2008-189, STATE OF NEW HAMPSHIRE v. JOSHUA LAMY

manslaughter indictment pertaining to the death of D.E., in not granting a convictions, arguing that the trial court erred in not dismissing the

Abramson

state prison for forty-and-one-half to eighty-one years. He appeals his counts of negligent homicide, see RSA 630:3 (2007), and was sentenced to the 631:2 (2007), two counts of manslaughter, see RSA 630:2 (2007), and two at RSA 265-A:3 (Supp. 2008)), two counts of second degree assault, see RSA driving while impaired, see RSA 265:82 (2004) (repealed 2006; current version defendant, Joshua Lamy, was convicted of three felony counts of aggravated DUGGAN, J. After a jury trial in the Superior Court (, J.), the

and orally, for the defendant. Theodore Lothstein, assistant appellate defender, of Concord, on the brief

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

2008-189 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 ___________________________

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 22 as rate.” He was “basically in cardiac arrest.”

p. 2 issued.

decreased blood flow after Emmons sustained injuries. asphyxia resulting from maternal abdominal trauma, which was caused by

was submitted to the jury, which returned guilty verdicts on all charges. limp, pale, had no spontaneous breathing on his own, and no detectible heart Doctor Andrew’s testimony is an issue for the jury and not the court.” The case

put him on a respirator to assist with his breathing. A birth certificate was

taxi later died from her injuries. He was removed from life support about two weeks later and died of perinatal

minute. However, by the time doctors extracted D.E. they noted that “he was Andrew that the child was born alive and the weight, if any, to be given to

doctors immediately gave him medication to maintain his blood pressure and doctors were able to stabilize D.E. Once a heart rate was reestablished, “heroic resuscitative efforts, medications, lines, intubation, and so forth,” the sentencing, the pre-sentence investigation (PSI) report, the arguments of At sentencing, the trial court stated that it had considered the goals of driver of the taxi, Brianna Emmons, and her passenger. The passenger in the neurological function, and never manifested the ability to breathe on his own.

Cesarean section, D.E. showed a severely depressed heart rate of fifty beats per The trial court denied the motion, stating: “[T]here is evidence from Doctor D.E., was cut off, necessitating an emergency Cesarean section. Prior to the to prove that D.E. was “born alive,” as required under New Hampshire law. Hospital. As a result of the injuries she sustained, blood flow to the fetus, manslaughter indictment pertaining to D.E., arguing that the State had failed At the close of the State’s evidence, the defendant moved to dismiss the

heart with medication and return his heart rate to normal levels. Through

caused serious injuries to the defendant and his passenger, as well as the defendant ran multiple red lights before colliding with a taxi. The collision From the moment of extraction, D.E. never showed any evidence of Street in Manchester. Traveling at speeds over 100 miles per hour, the

collision, she was brought directly to the labor and delivery floor at Elliot

Nine-and-a-half minutes later, doctors were able to stimulate D.E.’s

February 18, 2006, the defendant, while intoxicated, drove his car down Maple

remand. Because Emmons was seven months pregnant at the time of the

The jury could have found the following facts. Around 1:00 a.m. on

sentencing that he lacked remorse. We affirm in part, reverse in part, and mistrial because of juror misconduct, and in drawing the inference at remorse. p. 3 were bored with the entire thing. You’ve shown absolutely no

looking around the courtroom every time a door opened as if you

victims were reading their statements to the Court and you were

in time to be able to take your shower. I watched you today as the to point out that you want to get back to the House of Corrections the end of that day was to dispatch your attorney up to the bench

unless it had been born alive.” Under that rule, “an infant could not be the subject of homicide at common law RSA 630:1, IV (2007). This language codifies the common law “born alive” rule.

about the human wreckage at the accident scene, your concern at

specifically provide that “the meaning of ‘another’ does not include a foetus.”

that on the second day of trial, after hours of grueling testimony really no remorse, and as point in fact I would put on the record haunts you, and I’ve also taken into account that you’ve shown lacked remorse based upon his request to shower after the second day of trial.

death of another.” RSA 630:2, I, :3, II. Our homicide statutes, however, be guilty of manslaughter or negligent homicide, a person must “cause[] the not dismissing the manslaughter indictment as to D.E. In New Hampshire, to

470 P.2d 617, 620 (Cal. 1970). begin to fathom the damage that you have caused because nothing Keeler v. Superior Court of Amador County, misconduct; and (3) that the trial court erroneously drew the inference that he

We first address the defendant’s argument that the trial court erred in

find that you have learned nothing from those records. You cannot that the trial court erred in not granting a mistrial because of juror by your motor vehicle and your criminal records. In conclusion, I erred in not dismissing the manslaughter indictment pertaining to D.E.; (2) addition, there is a clear escalation of your behavior as evidenced On appeal, the defendant makes three arguments: (1) that the trial court

pending appeal. Sentencing for the negligent homicide convictions was held in abeyance defendant to the state prison for forty-and-one-half to eighty-one years. The trial court then imposed the PSI recommendation, sentencing the

you have shown complete disregard for human life. . . . In

sentence. The court then stated:

[I]n considering all these factors, in light of the goals of sentencing,

impact statements and the defendant’s own statement before reaching a counsel, the defendant’s prior record, the nature of the charges, the victim p. 4 4 “another” as defined in the statute.

who has been born alive.” continue the common-law rule limiting criminal homicide to the killing of one

been born and is alive.”

interpreting analogous New Hampshire statutes.

determine whether there was sufficient evidence to prove that D.E. was the legislature did not see fit to include. Model Penal Code. at which a fetus becomes “another” for purposes of criminal liability, and then 630:1, IV. Rather, we must first interpret RSA 630:1, IV to determine the point continuation thereof as opposed to a new enactment. We must therefore look 630:1, IV is consistent with pre-existing common law, we interpret it as a

comments to the Model Penal Code state that “[t]he effect of this language is to

also adopted the born alive rule, defining a human being as “a person who has isolation. Id. The Model Penal Code reason, we have looked to the Model Penal Code and its commentaries when

neither consider what the legislature might have said nor add language that We have recognized that our Criminal Code is largely derived from the

agree, the legislature already explicitly adopted the rule when it enacted RSA (2002). promote justice.” RSA 625:3 (2007); see State v. Foss, 1 p. 4 48 N.H. 209, 211 the Criminal Code provisions “according to the fair import of their terms and to policy sought to be advanced by the entire statutory scheme. Id. We construe “another” for purposes of the statute. statutes in light of the legislature’s intent in enacting them, and in light of the history to aid our analysis. Whittey, 149 N.H. at 467. Our goal is to apply

Id. If a statute is ambiguous, however, we consider legislative

interpret a statute in the context of the overall statutory scheme and not in

(2008). We interpret legislative intent from the statute as written and will and ordinary meaning to the words used, State v. Langill, 157 N.H. 77, 8 p. 4 4 whether to adopt the born alive rule because, as the State and the defendant the statute, State v. Whittey, 149 N.H. 463, 467 (2003), and ascribe the plain Dansereau, 157 N.H. 596, 598 (2008). We begin by examining the language of intent as expressed in the words of the statute considered as a whole. State v. Horner, 153 N.H. 306, 309 (2006). We are the final arbiters of the legislative capable of independent existence, that D.E. lacked both, and was therefore not We review a trial court’s interpretation of a statute de novo. State v. born alive standard requires a fetus to show spontaneous signs of life and be necessitating dismissal under RSA 630:1, IV. Specifically, he argues that the

This case does not require us to decide the oft-debated question of

to prove beyond a reasonable doubt that D.E. was in fact “born alive,” thus The defendant argues that the State failed to present sufficient evidence p. 5 5

some form of liability for the killing of a fetus. The vast majority have done so the California Supreme Court’s opinion in

alive rule. , 49 Geo. L.J. legislatures began enacting feticide statutes, thus modifying the common law. the killing of a fetus. amended their homicide statutes to include some form of criminal liability for

Today, thirty states have abandoned the born alive rule and imposed The most high-profile and oft-cited decision addressing the born alive rule was

then, and has not since, amended our homicide statutes’ adoption of the born Code. § 3 p. 5 5-42-1-1(4) (Supp. 2004). The New Hampshire legislature did not received little attention until the nineteenth century, when some state See, e. g., Cal. Penal Code § 187(a) (Deering 2008); Ind.

at 618. As a result of the decision, a number of states, including California, then beat and kicked the mother’s stomach, causing the death of the fetus. Id. fetus when an estranged husband announced his intent to kill the baby, and held that the California homicide statute did not encompass the death of a enough to satisfy the standard,

“wholly born” with “independent circulation.” 39 p. 5 5, 447-520 (1961) (providing text and development of state laws on feticide). See Quay, Justifiable Abortion—Medical and Legal Foundations

the infant was ever “alive.” The rule was widely adopted in early American jurisprudence, but

essential, Brain, 172 Eng. Rep. at 1272. dies.’” 72 p. 5 5; Rex v. Poulton, (1832) 172 Eng. Rep. 997, 997, though breathing was not foetus is (1) quickened, (2) born alive, (3) lives for a brief interval, and (4) then Regina v. Reeves, (1839) 173 Eng. Rep. 724, the child was separated from the mother and that it breathed was usually required some evidence of a live birth before finding criminal culpability. Eng. Rep. 355, 356; Rex v. Brain, (1834) 172 Eng. Rep. 1272, 1272. Proof that

proof thereof). Nineteenth century English cases required that the child be Rev. 134, 141- p. 5 56 (1904) (chronicling debate over definition of live birth and evidentiary standard requiring observation of the child to prove the See Atkinson, Life, Birth, and Live-birth, 20 L.Q. inception, the crux of the matter has been the determination of whether or not Cessation of Constitutionality, 14 N.Y.L.F. 411, 420 (1968)). Since the rule’s Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Keeler, 470 P.2d at 620 (quoting Means, The Law of New York

p. 5 590. As it evolved, the common law regarded infanticide as murder “‘only if the

p. 5 581 (1987). Because of high infant mortality rates during childbirth, courts The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, delecti in the killing of an infant. See Forsythe, Homicide of the Unborn Child:

The born alive rule emerged in fourteenth century England as an

the Criminal Code was enacted. Cf. State v. Aldrich, 124 N.H. 43, 48 (1983). to the common law origins of the born alive rule and its meaning at the time p. 6 6

and detachment from the mother, such as breathing or a detectable pulse. required evidence that the infant demonstrate some sign of life after expulsion

1984); Bennett v. State, 377 P.2d p. 6 634, 636 (Wyo. 1963). 248 S.E.2d 781, 784 (Va. 1978); State ex rel. Atkinson v. Wilson, 332 S.E.2d 807, 812 (W. Va. Beale, 376 S.E.2d 1, 4 (N.C. 1989); State v. Oliver, 563 A.2d 1002, 1004 (Vt. 1989); Lane v. Com., Super. Ct. App. Div. 1981); State v. Willis, 652 P.2d 1222, 1226 (N.M. Ct. App. 1982); State v. 1988), aff’d 561 A.2d 216 (Md. 1989); State in the Interest of A. W. S., 440 A.2d 1144, 1145 (N.J. A.2d 156, 160 (Conn. Super. Ct. 1986); Williams v. State, 550 A.2d 722, 726 (Md. Ct. Spec. App. to show some sign of life and sustain itself, it would die. Thus, the standard (McKinney 2004); Or. Rev. Stat. § 163.005(3) (Supp. 2008); State v. Anonymous (1986-1), 516 (2007); Neb. Rev. Stat. § 28-302(2) (1995); N.H. RSA 630:1, IV; N.Y. Penal Law § 125.05 § 222(22) (Supp. 2008); Haw. Rev. Stat. Ann. § 707-700 (2008); Mont. Code Ann. § 45-2-101(29) See Alaska Stat. § 11.41.140 (2008); Colo. Rev. Stat. § 18-3-101(2) (2008); Del. Code Ann. tit. 11 3 (Okla. Crim. App. 1994); State v. Horne, 319 S.E.2d 703, 704 (S.C. 1984). See Com. v. Cass, 467 N.E.2d 1324, 1325 (Mass. 1984); Hughes v. State, 868 P.2d 730, 734-35 2 Wash. Rev. Code § 9A.32.060(b) (2008); Wis. Stat. § 940.01(1)(b) (2008). Tex. Penal Code Ann. § 1.07(26) (Vernon Supp. 2008); Utah Code Ann. § 76-5-201(1)(a) (2003); 23-5 (2002); S.D. Codified Laws § 22-1-2(50A) (Supp. 2008); Tenn. Code. Ann. § 39-13-214 (2006); a homicide has been committed.” 2 C. Torcia, (LexisNexis Supp. 2008); 18 Pa. Cons. Stat. Ann. §§ 2601-2609 (West 1998); R.I. Gen. Laws § 11- 2006); N.D. Cent. Code § 12.1-17.1-01 to -06 (1997); Ohio Rev. Code Ann. § 2901.01(B)(1)(a)(ii) Ann. § 97-3-37 (2006); Mo. Rev. Stat. § 1.205 (2000); Nev. Rev. Stat. Ann. § 200.210 (LexisNexis Comp. Laws. Ann. § 750.322 (West 2004); Minn. Stat. Ann. § 609.2661 (West 2003); Miss. Code infant’s life support was its connection to its mother. Once removed, if unable Ky. Rev. Stat. Ann. § 507A (LexisNexis 2008); La. Rev. Stat. Ann. § 14.2(7) (Supp. 2008); Mich. Ind. Code § 35-42-1-1(4); Iowa Code Ann. § 707.8 (West 2003); Kan. Stat. Ann. § 21-3452 (2007); (LexisNexis 2008); Ga. Code Ann. § 16-5-80 (2007); 720 Ill. Comp. Stat. Ann. 5/9-1.2 (West 2002); Ark. Code Ann. § 5-1-102(13)(B) (2006); Cal. Penal Code § 187(a); Fla. Stat. Ann. § 782.09 has an existence separate and independent of the mother. See Ala. Code § 13A-6-1 (Supp. 2008); Ariz. Rev. Stat. Ann. § 13-1103A(5) (LexisNexis 2008); 1

People v. Bolar, 440 N.E.2d p. 6 639, 645 (Ill. Ct. App. 1982); Huebner v. State, 111

alive rule. (Tex. Ct. App. 1889). Before the advances of modern medicine, the extent of an S.W.2d 1014, 1014 (Ky. Ct. App. 193 p. 6 6); Harris v. State, 12 S.W. 1102, 1103 Dellatore, 761 A.2d 226, 230 (R.I. 2000); Jackson v. Commonwealth, 96

In clarifying the rule, courts have held that a child is “born alive” when it

at 140 (15th ed. 1994).

despite an attack upon it and an injury to the mother while it was in the

Under the rule as it survives today, “If the child is born alive, 3 Eighteen states, including New Hampshire, retain some form of the born

See 2 W. LaFave, Substantive Criminal Law § 14.1(c), at 422-23 (2d ed. 2003). criminal liability attaches, ranging from conception to quickening or viability. jurisdictions abandoning the rule, the standard varies widely as to when statutorily, while a small minority have done so judicially. Among those 1 2 or the placenta is attached.

p. 7 control our interpretation of the Criminal Code. 2005, 268:1. Though informative to our analysis, the civil statute does not the department of health and human services to the department of state. Laws

RSA chapter 5-C prior to transference of the vital records administration from

the heart, pulsation of the umbilical cord, or definite movement of liability. Like other states facing the same task, we begin by considering the breathes, or shows any other evidence of life, such as beating of ability to exist independent of artificial support at some point in the future. duration of pregnancy, which, after such expulsion or extraction,

As to which births must be reported, the legislature provided: vital records administration within the New Hampshire Department of State. RSA 5-C:1, XIX (Supp. 2008). Both provisions were part of a broad revision of

determination of when a fetus becomes “another” for the purposes of criminal required that the child show some spontaneous sign of life, as well as the mother of a product of human conception, irrespective of the “Live birth” means the complete expulsion or extraction from its manner”).

2008), hospitals and institutions must report every live birth to the division of 644; State v. Green, 781 P.2d 678, 683 (Kan. 1989). Under RSA 5-C:19 (Supp. maintained by artificial means, there is spontaneous brain function.”); People v. Flores, 4 Cal. Rptr. 2d 120, 125 (Ct. App. 1992); Bolar, 440 N.E.2d at

We now turn to the interpretation of our own statute, and the Because of these advances, states employing the born alive doctrine have those functions artificially resuscitated and maintained some time later. delivered with no heartbeat, no breathing, and no brain function, yet have from its mother, the child must be able to “live and grow in the normal Chavez, 176 P.2d 92, 95 (Cal. Dist. Ct. App. 1947) (holding that if separated lived separate and apart from its mother without artificial means); People v. Dellatore, 761 A.2d at 230-31 (affirming jury instruction that child must have

respiratory or cardiac function or, when respiratory and cardiac functions are See Alaska Stat. § 11.41.140 (“A person is ‘alive’ if there is spontaneous

rule. Through the efforts of doctors and technology, a fetus can now be As medical technology has advanced, however, so too has the born alive

infant’s lungs is sufficient corroboration of fact it was born alive). existence with respiration and circulation); Harris, 12 S.W. at 1103 (air in an N.W. 63, 64 (Wis. 1907) (taking several breaths sufficient to show independent on the part of people interested in its work.’” p. 8 study than any other single legislative proposal in [New Hampshire’s] history later, the commission reported that the bill “‘perhaps received more time and

in RSA 630:1, IV. capital murder statute, but did not amend or repeal the definition of “another” can result in criminal prosecution. some spontaneous sign of life before it is considered “another” and its death

consolidated and modern Criminal Code. Laws 1967, ch. 451. When the In 1967, the legislature established a commission to study and recommend a and 1994, the legislature again amended the capital murder statute, leaving RSA 630:1, IV intact. done so in one of the six revisions of RSA 630:1 since its enactment in 1971. See Laws 1977, 440:1, 588:41. In 1988, 1990 capital murder statute and provided procedural requirements for such cases,

be statement of then Chief Justice Kenison). In 1974, the legislature created our

requires such evidence, demonstrated by some spontaneous sign of life. consistent with the common law surrounding the born alive rule, which also defining when criminal liability attaches to the killing of a fetus, it would have artificial life support, it does require “evidence of life.” We read this to be Indeed, had the legislature intended to overturn established common law

matter of medical determination, and the issuance of a birth certificate should

spontaneous nature as opposed to artificially supported vital functions. We the approach taken by other states and our own application of the Criminal legislature’s intent that the evidence concerning live birth must be of a movement of voluntary muscles” within RSA 5-C:1, XIX demonstrates the Chavez, 176 P.2d at 95; Dellatore, 761 A.2d at 231. The inclusion of “definite

disagree. 683. Although the definition of live birth in RSA 5-C:1, XIX does not mention Dellatore, 761 A.2d at 230-31; Bolar, 440 N.E.2d at 644; Green, 781 P.2d at was adopted); see also Chavez, 176 P.2d at 95; Flores, 4 Cal. Rptr. 2d at 125; of artificial life support. Whether a fetus is born alive, the State argues, is a Aldrich, 124 N.H. at 48 (looking to common law definitions when Criminal Code either take a breath or have circulation independent of the mother, irrespective See Donohue, 150 N.H. at 183 (looking to the Model Penal Code); supersedes the common law born alive rule, and requires only that the child rule and the common law definition of “born alive” would be inconsistent with statutes without considering the legislature’s explicit adoption of the born alive To apply the definition of live birth in RSA 5-C:1, XIX to our homicide

standard, there was sufficient evidence to prove that D.E. was born alive. We prima facie evidence of such a birth. The State argues that under that

case. Rather, it argues that the definition of live birth in RSA 5-C:1, XIX The State does not argue that the born alive rule does not apply in this question to go to the jury. p. 9 insufficient evidence to support the convictions, and it was error to allow the no evidence to support a finding of spontaneous signs of life, there was

time [he] examined him at age fourteen days,” function. The medical examiner testified that D.E.’s brain “was liquified by the

definite movement of voluntary muscles.” RSA 5-C:1, XIX. Because there was

medication to maintain his blood pressure and never acquired any brain

sign of life “such as beating of the heart, pulsation of the umbilical cord, or There was, however, no testimony that D.E. ever exhibited any spontaneous efforts and doctors’ ability to artificially restore and maintain a heart rate.

D.E. was never able to breathe without the aid of a respirator, required

common law surrounding the born alive doctrine, which is a matter of law. occurred, but has no effect upon the interpretation of the statute and the alive upon D.E.’s pre-extraction heart rate, his body’s reaction to resuscitative issuance of a birth certificate reflects a doctor’s belief that a “live birth” has consciousness. The medical examiner based his opinion that D.E. was born

was only able to manifest some signs of life after extensive resuscitative efforts. examiner testified that D.E. was essentially in cardiac arrest when born, and Here, D.E. never displayed any spontaneous sign of life. The medical

overcome by evidence demonstrating its lack of reasonable credibility). The (holding death certificate is prima facie evidence of cause of death, but can be presumption is rebuttable); Abbott v. Insurance Co., 89 N.H. 149, 153 (1937) rebutted”); see also State v. Buckwold, 122 N.H. 111, 112 (1982) (stating Hampshire. (prima facie means: “Sufficient to . . . raise a presumption unless disproved or adopt and continue the application of the common law born alive rule in New rebuttable presumption. See Black’s Law Dictionary 1228 (8th ed. 2004) facie evidence of a live birth, such evidence, by definition, creates only a Even if we assume, as the State argues, that a birth certificate is prima

from the evidence in the light most favorable to the State. Id. State. State v. Hudson, 151 N.H. 688, 690 (2005). We also take all inferences determination, we examine the evidence in the light most favorable to the to prove that D.E. was born alive under this standard. In making that Next, we must determine whether the State presented sufficient evidence

The history of our homicide statutes demonstrates the legislature’s intent to eighteen, but did not amend the definition of “another.” See Laws 2005, 35:1. limited application of the capital murder statute to individuals over the age of :2; Laws 1990, 199:1; Laws 1994, 128:1, :2. Finally, in 2005, the legislature IV so as to apply it to the newly created capital offenses. See Laws 1988, 69:1, broadening its application to additional offenses, but only amended RSA 630:1, p. 10 Juror 9 making any such comment.

“looked at it from different angles.” Jurors 1, 8, 10, 11 and 12 did not recall 7 recalled that Juror 9 told the others that he had returned to the scene and said he went back, stopped at the . . . light, and then . . . looked down.” Juror

referring to his observations during the sanctioned view. Juror 6 stated: “[H]e

heard Juror 9 say he had returned to the scene, but thought he may have been remember if he said he had gone back independently. Juror 5 thought she believed Juror 9 had said he returned to the scene and asked them if they 9 saying that he had looked right at the intersection, but was unable to

then conducted an individual

dismissed Juror 9. The trial court then individually recalled those jurors who road,” and believed he had done so during the trial. Juror 4 remembered Juror

referring to the pretrial view, but had returned independently. The trial court

The trial court conducted a returned to the scene of the collision to investigate after the jury’s pretrial view. any misconduct had actually occurred, but, out of an abundance of caution, Juror 3 reported that Juror 9 had made comments indicating that he had intersection and looked to the right to see if he could see how far down the After the initial voir dire, the trial court was unable to determine whether

could see two hundred feet.” She was adamant that Juror 9 had not been statutes as they pertain to a fetus. trial court then conducted a

motion for a mistrial because of juror misconduct. During jury deliberations, Juror 2 remembered Juror 9 saying that he “had been to that could were it still common law.

had said: “I went back to the scene and I looked over that metal object and you do, it should follow the lead of many other states and revisit the homicide voir dire of Juror 3, who maintained that Juror 9 and insisted that his comments pertained to the pretrial view of the scene. The

and to fix the degree, extent and method for punishment.”

The defendant argues that the trial court erred in not granting his as statutory law, we cannot “mold, change, [or] reverse” the doctrine as we

780. Should the legislature find the result in this case as unfortunate as we Green, 781 P.2d at 683; Greer, 402 N.E. at 209; Guthrie, 293 N.W.2d at 778, N.H. 131, 134 (2003) (quotation omitted); accord Atkinson, 332 S.E.2d at 810;

criminal law, “[i]t is the province of the legislature to enact laws defining crimes

App. 1980). However, because the legislature explicitly chose to adopt the rule A. W. S., 440 A.2d at p. 11 1146; People v. Guthrie, 293 N.W.2d 775, 778 (Mich. Atkinson, 332 S.E.2d at 810; People v. Greer, 402 N.E.2d 203, 209 (Ill. 1980); may be an outdated anachronism often producing anomalous results. See We recognize, as have many other courts, that the born alive doctrine 11

the defendant never had any opportunity to examine and present to the jury. In both instances, the juror may base his or her decision upon evidence that “adequate inquiry” into juror misconduct.

communications are about the case.”

(1999). The most common approach is to remove the offending juror and

as when a juror is party to extraneous communications concerning the case. this, it is within the trial court’s discretion to determine what constitutes an burden to prove that the prejudice was harmless. We agree. In cases such as and individuals associated with the case or when the juror’s unauthorized The State argues that even if we adopt the presumption, it met its

State to prove that the prejudice was harmless beyond a reasonable doubt. presumption of prejudice is established, and the burden of proof shifts to the involved extrinsic influence upon the jury’s deliberation. extraneous information sufficiently related to the issues presented at trial, a extraneous communications are analogous, in that the misconduct here 336, 341 (Mont. 1987). We therefore hold that, when a juror is exposed to to the scene for an unauthorized view. He argues that our cases concerning See State v. Coburn, 724 A.2d 1239, 1241 (Me. 1999); State v. Bell, 731 P.2d

prejudice was harmless beyond a reasonable doubt.”

juror’s unauthorized view of the crime scene. The same danger is present here communications. See id. at 487. We now extend the same presumption to a such prejudice is presumed when there are communications between jurors communications, but only because the misconduct in those cases involved the panel and instructed the jury to restart deliberations. In previous cases we have limited the presumption of prejudice to

alleged incident occurred and, if so, whether it was prejudicial.”

defendant argues that this presumption should also apply when a juror returns

(2001). “In those instances the burden shifts to the State to prove that any impartial jury. State v. Bathalon, 146 N.H. 485, 487

“In a criminal case, a defendant must prove actual prejudice, although a mistrial, which the trial court denied. The trial court added two alternates to comment and remain impartial in their deliberations. The defendant moved for N.H. at 348 (quotation omitted). not heard the comment, or assured the trial judge that they could disregard the Brown, 154 the trial court must undertake an adequate inquiry to determine whether the allegation that a juror has been biased by extrinsic contact or communication, A:12, II (1997). “We have previously decided that when there is also an be disqualified before or during trial should be removed. Id.; see RSA 500-

State v. Brown, 154 N.H. 345, 348 (2006). Any juror found to

It is axiomatic that a defendant has a right to be tried by a fair and

impartial and the trial court dismissed her. The remaining jurors had either could remain impartial. Juror 3 said that she would be unable to remain prejudice and denying the defendant’s motion for a mistrial.

p. 12 instruction, we cannot say that the trial court erred in finding no actual

review. the trial court’s statement, and relies upon our plain error rule in seeking

Based upon the trial court’s procedure, the jurors’ testimony and the curative

rule to inform our application of the State rule.

trial. The defendant acknowledges that he did not contemporaneously object to reputation of judicial proceedings. rights; and (4) the error must seriously affect the fairness, integrity or public an error; (2) the error must be plain; (3) the error must affect substantial

prejudice was harmless beyond a reasonable doubt, the State met its burden. miscarriage of justice would otherwise result.” was sufficient evidence upon which the trial court could conclude that any remain impartial and would follow the trial court’s instructions. Because there

to say that she could not disregard the statement. After individual States Supreme Court’s standards for the application of the federal plain error

732, 736-37 (2005). Thus, to fall within the plain error rule: (1) there must be

should be used sparingly, its use limited to those circumstances in which a attention of the trial court or not raised in the notice of appeal. Id. “The rule reaching this conclusion, it relied upon the jurors’ statements that they could The plain error rule allows us to consider errors either not brought to the

See Sup. Ct. R. 16-A.

therefore dismissed him. The trial court also dismissed Juror 3, the only juror

drawing the inference that he lacked remorse based in part upon his request to We now turn to the defendant’s argument that the trial court erred in

court’s instructions.”) cert. denied, 510 U.S. 917 (1993). an unbiased verdict based solely upon the evidence introduced at trial. In (“Our system of justice is premised upon the belief that jurors will follow the cert. denied, 498 U.S. 849 (1990); see also State v. Smart, 136 N.H. 639, 658 whether he has an unbiased mind in a certain matter.” (quotations omitted)), v. Boylan, 898 F.2d 230, 262 (1st Cir.) (“[A] juror is well-qualified to say Juror 9 returned to the scene and that his doing so was misconduct, and See United States even occurred. For the purposes of its evaluation, however, it assumed that

the remaining jurors, the trial court was convinced that the panel could reach

Here, the trial court was not able to determine if any misconduct had

N.H at 365. discretion. Brown, 154 N.H. at 349; Bathalon, 146 N.H. at 488; Rideout, 143 specific determination, which we review for an unsustainable exercise of also United States v. Resko, 3 F.3d 684, 691 (3d Cir. 1993). This is a factundertake individual voir dire of the panel. See Bathalon, 146 N.H. at 488; see court stated:

p. 13 after listening to “grueling” testimony concerning the accident. have a significant criminal record, a significant motor vehicle that he lacked remorse based in part upon his preoccupation with showering

the conclusion that he lacked remorse. Before imposing the sentence, the trial

woman grievously injured and one man who is brain damaged. We admission of his actions, the trial court acted within its discretion to conclude

substantial rights. As the trial court explained, other factors also supported it’s worth I’m very sorry that this had to happen. the error was plain, the defendant is unable to prove that the error affected

[I]n sum, we have one woman dead, one baby dead, we have one although he maintained that it was an accident. In light of the defendant’s

heartless, I’m not a monster and it was an accident. So for what Moreover, even if we were to assume that there was an error, and that

156 N.H. at 761.

of which he believes he is innocent.

The defendant therefore admitted that his decisions led to death and injury,

fellow human being, when the defendant admits to the killing.”

violate the privilege against self-incrimination. anyone to forgive, but I just want you to understand I’m not that innocent people died due to poor decisions. I don’t expect learn how to walk again in jail, but I also have to live with the fact I can only imagine the pain you guys have been through. I had to

that statement read: incongruous to penalize a defendant for not accepting responsibility for a crime Here, the defendant read a statement at the sentencing hearing. Part of

(quotation omitted). innocence throughout trial.

In judge may legitimately consider a defendant’s lack of feeling about killing a

relies upon some admission of guilt, an inference from his silence at sentencing would not he expresses remorse at sentencing.” Id. at 760. Where a defendant has made innocence throughout the criminal process and risks incriminating himself if specifically limit our holding “to situations where a defendant maintains his

remorse requires some admission of guilt, we reasoned that it would be

a factor in determining lack of remorse when the defendant has maintained his Burgess, we held that a trial court cannot consider a defendant’s silence as of his request to shower was a violation of the basic principles of due process.

State v. Burgess, 156 N.H. 746 (2008), to argue that consideration

reliance upon impermissible factors in reaching a sentence. Specifically, he On appeal, the defendant argues that the plain error was the trial court’s p. 14 14

and sentences are affirmed. further proceedings consistent with this opinion. The remaining convictions

BRODERICK, C.J.