2008-945, State of New Hampshire v. Michael Addison

Michael A. Delaney

No. 2008-945 Hillsborough-northern judicial district

Cassandra Stubbs

David M. Rothstein

Foundation, as amicus curiae. staff attorneys, on the joint brief, for the American Civil Liberties Union

a. on the brief, and Mr. Rothstein orally, for the defendant.

attorney general, & a. on the brief, and Mr. Delker orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as killing of a law enforcement officer acting in the line of duty. See p. 2 The defendant, Michael Addison, was convicted of capital murder for the

In Addison

and in making the specific determinations required by RSA 630:5, XI.” mandatory review of the defendant’s sentence of death. See “[t]he process that the court should follow in reviewing the sentence of death, process we will follow in applying the provisions of RSA 630:5 (2007) to our they submitted joint answers to four of them but were unable to agree as to BRODERICK, C.J. This is the second opinion in which we address the response to our request that the parties address five enumerated questions, I recommended procedure and schedule to be followed in this appeal. In

, we addressed the parties’ responses regarding the Association, as amici

sentence are before us on appeal. See RSA 630:5, X. imposed the recommended sentence, see RSA 630:5, V. His conviction and to death, RSA 630:5, IV, and four days later, the Superior Court (McGuire, J.) I(a) (2007). On December 18, 2008, a jury recommended that he be sentenced

Hampshire Police Association, and The New Hampshire Troopers Bernstein Shur Chiefs of Police, The New Hampshire Sheriff’s Association, The New III and Jason R.L. Major on the brief), for New Hampshire Associations of

Defense Lawyers, as amicus curiae. Iacopino on the brief), for New Hampshire Association of Criminal

amici curiae. Chief Justice Deborah T. Poritz (Ret.) and Professor Carol S. Steiker, as

Hampshire Civil Liberties Union, as amicus curiae. Barbara Keshen, of Concord, staff attorney, on the joint brief, for the New proportionality review have developed standards.” Addison p. 3 have noted previously, “states that continue to require a comparative section XI(c), commonly known as comparative proportionality review. As we and (b) as necessary in the merits appeal. At this juncture we address only We will decide the standards this court should apply to RSA 630:5, XI(a)

factors enumerated in RSA 630:5, XI.

standards the court should apply to each of the three

determinations required by RSA 630:5, XI, and the

the sentence of death and in making the specific The process that the court should follow in reviewing

ordered to file briefs addressing the following: Pursuant to our opinion dated July 9, 2009, the parties are

cases, considering both the crime and the defendant.

disproportionate to the penalty imposed in similar

(c) Whether the sentence of death is excessive or

by law; and

RSA 630:5, XI(c) is a question of first impression. See provision was enacted. Thus, the issue of the standards to be applied under finding of an aggravating circumstance, as authorized (b) Whether the evidence supports the jury’s

arbitrary factor; and

because the defendant’s case is the first death sentence imposed since the However, in New Hampshire, RSA 630:5, XI(c) has not yet been construed under the influence of passion, prejudice or any other, 159 N.H. at 94.

(a) Whether the sentence of death was imposed determine: XI. With regard to the sentence the supreme court shall

RSA 630:5, XI provides:

states in pertinent part: Accordingly, on July 29, 2009, we issued the following order, which

our review of the merits.” Id. at 94. standards to be applied to each of the three factors in RSA 630:5, XI prior to [any] prior interpretation of RSA 630:5 [by this court], we will determine the that “in the interest of fairness, because the parties do not have the benefit of review of death penalty cases was not required, id. at 93, we also concluded Addison, 159 N.H. at 89. While we concluded that formal rulemaking for uncontrolled discretion of the judge or the jury. Furman v. Georgia p. 4 Georgia and Texas that left the decision to impose the death penalty to the In 1972, the Supreme Court struck down capital punishment statutes in

As a result of the Furman

punishment led to arbitrary application of the death penalty to “unpopular juries with uncontrolled discretion in deciding whether to impose capital Gregg v. Georgia Justice Douglas concluded that sentencing procedures which vested, 428 U.S. 153 (1976), Florida, Proffitt v. Florida, 428 U.S. 242 Supreme Court upheld the post-Furman death penalty statutes of Georgia, penalty statutes to comply with its constitutional commands. In 1976, the

remanded for further proceedings. Id. at 240. at 310-14 (White, J., concurring). Accordingly, the Court reversed in part and imposition of the death penalty constituted cruel and unusual punishment. Id. which it was imposed from those in which it was not, that the discretionary the death penalty and the lack of a meaningful basis for distinguishing cases in concurring). Justice White concluded, based upon the infrequent imposition of death penalty. We turn then to that history. being struck by lightning is cruel and unusual.” Id. at 309-10 (Stewart, J., constitutionally permissible legislative choices for the administration of the “freakishly” imposed upon a capriciously selected few, “in the same way that before the Court were cruel and unusual because they were “wantonly” and concurring). Justice Stewart concluded that the death sentences in the case circumstances. Id. at 305 (Brennan, J. concurring); id. at 370 (Marshall, J. that the death penalty constituted cruel and unusual punishment in all at 253-57 (Douglas, J., concurring). Justices Brennan and Marshall concluded of equal protection implicit in the ban on cruel and unusual punishments, id.

. at 255 (Douglas, J., concurring), thereby violating the principle

several decisions of the United States Supreme Court that outline varying reasons, with each justice writing a separate opinion. defendant.” RSA 630:5, XI(c). This provision must be construed in light of Although five justices supported the per curiam decision, they did so for penalty imposed in similar cases, considering both the crime and the the Eighth and Fourteenth Amendments to the United States Constitution. Id. is “[w]hether the sentence of death is excessive or disproportionate to the under such statutes constituted cruel and unusual punishment in violation of determinations with regard to the sentence. The third of these determinations 238 (1972). The Court held that death sentences imposed and carried out been sentenced to death. Paragraph XI specifically requires us to make three, 408 U.S. required to follow in reviewing a capital murder appeal when a defendant has Paragraphs X to XII of RSA 630:5 establish the procedure we are

p. 5 aggravating or mitigating circumstances, it must find and

defendant. While the jury is permitted to consider any

crime and the particularized characteristics of the individual focus the jury’s attention on the particularized nature of the

before it in Furman 5 the Georgia death penalty statute and concluded that, unlike the procedures The Court made several observations regarding the specific features of

“freakish” way, the new Georgia sentencing procedures

capricious action.” Id. at 189. suitably directed and limited so as to minimize the risk of wholly arbitrary and The majority of the Court in Gregg whether a human life should be taken or spared, that discretion must be afforded a sentencing body on a matter so grave as the determination of 188. As the Court explained, “Furman mandates that where discretion is risk that it would be inflicted in an arbitrary and capricious manner.” Id. at “could not be imposed under sentencing procedures that created a substantial opinion). The Court construed Furman as holding that the death penalty adequate guidance in the exercise of its discretion, id. at 195, 198 (plurality Georgia statute was constitutional because it gave the sentencing authority 187 (plurality opinion), 226 (White, J. concurring), and determined that the penalty constitutes cruel and unusual punishment in all circumstances, id. at

defendant.” Id. at 166-67 (quotation omitted). to the penalty imposed in similar cases, considering both the crime and the . . ., and . . . [w]hether the sentence of death [was] excessive or disproportionate support[ed] the jury’s or judge’s finding of a statutory aggravating circumstance The Georgia statute upheld in Gregg prejudice, or any other arbitrary factor, and . . . [w]hether . . . the evidence “[w]hether the sentence of death was imposed under the influence of passion, the particular case.” Id. at 166. The state court was directed to determine Supreme Court of “the appropriateness of imposing the sentence of death in 197. The statute also provided for expedited direct review by the Georgia aggravating or mitigating circumstances in determining the sentence. Id. at addition, the Georgia statute allowed the jury to consider any other appropriate beyond a reasonable doubt. Gregg, 428 U.S. at 196-97 (plurality opinion). In whom the jury found at least one of ten statutory aggravating circumstances subject to capital punishment to those who committed homicide and against

Louisiana, 428 U.S. 325 (1976). Woodson v. North Carolina, 428 U.S. 280 (1976), and Louisiana, Roberts v. unconstitutional the mandatory death penalty statutes of North Carolina, (1976), and Texas, Jurek v. Texas, 428 U.S. 262 (1976), but rejected as p. 6 Id

a sentence of death.

no defendant convicted under such circumstances will suffer

of murder case, the appellate review procedures assure that

generally do not impose the death sentence in a certain kind

action of an aberrant jury. If a time comes when juries

p. 6 Id

Supreme Court], like its Georgia counterpart, consider[ed] its function to be to sentence is made possible.” p. 6 Id the possibility that a person will be sentenced to die by the. at 251. The Court observed that “the [Florida sentence with written findings, meaningful appellate review of each such particular, the proportionality review substantially eliminates reasoned that “[s]ince . . . the trial judge must justify the imposition of a death In Proffitt v. Florida random or arbitrary imposition of the death penalty. In did not require the state court to conduct any specific form of review, the Court been imposed. Id. Although, unlike the Georgia statute, the Florida statute review by the Florida Supreme Court of all cases in which a death sentence had death or life imprisonment. Id. at 248-50. The statute provided for automatic consider mitigating and aggravating circumstances in reaching a verdict on circumscribed by the legislative guidelines. the defendant’s sentence. Id. at 248. The jury and trial judge were directed to evidentiary hearing was held before the jury and the trial judge to determine procedure, if a defendant was found guilty of a capital offense, a separate 428 U.S. at 253 (plurality opinion). Under the Florida capital sentencing the constitutionality of Florida’s post-Furman death penalty statute. Proffitt,

The provision for appellate review in the Georgia. at 206.

freakishly impose the death sentence; it is always

imposed in similar cases, considering both the crime and the defendant,” id “[w]hether the sentence of death is excessive or disproportionate to the penalty Concerning the requirement that the Georgia Supreme Court determine

arbitrariness or caprice,” id. at 203. In addition, the Court stated: sentenced under a system that does not create a substantial risk of render unconstitutional death sentences imposed on defendants who were the [death] penalty, the isolated decision of a jury to afford mercy does not discretion is channeled. No longer can a jury wantonly and requirement on review is intended to prevent caprice in the decision to inflict 167 (quotation omitted), the Court stated: “Since the proportionality

. at 206-07.

may impose a penalty of death. In this way the jury’s p. 6 p. 7 Id

“freakishly” imposed.

to assure that sentences of death will not be “wantonly” or

operation of the state law. As in Georgia, this system serves

consistency, fairness, and rationality in the evenhanded

court which, because of its statewide jurisdiction, can assure

evidence supporting them, are conscientiously reviewed by a

reasons that led to its decision. Those reasons, and the

sentencing authority articulates in writing the statutory

sentenced to death. If a death sentence is imposed, the

and objective inquiry into the question whether he should be

In Jurek v. Texas 7

Amendments, the Court stated: degree murder, there shall be an informed, focused, guided, Concluding that the Texas statute did not violate the Eighth and Fourteenth “serves much the same purpose.” Jurek, 428 U.S. at 270 (plurality opinion). to intentional and knowing murders committed in five specific situations Florida, like Georgia, has responded to Furman Georgia and Florida,” its action in narrowing the categories of capital homicides the existence of which can justify the imposition of the death penalty as [had] although Texas had “not adopted a list of statutory aggravating circumstances Court reviewed capital-sentencing procedures in Texas and concluded that,

. at 259-60.

legislation provides that after a person is convicted of first-

The Court concluded:

enacting legislation that passes constitutional muster. That

objective test as its standard of review for all cases,” id Although the Florida Supreme Court had “not chosen to formulate a rigid

the type of proportionality review mandated by the Georgia statute.” p. 7 Id. at 259. stated that “[b]y following this procedure the Florida court has in effect adopted it has assessed the imposition of death sentences.” Id. at 258-59. The Court the circumstances of a case under review with those of previous cases in which maximum of rationality and consistency” in that “it has several times compared undertaken responsibly to perform its function of death sentence review with a ineffective or arbitrary. In fact, it is apparent that the Florida court has Court reasoned that “it does not follow that the appellate review process is

the punishment is too great.” p. 7 p. 8 Id. (quotation and brackets omitted). review that case in light of the other decisions and determine whether or not case. . . . If a defendant is sentenced to die, [the Florida Supreme Court] can reach a similar result to that reached under similar circumstances in another guarantee that the aggravating and mitigating reasons present in one case will Id

law.

rational, and consistent imposition of death sentences under Texas has provided a means to promote the evenhanded, the jury’s decision in a court with statewide jurisdiction,

sentencing function. By providing prompt judicial review of

have adequate guidance to enable it to perform its

adduced, Texas has ensured that the sentencing jury will

circumstances relating to the individual defendant can be

separate sentencing hearing whatever mitigating

In Woodson v. North Carolina

authorizing the defense to bring before the jury at the 8

discretion in the imposition of capital sentences” in that “[c]entral to the limited constitutionally tolerable response to Furman ’s rejection of unbridled jury p. 8 Id. at 301. Second, it held that such a statute fails “to provide a imposing a death sentence upon every person convicted of a specified offense.” which has been “the rejection of the common-law practice of inexorably significant developments in our society’s treatment of capital punishment,” First, it held that such a statute is inconsistent with “one of the most several constitutional shortcomings with the mandatory death penalty statute. death.” Woodson before a death sentence may even be considered. By, 428 U.S. at 304 (plurality opinion). The Court identified constitutionally indispensable part of the process of inflicting the penalty of the individual offender and the circumstances of the particular offense as a Amendment . . . [which] requires consideration of the character and record of lacked “the fundamental respect for humanity underlying the Eighth Carolina’s mandatory death sentence statute was unconstitutional because it

Thus, the statutes upheld in Gregg arbitrary imposition. appellate review of death sentences as a check against their random or of death.” p. 8 Id. at 274. Third, the statutes provided for automatic expedited individual offense and the individual offender before it can impose a sentence authority’s] objective consideration of the particularized circumstances of the aggravating circumstance in a first-degree murder case circumstances. This type of provision “guides and focuses the [sentencing sentencing authority was required to consider the existence of mitigating to cases in which certain aggravating circumstances were established and the separately determined. Second, imposition of the death penalty was restricted provided for a bifurcated trial so that guilt and punishment would be provisions intended to address the concerns raised in Furman. First, each

. at 276.

essentially said that there must be at least one statutory

By narrowing its definition of capital murder, Texas has p. 8 p. 9 Id

death. mass to be subjected to the blind infliction of the penalty of

human beings, but as members of a faceless, undifferentiated

convicted of a designated offense not as uniquely individual from the diverse frailties of humankind. It treats all persons

legislature enacted a new statutory scheme establishing the procedure to be possibility of compassionate or mitigating factors stemming Following the Supreme Court’s 1976 decisions, the New Hampshire

consideration in fixing the ultimate punishment of death the The New Hampshire legislature reacted to Furman Woodson, 428 U.S. at 298-99. to diverse readings of this Court’s multi-opinioned decision in that case.” others have legislated standards to guide jury discretion appears attributable that some States have adopted mandatory measures following Furman while murder. In fact, in Woodson, the Supreme Court recognized that “[t]he fact automatically require imposition of the death penalty upon conviction of capital holding in Furman to require that a constitutional death penalty statute had to decisions in Woodson and Roberts, New Hampshire initially misread the Furman (repealed); Laws 1974, 34:1. As did other states, prior to the Supreme Court’s developing death penalty jurisprudence. At the time the Court decided enacting a mandatory death penalty statute. See RSA 630:1, III (1974) The New Hampshire legislature also responded to the Supreme Court’s circumstances of the particular offense excludes from and Martineau by

vacate the death sentences. p. 9 Id. at 280. 279 (1972). Accordingly, we held that the trial court had the obligation to Amendments to the Federal Constitution. State v. Martineau, 112 N.H. 278, and thus the death penalties on appeal violated the Eighth and Fourteenth acknowledged that we were bound by the Supreme Court’s decision in Furman, RSA 585:4 (1955) (repealed); Laws 1915, 65:3. In State v. Martineau, we first degree shall be death or imprisonment for life, as the jury may determine.” , New Hampshire law provided that “[t]he punishment of murder in the

the character and record of the individual offender or the . at 304; see also Roberts, 428 U.S. at 335-36 (plurality opinion).

[a] process that accords no significance to relevant facets of

p. 9 Id. at 303. As the Court explained, each convicted defendant before imposition upon him of a sentence of death.” particularized consideration of relevant aspects of the character and record of Id. at 302. Finally, it concluded that such a statute fails “to allow the sentencing power in the jury violated the Eighth and Fourteenth Amendments.” holding in Furman was the conviction that the vesting of standardless presided at the trial or before whom the guilty plea was

p. 10 guilty plea was entered, or any other judge if the judge who

the judge who presided at the trial or before whom the

guilty of or pleads guilty to the offense of capital murder,

required under paragraph I and the defendant is found II. When the attorney for the state has filed a notice as

be held: Section II sets forth the requirement that a separate sentencing hearing

section.

shall be served upon the defendant as provided in this

this notice for good cause shown. Any such amended notice The court may permit the attorney for the state to amend

the death penalty.

factors which the state will seek to prove as the basis for

paragraph VII of this section and any other aggravating

(b) Setting forth the aggravating factors enumerated in

the sentence of death; and

(a) That the state in the event of conviction will seek

defendant, a notice:

guilty, shall file with the court and serve upon the

state, before trial or acceptance by the court of a plea of death for the offense of capital murder, the attorney for the

I. Whenever the state intends to seek the sentence of

its intent to seek the death penalty: in a capital murder case. Section I requires the State to provide formal notice of The current version of RSA 630:5 sets forth the procedure to be followed

the basis of the current capital sentencing statute. murder enacted by the legislature in 1977 has been modified somewhat, it is review procedure before this court. Although the sentencing scheme for capital impose the penalty of death. The legislation also established an automatic found at least one aggravating circumstance by unanimous vote, it could consider certain statutory aggravating and mitigating circumstances. If the jury determine the penalty. During the sentencing hearing the jury was directed to the jury would first consider a defendant’s guilt and in a separate proceeding 440:2. Generally stated, that statute established a bifurcated process whereby followed in capital murder cases. See RSA 630:5 (Supp. 1979); Laws 1977, the defendant, regardless of its admissibility under the rules

p. 11 aggravating factors may be presented by either the state or

Any other information relevant to such mitigating or

present during the trial, or at the trial judge’s discretion.

exhibits if the hearing is held before a jury or judge not

Information presented may include the trial transcript and which notice has been provided under subparagraph I(b). may be presented relating to any other aggravating factor for

aggravating factors set forth in paragraph VII, information

Where information is presented relating to any of the which notice has been provided under subparagraph I(b). other mitigating factor or any other aggravating factor for mitigating factors set forth in paragraphs VI and VII, or any

presented as to matters relating to any of the aggravating or

be prepared. In the sentencing hearing, information may be

to the offense of capital murder, no presentence report shall III. When a defendant is found guilty of or pleads guilty

mitigating factors at the sentencing hearing: Sections III and IV set forth the procedure for considering aggravating and

court that it shall consist of any number less than 12.

the hearing, the parties stipulate with the approval of the

12 members, unless at any time before the conclusion of

A jury impaneled under subparagraph (b) shall consist of

section is necessary.

section, redetermination of the sentence under this

(3) after initial imposition of a sentence under this

has been discharged for good cause; or (2) the jury which determined the defendant’s guilt

guilty; or

(1) the defendant was convicted upon a plea of

hearing if:

(b) Before a jury impaneled for the purpose of the

guilt;

(a) Before the jury which determined the defendant’s

hearing shall be conducted:

hearing to determine the punishment to be imposed. The

entered is unavailable, shall conduct a separate sentencing of mitigating factors, whether the aggravating factors are p. 12 mitigating factor or factors found to exist, or in the absence

aggravating factors found to exist sufficiently outweigh any

found to exist, the jury shall then consider whether the

aggravating factors set forth in subparagraph VII(b)-(j) are

forth in subparagraph VII(a) and one or more of the without possibility of parole. If an aggravating factor set exist, the court shall impose a sentence of life imprisonment

aggravating factor set forth in paragraph VII is found to

subparagraph VII(a) is found to exist but no other

not found to exist or an aggravating factor set forth in If an aggravating factor set forth in subparagraph VII(a) is with respect to any aggravating factor must be unanimous.

who concur that the factor has been established. A finding purposes of this section, regardless of the number of jurors

a mitigating factor may consider such a factor established for jury, and any member of the jury who finds the existence of factor may be made by one or more of the members of the

may be returned. A finding with respect to a mitigating which notice has been provided under subparagraph I(b) a special finding identifying any other aggravating factor for factors set forth in subparagraphs VII(b)-(j) is found to exist, forth in subparagraph VII(a) and another of the aggravating which are found to exist. If one of the aggravating factors set identifying any aggravating factors set forth in paragraph VII,

during the hearing. It shall return special findings IV. The jury shall consider all the information received

preponderance of the evidence.

defendant, and is not satisfied unless established by a

establishing the existence of any mitigating factor is on the

established beyond a reasonable doubt. The burden of

aggravating factor is on the state, and is not satisfied unless jury. The burden of establishing the existence of any open and the defendant shall conclude the argument to the

in that case of imposing a sentence of death. The state shall

aggravating or mitigating factors and as to appropriateness

information to establish the existence of any of the

opportunity to present argument as to the adequacy of the

information received at the hearing and shall be given fair

and the defendant shall be permitted to rebut any 12

confusion of the issues, or misleading the jury. The state

substantially outweighed by the danger of unfair prejudice,

that information may be excluded if its probative value is

governing admission of evidence at criminal trials, except the age of 18.

p. 13 (d) The defendant was youthful, although not under

as to constitute a defense to the charge.

minor, regardless of whether the participation was so minor

by another, but the defendant’s participation was relatively

defined in RSA 626:8) in the offense, which was committed

(c) The defendant is punishable as an accomplice (as

degree as to constitute a defense to the charge.

duress, regardless of whether the duress was of such a

(b) The defendant was under unusual and substantial

defense to the charge. whether the capacity was so impaired as to constitute a requirements of law was significantly impaired, regardless of wrongfulness of his conduct or to conform his conduct to the (a) The defendant’s capacity to appreciate the

factors, including the following:

imposed upon a defendant, the jury shall consider mitigating

VI. In determining whether a sentence of death is to be

Section VI sets forth mitigating factors:

imprisonment without possibility of parole.

Otherwise the court shall impose a sentence of life

be imposed, the court shall sentence the defendant to death.

V. Upon the recommendation that the sentence of death

jury makes such recommendation: Section V requires that the trial court sentence the defendant to death if the

sentence and the jury shall be so instructed.

mitigating factors, is never required to impose a death

regardless of its findings with respect to aggravating and

imprisonment without possibility of parole. The jury,

sentence of death be imposed rather than a sentence of life

the jury, by unanimous vote only, may recommend that a

factors, are themselves sufficient to justify a death sentence, 13

the aggravating factors, in the absence of any mitigating

aggravating factors outweigh the mitigating factors or that

upon this consideration, if the jury concludes that the

themselves sufficient to justify a sentence of death. Based or more state or federal offenses punishable by a term of p. 14 (c) The defendant has previously been convicted of 2

death was authorized by law. which a sentence of life imprisonment or a sentence of or federal offense resulting in the death of a person, for (b) The defendant has been convicted of another state

(B) resulted in the death of the victim.

participants in the offense; and

of death to a person, other than one of the (A) the defendant knew would create a grave risk

(3) purposely engaged in conduct which:

resulted in the death of the victim; (2) purposely inflicted serious bodily injury which

(1) purposely killed the victim;

(a) The defendant:

is provided under subparagraph I(b):

considered, unless notice of additional aggravating factors

factors are the only aggravating factors that shall be

the offense of capital murder, the following aggravating VII. If the defendant is found guilty of or pleads guilty to

Section VII sets forth aggravating factors:

mitigate against imposition of the death sentence.

(i) Other factors in the defendant’s background or character

resulted in the victim’s death.

(h) The victim consented to the criminal conduct that

in the crime, will not be punished by death.

(g) Another defendant or defendants, equally culpable

mental or emotional disturbance.

(f) The defendant committed the offense under severe

criminal record.

(e) The defendant did not have a significant prior the issue of punishment. p. 15 hearing, the new trial which may be ordered shall apply only to

reversed on appeal because of error only in the presentence

imprisonment without possibility of parole. If the case is

reasonable time, the judge shall impose the sentence of life IX. If the jury cannot agree on the punishment within a

of parole. shall impose a sentence of life imprisonment without possibility

and the court does not impose the penalty of death, the court VIII. If a person is convicted of the offense of capital murder

Sections VIII and IX concern life imprisonment sentences:

from lawful custody.

avoiding or preventing a lawful arrest or effecting an escape (j) The murder was committed for the purpose of

(i) The murder was committed for pecuniary gain.

involved torture or serious physical abuse to the victim.

especially heinous, cruel or depraved manner in that it (h) The defendant committed the offense in an

age, youth, or infirmity. (g) The victim was particularly vulnerable due to old

substantial planning and premeditation. (f) The defendant committed the offense after

offense.

one or more persons in addition to the victims of the

the defendant knowingly created a grave risk of death to (e) In the commission of the offense of capital murder,

controlled substance.

different occasions, involving the distribution of a

imprisonment of more than one year, committed on

or more state or federal offenses punishable by a term of (d) The defendant has previously been convicted of 2

infliction of, serious bodily injury upon another person.

different occasions, involving the infliction of, or attempted

imprisonment of more than one year, committed on of statutory interpretation that we determine de p. 16 similar cases, considering both the crime and the defendant.” This is a matter sentence of death is excessive or disproportionate to the penalty imposed in regard to the sentence the supreme court shall determine . . . [w]hether the Our task today is to construe RSA 630:5, XI(c), which provides: “With

resentencing.

(b) Set the sentence aside and remand the case for

(a) Affirm the sentence of death; or

be authorized to:

errors, the court, with regard to review of death sentences, shall XII. In addition to its authority regarding correction of

considering both the crime and the defendant.

disproportionate to the penalty imposed in similar cases,

(c) Whether the sentence of death is excessive or

aggravating circumstance, as authorized by law; and

(b) Whether the evidence supports the jury’s finding of an

influence of passion, prejudice or any other arbitrary factor; and

(a) Whether the sentence of death was imposed under the

determine:

XI. With regard to the sentence the supreme court shall

with rules adopted by said court. priority over all other cases and shall be heard in accordance

cause shown. Such review by the supreme court shall have

period not to exceed 30 days by the supreme court for good

of the entire record unless time is extended for an additional court within 60 days after certification by the sentencing court

not before us, and thus we presume it is constitutional. Duquette v. Warden, Kousounadis, 159 N.H. 413, 423 (2009). The constitutionality of the statute is

death shall be subject to automatic review by the supreme

is imposed, the judgment of conviction and the sentence of

X. In all cases of capital murder where the death penalty

sentence by this court: Sections X through XII set forth the requirements for review of the death p. 17 Further, following Furman

statutory scheme accordingly. See background of the United States Supreme Court, and we will interpret the similar comparative proportionality review provisions, or appellate review scheme, the legislature intended to incorporate the then-existing jurisprudential We conclude that, in enacting the current death penalty statutory and Gregg, many states enacted identical or

Court’s interpretation of that Georgia provision is particularly informative. jurisprudential context within which the statute was enacted, the Supreme same sentence review provision approved in Gregg, as well as the between the comparative proportionality provision in RSA 630:5, XI(c) and the its jurisprudential background). Moreover, given the identity of language 1996) (court construing comparative proportionality review provision in light of

testifying that bill intended to comply with “the new supreme court guidelines”). Judiciary, Hr’g on HB 1137 (May 25, 1977) (Legal Assistant to the Speaker the courts” by amending the death penalty procedures); Senate Comm. on declared constitutional in Gregg court decisions . . . .”); N.H.S. Jour. corresponding language of the Georgia statute, which the Supreme Court 2702 (1977) (Senate “trying to comply with words of the statute considered as a whole. Addison the House would make the law constitutional under the most recent supreme the language in the 1977 statute. That language, in turn, mirrors the We are the final arbiters of the legislature’s intent as expressed in the the books . . . is unconstitutional. . . . Probably the bill as it was amended in The current appellate review language of RSA 630:5, XI(c) is identical to the death penalty”); N.H.S. Jour. 2701 (1977) (“It is quite clear that the law on capital murder, making it possible to punish such offenders by reestablishing approved the bill “as a Constitutional updating of present statute relating to comparative proportionality review. See N.H.H.R. Jour. 527 (1977) (committee punishment jurisprudence as set forth by the Supreme Court, including standards thought to be constitutionally mandated by the existing capital amendments to the death penalty procedures in this state to comply with the

scheme and not in isolation. Id. Additionally, we interpret a statute in the context of the overall statutory add language it did not see fit to include. Kousounadis, 159 N.H. at 423. statute as written and will not consider what the legislature might have said or to promote justice,” RSA 625:3 (2007). We interpret legislative intent from the provisions of the Criminal Code “according to the fair import of their terms and language according to its plain and ordinary meaning, id., and we construe to the plain language of the statute itself, and, if possible, construe that

statutory construction. N.H. State Prison, 154 N.H. 737, 745 (2007). The sole issue before us is one of crime.” Pulley v. Harris p. 18 is the “abstract evaluation of the appropriateness of a sentence for a particular proportionality review. Traditional Eighth Amendment proportionality analysis there is a substantive difference between traditional and comparative Before turning to the meaning of RSA 630:5, XI(c), we underscore that

punishment within the meaning of the Eighth Amendment; . . . neither is it Amendment). The death penalty “is not invariably cruel and unusual U.S. 584 (1977) (death sentence for rape disproportionate under the Eighth take life disproportionate under the Eighth Amendment); Coker v. Georgia, 433 felony murder when defendant did not take life, attempt to take life or intend to Amendment); Enmund v. Florida, 458 U.S. 782 (1982) (death sentence for convicted of minor, nonviolent offenses disproportionate under the Eighth (1983) (life imprisonment without possibility of parole for habitual offender V particular crime. See Pulley, 465 U.S. at 43; Solem v. Helm, 463 U.S. 277 disproportionate, and therefore cruel and unusual, when imposed for a Supreme Court has occasionally struck down punishments as inherently N.H. 101, 105 (1985); cf. State v. Farrow, 118 N.H. 296, 302-03 (1978). The

enacting it. the meaning of RSA 630:5, XI(c) in accord with the legislature’s intent in cases”), cert. denied, 516 U.S. 1121 (1996). Ultimately, our task is to construe Brett, 892 P.2d 29, 66-69 (Wash. 1995) (changing the interpretation of “similar Georgia law has changed over time), cert. denied, 540 U.S. 835 (2003); State v. 2002) (Fletcher, C.J., concurring) (comparative proportionality review under changes in scope of case universe); Terrell v. State, 572 S.E.2d 595, 605 (Ga. SC 89699, 2010 WL 2690371, at *22-23 (Mo. June 29, 2010) (detailing review have changed over time. See, e.g., State v. Davis, __ S.W.3d __, __, No. judicial interpretations of different aspects of comparative proportionality court decisions that mandated it). In addition, we are mindful that some review but later either repealed the governing statutory provision or overruled 2001) (reciting states that initially conducted comparative proportionality nevertheless instructive. See State v. Godsey, 60 S.W.3d 759, 782 n.15 (Tenn. review, the judicial interpretation of the former statutes and procedures is conducted comparative proportionality review have since abandoned such cert. denied, 446 U.S. 970 (1980). Further, while some states that previously 466 U.S. 993 (1984); State v. Coleman, 605 P.2d 1000, 1020 (Mont. 1979), 1112 (1983); Tichnell v. State, 415 A.2d 830, 843-47 (Md. 1980), cert. denied, 199-204; State v. Garcia, 664 P.2d 969, 977-79 (N.M.), cert. denied, 462 U.S. law, while not controlling, may prove helpful to our analysis. See, e.g., id. at guidepost in interpreting the meaning of RSA 630:5, XI(c), other states’ case Thus, while United States Supreme Court jurisprudence is our paramount procedures, within the same jurisprudential context as that of New Hampshire. p. 19 Id

review was constitutionally required.

sentences, but we certainly did not hold that comparative

an additional safeguard against arbitrarily imposed death

circumstances. Proportionality review was considered to be

has remained unchanged since its enactment in 1977. See statutes to repeal comparative proportionality review, our statutory provision

necessary narrowing function of statutory aggravating

Although several states subsequently amended their death penalty

sentence. Thus, the emphasis was on the constitutionally

McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987); Getsy v. Mitchell, 495 F.3d proportionality review largely is a matter left to individual states. See Court’s finding of proportionality, as rationalizing the at 94. The manner in which state high courts conduct comparative

U.S. 1083 (1998). Gregg” in adopting an approach for state appellate review), cert. denied, 523 legislative intent in light of the jurisprudential background of Furman and . . . state appellate court must evaluate the statutory language at issue and the 1997) (“comparative proportionality review is not constitutionally required [and] imposed.” p. 19 Id. at 50; see also State v. Bland, 958 S.W.2d 651, 663-64 (Tenn. an appellate court is required in every case in which the death penalty is finding of aggravating circumstances, not the State Supreme . . . no basis in our cases for holding that comparative proportionality review by be unconstitutional. To the contrary, we relied on the jury’s others convicted of the same crime.” Pulley. at 50 (citation and footnote omitted). The Court concluded that “[t]here is without comparative proportionality review the statute would a particular case because disproportionate to the punishment imposed on review under the Georgia statute, we did not hold that purports to inquire instead whether the penalty is nonetheless unacceptable in sentence is not disproportionate to the crime in the traditional sense. It By contrast, comparative proportionality review “presumes that the death

While emphasizing the importance of mandatory appellate

Gregg, the Court stated, that “anything different is unacceptable.” p. 19 Id. at 45. Regarding its holding in its endorsement of the Georgia statutory procedures in Gregg did not mean penalty procedure, which did not include proportionality review, and noted that deficient. However, in Pulley, the Supreme Court reviewed California’s death that did not provide for comparative proportionality review was constitutionally decided in 1984, it was generally thought that any capital punishment statute

at 591. always disproportionate to the crime for which it is imposed.” Coker, 433 U.S. the defendant was convicted of a factually similar murder (i.e. p. 20 (tier 2), the pool should include all cases from American jurisdictions in which consider whether arbitrary factors explain the sentence. of similar cases.” He argues that when the court compares out-of-state cases murder case is not at “the highest end of the culpability scale,” then we should insufficiently large number of cases to permit sub-division into distinct groups sentence is not “clearly proportionate” by an “overwhelming margin,” or his Court at the present time has, and for the foreseeable future will have, an to assess proportionality. Ultimately, the defendant contends that if his death include all death-eligible cases, even factually dissimilar ones, because “this when the court compares New Hampshire cases (tier 1), the pool should quantitative measures to compare his case with the pool of comparison cases second comparing out-of-state death-eligible cases. The defendant argues that Under both tiers, the defendant advocates that we apply qualitative and proportionality review: first reviewing New Hampshire death-eligible cases, and The defendant proposes a two-tiered process for conducting comparative

been sought under that state’s law. enforcement officer acting in the line of duty), and the death penalty could have decision-making., killing a law sentence, whether as a result of a jury’s sentencing decision or prosecutorial similarly culpable and more culpable defendants did not receive a death excessive or disproportionate, and thus must be vacated, if a great many other proportionality review must reflect this purpose, such that a death sentence is According to the defendant, the standard for conducting comparative deterrence, is the purpose underlying this state’s death penalty scheme. Hampshire has rarely imposed capital punishment, retribution, rather than fair application of the death sentence.” He contends that, because New sentencing is the expected result, and to promote a rational, consistent, and

eligible cases in New Hampshire. Quoting State v. Martini review is to ensure a reasonable measure of consistency across all death- The defendant argues that the purpose of comparative proportionality

sentencing to those cases that are most aggravated and in which death between capitally-sentenced and life-sentenced defendants, to limit capital (N.J. 1994), the defendant argues that a “substantial distinction [must] exist[ ]

denied, 463 U.S. 1214 (1983); Garcia, 664 P.2d at 979. U.S. 1084 (1984); State v. Copeland, 300 S.E.2d 63, 72 (S.C. 1982), cert. Balkcom, 716 F.2d 1511, 1517-19, 1518 n.5 (11th Cir. 1983), cert. denied, 465 295, 306 (6th Cir. 2007), cert. denied, 552 U.S. 1244 (2008); Moore v. mechanics for discerning whether a death penalty is “excessive or p. 21 disproportionate”; (2) the meaning and scope of “similar cases”; and (3) the guided by three aspects of RSA 630:5, XI(c): (1) the meaning of “excessive or The manner in which we conduct comparative proportionality review is

the defendant (i.e. State, our task is not to assess whether the death penalty was appropriate for occur only in the most clear and extraordinary situations. mitigating factors that may or may not affect the outcome. According to the sentence as excessive or disproportionate is an exceptional remedy” and should which the defendant was convicted of capital murder under post-Furman proportionality review because it accounts for the various aggravating and capital sentences.” Ultimately, the State contends that vacating “a death analysis is the only appropriate method for conducting comparative The State advocates for a comparison pool that is restricted to cases in proportionality review is not to determine mathematical symmetry between Additionally, the State argues that qualitative, precedent-seeking and physical and mental condition.” The State contends that “the goal of which the crime was committed and the defendant’s character, background, similar with regard to the crime and the defendant, such as . . . the manner in “compar[ing] the case at bar with other cases in the pool which are roughly our role is to determine whether the defendant’s death sentence is aberrant by the State argues, quoting State v. Bacon, 446 S.E.2d 542, 563 (N.C. 1994), that

, the “deathworthiness” of the capital murder case). Rather,

jurisdictions which have undertaken proportionality review in capital cases.” murder, we should “look to the decisions of the highest courts of other which the defendant was convicted of the same statutory variant of capital that because there are no similar post-Furman cases in New Hampshire in imposed. The State discredits the defendant’s two-tiered approach, and argues was held, regardless of whether a death or life imprisonment sentence was statutes, the prosecution sought the death penalty, and a sentencing hearing

may have been an act of mercy. sentence imposed in a similar capital murder case because that life sentence death sentence is not necessarily aberrant or disproportionate in light of a life aggravating and mitigating factors. The State suggests that the defendant’s have consistently imposed life sentences in similar cases, considering both in similar cases, such that a death sentence may be disproportionate if juries the defendant’s death sentence is “substantially out of line” with jury verdicts According to the State, comparative proportionality review considers whether jury, not to ensure a reasonable measure of consistency in sentencing. the defendant against a death sentence imposed by the action of an aberrant The State argues that the purpose of proportionality review is to protect possibility that a person will be sentenced to die by the action p. 22 the proportionality review substantially eliminates the

in a particular case is not disproportionate.” Id 22 imposed on similarly situated defendants to ensure that the sentence of death function in particular as comparing “each death sentence with the sentences caprice,” and characterized Georgia’s comparative proportionality review provision “[a]s an important additional safeguard against arbitrariness and The Supreme Court considered Georgia’s automatic appellate review Court concluded that will be set aside as excessive.” Id. at 205 (quotation omitted). The Supreme an act or it is substantially out of line with sentences imposed for other acts it proportionality review, such that “if the death penalty is only rarely imposed for manner in which the Georgia Supreme Court had been conducting comparative

normal . . . very large, great, or numerous : greater than usual.” Webster’s discriminatory application,” id. at 198 (quotation omitted). “characterized by or present in excess . . . exceeding the usual, proper, or “controlled by clear and objective standards so as to produce nonconcluded that the jury’s discretion in imposing the death penalty was aggravating and mitigating factors identified in the statute, id. at 197, and procedures set forth for guiding the jury’s sentencing decision, including the brackets omitted). In so doing, the Supreme Court first reviewed the imposed from the many cases in which it is not.” Id. at 198 (quotation and meaningful basis for distinguishing the few cases in which the death penalty is Amendment concerns of Furman because “[n]o longer should there be no Court held that Georgia’s death penalty sentencing scheme satisfied the Eighth capricious action. See Gregg, 428 U.S. at 189, 198 (plurality opinion). The suitably directed and limited so as to minimize the risk of wholly arbitrary and whole and concluded that the discretion of the sentencing authority was statute. Commonly understood, the meaning of “excessive” includes Supreme Court reviewed Georgia’s death penalty sentencing procedures as a sentence. The terms “excessive” and “disproportionate” are not defined by the “Excessive or disproportionate” was addressed in Gregg where the We first construe the meaning of an “excessive or disproportionate” death defendant.” “the penalty imposed in similar cases, considering both the crime and the refers to a death sentence that exceeds the usual or that is out of proportion to Thus, in this context, the phrase “excessive or disproportionate” generally “disproportionate” includes “out of proportion : UNSYMMETRICAL.” Id. at 655. Third New International Dictionary 792 (unabridged ed. 2002). Similarly,

crime and the defendant.” disproportionate” to the “penalty imposed in similar cases, considering both the p. 23 Webb

cases.

the particular jurisdiction involved, with respect to similar penalty imposed in a particular case was aberrational, within

inquiry under proportionality review was whether the death In the Supreme Court’s view, rather, the appellate

affirmative showing, to reverse the sentence.

death penalty was not imposed and, absent such an

quantitatively different from all other cases in which the

must affirmatively be shown, on such a scale, to have been

considered to require that the capital case before the court

equivalence, to reverse the sentence. Nor was that review

equivalent to all other capital cases and, absent such rough was, on a scale of moral blameworthiness, roughly determine whether the capital case before it in some way

appellate task under proportionality review was not to Put another way, in the Supreme Court’s view the

other particular defendant.

blameworthy and deserving of the death penalty than any

in the case before an appellate court was more or less morally

case. Nor was the focus on whether the particular defendant

imposed the penalty if given that responsibility in any given

into whether it, or any other appellate court, might have process of proportionality review did not involve an inquiry [T]he United States Supreme Court’s view of the appellate Id

, 680 A.2d at 204 (relying upon Gregg).

sentence of death.

We agree with the Connecticut Supreme Court that: defendant convicted under such circumstances will suffer a

defendants convicted of similar crimes. See case, the appellate review procedures assure that no id. at 198 (plurality opinion). aberrant jury in relation to penalties imposed by other juries who faced similar ensure that the particular death sentence on appeal is not the action of an review, the state appellate court monitors death sentences imposed by juries to crime will be set aside”). Therefore, in performing comparative proportionality death sentences imposed . . . wantonly or freakishly for any given category of Court properly performs the task assigned to it under the Georgia statutes, . at 206; see also id. at 224 (White, J., concurring) (“if the Georgia Supreme

not impose the death sentence in a certain kind of murder of an aberrant jury. If a time comes when juries generally do p. 24 (“death-eligible” universe). See or seek capital punishment, or the defendant pled guilty to a lesser offense for a death sentence, but either the prosecutor did not charge capital murder includes those cases in which a defendant may have been statutorily eligible generally stated, some courts have held that the “similar cases” universe case universe, three primary options have emerged among the states. First, Regarding the intended procedural boundary, commonly known as the

(“death-and-life-imprisonment” universe). See, e.g., Tichnell, 468 A.2d at 17imprisonment without possibility of parole, or a lesser sentence was imposed substantive boundaries of “similar cases.” punishment, a sentencing hearing occurred, and either a death sentence, life proportionality review. This inquiry involves two aspects: the procedural and defendant was convicted of capital murder, the prosecutor sought capital which dictates the inventory of cases we will rely upon to conduct comparative (N.J. 2002). Second, other courts have limited the universe to cases in which a We next turn to the meaning of “the penalty imposed in similar cases,”, e.g., State v. Papasavvas, 790 A.2d 798, 804

death in similar cases. See pattern of jury verdicts which demonstrate that juries generally do not impose disproportionate” if it is aberrant from, or substantially out of line with, a We hold that under RSA 630:5, XI(c) a death penalty is “excessive or

1020; Coley v. State, 204 S.E.2d 612, 616-17 (Ga. 1974). 808, 824 (Va. 1979), cert. denied, 445 U.S. 972 (1980); Coleman, 605 P.2d at 356 (N.C.), cert. denied, 464 U.S. 865 (1983); Stamper v. Com., 257 S.E.2d 1983), cert. denied, 466 U.S. 993 (1984); State v. Williams, 301 S.E.2d 335, 203-04, 208; Brett, 892 P.2d at 69; Tichnell v. State, 468 A.2d 1, 17-18 (Md. 33 So. 3d 842, 868 (La. 2009); Bland, 958 S.W.2d at 665; Webb, 680 A.2d at (plurality opinion), 224 (White, J., concurring). Accord, e.g., State v. Bordelon, U.S. at 309-10 (Stewart, J., concurring); Gregg, 428 U.S. at 188, 195, 198 similar cases, considering both the crime and the defendant. See Furman, 408 capricious, or wanton and freakish, in relation to penalties imposed by juries in that defendants will not incur a death sentence that is arbitrary and (White, J., concurring). This appellate monitoring function serves to ensure

convicted of similar crimes. view of the defendant’s case in relation to other juries facing similar defendants sentencing verdict in the defendant’s case, RSA 630:5, XI(c) requires a broader XI(b). While RSA 630:5, XI(a) and (b) focus upon the specific jury, evidence and aggravating circumstances upon which the death verdict rests, RSA 630:5, 630:5, XI(a), and from our review for the existence of evidence supporting the of the death verdict for “passion, prejudice or any other arbitrary factor,” RSA Our appellate review task under RSA 630:5, XI(c) differs from our review p. 25 Webster’s Third New International Dictionary very much alike : COMPARABLE” and “alike in substance or essentials.” scheme. The meaning of “similar” includes “having characteristics in common : elsewhere within RSA 630:5 or otherwise within the capital murder statutory 25 The statute does not define “similar cases,” and the term is not used The term “similar cases” is located within the phrase “the penalty sentence the defendant to death. Otherwise, the court shall impose a sentence recommendation that the sentence of death be imposed, the court shall capital murder. (Emphasis added.) RSA 630:5, V provides that: “Upon the seeks the death penalty for a particular defendant who has been convicted of sentencing hearing to determine the punishment to be imposed” if the state example, RSA 630:5, II provides that the trial court “shall conduct a separate imprisonment without possibility of parole, appear throughout RSA 630:5. For “sentence” to be “imposed” by the jury or judge, whether death or life 630:5, XI(c) (emphasis added). References to the “punishment” or the imposed in similar cases, considering both the crime and the defendant.” RSA

penalty. Quoting State v. Loftin case. See RSA 630:5. sentences can originate in prosecutorial decisions not to seek the death that are common to or very much like those in the defendant’s capital murder in addition to jury verdicts, disproportionality in the imposition of death be compared only to cases that share characteristics, substance or essentials The defendant advocates for a death-eligible universe. He contends that statutory term “similar cases” anticipates that the defendant’s death sentence

penalty, and a sentencing hearing was held.” defendant was convicted of capital murder, the prosecution sought the death taken by the majority of jurisdictions and consider only cases in which the proportionality review, and public policy, this Court should adopt the approach unambiguous language of RSA 630:5, XI(c), the history and purpose of and-life-imprisonment universe, arguing, “[b]ased on the plain and similar death-eligible cases. The State, however, urges us to adopt the deathreasonable measure of consistent imposition of the death penalty across all According to the defendant, reviewing all death-eligible cases would assure a imposed (“death-only” universe). See determining whether a particular death sentence was disproportionate.” of ‘deathworthiness,’ and this calculation . . . should be considered in argues that prosecutorial decisions may often be “understood as a calculation

630:5, XI(c). task is to discern the case universe intended by the legislature in enacting RSA

punishment, a sentencing hearing occurred, and a death sentence was defendant was convicted of capital murder, the prosecutor sought capital 18. Third, some courts have restricted the universe to cases in which a contends that without comparing his death sentence to sentences imposed

p. 26 We reject the death-eligible universe urged by the defendant. He

jurisdictions that rely upon a death-and-life-imprisonment universe. Accord imprisonment without possibility of parole. We therefore align with predicate aggravating factors; and the penalty imposed was either death or life of capital murder; a separate sentencing hearing occurred; the jury found the following procedural characteristics: the defendant committed the offense (1977). fair import of its terms, the universe of “similar cases” is limited to those with at 355; Blake v. State “similar cases.” See, 236 S.E.2d 637, 644 (Ga.), cert. denied, 434 U.S. 960 (1984); Flamer that predicate aggravating factors were not established by the evidence are not We hold that, in keeping with the plain language of the statute and the, 490 A.2d at 139; Garcia, 664 P.2d at 978; Williams, 301 S.E.2d v. Battle or death sentencing decision. Therefore, cases in which the jury determined, 661 S.W.2d 487, 494-95 (Mo. 1983), cert. denied, 466 U.S. 993 Com. found), cert sentencing decisions of juries in similar cases that faced the life imprisonment, 421 S.E.2d 821, 845 (Va. 1992), cert. denied, 507 U.S. 933 (1993); State N.W.2d 415, 455-56 (S.D.), cert defendant’s death sentence is “excessive or disproportionate” as related to. denied, 519 U.S. 1013 (1996); Satcher v. e.g. RSA 630:5, III, IV. Such cases would thus provide no guidance on whether a, Bland, 958 S.W.2d at 666; Webb, 680 A.2d at 210; State v. Rhines, 548 the jury, it never reaches the decision of whether to impose a death sentence., 630:5, IV. When predicate aggravating factors are not unanimously found by if a jury unanimously finds the existence of predicate aggravating factors. RSA Additionally, in New Hampshire, a sentence of death can be imposed only

. denied, 464 U.S. 865 (1983).

imposed a life sentence because no statutory aggravating circumstance was A.2d 104, 122, 140 (Del.) (excluding cases from comparison in which jury determined whether to impose a life or death sentence”); Flamer v. State, 490 proportionality review “is upon capital cases in which the sentencing authority a fact finder”); Tichnell, 468 A.2d at 17 (the focus of comparative comparison cannot be appropriately made where there was no such decision by requires a comparison of the decision to impose a death sentence . . .

imposed after a sentencing hearing was conducted. penalty of either death or life imprisonment without possibility of parole was of RSA 630:5 as a whole, the term “similar cases” refers to those in which a phrase “the penalty imposed in similar cases” in RSA 630:5, XI(c) in the context is presented on aggravating and mitigating factors, RSA 630:5, IV. Viewing the of capital murder occurs only after a sentencing hearing during which evidence RSA 630:5, the jury’s determination of the “penalty” to “impose” for the offense of life imprisonment without possibility of parole.” (Emphases added.) Under approach sua p. 27 of death penalty jurisdictions have adopted it. We have thus considered this for this approach and the parties did not brief its merits, a significant number We also reject the death-only universe. Although neither party advocates

“excessive or disproportionate” only in relation to “the [death] penalty imposed “penalty” so that we would determine whether a defendant’s death sentence is death-only universe, it would have inserted the word “death” before the word 630:5, IV. If the legislature had intended comparison cases to be restricted to a 630:5: death or life imprisonment without possibility of parole. See RSA (Emphasis added.) As earlier discussed, two penalties are possible under RSA defendant’s “sentence of death” to “the penalty imposed in similar cases.” sentence. The plain language of RSA 630:5, XI(c) requires comparison of the restrict the case universe to those cases in which the jury imposed a death

sponte and conclude that the legislature did not intend to

S.E.2d at 824. 455; Webb, 680 A.2d at 210-12; Battle, 661 S.W.2d at 494; Stamper, 257 similar or identical statutory language. Accord, e.g., Rhines, 548 N.W.2d at universe is consistent with holdings in other jurisdictions that considered (1985); Bland, 958 S.W.2d at 666 n.17. Our rejection of the death-eligible Lawson, 314 S.E.2d 493, 500-01 (N.C. 1984), cert. denied, 471 U.S. 1120 decisions. See State v. Monahan, 125 N.H. 17, 26 (1984); see also State v. avenues exist for defendants to challenge the propriety of prosecutorial afford them leniency. See Gregg, 428 U.S. at 199 (plurality opinion). Other remove them from consideration as candidates for the death penalty, or that death verdicts and not to regulate discretionary stages in a penal system that Thus, the focus of Furman is to protect criminal defendants from aberrant jury U.S. at 199 (plurality opinion); Proffitt, 428 U.S. at 258 (plurality opinion). penalty in accord with the Eighth and Fourteenth Amendments. Gregg, 428 arbitrary and capricious, or wanton and freakish, imposition of the death and background of the defendant in order to protect defendants against the examination of the individual circumstances of the crime and the character and channel the sentencing authority’s discretion in a manner that requires however, stands for the proposition that a death penalty statute must guide (plurality opinion); Proffitt, 428 U.S. at 258 (plurality opinion). Furman, whether to accept a plea for a lesser offense. See Gregg, 428 U.S. at 199 whether to charge a capital offense, whether to seek the death penalty, and inherent in a penal system that allows for prosecutorial discretion in deciding that the arbitrary imposition of the death penalty prohibited by Furman is 428 U.S. at 254 (plurality opinion). The petitioners in Gregg and Proffitt argued misreading of Furman. See Gregg, 428 U.S. at 199 (plurality opinion); Proffitt, rejected a similar argument because it was based upon a fundamental evenhanded and consistent imposition of death sentences. The Supreme Court comparative proportionality review will not achieve its purpose of assuring whether such defendants were actually charged with capital murder, upon similar defendants who committed similar murders, regardless of to the kind of capital murder for which a defendant was convicted; i.e. p. 28 generally agree that the pool of comparison cases is, in some manner, limited Turning to the substantive boundary of “similar cases,” the parties

murder convictions and, being mindful of dissimilarities, draw what guidance pool is “insufficiently large” for tier 1 review, we should compare all first degree duty, RSA 630:1, I(a). The defendant argues that because the New Hampshire knowingly causing the death of a law enforcement officer acting in the line of

such review. See comparative proportionality review process, thereby complicating or obscuring concerns about whether an expanded universe invites speculation into the Jurisdictions that rely upon a death-only universe have identified merits of death-only universe with death-and-life-imprisonment universe). confined to a death-only universe. See Williams, 301 S.E.2d at 355 (comparing terms, our legislature did not intend that the universe of similar cases be based upon the plain language of RSA 630:5, XI(c) and the fair import of its comparison would be chronically undefined”). However, we conclude that would cause proportionality review to be “never ending and the benchmark for not impose the death sentence in similar cases. See adequate and judicially manageable” method and any expanded universe whether there is a jury verdict pattern demonstrating that juries generally do (Miss. 1979) (concluding that death-only universe is a “constitutionally defendant’s death sentence is “excessive or disproportionate,” we must discern upon individualized sentencing); Coleman v. State, 378 So. 2d 640, 647-48 comparative proportionality review function. In order to determine whether the death because life verdicts represent acts of mercy and reflect the emphasis attempted to compare and contrast life verdicts with an actual sentence of Moreover, a death-only universe would hinder us from performing our 300 S.E.2d at 74-75 (court would enter a realm of pure conjecture if it into “intolerable speculation”), cert. denied, 484 U.S. 872 (1987); Copeland, universe beyond cases with sentences of death invites appellate court to enter 2005 (2009); State v. Palmer, 399 N.W.2d 706, 737 (Neb. 1986) (expanding the sentence was ‘unusual’” under state constitution), cert. denied, 129 S. Ct. death was imposed would introduce factors completely unrelated to whether court held that “comparison of non-death sentence cases . . . to those where a death-and-life-imprisonment universe and a death-eligible universe, the

Hunter v. State, 8 So. 3d 1052, 1073 (Fla. 2008) (in rejecting

generally did not do so. whether juries that faced the decision whether to impose a death sentence juries actually imposed a death sentence would impede our ability to determine (plurality opinion). Considering only those capital murder cases in which

did not see fit to include). Kousounadis, 159 N.H. at 423 (court will not add language that the legislature in similar cases, considering both the crime and the defendant.” See without parole pursuant to RSA 630:1-a, III;

p. 29 (d) Another after being sentenced to life imprisonment

another for his personal pecuniary gain;

said death or after having been criminally solicited by

(c) Another by criminally soliciting a person to cause

as that offense is defined in RSA 633:1;

commission of, or while attempting to commit kidnapping

(b) Another before, after, while engaged in the

in the line of duty;

consequence of or in retaliation for such person’s actions

in the line of duty or when the death is caused as a

(a) A law enforcement officer or a judicial officer acting

the death of: I. A person is guilty of capital murder if he knowingly causes

Hampshire, with particular qualifications: 630:5, I. The legislature has identified six kinds of capital murder in New those defendants who have committed the “offense of capital murder.” RSA As set forth by statute, the State can seek the death penalty only against

occurs under RSA 630:5. that a jury must consider when making its sentencing decision after a hearing essentials (hereinafter “substantive characteristics”) of a capital murder case determine how the legislature identified the characteristics, substance or the defendant’s case. We turn to the death penalty statutory scheme itself to characteristics, substance or essentials that are common to or very much like that a defendant’s death sentence be compared only to cases that share As outlined earlier, the ordinary meaning of the term “similar” connotes

and to promote justice, RSA 625:3. N.H. at 91, and construe the statute according to the fair import of its terms statute to discern the meaning intended by the legislature, see Addison, 159 capital murder as the case at bar.” We consider the plain language of the hearing in which the defendant was convicted of the same statutory variant of State contends, however, that we should compare only cases “with a penalty review to cases involving the same kind of capital murder as in this case. The torture employed.” For tier 2, the defendant argues that we should restrict our surrounding the killings, such as mental state and the degree of brutality or we may from the outcomes of those cases considering the “circumstances hearing. Cf p. 30 officer acting in the line of duty, may be subject to a capital murder sentencing capital murder, such as knowingly causing the death of a law enforcement Under RSA 630:5, a criminal defendant who commits a particular kind of

murder.

the time the offense was committed be culpable of a capital

V. In no event shall any person under the age of 18 years at

the meaning of “another” does not include a foetus. IV. As used in this section and RSA 630:1-a, 1-b, 2, 3 and 4,

death.

III. A person convicted of capital murder may be punished by

employed by the county attorney.

prosecutor’s office; or a county attorney; or attorney

employed by the department of justice or a municipal

district, probate, superior or supreme court; an attorney II-a. As used in this section, a “judicial officer” is a judge of a

probation-parole officer, or a conservation officer.

employee of any prison, jail or corrections institution, a constable or police officer of any city or town, an official or sheriff or deputy sheriff of any county, a state police officer, a

II. As used in this section, a “law enforcement officer” is a

punishable under RSA 318-B:26, I(a) or (b).

commission of, or while attempting to commit an offense

which the defendant committed the same kind of capital murder as the the fair import of its terms, the pool of “similar cases” is limited to those in Accordingly, we hold that, in keeping with the plain language of the statute and committed the same kind of capital murder as set forth in RSA 630:1.

(f) Another before, after, while engaged in the 30

sentence on review, the defendant in the comparison case must have Thus, for a capital murder case to be substantively “similar” to the death murder, premeditated first degree murder with aggravating circumstances.”). a myriad of capital crimes. It allows the death penalty only for one ‘kind’ of

. Brett, 892 P.2d at 68 (“Washington’s statute . . . does not contain

felonious sexual assault as defined in RSA 632-A:2;

commission of, or while attempting to commit aggravated

(e) Another before, after, while engaged in the possibility of parole.

p. 31 and the penalty imposed was either death or life imprisonment without hearing occurred, the jury unanimously found predicate aggravating factors,

defendant whose death sentence is under review, a separate sentencing cases in which a defendant committed the same kind of capital murder as the boundaries for “similar cases,” the comparison case inventory is restricted to 31

factors beyond a reasonable doubt. See capital murder only if it unanimously finds predicate statutory aggravating jury considers whether to impose a death sentence for a particular kind of include aggravating and mitigating factors under RSA 630:5. Significantly, a

In summary, considering both the procedural and substantive

at 978; Coleman, 605 P.2d at 1021. cert. denied, 469 U.S. 873 (1984); Lawson, 314 S.E.2d at 503; Garcia, 664 P.2d grounds, 494 U.S. 1023 (1990); Colvin v. State, 472 A.2d 953, 967-68 (Md.), Artis, 384 S.E.2d 470, 506 (N.C. 1989), vacated and remanded on other WL 2011565, at *17 (La. May 11, 2010); Satcher, 421 S.E.2d at 845; State v. 2690371, at *22-23; State v. Dunn, __ So. 3d __, __, No. 2001-KA-1635, 2010 definitions of “similar cases.” Accord, e.g., Davis, __ S.W.3d at __, 2010 WL Our holding is generally in accord with other jurisdictions’ substantive We recognize that the substantive characteristics of “similar cases” also later in this opinion. See Webb, 680 A.2d at 215. performing the mechanics of comparative proportionality review as discussed the jury and any mitigating factors considered are best accounted for when the defendant). However, we conclude that the aggravating factors found by the particular circumstances of the crime and the background and character of at 197-98 (plurality opinion) (statutory aggravators and mitigators account for particular defendant for the particular crime committed. See Gregg, 428 U.S. whether death is the proper sentence; that is, the deathworthiness of the creates the unique factual framework within which the jury determines capital murder, along with the aggravating factors and any mitigating factors, court must impose a sentence of death. RSA 630:5, V. Therefore, the kind of that a sentence of death be imposed. RSA 630:5, IV. If it does so, the trial upon this consideration, the jury, by unanimous vote only, may recommend themselves sufficient to justify a sentence of death. RSA 630:5, IV. Based in the absence of mitigating factors, whether the aggravating factors are whether the aggravating factors sufficiently outweigh any mitigating factors, or (identifying aggravating factors). If the jury finds such factors, it must consider

(plurality opinion), 224 (White, J. concurring). defendant whose death sentence is under review. Gregg, 428 U.S. at 206 p. 32 32

comparative proportionality review. We agree with the State. qualitative, precedent-seeking method as the exclusive approach for conducting imposed in similar cases. The State argues that the legislature intended a threshold for assessing whether his penalty is proportional to penalties application of these quantitative measures can be used to establish the frequency method and a culpability ranking method. He contends that qualitative, precedent-seeking review by using two quantitative measures: the comparison methods. The defendant advocates for the court to supplement The defendant urges us to adopt both qualitative and quantitative See Papasavvas background of the defendant for each case in the “similar cases” inventory., 790 A.2d at 805. or is not imposed for capital crimes within each category. See examining all of the circumstances of the murder and the characteristics and, e.g., and mitigating factors to assess the frequency with which the death penalty is defendants were convicted of the same or similar capital murders, by isolating capital murder cases into categories based upon certain aggravating appellate court compares the specific case before it to other cases in which Generally stated, under the qualitative, precedent-seeking method, the 929 (1993); Papasavvas, 790 A.2d at 805. Specifically, this method involves State v. Marshall, 613 A.2d 1059, 1076-82 (N.J. 1992), cert. denied, 507 U.S. penalty is imposed in certain circumstances. See Bland, 958 S.W.2d at 664; imposition, of the death penalty, and the frequency with which the death mathematically quantify the various factors leading to the imposition, or nonquantitative, frequency method involves statistical analysis, which seeks to Bland, 958 S.W.2d at 664; Webb, 680 A.2d at 209. In contrast, the

Since Furman

sentence in similar cases, “considering both the crime and the defendant.” there is a pattern demonstrating that juries generally do not impose a death for reviewing the inventory of similar cases must enable us to discern whether 664; see Webb, 680 A.2d at 209. defendant’s death sentence is “excessive or disproportionate,” the mechanics fundamentally different in principle and application.” Bland, 958 S.W.2d at comparative proportionality review. Because we must determine whether the sentences imposed for similar crimes and similar defendants,” they “are which is to determine whether a particular sentence is disproportionate to the creating a comparison case inventory, we address the mechanics of performing Webb, 680 A.2d at 209. Although “[b]oth approaches share a common goal Having determined the meaning of “similar cases” for purposes of and the quantitative, frequency method. See, e.g., Bland, 958 S.W.2d at 664; comparative proportionality review: the qualitative, precedent-seeking method,

p. 33 method. Rather, they used the statistical methodology to supplement their comparative proportionality review did not supplant the precedent-seeking Jurisdictions that have employed statistical methodology to conduct

a statistical method of comparative proportionality review); Bland, 958 S.W.2d See Williams, 301 S.E.2d at 355-56 (identifying risks associated with adopting the precedent-seeking approach. See that already accounted for under the qualitative, precedent-seeking approach. substitute for individualized judicial assessment of similar cases afforded by quantitative, statistical method would add value to the review process beyond By its very nature, a quantitative, statistical method could not serve as a (Wash. 1995), cert. denied, 518 U.S. 1026 (1996). We are not convinced that a (2001); Papasavvas, 790 A.2d at 807; see also State v. Pirtle, 904 P.2d 245, 277 State v. Morton, 757 A.2d 184, 191-92 (N.J. 2000), cert. denied, 532 U.S. 931

conduct factual comparison). independently evaluate individual defendant and nature of crime committed to to “quantify the unquantifiable”); Artis, 384 S.E.2d at 506 (court must the frequency, statistical method has been criticized as an unworkable attempt penalty cases] . . . would be frustrated.”); Webb, 680 A.2d at 209 (noting that quantitative analysis, the concept of ‘individualized consideration’ [for death comparative proportionality analysis to be governed by statistical and defendant. See Bland, 958 S.W.2d at 665 (“If a reviewing court allowed its the individual circumstances of the particular murder and the particular traditionally employed by appellate courts. See of reviewing a death sentence imposed under a process that accounts for all of may actually obscure, or at least unnecessarily complicate, the appellate task statistical method that compartmentalizes capital murder cases into categories

statute in 1977. comply with this federal jurisprudence when it revised the death penalty (plurality opinion). As set forth earlier in this opinion, our legislature sought to

fact-specific analysis, consistent with a precedent-seeking approach proportionality provision suggests that the appellate function incorporated a Moreover, in Gregg, the Supreme Court’s description of Georgia’s comparative scheme. See Bland, 958 S.W.2d at 664; Williams, 301 S.E.2d at 355. enacted RSA 630:5, XI(c) when it revised New Hampshire’s death penalty proportionality review jurisprudence in 1977, the year that the legislature statistical approaches had not yet surfaced in published comparative impose the death penalty. See Williams, 301 S.E.2d at 355. Also, quantitative, considerations that juries are required to engage in when deciding whether to statutory prescription and accords with the individualized sentencing both the crime and the defendant.” The precedent-seeking method fulfills this comparative proportionality review in a fact-specific manner by “considering The plain language of RSA 630:5, XI(c) anticipates that we conduct characteristics of the case. See

circumstances underlying the substantive characteristics of each case. the “similar cases” inventory to gain an understanding of the facts and picture of the facts and circumstances underlying the substantive we will first review the entire record of the defendant’s case to gain a complete U.S. 1159 (1995). Then, we will review the published decisions in each case in Because the defendant’s death sentence is the baseline for comparison, character, background, and physical and mental condition), cert. denied, 513 manner in which the defendant committed the crime, as well as defendant’s 1994) (court considers all of the circumstances of the case including the and mitigating factors involved.”); State v. Bacon, 446 S.E.2d 542, 563 (N.C. facts of the crimes, the characteristics of the defendants, and the aggravating ellipses and brackets omitted)); Godsey, 60 S.W.3d at 782 (“We examine the of factors including the nature of the offense and the offender” (quotation, proportionality review is “a cumulative process which focuses on a combination

verdicts. See in the inventory, or a calculation of the number of death and life imprisonment upon similar or identical statutory language. See without possibility of parole. aggravating and mitigating factors between the defendant’s case and each case RSA 630:5, XI(c). Other jurisdictions have reached a similar conclusion based to the defendant’s case. This process is not limited to a comparison of the proportionality review is consistent with the plain language and fair import of defendant to decide whether to impose the death penalty or life imprisonment juries generally do not impose a death sentence in capital murder cases similar We hold that the precedent-seeking approach for conducting comparative circumstances of the crime and the character and background of the particular defendant’s death sentence is excessive or disproportionate; that is, whether unique footprint of the case within which the jury considered the particular determine whether a germane jury pattern emerges demonstrating that the mitigating factors). These characteristics found by the jury establish the both the crime and the defendant,” RSA 630:5, XI(c). In doing so, we will circumstances of the capital murder, the aggravating factors, and any cases,” we will survey the case inventory and examine each case “considering facts underlying the substantive characteristics of the case (the nature and In applying the precedent-seeking approach to the inventory of “similar not dispositive on proportionality review). Rather, we will review the particular death verdicts among categories of murders similar to the defendant’s case is

Artis, 384 S.E.2d at 505 (numerical disparity between life and

785; Bland, 958 S.W.2d at 665; Williams, 301 S.E.2d at 355-56.

and invalidate the aberrant death sentence”). proof that a defendant’s death sentence is perfectly symmetrical, but to identify at 665 (“our function in performing comparative review is not to search for p. 35 Bacon

under review is excessive or disproportionate.

strong basis for concluding that a death sentence in the case

returning life sentences in the similar cases, we will have a

other hand if we find that juries have consistently been

See aggravating factors, and any mitigating factors, involved in the inventory case. Caution is warranted when considering the number and nature of

under review is not excessive or disproportionate. On the

VI-VII, relate to the nature of the crime committed by the defendant, while (1992). Some of the aggravating and mitigating factors identified in RSA 630:5, death in similar cases. See jury’s verdict not to impose the death penalty), cert pattern of jury verdicts which demonstrate that juries generally do not impose strong basis for concluding that a death sentence in the case. denied, 506 U.S. 856 cases appear similar, yet mitigating circumstances in one case may explain disproportionate” unless it is aberrant from, or substantially out of line with, a numbers of victims or other aggravating factors may superficially make two , e.g., State v. Lord, 822 P.2d 177, 223 (Wash. 1991) (simply comparing

(quotation omitted)). juries have ‘consistently’ returned life sentences in factually similar cases” in cases similar to the one under review does not automatically establish that one, two, or several juries have returned recommendations of life imprisonment death is excessive or disproportionate); p. 35 Bacon, 446 S.E.2d at 566 (“fact that a jury rendered a life imprisonment verdict will not establish that a defendant’s death sentences in the similar cases, then we will have a decline to impose a death sentence in similar cases, specific instances in which If . . . we find that juries have consistently been returning Ultimately, we will not vacate a death sentence as “excessive or Brett, 892 P.2d at 69 (court holding that unless and until juries consistently reasoned and controlled decision to impose death in another similar case); apparent, a life verdict in one case does not render disproportionate the also Bland, 958 S.W.2d at 665 (even when meaningful difference is not imposed for other acts it will be set aside as excessive” (quotation omitted)); see rarely imposed for an act or it is substantially out of line with sentences (comparative proportionality review ensures that “if the death penalty is only

, 446 S.E.2d at 563 (quotation omitted).

basis for a sentence less than death). S.W.2d at 665 (a meaningful difference may exist between cases that reveal a defendant’s death sentence is “excessive or disproportionate.” See Bland, 958 determine whether a germane pattern of verdicts exists demonstrating that the the substantive characteristics found by the jury in each case, we will Considering the particular facts and circumstances through the lens of given appeal, if sentence is to be affirmed, should rest upon p. 36 Constitution. By the same token, the final resolution of a

latter is now an absolute command of the [United States]

diminish the particularized qual[it]y of sentencing, since the [C]omparative [proportionality] review cannot be permitted to

individualized sentencing in the imposition of death sentences. See

symmetry or a mechanism for requiring uniformly consistent results. See Finally, comparative proportionality review is not a search for perfect

Copeland, 300 S.E.2d at 72. stand point, of course, that which is unique is also incommensurable.” denied, 465 U.S. 1051 (1984); Copeland, 300 S.E.2d at 72. “From a logical 548 N.W.2d at 457; State v. Creech, 670 P.2d 463, 470 (Idaho 1983), cert.

cases” and the Eighth Amendment constitutional requirement for reveal meaningful differences. See statutory notion of comparative proportionality review considering “similar mitigating factors with the case on appeal, the facts underlying the factors may murder defendants are alike. Indeed, some discord may exist between the particular cases which are invariably unique.”). Ultimately, no two capital statutory requirement to ensure an unattainable degree of identity among 33 So. 3d at 868; see also Brett, 892 P.2d at 69 (“There is no constitutional or the crime and the character and background of the defendant. See Bordelon, decisions based upon the unique circumstances of a case, given the nature of statutory scheme that requires juries to make individualized sentencing 204. Perfect symmetry and uniform consistency are not possible under a denied, 129 S. Ct. 111 (2008); Bland, 958 S.W.2d at 665; Webb, 680 A.2d at Bordelon, 33 So. 3d at 868; State v. Rimmer, 250 S.W.3d 12, 36 (Tenn.), cert.

Even when cases in the inventory share common aggravating or substantive characteristics found by the jury. comparative proportionality review process must account for all of the deathworthiness of a certain kind of murder, a reliable and meaningful characteristics of a capital murder case give context for its determination of the factors found in the case. Because the jury’s findings on the substantive defendant, informed by the particular aggravating factors and any mitigating circumstances of that crime and the character and background of that jury to determine the deathworthiness of a particular defendant in light of the

according to legislative judgment, equally subject to the death penalty. at least two aggravating factors found beyond a reasonable doubt are, mitigating factors under RSA 630:5. Rather, all types of capital murder, with types of capital murder under RSA 630:1 in relation to the aggravating and particular crime itself. The statute does not rank by relative culpability the others relate to the defendant’s background and character apart from the the post-Furman 37 p. 37 convicted of a capital crime and sentenced to death in New Hampshire during case is complicated by practical realities. No other defendant has been Our ability to conduct comparative proportionality review in the present acting in the line of duty. murder case, however, did not involve the killing of a law enforcement officer sentence of life imprisonment without possibility of parole. That capital Brooks, the defendant was convicted of capital murder and the jury imposed a State of New Hampshire v. Brooks, No. 2008-0875 (N.H.) (appeal pending). In sought the death penalty and a separate sentencing hearing occurred. See statute in 1977, there has been only one previous case in which the State

era. Further, since the legislature revised the death penalty

must definitively decide de independent review. RSA 630:5, XI(c). This inquiry is a question of law that we X comparative proportionality review. The statute requires us to conduct an We agree with the parties that neither bears the burden of proof on also Gregg, 428 U.S. at 190 (plurality opinion). system.” Woodson and the defendant.” See, 428 U.S. at 295 (plurality opinion) (quotations omitted); see maintain a link between contemporary community values and the penal compared to “the penalty imposed in similar cases, considering both the crime discretion to choose between life imprisonment and capital punishment is to sentence imposed upon the defendant is “excessive or disproportionate” as “[O]ne of the most important functions any jury can perform in exercising its Our role under 630:5, XI(c) is limited to determining whether the death Id death or life imprisonment without possibility of parole. See RSA 630:5, IV, V. particular murder and of the background and character of the defendant, is whether the appropriate sentence, in light of the circumstances of the punishment scheme, the jury bears the sole responsibility to determine or the heinousness of a particular crime.”). Under New Hampshire’s capital similar cases, not to gauge, in isolation, the culpability of a specific defendant under [the state’s comparative proportionality review statute] is to compare

resort to traditional notions of burdens of persuasion.” (emphasis omitted)). rather than its coarse resemblance to other cases. of proof. See Webb, 680 A.2d at 208 (“We cannot fail to decide the question by

RSA 630:5, XI(c). framework for conducting statutory comparative proportionality review under . Despite this inherent tension, our holdings today provide an objective

the unique correctness of the result in the given instance p. 38 38

statutes and are satisfied that there are no similar cases against which the imposed in all prior capital cases tried under the current death penalty Furman compared the death sentences imposed upon appellants with the sentences review for a death sentence that represented the first of its kind in the postupon two defendants convicted of capital murder, the court noted, “We have Still other courts have declined to perform comparative proportionality XI(c). Shaw, 255 S.E.2d at 806-07. In reviewing the death sentences imposed proportionality review provision containing identical language to RSA 630:5, imposition of the death sentence, and also pre-Furman required to conduct appellate review under a statutory comparative statutes. See (1983). For example, in State v. Shaw, the South Carolina Supreme Court was review for the first time in post-Furman disproportionate to sentences in other cases”), cert. denied, 461 U.S. 918 Other state supreme courts conducting comparative proportionality 1982) (“there are no similar cases, and this sentence cannot be held S.E.2d 315 n.5 (S.C. 1991); see also State v. Felde, 422 So. 2d 370, 398 (La. 444 U.S. 957 (1979), and overruled on other grounds by State v. Torrence, 406 era. See, e.g., State v. Shaw, 255 S.E.2d 799, 807 (S.C.), cert. denied,

death sentences were vacated due to the unconstitutional mandatory

, e.g., Creech, 670 P.2d at 476 (comparing cases in which the

Other states have compared cases decided under former death penalty not unconstitutional.” Gregg, 428 U.S. at 204-05 n.56 (plurality opinion). in the absence of any post-Furman capital cases available for comparison. It is necessary at the inception of the new [comparative proportionality] procedure approach, remarking, “This practice [of examining pre-Furman cases] was 1978), cert. denied, 441 U.S. 967 (1979). The Gregg court endorsed this 623 S.W.2d 867, 870 (Ky. 1981); Smith v. Com., 248 S.E.2d 135, 151 (Va. denied, 450 U.S. 989 (1981), and overruled on other grounds by Payne v. Com., 459 U.S. 1155 (1983); Gall v. Com., 607 S.W.2d 97, 113-14 (Ky. 1980), cert. e.g., Jones v. State, 648 P.2d 1251, 1260 (Okla. Crim. App. 1982), cert. denied, different approaches. Some states have compared pre-Furman disproportionate under RSA 630:5, XI(c). See cases. See, however, does not by itself signify that his death sentence is excessive or death penalty cases have taken comparative proportionality review under RSA 630:5, XI(c). This circumstance,

process mandated [by statute]”). inventory “does not mean that we cannot complete the comparative review (court holding that dissimilarities among cases and limitations of in-state case proportionality provision ineffective or inoperative. Cf. Tichnell, 468 A.2d at 21 penalty itself would be nullified.”). Nor does it render the comparative does not signify that his sentence is disproportionate. Otherwise, the death (“[T]he fact that [the defendant] is among the first to receive a death sentence

The defendant’s sentence of death is thus the first sentence subject to p. 39 Id

comparative sentence review would be forever impossible.

similar cases. The first case must stand alone, otherwise

that first case necessarily cannot be compared to any other

each type or category of capital case that may appear and

differing considerations and standards.” Hunter other states would “result in the comparison of death sentences that rest upon of comparative proportionality review, reasoning that reviewing cases from

cases must have a beginning. There will be a first case for

conduct comparative proportionality review when no or limited similar in-state Moreover, some courts have considered only in-state cases for purposes Other courts, however, have compared cases from other jurisdictions to been no other similar cases in this state.” Hopkinson, 664 P.2d at 88. The Wyoming Supreme Court noted, “Since the passage of this statute, there have review function under a statutory provision identical to RSA 630:5, XI(c), the example, in Hopkinson v. State, in undertaking its comparative proportionality So. 2d 1206, 1214 (Miss. 1978), cert. denied, 440 U.S. 950 (1979). For stated in requires a comparison of each case with all similar prior Grainey v. State, 997 P.2d 1035, 1040 (Wyo. 2000); Bell v. State, 360 88-91 (Wyo.), cert. denied, 464 U.S. 908 (1983), and superseded by rule as 1989), cert. denied, 497 U.S. 1033 (1990); Hopkinson v. State, 664 P.2d 43,

review.” Godsey, 60 S.W.3d at 786. jurisdictions are likely not ‘similar’ for purposes of comparative proportionality that capital sentencing statutes differ from state to state, cases from other proportionality review was to be conducted on a national scale,” and that “given that “[i]n its jurisprudential history there is no indication that comparative “searched the record . . . for any prejudicial error and . . . found none.” p. 39 Id proportionality review under state constitution). And another court reasoned appellants,” “completed the statutorily mandated sentence review,” and appellants’ sentences be set aside. Any system of review that

neither excessive nor disproportionate). for review but nonetheless concluded that the sentences were appropriate and would permit meaningful comparative review of the death sentences before it Copeland, 300 S.E.2d at 77 (court concluded that no similar case exists that

because it had “considered and overruled each assignment of error by any other similar cases does not require, however, that scheme complied with the constitutional guidelines outlined in Gregg, and . The court affirmed the death sentences because the state’s death penalty

The inability of this Court to compare this case with

p. 39 Id. at 807 (footnote omitted). It concluded that: proportionality of the sentences imposed upon appellants can be measured.” contemporary community values regarding whether the punishment of death is

p. 40 comparison case inventory. See Most states conduct comparative proportionality review with an in-state

any specific model of review upon the states.” Copeland determination since the [United States] Supreme Court has declined to impose thus, “the contours of proportionality review . . . have been left to state 40 required under the Eighth Amendment to the United States Constitution, and, As discussed earlier, comparative proportionality review is not constitutionally review. RSA 630:5, XI(c) is silent on the jurisdictional scope of “similar cases.” should rely upon out-of-state cases to conduct comparative proportionality In the case before us, both the State and the defendant argue that we state case comparison is preferable. Local jury verdicts best express Tichnell, 415 A.2d at 854. We agree that in-

given is disproportionate to the crime committed.” Id. at 1215. of similar cases in other jurisdictions, we cannot say that the punishment here statute, our previous cases where the death penalty was upheld, and a survey “Based upon the legislative determination as expressed in our capital murder Arizona, Florida, Georgia and Texas. Id. at 1214-15. The court concluded, jurisdictions that had approved the penalty imposed and cited five cases from under the current statute, the court elected to review similar cases in other without full consideration of aggravating and mitigating factors as was required Likewise, in Bell v. State cases reviewed (1954-1963) and the fact that the prior penalties were imposed circumstances before it. Id. However, given the dated character of the in-state imposition of the death penalty would not be wanton or arbitrary under the murder. Id. at 1214. The court reviewed those cases and confirmed that to that, there were twenty cases affirming the death sentence for the crime of punishment effected in the state was in 1964 and that in the nine years prior 2d at 1211. The court’s survey of in-state cases revealed that the last capital freakish manner but in a consistent and even-handed manner.” Bell, 360 So. similar cases to insure that the death sentence is not inflicted in a wanton or mandatory death penalty statute was declared unconstitutional. Id the Mississippi Supreme Court was required to undertake a “[c]omparison to

or very similar to those enacted by our own legislature.” Id. consideration, are very persuasive when applying statutes which are identical from the courts of other states, from whence came the legislation under court reviewed decisions from Florida and Georgia, stating that “[t]he decisions death penalty.” Id. at 90. To conduct its comparison analysis, therefore, the circumstances in which a jury was willing to and did return a verdict of the was out of the picture” and thus “[t]he cases can only be compared as to It observed that the in-state cases had limited value because “jury discretion

sentences had been imposed but were subsequently vacated because the court reviewed the facts of two in-state, post-Furman cases in which death p. 41 DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

So ordered

insure that every safeguard is observed.” State v. Johnson murder conviction and the death sentence. We will be “particularly sensitive to 41 defendant’s direct appeal and mandatory appellate review of both the capital review is, thus, the final step in a full appellate process encompassing a convicted of similar crimes, RSA 630:5, XI(c). Comparative proportionality arbitrary and capricious, or wanton and freakish, manner. See crucial safeguard to ensure that the death penalty is not imposed in an from all other forms of punishment, and meaningful appellate review is a. mandatory appellate review under RSA 630:5, XI(c). Death is different in kind arbitrarily or irrationally”). conducting the statutory comparative proportionality component of our review plays a crucial role “in ensuring that the death penalty is not imposed Our holding today provides an objective basis for meaningfully (1991); see Parker v. Dugger, 498 U.S. 308, 321 (1991) (meaningful appellate

sentencing verdicts rendered by juries who have faced similar defendants and then take a broader view of the defendant’s case in relation to other evidence and sentencing verdict in the defendant’s case, RSA 630:5, XI(a), (b), mandatory appellate review itself requires that we focus upon the specific jury, have a right to appeal the merits of the conviction and sentence. Additionally, in this state convicted of capital murder and sentenced to death. Defendants under RSA 630:5, XI(c) is one part of the appellate process afforded defendants differs . . . not in degree but in kind”). Comparative proportionality review and irrevocability”); Furman, 408 U.S. at 306 (Stewart, J., concurring) (“death U.S. at 187 (plurality opinion) (“death as a punishment is unique in its severity

comparative proportionality. in the future find it unnecessary to consider out-of-state cases for purposes of jurisprudence develops beyond this first death penalty case of its kind, we may framework set forth in this opinion. If New Hampshire’s death penalty be meaningful for performing comparative proportionality review under the published opinions of out-of-state cases to the extent such comparison would to promote justice.” RSA 625:3. Accordingly, in this case we will consider provisions of the Criminal Code “according to the fair import of their terms and comparative proportionality review under RSA 630:5, XI(c). We must construe was enacted after Furman and Gregg and is the first death sentence subject to imposed upon a defendant since the capital punishment sentencing scheme case before us presents the first New Hampshire death sentence that has been community values and the penal system” (quotation omitted)). However, the capital punishment, jury functions “to maintain a link between contemporary Woodson, 428 U.S. at 295 (when choosing between life imprisonment and appropriate for a particular crime committed by a particular defendant. See