2011-258, State of New Hampshire v. Christopher Gribble

instructed the jury concerning insanity. We aff irm. motion to suppress; (2) denied his motions for a change of venue; and (3) argues that the Superior Court (Abramson, J.) err ed when it: (1) den ied his (2007); RSA 629:3 (2 007); RSA 641:5 (2007); RSA 635:1 (2007). On appeal, he to commit burglary. See RSA 626:8 (2007); RSA 630:1 - a (2007); RSA 629:1 conspiracy to commit first - degree murder, w itness tampering, a nd conspiracy conviction s, following a jury trial, for first - degree murder, attempted murder, BASSETT, J. The defendant, Christopher Gribble, appea ls his

brief and orally, for the defendant. Stephanie Hausman, assistant appellate defender, of Concord, on the

and Mr. Hinckley orally), for the State. attorney general, and Peter Hinckley, assistant attorney general, on the brief, Michael A. Delaney, attorney general (Jeffer y A. Strelzin, senior assistant

No. 2011 - 258 Hillsborough - northern judicial district

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, Concor d, 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 p. 2 22 as 2

elicit an admission from the defendant con cerning his involvement in the As the interview progressed, the troopers employed various t actics to

but he denied participating in the crimes. not recall everything that he had done during the p receding forty - eight hours, attack on Cates and her daughter. The defendant maintai ned that he could defendant. The y accused him of participating in the home invasion and the responded that he did. At th at point, the troopers resumed questioning the asked the defendant if he remembered his Miranda rights. The defendant the interview resumed using a replacement audio record er, Trooper Ardini After approximately an hour, the recording device malfunctioned. When

then questioned the defendant about his recent activities. that he understood his rights and agreed to answer questions. The troopers rights. S ee Miranda v. Arizona, 384 U.S. 436 (1966). The defendant stated interview would be recorded. He further advised the defendant of his Miranda defendant that his presence at the barracks was voluntary and that the crimes. At the outset of the interview, Trooper Encarnacao confirmed with the Police Troop B barracks in Milford regarding Cates’ murder and the related Hampshire State Police interviewed the defendant at the New Hampshire State On October 5, p. 2 2009, Troopers John Encarnacao and Jeffrey Ardini of t he New defendant’s motion to suppress and the record, or are otherwise undisputed. The following facts are drawn from the trial court’s order on the

I. Suppression

regarding insanity. We addres s each argument in turn. Spader. Fin ally, he asserts that the court erroneously instruct ed the jury amount of pretrial publicity regarding the crimes and the earlier trial of Steven venue. He argues that a venue change w as necessary due to the extensive further contends that the court erred in denying his motions for a change of that he claimed were obtained in violation of his right to remain silent. He motion to suppress statement s he made to the New Hampshire State Police On appeal, the defendant argues that the trial cou rt erred in denying his

followed. insanity. The jury found him sane and guilty of all of the charges. T his appeal to commit murder and burglary. The defendant pleaded not guilty by reason of with attempted murder of Cates’ daughter, wi tness tampering, and conspiracy caused the death of Cates by attacking her with a knife. He was also charged in concert with, and aided by, Steven Spader, he purposely or knowingly was charged with a lternate counts of first - degree murder, alleging that, acting October 4, p. 2 2009, which resulted in the death of Kimberly Cates. The defendant that he and three other individuals carried out in the early morning hours of The defendan t’s convictions arise out of a home invasion in Mont Vernon p. 3 3

and further question ed why, if the troopers had such evidence, they had not challeng ed the evidence that the troopers claimed connected him to the crime, what happened, the def endant continued to profess his innocence. He Despite the troopers’ persistent exhortations to tell the truth and explain

added.) is closing on your opportunity to explain why this happened.” (Emphasis (Emp h asis added.) Trooper Encarnacao subsequently told him that “[t]he door

to grab it. throw you the rope man. We can only throw you the rope. You got perception of this whole thing specifically of you. We can only why. Because the why is what’s going to explain it and change the how else to tell you. Thi s is your chance to give your version of they’re giving up is matching what we already know. I don’t know You know tho se guys are giving stuff up and you know what

(Emphase s added.) He later told the defendant:

paint it for you. help you paint that picture that helps explain your why before they depending on the why. And that’s why we’re here. . . . We want to there’s consequences. But the consequences are vastly different beca use there’s consequences to it. We’re not bull **** ting you, against every instinct that we have in our bodies to say that whatever it is they did, you don’t know whatever, it just goes drove to the general area and the people got out and they did admit any connection to this whole thing. Any. Even if you just it goes against everything in our inn er instinctual mannerisms to here for you we want to give you the time. We understand it is not, comes in. That’s why [we] are still in this room with you. We’re need to start looking out for yourself. And that’s where the why the whys and the whos but when there’s more tha n one person you the why because it t otally changes the story. . . . We try to answer that we deal with are going to take that? No. They want to know It’s not just crime, suspect, done. Come on. You think the lawyers [Trooper Encarnacao] and I just want to know the why, the ho w.

Ardini said to the defendant: the truth and explain “why this happened.” For instance, at one point Trooper match what his friends were saying and that this was his opportunity to tell crimes. They repeatedly told the defendant that what he had told them d id not that they did not believe hi m because his friends had inculpated him in the crimes. They expressed skepticism at his memory loss and told the defendant p. 4 4

said “something to the effect that he was just tired, that he’s sorry, he doesn’t questioning. Before Trooper Encarnacao left th e interview room, the defendant At that time, the troopers turned off the recording equipment and ceased all

[Trooper Ardini]: At Chris’s request we are ending the

[Trooper Encarnacao]: This interview i s over then?

[The defendant]: Yes.

[Trooper Encarnacao]: So what you’re saying is you don’t

[The defendant]: So I won’t say anything.

[Trooper Ardini]: That’s true.

[The defendant]: I have a right not to say anything.

[Trooper Ardini]: What does that mean Chris?

[The defendant]: So I won’t.

[Trooper Encarnacao]: What?

[The defendant]: So I don’t want to.

[Trooper Encarnacao]: You don’t.

[The defendant]: (inaudible) I don’t have to say

conversation took place: information they had about the crimes. Shortly thereafter, the following with the investigation. The troopers then continued to confront him with his Miranda rights. The defendant said t hat he did and that he wanted to help Trooper Ardini again asked the defendant if he remembered and understood Approximately twenty minutes later, the troopers resumed the interview.

the interview to give everyone a break. already arrested him. After two and a half hours, Tr ooper Encarnacao stopped p. 5 5

then re trieved a n audio record er and returned to the interview room. He Trooper Ardini, but that he trusted Trooper Encarnacao. Trooper Encarnacao locate Trooper Ardini. The defendant stated that he did not want to speak with Encarnacao told the defendant that he had to retrieve his audio recorder and defendant said, “[N] o, you know, I’m going to tell you everyt hing.” Trooper Encarnacao reminded the defendant that he did not have to talk, but the defendant had already decided not to tell the troopers anything else. Trooper defendant’s statement because, i n his mind, the interview was over, and the you everything.” Trooper Encarnacao testified that he was surprised by the defendant said, “you know what, why don’t you go get your recorder . . . I’ll tell Fo llowing this conversation, Trooper Encarnacao testified that the

Trooper Encarnacao explained the difference. also asked about the difference between first and second - degree murder, and then explain ed what crimes were eligible for the death penalty. The defendant the death penalty. Trooper Encarnacao told him that he did not think so and Trooper Encarnacao whether the crimes under investigation were eligible for The defendant then brought up the subject of the death penalty, asking

answers why something happens.” (Emphasis added.) real thing that’s hard to deal with is when you, you know, can’t find the with,” to which Trooper Encarnacao responded, “it can be, but, you know, the the effect that [Trooper Encarnacao] must see a lot, that must be hard to deal other job, you take the g ood with the bad.” The defendant “sai d something to Trooper Encarnacao responded, “[Y] ou know, at times it is, but it’s like any question the trooper about his job and whether it was “hard to deal with.” Trooper Encarnacao responded that it was. The defendant continued to his family. The defendant then asked Trooper Encarnacao if his job was hard. long day and that he was tired. The defendant agreed and began talking about defendant. Trooper Encarnacao further told the defendant that it had been a defendant that he was not sure because he had spent the afternoon with the defendant first asked him “if everybody was still there,” and he told the conversations” with the defendant in the span of fifteen to twenty minutes. T he Troop er Enc arnacao then had what he described as “several separate

the doorway of the interview room. indicating that he wanted to speak with him. Trooper Encarnacao moved to hour, the defendant leaned forward and beckoned to Trooper Encarnacao, the barracks. At no point did the defendant request to leave. After about an room and speaking with other investigators about the case in another room at Encarnacao alternated between sitting at a desk directly outside the interview The defendant was then left alone in the interview room while Trooper

prerogative, you don’t want to talk, that’s fine, you don’t ha ve to.” feel like talking anymore.” Trooper Encarnacao told him, “[H] ey, that’s your p. 6 6

as a result, failed to “scrupulously honor” his invocation of his right to remain Trooper Encarnacao engaged in the functional equivalent of interrogation and, to the United Sta tes Constitution were violated. Specifically, he contends that of the New Hampshire Constitution and the Fifth and Fourteenth Amendments On appeal, the defendant argues that his rights under Part I, Article 15

confession was not obtained in violation of his right to remain silent. (Quotation omitted.) Accordingly, the court ruled that the defendant’s statements were initiated solely by him, without any prompting by the police.” equivalent of interrogation. Rather, the court found that the “defendant ’s neither expressly interrogated the defendant nor conducted the functional once the defendant invoked his right to remain silent, Trooper Encarnacao hearing, the trial court denied the defendant’s motion. The court found that, interrog ation which [led] back to a recorded formal interrogation.” Following a this right, Trooper Encarnacao conducted “the functional equivalent of part, that his right to remain silent was violated because, after he had asserted Before trial, the defendant moved to s uppress his confession, arguing, in

confessed to his involvemen t in the crimes. speak with Trooper Encarnacao and answer questions. The defendant then The defendant said that he understood his rights and he further agreed to Thereafter, Trooper Encarnacao again read the defendant his Miranda rights.

[The defendant]: Yes I wo uld.

[Trooper Encarnacao]: And this is a continuation of [an]

ensued: Trooper Encarnacao then began recording. T he following conversation

defendant “said he did.” testified that he asked the defendant “if he wanted to do this,” and the p. 7 7

the police. See Plch, 149 N.H. at 616; cf. United States v. Alexander, 44 p. 7 7 F.3d admissible so long as his de cision is not the result of improper prompting by conversation with the police, and his subsequent statements may be has asserted his right to remain silent – may choose to i nitiate further the charges. See Plch, 149 N.H. at 616. Thus, the defendant – even after he improper prompting, initiated conversation with the police about the s ubject of the State must prove beyond a reasonable doubt that the defendant, without N.H. 608, 616 (2003); State v. Elbert, 125 N.H. 1, 9 (1984). In those instances, and thereby waive the right he had previously invo ked. See State v. Plch, 149 Nevertheless, the defendant himself may initiate further conversation

silent. State v. Laurie, 135 N.H. 438, 44 2 (1992). questioning, the police must scrupulously honor the suspect’s desire to remain concluded that whenever a suspect in custody exercises his option to cut of f questioning’ was ‘scrupulously honored.’” Id. at 103 - 04. We have similarly remain silent depends under Miranda on whether his ‘right to cut off admissibility of statements obtained after th e person in custody has decided to questioning” as enunciated in Miranda, the Court concluded “that the remain silent.” Mosley, 423 U.S. at 10 2 - 0 3. Relying upon the “right to cut off officer on any s ubject, once the person in custody has indicated a desire to proscription of indefinite duration upon any further questioning by any police Court found that nothing in Miranda could “sensibly be read to create a per se be lawfully resumed after a defendant has invoked his Miranda rights. The Supreme Court addressed the circumstances under which interrogati on may Subsequently, in Michigan v. Mosley, 423 U.S. 96, 101 - 0 4 (19 p. 7 75), the

interrogation must cease.” Miranda, 384 U.S. at 4 p. 7 73 - 74. time prior to or during questioning, that he wishes to remain silent, the has been informed of his Miranda rights, and “indicates in any manner, at any In Miranda, the Supreme Court held that if an accused is in police custody, Miranda. See, e.g., id. at 624; State v. Jeleniewski, 147 N.H. 462, 465 (2002). reasonable doubt, that it did not violate his constitutional rights under may be used as evidence against him, the State must prove, beyond a Before the defendant’s responses made during custodial interrogation

interrogation occurred. I d. conduct a de novo review of the trial court’s ultimate determ ination of whether they are contrary to the manifest weight of the evidence. I d. However, we w e defer to the trial court’s factual findings with respect to interrogation unless question of law and fact. State v. Spencer, 149 N.H. 622, 625 (2003). Thus, Whether the defendant was subjected to interrogation is a mixed

23 1 - 3 3 (19 p. 8 83). rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, silent. We first address the de fendant’s claim under the State Constitution and 8

Encarnacao “invited [the defendant] to re - engage in a conversation about the W e are not persuaded by the defendant’s argument that Trooper

defendant and cannot be c haracterized as interrogatory. Encarnacao’s statements to the defendant were made in direct response t o the could “hardly be classified as interrogatory.” Here, as in those cases, Trooper evidence” were made “in direct response to the [defendant’s] importuning,” and the officer’s “comments regarding the facts of the case and the strength of the United States v. Conley, 156 F.3d 7 p. 8 8, 83 (1 st Cir. 1998), the court found that being arrested and did not cons titute interrogation. Id. at 626. Similarly, in defendant was done in response to the defendant’s apparent confusion about defendant bank surveillance photographs of a person who appeared to be the Spencer, for instance, we held that the officer ’ s conduct of showing the interrogation. Spencer, 149 N.H. at 625 (citing and discussing cases). I n police officer’s responses to certain inquiries by the defendant do not constitute constitute the functional equivalent of interrogation. Courts have held that a Trooper Encarnacao’s responses to the defendant’s questions did not

446 U.S. at 301. without regard to objective proof of the underlying intent of the police.” Innis, custody with an added measure of protection against coercive police practices, reflects the fact that the Miranda safeguards were design ed to vest a suspect in the intent of the police.” Plch, 149 N.H. at 614 (quotation omitted). “This focus the term “focuses primarily upon the perceptions of the suspect, rather than Island v. Innis, 446 U.S. 291, 301 (19 p. 8 80). The “functional equivalent” aspect of reasonably likely to elicit an incriminating response from the suspect.” Rhode normally attendant to arrest and custody) that the police should know are includes “any wor ds or actions on the part of the police (other than those 149 N.H. at 625 (quotation omitted). The functional equivalent of interrogation subjected to either express questioning or its functional equivalent.” Spencer, Interrogation for Miranda purposes occurs whe n “a person in custody is

responses improperly prompted him to confess. We disagre e. to the prior interrogation” regarding the crimes, and, therefore, that these were not confined to answering the defendant’s questions but “directly all uded questions constituted the functiona l equivalent of interrogation because they involuntary. Rather, he argues that Trooper Encarnacao’s responses to his (1991) (quotation omitted). Nor does he assert that any of his statements were ordinary di ctionary sense of that word.” State v. Gravel, 135 N.H. 172, 177 remain silent, he initiated the conversation with Trooper Encarnacao “in the Here, the defendant does not dispute that, after he invoked his right to

the government does not coerce him into doing so”). the right to counsel – may choose to reiniti ate contact with the police so long as 12 p. 9 90, 1294 (10 th Cir. 2006) (stating that “a defendant – even if he has asserted 9

later interaction with [Trooper] Encarnacao.” We agree that, in determining attempts to discontinue questioning are relevant to how he would perceive the willingness to continue questioning him in the face of his initial, equivocal the interview ended. He maintains that his “perceptions of the troopers’ questioning but that the troopers nonetheless continued to question him bef ore The defendant contends that he made earlier attempts to discontinue

hardest part of his job. See Spencer, 14 p. 9 9 N.H. at 626. job, and the trooper dire ctly responded by explaining what he found to be the asked Trooper Encarnacao a series of questions regarding the difficulty of his apparent from the beginning of their interaction.” We disagree. The defendant me ant to appeal to the defendant’s “interest in police work that had been T he defendant further suggests that Trooper Encarnacao’s response was

defendant regarding his involvement in the crimes. known that his response was reasonably likely to elicit a confession from the under Miranda). Here, w e cannot say that Trooper Encarnacao should have constituted custodial interrogation in violation of defendant’s right to counsel (1 p. 9 983) (finding detective’s invitation to the defendant to make a statement in o rder to elicit an incriminating answer); State v. Beaupre, 123 N.H. 155, 158 (1986) (finding that officer called out defendant’s nickname in the jail cell area at 615 (quotation omitted). See also State v. Dellorfano, 128 N.H. 628, 634 “have a change of heart” and tell the detectives where the body parts were, i d. brackets omitted), and that they were intended to persuade the d efendant to e voke an incriminating response from the suspect,” id. at 614 (q uotation and the police should have known that these “statements were reasonably likely to could no longer speak with him. Id. at 612 (quotation omitted). We found that have to tell somebody that he wanted to speak with the detectives because they be” and let the police know where the victim’s body parts were, then he would change of heart and. .. want[ed] to stand up and be the man [he] want[ed] to Subsequently, the interviewing officer told the defendant that if he had “a interview with the police, he invoked his right to counsel. Id. at 611 - 12. murder and dismemberment of a woman. Plch, 149 N.H. at 6 p. 10 10. During an interrogation). For example, in Plch, the defendant was suspected of the w ere asked only to elicit incriminating evidence and, thus, constituted questions pertai ning to the location where defendant had said he used drug cases. See Plch, 149 N.H. at 614 - 15; Gravel, 135 N.H. at 177 (officer’s that we have found to be the functional equivalent of interrogation in other contrary, Trooper Encarnacao’s response materially differ s from statements c onversation back to the investigation of the Mont Vernon crimes.” To the conclusion that Trooper Encarnacao’s response effectively “turned the to know why the crime occurred; however, this fact alone does not support a previous conversation with the defendant the troopers had referenced the need unable to find answers as to why a crime occurred. It is true that during their crimes” by his response that the hardest part of his job was when he was 10

Constitution as more protective than the Federal Constitution. We have there has been a valid waiver of Miranda rights, we have viewed the State maintains that in deciding certain cases, such as those addressing whether “suspects who give statements after invoking their right to silence.” He Constitution more protective than the Federal Constitution with respect to Finally, t he defendant contends that we should find the State

him.”). exercised the control over the questioning that the constitution guarantees 428, 433 (1984) (“B y voluntarily in itiating the discussion . . . the defendant Fifth Amendment” (quotation omitted)); see also State v. Reynolds, 1 24 N.H. (explaining that “[v]olunteered statements of any kind are not barred by the the trial co urt’s denial of his motion to suppress. See Innis, 446 U.S. at 300 Thus, the defendant’s Miranda rights were not violated, and we find no error in [the defendant], without any prompting by the police.” Id. (quotation omitted). 149 N.H. at 615 - 16. Rather, the ensuing conversation was “initiated solely by improperly prompt the defendant to initiate the further conversation. See Plc h, functional equivalent of interrogation. I t follows, therefore, that he did not A ccordingly, we hold that Trooper Encarnacao did not engage in the

response constituted the functional equivalent of interrogation. See i d. Encarnacao’s intent is not conclusive, it is relevant to determining whether his defendant was not going to tell them anything else. Although Trooper tell him ever ything as he thought the interview had ended and that the Encarnacao’s testimony that he was surprised by the defendant’s willingness to innocence. See Spencer, 149 N.H. at 626. This is evidenced by Trooper have reasonably concluded that the defendant would continue to profess his repeatedly professed his innocence. As a result, Trooper Encarnacao could time they repeatedly accused him of committing the crimes, and the defendant troopers had interviewed the defendant for nearly four hours, during which defendant would suddenly decide to admit his involvement in the crimes. The Moreover, t here was no reason for Trooper Encarnacao to believe that the

equivalent of interrogation. Encarnacao’s later responses to the defendant’s questions as the functional light of these facts, we fail to se e how the defendant would perceive Trooper with the troopers until he later initiated contact with Trooper Encarnacao. In the interview room, there is no evidence that he had any other conversations defendant alon e in the interview room. After the defendant was left alone in to remain silent, the troopers immediately ended the interview and left the discontinue questioning,” once the defendant unequivocally asserted his right continued to question the defendant despite his “equivocal attempts to N.H. at 614 (quotation omitted). Here, however, altho ugh the troopers interrogation, we focus primarily on the defendant’s perceptions. See Plch, 149 whether Trooper Encarnacao conducted the functional equivalent of p. 11 11

defendant sought to suppress his confession. Several articles and a local its focus to the defendant’s case. At least one article reporte d that the Following Spader’s conviction i n November 2010, the new s media shifted

trial testimony stokes public anxiety.” headlines such as “Trial creates uneasy note for many” and “Spader murder glass door. Several articles discussed citizens ’ reactions to the crimes under accused of slashing Cates’ throat and throwing her daughter into a slid ing stabbed Cates’ daughter. Another article explained that the defendant was omitted.) Other articles set forth testimony describing how the defendant looked back the knife was on the other side of her throat.” (Parenthesis put it on the right side of [Cates’] throat. I turned my head away . . . when I home invasion, in which he said that he saw “Gribble [take] his knife and . . . testimony of Quinn Glo ver, one of the co - conspirators who participated in the defendant’s involvement. Media accounts of Spader’s trial also rela ted the argument, which included a graphic description of the attack and the site of grisly murder.” Several articles quoted the prosecutor’s opening described the start of Spader’s trial under the headline, “Jurors s lated to visit Cates’ murder and the attempted murder of her daughter. One article Many of th ose articles identified Spader and the defendant as being accused of numerous newspaper articles and editorial s as well as daily television coverage. 2010, approximately four months before the defendant’s trial, engendered after the crimes, co - conspirator Spader’s trial and sentencing in November amount o f media coverage. While much of the coverage occurred immediately motions to change venue. The crimes in this case g enerated an extensive The defendant next argues that the trial court erred by denying his

II. Venue

Constitution. same result under the Federal Constitution as we do under the State N.H. at 620; Spencer, 149 N.H. at 629; Innis, 446 U.S. at 30 0 - 0 2, we reach the than the State Constitution does under these circumstances, see Plch, 149 As the Federal Constitution offer s the defendant no greater protection

States Constitution because defendan t had failed to adequately develop it). under Part I, Article 35 of State Constitution and Sixth Amendment to United (declining to address defendant’s argument that trial judge was not impartial decline his invitation. See State v. Euliano, 161 N.H. 601, 608 (20 p. 11 11) argument as to why we should now expand that protection. We, therefore, Constitution than is already given, he has failed to adequately develop an the defendant is inviting us to provide greater protection under the State Federal Constitution. See Gravel, 135 N.H. at 184. Ho wever, to the extent that suspect’s Miranda rights than has the United States Supreme Court under the historically mandated, under our State Constitution, more protection of a p. 12 12

liberty and estate of the citizen, that no crime or offense ought to where they happened, is so essential to the security of the life, In criminal prosecutions, the trial of facts, in the vicinity

Part I, Article 17 of the Ne w Hampshire Constitution provides:

See Ball, p. 12 124 N.H. at 231 - 33. the State Constitution and rely upon federal law only to aid in our analysis. Hampshire Constitution. W e first address the defendant’s arguments under federal law, and does not argue for a higher standard under the New claim on both the State and Federal Constitutions, he relies primarily up on criminal responsibility . . . in Hillsborough County.” Although he bases his community sentiment” denied him “a fair determination of his sanity and motions because “the overwhelming media coverage and intensely a ntagonis tic On appeal, the defendant argues that the court erred by denying his

that he [could not] obtain a fair trial.” “failed to establish any bias or actual prejudice in the jury panel seated, such presumptive prejudice from the pretrial publicity this case garnered” and had finding that he had “not met his heavy burden of establishing inherent or [could] be impartial cannot be believed.” The court again denied his request, discussion of the case in the community such that the jurors’ cl aims that they adverse pretrial publicity in this case created fear, bias and widespread venue. He argued that “the jury selection process [had] revealed that the After the jury was selected, the defendant renewed his motion to change

request for a supplemental jur or questionnaire. Spader trial prejudices the jury pool in his trial.” The court also denied his failed “to illustrate how the alleged inflammatory news coverage from the remarkably different from those [the] defendant raise[d],” the defendant had justify a change of venue,” and, given that “the issues raised in Spader [were] publicity surrounding the Spader trial was not so inherently prejudicial to potential juror.” The trial court d enied his motion, finding that “the pretrial juror’s exposure to pretrial publicity and that publicity’s impact on that of “supplemental questionnaires to ascertain the true scope of the potential that, if the c ourt denied his change of venue requ est, it should consider the use court to presume prejudice in advance of jury voir dire. He further maintained publicity generated during the trial and sentencing of” Spader required the venue. In the first motion, he argued that “[t] he volume of adverse and hostile Before trial, the defendant filed two motions requesting a chang e of

professionals on the viability of the insanity defense. addition, a few articles included comments by legal and mental health the crimes charged but had pleaded not guilty by reason of insanity. In tele vision station later reported that the defendant admitted that he committed p. 13 13

presumed or inherent prejudice resulted from the pretrial publicity and that v. Dow d, 366 U.S. 717, 723 (1961). Here, the defendant maintains that render a verdict based up on the evidence presented in court. Id.; see also Irvin result of the publicity are such that they cannot be set aside to enable them to defendant must show that the nature of the opinions formed by the jurors as a a fair and impartial jury trial. Laaman, 114 N.H. at 798. In this situation, the jurors to such an extent that the defendant cannot receive, or has not received, prejudice is actual prejudice which exists when the publicity has infected the prejudice.” Smart, p. 13 136 N.H. at 647 (quotation omitted). The second type of prejudice does not require the defendant to show “actual identifiable in a lack of due process. I d.; see Smart, 136 N.H. at 647. A claim of inherent by its nature has so tainted the tr ial atmosphere that it will necessarily result The first is inherent or presumptive prejudice, which exists when the publicity the defendant’s right to a fair trial. State v. Laaman, 114 N.H. 794, 798 (1974). P ublicity about a case can result in two types of prejudice with regard to

fair trial – a basic requirement of due process.” (quotation omitted)). district at the defendant’s request if extraordinary local preju dice will prevent a tri al prescriptions . . . do not impede transfer of the proceeding to a different v. United States, p. 13 130 S. Ct. 2896, 2913 (2010) (“The Constitution’s place - of - Petition of State of N.H. (State v. Johanson), 156 N.H. at 154; see also Skilling committed, the defendant has an absolute right to a change of venue. See receive a trial by a fair and impartial jury in the county where the crime was Thus, if there is proof of community prejudice such that the defendant cannot citizen to be tried by judges as impartial as the lot of humanity will admit.”). 505, 509 (1971); see also N.H. CONST. pt. I, art. 35 (“It is the right of every jury. State v. Smart, 136 N.H. 639, 646 (1993); Groppi v. Wisconsin, 400 U.S. Constitution guarantee a defendant the right to a trial by a fair and impartial Hampshire Cons titution and the Sixth Amendment to the United States In addition, the due process requirements of Part I, Article 15 of the New required in his case” because of community prejudice. Id. (quot ation omitted). defendant must be given an opportunity to show that a change of venue is States Supreme Court has ruled that under the Federal Cons titution, “a N.H. (State v. Johanson), 156 N.H. 148, 154 (2007). Similarly, the United venue upon proof that he cannot obtain a fair trial there. Petition of State of to be tried where the crime was comm itted and the right to obtain a change of We have explained that Part I, Article 17 grants a criminal defendant the right

obtained. county or judicial district in which a fair and impartial trial can be offens e may be committed, the court shall direct the trial to a by the court that a fair and impartial trial cannot be had where the judicial district, upon motion by the defendant, and after a finding it is committed; except in any case in any particular county or be tried in any other county or judicial district than that in which p. 14 14

murder.” Id. at 726. Based upon these facts, the C ourt found that “[a]ny very real sense. . . [the defendant’s] trial – at which he pleaded guilty to that “to the tens of thousands of people who saw and heard it, [this was] in a response to leading questions by the sheriff.” Id. at 725. The C ourt explained and two state troopers, admitting in detail the commission of the [crimes], in saw on their television sets was [the d efendant], in jail, f lanked by the sheriff motion for a change of venue, stating that “[w]hat the people of [the]. . . Parish The United States Supreme Court reversed the denial of the defendant’s

at 724. 53,000, in a community which had a population o f approximately 150,000. Id. where the crimes were committed, to an audience of between 20,000 and on three separate occasions prior to trial by a television station in the parish confession. Id. at 72 4, 727. The interrogation was filmed and later broadcast counsel, the police interrogated the defendant in jail and obtained his U.S. at 724. On t he morning after the crimes, in the absence of defense robbery, kidnapping, and murder in a small parish in Louisiana. Rideau, 373 Skilling, 130 S. Ct. at 2913. In Rideau, the defendant was charged with armed from pretrial publicity is Rideau v. Louisiana, 373 U.S. 723 (1963). See The seminal case for examining whether presumptive prejudice resulted

disagree. requiring a change of venue even before the trial court conducted voir dire. We Spader trial and leading up to his trial resulted in presumptive prejudice The defendant first contends that the pretrial publicity surrounding the

A. Pretrial Publicity

decisions i n this case for manifest error. different standard of review should apply, we will review the trial court’s manifest error.” Smart, 136 N.H. at 647. Because neither party argues that a the trial court’s finding that a jury was impartial should only be overturned for good sense.” (quotation and brackets omitted)). As a result, we have sai d “that issue, primary reliance on the judgment of the trial court makes especially brackets omitted); Skilling, 130 S. Ct. at 2918 (“When pretrial publicity is at extent of news stories that might influence a j uror.” Id. (quotation and evaluation of any such claim of prejudice his own perception of the depth and in the locale where the publicity is said to have had its effect, and brings to his in particular “with respect to pretrial publicity” as “[t]he judge of that court sits deference.” Smart, 136 N.H. at 653 (quotation and ellipsis omitted). This is so essentially a question of demeanor and credibility, “is entitled to special The trial court’s determination of the impartiality of the jurors selected,

must be doubted.” “the community interest” was such that “the jurors’ assurances of impartiality p. 15 15

jurors, id. at 29 p. 15 15, it is significantly more populous than communities in which where the jury was drawn from a populatio n with over 4.5 million eligible Although Hillsborough County i s not as large as the community in Skilling, http://www.nhes.nh.gov/elmi/products/cp/documents/hillsborough - cp.pdf. Hillsborough County, N.H. Employment Sec. (2012), available at populous county in New Hampshire, with a population of over 400,000. See In this case, the jury was drawn from Hillsborough County, the most

1. Size of the Community and Pervasiveness of the Media Coverage

presumption of prejudice sufficient to require a change of venue. manifest error when it determin ed that the pretrial publicity did not create a consideration of these factors, we conclude that the trial court did not commit the media coverage surrounding Spader’s trial. See i d. at 29 p. 15 15 - 17. Upon reporting; (3) the timing of the trial in relation to the crime; and (4) the e ffect of community and the pervasiveness of the media coverage; (2) the nature of the enumerated in Skilling in addressing his claim, specifically: (1) t he size of the The defendant argues that we should consider sever al of the factors

in which [it] approved a pr esumption of juror prejudice,” i d. at 2916. i ts determination that the defendant’s trial shared “little in common with those 2914 - p. 15 15. The Court then con sidered certain factors, id. at 291 5 - 17, in making juror impartiality,” the Court reiterated, “does not require ignorance.” Id. at ellipse s omitted). “Prominence does not necessarily produce prejudice, and alone pre sumptively deprives the defendant of due process.” Id. (quotation and stand for the proposition that juror exposure to news accounts of the crime omitted). The Court explained that those “decisions . . . cannot be made to was utterly corrupted by press coverage.” Id. at 29 14 (quotation and brackets cases in which it “overturned a conviction obtained in a trial a tmosphere that The Supreme Court began its analysis by reviewing Rideau and other

presumption of prejudice. Id. at 2912 (quotation omitted). by Enron’s colla pse and the vitriolic media treatment aimed at him” created a to move his trial to a different venue because “the community passion aroused the corporation’s collapse.” Id. He claimed that the trial court erred in failing a longtime Enron executive, had been prosecuted “for crimes committed before prejudice” against the defendant. Skilling, 130 S. Ct. at 2907. The defendant, presumed juror prejudice resulting from “pretrial publicity and community More recently, in Skilling, the Supreme Court addressed a claim of

motion to change venue violated his right to d ue process of law. I d. at 72 7. the members of the jury,” the Court held that the denial of the defendant’s pausing to examine a particularized transcript of the voir dire examination of spectacle could be bu t a hollow formality,” id., and, as a result, “without subsequent court proceedings in a community so pervasively exposed to such a p. 16 16

Vernon crimes.” Similarly, as recognized by the defendant, “website viewers how many jury - eligible adults within the home read [reports] on the Mont the Union Leader,” as the defendant acknowledges, “it cannot be calculated although “the record reflects how many homes in Hillsbor ough County received approximately ten percent of Hillsborough County’s population. Moreover, Hillsborough County watched the evening news, these numbers represent only trial, WMUR est imated that an average of almost” 41,000 adults in can be created.” Although the defendant maintains that “[d]uring the Spader definitive number of potential jurors exposed to . . . media [about the crime] confession, Rideau, 373 U.S. at 724, the defendant here concedes that “no estimated 106,000 people in a population of 150,000 had been expo sed to his Unlike in Rideau, however, where the defendant provided evidence that an about the crimes: the Union Leader, WMUR, and the Nashua Telegraph.” cites “information about the ci rculation of the three leading sources of news With respect to the pervasiveness of the media coverage, the defendant

the jury was drawn from the most populous county in New England). N.E.2d 115, 128 (Mass. 2012) (finding no presumed prejudice, in part because from community with total population of 545,615); Com. v. Entwist le, 973 (W.D. Pa. 2010) (finding no presumed prejudice, in part because jury drawn see also United States v. Diehl - Armstrong, 739 F. Supp. 2d 786, 793 - 94, 807 twelve impartial jurors could not be fo und. See Skilling, 130 S. Ct. at 2915; which the jury pool was drawn in this case, it is unreasonable to conclude that the courthouse on hearing days). Thus, given the size of the community from displayed in the state capitol building and t - shirts honoring the victims sold in included public sympathy for the victims as demonstrated by memorials 1996) (change of venue necessitated, in part, by community sentiment, which prejudice); United States v. McVeigh, 918 F. Supp. 1467, 1472 (W.D. Ok l a. county with a population of 2.8 million did not support p resumption of community volunteers were involved in the search for kidnapping victim in a 2d 12 p. 16 16, 1221 (D. Utah 2010) (finding the fact that nine to ten thousand prejudice in the potential jury p ool. Cf. United States v. Mitchell, 752 F. Supp. residents in a county with over 400,000 residents is indicative of presumed demonstrate, however, how the sentiment expressed by a small number of bewilderment and heartbreak over the crimes. The defendant fails to the community, citing articles quoting a few residents who expressed anger, The defendant raises concerns about the impact that the crimes had on

residents] weighs in favor of finding local prejudice”). Nantucket co mmunity [with a population of just over 10,000 permanent Toolan, 951 N.E.2d 903, 915 (Mass. 2011) (finding that “[t]he small size of the jurors drawn from rural county of approximately 30,000 residents); Com. v. residents); Irvin, 366 U.S. at 7 19 (presumed prejudice found where prospective found where prospective jurors drawn from parish with population o f 150,000 prejudice has been presumed, s ee Rideau, 373 U.S at 724 (presumed prejudice p. 17 17

unlike in Rideau, in which the defendant disputed his guilt and the media involvement in the crimes as evidence o f presumed prejudice. Here, however, The defendant also points to reports of the Spader trial describing his

omitted). passion of the community.” Mitchell, 752 F. Supp. 2d at 1222 (quotation coverage cited by the defendant “was not d irected at arousing or inciting the notorious or merely prominent.” Id. (quotation omitted). Here, t he media prosecution of persons who are well known in the community, whether they be caus e of fundamental fairness, but only make impossible the timely these real differences in the potential for prejudice would not advance the inflammatory, adverse press is crucial.” Smart, 136 N.H. at 649. “To ignore between straightforward factual publicity about a celebrated case and despite some hostile and accusatory pretrial p ublicity). “Distinguishing (quotation omitted)); Smart, 136 N.H. at 649 (finding no presumed prejudice directed at individual defendants, this may lessen any prejudicial impact” 2916 - p. 17 17 n. 17 (not ing that “[w]hen publicity is about the event, rather than proceedings leading up to the defendant’s trial. See Skilling, 130 S. Ct. at factual accounts of the crimes as recounted at Spader’s trial and the overwhelming amount of the material submitted consists of straightforward, graphic descriptions of the crimes, we agree with the tria l court that an a lthough some of the news reports were accusatory in content and included “depravity.” We have reviewed the material submitted by the defendant, and, news reports, including “vicious,” “savage,” “gruesome,” horrific,” “torture,” and The defendant describes as inflammatory certain words in some of the

2916 (quotation omitted). publicity “does not inevitably lead to an unfair trial.” Skilling, 130 S. Ct. at prejudice.” Smart, 136 N.H. at 649. Ho wever, even pervasive, adverse pretrial publicity, not merely its quantity, that is critical in finding presumptive extreme case,” Skilling, 130 S. Ct. at 2915. “[I]t is the adverse nature of the publicity is of a cert ain nature,” Smart, 136 N.H. at 647, and “attends only the “[I] nherent, or presumptive, prejudice will only be found in cases where the crime s and the victims’ injuries, often using inflammatory language.” prejudicial because “[r]eports of the Spader trial graphically described the The defendant also claims that the nature of the repor ting was

2. Nature of the Reporting

news broadcasts saturated a community of approximately 7,000). where pretrial publicity consisting of over 150 newspaper articles and various 1491 - 1 540 (11th Cir. 1985) (concluding that prejudice could be presumed require a presumption of prejudice. See Coleman v. Kemp, 778 F.2d 1487, we cannot conclude that the publicity so saturated the co mmunity as to may be any where in the county, state, or country.” Given these circumstances, p. 18 18

media coverage revived interest in the crimes. Thus, we turn to the question of because his trial occurred shortly after Spader’s t rial, during which extensive T he defendant further argues that a change of venue was required

4. Media Coverage of Spader’s T rial

time the crime was committed.”). year – al so diminishes the presumptive impact of publicity occurring at the 621, 633 (10th Cir. 2006) (“The passage of time before trial – in this case over a publicity at the time the crime was committed. See Goss v. Nelson, 439 F.3d crimes and the defendant’s trial diminished any presumptive impact of the crimes “abated in the fall of 2009.” Thus, the passage of time between the in March 2011. The defendant acknowledges that the media coverage of the October 2009 and the defendant’s trial occurred nearly a year and a half later Enron’s collapse.” Skilling 130 S. Ct. at 2916. Here, the crimes occurred in decibel level of media attention diminished somewhat in the years following between the time of Enron’s collapse and the defendant’s trial, stating that “the Skilling, the S upreme Court found significant that four years had elapsed Mitchell, 752 F. Supp. 2d at 122 4 (quotation omitted). For instance, in there has been a substantial delay between the criminal act and the trial.” “[C]ourts generally find no presumption of inherent unfairness where

3. Timing of the Trial in Re lation to the Crime

in sufficient to create a presumption of prejudice. Spader’s statements about the defendant’s involvement in the crimes were in the charged crimes. Thus, we conclude that news reports containing Moreover, as stated above, the defendant in this case admitted his involvement “information not admitted into evidence at trial”); Smart, 136 N.H. at 650. fair trial unlikely even when publicity revealed, among other things, Yount, 467 U.S. 1 025, 1029, 1040 (1984) (pretrial publicity did not render a defendant’s trial is not sufficient to presume jury prejudice. See Patton v. that certain reports contained information that was not admitted in the inadmissible evidence are sufficient to presume jury prejudice, the mere fact Although there may be instances in which news reports containing inadmissible but simply that they contained evidence not admitted at his trial. defendant does not claim that th e reports contained evidence that was defendant’s] involvement” and that the defendant “received ‘fan mail. ’” The was not introduced at his trial, such as Spader’s statements about [the reports on the Spader trial containing “information about [the defendant] that The defendant further suggests that presumptive prejudice resulted from

her daught er. at 2913, 2916, the defendant admitted to killing Cates and attempting to kill repeatedly broadcast his “dramatically staged admission,” Skilling, 130 S. Ct. p. 19 19

(quotation and brackets omitted), and “[n] o hard - and - fast formula dictates the discretion of the trial court,” State v. Addison, 161 N.H. 30 0, 303 (2010) “The manner in which voir dire is conducted is wholly within the sound

exposed to media coverage and hostile public opinion.” Spader and [the defendant’s] case [ ] confirm that the venue was overwhelmingly change of venue because the “[s]tatements of potential jurors in both the The defendant next asserts that the trial court erre d in failing to grant a

B. Voir Dire

of prejudice so as to require a change of venue). before jury selection began in defendant’s trial did not warrant a presumption S. Ct. at 2917 (find ing that co - defendant’s guilty plea a little over a month did not here – warrant an automatic presumption of prejudice.” Skilling, 130 guard against actual pre judice, it does not ordinarily – and, we are satisfied, it of in sanity. Although the publicity about Spader’s trial “calls for inquiry to crime, the defendant admitted as much when he plead ed not guilty by reason reporting on the Spader trial described the defendant’s involvement in the defense. See RSA 628:2 (2007). Consequently, to the extent that media T herefore, at his trial, t he defendant had the bu rden of proving his insanity was no t guilty because he was insane at the time he committed them. defendant admitted that he committed the acts charged but claimed that he proving his guilt beyond a reasonable doubt. Here, o n the other hand, the Spader ple a d ed not guilty, and, thus, at trial, the State bore the burden of trial were “remarkably different” from those raised in the defendant’s trial. insanity). As the trial court correctly observed, the issues raised in Spader’s defendant’s guilty plea not relevant to defendant’s case because he ple a d ed time of the alleged crime.” Mitchell, 752 F. Supp. 2d at 1227 (finding co - Spader’s trial “ha[d] little relevance to [the defendant’s] state of mind at the participation in the crimes and ple a d ed no t guilty by reason of insanity, More importantly, however, given that the defendant admitted his

leading up to the defendant’s trial. accounts of the crimes as recounted at Spader’s trial and the proceedings above, almost all of the material submitted co nsists of straightforward, factual as well as seven additional articles related to the defendant’s trial. A s noted articles related to Spader’s trial, twenty - four of which mention the defendant, and immediately following Spade r’s trial. T h e defendant submitted thirty - three bulk of the media accounts submitted by the defendant were generated during verdict in the Spader trial. Spader’s trial received substantial publicity. T he T h e defendant’s trial took place approximately four months after the

automatic presumption of prejudice.” Skilling, 130 S. Ct. at 2917. whether the timing of the media coverage of Spader’s trial warranted “an p. 20 20

difficult to find 12 jurors who do not at least have som e knowledge of the facts instantaneously by an ever multiplying array of delivery methods, it would be ‘information age,’ where news of community events are disseminated virtually I d. at 722 - 23; see also L aaman, 114 N.H. at 800. Indeed, “in today’s

court. or opinion and render a verdict based on the evidence presented in standard. It is sufficient if the juror can lay aside his impression prospective juror’s impartiality would be to establish an impossible without more, is sufficient to rebut the presumption of a preconceived notion as to the guilt or innocence of an accused, criminal cases. To hold that the mere existence of any or opinion as to the merits of the case. This is particularly true in qualified to serve as jurors will not have formed some impression interest of the public in the vicinity and scarcely any of those best communication, an important case can be expected to arouse the In these days of swift, widespread and diverse methods of

involved.” Irvi n, 366 U.S. at 722. required . . . that the jurors be totally ignorant of the facts and issues defendant. See Dobbert v. Florida, 432 U.S. 282, 303 (1977). “I t is not because the community was aware of the crimes and the charges against the We will not presume unfairness of a constitutional magnitude simply

Skilling, 130 S. Ct. at 2918 (citation omitted).

member’s fitness for jury service. court a more intimate and immediate basis for assessing a venire by the appellate c ourt, the in - the - moment voir dire affords the trial apprehension of duty. In contrast to the cold transcript received inflection, sincerity, demeanor, can d or, body language, and capture fully in the record – among them, the prospective juror’s appraisal is ordinarily i nfluenced by a host of factors impossible to the trial judge’s estimation of a juror’s impartiality, for that judge’s R eviewing courts are properly resistant to second - guessing

Supreme Court: inquiry that might tend to show juror bias”). A ccordingly, as recognized by the conducting voir dire in the area of pretrial publicity and in other areas of 415, 427 (1991) (noting that the trial judge is granted “wide discretion . . . in province of the trial judge.” (quotation omitted)); Mu’Min v. Virginia, 500 U.S. Skilling, 130 S. Ct. at 2917 (“Jury selection . . . is particul arly within the first instance by the trial court on voir dire. Addison, 161 N.H. at 303; see also a prospective juror is free from prejudice is a determination to be made in the necessary depth or breadth of voir dire,” Skilling, 130 S. Ct. at 2917. W hether p. 21 21

jurors regarding the extent and effect of their exposure to pretrial publicity and demonstrates that, in fact, the court and the parties questio ned the prospective extent and effect of pretrial publicity and community sentiment,” the record court “would have ensured that each potential juror was questioned about the defendant argues that the supplementa l questionnaire that he submitted to the conducted individual voir dire of 10 7 prospective jurors. Although the After two days of preliminary jury selection, the court and the attorneys

disqualification was in fact warranted. those prospective jurors who answered affirma tively and determined whether potentially warrant disqualification. T hereafter, the court met individually with read to the venire a series of questions as to which affirmative answers could explained the nature of the c harges and the insanity defense. The court then evidence presented and the obligation to be fair and impartial. The court also the court stressed the importance of deciding the case based solely up on the watch, or l isten to anything about this case.” In its preliminary instructions, jurors that, until they were excused from the panel, they were “not to read, A fter the jury selection began, the court again instructed the prospective

materials on t he internet that may concern this case.” newspaper articles, listen to any radio or television reports, or review any until their service was completed, they were not allowed “to read any used in jury selection. The letter further informed the prospective jurors that, defendant’s cas e and provided a detailed explanation of the procedures to be a letter, which explained to them that they had been summoned for the o n the first day of jury selection, the court provided the prospective jurors with selection took ten days and generated 1,186 pages of testimony). For example, care” in obtaining an impartial jury); see also Patton, 467 U.S. at 10 27 (jury publicized case not evidence of prejudice but rather shows court’s “extreme Nelson, 103 N.H. 478, 484 (1961) (requiring three weeks to pick jury in widely lengths to e nsure that the empanelled jury was fai r and impartial. See State v. thorough jury selection proce ss over a period of eight days and went to great was required. Rather, the record establishes that the trial court conducted a found no evidence to support the defendant’s argument that a change of venue We have reviewed the 2,347 - page transcript of jury selection and have

presented to them at trial”). preliminary opinions and render a verdict solely based on the evidence . . . whether it is possib le for [the] jurors to set aside their impressions or pivotal question in determining whether an impartial jury may be selected is defendant.” Patton, 467 U.S. at 1035; see also Briggs, 12 A.3d at 314 (“the such fixed opinions that they could not judge impartially the guilt of the remembered the case, but whether the jurors at [the defendant’s] trial had 313 (Pa. 2011). Thus, the crucial question “is not whether the community of an important and tragic incident like this one.” Com. v. Briggs, 12 A.3d 291, p. 22 22

suggestion of a circus atmosphere or lynch mob mentality . . . or of any other Dobbert, 432 U.S. at 303 (quotation and ellipsis omitted). “There is no T his was not a “trial atmosphere utterl y corrupted by press coverage.”

be able to render a decision based only up on the evidence presented. court concluded that the juror’s responses demonstrated that he or she would or exposure to pretrial media or the opinions of others. In each instance, the but only five of those motions were based upon prior knowledge about the case denied the defendant’s motions to excuse seven of the seated jurors for cause, crimes prior to jury selection or heard others talking about the case. T he court Spader’s trial, and slightly more than half of those seated had discussed the occurred, while others reported learning about it through media accounts of of the case. Some reported learning about the case only at the time the crimes selection, and most acknowledged that they had se en or heard media accounts All sixteen seated jurors reported knowing about the crimes prior to jury

those involved in the case. the burden of proof, or because they had personal connection s to the crimes or refrain from media exposure and discussing the case, i nability to understand excused for other reasons such as inability to follow the court’s instructions to of the defendant’s sanity. The remainder of those excused for cause were that group w as excused b ecause of bias or preconceptions regarding the issue media coverage. Sixty - five were excused for cause, and less than one third of seventy - one percent were aware of the crimes because of exposure to pretrial prospecti ve jurors were aware of the crimes before jury selection, and nearly Our review of the individual voir dire demonstrates that almost all of the

prospective juror. attorneys for each side were then allowed up to ten minutes to question each juro r would be able to set it aside and not share it with other jurors. The juror remembered something the juror may have read or heard during trial, the impartial verdict based solely up on the evidence presented; and whether, if the opinions the juror had heard outside of the courtroom and render a fair and in the case; whether the juror would be able to set aside a ny information or had expressed an opinion on the case, the defendant, or anyone else involved juror’s exposure to the media coverage of the case; whether the juror held or prior knowledge of the case through publicity or otherwise; the extent of the asked e ach prospective juror a series of questions designed to elicit: the juror’s answers to the questions” (quotation and brackets omitted)). The court then candor the cour t admonished each juror “that there were no right and wrong or wrong answers to the questions. See Skilling, 130 S. Ct. at 2919 (to ensure began its questioning by telling the prospective jurors that there were no right specific questions regarding content of what each juror has read). T he court States Constitution does not require inquiry about pretrial prejudice to includ e community sentiment. See Mu’Min, 500 U.S. at 431 - 32 (holding that United p. 23 23

that they had a fixed, unalterable opinion of [defendant’s] guilt”). Taking all of motions to change venue whe n twelve percent of the prospective jurors “stated see also Briggs, 12 A.3d at 316 - 18 (finding no error in denying defendant’s impeach the indifferen ce of jurors w ho displayed no animus of their own.” Id.; suggests a community with sentiment so poisoned against [the defendant] as to than would occur in the trial of a totally obscure person,. . . it by no means defendant’s] guilt.” The Court stated that while “[t]his may indeed be 20 more questioned were excused because they indicated an opinion as to [the not permit an inference of actual prejudice where “20 of the 78 persons (1975), in which the Supreme Court found that the jury selection process did Rather, this case is more akin to Murphy v. Florida, 421 U.S. 794, 803

an opinion as to the defendant’s sanity. this case, voir dire established that none of the seated jurors had in fact formed “[e]ig ht out of the 12 [seated jurors] thought [the defendant] was guilty,” id., in preconceptions regarding the defendant’s sanity. Likewise, whereas in Irvin, percent of those individually questioned were excused based up on bias or intensity from mere suspicion to absolute certainty,” id., here, less than twenty examined on the point . . . entertained some opinion as to gu ilt – ranging in having fixed opinions as to the guilt” of the defendant and “almost 90% of those court excused over half of the prospective jurors “on challenges for cause as in venue. Irvin, 366 U.S. at 727 (quotation om itted). U nlike in Irvin, where the bitter prejudice . . . throughout the community” that would require a change Moreover, the record in this case does not reveal a “pattern of deep and

d ecide the case based only on the evidence presented”). defendants and stated the discussion would not affect his or her ability to that discussion denied hearing any opinion regarding the guilt of the hallway prior to jury selection,” but “each member of the venire who overheard “[s]ome prospective jurors apparently discussed t he crime while waiting in the Cf. Moore v. State, 481 S.E.2d 892, 895 (Ga. Ct. App. 1997) (noting that media accounts or previous discussions affect their ability to decide the case. that they would deci de the case based only up on the evidence and not let selection. This is particularly so since all of the jurors eventually seated stated the crimes or heard discussions of the case prior to be ing called for jury Nor is it eno ugh to show that some of the prospective jurors discussed

U.S. at 303; Nelson, 103 N.H. at 484. could not reasonably have expected to remain anonymous. See Dobbert, 432 Id. at 1567. Indeed, given the nature of the crimes in this case, the defendant demonstrate that an irrepressibly hostile attitude pervaded the community.” case and that there was extensive pretrial publicity will not suffice to Cir. 1994). “Simply showing that [most of] the potential jurors knew about the aside for lack of an impartial jury.” Stafford v. Saffle, 34 F.3d 1557, 1566 (10 th community - wide rush to judgment that infected other trials that have be en set p. 24 24

consider in weighing the merits of those positions.” position” but “merely set forth possibly helpful factors that jurors could challenged instru ctions neither advocated [for] nor repudiated the State’s trial favored the State’s theory of the case. The State disagrees, arguing that “[t]he insanity. The defendant contends that the specified factors overwhelmingly t he jury that it could consider certain specified f actors in its determination of On appeal, the defendant argues that the trial court erred in instructing

law.” The State objected, and the court denied the defendant’s request. of ‘mental disease’ is favored by the Court, when it is not supported by the evidence and suggests that the State’s theory of thei r case as to the definition the case have made clear” that the “instruction unfairly comments on the not specify factors for the jury’s consideration. He claimed that “the facts of At trial, the defendant r enewed his request that the insanity instruction

draft model jury instructions.” it would “instruct the jury on the insanity defense consistent with the 2005 trial court denied the defendant’s proposed insanity instructions and ruled that the jury to c onsider in determining w hether the defendant was insane. The the court were to use the m, it also include certain other enumerated factors for defendant objected to the State’s proposed instructions but requested that, if recommended New Hampshire Criminal Jury Instructions on insanity. The instructions were drawn from the 2005 d rafting committee’s version of whether the defendant was insane at the time he committed the crimes. These enumerated specific factors that the jury could consider in determining instructions on the issue of insanity. The State ’s proposed instructions Before trial, both the defendant and the State submitted proposed jury

III. Jury Instructions

Federal Constitution as we do under the State Constitution. at 2912 - 15; Smart, 136 N.H. at 646, we reach the same result under the than the State Constitut ion under these circumstances, see Skilling, 130 S. Ct. As the Federal Constitution offers the defendant no greater protection

denying the defendant’s motions to change venue. impartial jury trial. Accordingly, we conclude that t he t rial court did not err in infected the jurors to such an extent that he was unable to receive a fair and presumption of prejudice arose from the pretrial publicity or that the publicity Thus, we hold that the de fendant has failed to establish that a

actual bias or prejudice in the seated jury panel. the trial court’s conclusion that the defendant was unable to demonstrate any t he circumstances into account, we conclude that there is ample support for p. 25 25

mentioned in” our previous decisions on the insanity defense. Nevertheless, he are similar to those listed in the standard jury instructions on insanity and Indeed, h e acknowledges that “[t] he specific factors the trial court used here The defendant does not challenge the substance of th e instruction itself.

committed his various illegal acts. whether the defendant was sane or insane at the time he them, or whatever else you think is pertinent to the issue of You may consider all of these things, some of them, or none of Now, none of these things, however, is a test for insanity.

or manage his affairs. whether he could recognize acquaintances and transact business whether he had the power to choose be tween right and wrong and crimes and escaping or avoiding detection. You may also consider impulsively or acted with cunning and planning in executing his acts. You may also consider whether the defendant acted between right and wrong, and wh ether he knew the nature of his delusions or hallucinations, whether he knew the difference the nature of the defendant’s acts, whether he was suffering from consider any evidence of insanity. You may consider, for example, In deciding whether th e defendant was insane, you may

In this case, t he disputed insanity instruction provide d, in pertinent part:

Davidson, 163 N.H. 462, 472 (2012) (quotation omitted). clearly untenable or unreasonable to the prejudice of his case.” State v. sustainable, the defendant must demonstrate that the c ourt’s ruling was Hernandez, 159 N.H. at 400. “To show that the trial court’s decision is not decisions on these matters for an unsustainable exercise of discretion. Cegelis, 138 N.H. at p. 25 251 - 5 2 (quotation omitted). We review the trial court’s

in light of all the evidence in the case. entirety, as a reasonable juror would have understood them, and be evaluated by interpreting the disputed instructions in their sound discre tion of the trial court, and any allegations of error will The scope and wording of jury instructions is generally within the

N.H. 394, 400 (2009). fairly cover the issues of law arising in the case. See State v. Hernandez, 159 explain ea ch element of the offense and reverse only if the instructions did not instructions, we determine whether the instructions adequately and accurately case. State v. Cegelis, 138 N.H. 249, p. 25 252 (1994). W hen reviewing jury the jury, in clear and intelligible language, the rules of law applicable to the The purpose of a trial court’s jury instructions is to state and explain to p. 26 26

argument, the defendant asserts that the State’s theory of the case was that he Citing statements made by the prosecutor in the State’s closing

or criterion which determines the issue of mental illness.”). insane” (quotation omitted)); Plante, 13 4 N.H. at 461 (“There is no specific test (explaining that “there is no test for determining whether a defendant is there i s no legal definition or test for insanity. See Fichera, 153 N.H. at 593 applicable law on the insanity defense, t he trial court also correctly stated that was mentioned in the instruction. See id. at 462. In accordance with the factor they deemed relevant to the issue of insanity, whether or not the factor i ssue of insanity. Thus, t he instructions left the jurors free to consider any instructed the jury that it could consider whatever else it found relevant to the read the instructions as emphasizing any one factor. Moreover, t he court knew and could choose between right and wrong.” We disagree. We do not two factors, i.e., “the nature of the charged acts an d whether [the defendant] T he defendant suggests that the c ourt’s instruction erroneously stressed

within the province of the jury to be considered like any other factual issue.”). measures the capacity of the de fendant is a matter of evidence, which falls for insanity. See State v. Plante, 134 N.H. 456, 461 (1991) (“[A]ny test which not have to consider the factors and, in fact, that none of the factors is a test could consider as e vidence of insanity. However, it made clear that the jury did insanity” and provided the challenged factors as examples of what the jurors determined by jury). It explained that the jury may consider “any evidence of mental disease or defect caused the charged conduct are questions of fact to be Fichera, 153 N.H. 588, 593 (2006) (explaining that sanity and whether a a mental disease or defect that caused him to act as charged.” See State v. you . . . t o determine as a question of fact whether the defendant suffered from defense, we find no error. T he trial court instructed the jury that “[i]t is up [to] adopt these instructions as the only way to instruct the jury on the insanity Upon review of the instructions in their entirety, and although we do not

prove controlling.” Id. (quotation and brackets omitted). weight and his slightest word or intimation is received with deference, and may influence of the trial judge on the jury is necessarily and properly of great (quotation and brackets omitted). Such practice is prudent given that “the the evidence or upon the credibility of witnesses in the charge to the jury.” Id. Hampshire, “it is the practice of Superior Court judges not to comment upon resolved.” State v. King, 136 N.H. 674, 677 (1993) (quotation omitted). In New of the case, and to assist the jury in understanding the questions to be “A trial judge’s primary duty in charging the jury is to clarify the issues

considered the evidence.” We disagree. supported the State’s theory of the case and influenced how the jury argues that “[b]y specifying factors, the trial court gave an i nstruction that p. 27 27

DALIANIS, C.J.