2009-047, State of New Hampshire v. Michael Addison

Michael A. Delaney

No. 2009-047

Hillsborough-northern judicial district

conspiracy to commit criminal threatening and reckless conduct. See CONBOY, J. The defendant, Michael Addison, was convicted by a jury of

process be “random.” We affirm. David M. Rothstein not comply with the requirement of RSA 500-A:6 (2010) that the juror selection officer; and (2) the method used to select prospective grand and petit jurors did jury venire that he had been separately charged with the murder of a police appeals, arguing that: (1) the Trial Court (McGuire, J.) erred by informing the 629:3 (2007); RSA 631:4 (2007); RSA 626:8 (2007); RSA 631:3 (2007). He

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 this morning about the case. p. 2 broadcasts. I understand that it was -- there was a story on Channel 9 publicity in local newspapers and in local radio and television The reason I mention the Officer Briggs case is that it has garnered much nothing to do with the defendant’s guilt or innocence on these charges.

That case is totally unrelated to the present charges and has

Briggs, for which the defendant was later indicted and convicted. See than twenty-four hours before the murder of Manchester Police Officer Michael The parties do not dispute that the shooting at Roy Drive occurred less

doubt. charge unless and until the state proves that charge beyond a reasonable

II. VandeBogart Instruction

determined. However, the defendant is presumed innocent of that tried and the defendant’s guilt or innocence in that case has not been Police Officer Michael Briggs in October 2006. That case has not been Michael Addison, has been indicted for the shooting death of Manchester I will be candid with you and inform you that the defendant in this case,

Manchester. in State v. VandeBogart, 136 N.H. 107 (1992) (the VandeBogart instruction): where gunshots were fired at an apartment building on Roy Drive in first read to the venire the following instruction, based on an instruction given threatening and reckless conduct arising out of his involvement in an incident the jury about the capital murder case.” The court determined that it would stating it. This would not serve the defendant’s apparent purpose not to inform “imply a connection between Officer Briggs’s death and the defendant without select fair and impartial jurors.” The court noted that the proposed questions confusion and speculation among potential jurors and hinder the attempt to found, however, that the defendant’s proposed questions “could create extensive pre-trial publicity about the capital murder charge. The trial court The defendant submitted proposed voir dire questions related to the

the State’s request to seek the death penalty in the Briggs case. used the defendant’s convictions in this case as aggravating factors to support The defendant was convicted of conspiracy to commit criminal linked the defendant to the murder of Officer Briggs. The State subsequently same weapon allegedly used to kill Officer Briggs. Widespread media coverage Addison, 159 N.H. 87 (2009). The gun used in the Roy Drive shooting was the

I. Facts p. 3 3

court.” VandeBogart, 1 p. 3 36 N.H. at 110. This court will not disturb the trial On appeal, the defendant argues that the VandeBogart be asked during voir dire is a matter within the sound discretion of the trial N.H. 99, 102, cert. denied, 449 U.S. 879 (1980). “[T]he choice of questions to made in the first instance by the trial court on voir dire. State v. Gullick, 120 whether a prospective juror is free from prejudice is a determination to be The court then completed the voir Wamala, 158 N.H. 583, 594 (2009) (quotation omitted). It is well settled that conducted is wholly within the sound discretion of the trial court.” State v. 671, 673 (1994) (quotation omitted). “[T]he manner in which voir that. dire is indifferent, [the juror] shall be set aside on that trial.” State v. Weir or bias you may have about this case or this defendant, you must tell me, 138 N.H. whether the juror is indifferent. Id with me. If you feel that you cannot put aside any impression, opinion,. “[I]f it appears that any juror is not impartiality is questioned, however, the trial court has a duty to determine I have been candid with you and it is imperative that you be candid impartial. State v. Rideout, 143 N.H. 363, 365 (1999). When a juror’s 208, 218 (2006) (quotation omitted). Generally, a juror is presumed to be the right to be tried by a fair and impartial jury.” State v. Goupil, 154 N.H. “It is a fundamental precept of our system of justice that a defendant has

guidance only. See State v. Ball, 124 N.H. 226, 2 p. 3 31-33 (1983). arguments under the State Constitution, citing federal court opinions for distinguishable from those in this case. We first address the defendant’s VandeBogart instruction was improper because the facts in that case are I, arts. 15, 17, 35; U.S. CONST. amends. V, VI, XIV. He also contends that the impartial jury under the State and Federal Constitutions. See N.H. CONST. pt. violated his rights to due process, a fair trial, and a trial before a fair and on the evidence presented in this court during this trial. instruction aside your preconceptions, biases or opinions and render a verdict based empanelled a jury. the case. To be a fair and impartial juror, it is sufficient if you can lay defendant’s proposed questions of each prospective juror individually, and into the trial with no information or impression about the defendant or

To be a fair and impartial juror does not mean that you must come dire process, asking almost all of the

you from serving as jurors i[n] this case. the shooting death of Officer Briggs does not in and of itself disqualify

may have read, heard or seen something about the present charges or that case or the charges presently before the Court. The fact that you I assume most of you have read or heard or seen something about p. 4 State v. Addison

render a verdict based on the evidence presented in court. sufficient if the juror can lay aside his impression or opinion and impartiality would be to establish an impossible standard. It is

sufficient to rebut the presumption of a prospective juror’s notion as to the guilt or innocence of an accused, without more, is

the case. To hold that the mere existence of any preconceived will not have formed some impression or opinion as to the merits of In VandeBogart vicinity and scarcely any of those best qualified to serve as jurors 4

media coverage in newspapers and on television. Id. In concluding that the case was unrelated to the assault charge and had received a great deal of venire of a pending murder indictment against him. Id. at 108. The murder conviction for simple assault, arguing that the trial court erred in informing the VandeBogart, 136 N.H. at 110-11. The VandeBogart defendant appealed his the venire that the defendant also faced a first-degree murder charge. impartial jurors otherwise, the trial court was within its discretion in informing

omitted). case can be expected to arouse the interest of the public in the widespread and diverse methods of communication, an important, 160 N.H. 493, 499 (2010) (quotations, brackets, and citations ignorant of the facts and issues involved. In these days of swift, a fair and impartial jury. It does not require that a juror be totally [T]he State Constitution requires that an accused receive a trial by

need not be totally ignorant of the facts of the case: instruction satisfied due process. It is well established that an impartial jury applies to this case, we hold that the trial court’s use of the VandeBogart Assuming, without deciding, that a heightened level of due process

the right to an impartial jury than the Federal Constitution. murder; and (2) the New Hampshire Constitution affords greater protection of qualify as an aggravating factor supporting the death penalty in the Briggs standard of due process for two reasons: (1) a conviction in this case would the jury in this case. He asserts that this case is subject to a heightened defendant was charged in the Briggs murder, some of whom ultimately sat on prejudicial information to prospective jurors who did not know that the violated his right to a fair trial and impartial jury because it provided highly The defendant claims that the use of the VandeBogart instruction

discretion standard). Lambert, 147 N.H. 29 p. 5 5, 296 (2001) (explaining the unsustainable exercise of the trial judge’s decision was against the weight of the evidence. Id.; cf. State v. court’s ruling absent an unsustainable exercise of discretion or a finding that 5

defense asserts that “the factual nexus between the murder and the Roy Drive Manchester police, and both allegedly involved the same weapon. Thus, the Manchester less than twenty-four hours apart, both were investigated by the closely intertwined with the Roy Drive shooting. Both crimes occurred in Here, the defendant further contends that the VandeBogart VandeBogart because the circumstances surrounding the Briggs murder are so The defendant further argues that this case is distinguishable from

discretion of the trial court. Wamala, 1 p. 5 58 N.H. at 594. who knew little or nothing about the Briggs case; and (3) the VandeBogart trial court’s disposal, the method of voir dire remains within the sound ruling in VandeBogart information about the publicized case; (2) the instruction tainted the jurors did not involve a comparison of voir dire strategies at the Id distinction, however, does not warrant a contrary conclusion. Although our the exposure of each juror to the publicity about the defendant. This this case – a questionnaire and individualized questioning designed to gauge did not have the opportunity to consider the method of voir dire he proposed in

conclusion on these points. fair. The facts in the present case do not lead us to reach a different We recently upheld the use of a VandeBogart decision places too great a weight on a juror’s assurance that he or she can be

because it presumes that the entire venire has already been exposed to the defendant’s contentions that: (1) the VandeBogart decision is flawed Addison regard., 160 N.H. __ (decided Oct. 19, 2010). In the 7-Eleven case, we rejected El Mexicano restaurant in Manchester (the “El Mexicano” case), State v. them an opportunity to express any reservations or doubts in this (the “7-Eleven” case), Addison emphatically informed the panel of their duty to be impartial and gave, 160 N.H. at 497- p. 5 500; and (2) the robbery of the in October 2006: (1) the hold-up of a 7-Eleven convenience store in Hudson a fair trial. By directly referring to pretrial publicity, the court cases involving the defendant in which he was convicted of crimes committed understand and apply in order to ensure that the defendant was afforded explain to the jury immediately the legal principles they would have to instruction in two other terms of their ability to remain impartial. The court was then able to constitutional rights were not violated. [h]ighlighted for the jury the most difficult problem confronting them in instruction to the venire in this case and hold that the defendant’s . at 111. We conclude that the same reasoning justifies the use of the

explained that the trial court had: trial court did not err in advising the venire of the pending murder charge, we p. 6 Administrative Office of the Courts (AOC) annually prepares a master jury list

describe the undisputed general procedure followed in this case. The To address the statutory violations alleged by the defendant, we first

jurors from a fair cross section of the community – are contravened.” Id. the defendant occurs when the purposes of the statute – random selection of “Statutory noncompliance generally rises to a substantial level and prejudice to as a whole, resulted in substantial noncompliance with the statute.” Id. that violations have occurred, we then “consider whether any violations, taken violations of the jury selection procedures mandated by statute. Id. If we find claim, we first consider whether the actions complained of in fact constituted 150 N.H. 14, 33 (2003), cert. denied, 541 U.S. 942 (2004). In analyzing such a substantial noncompliance with the jury selection statutes. See State v. Ayer, III. RSA chapter 500-A The defendant bears the burden of establishing a prima facie case of

O., 157 N.H. 781, 785 (2008). ambiguous or subject to more than one reasonable interpretation. In re Alexis legislative history, however, to aid our analysis if the statutory language is intent. Appeal of Parkland Med. Ctr., 158 N.H. 67, 72 (2008). We will review unambiguous, we need not look beyond it for further indication of legislative did not see fit to include. Id. When a statute’s language is plain and will neither consider what the legislature might have said nor add words that it to modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 (2005). We When the language of the statute is clear on its face, its meaning is not subject where possible, we ascribe plain and ordinary meanings to the words used. Id. considered as a whole. Id. We first examine the language of the statute, and, arbiter of the intent of the legislature as expressed in the words of the statute novo. See Kenison v. Dubois, 152 N.H. 448, 451 (2005). We are the final The interpretation of a statute is a question of law, which we review de

that the issue was preserved, we find no statutory violation. dispute whether this issue was preserved at trial. Assuming, without deciding, and petit jurors were selected violated RSA chapter 500-A (2010). The parties We next consider whether the manner in which the prospective grand

N.H. at 500. error, we reach the same result under the Federal Constitution. Addison, 160 no greater protection than the State Constitution with regard to his claims of instructed the venire. Because the Federal Constitution offers the defendant shooting. Under these even more compelling circumstances, the court properly course of the trial – make the connection between the defendant and the Briggs that increased the risk that an initially ignorant juror might later – during the charges increased the potential for prejudice.” But it is these very similarities is selected. p. 7 interval number is chosen, “n.” Beginning at a start number, every “nth” voter generated at random. Then, depending on the number of jurors needed, an The record indicates that the names are alphabetized, and a start number is

random drawing or by computer on a random basis.

identifying numbers of prospective jurors may be chosen either by

prospective jurors as the court by order requires. The names or the master jury list the names or identifying numbers of as many When ordered to do so by the court, the clerk shall draw at random from

RSA 500-A:6, I, provides, in pertinent part, that:

population. proportion to that municipality’s number of registered voters, not total the Secretary of State randomly selected voters from each municipality in of all voters in the state. In response to the AOC’s request for 3,500 names, indicted, the Secretary of State took on the responsibility of maintaining a list municipality’s total population within the district. After the defendant was randomly selected names from each municipality’s list in proportion to the each individual municipality within the judicial district. The AOC then of the petit jurors in this case. Previously, the AOC obtained voter lists from changed in the time between the selection of the grand jurors and the selection The manner in which the list of 3,500 voter names was generated

voters and 160,000 holders of drivers’ licenses and identification cards). total pool in the Northern District of Hillsborough County (117,000 registered number of names on the master jury list constitutes a small fraction of the chance of the same person appearing on both lists is small because the example, a father and son. However, both parties’ experts agreed that the two names at the same address could still represent two different people – for hearing that efforts to eliminate duplicates are “conservative,” in part because duplicate names. In this case, the State’s expert testified at a venire challenge appear on both lists, the compilation of the master list may include some the voter lists and 3,500 from the DOS source list. Because some names may list of 7,000 potential jurors from the AOC; 3,500 names are generated from County, the district in which the defendant’s trial took place, requests a master The clerk of the Superior Court for the Northern District of Hillsborough

list). RSA 500-A:1. identification card from the New Hampshire Department of Safety (DOS source the records of the individuals who hold a New Hampshire drivers’ license or 500-A:1, 2. The lists are “blended and compiled” from the voter rolls and from of prospective grand and petit jurors for each county or judicial district. RSA p. 8 8

discretion of the clerks of court.” Id. at 47-4 p. 8 8. in the state “be chosen at random from voter checklists under the supervisory authority to mandate that, until a new statute was enacted, all future jury lists section of the community.” Id. at 47. We then exercised our supervisory concluded that “the current ‘system’ can result in less than a good cross procedures to choose prospective jurors. Elbert 500-A:6, I. Accordingly, we consult legislative history to aid our analysis. See, 121 N.H. at 46-47. We Testimony in that case revealed that selectmen were using various non-random defendant are reasonable interpretations of the word “random” as used in RSA require that jurors be of age, literate, voters, or even citizens of the State.” We assume, without deciding, that both definitions proffered by the “[t]he unfettered discretion allowed the selectmen by [the statute] does not criticized this system in State v. Elbert, 121 N.H. 43, 46 (1981), noting that and women . . . as they judge eligible to serve.” RSA 500-A:2 (Supp. 1977). We entirely within the discretion of the selectmen, who could choose “such men made in 1981. Prior to 1981, the selection of jurors in New Hampshire was The current juror selection system is the result of legislative changes

In re Alexis O., 157 N.H. at 7 p. 8 85.

by the statute. next. The State argues, however, that equal odds randomness is not required every person in the group does not have an equal chance of being selected meet the equal odds standard of randomness because, since it uses intervals, removal of duplicates is not “exact” and that the “every nth” method does not The State’s expert acknowledged at the venire challenge hearing that the

lower percentage of voting residents than other towns in the district. community most affected by the Briggs murder, because Manchester has a led to the overrepresentation on the master list of voters from Manchester, the populations rather than their voter populations. He alleges that the last error former method, by choosing voters in proportion to their municipalities’ total of selecting names; and (c) creating the grand juror source list under the chances of any duplicate names; (b) employing the “every nth” interval method of blending the voter and DOS source lists, thus increasing the selection three “systematic errors”: (a) failing to eliminate duplicates during the process court and the AOC failed to adhere to the equal odds standard by committing potential juror have “equal odds” of being selected. He argues that the trial urges us to adopt the second definition, which would require that each probability of occurring as every other member of the set.” The defendant method : with no specific goal or purpose in view”; and (b) “having the same meanings for the word “random”: (a) “without definite aim, direction, rule, or International Dictionary 1 p. 8 880 (unabridged ed. 1993), the defendant notes two jurors were not selected at random. Looking to Webster’s Third New The defendant asserts that the statute was violated because potential statutorily mandated random process.” In State v. Russo p. 9 sustained a defendant’s objections when there was a failure to follow a the defendant points to two cases he argues show that “[o]ther courts have In urging us to hold that a violation of RSA chapter 500-A occurred here,

1165 (N.J. Super. Ct. Law Div. 1986), the Superior Court of New Jersey found

United States, 426 F.3d at 6. any single name being picked [be] substantially equal,” not the JSSA. In re by the District of Massachusetts that required “that the mathematical odds of odds” definition. In that case, however, it was the jury selection plan adopted 2005). The defendant argues that In re United States recognized the “equal with the First Circuit’s decision in In re United States, 426 F.3d 1 (1st Cir. Contrary to the defendant’s assertion, this approach is not inconsistent

387 (8th Cir. 1978), cert. denied, 440 U.S. 983 (1979). cert. denied, 456 U.S. 936 (1982); McClendon v. United States, 587 F.2d 384, 1208 (1985); United States v. Bearden, 659 F.2d 590, 602-03 (5th Cir. 1981), from consisting of fair cross-sections of the community”), cert. denied, 469 U.S. randomness in interpreting the Jury Selection and Services Act (JSSA). See resulted in discriminatory selection of jurors or otherwise prevented jury panels venires that were not statistically random, there has been no showing that they Federal courts have also declined to adopt a statistical definition of not random because “[w]hile the methods used here may have resulted in 730 F.2d 692, 699 (11th Cir. 1984) (rejecting a claim that jury selection was 1225, 1234-35 (D. Fla. 1981) (quotation omitted); see United States v. Gregory, might be understood by statisticians.” United States v. Butts, 514 F. Supp. selection, it does not insist upon randomness in the sense in which that term history of the JSSA, “[t]o the extent that the bill does provide for random community.” Id.; see Martel, 141 N.H. at 603. According to the legislative and petit juries [be] selected at random from a fair cross section of the U.S.C. § 1861 (2006). Similar to our statute, the JSSA requires that “grand

under the former statute, not to require equal odds randomness. legislature intended to foreclose the “unfettered discretion” allowed selectmen the legislative history of RSA 500-A:6, I, supports a conclusion that the the jury does not represent a cross section of New Hampshire people”). Thus, various officials “put their friends and people they know on the jury and that amendment one legislator cited testimony before the Elbert trial court that see Laws 1981, 527:1; see also N.H.S. Jour. 691 (1981) (in support of the of the area served by the court.” Martel, 141 N.H. at 603 (quotation omitted); service should be selected at random from a fair cross section of the population legislative policy underlying the statute is that all persons selected for jury master jury list. As we found in State v. Martel, 141 N.H. 599 (1997), “[t]he require among other things, the random selection of potential jurors from the Following the Elbert decision, the legislature amended the statute to p. 10 DALIANIS, C.J., and DUGGAN and HICKS, JJ., concurred.

Ayer, 150 N.H. at 33. whether any violations resulted in substantial noncompliance with the statute. The defendant also points to Azania v. State necessary that we undertake the second part of the analysis, which considers randomness requirement. Because we find no statutory violation, it is not potential grand and petit jurors for this case did not violate the statutory definition of the term. Accordingly, we hold that the method of selecting prospective jurors be drawn at “random,” we decline to adopt an “equal odds” Therefore, in construing the requirement under RSA chapter 500-A that

not arbitrary.” Id. at 1257. selection of jurors is not required as long as the system used is impartial and randomness. Id. To the contrary, the court noted that “completely random material exclusion of one segment of the population, not a failure of statistical defendant’s jury.” Id. at 1260. Thus, the Azania decision was based on the “materially reduced the probability that African Americans would serve” on the eligible African-American population, the court held that the programming flaw the list. Id. As that township included three fourths of the county’s jury- This resulted in the exclusion of 87% of the residents of the last township on potential jurors was identified, the program stopped the selection process. Id. township. Azania, 778 N.E.2d at 1257. Once a satisfactory number of the defendant’s case was heard based on a list organized alphabetically by computer program was used to identify prospective jurors in the county where statute had been violated and overturned the defendant’s death sentence. A 2002), in which the Indiana Supreme Court held that the state’s jury selection

court did not rule that statistical randomness was required. randomness of the jury selection process.” Id. In so finding, however, the list, the court concluded that these defects had “a negative impact on the effect of exclusion of individuals from certain zip code areas from the drivers Id. at 1165. Because the failure to eliminate duplicate names compounded the Second, efforts to eliminate duplicates only extended to exact duplicate names. county’s population appeared on the voter list, but not the drivers list. Id. licensed drivers, but not the voter list. Id. at 1164. Thus, a quarter of the contained within the county of jurisdiction had been excluded from the list of individuals residing in areas with certain zip codes that were not completely The court found two flaws in the process. Russo, 516 A.2d at 1163. First, of a merged source list drawn from both voter rolls and a licensed drivers list. in that case was similar to New Hampshire’s system, in that it involved the use and quashed the defendant’s indictment for first-degree murder. The process that the jury selection procedure did not comply with the jury selection statute