2008-945, STATE OF NH v. MICHAEL ADDISON

Iacopino on the memorandum of law), for the defendant, as amicus curiae. New Hampshire Association of Criminal Defense Lawyers (Michael J.

the defendant. defender, of Concord, on the memorandum of law, and Mr. Rothstein orally, for director of litigation services, and Christopher M. Johnson, chief appellate David M. Rothstein, deputy chief appellate defender, Richard Guerriero,

the memorandum of law, and Mr. Delker orally), for the State. attorney general, and Jeff er y A. Strelzin, senior assistant attorney general, on Kelly A. Ayotte, attorney general (N. William Delker, senior assistant to press. Errors may be reported by E-mail at the following address:

No. 2008-945 editorial errors in order that corrections may be made before the opinion goes Hillsborough–northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 not necessary.

adopt rules, and the State will argue that additional rules are RSA 630:5, XI. . . . The defense will request that the Court case if the Court adopts special rules to govern the factors in

limit. Indeed, given the record in this case and the issues to be require the case be briefed and decided within the 60-day time appellate review in this case may differ from a typical Rule 7 Answer p. 2 2: The parties agree that RSA 630:5, X, does not

extended for an additional period of 30 days for good cause . . . . certification of the record by the sentencing court, which may be requires this court’s automatic review to occur within 60 days after Question p. 2 2 limit for the filing of the notice of appeal.: The effect of the provision in RSA 630:5, X, that

parties’ answers, follow:

of conviction and the sentence of death. The mechanics of intends to file a notice of appeal challenging both the judgment scheduled to be heard on March 6, p. 2 2009, the defendant 7(1)(C). Following resolution of those motions, which are

post-trial motions in superior court, which have tolled the time pursuant to Rule 7. The defendant has timely filed several requested the parties address five questions. The questions, together with the defendant in the case at bar intends to file a notice of appeal

recommended procedure and schedule to be followed for this case. We appeal outlining the issues to be heard on appeal, the X. In doing so, we requested that the parties submit a joint response as to the in a case where the defendant does not intend to file a notice of

Answer 1: While the nature of the automatic review may differ

case under Supreme Court Rule 7, and, if so, how it differs . . . . whether it differs from appellate review of a conviction in a criminal judgment of convictions provided for in RSA 630:5, including review of the merits of the appeal. Question 1: The nature of the court’s automatic review of the

On December 31, p. 2 2008, we opened the present appeal pursuant to RSA 630:5, December 22, 2008, the Superior Court (McGuire, J.) imposed the sentence. 2008, a jury recommended that the defendant be sentenced to death. On The record reveals the following procedural posture. On December 18,

before us is whether special appellate rules must be adopted prior to any and sentence are now on appeal. See RSA 630:5 ( p. 2 2007). The issue currently murder, see RSA 630:1, I(a) (2007), and sentenced to death. His conviction DUGGAN, J. The defendant, Michael Addison, was convicted of capital murder appeal.

p. 3 rules of appellate procedure are necessary to decide a capital The State intends to argue that no such additional, specific

will advance this position in a separate memorandum. . . .

RSA 630:5, X, and both the state and federal constitutions. It

additional, specific p. 3 rules of appellate procedure are required by position, as noted in earlier pleadings before this Court, that necessary for appellate review. The defense maintains its defense argues that Rule 7 does not provide the procedures

appeal addresses the factors outlined in RSA 630:5, XI, the issues described in RSA 630:5, XI. To the extent that the sentence of death under Rule 7. The appeal will raise all

the appeals in the following cases: death sentence should not begin until after this Court decides

will file an appeal of both the capital murder conviction and

other words, briefing of the capital murder conviction and conviction or sentence in the capital murder case is briefed. In should be heard and decided before the appeal of the

Addison, No. 2009-0048 (El Mexicano robbery). This will allow Addison, No. 2009-0046 (7-Eleven robbery); State v. Michael No. 2009-0047 (Edward J. Roy Drive); State v. Michael receiving the complete record. In the present case, the defense State v. Michael Addison, identify the issues to be heard on appeal within 60 days of memoranda outlining their respective positions on this issue. situation, this Court would have to accept the appeal and

convictions, which were considered as aggravating factors, Answer 4: The parties agree that the appeals of the non-capital

under RSA 630:5, VII, should have on review in this case . . . . defendant of convictions that were considered aggravating factors Question 4: The effect, if any, that the filing of appeals by the

answer to this question. The parties intend to file separate the issues to be heard on appeal. In other words, in that Answer 3: The parties have conferred and cannot agree on the

required by RSA 630:5, XI . . . . the sentence of death, and in making the specific determinations Question 3: The process that the court should follow in reviewing

defendant does not intend to file a notice of appeal outlining interpret this time frame to apply in those cases in which a automatic review” within the 60-day time frame. The parties

paragraph X only requires that the case be “subject to decided, any such time limitation is unworkable. Rather, p. 4 4

review pending the adoption of rules pursuant to Supreme Court Rule 51. under special rules. The defendant therefore moves for a stay of appellate appeal.

propose a briefing schedule following the filing of the notice of

that language according to its plain and ordinary meaning. State v. Duran, statutes, we look to the language of the statute itself, and, if possible, construe after the defendant has filed his memorandum on this issue. a whole. State v. Formella in a separate memorandum, to which the State may respond, 158 N.H. 11 p. 4 4, 116 (2008). When interpreting of the legislature’s intent as expressed in the words of the statute considered as appeals statute. In matters of statutory interpretation, we are the final arbiters In addressing the parties’ arguments, we first look to the capital murder

the State and Federal Constitutions, require that our review be conducted The defendant contends that the plain language of RSA 630:5, XI, as well as law define the requisite standards for our review pursuant to RSA 630:5, XI. briefing and argument. The parties are willing to confer and than in any other, and that our ordinary rules of appellate procedure and case The State argues that the appellate process in this case is no different previous paragraph]. The defendant will set forth his position is this issue that we address here. be considered at the same time as those set forth in [the of death and making the specific determinations required by RSA 630:5, XI. It aggravators. The State does not agree that this issue should third question regarding the process we should follow in reviewing the sentence Massachusetts convictions upon which the State relied as As indicated above, the parties could not agree upon a joint response as to the

the parties to evaluate whether issues can be grouped for filed his Rule 7 notice of appeal. This will allow the Court and conviction and death sentence until after the defendant has ruling on the briefing schedule for the capital murder Answer 5: The parties agree that this Court should defer

review of the penalty of death should be bifurcated. additionally review a legal issue regarding certain specifically, whether review of the judgment of conviction and reviewing the judgment of conviction and the penalty of death; Question 5: The procedure that the court should follow in

The defendant intends to argue that this Court should

appeals on the capital murder conviction and death sentence. the parties to address the impact of the resolution of those p. 5 5

procedures for the convening of multicounty grand juries”); RSA 606:10, VII rules”); RSA 600-A:2, II (2001) (“adopt general rules . . . establishing standard

equitable fee schedule”); RSA 490:32, V (Supp. 2008) (“establish disciplinary purpose of this section.”); RSA 490:26-a (Supp. 2008) (“establish by rule an (Supp. 2008) (“The supreme court shall establish rules . . . to effectuate the cases, considering both the crime and the defendant. duties and responsibilities of the . . . guardian ad litem.”); RSA 461-A:7, XI (2002) (“The New Hampshire supreme court shall adopt rules regarding the cases, it would have included such language. See, e.g., RSA 169-C:10, III by law; and intended us to adopt separate, special rules of appellate review for capital have appellate rules and that such rules are followed. Had the legislature Instead, based upon its plain language, the statute requires simply that we accordance with rules adopted by said court” does not require special rules. The portion of the statute requiring that cases “shall be heard in

(Emphasis added.)

and disproportionate to the penalty imposed in similar

finding of an aggravating circumstance, as authorized (b) Whether the evidence supports the jury’s arbitrary factor; and under the influence of passion, prejudice or any other (a) Whether the sentence of death was imposed

determine: XI. With regard to the sentence the supreme court shall

shall be heard in accordance with rules adopted by said court. review by the supreme court shall have priority over all other cases

not see fit to include. exceed 30 days by the supreme court for good cause shown. Such record unless time is extended for an additional period not to 60 days after certification by the sentencing court of the entire shall be subject to automatic review by the supreme court within imposed, the judgment of conviction and the sentence of death X. In all cases of capital murder where the death penalty is

RSA 630: p. 5 5 provides, in pertinent part:

Formella, 1 p. 5 58 N.H. at 116. not look beyond the language of the statute to discern legislative intent.

neither consider what the legislature might have said nor add words that it did p. 6 62 p. 5 5:3 (2007); Petition of State of N.H., 152 N.H. 185, 187 (2005). We will according to the fair import of their terms and to promote justice. See RSA 158 N.H. 146, 155 (2008). We construe provisions of the Criminal Code 6

rules of appellate review, ineffective or arbitrary.”). Although some jurisdictions have adopted specific of review for all cases, it does not follow that the appellate review process is

153, 195 (197 p. 6 6). Neither the State nor Federal Constitution mandate formal appellate procedure in capital sentence review. See Gregg v. Georgia, 428 U.S. We conclude that RSA 630:5 and the Supreme Court Rules govern our

see, e.g., Games, 535 N.E.2d at 537.

promulgated shall have the force and effect of law. that [Florida] has not chosen to formulate a rigid objective test as its standard procedure to be followed in all such courts. The rules so cases. administration of all courts in the state and the practice and See Proffitt v. Florida, 428 U.S. 242, 258 (197 p. 6 6) (“While it may be true which has never mandated formal rulemaking for review of death penalty of the supreme court justices, make rules governing the Our view is consistent with that of the United States Supreme Court,

procedure be adopted through the formal rulemaking process. enforcement, we conclude that the constitution does not require that the defendant to a fair appellate procedure, free from arbitrary and discriminatory Although Part I, Articles 15, 18, and 33 of the State Constitution entitle the

head of all the courts. He shall, with the concurrence of a majority The chief justice of the supreme court shall be the administrative appellate review of death penalty cases.”), Part II, Article 73-a of the State Constitution provides:

Ball, 124 N.H. 22 p. 6 6, 231 (1983). Hampshire Constitution, citing federal opinions for guidance only. See State v. words to the statute that the legislature did not see fit to include. disproportionate.” We initially address the defendant’s claim under the New adopted.” The legislature did not require special rules, and we will not add counsel, and against the imposition of punishment that is cruel, unusual or required pursuant to “his rights to due process and effective assistance of Constitutions. The defendant argues that special rules of appellate review are We next address the defendant’s argument under the State and Federal

our standard rules of appellate review allow for the requisite meaningful also Games v. State, 535 N.E.2d 530, 537 (Ind.) (“We have repeatedly held that with our preexisting appellate rules. See, e.g., Sup. Ct. R. 5-7, 13-18, 21; see N.H. at 155. Thus, our review of death sentences may be completed consistent

language provides, generally, that our review must be pursuant to “rules (2001) (“adopt rules implementing the provisions of this section”). Rather, the p. 7 7

United States Supreme Court explicitly rejected the idea in proportionality review was considered to be constitutionally required until the similar cases, considering both the crime and the defendant.”). The

Acts 16, § 3(b); State v. Bland, 958 S.W.2d 651, 663-64 n.11 (Tenn. 199 p. 7 7) provision requiring comparative proportionality review. See, e.g., 1995 Conn. XI prior to any review of the merits. After Pulley, several states amended their death penalty statutes, repealing the adequate information and guidance.” case in which the death penalty is imposed and the defendant requests it.”). carefully drafted statute that ensures that the sentencing authority is given comparative proportionality review by an appellate court is required in every 465 U.S. 37, 50-51 (1984) (“There is . . . no basis in our cases for holding that

cases, considering both the crime and the defendant.” of death is excessive or disproportionate to the penalty imposed in similar the sentence of death is excessive or disproportionate to the penalty imposed in the findings of a statutory aggravating circumstance, and whether the sentence for comparative proportionality review. See, e.g., Laws 19 p. 7 77, 440:2 (“Whether passion, prejudice, or any other arbitrary factor, whether the evidence supports death penalty statutes based upon the Georgia statute, including a provision death sentence to determine whether it was imposed under the influence of In response to Gregg, several states, including New Hampshire, enacted

determine the standards we will apply to the factors enumerated in RSA 630:5, Id. at 195. conclude, however, that in the interest of fairness to the parties, we should argues that the formal rulemaking process is necessary. We disagree. We of death not be imposed in an arbitrary or capricious manner can be met by a an analysis similar to any other issue of first impression. The defendant statutory scheme, stating “the concerns expressed in Furman that the penalty and brackets omitted). The United States Supreme Court upheld the amended

sentencing procedures required that the Georgia Supreme Court “review every penalty statute was amended. Gregg, 428 U.S. at 162-63. The amended and . . . freakishly imposed.” Id. at 310. Following Furman, the Georgia death the Georgia statute unconstitutional because the death penalty was “wantonly Constitution. Furman v. Georgia, 408 U.S. 238, 309 (19 p. 7 72). The Court found merits. The State argues that our review pursuant to RSA 630:5, XI requires unusual punishment in the Eighth Amendment to the United States Georgia death penalty statute violated the prohibition against cruel and v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court held that the the United States Supreme Court decision in Gregg. Prior to Gregg, in Furman The factors articulated in RSA 630:5, XI were adopted in 1977 following

We now address the procedure we will follow prior to our review on the

rulemaking process is denied. rulemaking. Thus, the defendant’s motion to stay pending the formal p. 8 8

it has no death penalty cases, though it has a capital sentencing scheme.” pointed out, “New Hampshire has not defined the pool for comparison because interpreting our death penalty statute is undeveloped. As other courts have

briefing schedule to allow the parties an opportunity to address these issues.

BRODERICK, C.J.