2008-248, STATE OF NEW HAMPSHIRE v. ARTHUR KOUSOUNADIS

wife, Aspasia Kousounadis, married in 1972. They divorced in 1996. They The record supports the following facts. The defendant and his former

(2007). We affirm in part, reverse in part and remand. order, see RSA 173-B:9, III (2002). He was sentenced under RSA 651:2, II-g 631:4, I(a), II(a)(2) (2007); RSA 625:11, V (2007), and violation of a protective by a jury in Superior Court (Lynn, C.J.) of felony criminal threatening, see RSA BRODERICK, C.J. The defendant, Arthur Kousounadis, was convicted

Francis G. Holland, of Nashua, by brief and orally, for the defendant.

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

to press. Errors may be reported by E-mail at the following address: Opinion Issued: December 4, 2009

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

No. 2008-248 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern 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 scared, she was not fearful that she would be shot.

p. 2 where she rang the security bell. She testified at trial that, although she was

he used was a deadly weapon, an element of criminal threatening. He also

gunshot. She kept running until she reached the Macy’s employee entrance, Aspasia ran as soon as she saw it. While she was running, she heard a attempted murder. the defendant opened a back door to his vehicle and took out a shotgun. procedure, and placed in a holding cell. criminal threatening and violating a protective order, but not guilty of 2 volition and was arrested. He was booked by an officer using standard The defendant went to the Nashua police station the next morning of his own

definition of “deadly weapon,” the jury could not have found that the shotgun After a hearing, the Trial Court (

talk; she responded, “No, I don’t want to. We’re through.” After saying, “okay,” denied. Following a four-day trial, the jury found the defendant guilty of felony

also found a hole in the wall at Macy’s and a shotgun slug inside the store.

second, he argued that because the court failed to instruct the jury on the his statements to the Nashua police following his arrest on December 7, 2006. State had “argued a different crime than was alleged in the indictment.” In the criminal threatening. In the first, he contended that in closing argument, the The defendant filed two post-trial motions to set aside his conviction for

defendant standing in front of her car, near his GMC. He said he wanted to allegedly violating an order issued in Massachusetts. This motion was also Aspasia approached her car. When she opened her car door, she saw the contending that New Hampshire courts lacked jurisdiction to try him for his GMC Jimmy in the parking garage near her Honda. At around 8:30 p.m., plastic packing material used in shotgun shells near Aspasia’s vehicle. They also moved to dismiss the charge that he violated a protective order,

order. Prior to trial, he moved to suppress all evidence obtained as a result of count of felony criminal threatening and one count of violation of a protective He was subsequently indicted on one count of attempted murder, one

Pheasant Lane Mall in Nashua, where Aspasia worked at Macy’s. He parked In their investigation of the scene, the police found a shell casing and

in the courtroom when the order was issued. a restraining order against him in a Lowell court. The defendant was present

was not subject to a restraining order. On December 6, he drove to the When he was filling out the required federal forms, he falsely stated that he shotgun with a special scope and ammunition from a sports shop in Hooksett. On December 1, 2006, the defendant purchased a semi-automatic

defendant moved out in October 2006. The following month, Aspasia obtained reconciled in 2001, and lived together in Lowell, Massachusetts, until the p. 3 3

questioning may proceed.

prompting from the police. doubt that it was the defendant who initiated further conversation without any Constitution). The State then bears the burden of proving beyond a reasonable

erroneous.

see to it that an opportunity to consult with counsel is provided before further

(conducting analysis under the Fifth Amendment to the United States right to stop it.” State v. Elbert, 125 N.H. 1, 9 (1984) (citation omitted) refrain from or stop interrogation, and scrupulously honor the defendant’s its factual findings unless they lack support in the record or are clearly declining to speak to the police without a lawyer present, the police must p. 3 390, 394 (1992). “[O]nce a defendant has invoked his right to counsel by admit a defendant’s statements into evidence. State v. Chapman, 135 N.H. constitutional rights under Miranda were not violated before it is permitted to burden to establish beyond a reasonable doubt that a defendant’s Constitution, citing federal opinions for guidance only. voluntary.” We first address the defendant’s arguments under the State interrogation. State v. Turmel, 150 N.H. 377, 382 (2003). It is the State’s sentence. We address each argument in turn. The police must give reasonable doubt that [his] confession as to the location of the gun was . . . Miranda warnings before conducting custodial criminal threatening verdict; and (4) denying his motion to bar an enhanced violating a protective order; (3) denying his two motions to set aside the Id. (2003). Our review of the trial court’s legal conclusions, however, is de novo.

State v. Plch, 149 N.H. 608, 61 p. 3 3, cert. denied, 540 U.S. 1009

When reviewing a trial court’s ruling on a motion to suppress, we accept interrogation without first reading him his

counsel. As a result, he asserts that “the [S]tate could not prove beyond a that the police failed to “scrupulously honor[ ]” his invocation of his right to his motion to suppress; (2) denying his motion to dismiss the charge of 175, 177 (1994); Miranda v. Arizona, p. 3 384 U.S. 436 (1966). He further contends Amendments to the United States Constitution. See State v. Gagnon, 139 N.H. Article 15 of the New Hampshire Constitution and the Fifth and Fourteenth

The defendant first argues that the police subjected him to custodial

On appeal, the defendant argues that the trial court erred in: (1) denying

finding that he used one. The trial court denied all three motions. deadly weapon, see RSA 651:2, II-g, because the jury had not made a factual moved to bar application of the enhanced sentencing provisions for use of a the recording equipment and advised the defendant again of his

p. 4 detective. After they were back in the interview room, the detective turned on

approximately fifteen minutes later, he asked to speak once again with the

suggests. public defender on behalf of the defendant, as the defendant’s argument declined. The detective did not have an obligation to independently contact a booking officer. The defendant was then returned to his cell, and The detective told him that if he wanted to speak further, he should tell the interview was terminated immediately when the defendant requested counsel.

opportunity to use the telephone to contact an attorney, which the defendant

erroneous. Detective Archambault interviewed the defendant twice. The first

the detective where the gun and ammunition were located. immediately available to a suspect during interrogation.”), cert. denied, 541 Miranda nor any other provision of federal law requires a public defender to be

See Jackson v. Frank, 348 F.3d 658, 663 (7th Cir. 2003) (“Neither

request for a lawyer. During the second interview, he offered the defendant an Detective Archambault terminated the first interview upon the defendant’s State failed to prove beyond a reasonable doubt that it had not violated his As the trial court observed, the interview transcript established that scrupulously honored it was supported by the record and not clearly similarly conclude that the trial court’s factual finding that the police

rights, which he again waived. During the second interview, the defendant told

had a markedly different version of what happened following his arrest, the With respect to the defendant’s invocation of his right to counsel, we

conflicting testimony in resolving the issue of credibility in favor of the State. rights either lacked support in the record or was clearly erroneous. subject to custodial interrogation before receiving and waiving his Miranda cannot say that the trial court’s factual finding that the defendant was not Patch what happened at the mall” before informing him of his, 142 N.H. 453, 458-59 (1997). Based upon the record before us, we credibility of the witnesses. It has broad discretion in doing so. defendant testified that Detective Archambault “asked [him] right away . . . See State v. interrogated prior to his Miranda warnings required the trial court to weigh the that he did not ask him any questions before he gave him his Miranda rights. We disagree. Determining whether the defendant was arrest. Detective Daniel Archambault, who interviewed the defendant, testified contains conflicting testimony on what occurred following the defendant’s The defendant argues that because he and Detective Archambault each

defendant’s recorded interview with Detective Archambault as well as their turning on the interview recording equipment. The trial court considered the

warnings and had the defendant sign a form waiving them. In contrast, the

was arrested, booked and placed in a holding cell. However, the record The State does not dispute that the defendant was in custody after he hold that the trial court properly denied his motion to dismiss.

p. 5 defendant contends that these statements are an “admission” that the criminal

does he offer any other reason why it should not be enforced. Accordingly, we

because she was already terrified at that point. He was trying to kill her.” The

Massachusetts order was invalid for lack of jurisdiction or due process, nor

stated: “[The defendant] pulled that trigger and he wasn’t trying to scare her gentlemen. She’s terrified. But he didn’t stop there.” The prosecutor later Aspasia took off running, mission accomplished, she’s scared, ladies and state.” RSA 173-B:9, III (2002). The defendant does not argue that the violates . . . any foreign protective order enforceable under the laws of this “[a] person shall be guilty of a class A misdemeanor if such person knowingly

Specifically, the defendant points to the prosecutor’s argument that: “When

made was given reasonable notice and opportunity to be heard.” In addition,

to statute. We review the trial court’s statutory interpretation authority to support this argument and concedes that this assertion is contrary that the trial court did not err in denying the defendant’s motion to suppress. doubt that the defendant’s statements were untainted. Accordingly, we hold a different crime [during closing argument] than [it] alleged in the indictment.” motion to set aside the criminal threatening verdict because the State “argued Next, the defendant argues that the trial court erred in denying his first issuing court had jurisdiction . . . and the person against whom the order was protective order issued by any other state . . . shall be deemed valid if the IV

jurisdiction over the enforcement of [the Massachusetts] order.” He cites no

right to counsel. The State met its burden of proving beyond a reasonable

RSA 173-B:13, II (2002), entitled “Orders Enforceable,” provides: “Any

Bernard, 158 N.H. 43, 44 (2008).

the charge that he violated a protective order because “New Hampshire has no Next, the defendant argues that the trial court erred in failing to dismiss contention that the police failed to scrupulously honor his invocation of his

at 620. we reach the same result under the Federal Constitution. See Plch, 149 N.H. than does the State Constitution with regard to the defendant’s claims of error, Because the Federal Constitution does not provide any greater protection

U.S. at 478. We conclude that the record does not support the defendant’s

statements without first adequately waiving his right to counsel, “[v]olunteered U.S. 963 (2004). Although the defendant may have made some voluntary imminent bodily injury. p. 6 that the defendant acted with the purpose of placing the victim in fear of

charged. insufficient to prove beyond a reasonable doubt that he was guilty of the crime entirety and with all reasonable inferences drawn in favor of the State, was

we hold that there was sufficient evidence presented for the jury to conclude

the defendant had the burden of establishing that the evidence, viewed in its

statements of fact. shotgun, he was acting with the purpose of placing Aspasia in fear of so instructed. On this record, viewed in the light most favorable to the State, the jury to adopt one party’s view of the evidence and are not considered of imminent bodily injury was a question of fact for the jury, and the jury was attempted murder. In any event, closing arguments are intended to persuade Whether the defendant purposely placed or attempted to place Aspasia in fear

an unsustainable exercise of discretion in denying the defendant’s motion. supported by the evidence, and we cannot say that the trial court committed case based upon insufficient evidence, we disagree. To succeed on his motion,

presented no evidence establishing that when the defendant pulled out the

was attempting to persuade the jury that it should find the defendant guilty of admission, he pulled out the gun with the purpose of frightening Aspasia.

State v. Huffman, 154 N.H. 678, 685 (2007). By the defendant’s own

exercise of discretion.

arguments . . . is not evidence.” The record reflects that the jury’s verdict was that the defendant is contending that the trial court should have dismissed his bodily injury, as opposed to merely placing her in fear generally. To the extent

charge of criminal threatening.” Specifically, he argues that the State sufficient evidence upon which the jury could enter a finding of guilty on the “admission” nor directed to the criminal threatening charge. The prosecutor first motion to set aside the verdict because the State “failed to provide The defendant further argues that the trial court erred in denying his

unless its ruling was made without evidence or constituted an unsustainable

properly instructed the jury that “what is said by the lawyers in closing

challenged language in the State’s closing argument was neither an

We will uphold a trial court’s denial of a motion to set aside the verdict

the crime. We disagree. shotgun was fired precludes the jury from finding him guilty of each element of State’s “admission” in closing argument that Aspasia was scared before the a firearm . . . and fired the shotgun.” (Emphasis added.) Thus, he argues the attempted to place [her] in fear of imminent bodily injury” when he “pulled out running in fear. The indictment charges that the defendant “purposely threatening was complete before the shotgun was fired, when Aspasia took off placing her in fear of imminent bodily injury. p. 7 fire it in the vicinity of Aspasia Kousounadis for the purpose of

object or specific intent to withdraw the shotgun from his car and

in the case.”

them, and in light of all the evidence in the case.” 7

acted purposely, that is that it was the defendant’s conscious the vicinity of Aspasia Kousounadis; and third, that the defendant removing a deadly weapon, a shotgun, from his car and firing it in

offense and reverse only if the instructions did not fairly cover the issues of law

instructions in their entirety, as a reasonable juror would have understood

in clear and intelligible language, the rules of law applicable to the case.” unsustainable exercise of discretion.” Id. the trial court, and we review the trial court’s decisions on these matters for an and the scope and wording of the instruction, is within the sound discretion of second, that the defendant did so through conduct that is by

Id. “Whether or not a particular jury instruction is necessary,

the jury instructions adequately and accurately explain each element of the find the defendant guilty of this offense. Id. “We determine whether

jury instructions, we evaluate allegations of error by interpreting the disputed v. McMillan, 158 N.H. 753, 756 (2009) (quotation omitted). “When reviewing jury on the criminal threatening charge as follows: State “The purpose of the trial court’s charge is to state and explain to the jury,

felony criminal threatening charge. contends that any error was harmless. precluded the jury from rendering a finding on a necessary element of the place Aspasia Kousounadis in fear of imminent bodily injury; that the trial court’s failure to instruct on the definition of a deadly weapon After he was convicted, the defendant moved to set aside the verdict, arguing

State must prove beyond a reasonable doubt in order for you to

of deadly weapon in the jury instructions. Ultimately, the court instructed the

of the felony criminal threatening charge. The State disagrees, and further These elements are: First, that the defendant attempted to

The definition of this crime has three elements, each of which the

The defendant requested the trial court to include the statutory definition

finding that the shotgun he used was a “deadly weapon,” a necessary element the jury on the definition of “deadly weapon,” the jury could not have made a Next, the defendant argues that because the trial court failed to instruct

p. 8 category of “any firearm” from the category of “knife or other substance or bodily injury.” On the other hand, the comma after “firearm” could set off the threatened to be used, is known to be capable of producing death or serious

qualifying phrase, “which, in the manner it is used, intended to be used, or

firearm, any knife, any substance and any thing) would be modified by the in the latter part of the statute. Under this interpretation, each item listed (any the legislature composed a list of items to be modified by the qualifying phrase

comma after “firearm” and the lack of a comma after “knife” might indicate that

interpretations of the deadly weapon statute are reasonable. On one hand, the

phrase to “firearm,” and argues that a firearm is a deadly weapon serious bodily injury.” The State disputes the application of the qualifying

composition and structure of the statute, we conclude that at least two of producing death or serious bodily injury,” RSA 625:11, V. Reviewing the is used, intended to be used, or threatened to be used, is known to be capable threatened to be used” in a manner “known to be capable of producing death or

considered as a whole.” whether the term “firearm” is modified by the phrase “which, in the manner it constitute a deadly weapon, it must be “used, intended to be used or bodily injury.” RSA 625:11, V. The defendant contends that for the shotgun to threatened to be used, is known to be capable of producing death or serious question of law, which we review and not in isolation.

language it did not see fit to include.

possible, construe that language according to its plain and ordinary meaning.

final arbiters of the legislature’s intent as expressed in the words of the statute In construing the plain meaning of deadly weapon, we must discern

substance or thing which, in the manner it is used, intended to be used, or covered the issues of law in the case. The interpretation of a statute is a Finally, we interpret a statute in the context of the overall statutory scheme “deadly weapon,” and then turn to consider whether the instructions fairly State v. Hynes, 159 N.H. 187, 193 (2009). as written and will not consider what the legislature might have said or add Dodds, 159 N.H. at ___. Further, we interpret legislative intent from the statute

RSA 625:3 (2007). We first look to the language of the statute itself, and, if Code according to the fair import of their terms and to promote justice. See

(decided August 21, 2009). “In matters of statutory interpretation, we are the

V.” RSA 631:4, II(a)(2). A deadly weapon is “any firearm, knife or other class B felony if the person “[u]ses a deadly weapon as defined in RSA 625:11, We first address the parties’ dispute regarding the statutory meaning of imminent bodily injury or physical conduct.” RSA 631:4, I(a). The crime is a the statute.

conduct, the person purposely places or attempts to place another in fear of A person commits the crime of criminal threatening when “[b]y physical providing a comprehensive draft revised Criminal Code,

p. 9 Report of Commission to Recommend Codification of Criminal Laws (Report)

the conditions and traditions of the State of New Hampshire.”

1969, the Commission, chaired by Chief Justice Frank R. Kenison, issued the discern legislative intent.

Criminal Code, Laws 1971, 518:1, which became effective in November 1973, either interpretation.

each draft section,

had been “continuously desirous of shaping a criminal law that is adapted to 1967.” Report, supra at iii. The Report notes that ultimately, the Commission Criminal Code, Final Draft—September 1967, and the New York Penal Law, was created by legislative directive in 1967. Laws 1967, ch. 451. In April but “found especially useful the Model Penal Code, the Michigan Revised Accordingly, we turn to the legislative history of the deadly weapon statute to Commission reviewed draft laws and comments from a wide variety of sources, iv; see also N.H.S. Jour. 1641-42 (1971). In performing this task, the more concise and simplified criminal law than now applies in this state.” Id. at In the Report, the Commission identified its “basic aim” as “produc[ing] a legislature first defined the term, however, when it adopted the revised well as the enhanced sentencing statute itself, could be implemented using

included comments that detail the source of the recommended language for

Commission to Recommend Codification of Criminal Laws (Commission), which felony riot); RSA 651:2, II-g (deadly weapon enhanced sentencing). see RSA 625:2, I (2007). The revised Criminal Code was recommended by the

first degree when perpetrated by person bearing a “deadly weapon”). The scheme). Each of the crimes that rely upon “deadly weapon” as an element, as for nearly 150 years. See, e.g., GS 264:7 (1867) (manslaughter enhanced to The term “deadly weapon” has been part of our substantive criminal law

was subject to more than one reasonable interpretation). reviewed legislative history to discern legislative intent where statutory phrase composition and structure of the text to discern its intended meaning). See State v. Jennings, 159 N.H. 1, 5 (2009) (court technical rules of grammar and composition, the court examines the

RSA 635:1, II (2007) (class A felony burglary); RSA 644:1, IV (2007) (class B

N.H. at 193 (we interpret a statute in the context of the overall statutory throughout the Criminal Code does not resolve the ambiguity. See Hynes, 159 The manner in which the term “deadly weapon” is functionally used

127 N.H. 12, 17 (1985) (while the legislature is not compelled to follow bodily injury; or (2) a firearm is a deadly weapon per se. See In re Richard M., used in a manner that is known to be capable of producing death or serious a deadly weapon only when it is used, intended to be used, or threatened to be interpretations with respect to firearms as deadly weapons, i.e., (1) a firearm is items. Accordingly, on its face, the statute is subject to two reasonable that manner, was a deadly weapon

p. 10 of Aspasia.” Thus, the trial court instructed the jury that a shotgun, used in

“removing a deadly weapon, a shotgun, from his car and firing it in the vicinity serious bodily injury or death. Rather, the trial court’s instruction stated, whether using a shotgun in that manner was known to be capable of causing

deadly weapon. find the manner in which the defendant used the shotgun, it was not asked doubt that the defendant used a firearm in such a manner that it constituted a

deadly weapon within the meaning of the statute. While the jury was asked to Therefore, the State bore the burden in this case to prove beyond a reasonable to determine whether the manner of the use of the shotgun rendered it a statutory definition of “deadly weapon,” and failed to otherwise require the jury made to turn on how the actor proposes to use the thing he wields. The trial court rejected the defendant’s request to instruct the jury on the

determination on all factual elements of the crime charged). 591 (1983) (interpreting State and Federal Constitutions as guaranteeing a jury v. Hull, 149 N.H. 706, 714-15 (2003); see also State v. Sands, 123 N.H. 570, question of fact for the jury based upon the totality of the circumstances. State the Commission. Criminal Code, Final Draft (1967). Report, when the actor uses a deadly weapon). We have previously held that this is a weapon” definition was based upon terminology found in the Michigan Revised See RSA 631:4, II(a)(2) (criminal threatening is a class B felony

used, it is known to be capable of producing death or serious bodily injury. 625:11, V if, in the manner it is used, intended to be used, or threatened to be injury. Whether there is a deadly weapon involved is, therefore, Accordingly, we hold that a firearm is a deadly weapon under RSA

statute to modify each item listed, including “firearm.” for the qualifying phrase comprising the latter portion of the deadly weapon conclude that the legislature, in adopting the Commission’s Report, intended

Compare id. § 570:11, V with RSA 625:11, V. Therefore, we

defining “deadly weapon” is identical to the draft provision as recommended by while some defined terms were adopted from the Model Penal Code, the “deadly Report, supra § 570:11 comments at 10. Notably, the current provision

anything, if used in a fitting manner, can cause death or serious “Deadly weapon” is defined in recognition of the fact that virtually

“deadly weapon,” the Commission stated: Definitions) comments at 9. In explaining the intended meaning of the term

With respect to the draft definition section, the comments explain that

respect to individual rights). to align New Hampshire criminal law with decisions of the supreme court with N.H.S. Jour. 1642 (1971) (revised Criminal Code intended, among other things, the error at issue is subject to harmless error analysis.

Some errors require outright reversal. Thus, we must first determine whether

to use a firearm in a manner that is known to be capable of producing death or felony charge – namely, that the defendant used, intended to use, or threatened required the jury to render an essential factual finding on an element of the Not all constitutional errors, however, are subject to harmless error analysis. instruct the jury on an element of the charged offense, any error was harmless. Finally, the State argues that if the trial court erred in failing to properly not erroneous as a matter of law. statutory question posed, and ruled that the trial court’s factual finding was jury. Hull, 149 N.H. at 714. shotgun a deadly weapon is a factual issue within the exclusive province of the used the shotgun and the circumstances surrounding that use rendered the weapon’ as defined by RSA 625: p. 11 11, V.” manner in which the defendant deadly weapon. finding that the defendant used a firearm in a manner that qualified it as a Kousounadis,” the verdict in this case necessarily includes the jury’s factual person, was a deadly weapon under RSA 625:11, V. determine whether shooting a firearm “in the vicinity” of a person necessarily finding that an unloaded handgun, which the defendant threatened to fire at a We cannot conclude, as a matter of law, that charging the jury to

capable of causing death or serious bodily injury,” we only answered the generally understood to be capable of causing death or serious bodily injury. firearm, threatened to be fired at a person, is generally understood to be

of statutory construction: “whether an unloaded handgun constitutes a ‘deadly one of law. See id. at 246. Moreover, the sole issue on appeal in Hatt was one Hatt involved a bench trial, this finding constituted a factual finding, and not purposely withdrew the shotgun and fired it “in the vicinity of Aspasia Id. at 246-47. Because

defendant of robbing a store while armed with a deadly weapon, based upon its Hatt is misplaced. In Hatt, the trial court, sitting without a jury, convicted the We disagree with the State’s argument, and conclude that its reliance on

in error. jury’s consideration an element of the felony charge, the jury instructions were which we held that a firearm that is threatened to be fired at a person is

It relies upon State v. Hatt, 144 N.H. 246, 248 (1999), in

that because the instructions required the jury to find that the defendant manner that satisfies the statutory definition of a deadly weapon. It contends required the jury to find that the defendant, in fact, used the shotgun in a The State alternatively argues, however, that the trial court’s instructions

case constituted a deadly weapon. Because the trial court removed from the relieved the jury from its obligation of determining whether the shotgun in this p. 12 12

evidence.” direction of a verdict for the prosecution on an element of the offense charged.” “a constitutional error requiring reversal without regard to the weight of the

deadly weapon; thus, its verdict was necessarily incomplete and “akin to the verdict for the prosecution on an element of the offense charged,” and therefore injury.” RSA 625:11, V. The jury was never instructed on the definition of i.e., in a manner “known to be capable of producing death or serious bodily was required to find that the defendant used the shotgun as a deadly weapon, partnership interests sold were securities. To reach a verdict of guilty, the jury deadly weapon, just as the trial court in Williams instructed the jury that the essentially instructed the jury that the shotgun used by the defendant was a held that certain errors invariably are not. The present case is no different from Williams in that the trial court

Id. at 634. harmless error doctrine.”

that it did not, because the trial judge’s error was “akin to the direction of a State argued that the harmless error doctrine applied. Id. at 633-34. We held determination of fact made by the jury as an element of the crime, but the to the evidence in the particular case.” Both the State and the defendant agreed this should have been a jury that the limited partnership interests the defendant sold were securities. partnerships. Williams, 133 N.H. at 632-33. The trial judge instructed the from false and misleading statements he made while selling interests in limited constitutional errors are or are not subject to harmless error analysis, we have In Williams, the defendant was charged with securities fraud resulting

prosecution on an element of the offense). to the level of fundamental unfairness, thereby obviating consideration of the arrest charge); Williams, 133 N.H. at 634-35 (direction of a verdict for the (1991) (improper jury instruction on the requisite mental state for resisting mental state, the only element at issue); State v. Reid, 134 N.H. 418, 423 v. Hall, 148 N.H. 394, 400 (2002) (instructing jury to presume defendant’s representation is a “structural defect”), cert. denied, 541 U.S. 942 (2004); State necessarily render a trial fundamentally unfair require reversal without regard “trial error,” and holding that denial of a defendant’s right to self- 25 (2003) (applying the federal distinction between a “structural defect” and a occurred are subject to harmless-error analysis.” See State v. Ayer, 150 N.H. 14, 24-

clearly defined any single analytical framework for determining which

denial of a defendant’s right to counsel, or adjudication by a biased judge, rise deny a defendant the right to the basic trial process, such as the complete (1990) (quotation and ellipsis omitted). “Errors that partially or completely

710, 714 (2006) (quotation omitted). “[O]nly such constitutional errors as

adjudicator, there is a strong presumption that any other errors that may have “Generally, . . . if [a] defendant had counsel and was tried by an impartial p. 13 States Constitution.”

as more protective of individual rights than the parallel provisions of the United

error”).

sake of protecting a basic right.” structure of the Constitution itself” and to the jury’s role in criminal trials).

from a directed verdict, and deprives a defendant of his right to a jury trial.

This court “has the power to interpret the New Hampshire Constitution “no matter how clear the defendant’s culpability.” the verdict. (applying the federal distinction between a “structural defect” and a “trial

review is that even convictions reflecting the ‘right’ result are reversed for the produce “flawed verdicts” that cause “profound . . . injury” to “the very all elements were proved”). Moreover, “[t]he very premise of structural-error See id. at 31 (explaining that “trial by jury means determination by a jury that

failure to instruct the jury on one element of a crime is thus indistinguishable

(Scalia, J., dissenting). By the same token, “failure to prove one [element], no

not subject to harmless error analysis, for a court to enter a directed verdict, As Justice Scalia pointed out in his the crime, it is not possible to conclude that the error did not affect Neder dissent, it is “structural error,”

2030 (2008) (arguing that jury instructions that omit an element of the offense Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027, Am. J. Crim. L. 229, 232 (2001); see also Fairfax, Harmless Constitutional Supreme Court’s “No Harm, No Foul” Debacle in Neder v. United States, 28 Carter, The Sporting Approach to Harmless Error in Criminal Cases: The

affected the jury’s verdict. If there is no verdict on an element of The appellate court must assess the possibility that the error guilty beyond a reasonable doubt on the elements of the crime. Harmless error analysis depends upon the existence of a verdict of

commentator noted: regard to our interpretation of the New Hampshire Constitution. As one Neder, however, has been widely criticized, and we decline to follow it with that omits an element of the offense is subject to harmless error analysis). Supreme Court. See, e.g., Neder, 527 U.S. at 9-15 (holding that an instruction Williams have been modified by subsequent decisions of the United States U.S. 1 (1999). We recognize that the federal opinions we cited for guidance in overruled” by the United States Supreme Court in Neder v. United States, 527 The State argues that our holding in Williams has been “implicitly

harmless error analysis. Williams, 133 N.H. at 634. Accordingly, the jury instruction is not subject to results.”

p. 14 becomes a mere exercise of judicial will, with arbitrary and unpredictable failure to instruct the jury on the definition of a deadly weapon,

doomed.

would decide the issue differently

governing legal standards are open to revision in every case, deciding cases with respect to parts V and VI. The majority concludes that the trial court’s

burden in proving any error was harmless beyond a reasonable doubt.

Id. Several factors inform our judgment, including whether: (1) the

be seen so clearly as error that its enforcement was for that very reason

When asked to reconsider a previous holding, the question is not whether we our interpretation of the New Hampshire Constitution in State v. Holmes, 154 N.H. 723, 724 (2007) (quotations omitted).

decisis demands respect in a society governed by the rule of law because, when majority opinion with respect to parts I, II, III and IV, but respectfully dissent I do not lightly recommend overruling Williams. “The doctrine of stare

J., joined, concurred in part and dissented in part. (1999), apply harmless error analysis, and conclude that the State has met its the United States Supreme Court in Neder v. United States, 527 U.S. 1, 8-15 that Williams is still good law. Instead, I would follow the approach taken by N.H. 631, 634-35 (1990). I agree that this case is like Williams, but I disagree

imposing an enhanced sentence for this charge. 625:11, V (2007), is an error that defies harmless error analysis pursuant to

DALIANIS, J.