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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2015-0289

THE STATE OF NEW HAMPSHIRE

v.

THOMAS MILTON

Argued: October 19, 2016

Opinion Issued: November 17, 2016

Joseph A. Foster, attorney general (John J. McCormack, assistant 

attorney general, on the brief and orally), for the State.

Lothstein Guerriero, PLLC, of Keene (Richard Guerriero on the brief and 

orally), for the defendant.

HICKS, J. The defendant, Thomas Milton, appeals his conviction, 

following a jury trial in Superior Court (Smukler, J.), on one count of second 

degree murder, one count of assault by a prisoner, and one count of falsifying 

physical evidence. See RSA 630:1-b (2016); RSA 642:9 (2007) (amended 2010); 

RSA 641:6 (2016). We affirm.

I. Background

The relevant facts follow. The charges against the defendant stem from 

events occurring on July 26, 2010, at the New Hampshire State Prison where 
2

the defendant and the victim were then incarcerated. The defendant was a 

member of a prison gang known as the Brotherhood of White Warriors 

(BOWW), and had been ordered by Frankie Philbrook, a high-ranking member 

of BOWW, to assault the victim because Philbrook believed the victim was a 

“rat” (i.e., that the victim had provided incriminating information about 

Philbrook to authorities). The relevant indictments allege that the defendant 

assaulted the victim by striking him in the head, and that he, acting in concert 

with another inmate, caused the victim’s death by repeatedly striking him in 

the head and face. The defendant admitted to striking the victim once in the 

head, but denied striking him repeatedly thereafter.

Before trial, the State moved in limine to admit expert testimony relating 

to BOWW’s existence, organizational structure, membership process, and 

culture, as well as evidence of the defendant’s affiliation with the organization. 

The defendant filed a partial objection, which stated that he had “no objection 

to disclosure to the jury of his membership in BOWW,” but argued that the 

“[a]dmission of evidence regarding BOWW[’s] organizational structure, 

membership process, and culture” would violate New Hampshire Rule of 

Evidence 403. (Quotation omitted.) After a hearing, the trial court granted the 

State’s motion, in part. In its ruling, the trial court permitted the State to 

present expert testimony relating to BOWW’s organizational structure and 

culture to “establish a motive for the inexplicable attack on [the victim],” and to 

explain “how fear of gang retaliation would affect the testimony of witnesses, 

and tend to make them less cooperative with law enforcement.” However, the 

ruling prohibited the expert from testifying “to evidence a jury could readily 

understand,” including evidence that BOWW believed the victim “ratted” on a 

gang member, that BOWW ordered the attack, and that the defendant held the 

position of “lieutenant” within the organization. The trial court explained that 

this evidence “would be admissible if obtained from a percipient witness,” but 

that it was “not expert testimony.”

At trial, the State’s expert testified that BOWW’s members, all white 

males, formed the gang in 2005 to protect themselves from other gangs at the 

prison. He explained that BOWW maintains a paramilitary ranking structure, 

that its members generally share a common “white supremacy” ideology, and 

that its motto is “God forgives and BOWW don’t.” According to the expert, 

members must abide by certain rules including following orders under the 

chain of command, and not “ratting.” He explained that a member’s failure to 

follow the rules results in a “violation” and that possible consequences for 

violations include “a punch in the ribs,” being “punch[ed]” by “a couple [of] 

guys,” or being “thrown out” of BOWW. He also explained that there are 

varying levels of violations, and that a BOWW member who “rats” would “most 

likely be kicked out of the gang, assaulted, or really anything.” Additionally, 

the State’s expert testified that gang-related cases in the prison are generally 

difficult to investigate because people are typically reluctant to cooperate with 
3

investigators, and because victims of gang-related assaults do not usually 

report the incident to prison authorities.

Also at trial, the defendant presented the testimony of an inmate who 

corroborated the defendant’s description of events by testifying that the 

defendant did not repeatedly strike the victim. On cross-examination, the 

State elicited testimony, over the defendant’s relevance objection, that the 

inmate had been assaulted by another inmate several months before testifying 

at the defendant’s trial. The inmate admitted that his attacker had a BOWW 

tattoo, and that, during the assault, his attacker said, “You want to tell on [the 

victim].” He agreed that the assault occurred shortly before a hearing in 

another criminal case in which the State planned to call him as a witness.

That case did not involve the defendant, but was related to the July 26, 2010 

attack on the victim.

The jury found the defendant guilty on all charges, and this appeal 

followed.

II. Analysis

On appeal, the defendant argues that the trial court erred by failing to 

properly limit the introduction of evidence relating to BOWW. Specifically, he 

asserts that the following evidence was inadmissible under New Hampshire 

Rule of Evidence 403: (1) “BOWW crimes [in] which [the defendant] played no 

role”; (2) BOWW’s organizational rules; and (3) BOWW’s retaliation against 

witnesses. He contends that, because such evidence was admitted, he “was 

tried, in significant part, on evidence of a prison gang’s wide-ranging criminal

conduct which was not fairly attributable to [him] and which unfairly 

prejudiced him in the eyes of the jury.”

As a threshold matter, the State argues that the defendant waived his 

argument related to evidence of BOWW’s organizational rules. We disagree. 

Contrary to the State’s contention, defense counsel did not limit the scope of 

his objection at the motion in limine hearing. Rather, when asked whether the 

admission of expert testimony to explain witnesses’ reluctance to testify was 

“the one ruling [he took] the most issue with,” defense counsel stated, “that’s 

about as much of an objection as I’m going to make beyond . . . what’s in my 

pleading.” (Emphasis added.) Thus, although the defendant focused primarily 

upon a single argument at the hearing, he did not concede the remaining 

arguments raised in his objection. Cf. Milliken v. Dartmouth-Hitchcock Clinic, 

154 N.H. 662, 669-70 (2006) (concluding that plaintiffs waived appellate 

argument by conceding issue in trial court). Accordingly, we address the 

merits of the defendant’s arguments.

“The trial court has broad discretion to determine the admissibility of 

evidence, and we will not upset its ruling absent an unsustainable exercise of 
4

discretion.” State v. Towle, 167 N.H. 315, 320 (2015). To demonstrate an 

unsustainable exercise of discretion, the defendant must show that the trial 

court’s ruling was clearly untenable or unreasonable to the prejudice of his 

case. State v. Legere, 157 N.H. 746, 758 (2008).

Evidence is relevant if it “ha[s] 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. 

Relevant evidence is generally admissible. See N.H. R. Ev. 402. However, New 

Hampshire Rule of Evidence 403 operates as “an exclusionary rule that cuts 

across the rules of evidence.” State v. Kuchman, 168 N.H. 779, 789 (2016)

(quotation omitted). It states, in relevant part, that “[a]lthough 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.” N.H. R. Ev. 403.

“Evidence is unfairly prejudicial if its primary purpose or effect is to 

appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to 

punish, or trigger other mainsprings of human action that may cause a jury to 

base its decision on something other than the established propositions in the 

case.” Towle, 167 N.H. at 323. “Unfair prejudice is not mere detriment to a 

defendant from the tendency of the evidence to prove guilt, in which sense all 

evidence offered by the prosecution is meant to be prejudicial.” Id. “Rather, 

the prejudice required to necessitate reversible error is an undue tendency to 

induce a decision against the defendant on some improper basis, commonly 

one that is emotionally charged.” Id.

Among the factors we consider in weighing [the probative value of]

the evidence [against the danger of unfair prejudice] are: (1)

whether the evidence would have a great emotional impact upon a 

jury; (2) its potential for appealing to a juror’s sense of resentment 

or outrage; and (3) the extent to which the issue upon which it is 

offered is established by other evidence, stipulation, or inference.

Id. at 323-24.

“The trial court can, however, obviate the danger of unfair prejudice by 

such actions as issuing a limiting instruction to the jury or limiting the scope 

of the evidence that the parties are permitted to present to the jury.” Id. at 

324. “The trial court is in the best position to gauge the potential prejudicial 

impact of particular testimony, and to determine what steps, if any, are 

necessary to obviate the potential prejudice.” Id.
5

A. Expert Testimony

The defendant first argues that the trial court should have excluded the 

expert testimony regarding BOWW pursuant to New Hampshire Rule of 

Evidence 403 because the evidence’s probative value was substantially 

outweighed by the danger of unfair prejudice.

To convict the defendant of second degree murder, the State was 

required to prove that the defendant acted “recklessly . . . under circumstances 

manifesting an extreme indifference to the value of human life . . . .” “A person 

acts recklessly with respect to a material element of an offense when he is 

aware of and consciously disregards a substantial and unjustifiable risk that 

the material element exists or will result from his conduct.” RSA 626:2, II(c) 

(2016). “The risk must be of such a nature and degree that, considering the 

circumstances known to him, its disregard constitutes a gross deviation from 

the conduct that a law-abiding person would observe in the situation.” Id.

With respect to probative value, the defendant acknowledges that the 

expert’s testimony was relevant to his motive, opportunity, and intent, and to 

the credibility of witnesses. However, he asserts that the expert’s testimony 

was only minimally probative of his motive and intent because he admitted that 

“he hit [the victim] and knocked him down” and that “he committed the assault 

at the behest of other BOWW members.” Essentially, he contends that, as a 

consequence of his admissions, “there was little need for the State to prove 

motive.” He also asserts that the expert’s testimony was only minimally 

probative of the witnesses’ credibility and reluctance to testify, claiming that 

“[i]t is well-known . . . that cooperating witnesses are disfavored by all prison 

inmates.” We disagree.

As the parties recognize, the expert’s testimony was probative of the 

defendant’s intent and motive. See Legere, 157 N.H. at 760 (concluding expert 

gang testimony was relevant to the defendant’s intent and motive). It helped to 

explain BOWW’s rules, particularly those regarding “ratting” — conduct in 

which the gang believed the victim had engaged. It also informed the jury of 

BOWW’s chain of command and the violent manner in which the gang enforces

its orders. This information helped to explain why the defendant would act 

against the victim and the degree of violence that he used. See id. (concluding 

expert gang testimony was admissible to explain why the defendant would 

murder a man wearing a particular shirt). The expert testimony regarding the 

violent nature of BOWW’s enforcement methods created a strong inference that 

the defendant acted with the requisite level of intent in order to avoid BOWW 

retribution. Cf. State v. Addison (Capital Murder), 165 N.H. 381, 467 (2013) 

(reasoning that evidence of the defendant’s participation in other crimes was 

probative of the defendant’s motive and intent to “take extreme measures to 

avoid capture”), cert. denied, 136 S. Ct. 812 (2016).
6

We disagree with the defendant’s contention that “there was little need 

for the State to prove motive.” Although the defendant admitted that he

committed the assault at the direction of BOWW leadership, he denied that it 

was he who struck the victim repeatedly in the head and cleaned up the crime 

scene afterwards. Moreover, he did not concede the issue of intent with respect 

to any of the three charges. His motive and intent thus remained at issue. See

State v. Pepin, 156 N.H. 269, 279 (2007) (“When intent is not conceded by the 

defense, and it is an element of the crime to be proven by the State, it is 

sufficiently at issue to require evidence at trial.” (quotation omitted)).

The expert’s testimony was also probative on the issue of witness 

credibility. Specifically, the expert’s testimony helped to explain why some of 

the witnesses at trial were reluctant to cooperate. See Legere, 157 N.H. at 761

(explaining that evidence of street gang’s violent nature and general disregard 

for societal rules was probative of witness credibility “because it explained why 

some witnesses might be reluctant to cooperate”). A number of the parties’ 

witnesses were current and former prison inmates who had been reluctant to 

cooperate with investigators out of fear for their safety. The expert’s testimony 

regarding BOWW’s violent enforcement of its rules helped to explain this fear. 

See id. Additionally, the expert’s testimony that such reluctance is 

commonplace in gang-related cases was helpful to further aid the jury in 

assessing the reluctant witnesses’ credibility. See id. (“Knowledge of the 

witnesses’ fears of retaliation coupled with the understanding that such fears 

were common in cases of this nature would give the jury a basis to evaluate 

their credibility.”).

We are not persuaded by the defendant’s argument that the expert’s 

testimony on this point was unnecessary because it is “well-known” that 

contempt for cooperating witnesses is “part of prison culture[.]” We have

noted, in another context, that prisoners may “look unkindly upon those who 

willingly cooperate with the authorities.” Sanguedolce v. Wolfe, 164 N.H. 644, 

647 (2013). However, even if we were to assume that the average juror is 

aware of such sentiments, here, the State theorized that the witnesses’ 

reluctance to cooperate stemmed, not from fear of retaliation from the general 

prison population, but rather from a particularized fear of retaliation from 

BOWW. The average juror would be ill-equipped to assess the reasonableness 

of this particularized fear absent expert testimony on the matter. We, 

therefore, cannot conclude that the expert’s testimony offered “limited value”

on the issue of witness credibility.

As to unfair prejudice, we have previously recognized that “the potential 

for prejudice in the introduction of gang evidence is apparent.” Legere, 157 

N.H. at 761. However, this potential “does not necessarily make the evidence 

inadmissible.” Id. Rather, we must consider “whether the probative value is 

substantially outweighed by the danger of unfair prejudice.” Id. “[W]e afford 
7

considerable deference to the trial court’s determination in balancing 

prejudicial impact and probative worth.” Towle, 167 N.H. at 324.

The defendant argues that the probative value of the expert’s testimony 

was substantially outweighed by the danger of unfair prejudice. He claims that 

the expert’s testimony, in effect, “told the jury that [violent] crimes are routine 

for BOWW members” and “wrongly labeled [him] as the paradigmatic BOWW 

member, bent on violence and obstruction of the truth.” He also argues that, 

in light of other evidence admitted at trial, the expert’s testimony was 

unnecessarily cumulative. We disagree.

The record supports the trial court’s determination that the probative 

value of the evidence was not substantially outweighed by the danger of unfair 

prejudice. As noted above, the expert testimony was probative of witness 

credibility and the defendant’s motive and intent. Because these issues were 

contested at trial, the probative value of the expert testimony was not 

insignificant. Cf. State v. Ayer, 154 N.H. 500, 513 (2006) (concluding that 

evidence relevant to the defendant’s intent carried “significant” probative value 

because his “intent was central to the trial”). Further, the prejudicial impact of 

the expert’s testimony on the defendant was limited. Although the expert 

testified that BOWW members generally share a common white supremacy 

ideology, he also admitted on cross-examination that “there are people who” 

join BOWW “strictly for protection without really buying into the whole 

ideology,” which helped to limit the impact of any prejudice. Additionally, 

although the expert testified that BOWW regularly responded to rule violations 

with violence, this testimony was not graphic, and was, consequently, less

likely to provoke the jury’s instinct to punish.

The prejudicial impact of the expert testimony was also limited by the 

introduction of other evidence at trial. Specifically, the defendant offered 

testimony that BOWW held white supremacist views and that he “would 

probably have gotten jumped” if he refused to follow BOWW’s orders. 

Additionally, certain of the inmate witnesses agreed that they were initially 

reluctant to testify out of fear for their safety. A jury could infer from this 

testimony that BOWW was likely to respond with violence to the defendant’s 

failure to follow orders and to the inmates’ “ratting.” This inference limited the 

prejudicial impact of the expert’s testimony that BOWW members generally 

share a common white supremacy ideology and that BOWW generally responds

to rule violations with violence. See Addison (Capital Murder), 165 N.H. at 

473-74 (affirming trial court’s decision to display video of defendant committing 

armed robbery, in part, because jury had heard evidence that he participated

in the robbery through the testimony of other witnesses).
8

B. Inmate’s Testimony about Separate Assault

The defendant also challenges the trial court’s ruling admitting evidence

of the pretrial assault on an inmate witness by another inmate with a BOWW 

tattoo. The defendant argues that the trial court should have excluded the 

inmate’s testimony relating to the pretrial assault pursuant to New Hampshire 

Rule of Evidence 403. He appears to acknowledge that the testimony was

relevant to the credibility of the inmate. He argues, however, that the 

evidence’s probative value was substantially outweighed by the danger of unfair 

prejudice. He claims that he was unfairly prejudiced because the inmate’s 

testimony “allowed for the possible inference by the jury that [he] was involved 

in the attack.” We disagree.

Evidence of the pretrial assault was probative of the inmate’s credibility

because it evidenced his motive to deny the defendant’s involvement in the acts 

underlying the second degree murder charge. Cf. State v. Russell, 159 N.H. 

475, 485 (2009) (concluding subsequent bad act evidence of defendant’s 

threats against witness was relevant to witness’s motive to lie); see also Legere, 

157 N.H. at 761 (“Evidence that a witness is afraid to testify or fears retaliation 

for testifying is relevant to the credibility of that witness.” (quotation and 

ellipsis omitted)).

As to the matter of prejudice, we disagree that the inmate’s testimony

supported an inference that the defendant continued his affiliation with BOWW

or that he was complicit in the assault on that inmate. The inmate did not

testify that the defendant was still a member of BOWW or that he was involved 

in the attack. Rather, at the defendant’s request, the State elicited testimony 

that the attack occurred just before a hearing that did not involve the 

defendant. Additionally, the defendant later offered testimony that he had 

severed his connection with BOWW in the year leading up to his trial.

Given these circumstances, we conclude that the record supports the 

trial court’s determination that the probative value of the evidence was not 

substantially outweighed by the danger of unfair prejudice. We hold that the 

trial court did not unsustainably exercise its discretion when it admitted the 

inmate’s testimony about the pretrial assault.

Finally, any issues raised in the defendant’s notice of appeal, but not 

briefed, are deemed waived. See State v. Cooper, 168 N.H. 161, 171 (2015).

Affirmed.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.