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State v. Fernandez5/23/2005
Argued: February 16, 2005
The defendant, Lucio E. Fernandez, appeals his conviction by a jury for second-degree murder. See RSA 630:1-b (1996). We affirm.
The jury could have found the following facts. The defendant stabbed another man to death. After the stabbing, the defendant threw away the knife and fled the scene. He later fled the East Coast. United States Marshals arrested him approximately seventeen months later in Los Angeles.
At trial, the defendant admitted that he stabbed the victim, but claimed to have acted in self-defense. The defendant testified that the victim initiated the fight, that he and the victim struggled, and that the victim came at him with a knife. Four eyewitnesses testified, however, that the victim was unarmed and that the defendant was the aggressor. Although the defendant testified that the victim injured him, no one who witnessed the incident saw any of the alleged injuries. Numerous witnesses, including the defendant, testified that the victim was quite drunk the night of the murder and that he staggered and appeared unsteady on his feet. His blood alcohol level at death was .33. The defendant was sober.
On appeal, the defendant argues that the Superior Court (Abramson, J.) erroneously: (1) denied his request for depositions; (2) denied his request that the court voir dire prospective jurors about his race and the fact that he lives in Lawrence, Massachusetts; (3) declined to voir dire a juror whom the State alleged was asleep during the State's closing; (4) denied his motion in limine to preclude the State from using the words "victim" and "murder" when eliciting testimony at trial; (5) permitted the State to introduce evidence that the defendant remained a fugitive after seeing himself on a television program about the murder; (6) permitted the State to introduce testimony that, before he fled, the defendant had a duffel bag that contained a police scanner and a gun; and (7) denied his motion in limine to preclude the medical examiner from testifying that the victim's wounds suggested torture. We address each argument in turn.
I. Depositions
Before trial, the defendant requested permission to depose the four eyewitnesses to the murder. See RSA 517:13 (1997)(amended 2003). He argued that the depositions were necessary to permit him to discover the extent of the witnesses' criminal records, explore inconsistencies in their prior statements, and unearth further discoverable information. The trial court denied his request, finding that he failed to show by a preponderance of the evidence that deposing the witnesses was necessary. Specifically, the court found that the case was not complex and the State had already provided the defendant with "extensive open file discovery." The court also found that the defendant had other means of ascertaining the witnesses' criminal records such as by interviewing the witnesses.
We evaluate the trial court's decision under our unsustainable exercise of discretion standard. See State v. Hilton, 144 N.H. 470, 473 (1999); cf. State v. Lambert, 147 N.H. 295, 296 (2001). To prevail, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Hilton, 144 N.H. at 473.
A defendant does not have an unqualified due process right to compel depositions in a criminal case. Id. Under RSA 517:13, II, the trial court may permit the defendant to depose a witness if the requested deposition is "necessary" to "preserve the testimony of any witness who is unlikely to be available for trial" or to "ensure a fair trial, avoid surprise or for other good cause shown." To determine whether a deposition i
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