14
ARGUMENT…………………………………………………………………………………….16
CONCLUSION…………………………………………………………………………………..31
REQUEST FOR ORAL ARGUMENT………………………………………………………….31
CERTIFICATION OF ATTACHMENT OF APPEALED DECISION………………………...31
CERTIFICATE OF SERVICE ..................................................................................................... 32
NOTICE OF DECISION, DATED MARCH 18, 2015 (WAGELING, J.)………………...……33
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TABLE OF AUTHORITIES
Cases
Capwell v. State of Alaska, 823 P.2d 1250 (1991) ....................................................................... 24
Hewlett v. State of Mississippi, 607 So.2d 1097 (Miss.1992) ...................................................... 29
Kassotis v. Town of Fitzwilliam, 166 N.H. 648 (2014) ............................................................... 19
Lewek v. State of Florida, 702 So.2d 527 (Fl.1997) ..................................................................... 25
State v. Bakka, 826 A.2d 604 (N.J. App. 2003) ........................................................................... 25
State v. Beltran, 153 N.H. 643 (2006) .......................................................................................... 30
State v. Brown, 160 N.H. 408 (2010) ........................................................................................... 20
State v. Davidson, 163 N.H. 462 (2012) ....................................................................................... 28
State v. Hatfield, 2007 WL 456868 (Ohio App.11 Dist.) ............................................................. 26
State v. Hickey, 129 N.H. 53, 523 A.2d 60 (1986) ....................................................................... 30
State v. Laudarowicz, 142 N.H. 1 (1997) ..................................................................................... 18
State v. McGlew, 139 N.H. 505 (1995) ........................................................................................ 28
State v. Melcher, 140 N.H. 823 (1996) ......................................................................................... 31
State v. Mendola, 160 N.H. 550 (2010) ........................................................................................ 30
State v. Michaud, 135 N.H. 723 (1992) ........................................................................................ 30
State v. Pittera, 139 N.H. 257 (1994) ............................................................................................ 18
State v. Sharkey, 155 N.H. 638 (2007) ......................................................................................... 20
State v. Thompson, 161 N.H. 507 (2011) ............................................................................... 20, 23
State v. Whittaker, 158 N.H. 762 (2009) ................................................................................ 20, 21
State v. Wong, 125 N.H. 610 (1984) ............................................................................................ 18
Strickland v. Washington, 466 U.S. 668 (1984) ..................................................................... 20, 21
Town of Newbury v. N.H. Fish & Game Dept., 165 N.H. 142 (2013) ........................................ 20
United States v. Cortiho-Diaz, 875 F.2d 13 (1st Cir.1989) ................................................ 1, 20, 28
Statutes
RSA 270-D:7 ......................................................................................................................... passim
RSA 626:2, II(d) ........................................................................................................................... 20
RSA 630:3 ..................................................................................................................................... 18
Other Authorities
6th and 14th Amendments to the United States Constitution ....................................................... 22
American Heritage College Dictionary (4th Ed. 2002) ................................................................ 21
Part I, Article 15 of the New Hampshire Constitution ........................................................... 22, 25
Rules
N.H.R.Ev. 401, 402, 403, and 404(b) .......................................................................................... 29
N.H.R.Ev. 403 or 404(b) ............................................................................................................... 18
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I. QUESTIONS PRESENTED
A. Whether the trial court erred in denying the defendant’s motion to dismiss for
insufficient evidence.
B. Whether the trial court erred in denying the defendant’s motion for a new trial
based on ineffective assistance of counsel.
II. CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR
REGULATIONS INVOLVED IN THE CASE.
See Table of Authorities
III. STATEMENT OF THE CASE
Mr. Cable was indicted on alternate counts of negligent homicide. After a four day trial,
he was convicted under both theories. The court sentenced him to serve a total of five to twelve
years in New Hampshire State Prison. This appeal followed.
Mr. Cable, through new counsel, counsel, filed a motion for a new trial asserting that he
was denied effective assistance of counsel under the United States and New Hampshire
Constitutions. That motion was denied and a second appeal was filed.
Both appeals were consolidated into this action.
IV. STATEMENT OF FACTS
A. Prosecutor’s Opening.
The prosecutor’s opening began with these words:
Eric Cable was legally intoxicated on July 14 of last year. And you’re
going to hear that his illegal operation of a boat while being under the
influence of intoxicating liquor caused the death of Brendan Yerry.
T-114. (Emphasis added). Immediately afterward, the prosecutor conceded that:
You’re also going to hear that there are no eyewitnesses to this event,
other than the Defendant and his friends. Only the people on the boat that
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day know for sure what happened. And you need to keep that in mind
when you hear the testimony throughout the week of trial here who the
witnesses are. Now, some of this testimony is just going to be plain
conflicting and contradictory and really not reconcilable with each other,
okay? So you need to keep that in mind when you’re listening to the
evidence; what could have happened, what’s logical that happened, what
makes sense, what just doesn’t make sense.
T-114. By leading in this manner, the prosecutor plainly signaled the difficulty he was going to
have proving what occurred, let alone what caused the occurrence. Further, this statement
clearly suggests that his case was going to be based on circumstantial evidence and that in order
to meet his burden of proof he was going to lean heavily on the idea that Mr. Cable’s operation
of the boat, allegedly in violation of boating laws, caused the death of Mr. Yerry.
The opening also included references to alcohol consumption, but the fact that Mr. Cable
and all the other people present were drinking during the day is not enough to prove negligent
homicide.1 The prosecutor continued his opening by asserting that Mr. Cable:
doesn’t have a boating license. He’s never had a boating safety course.
So you’re going to hear right off the bat the Defendant’s operation of the
boat isn’t legal. He doesn’t have a boating license. He’s also operating a
boat over capacity.
The other interesting thing about the boat, it is not even validly registered,
or not displaying the correct registration….
T-116-117. (Emphasis added). None of these facts do anything to establish an element of the
offense of negligent homicide, and in particular none of these facts help establish that alcohol
impairment or negligent operation in any way caused the accident. Nevertheless, the defense
failed to object to any of these statements during the state’s opening.
1 Mr. Cable testified in his own defense that he did not believe that his ability to operate the boat was
impaired by the consumption of alcohol. Mr. Cable does not concede that fact. However, for the purpose
of this appeal, Mr. Cable does not contest that the state introduced sufficient evidence that a reasonable
jury could have found that his operation of the vessel was impaired by alcohol.
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The prosecutor continued his opening by discussing the fact that many, if not all, in the
people in the large group of people with Mr. Cable were drinking alcohol on the day of the
accident. The prosecutor described the location on the lake where various events occurred.
Then, turning to the time of the accident, the prosecutor stated:
You’re going to hear as time went on, and when they went back out there,
the Defendant was most likely seated in a position similar to what you’re
looking at now, somewhere up on the bow right in the gunwales.
As I said, you’re not going to have consensus on exactly where he was
seated. I’ll leave it to you once you hear the evidence to make some
determinations about where exactly he was seated based on what they will
tell you.
But there is one thing that isn’t in doubt. At some point Brendan Yerry
ended up off the boat and was struck by the boat and propeller and killed.
T-119 (Emphasis added). After discussing a stipulation the parties entered about the manner of
Mr. Yerry’s death, the prosecutor continued, stating:
And what happened is, Brendan was seated in a position in the front where
he was looking back where they had just come from. He was looking
back at the camp. And he saw the girls back on the dock area. And he
said to the Defendant, “Hey, the girls are back on the dock. Turn the boat
around and go back and get them.” You’re going to hear that the boat was
turned. It was turned to the left, and the Defendant was driving at that
point. Somewhere between him beginning the turn and somewhere into
the completion of the turn, Brendan goes missing. He’s off the boat.
Nobody saw how that happened. They all just say he was off the boat.
Nobody knows how that happened. And they didn’t see him again. He
never surfaced again.
T-120 (Emphasis added). Thus, the prosecutor’s opening for the second time indicated that the
evidence would not provide the jury with sufficient information for jurors to know how or why
Mr. Yerry fell into the water.
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After discussing the amount of alcohol consumed by members of Mr. Cable’s group, and
the process by which the state intended to speculate about his BAC at the time of the incident,
the prosecutor said:
[O]ne of the things that’s going to be very important here as the case goes
on in the legality of where exactly Mr. Yerry was sitting. If he was sitting
in the second position that you saw, up on the gunwales or bow in any
manner, you’re going to hear from Sergeant Dirth that that’s illegal to sit
up there. You can’t operate a boat with somebody sitting in that manner.
State’s Opening: T-131. (Emphasis added). Thus, immediately prior to concluding his opening
by discussing the charges against Mr. Cable, the prosecutor asserted that, at the time Mr. Yerry
fell off the boat, Mr. Cable was operating the boat illegally. As discussed infra, however, this
assertion is simply incorrect as a matter of law. None of this opening was objected to by the
defense.
B. Testimony of Marine Sergeant Joshua Dirth
1. Dirth Direct
The first witness called by the state was marine patrol sergeant Joshua Dirth. Dirth’s
testimony makes it abundantly clear that what the state lacked in evidence of causation, it
intended to make up for with inadmissible propensity evidence and incorrect statements of law.
Early in Dirth’s testimony, the prosecutor elicited evidence that the boat was not properly
registered in New Hampshire. T-157-158. The prosecutor also elicited testimony from Sergeant
Dirth about the capacity of the boat.
Q: Now, is there a max capacity of this boat?
A: There is. There was a capacity plate which was in the area of the helm, the
driver’s seat.
Q: And what is the max capacity of this boat?
…
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A: Seven persons or 900 pounds.
T 159-160.
Sergeant Dirth also testified on direct about Mr. Yerry’s position within the boat at the
time he fell overboard. That testimony and subsequent bench conference occurred as follows:
Q. How about if somebody wasn’t seated in the seat, but kind of leaning
up with their butt on any of the railings on the sides here, is that legal?
A. No.
Mr. Anderson: Objection, your Honor, can we approach?
The Court: Sure.
Mr. Anderson: This is getting into expert testimony. He’s talking about
the legalities of the boat.
The Court: Well, I don’t agree…
Mr. Anderson : Okay.
The Court: This is a law enforcement officer just stating the facts under
which I - -
Mr. Anderson: All right.
The Court: - - assume that I there’s a regulation and/or of RSA, that - -
Mr. Anderson: All right.
The Court: Okay, so. Objection overruled.
Mr. Blanchard: Thank you, Your Honor.
Q: So as I was asking, if somebody isn’t physically seated in these seats,
but up here standing with - - leaning against these gunwales, or their butt
partially up on those gunwales, is that a legal position?
A: If somebody’s actually - - excuse the language I’m using. But your
butt cheek is on the gunnel or up on the bow, that’s where the issue arises,
so that would be illegal.
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T-187-188. (Emphasis added). As the transcript excerpt indicates, defense counsel objected that
the testimony was improper expert testimony about the law. Defense counsel never objected to
or otherwise called the court’s attention to the fact that the prosecution was advancing, and the
court blindly accepting, a theory clearly at odds with the plain words of the statute. As the bench
conference above reflects, the court permitted the testimony under the assumption that the
questions and answers by the prosecutor and Sergeant Dirth accurately reflected the law. That
assumption was incorrect. Therefore, the testimony was permitted to stand and no corrective or
limiting instruction was given.
Dirth also testified on direct about the number of empty beer cans found in the boat, T
194-196. He was unable to testify about which of the people present drank from which cans or
in what quantity. He also testified to the feet-per-second calculation based on a mathematical
formula, TII-197-198, without stating what basis he used as a foundation for his assumption
about the boat’s speed. He also offered no testimony explaining why the feet per second
calculation was relevant.
The prosecutor also elicited the information about the registration status of Mr. Cable’s
boat:
Q: And was this vehicle displaying the proper vessel numbers issued to
the vessel as far as the registration process?
A: No, it was not.
T-200-201. This testimony about the ownership and registration status of the boat had nothing to
do with establishing causation or any other element of the offense, and everything to do with
prejudicing the jury by seeking to establish that Mr. Cable violating some administrative laws.
As a final question, the prosecutor asked Dirth:
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Q. Other than the four people on the boat when this incident
happened, were you able to find any eyewitnesses to the
incident.
A. No.
2. Dirth Cross-Examination
On cross examination, defense counsel started by challenging the state’s evidence
concerning intoxication. Counsel obtained testimony indicating that Dirth checked a form
indicating that there was “no foul play” involved, T-207. Cross-examination also addressed
issues related to boat overloading raised by the prosecution on direct. On direct, the prosecutor
and Marine Patrol witness made repeated reference to the weight limits for the boat. This
occurred despite the fact that there was no evidence that the boat’s weight limit was exceeded by
the passengers present in the vessel at the time of the accident. During cross-examination of
Sergeant Dirth, the following exchange occurred:
Q: And you also talked about the weight limit on the boat was 700
pounds. Do you recall testifying about that?
A: I - - seven persons, and it was either 700 or 900 pounds. I know it’s in
the photo.
Q: And the fact that there may have been more people on the boat than
the weight limit earlier in the day had nothing to do with the accident, did
it?
A: I disagree with you, Attorney Anderson. And the reason for that is, I
think it set an overall tone for the condition of this boat. And if you’re
overloading and you’re having people ride in inappropriate places, and
you don’t have a boating education certificate, you don’t have a proper
registration, it just - - it’s all cumulative.
T- 209 (emphasis added). Dirth’s answer was clearly non-responsive and clearly constituted
improper propensity evidence. Despite the inherently prejudicial and irrelevant nature of the
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response, trial counsel made no objection to the answer, did not move to strike the testimony,
and did not ask for a curative instruction.
Trial counsel also got Dirth to concede that there was no accident reconstruction, no other
witnesses other than the people on the boat at the time of the accident, and no evidence that Mr.
Cable was operating a unreasonable speed under the conditions or that he was operating the boat
erratically. T-210. (Emphasis added).
The defense also questioned Sergeant Dirth about RSA 270-D:7. However, trial counsel
continued to advance the misreading of the statute forwarded by the prosecution on direct.
Cross-examination proceeded as follows:
Q: Right. And the law that you talked about when you were being asked
questions this morning by Mr. Blanchard, that it’s illegal to sit up on the
bow in this area right here, that law applies equally to passengers, too,
doesn’t it?
A: It does.
Q: So it’s not just a matter of that it would be illegal to sit up there if you
were an operator of the boat; it’s illegal to sit up there if you were a
passenger, correct?
A: Yes, it is.
T-212 (Emphasis added). The problem with this line of cross-examination, as will be discussed
further infra, is that the statute does not, in fact, make it a violation to operate a boat with another
person in that position. RSA 270-D:7 only establishes a violation for the act of straddling the
bow or riding on the gunwales.
3. Dirth Redirect
On redirect, the prosecutor asked Dirth whether there was evidence of erratic operation.
Dirth replied:
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Absolutely, there is. I mean, he flew out of the boat. A bow rider is a very
common — a common boat used all over the state. You see them on a
daily basis, and it’s just very — it is just not commonplace to have people
flying out of boats, and I mean, in the marine industry. There would be an
uproar. And you just — those kinds of calls don’t happen.
If I had seen that type of operating happen, I would have stopped the boat
and I would have cited Mr. Cable.
T-220. Although defense counsel previously objected to Dirth’s testimony based on a claim that
Dirth was offering opinion evidence that was not disclosed as the subject of expert testimony,
this answer demanded an immediate objection underscoring the fact that no witnesses saw
anything that could support such an outrageous claim as this notion that Mr. Yerry somehow
went “flying” out of the boat. Neither was forthcoming.
4. Dirth Recross
Rather than confront Dirth about his unsupported exaggeration, defense counsel returned
to the earlier line of cross-examination that was based on an incorrect reading of RSA 270-D:7.
Q: Would you have also cited Mr. Yerry for sitting up there, sir?
A: I don’t know. The operation would have been so egregious, that I
probably would have charged Mr. Cable with what I call — it’s a careless
negligent statute, a misdemeanor. I don’t see that —
Q: The law regarding seating applies equally to passengers, as we
established, correct?
A: It does.
T-220. Thus, defense counsel’s cross-examination of Dirth left the jury with the belief that
either Mr. Yerry or Mr. Cable or both could have been cited for violating RSA 270-D:7, when in
fact, only Mr. Yerry had committed such a violation.
C. Testimony Of Boat Passengers
The first of the boat passengers to testify was Andrew Czachor. T-319. Czachor testified
that at the time Mr. Yerry fell out of the boat, the only people on board were Yerry, Cable,
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Nathan St. Onge, and himself. T-325. Czachor testified that he did not see Mr. Yerry go
overboard, T-323, 340. Czachor did not recall whether the boat was up on plane at the time
Mr. Yerry fell out, T-339, and did not know how fast the boat was going. T-348. He testified
that nothing unusual happened other than Mr. Yerry going overboard, T-340, and that nothing
about the manner in which the boat turned made him lurch to one side. T-349. He testified that,
“Brendon was somewhere in the front of the boat,” but he could not say exactly where. T-354.
He did not know whether Mr. Yerry was standing or sitting. T-354.
The second boat passenger to testify was Nathan St. Onge. T-356. St. Onge testified that
at the time Mr. Yerry fell out of the boat, he was facing backwards toward the engine and
listening to make sure it was running properly. T-360. Earlier in the day, St. Onge had fixed
spark plug wires. T-362-363. The boat was traveling about 20-25 miles per hour at the time. T-
362. Andrew Czachor was sitting in the back facing forward. T-362. At the time Mr. Yerry fell
out of the boat, he was, to the best of St. Onge’s knowledge, sitting in the bow area. T-363. St.
Onge testified that at various times during the day, Mr. Yerry was seated in the bow where the
officer is shown in Exhibit 11. T-363, App. at 40. But St. Onge specifically said he was not able
to testify if that position was where Mr. Yerry was seated when he fell overboard. T-363.
Indeed, at the time of accident, St. Onge could not say for sure where Mr. Yerry was sitting. 364-
65. The accident occurred after the boat had been under way for only about 45-60 seconds. T-
383. Mr. Yerry had told Mr Cable to head back to the dock. T-383-84. Mr. Cable made the
slow, gradual turn that Mr. Yerry had called for. T-385. St. Onge described the waves as, “some
residual rollers for something, another boat out there, thinking nothing of it….” T-385.
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D. Testimony of Eric Cable
Eric Cable waived his rights under the Fifth Amendment and testified at his trial. He
described the incident as follows:
A. Nate drove us out to the center of the lake and he said he needed to
work on the engine. So we stopped and Nate started working on the
engine. And we were just socializing and talking amongst us, and at that
point Nate said that he had fixed it and he started to drive. And he got the
boat up on plane and he turned to me and said, “The boat is running fine.
Do you want to take over?” And I said “Sure.” And he said he wanted to
listen to the engine for any further problem.
Q. So where was Brendan seated at this time when you took over?
A. He was sitting in the front bow of the boat, on the right side, the front
of the gun - - gunwale or in the carpeted section.
Q. Was he actually in the middle of the carpeted section or off to the side
of the carpeted section?
A. He was a little to the right of the carpeted section.
Q. Was his - - was his behind touching the carpeted section at all, do you
recall?
A. Yes, he behind was on the carpeted section.
Q. All right. What happened after that?
A. Brendan - - Brendan said, “Do you want to go back to shore? I think
the girls will be back. Do you want to turn around and to meet up with
them?” At which - -
Q. What did you say to that?
A. I said, “Sure. Do you want to go now?” And he said - - he said,
“Yeah, man.”
Q. So how fast were you going at this point?
A. Probably between 15 to 20 miles an hour.
Q. Did you think that that was an excessive speed, or did you think you
were speeding?
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A. No, I did not.
Q. Did you proceed to make a turn back towards the McGovern camp?
A. Yes, I made a left turn to head back to Johnny’s camp.
Q. And what type of a turn was it; was it a long, gradual turn, or was is a
sharp turn, or - -
A. I would say it was a normal turn. Is that what you said? It was just a
normal turn.
Q. And at this time, Nate was back looking at the engine or listening to
the engine?
A. Yes, he was.
Q. And Andrew was also behind you?
A. Yes.
Q. And what happened next?
A. We went over some small waves that were just created, you know, by
normal boat traffic, and it caused a little bit of, you know, the boat to pitch
and yaw, or whatever they call it. And I think Brendan lost his balance,
because he fell over. And all I saw was his legs out of the corner of my
eye because I was - - I was turning and looking off more to the left than I
was straight forward at him, and that was the last time I ever saw him.
T-630-632.
E. State’s Closing Argument
In its closing, the state continued to bang the drum of propensity evidence. Without
objection from trial counsel, the prosecutor argued:
But that isn’t enough, he also doesn’t even have a boating certificate. Is
that acceptable behavior? He’s out there boating with a certificate. Never
took a boater safety education course. Why is that important? … It’s a
crime. It’s unlawful to operate a boat with somebody sitting on the bow.
Of course he would have known that it he had taken that course, right?
T-758. Continuing, the prosecutor argued:
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But you know what, failure to know the law is not an excuse either.
You’re assumed as a member of this society that you’re going to conform
your behavior to what we all say in acceptable, it’s not even close.
T-762. Thus, the prosecutor appears to want to take Mr. Cable to task for his alleged failure to
be aware of a law that the prosecutor himself has plainly misrepresented to the jury.
In an attempt to at least pay lip service to his burden to prove causation, the prosecutor
argued:
Twenty miles an hour on a boat is fast. Twenty miles per hour in a car
may not seem that fast, but a boat is a whole different story than a car.
You’re dealing with an extra dimension up and down the water. You’re
dealing with the other boats. Boats aren’t as easy to maneuver as cars.
You don’t have marked lanes. Things happen a little quicker. You’re
dealing with the - - with the wakes of other boats. But that’s on the
Defendant. That’s on the Defendant. It’s your responsibility as an
operator to ensure the safety of your passengers. You don’t take a turn on
plane if there is waves coming that - - he said he looked and he saw the
waves, they weren’t a problem.
T-766. There was no expert or other testimony to support the claim that twenty miles per hour is
“fast” or that “things happen faster” in a boat or that “you don’t take a turn on plane if there is
waves coming in.” Defense counsel did not object to this argument.
Finally, returning to the erroneous statement of the law upon which the prosecutor had
built his case, he incorrectly argued:
It’s illegal to operate a boat with somebody in Brendan’s position. It’s the
Defendant’s responsibility not to do it. Brendan knew the Defendant was
going to turn the boat. He still went off. The Defendant is intoxicated,
which is negligent per se. He’s making bad judgments because he’s
impaired. It’s a bad judgment to even be out in the water at this point of
the day, his level of intoxication. He hit a wake, he says. He should have
seen it or perceived it before he turned into it at full speed, if it even was
there.
Pg. 775 (Emphasis added). These legal statements are untrue and were presented the jury
without objection.
14
Then finally turning to his burden to prove not only that Mr. Cable was impaired by
alcohol, but also that any impairment caused Mr. Yerry’s death, the prosecutor argued:
Then we have to prove that the State - - for either charge we have to prove
that the Defendant caused the death of Brendan Yerry. Now that’s defined
- - causation is defined by law as well.
In determining whether causation has been proved, keep in mind that the
Defendant’s conduct may not be the sole cause of the death. Okay? I
submit to you it is the sole cause of the death, as you heard in the
Defendant’s own words, that Brendan Yerry did nothing - - did nothing to
contribute to this. Nothing. And we also know that if the boat isn’t
moving, Brendan doesn’t die. And so the Defendant is the actual sole
reason for the death, but he doesn’t have to be the sole reason. If you find
beyond a reasonable doubt the Defendant’s conduct was a substantial
factor in bringing about the result, the element of causation is proven, even
though other factors may have contributed to the result. That’s very
important.
The Defendant’s actions do not have to be the sole cause. I submit to you
they are here, but they don’t have to be. Factors other than the
Defendant’s conduct that may have contributed to the death will break the
causal link and defeat the element of causation only when you find that
they were the sole substantial cause of the death. So you would have to
find in this case - - if the State has proved on all the other elements to you
involving causation, you would have to find that Brendan Yerry caused his
own death and was the sole substantial cause of his own death, which you
all know isn’t true.
And keep in mind that it’s the State’s burden to prove both that the
Defendant’s conduct was a substantial factor, and that other conduct was
not the sole substantial cause of the death. Well, we have that here, ladies
and gentlemen.
T-775-776.
V. SUMMARY OF THE ARGUMENT
Two principal issues were disputed at trial were whether Eric Cable was impaired by the
consumption of alcohol at the time of the accident2 and whether his conduct was the legal cause
2 Mr. Cable testified in his own defense that he did not believe that his ability to operate the boat was
impaired by the consumption of alcohol. Mr. Cable does not concede that fact. However, for the purpose
15
of his friend’s death. This appeal addresses two issues: (1) whether the state presented sufficient
evidence of causation to support conviction; and (2) whether trial counsel’s failure to object to
incorrect statements of law and the introduction of irrelevant, unduly prejudicial evidence
constituted ineffective assistance of counsel requiring Mr. Cable to receive a new trial.
Throughout the trial, it was abundantly clear that the prosecutor sought to compensate for
the absence of causation evidence by impugning Mr. Cable’s character and by infusing the case
with irrelevant, highly prejudicial evidence. None of the state’s witnesses saw Mr. Yerry fall out
of the boat, so there was no direct evidence of how the accident occurred. Further, there was no
meaningful explanation concerning what role Mr. Cable’s alleged impairment played in the
death of Mr. Yerry. To compensate for the lack of causation evidence, the state relied on
improper propensity evidence. This occurred without objection from defense counsel, and was
clearly intended to distract the jury from the utter lack of causation evidence.
First, without objection from defense counsel, the prosecutor and members of New
Hampshire Marine Patrol repeatedly misstated and misapplied New Hampshire boating safety
law, RSA 270-D:7. The defense not only failed to object to the misstatement of the law, but trial
counsel actually attempted to examine witnesses based on a completely erroneous and obvious
misreading of the short statute. Second, without objection from defense counsel, the prosecutor
repeatedly asserted the highly prejudicial and completely irrelevant fact that Mr. Cable did not
have a boating license and never took the boating safety course.3 Third, without objection from
of this appeal, Mr. Cable does not contest that the state introduced sufficient evidence that a reasonable
juror could have found that his operation of the vessel was impaired by alcohol.
3 Mr. Cable was charged with operating a boat without a certificate, a violation. To the extent that the
state may argue that the evidence was relevant to prove matters being decided by the judge, Mr. Cable
submitted at affidavit, App. at 37, stating that the question of pleading guilty to the violations, and thereby
taking the question away from the fact finder, was never offered to him by his trial counsel. This also
16
defense counsel, the prosecutor repeatedly elicited highly prejudicial and completely irrelevant
testimony concerning the fact that the boat was not properly registered in New Hampshire.
Fourth, without objection, the prosecutor elicited highly prejudicial and completely irrelevant
testimony that the boat had been operated while overloaded earlier in the day, despite the fact
that the boat clearly was not overloaded at the time of the accident. Defense counsel’s failure to
object to clearly irrelevant and highly prejudicial evidence was constitutionally ineffective
assistance of counsel.
This evidence should have been excluded under either N.H.R.Ev. 403 or 404(b).
Aggravating the fact that defense counsel failed to object to this evidence, the prosecutor,
recognizing the shortage of competent evidence to prove causation, grossly over-relied on this
irrelevant propensity evidence. Had counsel performed in a constitutionally satisfactory manner,
the state would likely have failed to meet its burden of proof as to causation and the outcome of
the trial would have been different. The conviction in this matter should be vacated and a new
trial ordered.
VI. ARGUMENT
A. The State Produced Insufficient Evidence To Meet Its Burden Of Proof
On The Element Of Causation
The defendant was charged with two counts of negligent homicide. RSA 630:3. Both
indictments alleged that the defendant did negligently cause the death of another while operating
a boat, however, the actus reus which was alleged to constitute negligence was different in each
indictment. App. at 1, 2. The first indictment (Charge ID: 774934C) alleged that Mr. Cable
caused the death by operating the boat while Mr. Yerry was riding on the gunwales or straddling
the bow. The second indictment (Charge ID:774935C) alleged that Mr. Cable allowed Mr.
constituted ineffective assistance of counsel and is subsumed in the issues concerning the introduction of
irrelevant, prejudicial evidence.
17
Yerry to “ride on the gunwales or straddle the bow while the boat was on plane.” The
indictment does not state how this action caused Mr. Yerry’s death.
At the close of the state’s case, defense counsel moved to dismiss both charges, arguing
as follows:
[T]here’s no evidence that his — that he engaged in any behavior that
caused the death of Brendan Yerry because of his intoxication…. And
precisely, there’s no evidence that he was traveling at an excessive speed.
There’s no evidence that the turn that he made was somehow negligent or
causative[sic] of Brendan Yerry to fall off the boat. The State is left with
the theory that he allowed Brendan Yerry to sit in a position that was
dangerous, however, the statute that governs that …puts the onus for a
violation, under the circumstances of this case, on the passenger, not the
operator of the boat. It clearly says in the first clause that no person shall
operate a motorboat…or ride as a passenger in a motorboat while sitting
on either the starboard or port gunwales or the transom.4 He—Eric Cable
did not operate a motor boat while sitting on the gunwales when
[indiscernable]. It was the passenger that hit it, not Eric Cable.
And the last clause, “And no person shall straddle the bow while the motor
boat is in operation.” That’s the passenger, not the operator.
So under that statute, it’s clear that it’s not a violation on the operator; it’s
a violation on the passenger.
And under this circumstances, as a matter of law, there’s no way that the
State can establish the negligent homicide, the DWI. And similarly, with
the Class B felony negligent homicide charge, that that is what they’re left
with in this case, permitting him to sit up on the bow. And under the
terms of that statute, as a matter of law, Eric Cable cannot be faulted.
T 569-570. The prosecutor responded to this by arguing that, “the defendant’s actions put him
off the boat. He struck him with the boat. The fact that he even operated the boat with that law
shows his intoxication, so we can prove both negligence which is if they find he was intoxicated
as per se, and we can prove causation because he struck him with the boat, we have both.” Id.
Defense counsel then argued:
4 The transcript contains an apparent error. It is clear that counsel was at this time reading the statute
word for word, and the statutory language is included above. The precise transcript section reads: “no
person shall operate a motor boat … or ride as a passenger in a motor boat while sitting on the end of the
starboard or the boat gunwales.” T-569.
18
Your Honor, the striking of the boat, their own evidence shows that there’s
a one second when you’re going 20 miles an hour which is not in violation
of the speed limit, so that’s not negligence that he got struck by the boat.
The issues is what caused him to fall off, and there’s no evidence that any
action of the Defendant cause him to fall off the boat. And the statute that
governs that puts the onus on the passenger.
T-570. The trial court denied the motion to dismiss. T-571.
In order to find reversible error on the part of the trial court, the reviewing court must
examine the evidence and all reasonable inferences arising therefrom in a manner favorable to
the state. State v. Pittera, 139 N.H. 257, 260 (1994). The state had the burden of proving,
beyond a reasonable doubt, that the defendant failed “to become aware of a substantial and
unjustifiable risk that the material element exists or will result from his conduct. The risk must
be of such a nature and degree that his failure to become aware of it constitutes a gross deviation
from the conduct that a reasonable person would observe in the situation.” RSA 626:2, II(d).
“In order to sustain a conviction for negligent homicide, the State must establish a causal
connection between the person’s driving under the influence…and the resulting death.” State v.
Wong, 125 N.H. 610, 620 (1984). “When the evidence presented to prove an element of the
offense is solely circumstantial, that evidence must exclude all rational conclusions except
guilt.’” State v. Duguay, 142 N.H. 221, 225 (1997)(citing State v. Laudarowicz, 142 N.H. 1, 5
(1997)); see also State v. Wilmot, 163 N.H. 148, 154 (2012).
There was no testimony from any witness who saw how Mr. Yerry fell into the water.
No testimony concerning Mr. Cable’s actual operation of the boat suggested that the operation in
any way constituted a gross deviation from the conduct that a reasonable person would observe.
Thus, in order to meet its burden of proving that some act of Mr. Cable caused Mr. Yerry to fall
into the water, the state relied heavily on evidence that Mr. Cable violated New Hampshire
boating laws. However, the act that the state relied upon to prove this was, in fact, not a
19
violation of New Hampshire boating laws. The statute the state relied upon, RSA 270-D:7,
areads as follows:
270-D:7 Riding on Gunwales, Bow and Transom. – No person shall
operate a motorboat or ride as a passenger in a motorboat while sitting on
either the starboard or port gunwales or the transom, and no person shall
straddle the bow while the motorboat is in operation underway.
A plain reading of the statute clearly establishes that the state failed to present any evidence that
Mr. Cable violated this law. The statute contains two clauses. The first clause establishes a
violation for both operators and passengers of motorboats. For both classes of persons, a
violation occurs if such person sits on either the starboard or port gunwales or the transom.
The nautical definition of “transom” is, “a flat or nearly flat surface at the stern of a
vessel.” American Heritage College Dictionary (4th Ed. 2002). The nautical definition of
“gunwale” is “the upper edge of the side of a vessel.” Id. (Emphasis added). This definition of
“transom” is consistent with the context of the statute in which that word is used. The statute
clearly refers to “either the starboard or port gunwales,” plainly indicating the legislative intent
that the statute prohibit people from operating motorboats while sitting on the sides of the boat.
The second clause is clearly independent from the first clause, as it is set off by both a
comma and the conjunction “and.” The second clause plainly prohibits individuals from
straddling the bow while a motorboat is in operation underway. However, contrary to the
repeated contention advanced by the state, it plainly does not prohibit a person from operating a
motorboat while another person is straddling the bow.
It is black letter law that, when construing a statute, the Court will “interpret legislative
intent from the statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Kassotis v. Town of Fitzwilliam,
166 N.H. 648, 650 (2014)(Emphasis added)(quoting Town of Newbury v. N.H. Fish & Game
20
Dept., 165 N.H. 142, 144 (2013)). While the state may argue that the statute intended to make it
a violation to operate a boat while another person was riding on the gunwale or straddling the
bow, the law clearly does not do this. Thus, the state offered no evidence that Mr. Cable, as the
operator of the motorboat, committed a violation of New Hampshire boating laws at the time Mr.
Yerry fell into the water.
All that the state was able to establish is that Mr. Cable was operating the boat, that the
boat hit some small waves, that Mr. Yerry was seated somewhere near the bow, and that he fell
into the water and died. The state utterly failed to introduce any evidence that Mr. Cable
committed any unlawful or inappropriate act that caused Mr. Yerry to fall into the water,
resulting in his death. Thus, the convictions should be reversed.
VII. CABLE WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL
A. Ineffective Assistant Of Counsel Law
A criminal defendant’s right to effective assistance of counsel is the same under Part I,
Article 15 of the New Hampshire Constitution and the 6th and 14th Amendments to the United
States Constitution. State v. Thompson, 161 N.H. 507, 528 (2011). Under both Constitutions, a
criminal defendant is entitled to reasonably competent assistance of counsel. State v. Whittaker,
158 N.H. 762, 768 (2009); Strickland v. Washington, 466 U.S. 668 (1984). “The State and
Federal Constitutions guarantee a criminal defendant reasonably competent assistance of
counsel.” Id. (quoting State v. Sharkey, 155 N.H. 638, 640 (2007)). This Court has stated that it
will “first examine the constitutional competency of counsel’s performance under the State
Constitution, and rely on federal case law only for guidance.” State v. Thompson, 161 N.H. at
528 (citing State v. Brown, 160 N.H. 408, 412 (2010)); see also, Strickland, 466 U.S. at 686.
21
“To prevail upon a claim for ineffective assistance of counsel, a defendant must show,
‘first, that counsel’s representation was constitutionally deficient and, second, that counsel’s
deficient performance actually prejudiced the outcome of the case. Id. To meet the first prong
of this test, the defendant “must show that counsel’s representation fell below an objection
standard of reasonableness.” Id. (quoting Strickland, 466 U.S. at 688). To meet the second
prong, the defendant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
The Court may afford a high degree of deference to the strategic decisions of trial
counsel, bearing in mind the limitless variety of strategic and tactical decisions that counsel must
make. Id. Accordingly, “a fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the
time.” Id. (quotation and brackets omitted); Strickland, 644 U.S. at 689.
To satisfy the second prong, the prejudice prong, the defendant must establish that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Whittaker, at 158 N.H. at 768; Strickland, 466 U.S. at
694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (quotation omitted). “In making this determination, [a court must] consider the
totality of the evidence presented at trial.” Id. (quotation omitted).
B. Trial Counsel’s Performance Was Objectively Unreasonable.
1. Without Objection, Defense Counsel Permitted The Prosecutor And Marine
Patrol Officers To Repeatedly Misstate New Hampshire Boating Laws.
22
The prosecutor and marine patrol officials repeatedly and without objection asserted that
at the time Mr. Yerry fell out of the boat, Mr. Cable was violating RSA 270-D:7. As the
transcript excerpts indicate, defense counsel never objected that the testimony was improper
expert testimony about the status of the law. Defense counsel never objected to the state’s
plainly incorrect interpretation of the law.5 Indeed, as the bench conference supra at 17-19, T-
187-188 reflects, the court permitted the testimony under the incorrect assumption that the
questions and answers by the prosecutor and Sergeant Dirth accurately reflected the law. Indeed,
it is clear that counsel made no attempt to point out actual language of the statute to the trial
judge. The trial judge, remarkably, simply assumed that, “there’s a regulation and/or of RSA,”
that the prosecution was referring to. In fact, there is no statute that prohibits Mr. Cable from
engaging in the conduct referred to. The prosecutor was misreading the statute. It is unclear
why the trial court appeared to have not read the statute or why defense counsel made no effort
to correct either.
On cross examination, defense counsel questioned Sergeant Dirth about the fact that Mr.
Yerry was committing a violation. However, defense counsel never questioned marine patrol
officers about the plain meaning of the statute and never requested a curative instruction from the
court.
The prosecutor’s closing argument hammered away at the incorrect legal argument,
completely without objection from defense counsel. As set forth in the facts section of this brief,
the prosecutor incorrectly argued repeatedly during closing argument that it was illegal for Mr.
Cable to operate the boat when Mr. Yerry was situated in the bow:
5 Defense counsel did object to the expert witness invading the province of the court by testifying as to
what the law is. That objection was overruled based upon the court’s assumption that the testimony was
correct as to the law. Defense counsel did not challenge the state’s interpretation of the law. See supra at
17-19.
23
It’s a crime. It’s unlawful to operate a boat with somebody sitting on the
bow. T-758.
…which as you heard is illegal to operate a boat with somebody sitting
there. T-764:6-19.
It’s illegal to operate a boat with somebody in Brendan’s position. It’s the
Defendant’s responsibility not to do it.” T-769.
These assertions simply are not true.
In State v. Thompson, 161 N.H. 507 (2011), this Court found that the performance of trial
counsel failed to meet the standards required by Part I, Article 15 of the New Hampshire
Constitution. Like this case, Thompson involved a failure of defense counsel to object to
inadmissible testimony. In Thompson the court could find no rational basis to believe that trial
counsel’s decision not to object represented a decision that could rational be considered trial
strategy. The same is true here. The decision of whether to permit the prosecution from
repeatedly accusing Mr. Cable of committing a violation based on a statute that does not, in fact,
proscribe the conduct he engaged in, is a decision with no strategic upside for Mr. Cable.
2. Without Objection, The Prosecutor And New Hampshire Marine Patrol
Repeatedly Introduced Irrelevant And Highly Prejudicial And
Inadmissible Propensity Evidence That Mr. Cable Did Not Have A
Boating License, Did Not Take A Boater Safety Course, And Did Not
Properly Register The Boat.
The prosecutor repeatedly elicited testimony of completely irrelevant bad acts that cast
Mr. Cable in a negative light and encouraged the jury to find him guilty through improper
inferences based on the belief that Mr. Cable had a propensity to be careless and to break the
law. These were not simply random or occasional stray remarks by prosecution witnesses.
Rather, the repeated, systematic, and highly emphasized references to these irrelevant, “other”
acts were intended to elicit negative feelings and encourage the jury to believe that Mr. Cable
had a propensity to violate the law.
24
a. Defense Counsel Failed To Object To Evidence That Mr. Cable Did Not Take A
Safety Class And Did Not Have A Permit To Operate The Boat.
The prosecutor repeatedly referenced the irrelevant fact that Mr. Cable did not have a
boating license. This evidence is completely irrelevant to the question of negligence and should
have been excluded, as it was not relevant and more prejudicial that probative. Further, the
repeated nature of the prosecutor’s efforts to inject this irrelevant evidence into the trial clearly
prejudiced Mr. Cable.
In the state’s opening, where the prosecutor said, “[a]nd the interesting thing is that even
though he owns this boat, okay, he doesn’t have a boating license. He’s never had a boating
course. T-116. The prosecutor returned to that line of attacked with Sergeant Dirth, who testified
that “it’s illegal to operate about boat…without the safety education,” T-200, and yet again in
closing, where the prosecutor argued, “he also doesn’t have a boating certificate. Is that
acceptable behavior,” T-758, and “he doesn’t know what he’s doing on the water…he doesn’t
even have a boater’s license.” T-769.
Courts in numerous jurisdictions have held that the absence of a driving license, whether
never issued or suspended for misconduct, is not relevant evidence to prove that a driver
operated a motor vehicle negligently or recklessly on a particular occasion. The introduction of
testimony and repeated argument concerning Mr. Cable’s lack of a boating license, lack of
attendance at a safe boater class, and lack of registration of the boat, created the impression that
he simply had a propensity not to follow rules.
In Capwell v. State of Alaska, 823 P.2d 1250 (1991), the defendant was convicted of
negligent homicide. The trial judge had allowed evidence that the defendant’s driver’s license
had been suspended due to non-payment of a judgment entered against him in an earlier traffic
accident case. The defendant claimed to be suffering chest pains at the time he struck and killed
25
a pedestrian. The trial court allowed evidence of the defendant’s license suspension to be
admitted on the theory that the suspended license gave him motive to lie about the chest pains.6
On appeal, the court found that it was error to admit evidence that the defendant’s license was
suspended. The court held that, “the possibility that evidence of Capwell’s license suspension
might unfairly prejudice the jury’s deliberations - that the jury, hearing evidence indicating that
Capwell had been at fault in a prior traffic accident, might assume from this that he had probably
been negligent in this case - outweighed the minimal incremental probative value of the
evidence.” Id. at 1253.
The case Lewek v. State of Florida, 702 So.2d 527 (Fl.1997), was a double negligent
homicide motor vehicle case. Like this case, the trial court in the Lewek case allowed the
prosecution to introduce evidence that the defendant lacked a driver’s license because he failed
to attend driving school. Id at 533. On appeal, the Florida appellate court reversed, finding that
evidence of a lack of driving license should not have been admitted. The court held that
“evidence of the Defendant’s suspended license for failure to attend driving school is irrelevant
to the material issue of whether the Defendant knowingly drove under circumstances likely to
cause death or great bodily harm to others.” Id.
In State v. Bakka, 826 A.2d 604, 611 (N.J. App. 2003), the appellate court found that the
trial court improperly instructed the jury that driving with a revoked license at the time of the
accident, without specific reasons for that revocation, was probative or recklessness. Reversing
the conviction, the court held that a license revocation along with the reasons for that revocation
may be probative of recklessness, but only when the defendant is charged with unsafe conduct
identical or similar to that which resulted in the revocation. Id. at 547. “Unlike driving while
6 Notably, in the present case, defense counsel’s failure to object never caused the prosecutor to advance
any theory of relevance whatsoever.
26
intoxicated, speeding, or some other conduct form which a reckless sate of mind may be inferred
circumstantially, the mere fact that a defendant is an unlicensed driver does not by itself suggest
an awareness of risk.” Id. at 546.
In State v. Hatfield, 2007 WL 456868 (Ohio App.11 Dist.), the Ohio Appellate court
reversed convictions for vehicular homicide and aggravated vehicular homicide, finding that,
“the trial court’s admission of evidence that [the defendant] was driving under suspension at the
time of the accident, as well as his prior record of driving suspensions, was reversible error since
the evidence was not relevant to the element of recklessness.” Id. at 10. The court concluded
that “evidence of [the defendant’s] multiple license suspensions is in no way probative of [his]
alleged recklessness is causing the victim’s death. The introduction of this evidence was
improper.” Id.
In this case, defense counsel’s failure to object meant that the court was never asked to
consider whether there was an inferential link between the lack of boating license and non-
attendance at a boating safety course and the conduct complained of. Based on the evidence at
trial, had such an inquiry been made, the court would have found that the lack of a boating
license was irrelevant. Mr. Cable’s license was not suspended for conduct he previously
engaged it. He simply never obtained one. Under these circumstances, the evidence would have
been excluded, and yet another piece of prejudicial yet irrelevant evidence would not have been
given to the jury for consideration.
b. Defense Counsel Failed To Object To Irrelevant And Harmful Evidence That The
Boat Was Not Properly Registered.
As with the fact that Mr. Cable lacked a boating license, the prosecutor also repeatedly
and purposefully introduced evidence that Mr. Cable’s boat was not properly registered in New
Hampshire. The state’s opening commented that, “the boat, it is not even validly registered, or
27
not displaying the correct registration.” T-117. During the direct of Sergeant Dirth, the
prosecutor led the witness on an extended exchange discussing the details of the hull
identification number on the boat. T-200-201.
The question of whether the boat was properly registered or not is not relevant to the
question of whether Mr. Cable operated the boat negligently. However, repeated and highlighted
testimony and argument focussed on this issue easily could have had the effect of
communicating to the jury the idea that Mr. Cable had a propensity to violate the laws or a
tendency to fail to live up to his legal obligations. For this reason, defense counsel should have
objected to this evidence.
c. Defense Counsel Failed To Object To Irrelevant And Prejudicial
Evidence Of Conduct Occurring Earlier In The Day
There was no evidence that the boat’s weight limit was exceeded by the passengers
present in the vessel at the time of the accident. However, without objection, the prosecutor and
marine patrol witness made repeated reference to the boating weight limits for the boat Mr.
Cable was operating, claiming that earlier in the day. This occurred, without objection despite
the fact that during cross-examination of Sergeant Dirth, the witness expressly stated that this
evidence was truly relevant only to establish the “tone” on the boat. Supra at 7, T-209. Despite
the inherently prejudicial and irrelevant nature of the response, trial counsel made no objection to
the answer and did not move to strike the testimony. Thus, this succinct and highly damaging
encapsulation of the State’s propensity-toward-negligence case was allowed to be received by
the jury and considered as evidence. It should have been excluded entirely.
This use of all of this evidence violated N.H.R.Ev. 401, 402, 403, and 404(b). Pursuant
to N.H.R.Ev. 401 and 402, irrelevant evidence is inadmissible. “Relevant evidence” means
evidence having any tendency to make the existence of any fact that is of consequence to the
28
determination of the action more or less probable. Pursuant to N.H.R.Ev. 403, “although 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.” Pursuant to N.H.R.Ev.
404(b), “evidence of other wrongs, crimes or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith.”
“The purpose of Rule 404(b) in a criminal trial is to ensure that the defendant is tried on
the merits of the crime as charged and to prevent a conviction based on evidence of other crimes
or wrongs.” State v. Davidson, 163 N.H. 462, 469 (2012)(quoting State v. McGlew, 139 N.H.
505, 509 (1995)(quotations omitted). The rule reflects “long-established notions of fair play and
due process, which forbid judging a person on the basis of innuendoes arising from conduct
which is irrelevant to the charges for which he or she is presently standing trial.” Id. (quoting
United States v. Cortiho-Diaz, 875 F.2d 13, 15 (1st Cir.1989)).
The evidence relied upon and argued extensively by the state was not relevant to the
issues contested at trial. The evidence was pure propensity evidence. Indeed, unlike the typical
case in which the prosecution seeks to establish plan, motive, intent, or some other permissible
purpose under N.H.R.Ev. 404(b), in this case the prosecution’s principle law enforcement
witness expressly stated on cross-examination that the true reason for the evidence of other acts
to go before the jury was to establish that the prior acts “set an overall tone,” for the events of
the day. T-209. “Tone,” perhaps more properly described as “context,” is not a permissible use
of other acts evidence, unless the evidence has “some direct bearing on an issue actually in
dispute, apart from its tendency to show propensity.” State v. Davidson, 163 N.H. 462, 469
(2012).
29
The fact that Mr. Cable did not have a license told the jury nothing about his operation of
the boat at the time of the accident. The fact that the boat was unregistered told the jury nothing
about his operation of the boat at the time of the accident. The fact that he had not taken a safe
boating class told the jury nothing about his operation of the boat at the time of the accident.
And the fact that the boat may have been operated by someone in the group while overloaded
earlier in the day told the jury nothing about the operation of the boat at the time of the accident.
Rather, that testimony merely created the inference that Mr. Cable was not a careful person, and
suggested that at the time Mr. Yerry fell into the water, he must have been acting in a an
uncareful, negligent manner. This is an impermissible inference to allow the jury to draw and
requires that Mr. Cable’s conviction be set aside and a new trial be ordered.
The nature of the propensity evidence concerning the fact that the boat had been
overloaded earlier in the day was also unfairly prejudicial to Mr. Cable. Evidence that Mr. Cable
was operating the boat negligently hours before the accident would have been found to be
inadmissible had defense counsel challenged it. Hewlett v. State of Mississippi, 607 So.2d 1097,
1104 (Miss.1992)(testimony based on observation three miles from car crash scene too remote to
be of probative value of how defendant was driving at time of accident, but admissible where
witness saw driving continue at time of accident). Unlike the Hewlett case, however, in this case
the prosecutor and state’s witnesses knew that the boat was not, in fact, overloaded at the time of
the accident. Despite this knowledge, Sergeant Dirth explicitly injected propensity evidence into
the proceeding by giving a non-responsive answer to defense counsel’s questioning. Clearly,
defense counsel’s failure to object to this was deficient performance.
C. Mr. Cable Was Prejudiced By The Admission Of Irrelevant Evidence That Was Plainly
And Substantially More Prejudicial Than Probative.
30
Evidence of prior bad acts is inherently prejudicial and carries substantial weight with the
jury.” State v. Michaud, 135 N.H. 723, 728 (1992)(Emphasis added)(quoting State v. Hickey,
129 N.H. 53, 62, 523 A.2d 60, 66 (1986)). The inherently prejudicial nature of prior bad acts
evidence has caused this court to impose strict procedural requirements on the government when
it seeks to introduce this kind of evidence at trial. See, State v. Mendola, 160 N.H. 550, 557-58
(2010). Before introducing evidence of other wrongs or acts, this Court has required the state:
to specify the purpose for which the evidence is offered and articulate the
precise chain of reasoning by which it will tend to prove or disprove an
issue actually in dispute, without relying upon forbidden inferences of
predisposition, character, or propensity. To be relevant, other bad acts
must be in some significant way connected to material events constituting
the crime charged and not so remote in time as to eliminate the nexus.
Id. (emphasis added)(quoting State v. Beltran, 153 N.H. 643, 647 (2006)).
The fighting issue in the trial in this matter was whether Mr. Cable’s alleged negligence
was the legal cause of Mr. Yerry’s death. Absent testimony from witnesses who could describe
how Mr. Yerry fell into the water, the prosecutor had to rely heavily on the improperly admitted
propensity evidence. Introduction of this evidence prejudiced Mr. Cable’s ability to get a fair
trial. The mischaracterization of RSA 270-D:7, improper reference to the fact that he did not
have a license or take a safe boater course, improper reference to the fact that the boat was
unregistered, and improper reference to prior overloading of the boat, were such an
overwhelming part of the prosecutor’s presentation of the evidence that it undermined the
confidence we can have in the outcome of the trial.
Defense counsel’s failure to object meant that the state was never required to set forth the
“precise chain of reasoning” by which the lack of a license, failure to take the safe boating
course, and prior operation of the boat while it was overloaded, tended to prove or disprove that
Mr. Cable engaged in conduct that caused Mr. Yerry’s death. The record reflects only that the
31
principle prosecution witness stated that the evidence established “context.” However, as this
Court has stated, “[c]ontext … is merely a synonym for propensity.” State v. Melcher, 140 N.H.
823, 830 (1996)(internal citation omitted).
The introduction of inherently prejudicial evidence having nothing to do with contested
issues undermines confidence in the jury verdict in this case.
VIII. CONCLUSION
Mr. Cable should be afforded a new trial in which the State is forced to meet its burden
through competent evidence, and without relying improperly on the crutch of the torrent of
propensity evidence that a reasonable person would believe carried the burden of proof.
IX. REQUEST FOR ORAL ARGUMENT
Mr. Cable hereby requests that the Court allow him fifteen (15) minutes oral argument
and designates Richard J. Lehmann, Esq., as the attorney to be heard.
X. CERTIFICATION OF ATTACHMENT OF APPEALED DECISION
I hereby certify that the appealed decision is in writing and appended to the Brief.
RESPECTFULLY SUBMITTED,
ERIC CABLE
By his attorneys,
DOUGLAS, LEONARD & GARVEY, P.C.
Dated: September 28, 2015 ____________________________________
Richard J. Lehmann (Bar No. 9339)
14 South Street
Concord, N.H. 03301
(603) 224-1988
32
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been mailed by first-class mail this 28th
day of September, 2015 to Stephen D. Fuller, Esq., Office of the Attorney General, 33 Capitol
Street, Concord, NH 03301.
__________________________________
Richard J. Lehmann