Man's Prison Sentence Sparks Anger In Community (NH)

[Rob Boudrie]

This is the downside of "mandatory sentence for a gun crime". It sounds good because people are thinking about muggings, home invasion, holdups, etc... but totally breaks down when there is an offense that meets the legal guideline but results in nonsense. I remember a case n the midwest (I think it was KS) where someone got a few years for shooting out the tires of some who was burgling his house - conviction for gun crime, mandatory sentence. The judge even pointed out he would not be bound to send the defendant to jail if he had actually killed the criminals with a non-gun weapon.

Mandatory sentencing for "gun crimes" also can be used to deprive someone of the right to a trial. Use a gun in self defense, even without firing it? The prospect of conviction for any lesser charge triggering a mandatory sentence can coerce a plea bargain out of even the most innocent of defendants.

 

[strangenh]

Appears NH has resolved this issue moving forward - now we just need to define what constitutes a threat.

http://www.gencourt.state.nh.us/legislation/2010/HB0160.html

Mallard, unfortunately that bill (which goes into effect as law Jan 1) only covers situations in which the person displaying the firearm was facing a threat "which would be considered by a reasonable person as likely to cause serious bodily injury or death". Which was not the issue in this case.

 

[SteelShooter]

Some additional information on the accuser

Christine Harris...A woman...previously convicted and sentenced to six months in prison on animal cruelty charges in Salem District Court... Subsequently moves to South Carolina where she is now presently facing forty-four counts of animal cruelty.
People who "collect" or "keep" large numbers of animals are, according to Dr. Randy O. Frost, PhD, "Animal Hoarders." "People who hoard animals suffer from a highly focused form of delusional disorder.,"

NH Insider

 

[garandman]

Lengthy article detailing the events that lead to the case in the Nashua Telegraph. Taken with info about the accuser, what a mess.

Records suggest Bird’s accuser stumbled into a heated dispute

 

[calsdad]

"Privacy Freak".

There's a new one.

In a governmental system and society overtaken by socialism - anybody who actually wants to retain their earned property - and not have their life intruded upon by others - at the others' whim - is a "privacy freak".


It's sort of the same thing has how the commies in the Soviet Union used to label anybody who disagreed with the way things were being run as having a mental disorder - so they could ship their ass off to Siberia.

Is this guy going to a prison way up near the Canadian border?

 

[calsdad]

Yes, privacy freak. Thats what I'd call someone who lines his driveway with over a dozen no trespassing signs.

And she's an IDIOT for ignoring a dozen no trespassing signs. Good god. Wouldn't a normal person think, hmm maybe I should go to the next house.

He lined the driveway with no trespassing signs - to make a point. For the EXACT reason that people like this woman exist in the world. Ignorant t-watts who can't be bothered to read. People ignore no trespassing signs constantly. Put up 12 of them in a row - and it's sort hard to say - as a trespasser - that you didn't see the damn sign.

I don't see that as being somebody who is a privacy freak - I see that as somebody who has come to the realization that he lives in a world full of people who don't effing listen and/or don't effing care about other people's property.

 

[strangenh]

I don't see that as being somebody who is a privacy freak - I see that as somebody who has come to the realization that he lives in a world full of people who don't effing listen and/or don't effing care about other people's property.

Not to mention that he may well have been posting the land, not just warning off drivers on the private road - in which case, the signs are required to be posted not more than 100 yards apart.

 

[calsdad]

Not to mention that he may well have been posting the land, not just warning off drivers on the private road - in which case, the signs are required to be posted not more than 100 yards apart.

True. I just read the latest story posted in this thread - and they mentioned 5 signs, but they did not mention how long the road was. 5 signs - on a long road - is NOT excessive.

 

[Rob Boudrie]

Seems like a case of he said / she said

Actually, it's a case of she said, he didn't. This went to a jury trial and he did not take the stand in his own defense.

Criminal defense attorneys spend most of their time getting the best outcome for guilty defendants and, in such cases, it is often best not to let the defendant take the stand. In this case it was probably a mistake on the part of both the attorney and the defendant not to let the jury hear his side of the story.

What the jury heard was a victim claiming the defendant waved a gun at her, and the defendant saying nothing to contradict that claim. Compare the reasonable doubt created by that to a "he said/she said" situation.

 

[strangenh]

Actually, it's a case of she said, he didn't. This went to a jury trial and he did not take the stand in his own defense.

Criminal defense attorneys spend most of their time getting the best outcome for guilty defendants and, in such cases, it is often best not to let the defendant take the stand. In this case it was probably a mistake on the part of both the attorney and the defendant not to let the jury hear his side of the story.

And maybe not in this case. According to the Laconia paper, there was some old prejudicial character evidence that would have been at risk of being allowed in by one slip of the defendant's tongue. The real sin here was that the defense was not permitted to bring in evidence regarding the prosecution witness's credibility.

What the jury heard was a victim claiming the defendant waved a gun at her, and the defendant saying nothing to contradict that claim. Compare the reasonable doubt created by that to a "he said/she said" situation.

If that was how it was explained to the jury, then the jury received incorrect instructions - the evidence of one person "saying so" cannot be "beyond a reasonable doubt" under most circumstances. Obviously the defendant disagreed with testimony incriminating him - he entered a not guilty plea! If the jury really weighed to the negative his not testifying in his defense, treating the witness's evidence as more credible because it wasn't contradicted in person, on the stand by the defendant, then that is a major, serious problem.

 

[wahsben]

Also with people being held liable for all kinds of things these days he might have felt the need to post that many no tresspassing signs.

 

[strangenh]

Also with people being held liable for all kinds of things these days he might have felt the need to post that many no tresspassing signs.

Not so much in NH: http://www.gencourt.state.nh.us/rsa/html/xviii/212/212-34.htm

 

[walkit]

More reason to have a pocket gun (hand on it) a non-lethal weapon in other hand (long stick is best, IMO) and hand to hand skills. The main problem was her gender. If she'd been male, much less would have been made of this, unless the trespasser was really young, really old, or handicapped. NOW-feminism is a rampant risk to males, everywhere we go, but especially at the workplace, and especially for those you manage-hire.

 

[el duderino]

just carry bear mace too, loses the deadly force aspect and now shes got a good reason for not seeing all those no trespassing signs on her way out

 

[TomH]

But lets be serious, he sounds a little freakish. (i.e. well outside societal norms of behavior)
Maybe its me, but I don't take myself or most other people seriously enough to get all worked up about most little things; and this was by most people's standards, a little thing.
This guy clearly is wound up pretty tight. Legal or not, its pretty wacko to brandish a firearm at a not terribly bright woman who comes wandering up looking for directions.

That may be your opinion but should have no bearing on this guys's case. Based on the "evidence" it seems he shouldn't have even been arrested.

 

[dcmdon]

That may be your opinion but should have no bearing on this guys's case. Based on the "evidence" it seems he shouldn't have even been arrested.

Tom, do you work for the main stream media. You pretty well quoted me out of context by removing my leading statements that said:


I'm in no way implying that he doesn't have a right to behave that way. . . .

 

[Garys]

Actually, it's a case of she said, he didn't. This went to a jury trial and he did not take the stand in his own defense.

Criminal defense attorneys spend most of their time getting the best outcome for guilty defendants and, in such cases, it is often best not to let the defendant take the stand. In this case it was probably a mistake on the part of both the attorney and the defendant not to let the jury hear his side of the story.

What the jury heard was a victim claiming the defendant waved a gun at her, and the defendant saying nothing to contradict that claim. Compare the reasonable doubt created by that to a "he said/she said" situation.

I echo what Strangenh said. Sometimes, even when the defendant has the truth on his side, the way he presents it might make his case worse. Plus, as you know, taking the stand opens up a lot of territory for the prosecution.

It's interesting that the NH Supreme Court upheld the conviction. That leaves out reversible error by the judge. I'd guess that the complainant's previous animal cruelty conviction wasn't considered sufficient grounds to impeach her credibility.

Bird's biggest mistake was early on when he admitted to the cop that he did brandish a weapon. Then he changed his story the next day. Doesn't do a lot for you credibility, even if you don't know what brandish means. Cases like this are good examples of why you need to get a lawyer early on, especially if you are innocent. The cops are kidding when they say "anything you say can be used against you in a court of law".

 

[strangenh]

I'd guess that the complainant's previous animal cruelty conviction wasn't considered sufficient grounds to impeach her credibility.

Basically they didn't believe it was significant enough error as a matter of law. I still find that odd - evidence of prior acts is prejudicial, sure, to the defendant... but normally we let in just about anything otherwise good evidence about a witness who isn't on trial.

Bird's biggest mistake was early on when he admitted to the cop that he did brandish a weapon. Then he changed his story the next day. Doesn't do a lot for you credibility, even if you don't know what brandish means. Cases like this are good examples of why you need to get a lawyer early on, especially if you are innocent. The cops are kidding when they say "anything you say can be used against you in a court of law".

Yes, though I've yet to see it quoted, it may well be the police report was in Bird's real undoing. Queue the EC quote about his cousin.

 

[strangenh]

The S.Ct. decision can be found at:
http://www.courts.state.nh.us/supreme/opinions/2010/2010114bird.pdf

Because the defendant argues that the State introduced admissible evidence that created a misleading impression, we are concerned with the application of the specific contradiction branch of the opening-the-door doctrine. State v. Wamala, 158 N.H. 583, 589 (2009). The specific contradiction doctrine applies when one party has introduced admissible evidence that creates a misleading advantage. Id. The opponent is then allowed to introduce previously inadmissible evidence to counter the
misleading advantage. Id. The rule prevents a party from successfully excluding evidence favorable to his opponent, and then selectively introducing this evidence for his own advantage, without allowing the opponent to place the evidence in proper context. Id. at 590. The initial evidence must, however, have reasonably misled the fact finder in some way. Id.

The trial court did not unsustainably exercise its discretion by not permitting the defendant to cross-examine Harris about her prior convictions for animal cruelty.

I'm wondering if the appeal (and original objection...) was made on the right technical grounds regarding admissibility of evidence. One is normally given wide latitude to impeach a witness, but I don't know NH's rules of evidence.

 

[Garys]

Basically they didn't believe it was significant enough error as a matter of law. I still find that odd - evidence of prior acts is prejudicial, sure, to the defendant... but normally we let in just about anything otherwise good evidence about a witness who isn't on trial.

My thought is that for a witness, the conviction would have to be for something involving her truthfulness. So, if she was convicted of perjury, it would certainly affect her suitability as a witness.

Yes, though I've yet to see it quoted, it may well be the police report was in Bird's real undoing. Queue the EC quote about his cousin.

The report and him changing his story. It's funny, but in the media reports I read on line his wife and another person both say that he did in fact draw his weapon and point it at the woman. I wonder who testified to what at his trial?

 

[garandman]

That may be your opinion but should have no bearing on this guys's case. Based on the "evidence" it seems he shouldn't have even been arrested.

There was plenty of crazy to go around in this case between him his relatives, and his accuser, but on the face of it her testimony seems unbelievable.

What's the deal with the Prosecutor?

 

[dcmdon]

The report and him changing his story. It's funny, but in the media reports I read on line his wife and another person both say that he did in fact draw his weapon and point it at the woman. I wonder who testified to what at his trial?

If he, in fact did this, he deserves time. Not 7 years, but something. You don't draw a handgun and point it at a 50ish year old woman who ignores your no trespassing signs and comes asking directions. Thats, like I said before, crazy.

If the gun was visible, but remained holstered, he deserves nothing.

 

[Rob Boudrie]

If the gun was visible, but remained holstered, he deserves nothing.

He went to trial with the witness claiming he pointed the gun at her, but would not take the stand in his own defense. Although jury is supposed to draw no inference from that, it creates a dynamic of "the victim claimed XYS happened and the accused, who is sitting right here, isn't even denying he did it". If the accused had offered credible testimony, perhaps backed up by expert testimony that the mere sight of a gun could get some people so scared they get details like "holstered vs. pointed" mixed up, there is an excellent chance of reasonable doubt.

Of course, if the defendant told the attorney "yeah, I pointed it at her to make her go away", professional standards would prevent the attorney from advising his client to lie on the stand and thus the legal advice might have been to exercise the right to not testify.

If you are going to own and carry a gun, you need to understand the basics of the legal system; how to work with an attorney; and the basic dynamics of "defense if you are in fact not guilty" (in which case you hire an attorney to expose the truth rather than obfuscate it).

What's the deal with the Prosecutor?

The defendant did not take an offered no jail time plea deal. He needed to be punished for that as a lesson to other people who feel they have the right to defend themselves in court.

Bird's biggest mistake was early on when he admitted to the cop that he did brandish a weapon. Then he changed his story the next day.

If he did this he's an idiot - for doing it, and then for admitting it rather than exercising his right to remain silent. The moves it into the play stupid games, win stupid prizes, category.

 

[dcmdon]

It seems he would have stayed out of trouble if he followed a basic point I teach all my students in my basic pistol course: do not display or draw a gun unless you are justified in firing it at the person with the understanding that you may kill him.

i.e. no brandishing, no warning shots, no "shoot to injure". Very simple.

I did not know that he was offered a no-time plea. This sentence is then way way out of line.

Rob, think about it. If his attorney did not intend to offer an active defense by putting the defendant on the stand, then he should have taken the plea.

To go to trial if you have a defendant with something in his past that would prevent him from taking the stand is simply stupid.

Considering that the defendant did not choose to, or was instructed by counsel, not to participate in his defense, he should have taken the deal. If the above is true then I blame his attorney for this, not the system.

 

[Garys]

It seems he would have stayed out of trouble if he followed a basic point I teach all my students in my basic pistol course: do not display or draw a gun unless you are justified in firing it at the person with the understanding that you may kill him.

i.e. no brandishing, no warning shots, no "shoot to injure". Very simple.

I did not know that he was offered a no-time plea. This sentence is then way way out of line.

Rob, think about it. If his attorney did not intend to offer an active defense by putting the defendant on the stand, then he should have taken the plea.

To go to trial if you have a defendant with something in his past that would prevent him from taking the stand is simply stupid.

Considering that the defendant did not choose to, or was instructed by counsel, not to participate in his defense, he should have taken the deal. If the above is true then I blame his attorney for this, not the system.

Remember, it's the client, not the lawyer who makes the final decision. The lawyer is supposed to lay out the options and make recommendations, but he must do as the client directs him unless he is willing to withdraw from the case. If the defendant wanted to go to trial, then the lawyer has other choice but to present the case or petition the judge to withdraw. From what I've seen, not having first hand experience, it seems that lawyers tend to discourage defendants from testifying on their own behalf.

 

[strangenh]

Defendants frequently do not take the stand. It is the defense attorney's job to ensure the jury is given instruction not only to take nothing from that, but most importantly to note that the prosecution has to prove the case "beyond a reasonable doubt" even where there is no defense at all!

This isn't civil litigation where one side has to do better than the other to win. This is criminal law - the state is required to prove its case beyond a reasonable doubt even if the defense lawyer takes a nap for the whole trial and the defendant is bound and gagged.

The public anger about this case is precisely over what many here don't seem to get: In a criminal trial with evidence consisting of She Said/He Said, the prosecution has to prove the case "beyond a reasonable doubt" even if there is no "he said" at all.

 

[dcmdon]

I'd be interested to know when the judge ruled that the woman's history of erratic behavior could not be introduced. Was this an out of the blue thing that wrecked the defenses plan to introduce doubt? Or did the defense know that they couldn't introduce this evidence all along and still reject a plea.

This kind of detail is what makes armchair quarterbacking difficult.

Really, if you accept the conviction, the real problem is that the sentence is really out of line.