Reasonable Necessity Persists Under New Hampshire’s Stand‑Your‑Ground Law; Mere Non‑Recovery of a Weapon Cannot Sustain Falsifying‑Evidence Convictions

Commentary on State v. Harris, 2025 N.H. 32 (N.H. July 22, 2025)

Introduction

State v. Harris presented the New Hampshire Supreme Court with three discrete appellate questions arising out of a road‑rage shooting in Manchester: (1) whether a recorded phone call between the defendant and his mother was properly admitted under Rule 403; (2) whether the trial court correctly instructed the jury that the defendant’s use of deadly force had to be “reasonably necessary” in the context of self‑defense; and (3) whether circumstantial proof that the police never found the firearm, coupled with flight and other post‑incident conduct, was sufficient to support a conviction for falsifying physical evidence under RSA 641:6.

The parties were the State of New Hampshire and Tyrese Harris. A Hillsborough‑northern jury convicted Harris of two alternative‑theory counts of second‑degree murder (knowingly, and recklessly under circumstances manifesting extreme indifference), one count of reckless conduct (unchallenged on appeal), and one count of falsifying physical evidence (the gun was never recovered). On appeal, Harris challenged the admission of a redacted jail call, the self‑defense instruction, and the sufficiency of the falsifying‑evidence count.

In a decision that both reaffirms a core principle of New Hampshire self‑defense law and tightens the evidentiary demands for falsifying‑evidence prosecutions, the Court held: (1) the recorded call was properly admitted; (2) the “reasonable necessity” component remains part of the deadly‑force analysis under RSA 627:4 notwithstanding the 2011 “stand‑your‑ground” amendment; and (3) the State’s circumstantial showing did not exclude reasonable alternative explanations for the missing gun, requiring reversal of the falsifying‑evidence conviction.

Summary of the Opinion

• Evidentiary Ruling: The trial court sustainably exercised its discretion in admitting a redacted recording of Harris’s phone call with his mother. The call was highly probative of state of mind and not unfairly prejudicial, and it did not “open the door” to admitting Harris’s otherwise inadmissible police interview.
• Self‑Defense Instruction: The jury could properly be instructed that even where no duty to retreat applies (RSA 627:4, III), the defendant’s use of deadly force must be reasonably necessary under the circumstances (RSA 627:4, II). The Court reaffirmed State v. Etienne, 163 N.H. 57 (2011), in light of common‑law continuity and legislative acquiescence.
• Falsifying Physical Evidence: The State’s circumstantial proof—flight, change of clothes, non‑recovery of the firearm despite limited searches—did not exclude all rational conclusions consistent with innocence on the element that the defendant “destroyed, concealed, or removed” the gun with a purpose to impair its availability (RSA 641:6, I). Conviction reversed and sentence vacated on that count.
• Disposition: Affirmed in part (murder and reckless conduct convictions), reversed in part (falsifying physical evidence). The reckless conduct conviction was not briefed and thus waived.

Factual Background (as the jury could have found)

On October 29, 2022, during heavy traffic, Harris’s SUV merged ahead of the victim’s 18‑wheeler; the trucker sounded his horn. Witnesses saw an object thrown from Harris’s vehicle toward the truck. At a red light, the trucker braked behind Harris, exited, and approached the driver’s window “aggressively.” Surveillance audio fixed the interval: the victim crossed between the vehicles at 3:22:23; the gunshot occurred at 3:22:25—two seconds later. Witnesses reported the victim was upset; some saw him try to open Harris’s door, make agitated gestures, and two saw him spit into the SUV. Harris shot once, killing the victim. His fiancée testified Harris said he fired because the victim spat in his face.

Harris fled at high speed, driving erratically through a red light, a gas station, and the opposite travel lane. He parked near a friend’s (Savastano’s) apartment around 3:30 p.m., entered with a laundry basket, and left with his fiancée around 4:54 p.m. (leaving in a different car). Within about an hour, police searched Harris’s apartment (recovering a 9mm case and serial number linking a gun to Harris) but found no firearm; they found no gun in his SUV searched the next day. The gun was never recovered. Nine days later, police found the laundry basket and a sweatshirt at Savastano’s apartment.

While incarcerated pretrial, Harris told his mother on a recorded call: “I didn’t get to think enough in those seconds… I got spit on directly in my face… Your life was took cuz you disrespect. Disrespect gets your life taken. Respect gets you further in life.”

Analysis

1) Precedents Cited and Their Influence

• State v. Etienne, 163 N.H. 57 (2011): The Court relied heavily on Etienne to uphold the inclusion of “reasonable necessity” in deadly‑force instructions. Etienne concluded that RSA 627:4, II—though not using the term “necessary”—implicitly carries a reasonable‑necessity requirement, consistent with the common law.
• State v. Vassar, 154 N.H. 370 (2006): Cited by Etienne and again by Harris to show that the Court historically framed the deadly‑force inquiry in terms of the defendant’s reasonable belief that deadly force was necessary to fend off unlawful deadly force.
• Elementis Chemical v. StopNH‑SP, 152 N.H. 794 (2005): The canon against implied abrogation of the common law—no departure absent clear legislative intent—supported reading reasonable necessity into RSA 627:4, II.
• State v. Moran, 158 N.H. 318 (2009): Legislative acquiescence principle: repeated legislative activity without altering the judicial construction signals acceptance, especially salient because the legislature amended RSA 627:4 in 2011 to remove the duty to retreat in public places but did not disturb Etienne’s reasonable‑necessity gloss.
• Standards of Review/Rule 403: State v. Warren, 2025 N.H. 5, ¶35 (abuse‑of‑discretion standard for evidentiary rulings); State v. Palermo, 168 N.H. 387 (2015) (unfair prejudice standard); State v. Lambert, 147 N.H. 295 (2001) and State v. Munroe, 173 N.H. 469 (2020) (discretion vs. de novo on rule interpretation).
• “Opening the door”/Specific Contradiction: State v. Roman, 176 N.H. 367 (2023): previously suppressed/inadmissible evidence can be admitted to counter a misleading advantage. The Court found no misleading advantage in admitting the redacted call.
• Sufficiency/Circumstantial Evidence: State v. Seibel, 174 N.H. 440 (2021) (objective review of entire record; circumstantial evidence must exclude all reasonable conclusions other than guilt where an element is proved solely circumstantially); State v. King, 168 N.H. 340 (2015) (doctrine articulated in jury instructions). The Court used this framework to reverse the falsifying‑evidence conviction.
• Other cited decisions: State v. Allen, 128 N.H. 390 (1986) (temporal remoteness affects weight, not admissibility, of evidence); State v. Dukette, 145 N.H. 226 (2000) (relevance of state of mind in self‑defense); State v. Evans, 150 N.H. 416 (2003) (jury instruction review); State v. Leroux, 175 N.H. 204 (2022) (waiver by not briefing an issue on appeal).

2) Legal Reasoning

a) Admission of the Recorded Call (Rule 403 and “opening the door”)

The Court gave substantial deference to the trial court’s Rule 403 balancing. Any risk that the jury would infer incarceration was mitigated by redactions and by referring to the conversation as a “recorded call,” not a “jail call.” The content—statements about being spit on, reacting in “those three seconds,” and the “disrespect” motif—was highly probative of Harris’s state of mind in a case hinging on self‑defense. That the call occurred 34 days after the shooting reduced weight but not admissibility; temporal distance did not drain its probative force.

On the specific contradiction doctrine, the Court rejected Harris’s claim that admitting the call compelled admission of his police interview. There was no misleading advantage to counter: the call was consistent with other record evidence (e.g., his statements to his fiancée immediately after the shooting). Without a misleading impression, the “open the door” exception did not apply. The ruling underscores that consistency across a defendant’s statements cuts against claims of specific contradiction.

b) Self‑Defense Instruction: “Reasonable Necessity” survives Stand‑Your‑Ground

The central doctrinal holding is the Court’s reaffirmation that “reasonable necessity” is part of New Hampshire’s deadly‑force self‑defense law under RSA 627:4, II—even after the 2011 amendment that removed the duty to retreat when one is “anywhere he or she has a right to be” (RSA 627:4, III(a)). The defense argued Etienne’s discussion of necessity was dicta and that stand‑your‑ground eliminated any “lesser force” reasonableness constraint. The Court disagreed on both counts.

First, the statutory text is reasonably susceptible to either reading, but interpretive canons favor the least change to the common law. New Hampshire’s common law “has long required reasonable necessity to justify the use of deadly force,” and there is no clear legislative intent to abrogate that requirement. Second, the legislature’s post‑Etienne activity—amending the retreat rule in 2011 while leaving RSA 627:4, II intact—evinces legislative acquiescence to Etienne’s construction. Third, the Court pointedly noted that its prior framing in Vassar (“reasonably believed deadly force was necessary”) aligns with this reading.

At the same time, the instruction properly told jurors not to consider retreat where no duty existed: “The availability of a route of retreat, if you find the Defendant was not required to retreat, is not a factor you can consider in assessing whether the force used was reasonably necessary.” Thus, “reasonable necessity” evaluates the proportionality of deadly force to the threat, not whether the defender could have retreated. The Court also rejected a defense request to require the State to prove the availability of lesser force as a stand‑alone element; it was sufficient to instruct that the State bore the burden to disprove self‑defense beyond a reasonable doubt, and to direct jurors to assess reasonableness in the “fast‑moving” circumstances presented.

c) Falsifying Physical Evidence: Insufficient circumstantial proof of “destroy, conceal, or remove”

RSA 641:6, I requires proof beyond a reasonable doubt that the defendant (1) believed an investigation was about to be instituted, and (2) destroyed, concealed, or removed evidence, (3) with the purpose to impair its verity or availability. The trial evidence showed that police did not find the gun in Harris’s apartment during a single search approximately one hour after the shooting, nor in his SUV searched the next day; the gun was never recovered. The State argued that flight, a clothing change, abandoning the SUV, and using a different car justified an inference that Harris concealed the gun.

Applying the heightened circumstantial‑evidence requirement for elements proven solely by inference, the Court held the State’s proof did not exclude reasonable alternative explanations consistent with innocence—most prominently, that Harris left the firearm in his apartment after police’s initial search and before his arrest. The record lacked evidence about what, if anything, Harris did with the gun during the window between the limited searches and his arrest. The non‑recovery of a weapon, without more, is not enough to prove beyond a reasonable doubt that the defendant “destroyed, concealed, or removed” it with the requisite purpose.

Impact and Practical Implications

Self‑Defense Law in New Hampshire

• Reasonable necessity is here to stay. Trial courts may and should continue to instruct juries that even in a stand‑your‑ground context (no duty to retreat in public places), the defendant’s use of deadly force must be reasonably necessary in light of the circumstances. This preserves proportionality as a limiting principle distinct from retreat considerations.
• Instructional drafting. Harris approves language that: (a) explains reasonable necessity; (b) emphasizes the fast‑moving, pressured nature of violent encounters; and (c) makes clear that retreat is not to be considered where no duty exists. Defense requests to make “availability of lesser force” a discrete State burden were not required.
• Legislative landscape. The decision signals that if the legislature intends to eliminate the reasonable‑necessity constraint, it must do so explicitly. Absent such amendment, courts will presume continuity with the common law and prior judicial construction.

Falsifying‑Evidence Prosecutions under RSA 641:6

• Non‑recovery is not enough. The mere fact that a weapon or item is never found, even combined with evidence of flight or evasive conduct, will not by itself suffice to prove “destroy, conceal, or remove” beyond a reasonable doubt where other reasonable explanations remain.
• Investigative thoroughness matters. Limited or delayed searches can undercut the State’s circumstantial case. More comprehensive searches, corroborating evidence (e.g., location data, surveillance, third‑party testimony), or direct statements linking the defendant to affirmative concealment are likely necessary.
• Defense strategy. Defendants can prevail on sufficiency challenges where the State’s inferences rest on absence of evidence rather than evidence of affirmative acts to impair availability. Highlighting unsearched locations, time gaps, and alternative hypotheses is critical.

Evidentiary Use of Recorded Jail Calls

• Admissibility baseline. “Jail calls are routinely admitted.” When redacted to remove explicit references to incarceration, and when relevant to a disputed issue such as state of mind, courts will generally find probative value not substantially outweighed by unfair prejudice.
• Limiting “opening the door.” The specific contradiction doctrine requires a misleading advantage. Consistency between a jail call and other statements will defeat claims that additional, otherwise inadmissible defense statements must come in to “correct” the record.
• Practical tips. Parties should consider neutral phrasing (“recorded call”), targeted redactions, and limiting instructions to manage any residual prejudice. Defendants should assume their recorded statements will be used and tailor litigation strategy accordingly.

Complex Concepts Simplified

• Stand‑Your‑Ground vs. Reasonable Necessity: Removing a “duty to retreat” means a person in a place they have a right to be need not flee before using force. It does not automatically authorize any level of force. “Reasonable necessity” asks whether the amount of force used (including deadly force) was proportionate and necessary to prevent the perceived unlawful force, based on what a reasonable person would believe in that moment.
• Reasonable Belief and Fast‑Moving Events: Jurors are told to consider that violent situations unfold in seconds with limited information. The law assesses reasonableness based on the circumstances as they appeared at the time, not with hindsight.
• Specific Contradiction Doctrine (“opening the door”): If a party introduces evidence that creates a misleading impression, otherwise barred evidence may be admitted to correct it. No correction is warranted when the admitted evidence does not mislead.
• Circumstantial Evidence Rule (for elements proved only indirectly): When the State relies solely on circumstantial evidence to establish an element, the inferences must exclude all reasonable hypotheses of innocence. If reasonable alternative explanations remain, the evidence is legally insufficient on that element.
• Unsustainable Exercise of Discretion: Appellate courts defer to trial judges on matters like evidentiary balancing and instruction wording, reversing only if the decision was clearly unreasonable or untenable to the party’s prejudice.
• Legislative Acquiescence: When the legislature amends related statutes without disturbing a judicial interpretation, courts infer legislative acceptance of that interpretation.

Concluding Takeaways

• Core holding on self‑defense: New Hampshire continues to require that a defender’s use of deadly force be reasonably necessary, even where stand‑your‑ground removes any duty to retreat in public places. Trial courts may instruct accordingly, emphasizing proportionality over retreat.
• Evidence law reaffirmed: Redacted recorded calls by defendants, especially those bearing on mental state, are generally admissible under Rule 403; their admission does not automatically open the door to other defense statements absent a misleading impression.
• Falsifying‑evidence constraint: The State must present more than the non‑recovery of a weapon and post‑incident flight to prove the statute’s actus reus and mens rea. Without evidence excluding reasonable alternative explanations, such convictions cannot stand.
• Case outcome: Murder and reckless conduct convictions affirmed; falsifying‑evidence conviction reversed and sentence vacated.

Significance in the Broader Legal Context

State v. Harris solidifies New Hampshire’s path on self‑defense: eliminating retreat duties does not abolish the proportionality constraint of reasonable necessity. By tying that conclusion to common law continuity and legislative acquiescence, the Court provides a stable interpretive anchor for trial courts and litigants. On the evidence front, Harris cautions prosecutors that “absence of evidence” (a missing gun) is not a substitute for evidence of affirmative concealment. Finally, Harris underscores the practical reality that defendants’ own recorded statements—when relevant and properly redacted—will likely reach the jury, and that courts will not expand “opening the door” to admit otherwise inadmissible exculpatory statements without a concrete misleading premise to correct.