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State v. Pelkey7/5/2000
The defendant, Richard Pelkey, was convicted after a jury trial in Superior Court (Arnold, J.) of driving while intoxicated, second offense. See RSA 265:82 (Supp. 1999); RSA 265:82-b, II(a) (Supp. 1999). On appeal, he argues that the trial court erred in admitting a statement he made as he was leaving the police station. We reverse and remand.
The following facts were adduced at trial. On March 10, 1998, at approximately 1:00 a.m., Keene Police Officer Peter Thomas followed the defendant as he drove out of the parking lot of a local club. After following him for approximately two miles, Officer Thomas stopped the defendant for excessive speed: to wit, approximately forty-five miles per hour in a thirty mile-per-hour zone. Officer Thomas observed no other erratic driving behavior.
When asked, the defendant produced his license, but not his registration. Following two more requests for the registration, the defendant remarked, "It's the same as that." Officer Thomas noticed that the defendant smelled strongly of alcohol and had reddened eyes and a flushed face.
Upon request, the defendant exited his vehicle. He locked the door, slammed it shut, and said, "There, you won't get that." The defendant angrily and repeatedly told Officer Thomas that he would not perform field sobriety tests. However, he subsequently agreed to do so. The defendant unsuccessfully performed three field sobriety tests in a "half-hearted" manner, and appeared to be agitated. He also called Officer Thomas and the other officers vulgar names.
Officer Thomas attempted to arrest the defendant for driving while intoxicated. The defendant denied consuming alcohol and assumed a fighting stance. Eventually, he submitted to arrest. The defendant's truck was later towed as it contained many personal effects, including the defendant's wallet.
While at the police station, the defendant's mood fluctuated. At times, he was upset and uncooperative. He refused to take a breathalyzer test, repeat field sobriety tests, or complete paperwork. When the defendant was later released and was leaving the police station, he told Officer Thomas that "he had $500 that was in his wallet, that the $500 was proceeds from his drug sales and that it better be in the truck when he picked up his truck the next day."
At trial, the defendant objected to the admissibility of this statement under New Hampshire Rules of Evidence 401, 403, and 404(b). The court overruled the objection, concluding that Rule 404(b) was inapplicable, that the evidence was relevant to the issue of intoxication, and that the probative value of the statement outweighed its prejudicial effect. The court instructed the jury that it could consider the statement only in determining whether the defendant was impaired. The jury returned a guilty verdict. This appeal followed.
The defendant first argues that the statement was irrelevant to prove that he was under the influence of alcohol. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401. The determination of the relevance of evidence is a matter within the trial court's sound discretion, and we will not overturn such a determination absent an abuse of discretion. See State v. Walsh, 139 N.H. 435, 436, 655 A.2d 912, 913 (1995). To show an abuse of discretion, the defendant must demonstrate that the court's ruling "was clearly untenable or unreasonable to the prejudice of his case." State v. Hokanson, 140 N.H. 719, 721, 672 A.2d 714, 715 (1996) (quotation omitted).
The only disputed issu
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