NH Supreme Court upholds murder conviction in Manchester street slayingBy PAT GROSSMITH
New Hampshire Union Leader
January 17. 2014 11:07AM
The Supreme Court upheld the first-degree murder conviction of Joshua Sprague, the Manchester man who four years ago gunned down an innocent victim who begged for his life in the middle of Wilson Street.
The court, in an unanimous decision, did side with Sprague, who was also convicted of burglary and conspiracy to commit burglary, when he argued it was double jeopardy for him to be sentenced on a burglary charge when the first-degree murder conviction included committing murder in the course of a burglary. The Attorney General's Office conceded that point, according to Senior Assistant Attorney General Susan G. Morrell.
Sprague, 29, is serving a life sentence without possibility of parole for knowingly murdering Lennoxx Tibbs, 26, a man he did not know. He also was sentenced to two 7 1/2-to-15-year sentences on the burglary and conspiracy charges, both to be served concurrently. The Supreme Court vacated the burglary sentence.
Prosecutors contended Sprague was a man bent on revenge against Elena Hann, also known as Marcelena Gomez, of 259 Wilson St. In October 2009, Sprague tried twice to buy marijuana from Hann, but when both attempts failed, he accused her of trying to set him up and threatened to harm her.
Several days later, Hann's apartment was burglarized. Suspecting Sprague, she and and some friends went to his apartment. Sprague wasn't home, but as they were leaving, one of Hann's friends threatened to harm Sprague's dog.
An angry Sprague, fearing Hann and her friends would return, decided to confront her. Armed with a handgun, he and several friends walked to her apartment building. Hann and her boyfriend hid.
Sprague saw Tibbs and chased him out of the building. Sprague yelled for Tibbs to stop and he did. Tibbs turned around, his hands raised and said, "I don't even know her."
After one of Sprague's friends shouted a racial slur about Tibbs, Sprague fired four shots. Two hit Tibbs in the neck and chest, killing him.
Sprague took the stand at his trial, admitting he shot Tibbs, but said he thought Tibbs had a gun. Police found a cellular phone next to Tibbs but no gun. A witness, who did not know Tibbs or Sprague, testified Tibbs had nothing in his hands.
Sprague fled the scene and got rid of the gun. Several days later, he and his friends fled to Massachusetts where they were later arrested.
Sprague testified that prior to the shooting he had been drinking and using marijuana, cocaine, heroin and Percocet.
On appeal, he argued that Judge Brian T. Tucker violated his due process rights when he instructed the jury that Sprague's claimed misperception that Tibbs had a gun could not be used as evidence of self-defense, and failed to instruct the jury that Sprague's claimed misperception could be relevant to the defendant's mental state defense, that is his intent.
Morrell explained that prior to trial a defendant has to file notice of a self-defense claim. Sprague, she said, did not do that until opening statements when his lawyer raised the issue of "misperception" which the state contended was another name for self-defense.
The court said the judge did not prohibit the jury from considering the defendant's claimed misperception when assessing his state of mind at the time of crime. "It merely prohibited the jury from considering his claimed misperception as evidence of self-defense," the court said.
Sprague testified at trial that he believed Tibbs had a gun, which led to his panic and fear and, out of a concern for "self preservation," his recklessly firing the gun. Had the jury believed him, they would have convicted him of a lesser charge - second-degree murder or manslaughter.
Instead, he was convicted of first-degree murder for knowingly causing Tibbs' death.
He also contended the judge should have declared a mistrial after an emotional outburst in the courtroom by a relative of Tibbs, but the court said it presumed the jury followed the judge's instructions to disregard it.