2005-625, STATE OF NH v. PETER JOHNSON

The defendant, Peter Johnson, appeals his conviction in

and orally), for the defendant. Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief

and Susan P. McGinnis, senior assistant attorney general, orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Diana E. Fenton, attorney, on the brief,

editorial errors in order that corrections may be made before the opinion goes No. 2005-625 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2 contacting an attorney. The defendant was unable to contact an attorney.

his way out the door,” no test would be administered. defendant that because he had been released from police custody and was “on recantation was approximately six or seven minutes. Sullivan informed the subsequently convicted, and this appeal followed. objection, the trial court rejected in favor of its own. The defendant was recantation. The defendant submitted a proposed answer which, over

his request, was permitted to use the restroom and to make two attempts at decision. Also, during the time they reviewed the ALS form, the defendant, at reaching a verdict. State v. Dixon, 144 N.H. p. 2 273, 282 (1999). Thus, we find no he would submit to a breath test, but the defendant would not make a has discretion to decide whether a particular charge will assist the jury in were reviewing the ALS form, Sullivan repeatedly asked the defendant whether however, need not use the specific language requested by the defendant and giving the instruction he proposed on refusal and recantation. The trial court, On appeal, the defendant first contends that the trial court erred by not

fingerprinting, and that he believed the time between his refusal and his

question seeking clarification of the instruction regarding refusal and to which the defendant objected. During deliberations, the jury submitted a recantation of that refusal. The trial court, however, gave its own instruction, processing, including fingerprinting and photographing, receiving his instruction on the issue of refusal to submit to chemical testing and testified that following his refusal, the defendant was sent for further Prior to the close of trial, the defendant offered a proposed jury himself, but continued to profess that he did not understand it. While they the defendant to submit to a breath test, and the defendant refused. Sullivan that he did not understand it. The defendant then read the ALS form for deemed to have refused. At the end of the five minutes, Sullivan again asked form to the defendant at least three times, but each time the defendant stated had five minutes more to decide whether to take the test or he would be Suspension (ALS) form with the defendant. Sullivan testified that he read the

informed Sullivan that he changed his mind after just the photographing and and would now take a breath test. The defendant, in contrast, testified that he processing was completed, the defendant stated that he had changed his mind rights, meeting with the bail bondsman, and receiving bail. After this

reviewing the ALS form with the defendant, he informed the defendant that he As part of the booking procedure, Sullivan reviewed the Administrative License Sullivan testified that after approximately forty-five to fifty minutes of

Following his arrest, the defendant was transported to the police station.

intoxicated. that the defendant failed the tests, Sullivan arrested him for driving while guilt, you should consider all the circumstances you consider

p. 3 chemical test. For you to consider any such refusal as evidence of

reasonable doubt that the defendant refused to submit to a test. The State has the duty – has the burden to prove beyond a Form may not be the same as a refusal to submit to a chemical

used against him in court. reasonable doubt that he was advised that his refusal could be

evidence of guilt or not evidence of guilt. bearing on the question of whether any refusal to take the test is

completion of the Consent Administrative License Suspension Moreover, any refusal by a person to cooperate with the he was under the influence. charge, as evidence of guilt, provided you are satisfied beyond a are inconsistent with any fear that the results might tend to prove you as, as to the driving under the influence of intoxicating liquor influence of intoxicating liquor, or because of other reasons that test, but any such refusal to take the tests may be considered by feared results which might tend to prove that he was under the his or her system. The defendant may refuse to submit to such a defendant to take or perform the certain tests was because he It is up to you to determine whether any refusal by the

had for not taking the test that had nothing to do with guilt as language, the rules of law applicable to the case.” You may also consider any reasons the defendant may have court’s charge is to state and explain to the jury, in clear and intelligible exercise of discretion. and we review the trial court’s decisions on these matters for an unsustainable wording of the instruction, are within the sound discretion of the trial court,

consented to chemical testing to determine the alcohol content in Now, under New Hampshire law, every driver is deemed to have

The trial court’s instruction on refusal and recantation stated:

Whether or not a particular jury instruction is necessary, and the scope and if the instructions did not fairly cover the issues of law in the case. Id. adequately and accurately explain each element of the offense and reverse only the evidence in the case. Id. at 334. We determine if the jury instructions entirety, as a reasonable juror would have understood them, and in light of all evaluate allegations of error by interpreting the disputed instructions in their 331, 333-34 (2005) (quotation omitted). When reviewing jury instructions, we

The defendant next contends that the instruction the trial court gave

the defendant. error in the trial court’s decision not to give the precise instruction proposed by p. 4 4

any controlled drug. motor vehicle while under the influence of intoxicating liquor or committed by that person while driving or attempting to drive a action or proceeding arising out of an act alleged to have been

Parker, 1 p. 4 42 N.H. 319, 323-24 (1997). instruction, and we have previously upheld similar instructions. such refusal may be admissible into evidence in a civil or criminal See State v. guilt. The defendant does not challenge this portion of the trial court’s well as whether the defendant refused to submit for some reason unrelated to states: consider the defendant’s refusal to submit to testing as evidence of guilt, as was the State’s burden to prove the defendant was intoxicated and that it could Reviewing the trial court’s instruction, we note that it informed the jury that it

full 10 years after

with If a person refuses to submit to a test as provided in RSA 265:8 p. 4 4,

2007)), titled “Effect of Evidence of Refusal to Take Alcohol Concentration Test,” RSA 265:88-a (200 p. 4 4) (repealed and replaced by RSA 265-A:10 (Supp.

Harlan. . . .”

265:88-a (now 265-A:10) was not even the law in New Hampshire until 1983, a consideration” because “the enabling statute applicable to this case, RSA the defendant contends that the law regarding recantation is “ripe for available appellate guidance on recantation in New Hampshire.” Additionally, Harlan v. State, 113 N.H. 19 p. 4 4 (1973), which he argues is “the only immediately” in its recantation instruction misled the jury and is inconsistent The defendant contends that the trial court’s use of the term “almost

that the tests may be completed expeditiously. almost immediately and presented without unreasonable delay so here; that is, a recantation that was prompt – promptly given beyond a reasonable doubt that such a recantation did not occur Again, the burden of proof is on the State to prove by evidence consider the initial refusal as evidence of guilt. administer a test, then the defendant has not refused, nor can you recantation, the law enforcement officer declines or refuses to test may be completed expeditiously. If, at that point, with such a almost immediately, without a reasonable [sic] delay so that the to submit to a chemical test, but only if he does so promptly, deemed a refusal, may recant; that is, change his mind and agree Furthermore, any person who has either refused, or been burden in that regard. pertinent in this case in deciding whether the State has met its court instructed. p. 5 admission of evidence of his refusal for consideration by the jury as the trial Evidence that the defendant recanted his refusal, however, does not bar the

other than guilt, or that he recanted and ought to have been given a test.

1988); Matter of Suazo, 877 P.2d 1088, 1089 (N.M. 1994). evaluate that evidence. 552, 554 (N.D. 1974); Larmer v. State, 522 So. 2d 941, 942 (Fla. Dist. Ct. App. the revocation or suspension of their licenses. See Lund v. Hjelle, 224 N.W. 2d defendant in support of his position are, like Harlan, appeals by drivers from to reverse his conviction. We note also that the cases relied upon by the court’s instruction was erroneous in light of Harlan is not a basis upon which liberty to present evidence and argument that his refusal was for some reason applicable to the facts of this case, the defendant’s argument that the trial of which is expressly admissible under RSA 265:88-a. The defendant is at inquiries. Thus, Harlan does not apply in this instance. As Harlan is not there is no argument that the defendant refused to submit to testing, evidence vehicles is authorized to revoke or suspend a driver’s license, are different refusal was recanted for purposes of determining whether the director of motor submit to testing in a criminal trial for driving while intoxicated, and whether a Whether the trial court may admit evidence of the defendant’s refusal to

whether the jury was properly instructed about the manner in which to

whether the defendant’s reading of 265:88-a, an evidentiary statute, that governs the issues in this case. Here, impermissibly modified the circumstances outlined there. Regardless of As the defendant himself acknowledges, it is the operation of RSA

ineffective to cure her earlier refusal. that the defendant refused to submit to testing is properly before the jury and her refusal. By contrast, the issue here is whether, in a criminal trial, evidence refusal to submit to chemical testing when that driver had attempted to recant propriety of penalizing a driver by revoking her license administratively for her express no opinion, we find Harlan inapplicable here. Harlan dealt with the

which a defendant may validly recant a refusal, and the trial court’s instruction According to the defendant, Harlan establishes the circumstances under

appeal, we held that the driver’s recantation was so delayed that it was her refusal, the director of motor vehicles revoked her driver’s license. Id. On submit to the test, but the officer refused to give it. Id. at 195. As a result of testing. Harlan, 113 N.H. at 194-95. Eventually, she stated that she would charged with driving under the influence initially refused to submit to chemical it was contrary to the law as stated in Harlan. In Harlan, a driver arrested and The defendant challenges the trial court’s instruction on the ground that that he was prejudiced by the court’s charge.”

p. 6 the jury from considering the refusal as evidence of guilt if it found that the

received a more favorable instruction than he was entitled to, we cannot say

recantation occurred “too late,” then the attempt to recant would not prevent instructions. The trial court also stated that if the jury determined that the was no certain length of time and that the jury should refer to the earlier

Accordingly, even if the instruction was erroneous, “[g]iven that the defendant gave the defendant greater protection than required under the applicable law. any evidence that he had refused in the first place. Therefore, the instructions “almost immediate” recantation would effectively remove from its consideration sic give it, and gave its own reply to the jury. The trial court responded that there

defendant may have refused that had nothing to do with guilt, but that an After reviewing the defendant’s proposed response, the trial court declined to

administer the test. Could after this time is [] arresting officer obligated to 5 minutes 1 minute means a certain length of time? Clarification of “almost immediately” – is there something that Recant:

question posed by the jury during its deliberations. The jury question stated: Thus, the jury was told that it could not only consider the reasons the The defendant next argues that the trial court erred in its answer to a have refused, and his refusal could no longer be considered evidence of guilt. officer still refused to perform the test, the defendant would not be deemed to on this ground. 105 (1996). For these reasons, we will not reverse the defendant’s conviction

refused to submit to testing.

determined that the defendant recanted “almost immediately,” and that the The trial court’s instruction, however, informed the jury that if it

142 N.H. at 323-25. and that it is the State’s burden to prove that the defendant refused. Parker, evidence the defendant refused for reasons other than consciousness of guilt, sustained instructions that informed the jury that it could consider any

instructed the jury that it could consider evidence that the defendant had that to which he was entitled. Under the statute, the trial court need only have immediate to be valid, the defendant received a more favorable instruction than inaccurately informed the jury that any recantation had to be almost court’s instruction was erroneous because, irrespective of Harlan, it To the degree the defendant may be understood to argue that the trial the trial court.

p. 7 court’s response, and the jury is presumed to follow the instructions given by court’s previous instructions, those instructions were incorporated into the court’s response specifically directed the jury to refer to the written copy of the

instruction.

circumstances under which a recantation would be valid. Because the trial

guilt. This issue, however, was specifically covered by the trial court’s prior administer a test, the lack of a test should not be considered as evidence of informing the jury that if the recantation was timely and the officer refused to prejudicial because it emphasized the impact of a refusal without also erroneous for the same reasons we rejected his challenge to the jury Finally, the defendant argues that the trial court’s response was therefore, reject the defendant’s challenge to the answer as being legally court’s answer was responsive to the jury’s inquiry. recantation was valid, but the officer refused to give the test. Thus, the trial that it should turn to the earlier instructions for further clarification of the outlined how the jury should use the evidence if it determined that the the defendant agrees was accurate. Moreover, the trial court informed the jury Further, the trial court’s answer referred the jury to the instructions which particular time and the trial court informed the jury that it did not, a response recantation did not prevent it from considering the refusal as evidence of guilt. after the permissible time, and the trial court informed the jury that such a Also, the jury sought clarification of the effect of an attempt to recant

Id. deliberations.”

is within the trial court’s discretion to decide how best to aid the jury in its answer a jury’s question with the specific language requested by a defendant; it greater protection than he was entitled to under the applicable law. We, instruction was proper, or to the degree it was not, it gave the defendant argues was erroneous. We reiterate our prior conclusion that the original erred by referring the jury to the prior instruction, which, as noted above, he that there was no specific time within which a recantation would be proper, it do not agree. The jury sought to clarify whether “almost immediately” meant a The defendant further contends that the answer was not responsive. We

giving the response he had proposed, the “trial court is under no obligation to

defendant argues that although the trial court was correct in informing the jury from the jury for an unsustainable exercise of discretion. Id. at 348. The We review the response actually given by the trial court to a question

Littlefield, 152 N.H. at 349.

First, to the extent the defendant argues that the trial court erred by not

was non-responsive, legally erroneous and prejudicial to him. defendant, in fact, refused. The defendant contends that the trial court’s reply p. 8 8

would have in such a proceeding, Harlan, 113 N.H. at 194-95, I believe that the proceeding, and in relation to the effect a refusal to consent to a chemical test interpreted the implied consent statute in the context of a license revocation essentially the same as the version relevant here, RSA 265: p. 8 84. Although we version of our implied consent statute, see RSA 262-A:69-a (1972), which is guilt.” In Harlan v. State, 113 N.H. 194, 195 (1973), we construed a prior “supports an inference that the defendant sought to suppress evidence of his respectfully dissent. chemical test under our implied consent statute. However, because I believe that the trial court’s instruction was misleading, I that a recantation negated the inference of guilt created by a refusal to take a accurately instructed the jury as to the circumstances in which it could find particular case. The question presented here is whether the trial court value of the inference may diminish, depending upon the circumstances of the replaced by RSA 265-A:4 (Supp. 2007)), our “implied consent statute,” Where a defendant recants an initial refusal, however, the probative refuses to submit to a test as provided in RSA 265:84 (2004) (repealed and upon a civil or criminal action or proceeding. It provides that if a person Take Test of Intoxication, 26 A.L.R. 4th 1112 (1983). Annotation, Admissibility in Criminal Case of Evidence that Accused Refused to State v. Lorton, 149 N.H. 732, 735 (2003) (citations omitted); see

controlled drug,” RSA 265: p. 8 88-a. A refusal is admissible as evidence because it drive a motor vehicle while under the influence of intoxicating liquor or any not err in declining to give the precise instruction proposed by the defendant. alleged to have been committed by that person while driving or attempting to as evidence in a civil or criminal action or proceeding arising out of an act State v. Schneider, 124 N.H. 242, 245 (1983), “such refusal may be admissible

2007)) dictates the effect a refusal to take an alcohol concentration test has RSA 265: p. 8 88-a (2004) (repealed and replaced by RSA 265-A:10 (Supp.

DUGGAN, J., dissenting. I agree with the majority that the trial court did

J., dissented. BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred; DUGGAN,

unsustainable exercise of discretion. conclude that the trial court’s answer to the jury’s question was not an instructions were more favorable to him than necessary. For these reasons, we answer was prejudicial to the defendant. Indeed, as previously noted, the incorporated into its answer. Id. As such, we do not agree that the trial court’s instructions to which the jury was directed, and which, therefore, were also be instances where a defendant does p. 9 defendant recants “promptly” and “almost immediately.” However, there may

created by a refusal would be substantially diminished in situations where a guilt created by the defendant’s initial refusal. Certainly, the inference of guilt and completed expeditiously,” a valid recantation could rebut the inference of but recants “without unreasonable delay,” and the test may be “submitted to

administered “without unreasonable delay,” where a defendant initially refuses

“without unreasonable delay,” and “submitted to and completed expeditiously.”

Consequently, because all that is required is that the test be

immediately Harlan, 113 N.H. at 196-97. not occur here; that is, a recantation that was prompt – promptly given almost that, under the implied consent statute, a chemical test be administered to prove by evidence beyond a reasonable doubt that such a recantation did repeated this instruction by stating: “Again, the burden of proof is on the State Schneider, 124 N.H. at 245 (second emphasis added). Thus, Harlan requires deprive the State of an accurate indication of the driver’s condition . . . .” “but indicates that any significant delay in taking a breathalyzer test may serve to inference of guilt that may be drawn from the initial refusal. “Harlan. . . recantation occurred, whether it was valid, and what effect it has upon the In the evidentiary context, the jury must determine whether a

had be completed expeditiously.” (Emphasis added.)

and presented without unreasonable delay so that the tests may

later,” to a breathalyzer test was not cured by her offer to take the test one hour delay so that the test may be completed expeditiously.” (Emphasis added.) It only if he does so promptly, almost immediately, without [un]reasonable In this case, the trial court instructed the jury that a person may recant, statute is the requirement that one of its described tests 198 (quotation omitted; emphasis added). had been told that his belated consent was unacceptable.” Harlan, 113 N.H. at almost immediately retracted his refusal and had been denied the test and noted, however, that “[w]e [we]re not faced with a situation where a defendant take it,” Schneider, 124 N.H. at 245 (citing Harlan, 113 N.H. at 194). We being allowed to take [the] alcohol-level test after [s]he had initially refused to id. at 197-98, and, as a result, the defendant was “forbid[den] . . . from

Therefore, we held that the initial refusal by the driver in that case “to submit completed expeditiously.” Id. at 197 (quotation omitted; emphasis added).

(citations omitted; emphasis added). We found that “[c]learly implied in the the [chemical] test be administered without unreasonable delay.” Id. at 196 In Harlan, we held that our implied consent statute “contemplate[d] that

presented here. manner in which we construed the statute provides guidance on the issue p. 10 10

inference of guilt created by the initial refusal. negate the inference of guilt created by a valid refusal. clearly informed the jury as to the circumstances in which a recantation could defendant was at the very least entitled to an instruction that accurately and trial court’s instruction in error and reverse. law of th[is] case,” Drake, 155 N.H. at 171 (quotation omitted), I would find the almost immediately.” Because the trial court failed to “fairly cover the issues of instructing it that a person could recant “only if” he does so “promptly [and] applicable to the case”). The trial court, however, misled the jury by trial court has a duty to instruct the jury completely and correctly on the law to the case.” (citation omitted)); Jackson v. Morse, 152 N.H. 48, 51 (2005) (“the explain to the jury, in clear and intelligible language, the rules of law applicable N.H. 169, 171 (2007) (“The purpose of the trial court’s charge is to state and circumstances in which the jury could find that a recantation negated the See State v. Drake, 155

RSA 265:88-a, because the trial court chose to give such an instruction, the Even if the defendant was not entitled to a recantation instruction under

own judgment in evaluating conflicting testimony.” (citation omitted)). appropriate if they properly state the law and allow the jurors to exercise their guidance on the law by which to evaluate testimony. Instructions are 319, 324 (1997) (“Jury instructions are designed to give jurors neutral

“promptly [and] almost immediately,” the trial court improperly narrowed the has refused a test may recant “but only” in those instances where he does so created by the initial refusal. Thus, by instructing the jury that a person who circumstances, the recantation could still serve to negate the inference of guilt “promptly,” but does recant “without unreasonable delay.” In such