2008-0945 The State of New Hampshire v. Michael Addison

Michael A. Delaney, attorney general (Peter Hinckley, assistant attorney

No. 2008-945

Hillsborough-northern judicial district

Concord, on the brief, and Mr. Rothstein orally, for the defendant. public defender, and Heather S. Ward, New Hampshire public defender, of page is: http://www.courts.state.nh.us/supreme. Johnson, chief appellate defender, Richard C. Guerriero, New Hampshire 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 David M. Rothstein, deputy chief appellate defender, Christopher M.

assistant attorney general, Mr. Hinckley, and Ms. Rundles orally), for the State. Bocian, assistant attorney general, on the brief, and Elizabeth C. Woodcock, general, Janice K. Rundles, senior assistant attorney general, and Thomas E.

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 p. 2 B. EVIDENCE OF AGGRAVATING CIRCUMSTANCES………. 242

p. 3 With respect to the issues raised by the defendant on appeal, we find no

will address the third question after further briefing and oral argument.

first two statutory questions are before us at this stage of the proceeding; we

cases, considering both the crime and the defendant. RSA 630:5, XI. Only the of death is excessive or disproportionate to the penalty imposed in similar aggravating circumstance, as authorized by law; and (3) whether the sentence

other arbitrary factor; (2) whether the evidence supports the jury’s finding of an

sentence of death was imposed under the influence of passion, prejudice or any In addition, we are statutorily required to address: (1) whether the

his post-verdict request for discovery.

aggravating factors’ compliance with certain constitutional requirements, and sentencing, the process of “death qualifying” the jury, the non-statutory the inapplicability of the rules of evidence, the impact of race in capital

function of the statutory aggravating factors, the statutory burdens of proof,

relate to the constitutionality of the capital punishment statute, the narrowing

argument. He also raises several constitutional and statutory issues that jury instruction on mode of execution, prior crimes evidence, and closing victim impact evidence, evidence of conditions of confinement, evidence of and

sentencing, the defendant’s claims of error relate to his custodial statement,

Evidence 404(b), and the jury instruction on reasonable doubt. Regarding to prospective jurors, prior crimes evidence under New Hampshire Rule of claims of error relate to venue, peremptory challenges and challenges for cause

aggravating circumstances. We note that our review of the defendant’s and that the evidence was sufficient to support the jury’s findings of imposed under the influence of passion, prejudice or any other arbitrary factor,

briefed by the defendant. Regarding his capital murder trial, the defendant’s

murder. Furthermore, we conclude that the sentence of death was not

conviction and sentence. This opinion addresses each of the twenty-two issues On appeal, the defendant contends that numerous errors undermine his

scheme in 1977. See Laws 1977, 440:2. The defendant appeals his conviction

death. RSA 630:5, X-XII (2007).

imposed in New Hampshire since the enactment of the current statutory

Superior Court (McGuire, J.) of the capital murder of Manchester Police Officer PER CURIAM. The defendant, Michael Addison, was convicted in

B. SPECIAL VERDICT FORM.………………………..………….. 249 A. SPECIAL FINDINGS FORM.…………………………………… 244 X. APPENDIX independent review by this court when a defendant has been sentenced to and his sentence. Sup. Ct. R. 7. The capital sentencing statute also requires

Michael Briggs and sentenced to death. This is the first death sentence police later found a bullet lodged in the living room floor of another apartment.

p. 4 parked car, and a bullet lodged in the bedroom wall of an apartment. The two men fled. Manchester police recovered shell casings, bullet fragments in a approached the building, at which Bell-Rogers fired several rounds, and the

to an apartment complex on Edward J. Roy Drive in Manchester. They In the early morning of October 15, the defendant and Bell-Rogers drove

surveillance camera recorded the robbery. robbery, Bell-Rogers took the cash drawer, and the men fled. A store

defendant brandished the same weapon that had been used in the restaurant

gunpoint the clerk of a 7-Eleven convenience store in Hudson. As the The following morning, the defendant and Bell-Rogers robbed at

the ceiling.

officers recovered two empty shell casings from the floor and a bullet lodged in twice during the robbery. After the men fled the scene, Manchester police was armed with a knife, and Bell-Rogers fired his semiautomatic handgun

“out for blood.” That afternoon, the men brought the car that they had used in

the El Mexicano Restaurant in Manchester. The defendant, a convicted felon,

for them; the defendant and Bell-Rogers responded by declaring that they were and Bell-Rogers. A friend warned the men that the police were nearby looking Manchester police interviewed several people associated with the defendant violent crimes in the area. On October 10, he and Antoine Bell-Rogers robbed During the week before the shooting, the defendant committed several

day. 4

police approached him he would shoot. On the day of the Roy Drive shooting,

Massachusetts and took him into custody. Officer Briggs died the following

were searching for him, and throughout the week he told friends that if the I. THE CAPITAL MURDER Prior to the shooting of Officer Briggs, the defendant knew that the police

but the police located him later that day at his grandmother’s home in in Litchfield Lane, an alley in Manchester. The defendant fled the crime scene, apprehension by the police. The shooting occurred at approximately 2:45 a.m.

further opinion. review of the defendant’s sentence of death, at which time we will issue a

2006, the defendant shot Officer Briggs in the head in order to evade

on comparative proportionality under RSA 630:5, XI(c) will we conclude our sentence is not yet complete. Only after additional briefing and oral argument

phase of the trial and upon the jury’s findings and verdict. On October 16, The following facts are based upon the evidence adduced at the guilt p. 5 Rogers. Officer Breckinridge quickly followed.

Officer Briggs turned his bicycle sharply to pursue the defendant and Bell- Rogers in the alley and maneuvered his vehicle to get a closer look at them. in a police vehicle traveling on the same street also saw the defendant and Bell-

Lane, they spotted the defendant and Bell-Rogers in the alley. Another officer

Breckinridge were crossing the intersection of Lincoln Street and Litchfield waistband; the gun was concealed by his sweatshirt. As Officers Briggs and defendant had Bell-Rogers’s loaded semiautomatic handgun tucked in his

Both men were wearing sweatshirts with hoods over their heads and the

walking past a marked police vehicle and entering the Litchfield Lane alley. Lake Avenue apartment. At that time, the defendant and Bell-Rogers were At approximately 2:45 a.m., Officers Briggs and Breckinridge left the

that the defendant and Bell-Rogers had been involved.

Officers Briggs and Breckinridge assisted with that investigation, and learned the apartment building to make sure that the shooter was no longer there. learned that the suspects had fled on foot. At the scene, the police searched

apartment on Lake Avenue. They responded to assist and, while on their way,

dispatch report of a gunshot having been fired during a domestic incident at an Shortly before 2:00 a.m., Officers Briggs and Breckinridge heard a

them.

Manchester, aware that the police were in the immediate vicinity looking for the defendant and Bell-Rogers were at an apartment on Lake Avenue in were instructed to arrest the defendant and Bell-Rogers on sight. At that time,

October 16, arrest warrants had been issued for both men, and the officers

area, searching for the defendant and Bell-Rogers. By the early morning of

marked “Police.” Numerous officers in patrol vehicles were canvassing the east side of Manchester. They were in uniform and wearing bicycle helmets Officers Briggs and Breckinridge were assigned to bicycle patrol on the

result of a prior encounter with him. be held for questioning. Officer Briggs was familiar with the defendant as a Rogers likely were armed and dangerous and that, if apprehended, they should

associated with them. A detective told the officers that the defendant and Bell-

and Bell-Rogers, as well as information about the people, places, and vehicles The officers received physical descriptions and photographs of the defendant that the defendant and Bell-Rogers were wanted in connection with a shooting.

shift. Their shift began with a roll call and briefing during which they learned

reported to the Manchester Police Department for the 6:30 p.m. to 3:00 a.m. That evening, Officer Briggs and his partner, Officer John Breckinridge,

made plans to leave the state. two of the previous crimes to a friend so that he could “wipe it out,” and they p. 6 II. PROCEDURAL HISTORY

October 17, from a single gunshot wound to his head. Officer Briggs never regained consciousness. He died the next day,

and she notified the police.

the gun in her backyard where the defendant had discarded it while fleeing, taken into custody. A resident in the neighborhood of the shooting later found grandmother’s Boston apartment, where he surrendered to the police and was

his red sweatshirt nearby. Later that day, they tracked him to his The police discovered the defendant’s cellular telephone at the scene and

up the alley, while others went to Officer Briggs’s aid.

as if trying to clear a jam from his gun. Several officers chased the defendant

officers, then “hunched down” and moved his arm back and forth at waist level fire because she could not take a clear shot. The defendant looked back at the four or five times. Another officer also took aim at the defendant but did not

fire a gun at them; the officer took aim at the defendant and fired his weapon

defendant turn and raise his arm toward the officers as though he was going to

defendant in the alley looking for a way to escape. The officer saw the Police officers in the area responded immediately. One officer saw the

shots at him.

defendant turned and ran up the alley as Officer Breckinridge fired several enforcement officer, by shooting Officer Briggs in the head side of Officer Briggs’s helmet and he instantly collapsed to the ground. The high,” and fired a single gunshot at Officer Briggs. The bullet penetrated the

death of Manchester Police Officer Michael L. Briggs, a law turned, raised both arms together “in a unified motion” about “chest to head

Hillsborough, with force and arms, . . . knowingly caused the or about October 16, 2006, at Manchester in the County of length, he issued a third command — “Stop, Police!” The defendant suddenly Michael K. Addison . . . of Manchester, New Hampshire, on Briggs closed the gap between them. When Officer Briggs was within an arm’s downward” in a “balling-up sort of a motion.” He slowed his pace while Officer

of capital murder. The indictment alleged that defendant continued walking away, “rolling his shoulders forward” and “looking On February 20, 2007, a grand jury indicted the defendant on one count

the defendant, he again issued the same command — “Stop, Police!” The His head was “leaning down and forward a little bit.” As Officer Briggs neared walking away, keeping his hands near his waist and out of the officer’s sight.

Police!” Bell-Rogers stopped almost immediately, but the defendant continued As Officer Briggs approached the two suspects, he commanded, “Stop, the line of duty. See RSA 630:1, I(a). The eligibility phase lasted one day, p. 7 capital murder for having knowingly killed a law enforcement officer acting in

phase ended on November 13, when the jury found the defendant guilty of

numerous exhibits and the testimony of more than forty witnesses. The guilt The guilt phase began on October 20, 2008, and the evidence included

defendant to life imprisonment without possibility of parole or to death.

including aggravating and mitigating factors, whether to sentence the

sentenced to death. See RSA 630:5, IV (2007). The jury recorded these

in which the jury determined, based upon consideration of all the evidence, defendant eligible for the death penalty; and (3) the sentence selection phase, determined whether there existed statutory aggravating factors making the evidence proffered by the defendant, and recommended that the defendant be

the recommended death sentence on December 22. See RSA 630:5, V (2007).

aggravating factors evidence proffered by the State and the mitigating factors December 18, when the jury returned findings on the non-statutory and the testimony of more than fifty witnesses. This final phase ended on

Appendix B to this opinion. As required by statute, the superior court imposed

(1) the guilt phase, in which the jury determined whether the defendant sentencing into two stages. Consequently, the trial consisted of three phases: December 2008. At the defendant’s request, the trial court bifurcated phase began on November 21, and the evidence included numerous exhibits appeal pursuant to Supreme Court Rule 7. under RSA 630:5, X (2007). On May 1, 2009, the defendant filed his notice of On December 31, 2008, this court docketed the automatic appeal required aggravating factors making the defendant eligible for the death penalty. See this phase, the jury determined that the State had proven statutory findings and its verdict on a Special Verdict Form, which is included in

The defendant’s capital murder trial took place from October to Form, which is included in Appendix A to this opinion. The sentence selection RSA 630:5, VII (2007). The jury recorded these findings on a Special Findings

stipulation relating to the defendant’s prior incarceration. At the conclusion of November 17, and included one witness who testified for the State, and a

to RSA 630:5, I (2007). This notice was later amended. penalty, identifying statutory and non-statutory aggravating factors pursuant

See RSA 630:1, I(a) (2007). The indictment also alleged certain statutory

duty . . . . with a firearm, while Officer Briggs was acting in the line of

sentence. On May 7, 2007, the State filed its notice of intent to seek the death aggravating factors that would make the defendant eligible to receive a death convictions in all three cases. See State v. Addison, 160 N.H. 493 (2010)

p. 8 during the Roy Drive shooting. We affirmed the defendant’s non-capital

acquitted of the charge of being a felon in possession of a deadly weapon

located on Edward J. Roy Drive in Manchester on October 15, 2006. He was with a firearm for participating in the shooting at the apartment complex conspiracy to commit criminal threatening and accomplice to reckless conduct

convenience store in Hudson on October 11, 2006. Third, he was convicted of

in possession of a firearm for participating in the robbery of the 7-Eleven convicted of conspiracy to commit robbery, armed robbery, and of being a felon Mexicano Restaurant in Manchester on October 10, 2006. Second, he was

in possession of a deadly weapon for participating in the robbery of the El

First, the defendant was convicted of armed robbery and of being a felon

amended notice of intent to seek the death penalty.

relate to certain non-statutory aggravating factors identified in the State’s

These three cases are relevant to the capital murder proceedings because they

events that occurred during the week preceding the shooting of Officer Briggs. capital murder trial, the parties tried three felony cases arising out of the of its initial notice to seek the death penalty and the start of the defendant’s

and, following a sentencing hearing, that the State has proven two statutory

guilty of capital murder as defined under RSA 630:1 (2007) (amended 2011),

murder. December 22, 2008, the same day it imposed the death sentence for the capital

We also issued decisions in the appeals of three non-capital cases

proceedings and denied the defendant’s post-verdict motion. a unanimous jury finds beyond a reasonable doubt both that the defendant is Under New Hampshire law, a defendant is eligible for a death sentence if

appeal. State v. Addison, 160 N.H. 732, 741 (2010). Also in 2010, the

shooting). The trial court imposed sentences for each of these convictions on Restaurant robbery); State v. Addison, 161 N.H. 300 (2010) (Roy Drive (7-Eleven robbery); State v. Addison, 160 N.H. 792 (2010) (El Mexicano

upon his post-verdict motion for discovery. The trial court conducted further

standards under sections XI(a) and (b) as necessary in our decision on the

was not required. State v. Addison, 159 N.H. 87, 93 (2009). In 2010, we

and proceedings. We granted his motion, in part, to allow the trial court to rule

under RSA 630:5, XI(c) (2007), and noted that we would decide the applicable

2009, we concluded that formal rulemaking for review of death penalty cases We previously have issued several decisions related to this case. In

defendant moved for a partial remand to the trial court for additional discovery

determined the standard applicable for comparative proportionality review unanimous vote.” Id. Moreover, “[t]he jury, regardless of its findings with

p. 9 sentence of life imprisonment without possibility of parole” must be “by A recommendation “that a sentence of death be imposed rather than a factors are themselves sufficient to justify a sentence of death.” RSA 630:5, IV.

found to exist, or in the absence of mitigating factors, whether the aggravating

factors found to exist “sufficiently outweigh any mitigating factor or factors

death sentence, then each juror considers whether all of the aggravating aggravating factors that are necessary to make the defendant eligible for a If a sentencing jury unanimously finds the existence of the two statutory

evidence. RSA 630:5, III. of proving the existence of a mitigating factor by a preponderance of the aggravating factor beyond a reasonable doubt; the defendant bears the burden

630:5, IV. The State bears the burden of proving the existence of an

existence of a mitigating factor may consider such a factor established.” RSA aggravating factor must be unanimous, “any member of the jury who finds the factors exist. RSA 630:5, III. Although the jury’s finding with respect to an

factors). RSA 630:5, I(b). Further, each juror considers whether mitigating

seek to prove as the basis for the death penalty” (non-statutory aggravating

aggravating factors) or may be “other aggravating factors which the state will These additional factors may be those identified in the statute (statutory State’s notice of intent to seek the death penalty. RSA 630:5, I, III (2007). 9

additional aggravating factors exist, provided such factors were set forth in the At a capital sentencing hearing, the jury also considers whether

VII(b)-(j).

RSA 630:5, V (2007). recommend a death sentence, the court is required to impose that sentence. death sentence and the jury shall be so instructed.” Id. Should the jury respect to aggravating and mitigating factors, is never required to impose a

the background of the defendant, or the status of the victim. RSA 630:5,

630:1; see RSA 630:1, I(g) (Supp. 2012) (statute amended in 2011 to add as “knowingly caus[ing] the death of another” in specific circumstances. RSA

RSA 630:5, VII(a)(1)-(3). The second relates to the circumstances of the crime, whether the defendant acted “purposely” when committing the capital murder. 630:1, I(a). One of the two requisite statutory aggravating factors relates to

case occurred, the statute identified six types of capital murder, each defined aggravating factors. RSA 630:5, I, II, IV, VII (2007). When the crime in this

knowingly killing “a law enforcement officer acting in the line of duty.” RSA seventh type of capital murder). One type of capital murder is defined as p. 10 State v. Hollenbeck, 164 N.H. 154, 158 (2012).

rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. 226,

set of circumstances exists under which the challenged statute would be valid.

whole. State v. Etienne, 163 N.H. 57, 71 (2011). We first examine the

constitutionality of a statute, those doubts must be resolved in favor of its 231-33 (1983). When the United States Supreme Court has decided an issue See State v. Wamala, 158 N.H. 583, 592 (2009). between it and the constitution.” Petition of S. N.H. Med. Ctr., 164 N.H. 319, Constitutions, we first address his claims under the State Constitution, and Where the defendant claims a violation of both the State and Federal declared invalid “except upon inescapable grounds.” Duquette v. Warden, N.H. Legislative acts are presumed to be constitutional and will not be

(2005). To prevail on a facial challenge, the defendant must establish that no import of their terms and to promote justice.” Id. (quotation and citation constitutionality bears the burden of proof.” State v. Pierce, 152 N.H. 790, 791 intent of the legislature as expressed in the words of a statute considered as a

324 (2012) (quotation omitted). “It also means that when doubts exist as to the

and a constitutional provision, we first will address the statutory argument. statute to be unconstitutional unless a clear and substantial conflict exists State Prison, 154 N.H. 737, 745 (2007). “This means that we will not hold a Etienne, 163 N.H. at 72. We interpret legislative intent from the statute as constitutional questions, are reviewed de novo. State v. Marshall, 162 N.H. words used. State v. Moussa, 164 N.H. 108, 128 (2012). Absent an ambiguity omitted).

Additionally, “we construe provisions of the Criminal Code according to the fair In matters of statutory interpretation, we are the final arbiter of the statute in the context of the overall statutory scheme and not in isolation. Id. advanced by the entire statutory scheme. Id. Accordingly, we interpret a (2010). Our goal is to apply statutes in light of the policy sought to be language it did not see fit to include. State v. Addison, 160 N.H. 732, 754 when necessary, when a claim of error is based upon both a statutory provision written and will not consider what the legislature might have said or add

we will not look beyond the language of the statute to discern legislative intent. rulings on questions of law, including statutory interpretation and language of the statute and ascribe the plain and ordinary meanings to the

657, 661 (2011). Because we decide cases on constitutional grounds only

Our settled principles of judicial review apply to this appeal. The trial court’s interpretation and require our review of the trial court’s evidentiary rulings. The issues before us raise questions of statutory and constitutional p. 11 Juror voir dire lasted approximately seventeen days, generating

those who were entitled to be excused.

court excused persons who clearly were not eligible for jury service, as well as should be excused and . . . whose request should be denied.” In addition, the recommendations. The court noted that counsel “almost always agreed on who

and they met periodically with the trial court to discuss their

In September 2008, at the start of the first day of juror voir dire, the trial 11

provide an overview of the jury selection process in this case.

should be excused immediately based upon the questionnaire responses alone, preliminary voir dire, during which the trial court described the charge against them into several panels. Each panel was brought before the court for

denying his motions to dismiss two prospective jurors for cause. We first criminal cases, including capital cases. Prospective jurors who knew any of the the defendant, the jury selection process, and the law generally applicable to

State v. Oakes, 161 N.H. 270, 280 (2010); State v. Giddens, 155 N.H. 175, 179 preliminary questionnaire. Counsel jointly determined which individuals The admission of evidence falls within the trial court’s sound discretion. those who responded to the summons submitted a completed five-page jurors reported to the courthouse for jury selection and the trial court divided Approximately 1,200 prospective jurors had been summoned for the case and approximately 2,800 pages of transcript testimony. Over 300 prospective

in denying his request that he be allotted thirty peremptory challenges and in change of venue. Regarding jury selection, he argues that the trial court erred selection. He first argues that the trial court erred in denying his motions for On appeal, the defendant raises one challenge to venue and two to jury

V. VENUE AND JURY SELECTION REVIEW court described the jury selection process that had taken place to that point.

the United States Supreme Court’s current explication of it.”). N.H. 687, 694 (2000); State v. Bassett, 139 N.H. 493, 497 (1995). evidentiary disputes were presented to the court. See State v. Glodgett, 144 review the propriety of the trial court’s pretrial rulings in the context in which Supreme Court] the prerogative of overruling its own decisions.” Rodriguez de untenable or unreasonable to the prejudice of his case.” Id. Additionally, we of federal law, we must “follow the case [that] directly controls, leaving to [the defendant must demonstrate that the challenged evidentiary ruling was “clearly discretion. See Giddens, 155 N.H. at 179. To prevail under this standard, the (2007). We review the trial court’s ruling for an unsustainable exercise of

150 N.H. 134, 140 (2003) (“When interpreting federal law, . . . we are bound by Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); see State v. Melvin, opinions about the death penalty.

p. 12 opinions of police officer credibility, to the ability to be fair and impartial and

questioning ranged from exposure to media coverage, community ties, and about information provided on the long-form questionnaire. Counsel’s allowed equal time to question the prospective juror, including questioning

Following this questioning, counsel for both the defendant and the State were

reason that he or she could not be a fair and impartial juror in the case. outweighed mitigating factors. It asked each prospective juror if there was any penalty only if it unanimously found that aggravating factors sufficiently

required to impose the death penalty, and that the jury could impose the death

sequestered voir dire. Before each prospective juror entered the courtroom, the prospective juror whether he or she understood that the jury would not be each as to his or her understanding of these phases. The court also asked the explained to each individual the phases of a death penalty case and questioned

Next, approximately 114 prospective jurors participated in individual,

unanimous jury beyond a reasonable doubt that he was guilty. The court

completed questionnaire under oath. narrative or explanatory answers, and each prospective juror signed his or her defendant was presumed innocent unless and until the State convinced a

media exposure, including his or her sources for news (e.g., newspaper, talk

defendant and Officer Briggs. Many of the questions were designed to prompt understood, and accepted, certain principles of law, including that the court then questioned each prospective juror as to whether he or she upon information provided in response to questions in the questionnaire. The

The questionnaire included several questions about the prospective juror’s innocence of the defendant or the possible punishment if he were convicted. about, heard, or discussed with anyone, including information about the system, to opinions that he or she might have formed about the guilt or

party, the trial court asked targeted questions of the prospective juror based

concerning aspects of the case that the prospective juror might have read views on racial discrimination, the death penalty, and the criminal justice Facebook. In addition, the questionnaire asked a series of questions whether the individual participated in social media such as MySpace or the individual’s answers to the long-form questionnaire. If requested by either

questionnaire, covered a variety of topics ranging from the prospective juror’s This forty-one page form, modeled largely upon the defendant’s proposed or she watched or listened to on a regular basis. The questionnaire asked trial court asked counsel whether specific questioning was necessary in light of

stations and programs and prompted the prospective juror to indicate which he juror questionnaire, specially prepared for the case. The questionnaire included a list of television shows and channels, and radio potential witnesses were excused, and the remainder completed a long-form radio, television, or internet) and frequency of reading or listening to the news. p. 13 The defendant included with his motion copies of Union Leader and

community outrage at [the defendant].”

emphasize the threat posed by crime to the community, and to focus

and “[t]he case has prompted politicians, public figures, and the media to felt about the crime, the police, and the level of violence in the community”; community’s reaction to Officer Briggs’s death “reveals how the community . . .

State would seek to execute the man responsible for killing [him]”; the

press conference, [then] Attorney General Kelly Ayotte announced that the “[w]ithin roughly two hours of [Officer Briggs’s] death, in a widely broadcast support of this argument, the defendant alleged, among other things, that:

unfair to compel [him] to select his jury in the Hillsborough-North district.” In

memoranda documenting the Union Leader’s coverage of two other high-profile Police Department and the Hillsborough-North Superior Court, and

that on a blog maintained on the Union Leader website, “many Manchester officers, and against [the defendant], such that it would be fundamentally community has rallied around the victim, his surviving family, and his brother community in which the prospective venire resides,” and that “[t]his

photographs and maps establishing the relative locations of the Manchester

A. Venue moving th[e] trial from Hillsborough-North.” In addition, the defendant alleged eighteenth selected juror for cause. murder cases. He argued that the “voluminous” publicity “in itself justifies

motion an unprecedented wave of public passion, outcry, and outrage in the

population figures for New Hampshire counties and selected cities, circulation figures, the Manchester Police Department 2006 annual report, websites that mentioned Officer Briggs, a table of the Union Leader’s print of reader comments posted on the Union Leader website, a list of blogs and Concord Monitor newspaper articles, WMUR Channel 9 telecasts, a summary

jurors, including six alternates. The defendant did not move to dismiss the seventeenth juror was seated. Ultimately, the trial court seated eighteen exercised the last of his twenty-four allotted peremptory challenges after the a change of venue, arguing that “[t]he crime with which he is charged set in

exercised eleven of its twelve allotted peremptory challenges. The defendant in Manchester. Approximately six months before trial, the defendant moved for The superior court for the Hillsborough-North judicial district is located

1. Background

During voir dire, the State and the defendant moved to dismiss certain

indicating a lack of impartiality or an inability to follow the law. The State including their particular views about the death penalty, and other statements were not. Individuals were dismissed by the trial court for a variety of reasons prospective jurors for cause; some of the motions were granted, and others sequestered voir dire of the prospective jurors. Thus, the State argued, “[t]he

p. 14 Regarding comments posted by readers on the Union Leader website, the trial the three non-capital trials and articles about the defendant’s criminal history. during the defendant’s capital murder trial”; for example, extensive coverage of

the case, and that the court and the parties would undertake individual, each juror would receive a detailed questionnaire asking about familiarity with the trial court intended to call a larger pool of potential jurors than usual, that

The trial court found that although “some of the pieces are hostile in tone and

the articles and television clips refer to evidence that may be inadmissible

coverage has been primarily factual.” The State noted that for jury selection,

adverse inflammatory publicity that raises a concern about inherent prejudice.”

widow and children.” In addition, however, the trial court found that “[s]ome of

the immediate aftermath of the murder of [Officer] Briggs,” and “the media coverage, which the defendant cites, occurred over eighteen months [earlier], in jury pool.” According to the State, the “overwhelming bulk of the media especially immediately after the death of Officer Briggs, it is not the kind of concluded that “while the press concerning this case has been voluminous, which people have posthumously honored Officer Briggs and supported his After reviewing the materials submitted by the defendant, the trial court death penalty in general, . . . the defendant’s personal history, and ways in defendant,” while other articles and television clips discussed “debates over the

coverage of his case has inherently or presumptively prejudiced the potential

death of Officer Briggs and subsequent charging and prosecution of the

the defendant “has failed to meet his burden to establish that the media The State objected, arguing that the motion should be denied because

and that some were reactions to developments in the defendant’s case. that others concerned “crime in Manchester” or “the death penalty in general,” clips were “largely factual, discussing developments in the investigation of the “messages of support to the Briggs family or remembrances of Officer Briggs,” immediately after the shooting of Officer Briggs.” It noted that the television surrounding the case, the trial court found that much of it “occurred

additional materials.

court found that many were “personal attacks on the defendant” or were

written order dated June 25, 2008. Having examined the publicity

society mandates.” The defendant subsequently supplemented his motion with affected judicial district . . . [where he] can . . . get the fair and impartial trial reacted so powerfully to the crime, the trial must be moved to a less deeply

Following a hearing, the trial court denied the defendant’s motion by

possible to obtain a fair and impartial jury.” extensive voir dire by the Court and the parties . . . will resolve whether it is

prosecution.” According to the defendant, “[b]ecause this community has residents have expressed their views on the proper outcome of th[e] test the effect of pretrial publicity on jurors” and that, through juror voir dire, p. 15 defendant’s two non-capital trials held in Manchester, she “ha[d] been able to

The trial judge noted that, because she had previously presided over the

community prejudice.” judicial district of more than 190,000 people, “does not signal inherent

the small number of comments were of “an inflammatory nature,” which, in a

Briggs.” The court’s “informal” review revealed that less than one quarter of

Briggs, his family, the police department, or describe memories of Officer district; and “the vast majority of the comments express support for Officer the “commenters” who identified themselves lived in towns outside the judicial

number of “commenters” could not be accurately gauged; about two-thirds of those posted on the Union Leader website as “publicity” for the purposes of its

were often anonymous and posted opinions more than once, and therefore the small”; the majority of the comments were from webboards where the writers The trial court declined to consider media website comments such as judicial district. The trial court found that: “the total number of comments is

would make it impossible to select an impartial jury in the Hillsborough-North Manchester Police Station, located diagonally across the street from the sufficient to presume jury prejudice.” (Quotation omitted.) of his trial, the court noted that “[e]xposure to inadmissible evidence . . . is not

and community reaction as reported in the media reflected a deep hostility that be prejudiced as they entered the courthouse. The court found that the Further, the court rejected the defendant’s argument that internet comments defendant’s criminal history that might be inadmissible during the guilt phase often emotional reactions to articles posted on the Union Leader website.”

to the courthouse weighed in favor of a change of venue because jurors could — where a monument to fallen officers, including Officer Briggs, was located — in Manchester.” While some of the media coverage revealed facts about the not posted to transmit information or news in an objective fashion but [were] defendant’s assertion that the close proximity of the Manchester Police Station Briggs, debated the value of the death penalty, and generally discussed crime the defendant”; rather, “[m]ost expressed sadness about the death of Officer

kind of electronic general store,” and stating that such comments were “clearly without exhausting the jury pools.” Finally, the trial court disagreed with the the court had been “able to secure fair and impartial juries in those cases court stated that “very few editorials about the case displayed hostility towards

where members of the public can express their opinions about any topic, a could be described as prejudicial.” (Quotation omitted.) In addition, the trial an emotional tone, very few related facts about the defendant in a way that some of the articles and television clips about the death of Officer Briggs had

analysis of inherent prejudice, characterizing media websites as “merely places

consists of straightforward, unemotional factual accounts,” and that “[w]hile accusatory in content, the overwhelming bulk of the material submitted individual voir dire, the State noted that the “vast majority of those . . . excused

p. 16 hear his case.” As to the pool of prospective jurors who participated in the

ignore[d] the views expressed by those jurors that he ultimately ha[d] agreed to [did] not accurately portray the pool of prospective jurors and altogether “the ‘data’ selectively culled by the defendant in support of his renewed motion

the parties and who are qualified to serve on this case.” The State argued that

venue, or to strike the eighteen jurors who were fully vetted by the Court and the propriety of the Court’s earlier rejection of his request for a change of objective factual basis that even call[ed] into question, let alone undermine[d],

The State objected, arguing that the defendant had not provided “any

and change venue. Hillsborough-North] judicial district,” and asked the court to strike the panel

tiered selection process that all prospective jurors had to go through.” By

selection process, he [would] suffer actual prejudice by having his trial in [the

community pressures . . . were fully addressed by the exhaustive and multi-

fundamentally unfair.” The defendant argued that “in spite of the jury

State argued that the defendant’s concerns about “prejudice, prejudgment, and at all be influenced by any community reaction as to verdict or sentence.” The jurors “gave unequivocal assurances that their decisions in the case would not

Manchester Police, and so hostile to [him], that a trial in this judicial district is in questionnaires, indicates that this community is so aligned with the venue, arguing that “[a] review of actual juror comments, both to the Court and Following jury selection, the defendant renewed his motion for change of

jurors “acceptable to both sides to serve and hear the case” and that those

petition. jurisdiction and order the trial court to grant a change of venue. We denied the The defendant then petitioned this court to exercise its original

impartial jurors, although lengthy, resulted in the selection of prospective In addition, the State noted that the process of selecting fair and

Station.” they will enter through the backdoor, out of sight of the Manchester Police

service on this case.”

will park at an off-site location and be bused to the courthouse each day where

regarding the death penalty, both for and against, disqualified them from worry over community pressure, but for hardship or because their views by the Court for cause were not removed because of prejudgment of the case or

upon close inspection. The trial court noted that “during the trial, the jurors Manchester’s history” and that the names of the officers could be read only monument listed Officer Briggs “as one of four downed police officers in

readily visible from the courthouse. In addition, the court found that the courthouse, was a nondescript building and that the monument was not p. 17 N.H. CONST. pt. I, art. 17; see N.H. CONST. pt. I, art. 35 (“It is the right of

obtained. judicial district in which a fair and impartial trial can be

trial, and an impartial jury.” See N.H. CONST. pt. I, arts. 15, 17, 35; U.S. venue violated his State and Federal Constitutional rights to due process, a fair defendant contends that “[t]he trial court’s denial of [his] motions for change of

committed, the court shall direct the trial to a county or

community and the highly decorated police officer who protected it did.” The

impartial trial cannot be had where the offense may be defendant, and after a finding by the court that a fair and particular county or judicial district, upon motion by the

presumptive prejudice as to warrant a change of venue, the bond between the

that in which it is committed; except in any case in any

that “[i]f the volume and nature of the media coverage did not create such drawn from the community that suffered the loss of Officer Briggs.” He asserts remedied the prejudice inherent in holding a capital murder trial before jurors 17

ought to be tried in any other county or judicial district than life, liberty and estate of the citizen, that no crime or offense where they happened, is so essential to the security of the

2. Appellate Argument

procedures addressed the concern about publicity, they could not have

every citizen to be tried by judges as impartial as the lot of humanity will

In criminal prosecutions, the trial of facts, in the vicinity

receive a trial by a fair and impartial jury.” State v. Laaman, 114 N.H. 794,

3. Discussion of a Manchester police officer.” Further, he argues that “[e]ven if jury selection uniquely susceptible to the State’s pleas for the condemnation of the murderer amount of adverse publicity unprecedented in this State, but were also

the New Hampshire Constitution provides: 798 (1974); see Irvin v. Dowd, 366 U.S. 717, 722 (1961). Part I, Article 17 of

“It is well established that due process requires that an accused must objection.” original motion to change venue and “for the reasons set forth in the State’s selection,” in light of the law set out in its previous order on the defendant’s

CONST. amends. V, VI, XIV.

change of venue. He contends that “jurors not only had been exposed to an The defendant argues that the trial court erred in denying his motions for

renewed motion for “change of venue based on data collected during jury written order dated October 20, 2008, the trial court denied the defendant’s evidence presented in court.

p. 18 jurors to enable them to render a verdict based on the the publicity are such that they cannot be set aside by the the nature of the opinions formed by the jurors as a result of

jury trial. In this situation the defendant must show that

the defendant cannot or has not received a fair and impartial the publicity has infected the jurors to such an extent that prejudice. The second is actual prejudice which exists when

cases the defendant need not show actual identifiable

Constitution and rely upon federal law only to aid our analysis. See

that it will necessarily result in lack of due process. In such publicity by its nature has so tainted the trial atmosphere The first is inherent prejudice which exists when the

Petition of State of N.H. (State v. Johanson), 156 N.H. 148, 154 (2007). State v. Albee, 61 N.H. 423, 429 (1881). But, “upon proof that a fair trial obtain a change of venue upon proof that he cannot obtain a fair trial there.”

Constitutions. We first address the defendant’s claim under the State prejudices of a personal or partisan character. strangers, and perhaps among parties animated by

prejudice with regard to the accused’s right to a fair trial. Publicity about a case can result in two types of

rights: the right to be tried where the crime was committed and the right to

The defendant argues under both the State and Federal trial in a remote county, at a distance from friends, among Federal Constitutions).

absolute right to a change of venue.” Johanson, 156 N.H. at 154. “In

State v. Ball, 124 N.H. 226, 231-33 (1983).

As we have explained, “Part I, Article 17 grants a criminal defendant two

state and district wherein the crime shall have been committed”). because it would prevent the possibility of sending him for (1993) (change of venue principles are the same under the State and constitution as a privilege of the highest importance, Federal Constitution . . . .” Id.; see State v. Smart, 136 N.H. 639, 646 protection of the accused, was regarded by the framers of the this way . . . Part I, Article 17 provides the same level of protection as the

cannot be had in the place of proper venue, the defendant has an

shall enjoy the right to a speedy and public trial, by an impartial jury of the admit”); U.S. CONST. amend VI (“In all criminal prosecutions, the accused

This provision in our bill of rights, designed for the p. 19 19

venue was compelled. In Smart, we considered a claim of inherent prejudice

merely prominent.” Id. (quotation omitted). persons who are well known in the community, whether they be notorious or impartial jury.” United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. p. 19 1990) the defendant’s jury was drawn as to render it virtually impossible to obtain an

critical in finding presumptive prejudice.” Smart, 136 N.H. at 649; see United “[I]t is the adverse nature of the publicity, not merely its quantity, that is Never have we found inherent prejudice in a case such that a change of any outside influence, whether of private talk or public print.” Skilling v. case will be induced only by evidence and argument in open court, and not by

fundamental fairness, but only make impossible the timely prosecution of differences in the potential for prejudice would not advance the cause of inflammatory publicity about a case so saturated the community from which adverse press is crucial.” Smart, 136 N.H. at 649. “To ignore these real straightforward factual publicity about a celebrated case and inflammatory, extent of news stories that might influence a juror.” Id. (quotation and both extensive and sensational in nature). “Distinguishing between States v. Misla-Aldarondo, 478 F.3d 52, 58 (1st Cir. 2007) (publicity must be

adverse publicity “attends only the extreme case.” Skilling, 130 S. Ct. at 2915. “The theory of our trial system is that the conclusions to be reached in a (quotation and brackets omitted). A presumption of prejudice because of

U.S. at 728. “[P]rejudice may properly be presumed where prejudicial, 794, 798 ( p. 19 1975), amounts to a “huge . . . wave of public passion,” Irvin, 366 evaluation of any such claim of prejudice his own perception of the depth and inflammatory publicity immediately prior to trial,” Murphy v. Florida, 421 U.S. Therefore, presumptive, or inherent, prejudice may arise when a “barrage of court makes good sense.” Id. (quotation omitted). “The judge of that court sits United States, 130 S. Ct. 2896, 2913 (2010) (quotation and brackets omitted).

a. Pretrial Publicity (2013). unless it amounts to manifest error. Id.; see State v. Gribble, 165 N.H. 1, 18 brackets omitted). Accordingly, we will not reverse the trial court’s decision

in the locale where the publicity is said to have had its effect, and brings to his Laaman, 114 N.H. at 798 (citations omitted). The defendant argues that the

respect to pretrial publicity . . . primary reliance on the judgment of the trial entitled to special deference.” Smart, 136 N.H. at 653. “Particularly with A trial court’s determination of the impartiality of the selected jurors “is

constitutional rights. We address these arguments in turn. jury selection compel the conclusion that inherent prejudice denied him his adverse pretrial publicity and evidence of community sentiment reflected at without regard to the jurors’ own voir dire testimony concerning their

Court observed that “[w]hat the people [in the community] saw on their Id.

his confession. Rideau, 373 U.S. at 724. The police filmed the interrogation

the progress” of the case. Id. at 649 (quotation, brackets, and ellipses omitted).

Only once has the United States Supreme Court reversed a conviction

to select an impartial jury in the judicial district. Id. at 646. After reviewing court’s denial of the defendant’s motion for change of venue, the Supreme pervasive and prejudicial” as to establish a presumption that it was impossible concluded that “[m]ere familiarity . . . is not sufficient to presume prejudice.” parish with a population of approximately 150,000. Id. Reversing the trial We rejected the defendant’s argument that this publicity was “so broadcast the film to audiences ranging from 24,000 to 53,000 individuals, in a and, on three separate occasions before trial, a local television station

police interrogated the defendant in jail, without counsel present, and obtained impartiality. See id. at 647-48. In Rideau v. Louisiana, 373 U.S. 723 (1963), consisted of “straightforward, unemotional factual accounts of events and of accusatory in content, the overwhelming bulk of the material submitted” we concluded that, although some of the news pieces were “hostile in tone and

to extensive pretrial publicity that resulted in familiarity with her case,” but we had shown “that the community from which her jury was drawn was exposed was not sufficient to presume prejudice. Id. at 650. At most, the defendant In addition, we stated that exposure to facts that were not admissible at trial

defendant] teenage boys, along with commentary by a station reporter.” Id. “the massive amount of pretrial media material submitted by the defendant,” of pre-arrest interviews with the defendant, of her arrest and that of the [co-

649. defendant submitted in support of her motion for a change of venue. Id. at newspaper accounts and videotaped television news stories,” which the at 649-50. The pretrial publicity generated a “several-inch-thick volume of including one charging her with attempting to murder a potential witness. Id. The program also referred to three new indictments against the defendant, “unprecedented in this State.” Id. at 649. There, the defendant was charged based upon “enormous” pretrial publicity, characterized by some as

program consisted of “footage from earlier news broadcasts that included film 9 aired a special program titled “Anatomy of a Murder.” Id. at 649. The magazine. Id. Several days before jury selection was to begin, WMUR Channel coverage in Boston, Massachusetts, and national media outlets including Time 646. Numerous articles appeared in the local newspapers, in addition to news trial, there was “extraordinarily heavy and widespread media coverage.” Id. at husband. Id. at 643-45. In the aftermath of the crime and leading up to the with, among other things, being an accomplice to the first-degree murder of her instructive. In State v. Stubbs, 123 P.3d 407, 409 (Utah p. 20 2005), the seventeen- p. 21 One of the cases cited by the defendant in support of this argument is

fear of social ostracism as the cost of a mitigated verdict.” (Quotation omitted.)

and the trial. See, e.g., Skilling, 130 S. Ct. at 2916; Irvin, 366 U.S. at 725;

Rideau.” He asserts that “the publicity and community prejudice attendant to inherent prejudice unless the facts of the case approximate those involved in

media coverage reflect[ed] and perpetuate[d] the divide,” that there was an victim is so beloved by the community, the defendant so reviled, and the local the voir dire reinforced the conclusion that a fair and impartial jury could not require a change of venue. One factor is the lapse of time between the crime away from Manchester.” He asserts that this was a “rare case in which the jurors knew the victim or the prosecution witnesses. Id. The court found that whether there exists a presumption of community prejudice sufficient to prospective jurors knew members of the victim’s family and four of the seated courts in other jurisdictions consider a number of factors in determining community. The jury selection voir dire indicated that a large number of the year-old rape victim’s family was well-known and well-regarded in the offense. See State v. Biegenwald, 594 A.2d 172, 182 (N.J. 1991). victim or the defendant in the community and the nature and gravity of the

The defendant argues that we “should not rule that there can be no

‘interview.’” Id. at 727. Thus, as Smart and Rideau underscore, in order to comparison with that of Officer Briggs “weighed in favor of moving the case The defendant argues that his relative standing in the community in trial in the Hillsborough-North judicial district.” The defendant points out that

190, 227 (Neb. 2009). Other factors include the prominence of either the Mu’Min v. Virginia, 500 U.S. 415, 429 (1991); State v. Galindo, 774 N.W.2d community in the judicial district. See, e.g., Skilling, 130 S. Ct. at 2915; murder.” Id. at 725. As the Court explained, “to the tens of thousands of Hayes v. Ayers, 632 F.3d 500, 509 (9th Cir. 2011). Another is the size of the

community of people who had not seen and heard [the defendant’s] televised

examine a particularized transcript of the voir dire examination of the members the inquiry by other courts, established that the trial court erred by holding the the murder of Officer Briggs, in combination with factors deemed relevant to sense was [the defendant’s] trial — at which he pleaded guilty to murder.” Id.

troopers, admitting in detail the commission of the robbery, kidnapping, and so inflammatory that it is not possible to select an impartial jury. television sets was [the defendant], in jail, flanked by the sheriff and two state establish inherent prejudice, the nature of the publicity must be adverse and

of the jury, that due process . . . required a trial before a jury drawn from a

at 726. Therefore, the Court “d[id] not hesitate to hold, without pausing to

people who saw and heard it, [the interrogation and confession] in a very real p. 22 Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011), cert. denied, Briggs v.

tragic incident like this one. least have some knowledge of the facts of an important and methods, it would be difficult to find 12 jurors who do not at

instantaneously by an ever multiplying array of delivery

news of community events [is] disseminated virtually enhanced due process protection, an argument that he avers was not directly of jury service, since, in today’s “information age,” where case through media reports does not render them incapable

Third, the defendant contends that the State Constitution contains Simply because prospective jurors may have heard about a

Pennsylvania, 132 S. Ct. 267 (2011); see Laaman, 114 N.H. at 800. media coverage . . . .”).

Smart, many of whom knew little about the murder prosecution. Impartiality,

ultimately results in a charge of capital murder will engender considerable 432 U.S. 282, 303 (1977); see Mu’Min, 500 U.S. at 429 (“Any killing that peremptory challenges,” unlike the defendant in Smart. See Smart, 136 N.H. sufficient by itself to render a trial constitutionally unfair.” Dobbert v. Florida, prejudice. First, he points to the fact that he “exhausted all of his 24 knowledge in the community of either the crimes or the putative criminal is not issues involved.” Laaman, 114 N.H. at 800 (quotation omitted). “[E]xtensive however, does not require that “the juror be totally ignorant of the facts and The defendant next argues that his case is distinguishable from Smart

defendant or Officer Briggs. jurors who filled out questionnaires knew about his case, unlike the jurors in Second, the defendant argues that ninety-eight percent of the prospective

State v. Chick, 141 N.H. 503, 504 (1996). why exhausting his peremptory challenges requires a different conclusion. See at 648. The defendant, however, does not develop this argument or explain

and thereby compels the conclusion that he has established inherent

be found because the victim had so many contacts within the community. Id.

sentence less than death based upon the relative standing of either the community reaction to a verdict of not guilty on the capital murder charge or a voir dire showed an overriding concern on the part of prospective jurors with personally knew Officer Briggs’s family. Neither is there a suggestion that the Id. In the case before us, however, there is no suggestion that any seated juror family, the court held that “fairness can better be ensured in a different venue.” . . . .” Id. Given so many connections between the jurors and the victim’s with jurors who personally knew the victim’s family or prosecution witnesses at 412. “Indeed, as it was eventually composed, the jury was still populated for a presumption of prejudice.” Angiulo, 897 F.2d at 1181. We also agree

p. 23 that raises a concern about inherent prejudice.” See Commonwealth v. that the pretrial publicity was “not the kind of adverse inflammatory publicity

legal happenings in the capital case.” Factual coverage “undermines any claim

sequestered voir dire, and increased the number of peremptory challenges. Cf. than in Smart and its adverse nature was more pervasive. We have reviewed Fifth, the defendant argues that the volume of the publicity was greater few editorials about the case displayed hostility towards the defendant,” and

Briggs’s death and funeral, the defendant’s arrest for capital murder, and the consisting of “descriptions and depictions of [the] circumstances of Officer the trial court that the bulk of the articles and news clips were factual reports,

complete an extensive questionnaire, conducted thorough individual, about the defendant in a way that could be described as prejudicial,” that “very that it was not met in this case.

well as the victim’s twenty-one-year service as a police officer, his popularity in frequently mentioned the defendant’s confession and his criminal record, as change of venue. Regarding the nature of the pretrial publicity, we agree with Morales, 800 N.E.2d 683, 688 (Mass. 2003) (although media coverage

seated: it enlarged the pool of summoned jurors, required potential jurors to the defendant, took proper measures to ensure that an impartial jury was with the trial court that few of the articles and television clips “related facts is apparent that the trial court, well aware of the gravity of the charges facing without deciding, that this standard applies, as discussed below we conclude

prejudice,” Smart, 136 N.H. at 647 (quotation omitted), he need only “show a

change). He also argues that because in Smart we recognized that “[a] claim of

the materials submitted by the defendant in support of his initial motion for a

the same result applying “special consideration” to this issue. Furthermore, it reasonable likelihood that a fair trial was not had.” However, even assuming,

inherent prejudice does not require the defendant to show actual identifiable

prosecution distinguishes it from Smart.” See State v. Koedatich, 548 A.2d weighs in favor of a change of venue but does not by itself require a venue People v. Jenkins, 997 P.2d 1044, 1075 (Cal. 2000) (murder of police officer

change of venue analysis should be different in capital cases, we would reach capital cases liberally). Even assuming that the defendant is correct that the addressed in Smart. However, despite noting in Smart that the defendant 939, 968 (N.J. 1988) (trial courts should grant motions for change of venue in

cases warrant special consideration” and that “[t]he capital nature of this Fourth, the defendant asserts that “motions to change venue in capital

any arguments sufficient to persuade us otherwise. Constitution. Smart, 136 N.H. at 646. The defendant here does not set forth State Constitution are the same as those afforded under the Federal we nonetheless concluded that the protections afforded in this area under the “[did] not argue for a higher standard under the New Hampshire Constitution,” p. 24 Angiulo, 897 F.2d at 1181; see Busby v. Dretke, 359 F.3d 708, 726 (5th Cir.

sensationalistic coverage needed to support a presumption of prejudice.”

presented us with the “type of emotionally charged, inflammatory, nearly two years before jury selection. In short, the defendant has not “inflammatory” appeared during the weeks immediately following the murder,

the bulk of the publicity that contained material that may be characterized as

b. Jury Voir Dire

selection voir dire in this case “demonstrates that the pretrial publicity

Although the media coverage was extensive, it was primarily factual and

(Quotation omitted.) See Rideau, 373 U.S. at 726.

permeated the venire” and that “no amount of voir dire could have adequately

procedures designed to screen for qualified jurors.” He argues that the jury The defendant argues that we “must examine the voir dire and other

will encounter these stories cannot be cured by change of venue). internet is available in every judicial district, the risk that prospective jurors spectacle of Rideau’s dramatically staged and broadcast confession.” 2004).

approximately seventy articles appeared in the Union Leader in October 2006, courts have reached similar conclusions. See State v. Dwyer, 985 A.2d 469, and ha[d] diminished substantially since that time.” The trial court noted that

publicity will affect the juror’s deliberations.” Calley v. Callaway, 519 F.2d 184, 00098-04, 2007 WL 419574, at *1 (W.D. Va. Feb. 5, 2007) (because the we agree with the trial court that such facts were not “as unforgettable as the time between the publicity and the trial, there is a far less likelihood the held by the public at large); see also United States v. Cassel, No. CIVA 706CRcontained information about the defendant that might be inadmissible at trial, are addressed to a limited audience and do not necessarily represent the views to support a presumption of prejudice). Although some media reports 476 (Me. 2009) (website comments represent the views of a select group that

agree with the trial court’s evaluation of comments posted on-line. Other publicity . . . was at its heaviest immediately after the death of Officer Briggs impact of the publicity at the time the crime was committed”). Finally, we between the crimes and the defendant’s trial “diminished any presumptive Importantly, the record supports the trial court’s finding that “the effacing opinion); Gribble, 165 N.H. at 22 (passage of nearly a year and a half (lapse of time of over one year had a profound effect on the jury in softening or 208 (5th Cir. 1975) (en banc); see Patton v. Yount, 467 U.S. 1025, 1033 (1984)

motion for a change of venue. “Where there has been a substantial lapse of but fewer than ten appeared in May 2008 when the defendant filed his first of the type of emotionally charged, inflammatory, sensational coverage needed the community, and the memorials in his honor, those references fell far short court, the in-the-moment voir dire affords the trial court a p. 25 contrast to the cold transcript received by the appellate

candor, body language, and apprehension of duty. In unless it amounts to manifest error. Smart, 136 N.H. at 653.

formed some impression as to the merits of the case. This is

them, the prospective juror’s inflection, sincerity, demeanor, factors impossible to capture fully in the record — among jurors selected is entitled to “special deference” and will not be overturned for that judge’s appraisal is ordinarily influenced by a host of

any of those best qualified to serve as jurors will not have

As we have stated, a trial court’s determination of the impartiality of the guessing the trial judge’s estimation of a juror’s impartiality, exposed to the negative publicity this case generated.” arouse the interest of the public in the vicinity and scarcely communication, an important case can be expected to days of swift, widespread and diverse methods of

Reviewing courts are properly resistant to secondassurances of impartiality given by the remainder, many of whom had been situation possessed by trial judges.

be totally ignorant of the facts and issues involved. In these

Moreover, impartiality does not require that jurors

Manchester police officer or expressed a case-specific opinion cast doubt on the judgments lack the on-the-spot comprehension of the that roughly 60% of the jurors who came into court either had contact with a questionnaires expressed an opinion on [his] guilt or sentence” and “the fact

responses to questions).

Skilling, 130 S. Ct. at 2918 (citation omitted); see Mu’Min, 500 U.S. at 424

media’s impact on jurors should be mindful that their The defendant asserts that “nearly half of the jurors who completed

credibility by relying upon judge’s own evaluations of demeanor evidence and of (trial judge’s function at voir dire is to reach conclusions as to impartiality and

member’s fitness for jury service. more intimate and immediate basis for assessing a venire

Appellate courts making after-the-fact assessments of the significant number of prospective jurors had a personal connection to the case. exceptionally high percentage of the venire knew about the case” and a other courts that have “deemed it significant that, as in this case, an

Manchester and its environs.” In support, the defendant cites decisions from addressed the prejudice attendant to trying the case before jurors drawn from p. 26 26

Laaman, 114 N.H. at 800 (quotation omitted). “In order for the reviewing court aside earlier prejudice, as the voir dire disclosed. They retained their fixed verdict based on the evidence presented in court. opinions that they could not judge impartially the guilt of the defendant.” Id.

opinion. Id. at 1032-34. Thus, the relevant question was “not whether the

persuaded again.” Id. at 1034. guilt. Murphy, 421 U.S. at 802-03. As the Court reasoned, although “[t]his some time, they had formed an opinion as to the defendant’s guilt. Id. at 1029- dire resulted in selecting those who had forgotten or would need to be twenty of seventy-eight potential jurors due to opinions as to the defendant’s opinions, and were disqualified. But the testimony suggest[ed] that the voir

at 1035. The Court recognized that “[n]ot all members of the venire had put juror can lay aside his impression or opinion and render a community remembered the case, but whether the jurors . . . had such fixed

no animus of their own.” Id. at 803. peaked years before and that time had helped “sooth[e] and eras[e]” community against [the defendant] as to impeach the indifference of jurors who displayed The Court concluded that the adverse publicity and community outrage had publicity had presumptively prejudiced the outcome of his case. Id. at 1031. 30. Nevertheless, the Supreme Court rejected the defendant’s claims that

and eight of the fourteen jurors and alternates actually seated admitted that, at appeared several months before trial and the trial court excused for cause only that they would carry an opinion as to the defendant’s guilt into the jury box Patton, 467 U.S. at 1029. Seventy-seven percent of potential jurors admitted for murder and his confession, information that was inadmissible at trial. In Patton, the pretrial publicity revealed the defendant’s prior conviction be to establish an impossible standard. It is sufficient if the the presumption of a prospective juror’s impartiality would innocence of an accused, without more, is sufficient to rebut denying the defendant his constitutional right to a fair trial.” United States v. must find that the publicity in essence displaced the judicial process, thereby person, . . . it by no means suggests a community with sentiment so poisoned community as to render impossible the seating of an impartial jury, the court may indeed be 20 more than would occur in the trial of a totally obscure

presumed prejudice claim because the largely factual publicity in the record media coverage in several cases. For example, in Murphy, the Court rejected a The Supreme Court has rejected presumed prejudice claims based upon

McVeigh, 153 F.3d 1166, 1181 (10th Cir. 1998). existence of any preconceived notion as to the guilt or particularly true in criminal cases. To hold that the mere

to reach a presumption that inflammatory pretrial publicity so permeated the dismissed for hardship or for their views about the death penalty. See p. 27 Of the fifty-six prospective jurors dismissed for cause, most were

familiar with the case did not, in itself, mandate a change of venue.

note that the defendant agrees that the fact that most prospective jurors were

years earlier, or were too busy in their lives to pay attention to the news. We little about the case, had paid attention only when the crime occurred two were questioned about their exposure to media coverage said that they knew

in the individual voir dire were dismissed because they had formed some

the court and the oath given by the juror); see also Morgan v. Illinois, 504 U.S.

many of the prospective jurors had prior knowledge about the case, most who

opinion concerning the defendant’s guilt. This rate of disqualification is too low

the record suggests that only ten of the 114 prospective jurors who participated that they lacked impartiality for reasons unrelated to the defendant. Indeed, 719, 721, 729 (1992). Others were dismissed because their responses revealed

performance of his or her duties in accordance with the instructions given by the juror’s views on the death penalty prevent or substantially impair the characterizes as a community “demonstrably hostile toward [him].” While punishment, a trial court is required to excuse a prospective juror for cause if Wainwright v. Witt, 469 U.S. 412, 424 (1985) (with respect to capital We have reviewed the extensive voir dire testimony of the prospective

should not be believed,” Patton, 467 U.S. at 1031, “juror exposure to jurors in this case and have found no evidence of what the defendant

impartially the guilt of the defendant.” Patton, 467 U.S. at 1035. possessing a belief of his guilt.” Id. at 728. [the defendant’s] trial had such fixed opinions that they could not judge not whether the community remembered the case, but whether the jurors at ignorance.” Skilling, 130 S. Ct. at 2914-15. Thus, “[t]he relevant question is necessarily produce prejudice, and juror impartiality . . . does not require twelve jurors actually seated “thought [the defendant] was guilty.” Irvin, 366 defendant of due process.” Murphy, 421 U.S. at 799. “Prominence does not the crime with which he is charged [do not] alone presumptively deprive[ ] the information about a . . . defendant’s prior convictions or to news accounts of

prejudice in a community that the jurors’ claims that they can be impartial While “adverse pretrial publicity can create such a presumption of By contrast, in Irvin, an examination of the jury selection process

in which two-thirds of the members admit, before hearing any testimony, to trial’s venue, stating that the defendant was entitled to a jury “other than one U.S. at 727. The Supreme Court vacated the trial court’s refusal to change the

ranging in intensity from mere suspicion to absolute certainty”; and (3) eight of of prospective jurors, when asked, “entertained some opinion as to guilt — cause due to fixed opinions as to the guilt of the defendant; (2) ninety percent revealed that: (1) the trial court had excused 268 of 430 prospective jurors for p. 28 A. I absolutely understand.

Q. — you must presume him to be innocent?

A. I understand.

innocent in this case? Do you understand that —

Q. All right. Do you — can you presume the defendant

fact.

A. Yeah. I believe I could set aside opinion for, you know,

hear here in the courtroom? decide this case based only on the evidence here that you case or any opinions that you’ve heard expressed, . . . and

Q. Okay. Can you set aside anything you know about this

when it had occurred a couple of years ago that I formed my

newspaper accounts and hearing opinions of others from

uncover any bias or prejudice among the jurors.” State v. Addison, 160 N.H. charged demonstrates that the trial judge’s questions were sufficient to seated admitted that they had already formed an opinion about [the crime]

A. The basis would be from basic recollection of probably

Q. Okay. And can you — what is the basis of your opinion?

guilty). Further, “[t]he fact that several members of the venire who were not indicated that he had formed an opinion of the defendant’s guilt. See Hale v. crimes prior to jury selection). Most importantly, only one of the seated jurors

knowledge about the crime. See Gribble, 165 N.H. at 26-28 (prejudice not Of the eighteen jurors selected to sit on the case, only ten had even basic

juror as follows: Gibson, 227 F.3d 1298, 1333 (10th Cir. 2000). The trial court questioned that opinion of the defendant’s guilt admitted that they felt the defendant was

presumed even though all sixteen seated jurors reported knowing about the

to presume prejudice in the community. See Misla-Aldarondo, 478 F.3d at 59

493, 499 (2010).

(prejudice presumed where fifty-seven of ninety jurors questioned about their presume prejudice); People v. Botham, 629 P.2d 589, 600 (Colo. 1981) (thirteen out of eighty-four jurors excused for possible bias is too low to did not challenge this juror for cause. See Casey v. Moore, 386 F.3d 896, 903,

p. 29 approach the trial “with a clean slate [and] with an open mind.” The defendant During questioning by defense counsel, the juror agreed that he would

particular charge.

A. I believe the verdict would have to be not guilty in that

would your verdict be in that case?

a fair trial by a panel of impartial, ‘indifferent’ jurors.” Groppi v. Wisconsin, Prosecutors didn’t prove it beyond a reasonable doubt, what “In essence, the right to a jury trial guarantees to the criminally accused

would not be a fair and impartial juror. See Laaman, 114 N.H. at 801. In negative when asked by the trial court whether there was any reason he or she

obviously aware of the extensive pretrial publicity based upon the newspaper

probably, but they didn’t prove — the State — the you know, that the defendant probably killed Officer Briggs, the record.” Q. Okay. So if, as a juror, you found that the State proved,

Further, each of the eighteen seated jurors answered, under oath, in the

opinion on voir dire that she was guilty, and, more importantly, none sat on

400 U.S. 505, 509 (1971) (quotation omitted). In this case, the trial court,

receive a fair trial simply is an unfair characterization and not supported by prejudiced against him and indicative of a hostile venue in which he [could not] “[t]he defendant’s attempt to portray the vast majority of prospective jurors as publicity about the case). her jury over her objection. Id. Likewise, here, we agree with the State that excused as a result of preconceived notions of his guilt resulting from pretrial 648. We declined, noting that no member of the defendant’s jury expressed an defendant’s claims of jury bias); State v. Manning, 885 So. 2d 1044, 1066 (La. “disregard the jurors’ voir dire statements of impartiality.” Smart, 136 N.H. at publicity surrounding her as equivalent to that in Irvin” and asked this court to guilty based upon extensive media reports but assured court on voir dire that the part of the jurors who decided her case, [sought] to characterize the pretrial Smart, the defendant, “unable to point to any identifiable, actual prejudice on

A. I understand.

beyond a reasonable doubt?

2004) (defendant did not identify a single juror the trial court should have

she could decide the case based upon evidence at trial, court dismissed

909 n.8 (9th Cir. 2004) (where juror expressed opinion that the defendant was

this charge unless and until the State proves his guilt Q. And do you understand that he cannot be convicted of support this characterization. See Murphy, 421 U.S. at 800; Bell v. State, 938 p. 30 its case to jurors in that community,” the jury selection record does not

who protected it” such that “the government had a palpable advantage in trying

to the “bond between the community and the highly decorated police officer “heightened risk of prejudice in the community in which the trial occurred” due publicity or upon the juror voir dire and that the defendant has not shown a Although the defendant attempts to characterize his case as involving a

strikes); cf. State v. Nelson, 103 N.H. 478, 484 (1961) (fact that it took several exposure to pretrial publicity, and increased the number of peremptory

denial of the defendant’s motions for a change of venue based upon pretrial Accordingly, we hold that there was no manifest error in the trial court’s

voir dire generated approximately 2,800 pages of transcript testimony. See gave the court a sturdy foundation to assess fitness for jury service.” Skilling, at 512. questionnaires regarding jurors’ backgrounds, opinions, and sources of news, second-guess the trial court’s better-positioned assessment.” Hayes, 632 F.3d gauge demeanor and credibility, coupled with information from the S.W.2d 35, 46 (Tex. Crim. App. 1996). Here, “[t]he record gives us no basis to

questionnaire, conducting individual, sequestered voir dire during which

normal size, mailed questionnaires to prospective jurors inquiring about

130 S. Ct. at 2923.

300 prospective jurors reported to the courthouse for jury selection, and the

insure that an impartial jury was selected”). “This face-to-face opportunity to weeks to select a jury indicates “the extreme care taken by the Trial Court to that juror voir dire would be of paramount importance in determining whether usual jury pool, requiring prospective jurors to complete a forty-one page to assure the selection of an unbiased jury, including assembling a larger than F.3d 799, 804 (8th Cir. 2001) (court assembled a jury pool three times the As we have already noted, the trial court took many precautions designed prospective jurors, and 1,186 pages of testimony); United States v. Blom, 242 Patton, 467 U.S. at 1027 (voir dire took ten days, seven jury panels, 292

of a change of venue is a searching voir dire); Ritchie v. Rogers, 313 F.3d 948, qualification and selection process took approximately seventeen days, over the number of peremptory challenges for each side. The extensive juror counsel for the parties were each allowed time for questioning, and increasing

the defendant in support of his initial motion for a change of venue, recognized articles and television reports relating to the murder, which were submitted by

Casey, 386 F.3d at 910. cautiously, assessing the jurors’ credibility, demeanor, and potential for bias.” 956 (6th Cir. 2002). Accordingly, the trial court “proceeded carefully and

599 F.3d 215, 234 (2d Cir. 2010) (the key to determining the appropriateness a fair and impartial jury could be impaneled. See United States v. Sabhnani, p. 31 2. Appellate Argument constitutional right to due process. See N.H. CONST. pt. I, art. 15. Third, he peremptory challenges was reasonable.

that the trial court’s alleged violation of RSA 606:3 and :4 also violates his state ruled that granting the defendant twenty-four, and the State twelve, peremptory challenges for each party by fifty percent. Second, he contends over the usual twelve jurors, the court must also increase the number of

established by statute.” The trial court rejected the parties’ joint proposal and proportion of peremptory challenges with respect to the number of jurors . . . in this case, the trial court selects six alternate jurors, a fifty percent increase defendant argued, however, that RSA 606:3 and :4 entitled him to a “certain 3. Discussion

we first address the defendant’s statutory argument. See State v. Wamala, 158

the increase in the total number of jurors selected.” He contends that when, as account for alternate jurors was a matter for the court’s discretion. The challenges to him and twelve to the State.

Because we decide cases on constitutional grounds only when necessary,

“increase the number of each party’s peremptory challenges in proportion to position that the number of additional peremptory challenges to be awarded to three reasons. First, he asserts that RSA 606:3, I, required the trial court to discretion because it failed to explain why it allotted twenty-four peremptory The defendant argues that the trial court’s decision constituted error for additional peremptory challenges to grant, it unsustainably exercised that argues that, even if the trial court had the discretion to decide how many

expressed reservations about the parties’ joint proposal, and the State took the September 23, 2008, during the second day of jury selection, the court thirty peremptory challenges to the defendant and fifteen to the State. On Federal Constitution as we do under the State Constitution. See Skilling, 130 Constitution in these circumstances, we reach the same conclusion under the entitled to twenty and the State was entitled to ten peremptory challenges. See select eighteen jurors, including six alternates. By statute, the defendant was Before jury selection, the trial court informed counsel that it intended to

1. Background

RSA 606:3, I, :4, I (2001). The parties jointly proposed that the court allot Constitution affords the defendant no greater protection than does the State reasonable likelihood that he was denied a fair trial. Because the Federal

B. Peremptory Challenges

S. Ct. at 2912-15; Smart, 136 N.H. at 646. alternate jurors. See State v. Addison, 161 N.H. 300, 306 (2010) (“We will

p. 32 number of peremptory challenges a trial court may grant when selecting

reasonable interpretations, we must review legislative history to determine the The defendant contends that because the statutes are subject to two

allowed each party when the jury panel will include alternate jurors.

whether and by how much to increase the number of peremptory challenges jurors.” Under this interpretation, the trial court has the discretion to decide measure of discretionary control the parties should have over the selection of

each party shall have, but does not express a precise judgment about the

“allocation of twenty and ten peremptory challenges sets a minimum number Under the other interpretation, according to the defendant, the statutes’

challenges to fifteen.

peremptory challenges to thirty and the number of the State’s peremptory

the court intends to select eighteen jurors, it must increase the number of his the increase in the total number of jurors selected.” Thus, he asserts that if to “increase the number of each party’s peremptory challenges in proportion to

respectively shall have in the selection of the jurors,” which requires the court

specific legislative intent in regards to the discretionary control the parties twenty and ten peremptory challenges” in RSA 606:3, I, and :4, I, “bespeaks a According to the defendant, under one interpretation, the “allocation of

of the statutes.”

challenges in a capital case to twenty for the defendant and ten for the State in

that in doing so “the court had to choose between two possible interpretations the number of peremptory challenges “to some extent,” the defendant contends ten, when alternate jurors are selected.” Because the trial court did increase

history, he contends, reveals that the legislature set the number of peremptory

ambiguous or subject to more than one reasonable interpretation.”). This

jurors,” such silence should not be interpreted “as prohibiting a court from granted when a trial court decides to empanel a given number of alternate a system for determining the number of additional peremptory challenges to be

review legislative history . . . to aid our analysis if the statutory language is

The defendant argues that although neither statutory provision “specifies

jurors “in any other case.” See RSA 606:3, I-III (2001). RSA 606:4 provides capital murder case, fifteen jurors in a first-degree murder case, and three

fifteen in a first-degree murder case; and three in “any other case.” See RSA

addition to challenges for cause . . . , peremptorily challenge” twenty jurors in a N.H. 583, 592 (2009). RSA 606:3 provides that criminal defendants “may, in

challenges, in addition to challenges for cause”: ten in a capital murder case; that the State “shall be entitled to the following number of peremptory capital cases, while the State was allotted none. See GL 261:9, :10. In the

p. 33 legislative history is warranted. See Addison, 161 N.H. at 306. However, we See Laws 1941, 104:1. Therefore, we disagree with the defendant that the 1941, when the legislature first enacted a statute regarding alternate jurors.

instance, the defendant was allotted two peremptory challenges in all nontypes of criminal cases has varied significantly over the years. In 1878, for has remained the same since 1878, the number of such challenges in other

allowed in a case with alternate jurors, and, therefore, that considering

challenges allowed each party in criminal cases, including changes made after

than one reasonable interpretation as to the number of peremptory challenges We agree with the defendant that RSA 606:3 and :4 are subject to more the legislature has made numerous changes to the number of peremptory alternate jurors selected.” challenges in capital cases set forth therein. However, as the State points out, in the number of seated jurors narrowly focuses upon the ratio of peremptory

that the defendant has placed upon them.” The State observes that although unambiguous, argues that their legislative histories “cannot support the weight The State, in addition to arguing that RSA 606:3 and :4 are plain and legislative history of RSA 606:3 and :4 demonstrates legislative intent that the

number of peremptory strikes to be increased in proportion to the number of increase in the number of peremptory challenges in proportion to the increase remain in place today. See Laws 1993, 143:1, :2. According to the State, The defendant’s interpretation of RSA 606:3 and :4 as requiring an

challenges in a first-degree murder or capital case. See Laws 1974, 34:5, :6. find the State’s interpretation of that history persuasive.

must grant the defendant thirty peremptory challenges, and the State fifteen.” peremptory challenges in all non-capital cases. See Laws 1919, 40:1. In 1974, when a court intends to select eighteen jurors for the trial of a capital case, it that “[p]rinciples of statutory interpretation . . . require this Court to hold that,

“there is simply no basis to conclude that the legislature plainly intended the

Finally, in 1993, the legislature enacted the versions of RSA 606:3 and :4 that

the legislature allotted the defendant twenty, and the State ten, peremptory

early twentieth century, both the defendant and the State were allotted three

jury numbering twelve persons, without alternates.” Accordingly, he asserts

the late nineteenth century, see GL 261:9, :10 (1878), long before the

“contemplated that those peremptories would be exercised in the selection of a peremptory challenges for each party in a capital case, it must have Laws 1941, 104:1. Thus, he argues, when the legislature set the number of legislature enacted a statute regarding the selection of alternate jurors, see court, but even if it had been preserved, we deem it unavailing. See State v. p. 34 observes, the defendant did not preserve this argument by raising it in the trial constituted an unsustainable exercise of discretion. As the State correctly

thirty peremptory challenges to the defendant and fifteen to the State

explain its rationale for rejecting the parties’ joint proposal that the court allot We also reject the defendant’s contention that the trial court’s failure to

assertion that his statutory rights were violated.

analytic aid. See Addison, 161 N.H. at 306. When RSA 500-A:13, I, was first provide no guidance on this matter, and look to legislative history as an

the defendant’s due process argument, which is premised solely upon his court’s decision did not violate any statutory command, we necessarily reject decision to select six alternate jurors. In light of our conclusion that the trial

proportional number of peremptory challenges based upon the trial court’s We, therefore, hold that the defendant was not statutorily entitled to a

:4 set the minimum number of peremptory challenges allotted to each party. If A:13, I, as well as pertinent legislative history, we conclude that RSA 606:3 and peremptory challenges to be awarded when alternates are chosen, and the Thus, when we consider RSA 606:3 and :4 in conjunction with RSA 500- Contrary to the defendant’s assertion, the trial court had no obligation to The defendant argues that the statutes do not suggest the number of Eaton, 162 N.H. 190, 195 (2011); State v. Winward, 161 N.H. 533, 542 (2011). decide whether to select alternate jurors at all.

party’s allotment of peremptory challenges, and, if so, by how many. the discretion under RSA 500-A:13, I, to determine whether to increase each

challenges accorded each party to be a matter for the trial court’s discretion.

expresses the legislature’s intent to vest the trial court with the discretion to deleted from the statute. See Laws 1977, 473:2. We interpret the deletion of the same manner as the regular jurors.” RSA 500-A:13, I (2010). This statute at the direction of the presiding justice, be drawn, selected and empaneled in

the trial court decides that the jury panel will include alternate jurors, it has

this language to mean that the legislature intended the number of peremptory

Laws 1941, 104:1 (predecessor to RSA 500-A:13). In 1977, this language was alternate juror.” Laws 1971, 456:10 (originally codified at RSA 500-A:23); see justice that there is reason for the selection of alternate jurors, the jurors shall, enacted, it entitled each party to “one peremptory challenge as to each

exercised only for a jury of twelve persons, without alternates. number of peremptory challenges provided in RSA 606:3 and :4 would be

the superior court of any civil or criminal case, when it appears to the presiding Further, the statute concerning alternate jurors provides: “In the trial in not warranted, and the prospective juror answered, “Yes.” p. 35 issues” could be a reason that he might determine that the death penalty was would. To follow up, the court asked whether evidence of “mental health

“give a fair evaluation” to mitigating evidence, to which he responded that he

of questions about whether the prospective juror would “fully consider” and would “keep an open mind” throughout the trial. The State then asked a series specific questions, Juror A-8 indicated that he understood and affirmed that he

mitigating factors before determining the sentence. In response to the court’s

sentence selection phase he would engage in a balancing of aggravating and understood the phases of a capital murder trial and understood that at the The trial court asked several questions to determine whether Juror A-8

death penalty.”

intentionally did it with no back up motive, then no. Then he should get the parole. In response, the prospective juror stated that “if the facts show that he sentence the defendant to death or life imprisonment without possibility of

“types of things” he would want to know in order to make a decision whether to

example, defense counsel asked Juror A-8 under those circumstances what there is no insanity defense, there’s no alibi, [and] there’s no accident.” For of capital murder and in which “he acted purposely, there was no self-defense,

questions based upon a hypothetical case in which a defendant is found guilty

In questioning prospective Juror A-8, defense counsel asked a series of

concluding that neither prospective juror held views that warranted dismissal.

During the voir dire, the defendant moved to dismiss two of the

question each prospective juror.

death penalty: Jurors A-8 and B-15. The trial court denied both motions,

counsel for both the defendant and the State were allowed equal time to

participated in individual, sequestered voir dire. The trial court explained to

prospective jurors on the ground that each held disqualifying views about the

phases and the applicable law. Following this questioning by the trial court, questioned each prospective juror as to his or her understanding of these explain its reasoning on the record. See State v. Silva, 158 N.H. 96, 102 (2008) each the phases of a death penalty case and certain principles of law, and

Selection Review) of this opinion, approximately 114 prospective jurors As outlined in some detail at the beginning of Part V (Venue and Jury

1. Background

C. Challenges For Cause

(we assume trial court made all findings necessary to support its decision). p. 36 During the voir dire of prospective Juror B-15, the prosecutor explained could consider mitigating evidence of the “person’s background.”

that the State presented. The prospective juror stated affirmatively that she Defense counsel exercised a peremptory challenge to strike Juror A-8. mitigating factors the defense presented as she would the aggravating factors questioning, asking her whether she would give as great a consideration to the

impair . . . the performance of his duties as a juror. know what that would be.” The trial court followed up with additional

chosen as a juror. So I don’t find that his views substantially you could present me something very convincing, I probably would. But I don’t the appropriate sentence in such a case, the prospective juror stated that “if a sentence of life imprisonment without parole, as opposed to death, would be

think that he would follow the law in the case if he were . . . . I wanted to be sure that he understood the law and I it was . . . set forth to him directly, I think that he answered incapacitated. Asked whether she could envision a circumstance under which

of confusing and I think he had a hard time with it, but when a wanton, purposeful murder and the defendant was not mentally hypothetical case in which the defendant had been found guilty of committing Defense counsel asked her a series of questions based upon a

sincere in trying to set forth his views. I think the law is kind answers were consistent with the law. I think he’s very asked . . . more straightforwardly, I think that . . . his

time with . . . just conceptualizing, but . . . when he was sentence selection phase of trial with an open mind.

[T]his man is not an abstract thinker. I think he has a hard follow the law and would weigh the aggravating and mitigating factors at the of the relative burdens of proof, Juror B-15 affirmed that she would accept and The trial court denied the defendant’s motion, finding: hold them both “to the same standard.” Upon further explanation by the State

very firm on the fact that he would follow [the court’s] instructions in the case.” She responded that she would accept the law, but that in her mind she would

consider and could consider the mitigating evidence in the case and he was and asked the prospective juror whether she would be able to apply that law. objected, contending that the prospective juror “clearly said that he would doubt, while the defense had a lower standard of proof for mitigating factors, substantially interfere with his ability to consider mitigation.” The State to her that the State had to prove the aggravating factors beyond a reasonable

his “feelings about the death penalty are so ingrained that they would Defense counsel moved to dismiss Juror A-8 for cause on the basis that p. 37 2. Appellate Argument

using his last one after the seventeenth juror was selected.

The defendant exhausted all twenty-four of his peremptory challenges,

The defendant exercised a peremptory challenge to strike Juror B-15.

think she would be a very fair juror to both sides.

would lightly, in any way, impose the death penalty. And I the death penalty. This is not going to be someone who . . . quite emotional when she talked about actually imposing

would vote for it. The other thing is, I noticed that she got

defendant is very deserving of the death penalty before she She was clear that the State must prove to her that the

The trial court agreed with the State, and added:

consider them if proven. to commit to how much weight those are. She said she would

that those may not weigh very heavily. But we can’t ask her

control her. And I think that that’s where her . . . mindset is

equation is completely in her discretion, and the law does not proven, how much weight she assigns to those in the burden of proof in proving the facts. But once the facts are

clearly that she would not hold the defense to a higher

factors and weight of those factors . . . . [S]he said very had available.” Recognizing that “there is no constitutional right to a language, but she understood the difference between proof of confusion here, and it’s clear that English isn’t her first

“inequitably deprive[d] . . . of peremptory challenges [he] would otherwise have very deserving of the death penalty . . . . I think the

twenty-four peremptory challenges to correct the trial court’s errors, he was 500-A:12, II (2010). He also argues that because he had to expend two of his that . . . she had to be convinced that [the defendant] was his statutory right to excuse for cause any juror who is “not indifferent.” RSA to impose the death penalty was . . . a very weighty decision, The defendant argues that the trial court’s denial of his motions violated This juror made it very clear from the outset that the decision

State objected, stating: able to follow this Court’s law in spite of her stated willingness to do so.” The “she presented very strongly as a juror who is at a very high risk . . . to not be

to accept and follow the burden of proof on mitigating factors” and because Defense counsel challenged the juror for cause, questioning her “ability p. 38 Patton, 467 U.S. at 1038 n.14. The trial court’s determination of a juror’s

utterances comprehensible. questions and answers can make confused and conflicting impartiality may be overturned only when it amounts to manifest error. Smart,

entitled . . . to ‘special deference.’” p. 38 Patton, 467 U.S. at 1038; see State v. Smart, what a potential juror is saying. Any complicated voir dire determining juror credibility, but also in simply understanding

136 N.H. at 653; see Mu’Min v. Virginia, 500 U.S. 415, 428 (1991). “[T]he proceeding will reveal. Demeanor, inflection, the flow of the 136 N.H. 639, 653 (1993). Accordingly, a trial court’s finding of juror

Ct. at 2918. For these reasons, “the trial court’s resolution of such questions is demeanor, candor, body language, and apprehension of duty.” Skilling, 130 S. fully in the record — among them, the prospective juror’s inflection, sincerity, Demeanor plays a fundamental role not only in impartiality “is ordinarily influenced by a host of factors impossible to capture

juror in accordance with his instructions and his oath.” Wainwright v. Witt, views would prevent or substantially impair the performance of his duties as a unfamiliar terms, as a reading of any transcript of such a calls upon lay persons to think and express themselves in

has the right to be tried by a fair and impartial jury.” State v. Addison, 160 “It is a fundamental precept of our system of justice that the defendant 2896, 2917 (2010). indifferent,” RSA 500-A:12, II. See State v. Wamala, 158 N.H. 583, 592 (2009). Yount, 467 U.S. 1025, 1038 (1984); see Skilling v. United States, 130 S. Ct. violated his statutory right to excuse for cause any juror who is “not essentially one of credibility, and therefore largely one of demeanor.” Patton v. We first address the defendant’s argument that the trial court’s decisions 469 U.S. 412, 424 (1985) (quotation omitted). “[T]he determination is

3. Discussion A:12, II. The question of indifference is determined by “whether the juror’s XIV. juror who is not indifferent must be excused from the trial of a case. RSA 500- N.H. 493, 497 (2010) (quotation omitted); see N.H. CONST. pt. I, art. 35. A

statutory right to peremptory challenges, see RSA 606:3, I (2001), by requiring peremptory challenge,” the defendant contends that the trial court violated his

N.H. CONST. pt. I, arts. 15, 16, 18, 33, 35; U.S. CONST. amends. V, VI, VIII, by an impartial jury, and freedom from cruel and/or unusual punishment. See decision violated his state and federal constitutional rights to due process, trial him to use two of them curatively. Further, he asserts that the trial court’s seemingly contradictory ways. See id. at 1038-39. This is because lay persons

p. 39 It is not uncommon for jurors to express themselves in ambiguous and

sense, that she could accept them, and that she could follow the law.

State and the court she unequivocally stated that the differing burdens made case was the true and honest one.” White, 431 F.3d at 541. Despite the fact

For example, in White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), as the court

We conclude that the transcripts of the entire voir dire of prospective proof for aggravating and mitigating factors, upon further clarification by the the death penalty, and that she “believed that her anticipated outcome of the although her testimony indicates some initial confusion about the burdens of take it into account when deciding the case. As to prospective Juror B-15,

for cause. The cases present facts that are materially different from those here. conclusion that either of these prospective jurors should have been dismissed We are not persuaded that the cases cited by the defendant compel a

appeared to have been least influenced by leading.” Id. choose to believe those statements that were the most fully articulated or that determine competency to serve impartially. The trial judge properly may mitigating factors.” jurors would feel similarly, that she “relished” taking part in the imposition of that death was an appropriate punishment and believed that the rest of the that he would consider all of the evidence presented to him, and that he would characterized the testimony, the juror stated that she had already determined

understands this, and under our system it is that judge who is best situated to to apply the differential burdens of proof with regard to aggravating and their education and experience vary widely.” Id. at 1039. “Every trial judge considering mitigating evidence,” and because “she demonstrated an inability because “[p]rospective jurors represent a cross section of the community, and considered mitigating was so high as to effectively render her incapable of evidence such as the defendant’s difficult upbringing and his mental health, examination tactics that frequently are employed” on voir dire examination and “may never have been subjected to the type of leading questions and cross-

prospective Juror B-15 both because “her threshold for what evidence she further questioning he unequivocally stated that he would consider mitigating consider mitigating evidence at the sentence selection phase of trial, upon A-8’s testimony indicates some initial confusion as to whether he could be impartial. See Patton, 467 U.S. at 1038-40. Although prospective Juror Jurors A-8 and B-15 support the trial court’s findings that each of them would conclusion that the jurors here would be impartial.” Patton, 467 U.S. at 1038. question is whether there is fair support in the record for the [trial court’s]

impaired in his ability to consider mitigating evidence.” He challenges The defendant contends that prospective Juror A-8 “was substantially her] oath.” Wainwright, 469 U.S. at 424; see Adams v. Texas, 448 U.S. 38, 45 defendant does not argue that the jury that did sit on his case was not p. 40 her] duties as a juror in accordance with his [or her] instructions and his [or

against each of these prospective jurors, neither individual sat on his jury. The juror held views that would “substantially impair the performance of his [or Moreover, because the defendant exercised a peremptory challenge

evidence. The record also supports the trial court’s determination that neither 40 explained by the court and expressed a willingness to consider any mitigating solely upon his assertion that his statutory right was violated. prospective Jurors A-8 and B-15 each exhibited an ability to accept the law as

and life imprisonment, and indicated at the end of voir dire that the death

necessarily reject the defendant’s constitutional argument, which is premised The record in this case supports the trial court’s findings that conclusion that the trial court’s decision did not violate RSA 500-A:12, II, we cause any juror who is “not indifferent.” RSA 500-A:12, II. In light of our juror bias bears the burden to demonstrate actual prejudice.”); see also Ross v. 143 N.H. 363, 366 (1999) (“Generally, in a criminal case, a defendant alleging in this case.” State v. Goodale, 144 N.H. 224, 228 (1999); see State v. Rideout, negatively when asked whether her mind was open to both the death penalty impartial. “Accordingly, the right of trial by an impartial jury is not implicated

fair trial. Id. at 541-42.

653, and thus did not impair the defendant’s statutory right to excuse for dismiss for cause did not constitute manifest error, see Smart, 136 N.H. at (1980). We hold that the trial court’s denial of the defendant’s motions to death penalty if the defendant was convicted of rape-murder, responded

failure to excuse the juror resulted in a violation of the defendant’s right to a prior to trial that he will not weigh evidence in mitigation is not impartial.” Id.; regard to [the juror’s] ability to be a fair and impartial juror,” the trial court’s reveal[ed] a series of highly troubling and contradictory statements . . . with

penalty should be imposed once the defendant’s guilt was established).

prospective juror for cause who stated that she was disposed to impose the see also State v. Maxie, 653 So. 2d 526, 537-38 (La. 1995) (error not to dismiss

345 S.E.2d at 838. As the court stated, “A juror who has made up his mind He would listen to the evidence, but it would not change his opinion.” Pope, follow the law, the court held that because “the line of questioning as a whole trial court authorized him to consider the death penalty, he would impose it. that the juror eventually stated that she would consider all of the evidence and that if the defendant was ‘found guilty beyond a shadow of a doubt’ and the that a prospective juror should have been excused for bias where he “testified grounds by Nash v. State, 519 S.E.2d 893, 895 (Ga. 1999), the court concluded Similarly, in Pope v. State, 345 S.E.2d 831 (Ga. 1986), overruled on other provides grounds for reversal only if the defendant can actually show that his

peremptory challenge to strike him.” United States v. Mitchell, 502 F.3d 931, thus leaves him unable to exclude a juror who actually sits on his case,

or statute-based right.” State v. Hickman, 68 P.3d p. 41 418, 422 (Ariz. 2003); see

gain appellate relief.” People v. Roldan, No. 08CA2487, 2011 WL 174248, at

right to an impartial jury was affected.” People v. Yeoman, 72 P.3d 1166, 1185

veniremember did not sit on the jury, even though the defendant must use a reversal of his conviction and sentence is required. See, e.g., State v. Magee, his peremptory challenges after having used a peremptory challenge curatively, erroneous ruling that forces a defendant to use a peremptory challenge, and Ross, 487 U.S. at 88; Martinez-Salazar, 528 U.S. at 307. Accordingly, “[a]n to select.” Shane, 243 S.W.3d at 340; see People v. Macrander, 828 P.2d 234, a peremptory challenge violates neither a constitutional right, nor a rule-based majority of state courts” and the Supreme Court “hold that the curative use of *10 (Colo. Ct. App. Jan. 20, 2011) (Bernard, J., specially concurring). “[A]

prejudice — namely, that a biased juror actually sat on the jury — in order to under these circumstances, “but, instead, require a defendant to show states and the United States do not employ the remedy of automatic reversal” However, this is not the majority rule. “Presently, at least twenty-nine jury, . . . nor the Fifth Amendment right to due process, . . . when the biased veniremember violates neither the Sixth Amendment guarantee of an impartial We acknowledge that in some jurisdictions, when a defendant exhausts 243 (Colo. 1992) (en banc). Court has made clear that a court’s failure to strike for cause a biased required, in part, because the “final jury . . . is not the jury a party was entitled exhaust all peremptory challenges, and object to the jury as it is finally (Ky. 2008); see State v. Ho, 279 P.3d 683, 694 (Haw. 2012). Reversal is cause, a defendant must exercise a peremptory challenge against the juror, that venire could result in a fair trial.” Shane v. Com., 243 S.W.3d 336, 340 curatively, it “so taints the equity of the proceeding that no jury selected from substantial rights such that when a defendant uses a peremptory challenge 2013) (No. 12-9070). In those jurisdictions, peremptory challenges are deemed 103 So. 3d 285, 307 (La. 2012), cert. denied, 82 U.S.L.W. 3180 (U.S. Oct. 7,

relief he requests — reversal of his sentence. “[T]he [United States] Supreme empaneled).

2009) (to preserve an objection to the trial court’s failure to excuse a juror for Salazar, 528 U.S. 304 (2000); cf. People v. Hamilton, 200 P.3d 898, 925 (Cal. 954-55 (9th Cir. 2007); see Ross, 487 U.S. 81; United States v. Martinez- Oklahoma, 487 U.S. 81, 86 (1988) (any claim that the jury was not impartial

his challenges for cause amounted to manifest error, he is not entitled to the Even if we accept the defendant’s premise that the trial court’s denial of

must focus upon the jurors who ultimately sat). p. 42 42

the trial court’s ruling.” Id. In reaching this conclusion, we observed that

Goodale was unclear to argue that, in New Hampshire, reversal is required The defendant here seizes upon our observation that the record in

whether to exercise his peremptory challenges.” Id.

peremptory challenges.” Id. Because of this, we noted, he was unable to presumed. Constitution, a defendant must demonstrate prejudice; prejudice is not conviction because he failed to demonstrate “that he was in fact prejudiced by claim that a jury selection procedure violates due process under the State Goodale stands for the proposition that, generally, in order to prevail on a “the State access to information that was unavailable to the defendant.” Id. at when a party has exhausted its peremptory challenges. To the contrary,

“demonstrate . . . that in fact the lack of information affected his decision

In Goodale, the defendant argued that the trial court erroneously allowed “[t]he record [was] unclear as to whether the defendant exercised all of his

230. Despite finding constitutional error, however, we affirmed the defendant’s reversal. Id. at 88. determining whether to exercise its peremptory challenges” because it allowed trial court’s ruling “conferred on the State a significant advantage in found that the jury selection errors did not require automatic reversal of the due process because it was fundamentally unfair. Id. We reasoned that the from that which would otherwise have decided the case.” Ross, 487 U.S. at 87. held that such a procedure violated the defendant’s state constitutional right to while denying him equal access to the records. Goodale, 144 N.H. at 227. We complaining party has exhausted its peremptory challenges.” See Goodale, 144 the State to use the criminal records of potential jurors during jury selection

did we suggest that juror selection errors require automatic reversal. harmless beyond a reasonable doubt. Brodowski, 135 N.H. at 201-02. In none 331. In Brodowski, we ruled that the State failed to prove that the error was use a peremptory challenge to achieve that result” does not, alone, require errors were not prejudicial. See Goodale, 144 N.H. at 230; Anaya, 131 N.H. at defendant’s conviction and sentence. In Goodale and Anaya, we found that the

330 (1988). We disagree. In the cases upon which the defendant relies, we the notion that reversal is mandated merely because the jury panel is “different N.H. 224; State v. Brodowski, 135 N.H. 197 (1991); State v. Anaya, 131 N.H. (Cal. 2003) (quotation omitted). The majority of jurisdictions, therefore, reject

erroneous denial of a challenge for cause requires reversal where the argues that our “prior decisions imply that [we] concur[ ] with the view that the Citing Goodale, State v. Brodowski, and State v. Anaya, the defendant

“So long as the jury that sits is impartial, the fact that the defendant had to fair.” Id. (quotation omitted); see Rivera v. Illinois, 556 U.S. 148, 160 (2009).

p. 43 analysis.” Id. (quotations omitted). To decide that the putative error in this

innocence, and no criminal punishment may be regarded as fundamentally

any other errors that may have occurred are subject to harmless-error and was tried by an impartial adjudicator, there is a strong presumption that constitute trial errors, we have held that, generally, “if a defendant had counsel Although we have not previously held that errors in jury selection

Thus, even if the trial court had erred in denying the defendant’s challenges for denial of peremptory challenge was not a structural error requiring reversal). would conflict with this precedent. See Rivera, 556 U.S. at 160-61 (mistaken cannot reliably serve its function as a vehicle for the determination of guilt or case is a “structural” error compelling reversal of the defendant’s sentence

the very framework in which a trial proceeds.” State v. Etienne, 163 N.H. 57,

particular case.” State v. Williams, 133 N.H. 631, 634 (1990) (per curiam) challenges, he did not suffer harm from the court’s decision. Id. Contrary to fundamentally unfair . . . require reversal without regard to the evidence in the law, “only such constitutional errors as necessarily render a trial 163 N.H. at 80. The harmless error doctrine does not apply to structural errors. See Etienne, Our decisions in Goodale, Brodowski, and Anaya are consistent with our

further showing of harm is required. 79 (2011) (quotation omitted). When such an error occurs, “a criminal trial error has caused harm. Anaya does not establish that when a defendant (quotation omitted). We term these “structural” errors because they “affect[ ]

the juror was not impaired because, in failing to exhaust his peremptory defendant’s conviction, and trial errors, which do not. Under New Hampshire “thereby improperly forcing him to exercise a peremptory challenge.” Anaya, case law distinguishing structural errors, which require automatic reversal of a

exhausts his peremptory challenges to cure putative error by the trial court, no

not exhausted his peremptory challenges, he cannot show that a jury selection the defendant’s assertions, Anaya establishes only that when a defendant has

131 N.H. at 331. We ruled that the defendant’s right to challenge and exclude The defendant’s reliance upon Brodowski and Anaya is similarly

exercised its discretion when it failed to excuse a prospective juror for cause, this case, the defendant argued that the trial court had unsustainably The facts of Anaya are closer to the facts of the instant case. There, as in

to show that the error was harmless beyond a reasonable doubt. Id. at 201-02. 201. We ruled that under the circumstances of that case, the State had failed 01. The State argued that this error was harmless, but we disagreed. Id. at parte discussions with eight prospective jurors. Brodowski, 135 N.H. at 200unavailing. The error in Brodowski was the trial court’s failure to record ex pistol, and the defendant, a convicted felon, armed himself with a knife. Hayes

p. 44 prepared for the robbery; Bell-Rogers loaded his gun, a .38 semiautomatic

Restaurant in Manchester. They drove to a parking lot near the restaurant and Hayes. That afternoon, they made plans to rob the owner of the El Mexicano On October 10, Bell-Rogers introduced the defendant to his friend, Jeff

back [to jail].” that the men “would pop out, a badge or no badge” because “they weren’t going said that “[a]nybody that tried to stop [them], they were going to get it,” and

conversation with the defendant and Bell-Rogers during which the defendant

would be a shootout.” Another resident of the apartment recalled a them or him, . . . F them, . . . it was going to go his way or no way,” and that “it defendant in which he stated that if the police ever tried to arrest him, “it was

resided at the Central Street apartment, testified to a conversation with the

Shipley’s apartment on Central Street in Manchester. Ruth Schulz, who also

2006, they were spending time with Angela Swist and Teresia Shipley at Antoine Bell-Rogers met in 2006 and soon became close friends. By October The State presented evidence of the following facts. The defendant and

was the defendant’s mental state at the time he shot Officer Briggs. Therefore, the single issue before the jury during the guilt phase of the trial human life, but not with the intent to commit capital murder as charged.

that he shot Officer Briggs recklessly with extreme indifference to the value of During his opening statement, the defendant, through counsel, stated

The defense presented five witnesses, as well as several exhibits.

preceding the capital murder, and the testimony of more than forty witnesses.

capital criminal episodes involving the defendant that occurred in the six days

exhibits, including photographs and forensic evidence from the three noneighteen days. The State presented its case-in-chief through numerous The guilt phase of the trial occurred over the course of approximately

instruction set forth in State v. Wentworth, 118 N.H. 832, 838-39 (1978).

the guilt phase of the trial, including a summary of the evidence.

reasonable doubt instruction to the jury when it modified the standard

that he was prejudiced by any such error. Before addressing these claims of error, we provide, for context, an overview of cause, reversal would not be warranted because he has failed to demonstrate

the murder. Second, he argues that the trial court provided an erroneous extensive evidence of the crimes that he committed during the week preceding First, he argues that the trial court erred in allowing the State to introduce The defendant raises two challenges regarding the guilt phase of trial. participated in a shooting at a residential apartment complex on Edward J. Roy p. 45 A few days after the 7-Eleven convenience store robbery, the defendant

picked it up and held it for a couple of minutes before Bell-Rogers took it. the Central Street apartment, the defendant handled Bell-Rogers’s gun; he

near the store, and the two men left the car.

remarked that they “weren’t afraid . . . no one could get in their way.” While at

The group traveled to a 7-Eleven convenience store in Hudson. Swist parked the El Mexicano Restaurant robbery, and the defendant said he “would do it.” who would carry the gun, which was the weapon that Bell-Rogers used during

police. The defendant stated that he would “pop a cop,” and Bell-Rogers point, the men asked each other what each would do if ever approached by the something blocking it or it was stuck.” The two men then laughed. At some

plans to commit another robbery. The defendant and Bell-Rogers discussed On October 11, the defendant, Bell-Rogers, Swist, and Shipley made

commented that the weapon would not have discharged because “there was

that “if the cops pulled up he would pop shots. He’d pop a cop.” outside and visible to the police. According to Hayes, the defendant replied

men started counting the stolen money. Bell-Rogers examined the gun and Shipley’s apartment. There, the defendant put the gun on a table, and the two The defendant and Bell-Rogers returned to the car, and drove to

and Bell-Rogers were talking in an alley, Hayes expressed concern about being

cash drawer. A surveillance camera inside the store recorded the robbery.

to divide the stolen jewelry. Later that evening, while the defendant, Hayes, Hayes drove to the Central Street apartment where they discussed how

found two empty shell casings on the floor and a bullet lodged in the ceiling.

about an arm’s length away from the clerk’s face. The men then left with the defendant stayed on the opposite side of the counter, holding the handgun jumped over the counter, and the clerk opened the cash register. The

discharged a gun twice, once into the ceiling and once into the floor. The police the police arrived at the restaurant and learned that the shooter had someone inside the restaurant at knifepoint. Shortly after they fled the area,

defendant pointed a gun at her and said, “give me all your money.” Bell-Rogers

he “had to pop a couple shots,” and the defendant said that he had robbed Inside the car, the men recounted the robbery: Bell-Rogers stated that entered shortly after 5:00 a.m. When the clerk approached the counter, the A clerk was alone in the store when the defendant and Bell-Rogers gun.

After several minutes, they came running back with Bell-Rogers holding the waited in the car while the defendant and Bell-Rogers entered the restaurant. looking for them. The men said, “We don’t give a f***. We’re out for blood.”

p. 46 Shipley met them in the alley where she warned them that the police were

same vehicle used in both the 7-Eleven robbery and the Roy Drive shooting. when the defendant and Bell-Rogers arrived at the back alley in Swist’s car, the officers were inside the Central Street apartment speaking with some residents

shooting and interviewed Swist, Shipley, and Davis. At one point, police Throughout the day of October 15, the police continued to investigate the

at another friend’s apartment.

shots had been fired. The defendant and Bell-Rogers left and spent the night

them and then they popped back.” One of the men estimated that seventeen Bell-Rogers described the shooting, explaining to the group that “we popped at When they returned to the Central Street apartment, the defendant and

another apartment.

of Swist’s father’s apartment, and a bullet lodged in the living room floor of casings, bullet fragments in a parked car, a bullet lodged in the bedroom wall toward the shooting scene. At the apartment complex, the police found shell

foursome saw several police vehicles, with lights and sirens activated, heading

excited in a way.” On the way back to the Central Street apartment, the “they thought they got them” and she described the men as acting “angry but that the men acted “excited” or “amped up.” Swist recalled the men saying that

referring to a movie in which an individual “dodges the bullet,” and she testified

defendant said, “I had to pull a Matrix.” Shipley understood this statement as The two men soon ran back to the car; Bell-Rogers had the gun, and the left the car together and within minutes the women heard a series of gunshots. Once at the Roy Drive apartment complex, the defendant and Bell-Rogers

stated that they were going to kill her brother and Edwards. Central Street apartment. Swist recalled that the defendant and Bell-Rogers Swist’s car, along with Shipley and Kyarra Davis, another resident of the

to the Roy Drive apartment complex. The defendant and Bell-Rogers were in In the early morning hours of October 15, the group traveled in two cars

Bell-Rogers’s gun while the defendant was walking down the stairway.

around the building. As they were leaving, Birely saw the defendant holding

Birely to go to the apartment complex and see if anybody was outside or The defendant said, “f*** that, let’s take it to them.” The two men then told Rogers both responded, “That ain’t going to happen. We’ll fight fire with fire.”

and Edwards had threatened to shoot at her home. The defendant and Bell-

calls were exchanged. Swist told the defendant that her brother (Dale Swist) returned to the Central Street apartment “fired up,” and several hostile phone club, the defendant and Bell-Rogers fought with Bruce Edwards. The men

Rogers went to a local club, along with a mutual friend, Paul Birely. At the Drive in Manchester. On the evening of October 14, the defendant and Bellcommanded, “Stop, Police!” Bell-Rogers stopped, p. 47 sight of the defendant and Bell-Rogers walking in the alley. Officer Briggs

apartment. As they were riding their bicycles by Litchfield Lane, they caught Meanwhile, Officers Briggs and Breckinridge left the Lake Avenue

marked “Manchester Police.” They then entered the Litchfield Lane alley.

seen walking near Roman’s Lake Avenue apartment, passing by a vehicle

with the handle sticking out and put his sweatshirt over it. The two men were around 2:45 a.m., the defendant placed the gun in the waistband of his pants to Kelly Ann Grady’s nearby apartment. Before leaving Grady’s apartment When the defendant and Bell-Rogers left Roman’s apartment, they went

apartment. the defendant called Roman, who informed him that the police were at the assisted in the investigation at the Lake Avenue apartment. During this time,

Officers Briggs and Breckinridge also responded to the dispatch call and

began interviewing occupants of the apartment and investigating the scene. Roman’s mother immediately called the police, who soon arrived and

then left the apartment building.

one of the men yell, “[P]ick up the shell casings. That’s evidence.” The men where a single shot was fired. Roman’s mother slammed the door and heard pointed his gun at her. The defendant pushed Bell-Rogers into the hallway,

which escalated to physical violence. Bell-Rogers threatened to kill Roman and At some point, an argument erupted between Roman and Bell-Rogers,

going back to jail.” someone on the telephone, stating repeatedly, “I’m not going down . . . I’m not

responded, “You think we don’t know that?” The defendant later spoke to

more while closing the gap between them. When Officer Briggs was within an

Bell-Rogers that the police were in the area looking for them. The men approximately midnight, where Roman’s mother warned the defendant and slowing his pace. Officer Briggs issued the same “Stop, Police!” command twice Bell-Rogers’s girlfriends. They returned to her Lake Avenue apartment at That night, the defendant and Bell-Rogers met Jennifer Roman, one of

hood up and his hands out of sight near his waist, continued walking away,

station that evening and told her “not to say anything.” The foursome then

defendant and Bell-Rogers knew that Swist intended to return to the police

spoken to the police. Shipley told the men that she had lied to the police. The The defendant and Bell-Rogers later learned that Shipley and Swist had

Shipley’s repeated insistence, the men drove away. She saw the gun in Bell-Rogers’s lap and urged them to leave immediately. At p. 48 A. Rule 404(b) Prior Crimes Evidence

proof of motive or intent. See N.H. R. Ev. 404(b).

and Roy Drive shooting scenes. Officer Briggs to the evidence collected at the El Mexicano Restaurant robbery jammed. Forensic testing later matched the gun that the defendant used to kill

actions, while permitting use of such evidence for other purposes, such as

was loaded, its safety mechanism was off, it was in a firing position, and it was

wrongs to prove a person’s propensity to act in conformity with such prior stated, Rule 404(b) precludes the admission of evidence of other crimes or of the trial pursuant to New Hampshire Rule of Evidence 404(b). Generally

telephone, and the gun that he had discarded. When the gun was found, it

trial court permitted the proffered evidence to be introduced at the guilt phase

the defendant had been wearing when he shot Officer Briggs, his cellular Within a few days of the murder, the police found the red sweatshirt that

where the defendant was arrested that evening. the defendant’s motive to commit capital murder and his intent to do so. The The State sought to introduce this evidence to establish, among other things, the 7-Eleven convenience store, and the October 15, 2006 Roy Drive shooting.

the morning, the defendant, Joseph, and her sister drove to Massachusetts, issued by written decision on October 10, 2008, and two rulings were issued The defendant stayed at Joseph’s apartment for the remainder of the night. In telling her that “I just shot a cop,” and that she would never see him again. robbery of the El Mexicano Restaurant, the October 11, 2006 armed robbery of

the trial court regarding the guilt phase prior crimes evidence: one ruling was On appeal, the defendant challenges three evidentiary rulings made by weapon away in an alley, and that “a cop was shot.” He then called Roman, evidence of the defendant’s participation in the October 10, 2006 armed

running. He told her that the gun “went off in his pocket,” that he threw the Regarding the guilt phase of the trial, the parties disputed the admissibility of in an alley when a police officer called out to him and he immediately started into a backyard. He explained to Joseph that he and Bell-Rogers were walking The parties filed numerous motions in limine to determine the

1. Background

admissibility of prior crimes evidence in each phase of the capital murder trial. Joseph, and, along the way, discarded his red sweatshirt and threw the gun The defendant ran to the nearby apartment of a girlfriend, Jennifer

The defendant then fled as police fired at him and several officers gave chase.

hands, and fired one shot at Officer Briggs, hitting him in the side of his head. arm’s length, the defendant suddenly turned, with Bell-Rogers’s gun in both conduct would not be unfairly prejudicial because the evidence would be

p. 49 gunman. It determined that evidence of the defendant’s recent criminal

knowledge that Officer Briggs was a police officer, and his identity as the defendant’s motive for shooting Officer Briggs, his intent in doing so, his 2008, ruling that the State’s proffered evidence was highly probative as to the In advance of trial, the court issued a written order dated October 10,

clerk of the 7-Eleven convenience store. would limit the witnesses to the primary participants in those crimes and the

The State represented that it did not intend to retry the three prior crimes and

felony trials, conducted a hearing on the parties’ motions in September 2008. The trial judge, who had presided over the defendant’s three non-capital

was an accident or that Bell-Rogers was the shooter.

officer.” He also informed the court that he would not assert that the shooting

wanted for several crimes necessarily has any more motive to kill [a police] the greater the motive they have to flee,” he disputed that “a suspect who is the premise that “the more serious the crimes for which someone is a suspect,

admitting additional evidence of the two armed robberies. While agreeing with

shooting, arguing that no incremental probative value would be gained by that occurred on October 15 and a minimal presentation of the Roy Drive Alternatively, he asserted that the evidence should be limited to certain events

probative value was diminished by other evidence available to the State.

presenting the prior crimes evidence during its case-in-chief because its The defendant countered that the State should be precluded from

that the defendant made prior to the shooting of Officer Briggs.

of accident; opportunity and identity; and context for incriminating statements

murder; intent to do so; knowledge that Officer Briggs was a police officer; lack legitimate, non-propensity purposes, including: motive to commit capital State, evidence of the three prior crimes was highly probative for several

to forensic evidence left behind at two of the crime scenes. According to the

his knowledge that the gun he possessed at the time of the shooting was linked knowledge that the police were pursuing him as a suspect in those crimes, and things, the defendant’s deliberate participation in the three prior crimes, his

of proof, outlining evidence that it contended demonstrated, among other

prior crimes, and his familiarity with the murder weapon. It presented an offer defendant’s convicted felon status, his participation in the three October 2006 crimes evidence under Rule 404(b). The State sought to admit evidence of the

trial, the parties filed cross-motions concerning the admissibility of the prior In August 2008, approximately six weeks before the guilt phase of the

procedural facts as context for the court’s bench rulings.

pretrial procedural facts as context for the court’s pretrial ruling and the trial from the bench during the guilt phase of the trial. We set forth the pertinent he shot Officer Briggs recklessly with extreme indifference to the value of p. 50 In his opening statement, the defendant, through counsel, admitted that

an accident, a mistake, or a reckless act. murder, including the defendant’s flight, to establish that the shooting was not

Finally, the State described the circumstances immediately surrounding the

gun and, further, that it was the same gun involved in his three recent crimes. the defendant knew that, as a convicted felon, he was unlawfully carrying a State, its evidence would show that when he was approached by Officer Briggs,

threatening to shoot the police if ever approached by them. According to the

crimes, and that he acted brazenly and, on several occasions, made statements been warned several times that the police were closing in on him for these shooting on October 15. The State previewed evidence that the defendant had

convenience store several hours later on October 11, and then the Roy Drive

the El Mexicano Restaurant, followed by the armed robbery of a 7-Eleven

along with Bell-Rogers, had participated in the October 10 armed robbery of murder. Specifically, the prosecutor outlined evidence that the defendant, because of his participation in a crime spree during the six days prior to the

intentionally and purposely killed Officer Briggs to evade capture by the police In its opening statement, the State alleged that the defendant

statements to the jury, setting forth their respective theories of the case.

or that Bell-Rogers was the shooter. The parties then presented opening

pretrial notification that he would not claim that the shooting was an accident court that he was conceding the issues of identity and causation, adding to his On the first day of trial, the defendant, through counsel, informed the

during trial.

be admitted, he observed that “we’ll just have to see how things play out” Although defense counsel questioned the quantity of prior crimes evidence to seek to show the jury the surveillance video recording of the 7-Eleven robbery.

Restaurant and Roy Drive crime scenes. It also advised the court that it might

phase of the trial, including forensic evidence collected at the El Mexicano summarized the prior crimes evidence it intended to present during the guilt to the issues identified in the court’s written order. At the hearing, the State

during which it directed the State to limit evidence of the details of the crimes The day before the trial began, the court conducted a second hearing

opportunity to do so.”

show, among other things, “his ability to operate the murder weapon and his

handling of Bell-Rogers’s gun during the two weeks prior to the shooting to court also granted the State’s request to present evidence of the defendant’s decision upon an improper basis of bad character or propensity. The trial

and the nature of the criminal acts was not likely to cause the jury to rest its circumscribed in scope, a limiting instruction would be provided to the jury, p. 51 Thus, the opening statements made clear that the defendant’s mens rea

life of Officer Briggs, not capital murder. had committed reckless murder with extreme indifference to the value of the

motive to kill when he shot Officer Briggs. The defendant contended that he

disturbance. Still, he argued that these facts did not show that he had a in both armed robberies and in the Lake Avenue apartment domestic he had participated in the Roy Drive shooting, and that the same gun was used The defendant acknowledged that he had a reason to flee the police, that

except for the single fatal shot that took Officer Briggs’ life. forty-five minutes that entire day. He never fired this gun

Antoine Bell-Rogers was out of control. He had it for at most Michael Addison had Antoine Bell-Rogers’ gun because

Shipley, Angela Swist, Ruth Schulz, and Paul Birely. Their testimony

dispute. motive to intentionally kill the police officer. This we

or were witnesses to the events surrounding them: Jeffrey Hayes, Teresia

not only the motive to flee the officer, but he had a specific

store clerk. Five witnesses were participants in one or more of the three crimes representations to the trial court, only one witness was a victim — the 7-Eleven regarding the three prior criminal episodes. Consistent with its pretrial During its case-in-chief, the State presented nine witnesses to testify

Addison was being wanted for such serious crimes he had The State will ask you to believe that because Michael

Defense counsel stated:

and as part of its final instructions at the guilt phase of the trial. trial court gave a substantively identical limiting instruction again mid-trial 51

defendant was trying “to prevent harm that night and not to cause harm.” who had threatened to shoot her. Thus, the defense asserted that the and that the defendant had intervened and taken the gun from Bell-Rogers

crimes evidence during its deliberations on the capital murder charge. The

there had been an intense, violent fight between Bell-Rogers and his girlfriend,

with a lengthy limiting instruction on the jury’s use of the anticipated prior Before the guilt phase trial testimony began, the court provided the jury

was the dispositive issue in the guilt phase.

possession of it. Defense counsel explained that just prior to the shooting, familiarity with Bell-Rogers’s gun, and his benign motivation for taking developed various themes to support his position, including his lack of

murder, the State had not charged him with the “right crime.” The defendant human life. He stated that because he did not intend to commit capital was not outweighed by its prejudicial effect because the jury would hear about

p. 52 familiar with the gun. The court found that the probative value of the video

Roman, he normally would not have had the gun, and he was not otherwise night merely to protect Bell-Rogers from himself and to protect Jennifer the court cited the defense theory that the defendant possessed the gun that

recording illustrated his comfort with, and knowledge of, the gun. In so ruling,

the gun recklessly or knowingly when he shot Officer Briggs because the video that the defendant’s theory rendered it highly probative as to whether he used After viewing the video outside the jury’s presence, the trial court ruled

confidence in so doing. was comfortable handling the weapon, and the video recording showed his gun during the robbery was inadequate because he was not conceding that he

with it. It argued that the defendant’s offer to stipulate that he was holding the

sole purpose of keeping it away from Bell-Rogers and that he was unfamiliar

defendant’s theory that he possessed the gun at the time of the murder for the The State countered that the video was admissible to rebut the

the person holding the handgun during the 7-Eleven robbery.

handled the same gun on a prior occasion and offered to stipulate that he was argued that the jury would hear evidence through Teresia Shipley that he had he was wanted for this robbery and, thus, had a motive to evade capture. He

evidence and went far beyond the evidence necessary to establish that he knew

committing a crime with a handgun, it constituted improper propensity exclude. According to the defendant, because the video showed him kind of detailed evidence that he understood the trial court’s pretrial order to

surveillance video. The defendant objected, arguing that the video was the

hearing to address whether the State could play the 7-Eleven convenience store On October 28, the seventh day of the trial, the court conducted a

apartment to go to the Roy Drive apartment complex.

possessed Bell-Rogers’s gun immediately before leaving the Central Street

allowed the State to elicit testimony from Paul Birely that the defendant 7-Eleven surveillance video recording of the armed robbery. The second challenges on appeal. The first permitted the State to show the jury the During trial, the court issued two evidentiary rulings that the defendant

casings, bullets, and bullet fragments admitted as trial exhibits. found. The officers also referred to forensic evidence consisting of shell

crime scenes that illustrated where shell casings, bullet holes, and bullets were

evidence found at those sites and referred to numerous photographs of the Mexicano Restaurant or the Roy Drive crime scenes testified about the forensic Officer Briggs. Finally, three police officers who had investigated either the El

commission of the crimes, all of which involved the gun he later used to shoot established that the defendant had participated in both the planning and the p. 53 2. Appellate Argument

Street apartment he was carrying Bell-Rogers’s gun.

Birely was permitted to testify that when the defendant was leaving the Central defendant’s familiarity with and handling of Bell-Rogers’s gun. Accordingly, from Birely was similar to the testimony of other witnesses concerning the

unfair prejudice. In so ruling, the court noted that the testimony expected

probative value of the proffered testimony was not outweighed by the danger of The trial court rejected the defendant’s argument, ruling that the

activities with the gun.

expected to hear testimony from Birely regarding the defendant’s other

scope of the pretrial order and lacked probative value because the jury was The defendant objected, arguing that the proffered testimony fell outside the a novice with this handgun, and that Bell-Rogers ordinarily controlled the gun.

at the time of the murder merely to keep it away from Bell-Rogers, that he was

also sought to rebut the defense theory that the defendant possessed the gun show the defendant’s knowledge of and ability to use the murder weapon. It Roy Drive crime scene, the State sought to introduce Birely’s observation to

defendant had been acquitted of the charge that he possessed the gun at the

apartment just before the Roy Drive shooting. Although in a prior trial the

defendant with Bell-Rogers’s gun in his possession at the Central Street testimony. The State sought to elicit testimony that Birely had observed the hearing because the State requested a ruling in advance of Paul Birely’s On November 4, the twelfth day of the trial, the court conducted another

‘inadmissible’ evidence, [and] [t]he trial court’s Rule 404(b) ruling is an example which the defendant and Bell-Rogers are present in the video is even shorter. field of view. The video is less than one minute long, and the time during

of too much evidence can lead to reversal just as surely as the admission of register; Bell-Rogers took the cash drawer, and both men then left the camera’s

“[g]iven the risk of prejudice inherent in other crimes evidence, the admission evidence of his October 2006 non-capital crimes. According to the defendant, contact with the store clerk, and she quickly moved away from the cash introduce during its case-in-chief an “unprecedented” amount of detailed the counter pointing the gun at the store clerk; Bell-Rogers made physical The defendant argues that the trial court erred in permitting the State to counter; Bell-Rogers jumped over the counter, while the defendant leaned on

store clerk was standing near the cash register when two men approached the

the defendant as the man holding the gun. The video shows the following: the The State played the video during Shipley’s testimony, and she identified

instruction. the robbery through other evidence and the court would provide a limiting the defendant. Davidson, 163 N.H. at 469; State v. Beltran, 153 N.H. 643, 647

p. 54 N.H. R. Ev. 404(b). The purpose of the rule is to ensure that an accused is

identity, or absence of mistake or accident.

evidence is not substantially outweighed by the danger of unfair prejudice to the defendant committed the other bad acts; and (3) the probative value of the proving the defendant’s character or disposition; (2) clear proof establishes that

the prejudice of his case. Davidson, 163 N.H. at 467. The trial court is well motive, opportunity, intent, preparation, plan, knowledge, charges for which he or she is presently standing trial.” State v. Melcher, 140

and third prongs of the Rule 404(b) analysis are at issue in this appeal. must demonstrate that: (1) such evidence is relevant for a purpose other than prejudicial impact. State v. Smalley, 151 N.H. 193, 198 (2004). Only the first deference to its conclusion as to the balance between probative worth and Before evidence of other bad acts may be admitted at trial, the State positioned to evaluate the particulars of a case, and we accord considerable

defendant shows that the decision was clearly untenable or unreasonable to however, be admissible for other purposes, such as proof of on the basis of innuendos arising from conduct which is irrelevant to the within its sound discretion, and we will disturb its judgment only if the show that the person acted in conformity therewith. It may, (2006). The trial court’s evidentiary decision under this three-prong test lies admissible to prove the character of a person in order to

crimes or wrongs. State v. Davidson, 163 N.H. 462, 469 (2012); State v.

N.H. 823, 827 (1996) (quotations omitted).

established notions of fair play and due process, which forbid judging a person and a fair trial, see N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. McGlew, 139 N.H. 505, 509 (1995). This evidentiary rule is grounded in “long- Evidence of other crimes, wrongs, or acts is not 404(b), as well as his State and Federal Constitutional rights to due process

based upon propensity and character inferences drawn from evidence of other tried on the merits of the crime charged and to prevent a conviction that is

crimes evidence violated New Hampshire Rules of Evidence 401, 403, and Rule 404(b) provides: of the former.” The defendant urges that the erroneous admission of the prior

Wamala, 158 N.H. 583, 592 (2009). discretion in admitting the challenged evidence under Rule 404(b). See State v. We first consider whether the trial court unsustainably exercised its

3. Discussion felon, and possessed the same gun when confronted by the

p. 55 actually in serious dispute.” Smalley, 151 N.H. at 198; see State v. Russell,

in the days preceding Officer Briggs’ murder, was a convicted That the defendant had committed very serious crimes or inference”; and “whether the evidence is relevant to prove an issue that is Turning first to relevance and probative value, the trial court ruled:

a. Pretrial Ruling

an issue that is actually in serious dispute is particularly important to the

the issue upon which it is offered is established by other evidence, stipulation, for appealing to a juror’s sense of resentment or outrage”; “the extent to which evidence would have a great emotional impact upon a jury” or great “potential

at 485; State v. Brewster, 147 N.H. 645, 650 (2002).

the jury. See Costello, 159 N.H. at 123. We have repeatedly emphasized that whether the evidence is relevant to prove 159 N.H. 475, 485 (2009); Costello, 159 N.H. at 123; Lesnick, 141 N.H. at 127.

propensity. Davidson, 163 N.H. at 469; McGlew, 139 N.H. at 510. Should the purpose, its probative worth may be minimal. State v. Costello, 159 N.H. 113, without relying upon forbidden inferences of bad character or criminal offered evidence will tend to prove or disprove an issue actually in dispute, inject unfair prejudice against the defendant into the trial process. State v. probative value of the relevant evidence and the risk that such evidence will identified several factors for the trial court to consider, including: “whether the be reduced to formulae,” State v. Lesnick, 141 N.H. 121, 127 (1996), we have The third prong of the test requires the trial court to consider both the Although “[t]he proper balancing of prejudice and probative value cannot connection to the evidentiary purpose for which it is offered. Davidson, 163

explain precisely how the evidence relates to the disputed issue. Davidson, theory upon which the evidence is admitted, without invoking propensity, and risk of unfair prejudice may be diminished by providing limiting instructions to 123 (2009); State v. Kim, 153 N.H. 322, 330 (2006). On the other hand, the

N.H. at 510-11. Even when other bad acts evidence is relevant for a proper Ericson, 159 N.H. 379, 389 (2009); Smalley, 151 N.H. at 199; McGlew, 139 evidence is offered and articulate the precise chain of reasoning by which the

163 N.H. at 469. must have some direct bearing on an issue actually in dispute and have a clear As to the first prong, in order to be relevant, other bad acts evidence

trial court rule the evidence admissible, it must articulate for the record the

other bad acts evidence, the State must identify the purpose for which the N.H. at 469; see Beltran, 153 N.H. at 647-48. When a defendant objects to p. 56 When a culpable mens rea is an element of the charged offense and the

in these pretrial rulings.

evidence on the issues of intent, motive, and knowledge. We discern no error

The trial court ascribed “very high” probative value to the proffered prior crimes

as the shooter. officer, his knowledge that he was doing so, and his identity

highly probative of the defendant’s intent to kill a police

reasons this evidence is relevant to prove motive, it is also to introduce evidence to support its theory. For the same This is the State’s theory of the case and the State is entitled

powerful incentive to elude their grasp by whatever means.

the issue of intent from an accused’s conduct. State v. Sharon, 136 N.H. 764, imprisonment if apprehended by the police, he had a Because the defendant knew he faced many years of the armed robberies and the Edward J. Roy Drive shooting.

offense, even though it also implicates criminal propensity or bad character. State v. Palmer, 65 N.H. 216, 218 (1890); State v. Dearborn, 59 N.H. 348, 349 prods the mind” to indulge criminal intent. Costello, 159 N.H. at 119; see also 153 N.H. at 327-28. Motive supplies the reason that “nudges the will and circumstantial evidence,” and the fact finder may draw relevant inferences on commit the charged crime is particularly relevant to the issue of intent. Kim, Further, evidence of other bad acts that evinces an accused’s motive to

charged act. See State v. Ayer, 154 N.H. 500, 513 (2006). shooting that the police were looking for him as a suspect in defendant had specifically conceded the mens rea element when he informed bad acts evidence that tends to prove criminal mens rea with respect to the dispute, the trial court is justified in assigning a high probative value to other

disputed as to require evidence at trial. Cassavaugh, 161 N.H. at 97; Brewster, bad acts may be critical to establishing the actor’s state of mind on the charged 765-66 (1993); see Smalley, 151 N.H. at 199. Evidence of an accused’s other

processes, one’s culpable mental state must, in most cases, . . . be proven by persons rarely explain to others the inner workings of their minds or mental the court that it could omit that element from the jury instructions). “Because light of the evidence that he had learned hours before the that other bad acts evidence was not admissible to show intent because the Briggs and flee. The defendant’s motive is even clearer in 147 N.H. at 649; cf. State v. Glodgett, 144 N.H. 687, 691-92 (2000) (holding when Officer Briggs told him to and a motive to shoot Officer

defense has not conceded the element, the issue of intent is sufficiently

provide an explanation as to why the defendant did not stop police on October 16 as was used in these prior offenses, if he were apprehended because he was aware that forensic evidence had been

p. 57 defendant knew that his connection to those crimes would likely be discovered

during the two recent armed robberies and the Roy Drive shooting. The unlawful. He also was aware that the gun he possessed was the gun used that, because he was a convicted felon, his possession of any gun was

in the line of duty. Convincing a jury of this mens rea beyond a reasonable aware that his actions would cause the death of a police officer who was acting establish that when the defendant shot Officer Briggs on October 16, he was

would establish that when confronted by Officer Briggs, the defendant knew The State asserted that the evidence, including the prior crimes evidence,

police officer in order to evade capture. 57

circumstance exists.” RSA 626:2, II(b) (2007). Thus, the prosecution had to

participation in the recent crimes supplied the motive for knowingly killing a

offense when he is aware that his conduct is of such nature or that such with respect to conduct or to a circumstance that is a material element of an Two critical aspects of the defendant’s mens rea at the time he shot line of duty. RSA 630:1, I(a) (2007) (amended 2011). “A person acts knowingly State v. Dushame, 136 N.H. 309, 317-18 (1992). consideration of all proper proof that can be proffered by the prosecution.” developing direct testimony on the defendant’s state of mind calls for

part of its evidence of intent, the State sought to establish that the defendant’s gun and his state of mind concerning his potential capture by the police. As Officer Briggs were his state of mind concerning his possession of Bell-Rogers’s

knowingly caused the death of a law enforcement officer who was acting in the

doubt was a heavy burden, and we have recognized that “[t]he unlikelihood of Kim, 153 N.H. at 328-29; see Costello, 159 N.H. at 121. Indeed, we have long to the jury why the accused would commit an otherwise senseless criminal act.

constitute a crime. State v. Avery, 126 N.H. 208, 213 (1985); see State v. the alleged offense often carries high probative value, even when those acts

crime. Palmer, 65 N.H. at 218-19; see Dearborn, 59 N.H. at 349. Therefore, defense regarding the issue of whether the accused committed the charged distinct disadvantage to the State and a corresponding advantage to the State was required to prove beyond a reasonable doubt that the defendant Here, to establish that the defendant committed capital murder, the

the prior crime is admissible for the limited purpose of showing motive.”). motive for the crime charged is the concealment of a prior crime, evidence of Martineau, 116 N.H. 797, 798-99 (1976) (“[I]t is well established that where the an element of the charged offense, presenting motive evidence can help explain (1879). Although the reason why an individual commits a criminal act is not

evidence of a defendant’s commission of other bad acts at or near the time of

less or more probable,” such that the lack of motive evidence operates as a recognized that “[t]he absence or presence of a motive renders the alleged fact disputed mens rea issue. See Smalley, 151 N.H. at 199 (holding that the bad p. 58 participation in the three non-capital crimes was highly probative on the court’s determination that the challenged evidence regarding the defendant’s

Nonetheless, the availability of this evidence does not undermine the trial

with some insight into aspects of his state of mind at the time of the shooting. cited by the defendant, such as the events of October 15, did provide the jury State to prove the disputed issues of motive and intent. The other evidence

appreciate what he characterizes as other “ample evidence” available to the We reject the defendant’s argument that the trial court failed to

cause the death of a law enforcement officer who was acting in the line of duty. when he shot Officer Briggs, the defendant was aware that his actions would

state of mind of the accused as to the charged crime. See Kim, 153 N.H. at surrounding those acts may be admitted if that evidence is probative of the

October 2006 non-capital crimes was highly probative of the State’s theory that

certain evidence of other bad acts, further details of the factual circumstances We have held that even when a defendant concedes the admissibility of

present its case through the evidence it deems most appropriate”).

discretion when it ruled that evidence of the defendant’s participation in the Therefore, we conclude that on this record the trial court acted well within its prominently in the defendant’s mind when Officer Briggs confronted him.

evidence detailing his financial deterioration to show his state of mind at the see also United States v. Sampson, 486 F.3d 13, 43 (1st Cir. 2007) (concluding evidence created a strong inference that the three prior crimes figured

diminish the highly probative value of prior crimes evidence because “within

showing his dire financial situation did not diminish the probative value of excluded simply because other evidence may be available on the same issue.”); 329-32 (holding that the defendant’s acquiescence to the admission of evidence force on any police officer who tried to apprehend him. The State’s proffered and intent to take extreme measures to avoid capture, including using deadly existence of other state of mind evidence in the case); State v. Cantara, 123 intent to evade the police when he fired the gun, but also that he had a motive issue of the accused’s state of mind at the time of the murder, despite the

that “other means” available to the government to prove salient issues did not

availability of other evidence, there is no requirement that a prior conviction be N.H. 737, 739 (1983) (“Although probative value might be reduced by the

crimes evidence to establish not only that the defendant had a motive and acts evidence added significant incremental probative value on the central As the trial court recognized, the State sought to introduce the prior

had spoken with Shipley and Swist.

looking for him in connection with the Roy Drive shooting and that the police left behind at two of the crime scenes. He further knew that the police were the case.” State v. Belonga, 163 N.H. 343, 360 (2012) (quotation omitted).

p. 59 to base its decision upon something other than the established propositions in to punish, or trigger other mainsprings of human action that may cause a jury appeal to a jury’s sympathies, arouse its sense of horror, or provoke its instinct “Evidence is unfairly prejudicial if its primary purpose or effect is to

as that used in the Briggs murder.” Again, we discern no error in this ruling. witnesses in this case, and that the gun used in the prior crimes was the same actions at the time of the shooting of Officer Briggs, his relationship with the

circumscribing the scope of the details to “explain, for example, the defendant’s

effect would be minimized by its providing limiting instructions and (Citations and quotation omitted.) The court further stated that any prejudicial

established propositions in the case.

the jury to base its decision on something other than the knowledge and identity. These acts are not likely to cause introduced for the proper purpose of proving motive, intent,

arouse any other emotional reaction. Rather, it is being

being introduced to appeal to the jury’s sympathies or to

Belonga, 163 N.H. at 360; Beltran, 153 N.H. at 649. Generally, the greater the of similarity, if any, between the other bad acts and the charged offense. Among the factors germane to the unfair prejudice inquiry is the degree

the defendant. The evidence at issue in this motion is not guns, they are not so similar as to cause unfair prejudice to charge are similar in that they are acts of violence involving Although the prior crimes and the capital murder

360; Kim, 153 N.H. at 331. The trial court must examine the nature of the similarity, the greater the potential for unfair prejudice. Belonga, 163 N.H. at

N.H. at 649. detrimental to the defendant because it tends to prove his guilt.” Beltran, 153 Unfairly prejudicial evidence “is not, however, evidence that is merely

In its pretrial ruling, the trial court concluded that:

prejudice: its content; its volume; and the manner in which the State used it.

He identifies three aspects of the prior crimes evidence as giving rise to unfair fully the prejudicial impact of providing a detailed account of his prior crimes. Nonetheless, the defendant argues that the trial court failed to appreciate

time of the murders); cf. Beltran, 153 N.H. at 648-49 (holding that the

is the case here. circumstances of this past abuse to show his girlfriend’s state of mind). Such not diminish the probative value of evidence detailing the specific defendant’s decision not to challenge evidence that he abused his girlfriend did p. 60 168 pages constitutes less than one day of trial testimony in the guilt phase

participants, different investigating officers, and different locations. Indeed, concerning the three serious non-capital crimes that involved different represent the evidence admitted during the direct testimony of nine witnesses

order was not excessive. The 168 pages of transcript and forty exhibits

volume of transcript testimony and related exhibits admitted pursuant to that crimes was the same as that used in the Briggs murder.” We conclude that the relationship to the witnesses in this case, and that the gun used in the prior

defendant’s actions at the time of the shooting of Officer Briggs, his

details of the prior crimes that were necessary to explain, for example, the The trial court’s pretrial order allowed the State to present “only those

pertaining to his prior non-capital crimes.

transcript pages of direct examination testimony, as well as forty exhibits

crimes evidence gave rise to unfair prejudice. He identifies approximately 168 The defendant also contends that the volume of the detailed recent

crimes differed in significant ways from the capital murder charge.

capital murder, no physical violence occurred. In short, each of the three clerk during the 7-Eleven convenience store robbery, in contrast to the charged gunman. Furthermore, even though the defendant pointed a loaded gun at the

and steal jewelry and cash. In the Roy Drive shooting, Bell-Rogers was the

instance, the defendant used a utility knife, not a gun, to threaten a customer the capital murder charge. During the El Mexicano Restaurant robbery, for and the crimes did not involve violence comparable to the conduct alleged in The defendant possessed the gun during only one of the prior crimes,

danger of unfair prejudice substantially outweighed their probative value. that the recent crimes are not so similar to the charged capital murder that the violence involving guns. Yet, the record supports the trial court’s conclusion

prior crimes are serious, and, like the charged capital murder, are acts of

knowledge or intent is a contested issue in the case.” Smalley, 151 N.H. at

based upon emotion rather than reason. See Russell, 159 N.H. at 485; inferences about his character. We agree with the trial court that all three evidence carried a greater risk of inviting the jury to convict him based upon contends that because the recent crimes were violent and similar in nature, the With respect to the content of the prior crimes evidence, the defendant

frequently outweighed by the relevance of the evidence when a defendant’s

that would arouse the emotions of a jury and cause the jury to decide the case other bad acts evidence to determine whether it is inflammatory in a manner

200; see Russell, 159 N.H. at 485.

rise to a significant potential for prejudice, however, that potential “is McGlew, 139 N.H. at 510. Even when the nature of prior crimes evidence gives the demeanor testimony. See State v. Eaton, 162 N.H. 190, 195 (2011); State

p. 61 crimes evidence, and, as the State notes, the defendant did not object at trial to

detailed proffer upon which the trial court relied when deciding to admit prior court’s pretrial evidentiary ruling was not expressly identified by the State’s testimony upon which the defendant now bases his challenge to the trial

testimony, however, was not preserved for appellate review. The demeanor

during the Roy Drive shooting. The defendant’s challenge to this particular 7-Eleven store clerk was jammed; and he was excited about dodging bullets Restaurant crime; he laughed when learning that the gun he pointed at the

patron was scared when he robbed him at knifepoint during the El Mexicano

Shipley and Swist describing his demeanor: he appeared unconcerned that a With respect to the trial testimony, the defendant gives examples of

crimes during its closing argument.

evidence. Even assuming that the State’s closing remarks regarding the

committing the other crimes,” as well as the State’s discussion of the prior

consider them when assessing the prejudicial impact of the prior crimes

testimony that the State elicited from witnesses “implying that he enjoyed great emotional impact and appeal to a juror’s sense of resentment. He cites presented the prior crimes evidence created an undue risk that it would have a The defendant next contends that the manner in which the State actually

closing remarks “as independently-preserved error,” the defendant urges us to offenses” during its closing argument. While he does not challenge the State’s The defendant also points out that the State “addressed the extrinsic

fell within its sound discretion. volume of evidence, as confined by the boundaries it established in its order,

were not unfairly prejudicial. prior crimes evidence provided insight into the defendant’s state of mind and defendant’s conduct and statements. These relatively minor aspects of the 61

with the State’s pretrial proffer, and the trial court’s decision to allow this

reversible error. The challenged testimony consists of brief descriptions of the Nonetheless, even assuming this challenge was preserved, we find no

unduly voluminous. The scope of the prior crimes evidence was consistent failed to demonstrate that the evidence allowed by the trial court’s ruling was itself, may give rise to unfair prejudice, we conclude that the defendant has

v. Winward, 161 N.H. 533, 542 (2011).

without deciding, however, that the volume of prior crimes evidence, in and of

generally focuses upon the content of the evidence, not its volume. Assuming, Our unfair prejudice analysis under the balancing prong of Rule 404(b)

witnesses and numerous exhibits. trial that lasted approximately three weeks and included more than forty officer.

p. 62 person who was more likely to have knowingly shot a police consider it as evidence that Michael Addison is the type of evidence of motive, intent, or knowledge, you may not Thus, while you may consider the prior crimes as

committed capital murder. character, as evidence that Addison is more likely to have

unreasonable to the prejudice of his case. See Davidson, 163 N.H. at 467. pretrial ruling to admit the prior crimes evidence was clearly untenable or

evidence, which reflects badly on Michael Addison’s

we hold that the defendant has failed to demonstrate that the trial court’s

Addison’s character is not on trial. You may not consider any Addison’s state of mind at the time of that conduct. Michael Addison’s conduct when Officer Briggs was shot and Michael

unfair prejudice that substantially outweighed its probative value. Accordingly, and manner in which the State used the evidence gave rise to a danger of In sum, we reject the defendant’s argument that the content, volume, 62

Michael Addison’s character. This trial is about Michael[ ]

jurisdictions that have addressed such evidentiary issues in similar contexts. Our holding is in keeping with the rulings of numerous courts in other

[Y]ou may not consider the evidence as it might reflect on

evidence. See Ayer, 154 N.H. at 513 (whether the trial court provided a limiting not as it relates to his character or personality in general. instruction to the jury as to the relevance and proper use of the prior crimes Michael Addison’s state of mind at the time of the shooting, We further observe that the trial court provided a clear limiting The evidence may only be considered as it relates to

of the evidence, stating: Indeed, it instructed the jury three times on both the proper and improper uses points presented to the jury. See State v. Chick, 141 N.H. 503, 504 (1996). In the State’s closing without developing any argument concerning the particular

based upon criminal propensity. State’s closing statements were not inflammatory and did not invite a verdict purposes of establishing motive, intent, or knowledge. We conclude that the

instruction is part of the evaluation of the Rule 404(b) balancing calculus). 404(b) analysis, the defendant merely cites isolated pages of the transcript of challenged prior crimes evidence are pertinent to the third prong of the Rule

trial court’s orders limiting the use of the prior crimes evidence to the proper any event, the cited transcript pages show that the State complied with the points to Swist’s testimony that Bell-Rogers and the defendant discussed who

p. 63 adequately showed his familiarity with the gun. For instance, the defendant

apartment was diminished by other evidence available to the State that Birely’s testimony of his possession of Bell-Rogers’s gun at the Central Street The defendant next argues that the probative value of the video and

to shoot at Dale Swist and Bruce Edwards.” Swist’s apartment while he and Bell Rogers discussed going over to [Roy] Drive evidence that “the defendant handled the gun before they left Shipley and

otherwise. In its pretrial offer of proof, the State outlined the anticipated

testimony fell outside of the State’s pretrial proffer. Again, the record shows it away from Bell-Rogers. We also reject the defendant’s argument that Birely’s with Bell-Rogers’s gun and possessed it at the time of the murder only to keep

ruling, the court cited the defense theory that the defendant was unfamiliar

whether the defendant recklessly or knowingly shot Officer Briggs. In so

surveillance video. The trial court ruled that the video was highly probative of apparent during the trial — that prompted the State to seek admission of the video to the jury. Moreover, it was the defendant’s strategy — as it became

the defendant was informed before trial that the State might seek to show the

b. Trial Rulings

motive”). trial regarding the expected use of the video. The record, however, shows that The defendant first argues that the State unfairly changed its tactic at

Central Street apartment before the Roy Drive shooting.

that “[w]ide latitude is generally allowed in the development of evidence of

Birely to testify that he saw the defendant in possession of the gun at the intentionally rather than recklessly”); State v. Mallett, 732 S.W.2d 527, 535 to view the 7-Eleven surveillance video recording; and the second allowed Paul court made during the guilt phase of the trial: the first ruling allowed the jury We next address the defendant’s challenge to two bench rulings that the

commission of the charged first-degree murder of a police officer, emphasizing

enforcement, the more plausible was the State’s theory that he did so had to kill the officer and thus evade capture and future dealings with law police officer because, among other things, “[t]he more reasons [the defendant]

defendant’s participation in an armed robbery about one month before the See, e.g., Lesko v. Owens, 881 F.2d 44, 53-54 (3d Cir. 1989) (“Where the motive (Mo. 1987) (en banc) (affirming trial court’s admission of detailed account of

drug activities to prove motive and intent to commit aggravated murder of a 1351 (Utah 1997) (affirming decision to admit evidence of defendant’s prior crime being hidden is highly probative.”); State v. Pearson, 943 P.2d 1347, extreme example, killing a policeman — the severity and circumstances of the of a killing is interference with law enforcement — in this case the most p. 64 Rogers’s firearm was “the most important issue in this case.” See Russell, 159 defense counsel candidly acknowledged that the defendant’s knowledge of Bell-

testimony of the store clerk, as well as that of Shipley and Swist. See id. participation in the armed robbery itself was already in evidence through defendant appears on the screen for only a portion of that time. Moreover, his

mischaracterized his defense. Indeed, during one colloquy with the trial court,

See Davidson, 163 N.H. at 467. shown to the jury, however, was brief — it lasted less than one minute and the

evidentiary rulings, and the defendant did not assert that the court weapon. The trial court referred to these defense themes in making its and that it was Bell-Rogers who was knowledgeable about and controlled the testimony were clearly untenable or unreasonable to the prejudice of his case. of emotion and outrage that” Rule 404(b) is intended to prevent. The video the trial court’s bench rulings to admit the video recording and Birely’s Accordingly, we hold that the defendant has failed to demonstrate that

issues in the case. See State v. Hennessey, 142 N.H. 149, 156 (1997)

defendant developed themes that he had little prior experience with the gun

a video of [him] committing another crime with a gun risked inspiring the kind Regarding unfair prejudice, the defendant argues that “[s]howing the jury an unfairly prejudicial impact on the jury. its graphic nature). video). We note that the defendant does not argue that Birely’s testimony had was brief and the jury had already heard the victim’s testimony about the

apartment before the Roy Drive shooting was highly probative of disputed

merely to protect others, not to cause harm. Throughout the trial, the knowingly and that he possessed Bell-Rogers’s gun at the time of the shooting shooting of Officer Briggs was a reckless act rather than one committed

eliminate the probative value of playing the video for the jury in order to convey (affirming decision to allow display of pornographic video, in part, because it

7-Eleven surveillance video and of Birely’s observation at the Central Street that evidence of the defendant’s handling of the gun as depicted in the We conclude that the trial court exercised sound discretion when ruling

of the trial when he stated to the jury in his opening statement that his The defendant placed his state of mind squarely at issue at the inception

(concluding that the victim’s testimony about a pornographic video did not apartment just prior to the murder. We reject the defendant’s challenge.

evidence be relevant to an issue in serious dispute). N.H. at 485 (emphasizing the importance under Rule 404(b) that bad acts

another witness, Kelly Ann Grady, that the defendant possessed the gun at her would carry the gun during the 7-Eleven robbery, as well as to the testimony of p. 65 Beyond a reasonable doubt does not mean that the

element of the alleged offense. beyond a reasonable doubt — that he is guilty of every him to be an innocent person until the State convinces you —

courtroom as an innocent person, and you must consider

. . . . Remember that the Defendant enters this

prove his innocence.

the State. The Defendant, Michael Addison, does not have to

reasonable doubt. The burden of proving guilt is entirely on

what the words would ordinarily imply. The use of the word impossibility of innocence. Rather, a reasonable doubt is just mathematical certainty or demonstrate the complete State must prove its case beyond all doubt or to a presumed to be innocent until proven guilty beyond a Under our Constitutions, all Defendants in criminal cases are

the following reasonable doubt instruction at the conclusion of the guilt phase:

independent constitutional analysis. See id. at 513; see also Chick, 141 N.H. 404(b) argument. Accordingly, we conclude that these claims do not warrant State v. Wentworth, 118 N.H. 832, 838-39 (1978). Defense counsel objected sentence that is not part of the model reasonable doubt instruction set forth in jury instructions with counsel. The reasonable doubt instruction included a Toward the end of the guilt phase of the trial, the court reviewed the final

1. Background

B. Reasonable Doubt Instruction doubt. The trial court overruled the defendant’s objection and gave the jury Constitutions, see N.H. CONST. pt. I, art. 15; U.S. CONST. amends V, XIV. sentence accurately reflected the case law on the definition of reasonable well as his due process rights to a fair trial under the State and Federal however, argued that the reasonable doubt instruction with the challenged and asked the court to give only the Wentworth instruction. The State,

appeal are presented without developed legal argument apart from his Rule

at 504. only Rule 404(b), but also New Hampshire Rules of Evidence 401 and 403, as The defendant argues in passing that the trial court’s rulings violated not

did not expressly address them. The defendant’s constitutional arguments on fashion to the trial court, which, we assume, the court rejected even though it The defendant presented his constitutional arguments in a similarly cursory import of Rules 401 and 403 as to those rulings. See Ayer, 154 N.H. at 512. Our analysis under Rule 404(b) necessarily incorporates an analysis of the p. 66 2. Appellate Argument

the emphasized sentence.

(Emphasis added.) The defendant’s challenge relates only to the inclusion of

unanimous. you should find the Defendant guilty. Your verdict must be

elements of the offense charged beyond a reasonable doubt,

However, if you find that the State has proved all of the instructions. See State v. Eaton, 162 N.H. 190, 195 (2011); State v. Winward, deciding that his appellate argument was preserved by his objection to the final find the Defendant not guilty.

Victor v. Nebraska, 511 U.S. 1, 5 (1994); see State v. Belkner, 117 N.H. 462, instruction that he challenges on appeal. We, however, assume without one or more of the elements of the crime charged, you must

element of the crime charged beyond a reasonable doubt. State v. Saunders,

defining reasonable doubt” or “requires them to do so as a matter of course.” preliminary jury instructions, which included the identical reasonable doubt a reasonable doubt as to whether the State has proved any offered against it. The test you must use is this. If you have after consideration of all of the evidence that the State has Both the State and Federal Constitutions require the State to prove each

471 (1977); State v. Slade, 116 N.H. 436, 439 (1976). “[S]o long as the court

Neither the State nor the Federal Constitution “prohibits trial courts from As the State notes, the defendant did not object to the trial court’s 164 N.H. 342, 349 (2012); see In re Winship, 397 U.S. 358, 364 (1970).

3. Discussion Rather, it is such a doubt based on reason as remains

v. Ball, 124 N.H. 226, 231-33 (1983). state and federal due process rights, entitling him to a new trial. See N.H. State Constitution and rely upon federal law only to aid our analysis. See State impermissibly lowered the State’s burden of proof and thereby violated his 161 N.H. 533, 542 (2011). We first address the defendant’s claim under the

CONST. pt. I, art. 15; U.S. CONST. amend. XIV. that can be easily explained away. reason. It is not a frivolous or fanciful doubt, nor is it one

The defendant argues that the trial court’s reasonable doubt instruction

rather than unreasonable. It must be a doubt based on reasonable means simply that the doubt must be reasonable in any strange, peculiar or extraordinary way. Nor is it

p. 67 in Aubert, 120 N.H. at 637-38. likens the instruction in this case to the instruction we held unconstitutional

upon you the duty of looking . . . or examining this evidence

Now, it is not an object of this rule of proof to impose

there was a reasonable likelihood that the jury believed that it could convict and that [it] need not ‘demonstrate the complete impossibility of innocence,’” State need not prove guilt ‘beyond all doubt’ or ‘to a mathematical certainty’

Wentworth charge: conviction. See Sullivan v. Louisiana, 508 U.S. 275, 278-82 (1993); State v. In Aubert, the trial court added the following language to the model “beyond a reasonable doubt” standard, then we must reverse the defendant’s

Wentworth charge is constitutionally required. See Wentworth, 118 N.H. at that the jury did so apply it.” Victor, 511 U.S at 6; see Saunders, 164 N.H. at in an unconstitutional manner, but whether there is a reasonable likelihood

Saunders, 164 N.H. at 353 (quotation and ellipsis omitted); Victor, 511 U.S. at guilt. Victor, 511 U.S. at 15; State v. Aubert, 120 N.H. 634, 637 (1980) (citing conviction based on proof insufficient to meet” the reasonable doubt standard. The defendant argues that because “the trial court emphasized that the reasonable likelihood that the jury understood the instructions to allow Hall, 148 N.H. 394, 400 (2002). overall jury charge. Saunders, 164 N.H. at 350; see Cupp v. Naughten, 414

instructions to allow conviction based upon less than that required by the 352-53. If there is a reasonable likelihood that the jury understood the burden of proof.” Victor, 511 U.S. at 5; see Belkner, 117 N.H. at 471; Slade, any particular form of words be used in advising the jury of the government’s authority, instructed trial courts to use it, we have never held that the model 6. “[T]he proper inquiry is not whether the instruction could have been applied

need for it to reach a “subjective state of near certitude” as to the accused’s U.S. 141, 146-47 (1973). “The constitutional question is whether there is a jury.” Victor, 511 U.S. at 5 (quotation and brackets omitted); see Slade, 116 We review a challenged reasonable doubt instruction in the context of the

838-39.

a reasonable doubt,” the State and Federal Constitutions “do[ ] not require that suggested a model charge on reasonable doubt and, under our supervisory instructs the jury on the necessity that the defendant’s guilt be proved beyond Jackson v. Virginia, 443 U.S. 307, 315 (1979)). Although in Wentworth, we

N.H. at 439. This means that the instructions must impress upon the jury the

“taken as a whole, . . . correctly convey the concept of reasonable doubt to the 116 N.H. at 439. Rather, both constitutions require that the instructions, upon reason. The government is not required to prove guilt p. 68 Id. at 636 (quotation and emphases omitted). We held that this paragraph doubt based on speculation or guesswork; it is a doubt based matters in life. However, it is not an imaginary doubt, nor a doubt.

reflection, to hesitate to act in the graver or more important fully met when it has established guilt beyond a reasonable

government never has to prove guilt beyond all doubt, they do not have to on reasonable doubt, revising the final sentence of the instruction to say: “The cause a reasonable person, after careful and thoughtful establish guilt to a scientific certainty. The State’s burden is In response to a jury question, the trial court again instructed the jury is not the State’s burden. Neither is the State required to required to establish guilt to a mathematical certainty. That

mathematical certainty, and they do not have to prove guilt to a scientific prove guilt beyond a shadow of a doubt, they do not have to prove guilt to a standard.” Id. and need not establish guilt beyond all doubt violated the spirit of that Reasonable doubt is the kind of doubt that would

Id. (quotation omitted and emphasis added); see Smith, 709 A.2d at 82. all doubt. That is not the State’s burden. The State is not had approved in Smith v. United States, 709 A.2d 78, 81 (D.C. 1998) (en banc). Its burden is to prove guilt beyond a reasonable doubt. beyond all doubt, or to a mathematical or scientific certainty.

mathematical certainty, and need not establish guilt to a scientific certainty,

Blaine, 18 A.3d at 769. That instruction stated the following: Jury, that the State is not required to establish guilt beyond reasonable doubt instruction which the District of Columbia Court of Appeals almost never be attained. But bear in mind, Members of the instructive. In Blaine, the trial court initially gave the jury the “standard” knowledge to all of us that absolute positive certainty can that in Blaine v. United States, 18 A.3d 766 (D.C. 2011), we find Blaine Because the instruction we ruled unconstitutional in Aubert is similar to

court’s “repeated emphasis that the State need not establish guilt to a Id. at 637 (quoting Jackson, 443 U.S. at 315). We concluded that the trial impress upon the jury “the need to reach a ‘subjective state of near certitude.’” Supreme Court has indicated that a reasonable doubt instruction should “overly favored the prosecution.” Id. We observed that the United States burden in establishing its case. It is a matter of common intended by this rule to impose upon the State an impossible p. 69 69 is nearly identical to language approved in other jurisdictions. See, e.g., Com.

impossibility of innocence.” Unlike the instructions in Aubert and Blaine, the required to establish guilt to a scientific certainty.” Aubert, 120 N.H. at 636 doubt. It mentioned the State’s burden of proof more than ten times. See mathematical certainty. That is not the State’s burden. Neither is the State emphasized the State’s duty to prove the defendant’s guilt beyond a reasonable Moreover, throughout the jury charge, the trial court repeatedly

aff’d, 414 F.3d 419 (3d Cir. 2005).

not the State’s burden. We also note that the challenged sentence in this case when, among other things, district court referenced government’s burden ten and that the jury came to its verdict accordingly.” Id. United States v. Van Anh, 523 F.3d 43, 58 (1st Cir. 2008) (instruction adequate beyond all doubt or to a mathematical certainty, or demonstrate the complete

is not the State’s burden. The State is not required to establish guilt to a

The challenged sentence in this case is like the “short sentence” in Smith 90-92 (E.D. Pa. 2001) (approving charge on habeas review in capital case), v. Gartner, 381 A.2d 114, 122 (Pa. 1977); Laird v. Horn, 159 F. Supp. 2d 58, doubt “the jurors need not have.” Blaine, 18 A.3d at 772-73, 779. . . . ‘more graphic,’ emphatic, and repetitive language” to explain the level of

trial court’s instruction neither repeated nor excessively emphasized what was

to the jury a lower standard of reasonable doubt than due process requires, “Beyond a reasonable doubt does not mean that the State must prove its case in addition to the model Wentworth charge, the trial court stated the following: was “not”: “[T]he State is not required to establish guilt beyond all doubt. That rather than the extended, repetitive explanations in Aubert and Blaine. Here,

In both Aubert and Blaine, the challenged reasonable doubt instructions doubt, or to a mathematical or scientific certainty’” — the trial court used “new, sentence in Smith — ‘The government is not required to prove guilt beyond all (quotation and emphases omitted). Similarly, in Blaine, instead of the “short

process,” the court reasoned, “there is a reasonable likelihood that [it] conveyed

extended rat-a-tat explaining of what reasonable doubt is ‘not.’” Id. at 779. Instead, the court’s instruction repeatedly emphasized what the State’s burden guilt beyond all doubt or to either a mathematical or scientific certainty. the trial court did not merely instruct the jury that the State need not establish included an extended explanation of what reasonable doubt is not. In Aubert,

certainty; they have to prove guilt beyond a reasonable doubt.” Blaine, 18 A.3d

Even if the new language was not “itself . . . inherently a violation of due

became unbalanced from added weight on the government’s side created by an doubt. Id. at 771, 779. Specifically, the court explained that “the reinstruction reinstruction to impose a burden of proof lower than beyond a reasonable that there was a reasonable likelihood that the jury understood the at 771 (quotation omitted). The District of Columbia Court of Appeals ruled of the requested sentence of death. See RSA 630:5, I(b) (2007). The first three

p. 70 aggravating factors and fourteen non-statutory aggravating factors in support The State’s amended death penalty notice identified four statutory

mitigating factors, and the jury’s findings.

sentencing, identifying the alleged aggravating factors, certain proposed

argument. As background, we provide an overview of the defendant’s admission of prior crimes evidence; and (5) the scope of the State’s closing and rejection of evidence of and jury instruction on mode of execution; (4) the

impact evidence; (3) the admission of evidence on conditions of confinement

a reasonable doubt” standard. Saunders, 164 N.H. at 353. Because the convict the defendant based upon proof less than that required by the “beyond

instructing a jury as to reasonable doubt.” Van Anh, 523 F.3d at 59. We

required for death eligibility, see RSA 630:5, IV, VII(a) (2007), alleging: See id.; see also United States v. O’Shea, 426 F.3d 475, 483 (1st Cir. 2005) involve: (1) the exclusion of his custodial statement; (2) the admission of victim statutory aggravating factors focused upon the mens rea of “purposely” affect your obligation to presume the Defendant innocent of capital murder.” “[S]imply because you were asked questions about the death penalty does not

likelihood that the jury understood the challenged instruction as allowing it to

“We emphasize that courts must exercise the utmost care when

under the Federal Constitution as we do under the State Constitution. See sentence selection phases of the capital murder trial. His assignments of error The defendant raises several arguments relating to the eligibility and offense — he is presumed innocent.” The court further instructed the jury: VII. SENTENCING PHASE REVIEW

the model Wentworth charge. See Aubert, 120 N.H. at 637-38. language in the model Wentworth charge, the trial court instructed the jury: Viewing the charge as a whole, we hold that there is no reasonable reiterate our view that there are few circumstances that would justify adding to

of the presumption of innocence”).

Victor, 511 U.S. at 5.

State Constitution in these circumstances, we reach the same conclusion Federal Constitution affords the defendant no greater protection than does the . . . . [W]hether a Defendant is charged with a very serious crime — or a minor

afforded to the defendant. In addition to the presumption of innocence times). The court also repeatedly underscored the presumption of innocence

(instruction adequate when district court “gave a careful and cogent discussion

“The seriousness of this crime has no bearing on the presumption of innocence p. 71 1. Other Serious Acts of Violence: Assault and Battery and

from 1996 to 2003:

delinquent to these two offenses on January 5, 1999.

non-statutory aggravating factors related to the defendant’s criminal conduct and the impact of the murder on Officer Briggs’s family. The first five alleged and potential future dangerousness, as well as aspects of the capital murder

would kill her. The defendant, Michael K. Addison, pled and threaten to commit a crime against her by saying he Michael K. Addison, did assault and beat Cheryl Kiser

See RSA 630:5, VII(a). Proof of only one of these alternative statutory See RSA 630:5, VII(j) (2007). These statutory aggravating factors alleging the

Michael L. Briggs. lawful arrest or effecting an escape from lawful custody. ii. resulted in the death of Manchester Police Officer Michael L. Briggs for the purpose of avoiding or preventing a offense; and to a person, other than one of the participants in the defendant’s prior serious acts of violence, other prior serious criminal behavior, i. the defendant knew would create a grave risk of death The fourteen non-statutory aggravating factors pertained to the C. Michael K. Addison purposely engaged in conduct which: 1996, in South Boston, Massachusetts, the defendant, Threatening to Commit a Crime. On or about August 10, Michael L. Briggs; and/or

Michael K. Addison murdered Manchester Police Officer

jury indictment. defendant’s eligibility to receive a death sentence were included in the grand

which resulted in the death of Manchester Police Officer B. Michael K. Addison purposely inflicted serious bodily injury

purpose for committing the crime, alleging that: aggravating factor relating to death eligibility focused upon the defendant’s required for death eligibility. See RSA 630:5, IV. The fourth statutory aggravating factors was necessary to establish the “purposely” mens rea

Officer Michael L. Briggs; and/or A. Michael K. Addison, purposely killed Manchester Police p. 72 4. Other Serious Criminal Behavior: False Imprisonment.

convicted of these three offenses on December 3, 1997. The defendant, Michael K. Addison pled guilty and was Purdy while he was on the ground with his shod foot.

5. Other Serious Criminal Behavior: Probation Violation.

2003.

stabbing Purdy in the back with a knife and kicking

guilty and was convicted of this offense on November 4,

Tredaine Purdy by means of dangerous weapons, by probation and was found in violation by the Court.

locked vehicle. The defendant, Michael K. Addison, pled with his physical movements, by keeping him inside a also committed two counts of assault and battery upon Brian St. Peter unlawfully as to interfere substantially Michael K. Addison, stipulated to the violation of Tredaine Purdy. The defendant, Michael K. Addison, false imprisonment. On August 6, 2004, the defendant, of Tredaine Purdy a hat, which was the property of the terms of his probation by committing the crime of

in concert with Mathys Morgan, knowingly confined

intent to rob him, and did rob and steal from the person Hampshire, the defendant, Michael K. Addison, violated On or about October 27, 2003, in Londonderry, New

convicted of these three offenses on July 21, 1997. defendant, Michael K. Addison pled guilty and was and pulled the trigger twice. The gun did not fire. The Hampshire, the defendant, Michael K. Addison, acting On or about October 27, 2003, in Londonderry, New weapon (a knife) and assaulted Tredaine Purdy with Michael K. Addison, was armed with a dangerous 1997, in Roxbury, Massachusetts, the defendant,

then pointed an unlicensed loaded revolver at the victim

Weapon (knife and shod foot). On or about March 20, Two Counts of Assault and Battery with a Dangerous 2. Other Serious Acts of Violence: Assault with Intent to 3. Other Serious Acts of Violence: Armed Robbery and

Addison, struck a male victim (M.A.) in the head and Dorchester, Massachusetts, the defendant, Michael K. without a Permit. On or about December 6, 1996, in Kill, Assault and Battery and Possession of a Firearm p. 73 9. Other Serious Criminal Behavior: Felon in Possession.

10. Other Serious Criminal Behavior: Accomplice to

conspirator Antoine Bell-Rogers agreed to threaten

December 19, 2007. convicted Michael K. Addison of these offenses on December 19, 2007. convicted Michael K. Addison of this offense on 73

October 15, 2006, where he and his accomplice/co- 8. Other Serious Criminal Behavior: Armed Robbery and

of this offense on February 27, 2008.

Hampshire on or about October 11, 2006. A jury

October 11, 2006, in Hudson, New Hampshire. A jury

K. Addison, was involved in an incident on or about Commit Criminal Threatening. The defendant, Michael Reckless Conduct With a Firearm and Conspiracy to October 10, 2006. A jury convicted Michael K. Addison

Rogers, robbed the 7-Eleven Store in Hudson, New his accomplices/co-conspirators, including Antoine Bell committed armed robbery with a firearm when he and conspirators, including Antoine Bell Rogers, on or about 7. Other Serious Criminal Behavior: Felon in Possession. robbery of the 7-Eleven Store with his accomplices/copossession of a firearm when he committed the armed K. Addison of this offense on February 27, 2008. The defendant, Michael K. Addison, was a felon in

conspirators, including Antoine Bell Rogers, on or about Manchester, New Hampshire with his accomplices/coarmed robbery of the El Mexicano Restaurant in

Michael K. Addison, agreed to rob a store and then Conspiracy to Commit Robbery. The defendant,

on or about October 10, 2006. A jury convicted Michael El Mexicano Restaurant in Manchester, New Hampshire including Antoine Bell Rogers, robbed customers of the

6. Other Serious Criminal Behavior: Armed Robbery. The possession of a deadly weapon when he committed the The defendant, Michael K. Addison, was a felon in three October 2006 non-capital criminal incidents: The next five alleged non-statutory aggravating factors related to the

robbery when he and his accomplices/co-conspirators, defendant, Michael K. Addison, committed armed potential.

p. 74 11. Other Serious Criminal Behavior: Felon in Possession.

with violence and has demonstrated low rehabilitative criminal and violent conduct, has threatened others Addison, has engaged in a continuing pattern of

the defendant’s conduct with respect to the murder: 13. Future Dangerousness of the Defendant: The Non-statutory aggravating factors eleven and twelve related to aspects of

the family of Officer Briggs:

alleged in this Notice, the defendant, Michael K.

12. Other Serious Criminal Behavior: Reckless Conduct. aggravating factors.” defendant’s potential future dangerousness and the impact of the murder upon 2006. The last two alleged non-statutory aggravating factors pertained to the

neighborhood in Manchester, New Hampshire. the statutory and non-statutory aggravating factors addition to the charged offense of capital murder and continuing and serious threat to others in prison. In

defendant’s prior criminal history as the “prior crimes non-statutory Manchester, New Hampshire on or about October 16, We refer to these ten alleged non-statutory aggravating factors relating to the

on November 29, 2007. Michael L. Briggs by leaving it outside in a

criminal acts of violence in the future which would be a defendant, Michael K. Addison, is likely to commit

of Manchester Police Officer Michael L. Briggs in

jury convicted Michael K. Addison of these two offenses firearm he used to murder Manchester Police Officer Edward J. Roy Drive in Manchester, New Hampshire. A danger of serious bodily injury by disposing of the discharged a firearm outside a residence located at 345 K. Addison, placed or may have placed another in On or about October 16, 2006, the defendant, Michael

possession of a firearm, when he committed the murder The defendant, Michael K. Addison, was a felon in

with and aided by the defendant, Michael K. Addison, people in a residence and Bell-Rogers, acting in concert proven the existence of the charged statutory aggravating factors. See RSA p. 75 At the eligibility phase of trial, the jury considered whether the State had

prison setting.

juror.

demonstrated his potential to adjust well in a secure

evidence sixteen of the twenty-eight factors to the satisfaction of at least one the Special Verdict Form shows that he proved by a preponderance of the of the defendant. Regarding the mitigating factors submitted by the defendant,

defendant has committed no crimes and his behavior has (8) During his two years of pre-trial confinement, the

or protracted cruelty. (4) The circumstances of the homicide did not involve torture

Murder but his offer was rejected by the State. (2) The defendant attempted to plead guilty to Capital

and (2) the non-statutory aggravating factor alleging the future dangerousness

aggravating factor charging that the defendant “purposely killed” Officer Briggs; prison without the possibility of release. State. The two factors that the State failed to prove were: (1) the statutory automatically, as a matter of law, sentenced to life in reasonable doubt all but two of the eighteen aggravating factors alleged by the (1) If the defendant is not sentenced to death, he will be

factors. See RSA 630:5, IV (outlining the parties’ respective burdens of proof). statutory aggravating factors, and whether the defendant had proven mitigating considered, among other things, whether the State had proven the noticed non- With respect to the mitigating factors set forth above, factor one (life

Ultimately, the jury unanimously found that the State had proven beyond a submitted mitigating factors that relate to the issues on appeal were: circumstances of the crime and his background and character. The only The defendant identified twenty-eight mitigating factors, including the 630:5, III, IV (2007). At the sentence selection phase of trial, the jury harm.

victim’s family has suffered severe and irreparable Briggs family extreme emotional suffering, and the

The murder of Officer Michael L. Briggs has caused the

14. Victim Impact Evidence: The defendant caused injury,

and the impact of the death upon the victim’s family. personal characteristics as an individual human being Officer Michael L. Briggs because of the victim’s harm, and loss to the family of Manchester Police sentence of death.

p. 76 factors and as to appropriateness in that case of imposing a establish the existence of any of the aggravating or mitigating present argument as to the adequacy of the information to

received at the hearing and shall be given fair opportunity to

the defendant shall be permitted to rebut any information confusion of the issues, or misleading the jury. The state and substantially outweighed by the danger of unfair prejudice,

information may be excluded if its probative value is

admission of evidence at criminal trials, except that regardless of its admissibility under the rules governing factors may be presented by either the state or the defendant,

other information relevant to such mitigating or aggravating

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

exhibits if the hearing is held before a jury or judge not Information presented may include the trial transcript and which notice has been provided under subparagraph I(b).

may be presented relating to any other aggravating factor for

aggravating factors set forth in paragraph VII, information Where information is presented relating to any of the which notice has been provided under subparagraph I(b).

other mitigating factor or any other aggravating factor for

mitigating factors set forth in paragraphs VI and VII, or any presented as to matters relating to any of the aggravating or prepared. In the sentencing hearing, information may be

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

pertinent part: standard applicable to capital sentencing hearings. RSA 630:5, III provides, in Before addressing the appellate issues, we set forth the evidentiary

and verdict are recorded on a Special Verdict Form included in Appendix B. the evidence, when determining the defendant’s sentence. The jury’s findings

aggravating factors and sixteen proven mitigating factors, along with the rest of

The trial court required the State to choose between the two proven mens

torture or protracted cruelty), and eight (prison adjustment) were not. without parole) was found proven, but factors two (plea offer), four (lack of

court instructed the jury accordingly. Thus, jurors considered fifteen proven inflicted serious bodily injury which resulted in Officer Briggs’s death, and the phase. The State selected the proven factor that the defendant purposely whether to impose a sentence of death at the close of the sentence selection rea statutory aggravating factors for the jury to consider when deciding construction is in keeping with established capital sentencing jurisprudence.

p. 77 outweighed” by the identified dangers. See N.H. R. Ev. 403; cf. United States v. exclusion of relevant evidence only when the probative value is “substantially Rule of Evidence 403 in that both RSA 630:5, III and Rule 403 allow for the

more relevant capital sentencing information, rather than less. This

waste of time, or needless presentation of cumulative evidence.” N.H. R. Ev. issues, or misleading the jury.” This standard is similar to New Hampshire of the issues, or misleading the jury, or by considerations of undue delay, value is substantially outweighed by the danger of unfair prejudice, confusion 77

delay, waste of time, or cumulative evidence, as permitting the admission of decision to not include within RSA 630:5, III considerations such as undue confusion of the issues, or misleading the jury.” We interpret the legislature’s

substantially outweighed by the danger of unfair prejudice, confusion of the under RSA 630:5, III to exclude proffered information “if its probative value is however, in that the Rule allows for the exclusion of evidence if “its probative If the relevance threshold is met, the trial court retains the discretion The standard in RSA 630:5, III differs from the standard in Rule 403,

outweighed”).

Hampshire Rule of Evidence 401. See United States v. Lujan, 603 F.3d 850, relevance under RSA 630:5, III is determined by the standard set forth in New 403. By contrast, RSA 630:5, III identifies only “the danger of unfair prejudice, admission of evidence in capital sentencing hearings, we conclude that without the evidence.” N.H. R. Ev. 401. Notably, the statute presumes that determination of the action more probable or less probable than it would be tendency to make the existence of any fact that is of consequence to the

circumstances warrant a separate jury being impaneled.). be excluded if its probative value is “outweighed,” rather than “substantially Sampson, 486 F.3d 13, 42 (1st Cir. 2007) (under the FDPA, information may evidence involves the circumstances of the capital murder itself. See RSA

factor. Although the New Hampshire Rules of Evidence do not control the

information is admissible in a capital sentencing hearing if it has “any

§§ 3591 et seq. (2006) (FDPA), is the same standard as used by federal courts conducted . . . [b]efore the jury which determined the defendant’s guilt,” unless 630:5, III; see also RSA 630:5, II (2007) (“The [sentencing] hearing shall be

guilt phase evidence constitutes relevant sentencing information because such

the information “relat[es] to” or is “relevant to” an aggravating or mitigating Under the statute, the threshold for admissibility of evidence is whether

331-32 (4th Cir. 2009) (same). Thus, under RSA 630:5, III, proffered sentencing rather than “evidence,” we use these terms interchangeably. under Federal Rule of Evidence 401); United States v. Basham, 561 F.3d 302, RSA 630:5, III. Although RSA 630:5 refers to “information” presented at

854 (10th Cir. 2010) (relevance under Federal Death Penalty Act, 18 U.S.C. defendant’s character and the circumstances of the capital murder. See RSA

p. 78 jury must evaluate aggravating and mitigating factors bearing upon the prejudicial may be properly admitted during capital sentencing, at which the be inadmissible at the guilt phase of a capital trial as irrelevant or unfairly

an overview of the eligibility phase and then address this appellate argument. his motion to admit his previously suppressed custodial statement. We provide charged capital murder beyond a reasonable doubt. Thus, evidence that would of sentencing. Specifically, he contends that the trial court erred in denying

to establish that the trial court’s evidentiary decision was clearly untenable or abuse of discretion”). Accordingly, the defendant bears the burden on appeal adequately preserved objections to rulings admitting or excluding evidence for

defendant is presumed innocent until and unless the State proves guilt of the The defendant raises a single claim of error regarding the eligibility phase

A. Eligibility Phase Trial

capital sentencing proceeding under the FDPA, appellate court “review[s] considering a defendant’s challenges to an evidentiary ruling rendered in a v. Lambert, 147 N.H. 295, 296 (2001); see also Sampson, 486 F.3d at 42 (when proceeding under our unsustainable exercise of discretion standard. See State decision.”); see also Lockett v. Ohio, 438 U.S. 586, 601-03 (1978) (plurality trial fundamentally differs from the guilt phase of a capital trial during which a We review the trial court’s evidentiary decisions in a capital sentencing defendant. In so doing, we are mindful that the sentencing phase of a capital language, in the context of each of the evidentiary challenges raised by the 143 (2d Cir. 2004); State v. Johns, 34 S.W.3d 93, 113 (Mo. 2000). Tennessee, 501 U.S. 808, 820-21 (1991); United States v. Fell, 360 F.3d 135, 630:5; see also Tuilaepa v. California, 512 U.S. 967, 972 (1994); Payne v.

we will interpret the statutory scheme accordingly.” State v. Addison, 160 N.H.

much information before it as possible when it makes the sentencing

RSA 630:5, III, including relevance, unfair prejudice, and pertinent statutory We consider the factors bearing upon admission of information under See Jurek v. Texas, 428 U.S. 262, 276 (1976) (“What is essential is that the 732, 755 (2010).

existing jurisprudential background of the United States Supreme Court, and penalty statutory scheme, the legislature intended to incorporate the thenopinion). As we have previously determined, “in enacting the current death

(1976) (In a capital sentencing hearing, “it [is] desirable for the jury to have as defendant whose fate it must determine.”); Gregg v. Georgia, 428 U.S. 153, 204 jury have before it all possible relevant information about the individual findings rendered the defendant eligible for the death penalty, see RSA 630:5, p. 79 completed Special Findings Form is included in Appendix A. The jury’s

preventing a lawful arrest or effecting an escape from lawful custody. The

Officer Briggs; and (3) murdered Officer Briggs for the purpose of avoiding or would create a grave risk of death to another and that resulted in the death of the death of Officer Briggs; (2) purposely engaged in conduct that he knew

that the defendant: (1) purposely inflicted serious bodily injury that resulted in

three of the four charged statutory aggravating factors. Specifically, it found

approximately four hours and returned findings that the State had proven After the parties presented closing arguments, the jury deliberated for

the jury with a Special Findings Form on which to record its findings.

proven that the defendant is eligible for the death penalty.” The court provided jurors “may consider any of that evidence in deciding whether the State has relevant to the four eligibility factors was presented at trial,” and, thus, the

these factors. It also informed the jury that “[a]lmost all of the evidence

the case, and explained the legal parameters for the jury’s determination of The court identified the four charged statutory aggravating factors at issue in aggravating factors beyond a reasonable doubt and not to decide the sentence.

determine whether the State had proven each of the charged statutory

The court instructed the jury that its task at the eligibility phase was to

prison sentences totaling four years, three months, and twenty-four days. In addition, the parties stipulated that the defendant previously had served 79

having an unlicensed firearm and of being a felon in possession of a firearm.

IV, and the trial proceeded to the sentence selection phase.

could have been arrested on the outstanding warrant, as well as on charges of testified that if Officer Briggs had succeeded in stopping the defendant, he defendant and Bell-Rogers at approximately 12:40 a.m. on October 16. He

receive the death penalty. See RSA 630:5, III, IV. This phase lasted one day aggravating factors necessary to establish that the defendant was eligible to

investigating the Roy Drive shooting and obtained arrest warrants for the

State had proven beyond a reasonable doubt the existence of the statutory During the eligibility phase of trial, the jury considered only whether the

phase. He explained that on the night of October 15, 2006, he was Detective Stacy Howe was the only witness to testify at the eligibility

See RSA 630:5, II, III (2007). and largely rested upon the evidence presented during the capital murder trial. and future dangerousness constitute[d] evidence of a character so bad, and

p. 80 State would “attempt to demonstrate that prior crimes, prior acts of violence

RSA 630:5, III. According to the defendant, at the sentence selection phase the danger of unfair prejudice, confusion of the issues, or misleading the jury.” evidence at sentencing if its “probative value is substantially outweighed by the

found in RSA 630:5, III (2007), which authorizes the trial court to exclude The defendant contended that support for a bifurcated hearing was

eligible.” (Quotation omitted.)

consideration of whether [he] acted ‘purposely’ and whether he [was] death

character evidence, and other irrelevant factors [would] taint the jury’s because “[i]n a non-bifurcated sentencing hearing, victim impact evidence, ultimate decision of whether to impose a life sentence or the death penalty”

[would] be violated if the issue of death eligibility [was] merged with the

‘element’ of ‘purposeful’ conduct.” He argued that his “constitutional rights

“irrelevant and inadmissible to prove statutory aggravating factors, such as the aggravating factors,” such as evidence of character and propensity, was “that evidence which might be generally relevant to prove non-statutory This request for bifurcation was based upon the defendant’s concern

death.” deciding whether to impose a sentence of life in prison without parole or

jury [would] consider all other aggravating and mitigating evidence before

him “death eligible,” the defendant proposed “a second hearing in which the statutory aggravating factors beyond a reasonable doubt.” If the jury found “only whether the State [was] able to establish ‘death eligibility’ by proving

sentencing hearing. He proposed that the initial phase of sentencing address Prior to trial, in April 2008, the defendant moved to bifurcate the

the defendant’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), “because

ruling, challenged on appeal, is as follows. by written order dated November 14, 2008. The procedural context for the

suppress. The court ruled that the interrogation was conducted in violation of because the trial court had granted the defendant’s pretrial motion to party introduced any portion of his statement at the guilt phase of the trial

statement. Following a hearing, the trial court denied the defendant’s motion

three-hour audio-recorded statement to two Manchester detectives. Neither Soon after the defendant’s arrest on October 16, 2006, he provided a

defendant, in anticipation of sentencing, subsequently moved to admit the honored.” This ruling related only to the guilt phase of the trial, and the 1. Addison’s Statement he invoked his right to counsel and his request . . . was not scrupulously

a. Background supporting evidence surrounds the circumstances of the offense.”

p. 81 the precisely framed statutory aggravating factors, where much of the make it difficult for the jury to rationally and dispassionately make findings on selection phases were consolidated, the sentence selection evidence would

was granted to address the “concern that if the eligibility and sentence

counter to the purpose of bifurcation. For instance, he argued that bifurcation admitting the challenged evidence in the eligibility phase of trial would run his character. In some of his pleadings, the defendant took the position that

1996-2003, and other uncharged misconduct or conduct purportedly related to

other crimes he had committed during his juvenile and young adult years from non-capital crimes the defendant committed in the week preceding the murder, parties sought rulings upon the admissibility of evidence of the October 2006

matters relating to the guilt and the eligibility phases of trial. For instance, the During the following month, the parties litigated several evidentiary

information might not be relevant to eligibility.” in deciding whether the statutory aggravators exist, even though such

[would] consider information relating to the non-statutory aggravating factors

eligibility and [sentence] selection evidence [was] presented together, the jury granted requests to bifurcate.” The trial court expressed its concern “that if all is largely modeled, have found that it allows bifurcation and have uniformly

persuasive that federal courts interpreting the FDPA, “upon which RSA 630:5

defendant’s motion by written order dated July 1, 2008. The court found The State objected and, following a hearing, the trial court granted the

was committed ‘purposely.’”

[would] be unable to disregard that evidence when deciding whether the crime

cause confusion because “[h]aving heard evidence of prior bad acts, . . . jurors determination regarding ‘purposely’ by considering evidence of propensity,” and mislead the jury in that it would “appear appropriate for the jury to make its

argued that allowing evidence of prior crimes at the eligibility phase would

homicide was committed purposely.” (Quotation omitted.) In addition, he basis,” and would “tend to improperly influence a jury to believe that the increase[d] the likelihood that a jury [would] decide the case on an improper

probative value on the question of his intent, was “inherently prejudicial and The defendant further argued that evidence of prior bad acts lacked

jury.” (Quotation omitted.)

by the danger of unfair prejudice, confusion of the issues or misleading the

disregarded by the jury because its probative value is substantially outweighed that “with regard to the statutory aggravating factors, such evidence must be which address mental state at the time of the crime,” the defendant argued

Because “[s]uch evidence ha[d] no bearing on the statutory aggravating factors propensity so great, that life without parole [was] not a sufficient punishment.” constitutional considerations (e.g., due process and confrontation), and a

p. 82 evidence do not apply and, thus, “[t]he only limiting principles are overriding selection phases of trial. The defendant argued that, at sentencing, the rules of previously suppressed statement as evidence at the eligibility and sentence Shortly thereafter, on November 12, the defendant moved to admit his

such evidence.” (Quotation and brackets omitted.) sentencing process [was the] only way to insure the proper consideration of

[would] be so unfairly prejudicial and misleading that bifurcation of the

prior crimes or acts of violence, and the impact of the homicide on victims “agreed with the defendant’s argument that evidence of character, background, deciding whether the statutory aggravators exist.” The court explained that it

consider any information relating to the non-statutory aggravating factors in

“bifurcated the sentencing hearing to minimize the risk that the jury would

phase of sentencing. In that order, the trial court reiterated that it had written order dated November 7, concerning closing arguments in the eligibility defense otherwise opened the door to its admissibility. The court also issued a

necessary for rebuttal, impeachment, or cross-examination, or unless the

certain challenged evidence unless the admission of such evidence became eligibility phase, the court noted that the State did not intend to introduce With respect to some of its orders on the evidentiary scope of the

bifurcating the sentencing hearing into eligibility and sentencing phases.” observed that “[a]dmitting this evidence would also undermine the purpose of “the high danger of unfair prejudice or confusion of the issues.” The trial court

statutory aggravating factors,” had “minimal probative value,” and gave rise to

ruling that under RSA 630:5, III, such evidence was “not relevant to the

the eligibility phase evidence of the defendant’s 1996-2003 criminal conduct, with limitations. The court, however, precluded the State from introducing at introduce at the guilt phase evidence of the October 2006 non-capital crimes,

excluding other evidence. For example, the court granted the State’s request to

several orders ruling that some of the challenged evidence was admissible and From mid-October through early November, 2008, the trial court issued

the statutory aggravators.”

bifurcation, which was to insure reasoned and dispassionate consideration of during the first phase of sentencing, [it] would frustrate the primary purpose of Court expressed its concern that if too much of this detail came into evidence

balancing test similar to that contemplated under [New Hampshire] Rule [of

to the hearing on his motion to bifurcate the sentencing phase at which “the

Mexicano robberies need not be admitted.” In support, the defendant referred activity than the Roy Drive charge, and that evidence of the 7-Eleven and El that “it [was] not necessary to convey to the jury a broader scope of criminal

non-capital crimes, the defendant asserted in relation to the eligibility phase, Similarly, in objecting to the admission of evidence of the October 2006 each of the defendant’s claims in his recorded statement, including his

p. 83 character.” The State argued that it would seek to admit evidence rebutting

opening the door to virtually all of the defendant’s past criminal conduct and suppressed statement would completely undermine the goals of [bifurcation] by The State offered numerous examples to “highlight how admitting the

type of person. “purposely” murder a police officer because he was not that for them to properly evaluate his claim that he would not

person who was a “stone cold killer” or a “cop killer” in order

in which he tried to convince them that he was not the type of understand the full scope of the defendant’s lies to the police that he did not act “purposely.” It is essential for the jury to

defense wants the jury to believe the defendant’s assertions

person who would “purposely” shoot a police officer. The

offered various stories about why he was not the type of were behind him when he pulled the trigger of the gun. He [Officer] Briggs and that he did not even know that the police

to convince the detectives that he did not “purposely” shoot

replete [with] examples where the defendant specifically tried did not “purposely” shoot Officer Briggs. The interview is [t]hroughout the confession the defendant insisted that he

State, remorse, and his account of how the murder happened.” According to the . . . about his good character, his knowledge and use of firearms, his . . .

State [would seek] to admit would specifically contradict the claims he makes

that “if the defendant offer[ed] his self[-]serving statement, the evidence the

that choice”; and “the State’s statutory right of rebuttal.” The State asserted tactical decision”; “any information to which the evidentiary door is opened by measures by the Court to prevent prejudice to the State from the defendant’s 83

statement, but argued that its admission was subject to: “reasonable In its response, the State did not object to the defendant offering his

open[ed] the door to any and all conceivable, extrinsic evidence.”

play any of the rest of it,” he disagreed that by introducing his statement “he

if he chose to play part of the audio-tape of his statement, “the State [could] [the eligibility] phase of the proceeding.” Although the defendant conceded that mental state at the time he shot Officer Briggs, which [was] the chief inquiry in According to the defendant, his statement was “highly probative of [his]

Evidence] 403.” See RSA 630:5, III. The defendant, however, noted that

of what may otherwise be hearsay is reliability.” otherwise barred by the rules of evidence[,] . . . [o]ne prerequisite to admission although “RSA 630:5 erects no barrier to the presentation of hearsay evidence presented [was] reliable and fair,’” quoting United States v. Rodriguez, 380

p. 84 “‘control the evidence and make assurances that the evidence sought to be

reasoned that the balancing test set forth in RSA 630:5, III authorized it to phase of sentencing by written order dated November 14, 2008. The court The trial court denied the defendant’s motion with regard to the eligibility

reliability that should attach to this phase.” relevant. It is reliable to enough of a degree . . . to meet the threshold of . . . is admitting to being the person who killed Officer Briggs on that day. It is

argued, “In the end, there is some truth to what [the defendant is] saying. He

introduced by — has a threshold level of reliability.” However, defense counsel

gatekeeper, has to make sure that any evidence — regardless of whom it’s defendant] made to the police were lies,” and that “obviously, the Court as “[t]here’s no question that . . . a great number of statements that [the

shooting someone, although he denied knowing this person

superficial credibility,’” quoting United States v. Pretlow, 779 F. Supp. 758, 771 happened. That on their face they’re lies.” Defense counsel agreed that

this other person was the shooter. Later, he admitted

may present a significantly increased risk of unfair prejudice due to its your own . . . positions that you took at trial or — or what you admit cannot provide particularly probative support for an aggravating factor and confession to the police has so many . . . statements that are contradicted by reliability. Hearsay evidence which is determined to be highly unreliable didn’t do it on purpose.” The court further observed: “But obviously, . . . his sweatshirt to a friend of Antoine Bell-Rogers, implying that He then told the detectives that he had loaned his red the shooting of Officer Briggs. He blamed Antoine Bell-Rogers.

unfair prejudice associated with any information, this court must consider its statement in there — or one aspect of [the defendant’s] statement — that he

[T]he defendant first denied that he was involved in any way in

probative.” The court explained: “‘To determine the probative value or risk of got to meet a threshold level of reliability. And . . . you’re focusing in on one The court stated, “Even though the rules of evidence don’t apply, evidence has concern, having listened to the audio-tape, that the statement was not reliable. At a hearing on the defendant’s motion, the trial court expressed its defendant’s statement contained proven lies: n.7 (D.N.J. 1991) (brackets and ellipsis omitted). The court stated that the

court reasoned that “[i]f evidence is not relevant and reliable, it is not F. Supp. 2d 1041, 1054 (D.N.D. 2005), aff’d, 581 F.3d 775 (8th Cir. 2009). The

the trigger it must have been an accident. violence; he was not violent; he was inexperienced with guns; and if he pulled

he did not “purposely” murder Officer Briggs because he did not believe in assertions that: he was not the type of person who would shoot a police officer; statutory argument. See State v. Wamala, 158 N.H. 583, 592 (2009).

p. 85 constitutional grounds only when necessary, we first address the defendant’s b. Appellate Argument

only as to the eligibility phase of sentencing. Because we decide cases on limited his argument to the eligibility phase. Accordingly, we review this issue which would result in an undue waste of time.” seek admission of his statement at the sentence selection phase and, thus, the State to introduce relevant evidence to rebut the defendant’s statements

However, at oral argument before us, the defendant conceded that he did not their truth.” The court further stated: “Their admission would also entitle[ ]

court’s ruling . . . would apply equally to the sentence selection phase.” the defendant’s statements [were] hearsay, he [sought] to introduce them for ruling to the eligibility phase,” the defendant argues that “[t]he logic of the statute “does not use the word ‘reliability’ in describing the trial court’s trial court stated: “These concerns [were] heightened here because, although Despite acknowledging in his brief that the trial court “limited the effect of its confusing the issues and misleading the jury in the eligibility phase.” As the

exclude evidence on the basis claimed here,” the statute would violate his

RSA 630:5, III when it found that his statement was unreliable, because the admit this evidence in the sentencing phase, they must file separate motions.” The defendant argues that the trial court exceeded its authority under substantially outweighed by the danger of unfairly prejudicing the State,

argues that “if the court correctly interpreted the statute to empower it to

eligibility phase of the sentencing trial, stating that “[i]f the parties wish to Officer Briggs” and that the “low probative value of these statements [was] We note at the outset that the trial court limited its ruling to the statement had “minimal probative value of his state of mind when he shot threshold level of reliability,” the trial court concluded that his custodial c. Discussion

credible the aspects of the statement the defense sought to introduce.” He as empowering it to make a ‘reliability’ determination” and “in finding not The defendant argues that the trial court erred “in reading RSA 630:5, III

act “purposely” were “inadmissible because they [did] not meet even a Finding that the defendant’s statements to the detectives that he did not 15, 18, 33; U.S. CONST. amends. V, VI, VIII, XIV. went off when he grabbed it as it fell out of his pocket.

accident because the safety was not engaged and the gun was a police officer, but told the detectives that it was an evidence that might render a trial fundamentally unfair.” Id. (quotation and

p. 86 value, see Pretlow, 779 F. Supp. at 771 n.7, assessing its reliability is a jury.” Because the reliability of sentencing information affects its probative by the danger of unfair prejudice, confusion of the issues, or misleading the

statute], retain the discretion to exclude any type of unreliable or prejudicial

criminal trial.” United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) has been provided . . . . Information is admissible regardless 86 information relevant to an aggravating factor for which notice a mitigating factor. The government may present any

Information “may be excluded if its probative value is substantially outweighed

evidentiary gatekeepers and, pursuant to the balancing test set forth in [the

eliminate the constitutional baseline for the admissibility of evidence in a

. . . . The defendant may present any information relevant to Amendment does not deprive the State of its authority to set reasonable limits 2010); see also Oregon v. Guzek, 546 U.S. 517, 526 (2006) (“The Eighth trial court to exclude information that does not satisfy a balancing test: brackets omitted); see United States v. Davis, 609 F.3d 663, 678 (5th Cir. probative value to be admissible. Further the statute expressly authorizes the Under the plain language of RSA 630:5, III, information must have

(quotation omitted). “To the contrary, . . . judges continue their role as

gatekeeper of constitutionally permissible evidence; nor does it alter or provision have held that it “does not eliminate [the] function of the judge as 18 U.S.C. § 3593(c) (2006) (emphasis added). Federal courts interpreting this PROOF OF MITIGATING AND AGGRAVATING FACTORS. — the jury. applies during the sentencing phase of a capital trial, providing in part: creating unfair prejudice, confusing the issues, or misleading excluded if its probative value is outweighed by the danger of language in the Federal Death Penalty Act, 18 U.S.C. §§ 3591 et seq. (2006) evidence at criminal trials except that information may be We find persuasive the numerous federal cases interpreting analogous of its admissibility under the rules governing admission of

(FDPA). Section 3593(c) of the FDPA sets forth the evidentiary standard that

the argument is unavailing.

necessary part of the trial court’s function under RSA 630:5, III. defendant did not preserve this argument by raising it in the trial court. See evidentiary gate-keeping function.” As the State correctly observes, the

(2011). Nonetheless, even assuming that it was preserved, we conclude that State v. Eaton, 162 N.H. 190, 195 (2011); State v. Winward, 161 N.H. 533, 542 p. 87 (Citation omitted.)

find it so incredible as to be unreliable.

recant that statement, the court had no sufficient basis to

that he had purposely shot Briggs. Insofar as [he] did not only [the defendant’s] final, not-recanted statement denying time of the shooting. However, the defense sought to admit

effectively recanted by admitting to holding the gun at the

of being present and of firing the fatal shot — that later he in his custodial statement, [he] initially made other denials — gun, he had a purpose to kill or injure anyone. It is true that,

[the defendant’s] statements denying that, in shooting the In the eligibility phase, the defense sought to introduce

with regard to the parts of [his] statement[ ] proffered by the defense,” arguing: court to exclude unreliable evidence, the court “erred in making that finding The defendant contends, however, that even if the statute allows the trial

on which to rely in imposing sentence.”).

demonstrably unreliable. See State v. Sullivan, 142 N.H. 399, 402 (1997)

should be allowed to “introduce any relevant mitigating evidence.” See that the defense has carte blanche to introduce any and all evidence that it mitigation evidence, noting that “the FDPA’s evidentiary standards do not mean

issues, or misleading the jury” (emphasis added)); cf. United States v. Fell, 531 judge exercises wide discretion in choosing the sources and types of evidence requisite level of reliability); State v. Rodrigue, 127 N.H. 496, 500 (1985) (“A Taylor, 139 N.H. 96, 102 (1994) (trial court properly found evidence satisfied unverified statements” made in a probation report (quotation omitted)); State v. evidentiary gatekeeping function with respect to both relevant aggravating and (sentencing court properly rejected as unreliable evidence “unsubstantiated,

III, trial courts have discretion to exclude proffered evidence that is wishes” (quotation omitted)). Accordingly, we conclude that, under RSA 630:5, based upon threshold reliability because, in a capital case, the defendant The defendant argues that mitigating evidence is not subject to exclusion F.3d 197, 219 (2d Cir. 2008) (affirming trial court’s exclusion of proffered it is submitted.”). substantially outweighed by the danger of unfair prejudice, confusion of the upon the evidence a defendant can submit, and to control the manner in which mitigating or aggravating factors . . . may be excluded if its probative value is mitigating evidence. See RSA 630:5, III (“[a]ny . . . information relevant to . . .

630:5, III, however, authorizes the trial court to perform its traditional California v. Brown, 479 U.S. 538, 541 (1987). The plain language of RSA trial and his subsequent admissions about the murder. Cf. Green v. Georgia, p. 88 custodial interview by the police were contradicted by positions he later took at

People v. Edwards, 579 N.E.2d 336, 357-58 (Ill. 1991) (quotation and citations

testimony favorable to his innocence. the trial court found that many of the defendant’s statements during his

out-of-court statement lacked threshold reliability such that its probative value

than those made in court.” State v. Cole, 139 N.H. 246, 249 (1994) (citation are not made under oath or subject to cross-examination, are less trustworthy not reliable in light of the defendant’s motive to fabricate truth of the matter asserted. In general, such extrajudicial statements, which of things [to the police] that [were] absolutely, positively untrue.” In addition, and that during the defendant’s three-hour custodial interview he “sa[id] a lot number of statements that [the defendant made] to the police [that] were lies,” As defense counsel conceded, “[t]here’s no question that there are a great

supports the trial court’s determination that, in its entirety, the defendant’s 442 U.S. 95, 97 (1979). We have reviewed the record and conclude that it

finding of [its] probable accuracy.” United States v. Riccio, 529 F.3d 40, 47 (1st that the information has sufficient indicia of trustworthiness to warrant a credibility of the defendant is suspect and his statements are truth. “Hearsay is an out-of-court statement offered in evidence to prove the evidence. The rationale underlying this exclusion is that the subsequent to the commission of the crime are not competent

Oct. 15, 2013) (No. 13-167). Com., 738 S.E.2d 847, 878 (Va. 2013), cert. denied, 82 U.S.L.W. 3214 (U.S. . . . it may properly be excluded even when offered in mitigation.” Lawlor v. (1st Cir. 2009). “[W]hen hearsay evidence does not bear the indicia of reliability Cir. 2008), modified on other grounds by United States v. Riccio, 567 F.3d 39

evidence at sentencing as long as the court concludes, with proper support, heightened because the defendant’s statements were hearsay offered for their “[T]he sentencing court has broad discretion to accept even hearsay his state of mind when he shot Officer Briggs, and that these concerns were conversations between a defendant and third parties not meet even a threshold level of reliability and had minimal probative value of motive to lie was strong). court erred by admitting videotaped statement when evidence of declarant’s omitted); see State v. Johnson, 145 N.H. 647, 649 (2000) (holding that trial

out-of-court asserter. . . . [S]elf-serving statements or replete with proven lies, that his statements that he did not act “purposely” did The value of hearsay evidence rests upon the credibility of the In excluding the defendant’s statement, the trial court found that it was

omitted); see N.H. R. Ev. 801(c). lasted approximately thirteen trial days. More than fifty witnesses testified,

p. 89 The sentence selection phase, beginning with preliminary jury instructions,

themselves sufficient to justify a sentence of death.” RSA 630:5, IV (2007). in the absence of mitigating factors, whether the aggravating factors [were] exist sufficiently outweigh[ed] any mitigating factor or factors found to exist, or

consideration of all of the evidence, “whether the aggravating factors found to

including those he submitted; and third, determining, based upon second, determining whether the defendant had proven mitigating factors, whether the State had proven the noticed non-statutory aggravating factors; At the final phase of trial, the jury’s tasks included: first, determining

selection phase and then address his appellate arguments. of the State’s closing argument. We provide an overview of the sentence

perfunctory claims do not warrant independent constitutional analysis. See argument under RSA 630:5, III. Accordingly, we conclude that these mode of execution; (3) the admission of prior crimes evidence; and (4) the scope presented without adequately developed legal argument apart from his

favorable; and (4) freedom from cruel and/or unusual punishments. See N.H. 89

confinement and rejection of his proposed evidence of and jury instruction on did not expressly address them. The defendant’s constitutional arguments are

constitutional rights to: (1) due process; (2) trial by jury; (3) present all proofs

victim impact evidence; (2) the admission of evidence of conditions of similarly cursory fashion, which we assume the court rejected even though it selection phase of the trial. Specifically, he challenges: (1) the admission of The defendant asserts several claims of error regarding the sentence

the evidence not credible,” the statute violates his state and federal capital defendant in the sentencing phase on the ground that the court finds 630:5, III “allows a trial court to exclude mitigating evidence proffered by a

defendant presented these constitutional arguments to the trial court in a

B. Sentence Selection Phase Trial

(1996). State v. Ayer, 154 N.H. 500, 513 (2006); State v. Chick, 141 N.H. 503, 504

trial court’s ruling in a cursory fashion. He asserts that, to the extent that RSA The defendant also raises a number of constitutional challenges to the

sentencing constituted an unsustainable exercise of discretion.

CONST. pt. I, arts. 15, 18, 33; U.S. CONST. amends. V, VI, VIII, XIV. The

confusion of the issues, or misleading the jury at the eligibility phase. See RSA was minimal and substantially outweighed by the danger of unfair prejudice,

court’s exclusion of his custodial statement at the eligibility phase of Accordingly, we hold that the defendant has not established that the trial

630:5, III. trial. The court further instructed the jury that, of the two alternative mens rea p. 90 had been proven, or whether the defense had relied upon that factor during regardless of whether other jurors agreed that the particular mitigating factor

evidence must consider that mitigating factor in deciding the sentence,

individually found a mitigating factor to exist by a preponderance of the to consider it [during] deliberations.” It instructed the jury that any juror who jurors [did] not have to agree as to the existence of a mitigating factor in order

required a unanimous finding beyond a reasonable doubt, but that “all twelve The court also explained that the existence of aggravating factors

factors and mitigating factors.

phases of the trial when deciding the existence of non-statutory aggravating

the jury that it could rely upon any evidence presented during each of the three

assert any mitigating factors, but [had] elected to do so.” The court informed submitted by the defendant, explaining that the defendant was “not required to the noticed non-statutory aggravating factors, and the mitigating factors

factors that the jury had previously found to be proven at the eligibility phase,

existence of mitigating factors. The court outlined the statutory aggravating defendant had the burden of proving by a preponderance of the evidence the existence of the noticed non-statutory aggravating factors and that the

that the State had the burden of proving beyond a reasonable doubt the The court explained the parties’ respective burdens of proof, including

possibility of parole is a more appropriate punishment than death.”

suggest in fairness and justice that a sentence of life in prison without

about the circumstances surrounding the murder of Officer Briggs that would

that “[a] mitigating factor is a fact about the defendant’s life or character or sentence of life without the possibility of parole.” The court also instructed tend to show that the defendant was deserving of a death sentence or a

that “aggravating or mitigating value” meant that “those facts or circumstances

circumstances [had] aggravating or mitigating value.” It instructed the jury circumstances alleged [were] true, and if so, whether those facts or court instructed, required the jurors “to decide whether the facts and

permitted to consider only one in determining the sentence — that “the

parole. “[D]etermining the existence of an aggravating or mitigating factor,” the

statutory aggravating factors found proven at the eligibility phase, it was

imposition of a sentence of death or life imprisonment without possibility of explaining the law regarding aggravating and mitigating factors and the After closing arguments, the trial court gave the jury final instructions,

and the surveillance video from the 7-Eleven robbery. including photographs, the defendant’s criminal and juvenile history records, defendant’s family members. Also, numerous exhibits were admitted,

witnesses to the defendant’s prior criminal conduct, experts, and the including Officer Briggs’s widow and other family members, police officers, p. 91 1. Victim Impact Evidence

against punishments that are cruel, unusual, or disproportionate,” see N.H. jury returned a verdict recommending the imposition of the sentence of death. the evidence the State intends to present, a fair trial, and to be protected

that decision.” After approximately two and one-half days of deliberations, the 630:5” as well as the defendant’s “rights to due process, full and fair notice of

juror “may decline to impose the death penalty without giving any reason for the injury, harm and loss to [his] family.” The motion was “grounded in RSA “immediate family of Officer Briggs” and to limit the scope of the evidence “to The defendant then moved to limit the State’s victim impact witnesses to

court instructed the jurors regarding leniency, including that any individual Each juror must weigh in value each factor for him or herself.” Finally, the aggravators and mitigators does not indicate what weight you should give it.

“relevant and admissible under RSA 630:5.” written order dated November 18, 2008, finding that victim impact evidence is were “baseless.” Following a hearing, the trial court denied the motion by

mitigators qualitatively. The difference in the burdens of proof between

arguing that the defendant’s motion was untimely and his statutory claims

factors on each side. Rather, you must consider the aggravators and a mechanical process and is more than a numerical counting or tabulation of death.” The court explained: “The weighing process you will undertake is not

State’s victim impact non-statutory aggravating factor. The State objected,

aggravating factors [were] sufficient in themselves to justify a sentence of

in a New Hampshire capital sentencing hearing before a jury” and striking the court enter an order “recognizing that ‘victim impact evidence’ is inadmissible intended to present. In his first motion, the defendant requested that the trial

mitigating factors, or if no mitigating factors [were] found, whether the proven “whether the proven aggravating factors sufficiently outweigh[ed] any proven explained, among other things, that the weighing process consisted of deciding

motions challenging the admission of the victim impact evidence that the State

gate keeping function and hold a hearing, out of the presence of the jury, to CONST. pt. I, arts. 15, 18, 33. He requested that the trial court “exercise [its]

[his or her] own mind the proven factors to decide the appropriate sentence.” It

Prior to the sentence selection phase of trial, the defendant filed two

a. Background

both aggravating and mitigating factors, each juror was “required to weigh in The court next instructed the jury that after determining the existence of

Officer Briggs.” defendant purposely inflicted serious bodily injury that resulted in the death of of the life which the defendant chose to extinguish. This

p. 92 of the trial. Moreover, this evidence provides a quick glimpse

the crime properly presented to the jury at the penalty phase family [are] certainly part and parcel of the circumstances of [t]he devastating effects that Officer Briggs’ death had on his

his murder,” reasoning that an individual human being and informs the jury of the specific harm caused by (2007). The court found that the evidence “shows Officer Briggs’ uniqueness as

States Supreme Court precedent and was admissible under RSA 630:5, III

the evidence the State sought to introduce fell within the parameters of United subsequent written order dated November 26, 2008, the trial court ruled that case law and informed counsel that it was going to admit the evidence. In its The trial court reviewed the photographs, video recordings, and pertinent

and the possibility that one of Officer Briggs’s sons might testify. as far as badges and certifications or awards that Officer Briggs has received,” as the videos that the State may introduce; the amount that can be gone into

testimony regarding “Officer Briggs as a child; the box of photographs, as well

had been resolved. Defense counsel identified the remaining issues as responded to the defendant’s objections and that many of his earlier concerns At a hearing on the motion, defense counsel noted that the State had

life pertinent to the testimony given.” unnarrated, and unscripted video clips of various aspects of Michael Briggs’s to introduce through the witnesses “photographs and extremely brief,

the scope of the evidence, the State proposed to limit the areas of inquiry and

opportunity to make objections and the Court to make rulings thereon.” As to

control the subject matter covered and to provide the defendant with an would “conduct its inquiry in standard question-and-answer format, in order to sons, his parents, and one of his sisters. In addition, the State agreed that it

victim impact evidence to testimony from Officer Briggs’s widow, one of his In response to the defendant’s motion, the State proposed to limit the

his murder.

comments regarding the crimes committed the week prior to

Briggs’ prior contact with [the defendant], and Officer Briggs’ death penalty, the effect of the trial on the family, Officer expressed by Officer Briggs to family members regarding the

appropriate punishment in this case, including those

employment as a correctional officer, opinions about the [T]estimony about Officer Briggs as a child, [his] prior

following evidence was inadmissible: limit the victim impact evidence.” Specifically, the defendant argued that the p. 93 (Quotations and citations omitted.)

jury. danger of unfair prejudice or confusing and/or misleading the videos and pictures is not substantially outweighed by the

defendant chose to extinguish. The probative value of the

life and therefore provide a quick glimpse of the life which the relationship with his family and provide a chronology of his relationship; similarly, the photographs depict Officer Briggs’

Briggs interacting with his sons and shed light on their

relationship with Officer Briggs. The video clips show Officer

illuminate the testimony of his family members about their probative of Officer Briggs’ relationships with his family and Both the photographs and video clips are relevant and

explained: Regarding the family photographs and video clips, the trial court

his family’s loss.” (Quotation omitted.)

Briggs’ personality and his uniqueness as a human being and the magnitude of found that such evidence was admissible “because it shed[ ] light on Officer received certain awards and recognition of accomplishments, the trial court

his family and enable his wife to stay home with their children, and that he

Officer Briggs worked extra shifts as a correctional officer in order to support

without giving the jury some background of his childhood.” As to evidence that [Officer Briggs’s] parents and sibling to convey the magnitude of their loss family experienced his loss. The court reasoned that “[i]t would be difficult for

this evidence was diminished because Officer Briggs was an adult when his

brother,” disagreeing with the defendant’s argument that the probative value of parents and siblings have suffered as a result of the murder of their son and admissible because “[i]t is probative of the loss and harm that Officer Briggs’

The trial court found that evidence about Officer Briggs’s childhood was

Laura Briggs; his sister, Melissa Briggs; and his parents, Mary Ann and Leland

(Quotations, citations, and brackets omitted.)

days. Four witnesses offered victim impact evidence: Officer Briggs’s widow, The State’s case-in-chief at the sentence selection phase of trial lasted six

process rights.

fundamentally unfair in violation of the defendant’s due not so unduly prejudicial that it would render the trial characteristics as an individual human being. Moreover, it is

Officer Briggs’ family feels as a result of his murder and his evidence is highly probative of the harm, injury and loss that b. Appellate Argument

p. 94 his police uniform.

together in parades, one of his son in his Marine uniform, and two of his son in

tractor on the family farm, two of himself and his son in uniform marching of his testimony he identified six photographs, including one of his son on a son and the effect his son’s murder has had on his health. During the course

Marine, a police officer, and a father. He testified to what he misses about his

activities they enjoyed as he was growing up. He described his son as a Leland Briggs testified about his relationship with his son and about the

work, and one of him at his sister’s wedding.

children in her living room, one of him eating at her home on a break from

seven-year-old, two of him with his sons at the beach, one of him with his photographs, including one of her son as an infant, one of him as a six- or misses about him. During the course of her testimony she identified seven

close relationship with his sisters, his qualities as a father, and what she Mary Ann Briggs testified about her memories of her son as a child, his

their summer beach vacations.

photographs of herself and her adult siblings and their families together during

like without him. During the course of her testimony she identified three

family vacation at the beach, the events of the day he was shot, and what life is member of the United States Marine Corps, a father, and an uncle, the annual relationship with his siblings. In addition, she testified about her brother as a

Melissa Briggs described her brother’s personal qualities and his close

that the State introduced was unfairly prejudicial in a manner that violated not seconds. approximately ninety-three seconds, and one lasting approximately eighteen

victim impact evidence is admissible absent statutory authority, the evidence with their children, one lasting approximately thirty-four seconds, one lasting

a capital sentencing hearing before a jury. Second, he argues that “even if erred “in ruling that New Hampshire law authorizes victim impact evidence” at during her testimony the State showed three video recordings of her husband The defendant raises two issues. First, he argues that the trial court hiking, enjoying the beach, visiting a museum, and playing sports. In addition, with their sons engaged in a variety of activities, including playing at home,

the age they were when their father was murdered, and several of her husband

identified twenty family photographs, including one photograph of her sons at role as a husband, father, son, and brother. During her testimony she young sons, his work as a corrections officer and as a police officer, and his

service, how she met her husband and their early years together, their two Briggs. Laura Briggs described the last day of her husband’s life, his memorial proper notice, the information is relevant to the factors, and the danger of

p. 95 other” non-statutory aggravating factor is admissible if the State has provided

According to the plain language of the statute, evidence pertaining to “any statutory aggravating factors that are not expressly identified in the statute. prove and allows the State to present information regarding duly-noticed non- Thus, the statute enumerates aggravating factors that the State may

RSA 630:5, III (emphasis added).

substantially outweighed by the danger of unfair prejudice, information may be excluded if its probative value is governing admission of evidence at criminal trials, except that

[s]etting forth the aggravating factors enumerated in paragraph VII . . . and any attorney for the state . . . shall . . . serve upon the defendant, a notice . . . intends to seek the sentence of death for the offense of capital murder, the

factors set forth in paragraphs VI and VII, or any other mitigating factor or any may be presented as to matters relating to any of the aggravating or mitigating the defendant, regardless of its admissibility under the rules hearing must be held. RSA 630:5, II. “In the sentencing hearing, information aggravating factors may be presented by either the state or Any other information relevant to such mitigating or

statute provides: under subparagraph I(b).” RSA 630:5, VII (emphasis added). Further, the c. Discussion shall be considered, unless notice of additional aggravating factors is provided “is silent on the subject.” Pursuant to RSA 630:5 (2007), “[w]henever the state enumerates ten aggravating factors that “are the only aggravating factors that Constitution.” subparagraph I(b).” RSA 630:5, III (emphasis added). Paragraph VII other aggravating factor for which notice has been provided under

unsustainable exercise of discretion. See State v. Wamala, 158 N.H. 583, 592 that the trial court’s evidentiary decision under RSA 630:5, III was an death penalty.” RSA 630:5, I(b) (emphasis added). A separate sentencing We first consider the defendant’s statutory argument and his assertion other aggravating factors which the state will seek to prove as the basis for the

evidence is inadmissible absent explicit statutory authority and RSA 630:5, III New Hampshire Constitution and the Fourteenth Amendment to the Federal The defendant argues that the trial court erred because victim impact only RSA 630:5, III, but [his] due process rights under Part I, Article 15 of the

(2009). aggravating circumstance enumerated in the statute. Olsen, 67 P.3d at 595

enumerated in [the statute],” and victim impact was not included as an

impact evidence, such evidence is admissible. For example, in State v. that, if the applicable statutory scheme does not expressly preclude victim As the defendant acknowledges, several jurisdictions have concluded

those circumstances specified in” the statute. Fisher, 681 A.2d at 146. the admission of victim impact evidence, the court stated: (emphasis omitted). In holding that the statute need not explicitly authorize character and propensities of the offender.” Bernard, 608 So. 2d at p. 96 967 n.2 matters relating to any of the aggravating or mitigating circumstances sentencing hearing shall focus on the circumstances of the offense and the differs from the language in RSA 630:5, III. For example, in State v. Guzek, court deems relevant to a determination of the sentence, and shall include Bernard, 608 So. 2d 966 (La. 1992), the applicable statute provided that “[t]he upon by the defendant are based upon statutory language that materially statute provided that the jury “shall hear evidence as to any matter that the

aggravating circumstances. Id. at 598. statute as controlling the more specific language contained in the enumerated providing that “[e]vidence of aggravating circumstances shall be limited to (emphasis omitted). The court declined to read the general language of the

In Commonwealth v. Fisher, 681 A.2d 130 (Pa. 19 p. 96 96), superseded by

disagreed on whether the evidence is admissible.” However, the cases relied (Wyo. 2003), the court precluded victim impact evidence because the pertinent the admission of such testimony. Id. Likewise, in Olsen v. State, 67 P.3d 536 the defendant’s moral culpability or blameworthiness for the crime.” Guzek, aggravating factor, the court concluded that the statutory scheme precluded Because victim impact evidence was not enumerated in the statute as an

applicable statute also explicitly restricted what evidence could be offered, statute as stated in Commonwealth v. Tedford, p. 96 960 A.2d 1 (Pa. 2008), the

circumstances. Id. evidence, concluded that the statute allowed only evidence of mitigating is silent with regard to the admission of victim impact evidence, courts have 906 P.2d at 278 (quotation omitted). The court, in precluding victim impact The defendant correctly observes that “[w]here the capital murder statute

character and background and the circumstances of the offense may reduce substantially outweigh its probative value. death should be imposed, to determine “the extent to which the defendant’s unfair prejudice, confusion of the issues, or misleading the jury does not under a statute that required the jury, in considering whether a sentence of 927 P.2d 1073 (Or. 19 p. 96 96), the state sought to admit victim impact evidence 906 P.2d 272 (Or. 1995), superseded by statute as stated in State v. Moore, see State v. Bakunczyk, 164 N.H. 77, 79 (2012) (it is a well-recognized principle

p. 97 See RSA 630:5, I(b), III, VII. We affirm the trial court’s denial of the defendant’s impact evidence is admissible at the sentencing phase of a capital murder trial. to any other aggravating factors for which notice has been provided, victim

other aggravating factor for which notice has been provided.” RSA 630:5, III;

language of RSA 630:5, which permits the State to present information relating

would be admissible, thereby rendering superfluous the language allowing “any evidence beyond the specific aggravating factors enumerated in the statute such evidence is not permitted. Under such a construction, no aggravating

Id. at 971. Thus, the State could introduce “a limited amount of general

that are superfluous”). Accordingly, we hold that pursuant to the plain

motion to strike the State’s victim impact non-statutory aggravating factor. 630:5 expressly identifying victim impact evidence as an aggravating factor, We disagree with the defendant’s argument that, absent language in RSA

hearing), superseded by statute as stated in Taylor v. State, 156 P.3d 739 and to the murderer’s character and propensities. of statutory construction that “the legislature is presumed not to use words

trial fundamentally unfair.” Id. at 891 (quotation omitted); see also Miller v.

of those myriad factors encompassed within the statutory language nature and (Utah 2007).

Nesbit, 978 S.W.2d at 889. Despite case law that limited evidence regarding of evidentiary law was neither relevant nor probative in a capital sentencing that extent is relevant both to the circumstances of the crime include, but not be limited to, the nature and circumstances of the crime.” Carter, 888 P.2d 629, 651-53 (Utah 1995) (victim impact evidence as a matter is a fact bearing on the murderer’s moral culpability and to by Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010). But see State v. victim’s death, this general knowledge at the time of the crime Commonwealth, 121 S.W.3d 198, 206 (Ky. 2003), overruled on other grounds State, 913 So. 2d 1148, 1165 (Ala. Crim. App. 2004); Parrish v.

may be introduced provided it is not “so unduly prejudicial that it renders the circumstances of the crime.” Id. at 890. Therefore, victim impact evidence

concluded that “the impact of the crime on the victim’s immediate family is one aggravating circumstances to those enumerated in the statute, the court

“as to any matter the court deems relevant to the punishment and may statute provided that evidence may be presented in the sentencing proceeding should have foreseen some of the consequences of his Likewise, in State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), the pertinent Since a specific intent murderer either knew or reasonably

evidence demonstrating harm to the victim’s survivors.” Id. evidence providing identity to the victim and a limited amount of general penalty phase of a capital trial, Booth deprives the State of the

p. 98 family. By turning the victim into a faceless stranger at the

represents a unique loss to society and in particular to his individual, so too the victim is an individual whose death that just as the murderer should be considered as an

defendant is entitled to put in, by reminding the sentencer

proper punishment for a first-degree murder.

interest in counteracting the mitigating evidence which the harm caused by the defendant. The State has a legitimate have before it at the sentencing phase evidence of the specific having before it all the information necessary to determine the

Because Payne v. Tennessee, 501 U.S. 808 (1991), often serves as a

is narrowed to a filament. We are to keep the balance true.” Id. at 827

society which has resulted from the defendant’s homicide.” Id. (citation and

defendant’s moral culpability and blameworthiness, it should full moral force of its evidence and may prevent the jury from

is due to the accuser also. The concept of fairness must not be strained till it

chose to extinguish or demonstrating the loss to the victim’s family and to

conclude that for the jury to assess meaningfully the According to the Court, its misreading of precedent in Booth “unfairly We are now of the view that a State may properly

from the crime which he had committed.” Id. at 822. (quotation omitted). erred “in admitting this evidence under RSA 630:5, III.” in any of our cases preceding Booth that the defendant, entitled as he was to asserts that the evidence was “unfairly prejudicial” such that the trial court quotation omitted). As the Court stated, “Justice, though due to the accused, Briggs’s life and the harm to his family” that resulted from his murder. He victim impact evidence and prosecutorial argument on such evidence. Payne,

the State from “either offering a quick glimpse of the life which a defendant relevant mitigating evidence a capital defendant may introduce, while barring sentencing, we begin by examining that decision. In Payne, the United States weighted the scales in a capital trial” by placing virtually no limits on the

individualized consideration, was to receive that consideration wholly apart

501 U.S. at 827. The Court explained that “it was never held or even suggested the scope of what was necessary to afford the jury a ‘quick glimpse’ of [Officer] that those decisions held that the Eighth Amendment precludes admission of The defendant next argues that “[t]he victim impact evidence exceeded 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), to the extent Supreme Court overruled its prior decisions in Booth v. Maryland, 482 U.S.

touchstone for establishing the contours of victim impact evidence at capital in this case as part of the victim impact evidence. See, e.g., People v. Zamudio, p. 99 Some courts have allowed more photographs than the thirty-six admitted

impact aggravating factor). phase case-in-chief, was relevant to establishing the non-statutory victim

See, e.g., United States v. Nelson, 347 F.3d 701, 712-13 (8th Cir. 2003) and some have allowed testimony from individuals other than family members.

Amendment” because no such evidence was presented in Payne. Id. at 830 victim impact witnesses, taking up eighty percent of the government’s penalty States v. Bolden, 545 F.3d 609, 626-27 (8th Cir. 2008) (testimony from sixteen (Fla. 2008) (testimony admitted from five victim impact witnesses); United Id. at 825. Also, Payne left undisturbed the portion of Booth that held that “the seven friends and family members); Deparvine v. State, 995 So. 2d 351, 378 Payne, 501 U.S. at 825 (quotation omitted). Constitutional concerns arise only State v. Knese, 985 S.W.2d 759, 771-72 (Mo. 1999) (testimony allowed from death represents a unique loss to society and in particular to his family.” (testimony allowed from three family members, two neighbors, and a teacher);

Pursuant to Payne, therefore, there is no federal constitutional of witnesses than the four immediate family members who testified in this case, For example, some courts have allowed testimony from a greater number

permissible victim impact evidence set forth in Payne. the crime, the defendant, and the appropriate sentence violates the Eighth decision, federal and state courts have fleshed out the broad contours of fundamentally unfair.” Id. Over the two decades since the Supreme Court’s when victim impact evidence is “so unduly prejudicial that it renders the trial Process Clause of the Fourteenth Amendment provides a mechanism for relief.”

phase of a capital trial to demonstrate that “the victim is an individual whose impediment to the State introducing victim impact evidence during the penalty

relevant evidence is treated.” Id. n.2. imposed. There is no reason to treat such evidence differently than other

admission of a victim’s family members’ characterizations and opinions about

so unduly prejudicial that it renders the trial fundamentally unfair, the Due penalty,” it noted that in the event victim impact evidence is introduced “that is Id. at 825 (citations, quotations, and brackets omitted). Thus, the Court held stating that this kind of evidence leads to the arbitrary imposition of the death Although the Court concluded that “the Booth Court was wrong in

to the jury’s decision as to whether or not the death penalty should be the victim and about the impact of the murder on the victim’s family is relevant per se bar.” Id. at 827. “A State may legitimately conclude that evidence about and prosecutorial argument on that subject, the Eighth Amendment erects no that “if the State chooses to permit the admission of victim impact evidence p. 100 For example, in Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002),

victim impact evidence allowed by the trial court in this case. cases cited by the defendant, however, differ significantly from the scope of

moral response.” (Quotation omitted.) The circumstances presented in the

their opinions about the crime, the defendant, or the sentence. See Payne, 501

“creat[ing] the risk of a death verdict based on emotion rather than a reasoned video clips, “contributed to the emotional nature of the presentation,” thus chronological montage. Music accompanie[d] the entire Briggs as a child, as well as photographs of Officer Briggs’s children, including

and brackets omitted.) Further, we note that none of the witnesses offered 100 prejudicial that it would render the trial fundamentally unfair.” (Quotations and his characteristics as an individual human being,” and “is not so unduly

approximately 140 still photographs, arranged in a rendered it inadmissible.” Specifically, he argues that evidence of Officer

that “[i]n the wake of Payne, ‘the vast majority of jurisdictions that have

harm, injury and loss that Officer Briggs’ family feels as a result of his murder

The defendant nonetheless argues that “the content of the evidence consisting of as part of its victim impact evidence the State showed a video recording State v. Muhammad, 678 A.2d 164, 177 (N.J. 1996) (collecting cases)). The

considered by sentencing authorities.” (Quotation omitted.) The court noted

the jury of the specific harm caused by his murder,” is “highly probative of the

within “the parameters of Payne . . . and . . . under RSA 630:5, III” because it

was clearly untenable or unreasonable to the prejudice of the defendant’s case. such evidence is relevant to determining the appropriate sentence.’” (Quoting U.S. at 830 n.2. On this record, we do not conclude that the trial court’s ruling

specific harm caused by the crime in question, evidence of a general type long

trial court, citing Payne, reasoned that “victim impact evidence is simply “shows Officer Briggs’ uniqueness as an individual human being and informs Here, in allowing the victim impact evidence proffered by the State, the

trial court concluded that the State’s victim impact testimony was admissible

considered the admissibility of victim impact evidence have . . . concluded that

Wheeler v. State, 4 So. 3d 599, 608 (Fla. 2009) (fifty-four photographs allowed). another form or method of informing the sentencing authority about the 181 P.3d 105, 134 (Cal. 2008) (118 photographs allowed for two victims);

minutes long). video); Hicks v. State, 940 S.W.2d 855, 857 (Ark. 1997) (video almost fourteen minute video); People v. Kelly, 171 P.3d 548, 570 (Cal. 2007) (twenty-minute United States v. Wilson, 493 F. Supp. 2d 491, 505 (E.D.N.Y. 2007) (twentylonger than the three short video recordings shown in this case. See, e.g., In addition, some courts have found no error in showing video recordings p. 101 Salazar, 90 S.W.3d at 333. The court concluded that the probative value of

the victim and his teen-age buddies.

presumably going to their prom, and more candid shots of

because of its undue emphasis upon the adult victim’s halcyon childhood.” Id.; player. There [was] a picture of him and his date,

Id. at 337. Although the court noted that “[w]hile the probative value of one or

circumstances surrounding his death; nor [did] they show how the

“infant-growing-into-youth” photographs is de minimus. “[the video montage] is very prejudicial both because of its sheer volume, and not his past. The probative value of the vast majority of these prowess as a young soccer player and eventually as a football an adult, not a child. He extinguished [the victim’s] future, cheerful young man. It catalog[ued] his evident and early victim’s] progression from a cheerful child to an equally 101

puppy dog. snuffed out the life of . . . the young boy hugging his blond future in no way provid[ed] insight into the contemporaneous and prospective angelic infant; he killed this laughing, light-hearted child; he

substantially outweighed by the risk of unfair prejudice,” it concluded that infant, toddler, or small child, but [the defendant] murdered

include[d] numerous annual school pictures showing [the

about the victim as a baby, his growing up and his parents’ hopes for his implicit suggestion is that [the defendant] murdered this see Conover v. State, 933 P.2d 904, 921 (Okla. Crim. App. 1997) (“Comments

two photographs of an adult murder victim’s childhood might not be Nearly half of the photographs showed [the victim] as an

stating: bluebonnets, and cuddling with a puppy. The video also friends, happily riding on a carousel, laughing in a field of toddler, playing the piano, frolicking at the beach with other

However, their prejudicial effect is enormous because the

Titanic. Celine Dion singing, “My Heart Will Go On,” from the movie

much of the video montage was low and the potential for unfair prejudice high,

children. Later photographs show[ed] [the victim] as a

“Storms in Africa” and “River” by Enya, and conclude[d] with seventeen-minute video and include[d] such selections as

parents, grandparents, unidentified relatives, and other small pictures show[ed] an angelic baby, surrounded by loving depict[ed] the victim’s infancy and early childhood. The Almost half of the approximately 140 photographs uniqueness as an individual and the harm done to the family by his absence.”

p. 102 counsel that it “found the pictures were relevant to show [Officer Briggs’s]

childhood.” Following Laura Briggs’s testimony, the trial court indicated to magnitude of their loss without giving the jury some background of his would be difficult for [Officer Briggs’s] parents and sibling to convey the

result of the murder of their son and brother.” As the court explained, “[i]t

the loss and harm that Officer Briggs’ parents and siblings have suffered as a childhood [was] admissible victim impact evidence” because it was “probative of Here, the trial court found that “limited evidence of Officer Briggs’

charged display as might be unduly prejudicial.” Id. at 1113-14 (quotation

three-year-old).

irrational response from the jury or render the trial fundamentally unfair), cert.

there [was] no evidence that either witness exhibited such an emotionally

as a child. See, e.g., United States v. Barnette, 211 F.3d 803, 818-19 (4th Cir. 838, 851 (Okla. Crim. App. 1998) (victim’s stepfather testified about victim as a denied, Nelson v. California, 132 S. Ct. 183 (2011); Cannon v. State, 961 P.2d

victim “as victim impact evidence is designed to do” and did not invite a purely 301, 317 (Cal. 2011) (five photographs of the victim as a child humanized the victim as a toddler and various school pictures); People v. Nelson, 246 P.3d very brief, and while a person sitting in the courtroom broke down into tears, containing approximately 160 photographs, including photographs of the few short references to the victim’s childhood. Overall, the statements were 803 (2005); Hicks, 940 S.W.2d at 857 (allowing a fourteen-minute videotape By contrast, in Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008), the the court concluded that “[t]he victim impact statements here contained only a experiences), vacated on other grounds by Barnette v. United States, 546 U.S. crime had on their lives, including stories of the victims’ childhoods and family family.”). 2000) (seven members of the victims’ families testified about the impact the license, just set plans, hopes and dreams of taking care of his family.” Id. at long-range plans of being better educated. He had . . . gotten his real estate Numerous courts have allowed testimony and photographs of the victim

omitted). Sirmons, 536 F.3d at 1113. The victim’s mother testified that “as a child, a holidays because he was raised in a family that did not celebrate Christmas.”

inflammatory statements did not render the proceeding fundamentally unfair,” 1112 (brackets and quotation omitted). Noting that it had found that “far more psychologically, and physically impacted a member of the victim’s immediate circumstances surrounding his death have financially, emotionally,

responsible adult, and an asset to our family and the community. He had young adult, [the victim] didn’t give me any problems. He was maturing into a

victim’s widow testified that “the victim was especially fond of Christmas particular testimony.” Wamala, 158 N.H. at 590. Here, the record establishes p. 103 “The trial court is in the best position to gauge the prejudicial impact of

moved by the testimony.

that. Obviously, from their facial expressions, they were jurors for their reactions, and I did not — I didn’t really see have been awfully subtle or something because I do watch the

[victim impact] testimony. . . . Anyway, if they did, it must

think I saw any jurors shed tears except for that during the alternates did cry during Laura Briggs’ testimony. I don’t reactions or tears by the jury. I must say, one of the

evidence . . . . [D]efense counsel referenced emotional

I do want to just comment on the victim impact

the State’s victim impact evidence, the court stated to counsel: observed the jurors, paying attention to their reaction. After the conclusion of

instructions. State v. Yates, 152 N.H. 245, 252 (2005).

they were admissible. As the evidence was presented at trial, the court

simply an emotional response to it.” Jurors are presumed to follow the court’s

the witnesses’ testimony, the trial court reviewed them and determined that from four immediate family members, a limited number of photographs of the allowing the State to introduce the photographs and video recordings during defendant’s objections to specific items of proffered evidence. Also, prior to

your consideration is limited to a rational analysis of the evidence rather than evidence what weight you wish in determining an appropriate punishment, but psychological [e]ffects of Officer Briggs’ death on his family. You may give this

Briggs’s life was not improperly presented to the jury through brief testimony victim impact evidence, the court held a hearing and considered the

We have reviewed the record and conclude that the glimpse into Officer prejudicial to the defendant. As noted above, prior to the jury receiving any took precautions to ensure that the victim impact evidence was not unduly Both before and during the sentence selection phase of trial, the court

court instructed the jury as follows regarding the State’s victim impact non- Furthermore, as requested by the defendant, in its final charge the trial

ensured that it was not unduly prejudicial to the defendant.

that the court carefully assessed the impact of the testimony and, thus,

any longer.” were very relevant to the harm done to these boys by not having their father the sons without those videos. They’re very short, but they certainly showed —

hard to understand the nature of the relationship . . . between the father and Regarding the video recordings, the trial court stated that “it would be very sentence of life in prison without the possibility of parole.” He argued that “the

p. 104 evidence of “any specific future conditions of incarceration regarding a

and admissible under RSA 630:5, III and Supreme Court precedent.” See

capital sentencing statute. See RSA 630:5, XIII, XIV (2007). Specifically, he Subsequently, the defendant filed a motion to preclude at sentencing

inaccurate.”

finding that the testimony . . . [was] consistent with the State’s Notice of Intent

court provide a jury instruction on the mode of execution based upon the

execution, ruling that such an instruction “is unnecessary and potentially

State’s evidence “amount[ed] to a constitutional violation given [the court’s] the trial court that the defendant has failed to explain how admission of the Fourteenth Amendment to the Federal Constitution. However, we agree with

death penalty protocols or the means of execution,” but requested that the trial the defendant stated that he did not intend “to introduce evidence regarding legislature could change the method in the future. In his responsive pleading, denied the defendant’s request for a jury instruction regarding the method of side may elicit evidence or comment on the method of execution.” It also By written order dated November 12, 2008, the court ruled that “neither 104

his due process rights under Part I, Article 15 of the State Constitution and the

irrelevant to the sentencing issues and potentially misleading given that the

2. Conditions of Confinement and Mode of Execution admission of the victim impact evidence in this case amounted to a violation of The defendant advances a constitutional argument, asserting that the

evidence.

is carried out in New Hampshire. It argued that such information was sentencing any information regarding the manner in which a sentence of death In August 2008, the State filed a motion to preclude at both phases of execution instruction). lethal injection, or, if lethal injection is impractical, hanging” (mode of a. Background asked the court to inform the jury that “the punishment of death is inflicted by

unfair”).

not unsustainably exercise its discretion in admitting the State’s victim impact outweighed by the danger of unfair prejudice and hold that the trial court did persuaded that the probative value of this evidence was substantially

long as it is not “so unduly prejudicial that it renders the trial fundamentally Payne, 501 U.S. at 825 (victim impact evidence is constitutionally acceptable so

three minutes in duration, of the victim interacting with his sons. We are not victim and his family members, and three short video recordings, in total under p. 105 December 2, 2008. It ruled that information on prison conditions was “highly

The trial court denied the defendant’s motion by written order dated

previously found by the trial court. the form of the defendant’s proposed jury instruction, remained irrelevant as

Additionally, the State argued that information on the manner of execution, in

administrators and personnel who are well familiar with those protocols.” prison rules and guidelines, and will be presented by professional prison confinement was not speculative because it “will be based upon established

The State also argued that information on future conditions of

sentencing.” incarceration, and how the circumstances of such will change upon

how that environment is an inaccurate representation of his future

environment in which the defendant has conducted himself to date is artificial,

case.” The State sought to present information explaining “how the “present conditions of incarceration will change upon his sentencing in this to date he has remained in that unique housing arrangement,” and that his

[the defendant] was placed in a special tier without access to other inmates, and

past, present, and future. The State pointed out that “at his attorneys’ request information related to his conditions of confinement at the State Prison in the jurors should consider in mitigation,” it was entitled to rebut this factor with

place before the jury his behavior while incarcerated to date as a factor that

mitigating factor, the State argued that because “the defendant will affirmatively modification measures.” With respect to the defendant’s prison adjustment possibly could harm others, and the presence or absence of behavior

interactions with other inmates, his access to instruments with which he

expected to introduce “testimony . . . as to the defendant’s exposure to and

whether and to what extent he poses a danger to others.” It asserted that it defendant’s post-sentencing confinement” to inform the jury on “the issue of sought to introduce information on “[t]he nature and conditions of the

two mitigating factors pertaining to the defendant’s confinement. The State

aggravating factor alleging future dangerousness, and constituted rebuttal to incarceration was not speculative, was probative of the non-statutory The State objected, arguing that evidence of the future conditions of

means of carrying out a sentence of death.” without parole will be carried out because the court has barred evidence of the should bar evidence of the means by which the sentence of life in prison

limitations.” According to the defendant, “perhaps most importantly, the court

imposition of the death penalty in violation of state and federal constitutional process and would invite an unconstitutional risk of arbitrary or capricious misleading the jury and, thus, its admission would violate his “rights to due

would be speculative, irrelevant, and create a substantial risk of confusing or manner of imposing a sentence of life in prison without release on parole” prison guard. C-5 inmates take all of their meals inside their individual cells.

p. 106 his cell, his hands are handcuffed behind his back and he is escorted by a

allowed out of their cells for an hour each day. Whenever a C-5 inmate leaves are in their cells, C-5 inmates are not secured or handcuffed, and they are purchase a “security grade” television with a thirteen-inch screen. While they

behavior and a minimum of six months, C-5 inmates may request approval to

books, writing materials, and personal letters. After a period of time of good allowed prison issued clothing, their legal materials, recreational paperback allowed in the inmate’s cell are “very restricted.” For instance, C-5 inmates are

C-5 inmate does not share his cell with other inmates and that the items

inmates, including some of the privileges available to them. He testified that a Warden Gerry described the living conditions for C-5, C-4, and C-3

inmates at the prison at that time, approximately 1,000 had C-3 status.

described C-3 as the general prison population custody level; of the 1,400

time, more than one hundred inmates resided in that unit. The warden custody level, in which inmates are housed in the Close Custody Unit; at the Unit” apart from the rest of the prison population. He identified C-4 as the next

hundred C-5 inmates were housed in the Special Housing Unit or “Max Custody

C-3. C-5 is the maximum custody level and, at the time, more than one imprisonment without possibility of parole could be classified as C-5, C-4, or testified that an individual convicted of capital murder and sentenced to life

who is sentenced to life in prison without possibility of parole. Specifically, he

C-5, the warden described the three classification levels available to an inmate Although the prison maintains five levels of classification, C-1 through

and activities . . . they [may] be involved in.”

classification “determine[s] where they are housed, [and] what programming

classification system “drives the correctional system” and that inmate placed in variously restrictive environments. He explained that the prison’s alternatives and outlined the classification process under which inmates are

Gerry, the prison warden. Warden Gerry described the prison’s housing

Hampshire State Prison for men in Concord through the testimony of Richard presented information about the custody classification system of the New Subsequently, during the sentence selection phase of trial, the State

information was relevant while the former was not. require it to reject the conditions of confinement evidence because the latter rejection of the defendant’s proposed mode of execution instruction did not

procedures that apply to every inmate.” The court further explained that its

confinement were “governed by long-established and predictable rules and information was not speculative because the defendant’s expected conditions of mitigating factor submitted by the defendant. The court ruled that the

prison environment and also was relevant to rebut the prison adjustment probative” of whether the defendant will present a future danger within the phase, the trial court instructed the jury that, when considering whether the

p. 107 In its preliminary and final jury instructions at the sentence selection

as C-4. with other people in the living conditions of a lower classification status, such

inmates typically do not present problematic behavior until they interact more

with other people during his confinement on N Tier. He testified that C-5 present problematic behavior in the future because he had not been interacting warden testified that he was unable to predict whether the defendant would

he would no longer be monitored by video camera twenty-four hours a day. The

out of N Tier and into the Special Housing Unit with C-5 security status, where sentenced to life imprisonment without possibility of parole, he would be moved prison population. Warden Gerry testified that if the defendant were to be

defendant’s attorneys requested that he be kept separated from the rest of the

twenty-four hours a day by video camera. The warden explained that the

had been “completely isolated from the other inmates and staff” and monitored doors.” The defendant had resided on N Tier since November 2006, where he separated from the rest of the Special Housing Unit by a “series of two solid

“N Tier.” Warden Gerry described N Tier as four individual cells that are

of the Special Housing Unit, the defendant was the only inmate housed on arrangement. He testified that rather than being housed in the regular section Finally, the warden explained the defendant’s unique housing

trade, and play sports, such as basketball. while in prison, inmates may obtain a high school equivalency diploma, learn a vocational, and recreational opportunities available to inmates. For instance,

meals at the dining hall. Further, Warden Gerry testified about the educational,

and then secured for the night . . . .” Like C-4 inmates, C-3 inmates take their

institutional count times where all inmates are counted at that point in time their cells: “the only time they would be confined in their cells would be during testified that it is possible for C-3 inmates to spend most of their time outside of

pots” to heat food, recreational games, radios, and televisions. The warden

allowed a wider variety of personal property in their cells, such as “warming eight-person “dorm” rooms. Unlike C-5 and C-4 inmates, C-3 inmates are described as medium security. C-3 inmates live in either two-person cells or

closer to a year,” a C-4 inmate could be reclassified to C-3 status, which he

The warden testified that after a “[m]inimum of six months but probably

allowed outside their cells, and C-4 inmates take their meals at the dining hall.

C-5 inmates, C-4 inmates are not handcuffed and escorted when they are

inmates and are allowed out of their cells for several hours a day. Also unlike C-4 inmate. Unlike C-5 inmates, C-4 inmates share their cells with other that after “at least a year” as a C-5 inmate, an inmate could be reclassified as a

without possibility of parole can achieve a lower security status. He testified The warden also explained how an inmate sentenced to life imprisonment p. 108 Punishment Clauses of the State and Federal Constitutions, see N.H. CONST.

constitutional analog. See Simmons v. South Carolina, 512 U.S. 154, 162 individualized sentencing command of the Eighth Amendment and its state dangerousness non-statutory aggravating factor fails to comport with the protected by the State and Federal Constitutions, see N.H. CONST. pt. I, arts.

rights under the Due Process Clauses and the Cruel and/or Unusual 108 unsustainably exercised its discretion,” thereby violating RSA 630:5, III and his parole inmate, but not evidence of the method of execution, the trial court future dangerousness during the penalty phase of a capital trial, recognizing constituted unsustainable exercises of discretion. See State v. Wamala, 158

b. Appellate Argument

“no bearing on [his] character.” He does not argue, however, that the future factor. proceeding free of the influence of arbitrary factors, passion, or emotion” III (2007) and his “rights to due process, a fair trial, and a capital sentencing was speculative, irrelevant, and “manifestly prejudicial,” violating RSA 630:5, 1. Conditions of Confinement

of the general prison conditions experienced by a hypothetical life without (1994) (plurality opinion) (“This Court has approved the jury’s consideration of We first consider whether the trial court’s decisions under RSA 630:5, III

confinement is irrelevant because it has “nothing to do with the crime” and has determined that the defendant failed to prove the prison adjustment mitigating The defendant contends that the information about conditions of

imprisonment without possibility of parole. He contends that such evidence

N.H. 583, 592 (2009). mode of execution jury instruction. He contends that “[b]y admitting evidence The defendant also challenges the trial court’s rejection of his proposed

c. Discussion

pt. I, arts. 15, 18, 33; U.S. CONST. amends. V, VIII, XIV. statutory aggravating factor that it found the State failed to prove. The jury also findings and sentencing verdict, future dangerousness was the only nonclassification while the defendant is incarcerated.” When the jury returned its regarding the conditions of confinement for inmates sentenced to life State to present, during the sentence selection phase of the trial, testimony The defendant challenges the trial court’s December 2 order allowing the

15, 18, 33; U.S. CONST. amends. V, VIII, XIV.

reasonable doubt, it could consider “any current, past, or future custody State had proven the future dangerousness aggravating factor beyond a change if he were sentenced to life imprisonment without possibility of parole,

p. 109 defendant’s N Tier restrictive confinement, and how those circumstances would The trial court also found that evidence of the circumstances of the

the evidence of conditions of confinement relevant to future dangerousness.

prison setting. Accordingly, we hold that the trial court did not err in finding

potential weapons, bears upon whether he would pose a future danger in a to and interactions with other inmates, as well as his opportunity to access court properly determined that evidence of the defendant’s potential exposure

access to instruments that could be used to harm others. In so ruling, the

of the defendant’s future exposure to, and interactions with, other inmates and system and conditions of confinement to show, among other things, the extent Here, the trial court allowed information about the prison classification

commit violent acts in prison”).

environment.” United States v. Sampson, 335 F. Supp. 2d 166, 227 (D. Mass. in a maximum security prison, and less dangerous still in a more secure life”); Coble v. State, 330 S.W.3d 253, 268-69 (Tex. Crim. App. 2010) (the defendant is likely to present a danger in a prison setting if incarcerated for appellant, with his history of assaultive behavior, would have opportunities to appellant’s future dangerousness, such as considering whether a life-sentenced “had some relevance to, and would have aided the jury in determining,

institutional restraints put on that person”); Lucero v. State, 246 S.W.3d 86, 97 violence of the particular individual” as well as “the quantity or quality of the

significantly less dangerous in a medium security prison, even less dangerous

Federal Bureau of Prisons “is valuable to a jury asked to consider whether a

under current prison conditions” was not an abuse of discretion because it (Tex. Crim. App. 2008) (allowing testimony “that inmate violence can occur and admissible at capital sentencing. See RSA 630:5, III. relates to future dangerousness as a legitimate aggravating factor is relevant

would constitute a continuing threat to society” focuses upon “the character for “probability that the defendant would commit criminal acts of violence that

environment. A person who is dangerous in a halfway house may be individual presents is a function not only of that individual, but also of his confinement is relevant to the future dangerousness inquiry. “The danger any safety and the future assignment and classification of the defendant by the See, e.g., id. at 226-27 (evidence regarding federal prison administration and threat while serving the rest of his natural life in a high security environment. can be critical to the determination of whether a defendant poses a realistic information about the expected conditions of a defendant’s future confinement 2004), aff’d, 486 F.3d 13 (1st Cir. 2007). Courts have recognized that determinations made in our criminal justice system.”). Thus, information that that a defendant’s future dangerousness bears on all sentencing

We agree with the trial court that information on conditions of precedent. In Jurek v. Texas, 428 U.S. 262 (1976), “seven Justices rejected the

p. 110 future conduct, this argument is foreclosed by United States Supreme Court confinement evidence invited the jury to speculate impermissibly about his To the extent that the defendant argues that the conditions of

amends the statute or prison officials amend the rules.”

point that the present conditions of incarceration may change if the Legislature “cross-examine the State’s witnesses or rebut the State’s evidence to make his impermissibly speculative. As the trial court noted, the defendant was free to

determination that evidence of the conditions of confinement was not

does not challenge this finding. We, therefore, uphold the trial court’s predictable rules and procedures that apply to every inmate.” The defendant because “[t]he conditions of incarceration are governed by long-established and

Moreover, the trial court ruled that the evidence was not improperly speculative

would receive if the jury determined not to impose a sentence of death. imprisonment without possibility of parole, the same sentence the defendant testimony on the conditions of confinement of inmates sentenced to life

term at the New Hampshire State Prison.” However, the State presented

throughout our criminal justice system.” Jurek, 428 U.S. at 274-75. criminal conduct is an essential element in many of the decisions rendered however, does not mean that it cannot be made. Indeed, prediction of future addressed “the conditions a typical inmate might experience if housed long-

predict future behavior. The fact that such a determination is difficult, He contends that none of the information was specific to him, but instead Barefoot v. Estelle, 463 U.S. 880, 897 (1983). “It is, of course, not easy to lacked probative value or was unfairly prejudicial because it was speculative. was therefore an invalid consideration in imposing the death penalty.” claim that it was impossible to predict future behavior and that dangerousness The defendant argues, however, that conditions of confinement evidence

mitigating factor. See RSA 630:5, III (“[t]he state and the defendant shall be possibility of parole did not constitute fair rebuttal to his prison adjustment housing arrangement if he were sentenced to life imprisonment without

has demonstrated his potential to adjust well in a secure prison setting.” See adjust safely to the prison environment. during his two years of pretrial confinement as evidence of his future ability to mitigating factor specifically called upon the jury to consider his behavior

defendant fails to explain why evidence of the expected changes to his unique

years of pre-trial confinement, [he] has committed no crimes and his behavior was relevant to rebut the defendant’s mitigating factor that “[d]uring his two

permitted to rebut any information received at the hearing”). His submitted

adjustment to prison evidence as relevant in mitigation of punishment). The Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (approving the admission of p. 111 “invoked [his] ability to watch Alabama football games and play pool with

privileges testimony. The defendant contends that in its closing, the State illustrate the alleged unfairly prejudicial nature of the warden’s prison The defendant further relies upon the State’s closing argument to

inmates is not borne out by the record. defendant’s characterization of the testimony regarding privileges afforded to not “a harsh punishment.” We agree with the State, however, that the

defendant argues that the jury would conclude that imprisonment for life was

relaxed.” Based upon this characterization of the warden’s testimony, the

medium custody inmate at the New Hampshire State Prison as carefree and of confinement was unfairly prejudicial because it “portrayed the life of a The defendant also asserts that the warden’s testimony about conditions

during his pretrial confinement. confinement in the N Tier kept him from the usual conditions of prison life inmates in the less restrictive custody levels showed that the defendant’s

prison setting.” The warden’s testimony regarding privileges extended to

and his behavior has demonstrated his potential to adjust well in a secure “[d]uring his two years of pre-trial confinement, [he] has committed no crimes to rebut the mitigating factor submitted by the defendant, which alleged that

had resided since his confinement at the State Prison. The State was entitled unpreserved.” See State v. Eaton, 162 N.H. 190, 195 (2011); State v. Winward, inmates, and thus “the specific appellate argument that [he] now makes is

the “artificially restrictive” N Tier housing environment where the defendant Moreover, the testimony put into context what the State characterized as the warden’s testimony about the privileges accorded C-5, C-4, and C-3

bore upon the issue of his future dangerousness. As the State correctly notes, during trial the defendant did not object to

numerous comforts and access to varied social and vocational activities.”

might have to access objects he could use to harm others. This information

“[t]hrough the Warden, the State left no doubt that C-3 inmates are afforded

and from direct monitoring by prison staff and revealed the opportunities he evidence showed the extent to which the defendant would be free from restraint the defendant’s future exposure to and interaction with other inmates. The danger, or ability to adjust to prison life.” According to the defendant, and games had no legitimate bearing on [his] character, capacity for future inmate’s access to cable television, work and educational opportunities, music,

privileges afforded to inmates at the various classification levels was relevant to preserved for appeal, we conclude that it lacks merit. Evidence about the 161 N.H. 533, 542 (2011). However, even assuming that this issue was privileges afforded at the inmate classification levels. He argues that “an The defendant also challenges the warden’s testimony describing the examination of the defendant. Dr. Barr testified that the defendant told him

p. 112 interview with Dr. William Barr, a neuropsychologist who conducted an particular, the prosecutor pointed to the casual attitude he expressed during an directing the jury’s attention to evidence of the defendant’s lack of remorse. In

prison life would be “carefree and relaxed.” Rather, the prosecutor was

that a sentence of life in prison without parole would be unjust because his may have in prison, such as watching a football game, was not an argument In context, the State’s closing statements regarding the privileges the defendant

this case. It just doesn’t do justice. that he has caused here. A life sentence doesn’t do justice in spend thinking about the pain and the trauma, the real pain

while they’re playing pool or playing cards than he will ever

bragging to his criminal buddies about how he popped a cop

the next Alabama football game on his cable television or He will spend more time in that prison thinking about

to life.

and devastation that he had caused here if you sentence him way he’s going to spend one moment thinking about the pain of the pain that he has caused in this courtroom, there’s no

if he can’t express any emotion when he sees the raw emotion

prison feeling bad for what he has done here. You know that to life in prison, he is not going to spend one moment in that The cold reality is in this case that if you sentence him

this trial.

his violent criminal history just a few days before we started only expressed excitement when Dr. Barr talked to him about they are going to have to bear for the rest of their lives. He

remorse for what he did to Mike Briggs and for the pain that

You saw his behavior. He doesn’t — he didn’t show any only true if someone feels remorse for what they had done. sentence could be worse than a death sentence. But that’s Some of you told us in jury selection that a life

In its closing, the State argued:

that the record does not support the defendant’s characterization of them.

admissibility of the challenged conditions of confinement evidence, we conclude evidence. Even assuming that the State’s closing remarks are pertinent to the the remarks when assessing the prejudicial impact of the prison privileges

trial objection to the State’s closing remarks. Rather, he asks us to consider friends if sentenced to life without parole.” The defendant does not point to any which she responded:

p. 113 prosecutor asked her, “How has Mike’s death impacted you and your family?” to same day that the warden testified. During the course of her testimony, the Officer Briggs’s mother presented victim impact testimony later on the

instruction to the jury. of its use because the trial court erroneously rejected his proposed limiting According to the defendant, the evidence was admitted without any limitation

warden’s testimony during the sentence selection phase of trial. See Eaton,

son would not enjoy the privileges available to a C-3 inmate such as Addison.”

points out, he did not make any such contemporaneous objection to the manner, his argument was not preserved for appellate review. As the State presented the conditions of confinement testimony in an impermissible explained. He characterizes a portion of her testimony as “lament[ing] that her emphasized aspects of the conditions of confinement that the warden defendant argues that the mother’s victim impact testimony improperly

to the prejudice of his case. To the extent the defendant argues that the State

of Officer Briggs’s mother. Thus, we review this preserved argument. The

the prison adjustment mitigating factor was clearly untenable or unreasonable confinement as probative of the future dangerousness aggravating factor and the trial court’s decision under RSA 630:5, III to admit evidence of conditions of upon a contemporaneous trial objection that he made regarding the testimony The defendant does, however, present an appellate argument resting

the likelihood that a defendant will receive a sentence of death. See Barefoot,

Accordingly, we hold that the defendant has failed to demonstrate that

162 N.H. at 195; Winward, 161 N.H. at 542. basis, commonly one that is emotionally charged.” State v. Town, 163 N.H. 790, prejudice does not exist simply because the contested evidence may increase undue tendency to induce a decision against the defendant on some improper In short, the defendant’s unfair prejudice argument is unavailing. Unfair

proponent seeks to introduce it — but it is only unfair prejudice against which

other relevant evidence against any defendant in a criminal case”); see also

796 (2012) (quotation omitted).

the law protects.” (quotation omitted)). Rather, unfair prejudice must have “an interested in a particular football game involving the Alabama Crimson Tide.” evidence is prejudicial — if the truth be told, that is almost always why the that their interview “better be done by middle of the afternoon because he was United States v. Pinillos-Prieto, 419 F.3d 61, 72 (1st Cir. 2005) (“Virtually all

render that “evidence inadmissible, any more than it would with respect to “increased the likelihood that petitioner would be sentenced to death” did not 463 U.S. at 905-06 (recognizing that the fact that psychiatric testimony p. 114 The court declined to provide this instruction to the jury.

opportunities in the future. personally be afforded educational, recreational or vocational

death sentence, in any part, on whether the defendant may

on the appropriateness of a life without parole sentence or a other reason. Specifically, you cannot base your conclusion offered for any other reason and you cannot consider it for any

future dangerousness in prison. The testimony was not

testimony insofar as it may relate to the defendant’s potential confinement are permitted to do. You may only consider this through the system, and what inmates at each level of

about what the prison is like, how inmates may advance

purpose of this testimony was to educate you, in general,

serve life in prison without the possibility of parole. The defendant’s future confinement should you sentence him to You have heard testimony about the possible conditions of the

court to consider as part of the final jury charge: The defendant subsequently submitted the following limiting instruction for the with a limiting instruction and did not ask for any testimony to be stricken.

defendant was seeking. The defendant requested that the court provide the jury

testimony did not “cross any line,” the trial court asked what relief the defendant would be allowed to do in prison.” While ruling that the challenged mother’s victim impact testimony as somehow “listing . . . things that the

The trial court disagreed with the defendant’s characterization of the

victim “on the punishment of the defendant.” argued, her testimony improperly provided information on her “opinion” as a that [the defendant] would be able to earn in prison.” Thus, defense counsel

basketball, improperly compared “the privileges that the warden had testified to

son could no longer do, such as read, watch a “big screen” television, and play counsel contended that the mother’s testimony regarding the activities that her that it exceeded the permissible scope of victim impact evidence. Defense

Defense counsel subsequently objected to this portion of her testimony, arguing

loved his family, just as I love my family. children and Mike wanted to see this so much in his life. He

college or go on with their life, get married, or see their

watch grow up. He’ll never see his children graduate from music. He has two little boys. Those little boys he’ll never He can’t watch TV on a big screen. He can’t listen to his

play baseball. He can’t play basketball. He can’t play pool. I just think about all the things that Mike can’t do. He can’t p. 115 2. Mode of Execution of evidentiary error was not preserved. The record demonstrates that when

order but did not seek to introduce evidence on mode of execution. Therefore,

As a preliminary matter, we agree with the State that any appellate claim limiting instruction. without parole inmate may watch.” execution instruction. In a subsequent motion, the defendant referred to this execution evidence and that rejected the defendant’s proposed mode of that precluded both the State and the defendant from introducing mode of

the victim impact testimony of Officer Briggs’s mother and the proposed mitigating factor. Accordingly, we reject the defendant’s arguments regarding future conditions of confinement,” such as “the number of cable channels a life permitting the jury to also consider it when evaluating the prison adjustment language of RSA 630:5, XIII and XIV. Thereafter, the court issued an order 115

“If mode of execution evidence is not relevant, neither is evidence of an inmate’s evidence to only the future dangerousness aggravating factor, rather than relevance is directly tied to the relevance of conditions of confinement evidence: which he would be executed if sentenced to death. He argues that their defendant requested a mode of execution instruction pursuant to the statutory

195; Winward, 161 N.H. at 542. any appellate claim of evidentiary error was waived. See Eaton, 162 N.H. at

the proposed instruction would have limited the jury’s consideration of the conditions of confinement evidence set forth in the court’s December 2 order; evidence of, and denied his proposed jury instruction regarding, the mode by regarding death penalty protocols or the means of execution.” Instead, the defendant’s proposed instruction conflicts with the permissible scope of the execution, the defendant expressly agreed not to seek “to introduce evidence The defendant next contends that the trial court erroneously excluded responding to the State’s motion to preclude evidence on the manner of

unsustainable exercise of discretion.” State v. Littlefield, 152 N.H. 331, 334

available to a C-3 inmate as described by the warden. Moreover, the

trial court, and we review the trial court’s decisions on these matters for an response to a question from the jury are all within the sound discretion of the instruction is necessary, the scope and wording of jury instructions, and the rejection of his proposed instruction. “Whether or not a particular jury We are not persuaded by the defendant’s challenge to the court’s

comparing the privileges that her son could no longer enjoy to the privileges The record supports the trial court’s conclusion that the mother was not

(2005) (citations omitted). p. 116 Unusual Punishment Clauses of the State Constitution. See N.H. CONST. pt. I,

raised by the aggravating factors and/or mitigating factors of the case. See

rights to more enhanced protection under the Due Process and Cruel or

of this evidence would amount to a constitutional violation.” See State v. explain how, if this evidence is admissible under RSA 630:5, III, the admission 116

any event, the defendant’s constitutional arguments on appeal are presented

establishing that the mode of execution instruction was related to matters On appeal, the defendant does not present any persuasive argument be free from punishments that are cruel and/or unusual; and (3) violated his Fourteenth Amendment to the Federal Constitution; (2) implicated his right to proposed [mitigating factor] concerning his behavior in prison to this point.” due process under Part I, Article 15 of the State Constitution and the

regarding the conditions of confinement information because he “failed to

argument before the trial court, it was not preserved for appellate review). In unfettered. See McCleskey v. Kemp, 481 U.S. 279, 304 (1987); Lockett v. Ohio, 411, 415 (2012) (because the defendant did not raise the constitutional selection phase of trial, the trial court properly recognized that this right is not protection than does the Federal Constitution. See State v. Matton, 163 N.H. pleadings in the trial court that the State Constitution affords him greater Additionally, we note that the defendant did not argue in his pertinent Jackson v. State, 684 So. 2d 1213, 1238 (Miss. 1996) (“the method of execution Chick, 141 N.H. 503, 504 (1996). The record supports the trial court’s ruling. dangerousness non-statutory aggravating factor] and to rebut the defendant’s deliberately, or to any mitigating circumstance of the crime or [his] character.”); and reject the proposed mode of execution instruction: (1) violated his rights to [the defendant] would be dangerous in the future, whether he acted

The trial court rejected the defendant’s constitutional arguments

arts. 15, 18, 33; U.S. CONST. amends. V, VIII, XIV.

entitled to offer wide-ranging information in mitigation at the sentence

conditions of incarceration is highly probative of [the State’s alleged future the trial court’s decision to admit the conditions of confinement information relevant to any aggravating or mitigating factor while evidence of future jurors against the death penalty, does not have any relevance as to whether Finally, regarding his constitutional arguments, the defendant avers that the court ruled that “[t]he method of execution prescribed by statute is not

F.3d 197, 219 (2d Cir. 2008). 438 U.S. 586, 604 (1978) (plurality opinion); see also United States v. Fell, 531

is of no concern to the jury”). Although capital defendants are constitutionally

2006) (“The method used in executing prisoners, though it may turn some provide the requested mode of execution instruction. In its December 2 order, RSA 630:5, III; see also Fuller v. Dretke, 161 Fed. Appx. 413, 416 (5th Cir. We also agree with the State that the trial court did not err in refusing to statutory aggravating factors beyond a reasonable doubt; (2) show the strength

p. 117 were necessary to: (1) prove the factual circumstances of the prior crimes non- The State objected, arguing that witness testimony and related exhibits

additional facts.”

imprisonment conviction.

not, and several ‘trials within a trial’ would be necessary to challenge the guilty to has been proven beyond a reasonable doubt, but additional facts have regarding the 1996-2003 offenses, he asserted: “What [the defendant] has pled

person in October 2003; and (5) his probation violation arising out of the false

In his motion in limine, the defendant argued that his proposed

of the aggravating factors identified in the death penalty notice. Finally,

person in March 1997; (4) his participating in the false imprisonment of a

incident in high school. crimes, arguing that such victim impact testimony would fall outside the scope

twice pulling the trigger in December 1996; (3) his stabbing and kicking a August 1996; (2) his pointing a loaded gun at a fellow high school student and 1996 and 2003: (1) his assaulting his mother and his threatening to kill her in Roy Drive shooting on October 15. defendant’s unlawful possession of a firearm during that robbery; and (10) the the 7-Eleven convenience store armed robbery on October 11; (9) the

to the assault of his mother and pleaded guilty as a youthful offender to the gun prior unlawful conduct as convictions, even though the defendant pleaded delinquent 1 We refer, as do the parties in their briefs, to the legal disposition of the defendant’s testimony. He also sought to exclude the testimony of victims of the prior

aggravating factors relate to the crimes that the defendant committed between

defendant’s unlawful possession of a deadly weapon during that robbery; (8)

limitation would prevent “unfair prejudice” that would arise from witness

warrant independent constitutional analysis. See State v. Ayer, 154 N.H. 500, the certified records of the convictions. The first five prior crimes non-statutory

defendant filed a motion in limine requesting that the trial court limit the 2006: (6) the El Mexicano Restaurant armed robbery on October 10; (7) the defendant committed in the week preceding the capital murder in October

3. Prior Crimes

RSA 630:5, III. Accordingly, we conclude that these perfunctory claims do not State’s evidence about the ten prior crimes non-statutory aggravating factors to without adequately developed legal argument apart from his argument under

In November 2008, before the sentence selection phase of trial, the

a. Background

513 (2006); Chick, 141 N.H. at 504. prejudice, confusing the issues, or misleading the jury. See RSA 630:5, III p. 118 the prior crimes was not substantially outweighed by the danger of unfair probative value of evidence explaining the facts and circumstances underlying By written order dated November 25, 2008, the trial court ruled that the

the defendant in possession of a gun at the Central Street apartment on the jury in deciding how much weight to give to each. explain the prior crimes non-statutory aggravating factors and to assist the

Edwards, as well as the expected testimony of Davis and Hussey that both saw shooting, the defendant told her that he intended to kill her father, Bruce defendant objected to Davis’s expected testimony that, just prior to the call two to four witnesses for each of the seven separate criminal episodes to

whom witnessed events surrounding the Roy Drive shooting. In particular, the October 2006 crimes beyond a reasonable doubt. It stated that it intended to

of certain anticipated testimony of Kyarra Davis and Laura Hussey, both of that the jury had not yet been asked to determine the circumstances of the 2006 crimes. Among his specific objections were challenges to the admission 1996-2003 offenses had been presented to the jury during the guilt phase, and testimonial evidence supplementing the guilt phase evidence about the October circumstances of these crimes. The State countered that no evidence of the

which the defendant again argued against the admission of any further the October 2006 non-capital crimes was sufficient to establish the

outside the presence of the jury, a hearing on the defendant’s motion, during proven beyond a reasonable doubt and that the guilt phase evidence relating to Less than one week later, on December 1, the trial court conducted, The defendant argued that the convictions established that the crimes were trial court conducted a hearing on the admissibility of prior crimes evidence.

presenting victim impact statements regarding the prior offenses. On November 20, the day before the sentence selection phase began, the

witnesses for each of the seven criminal episodes and precluded the State from sentence. have as much relevant information as possible in order to determine the

noted that the State had represented that it intended to call four or fewer witnesses who can testify about physical evidence related to the crime.” It through the testimony of “victims of the crimes, investigating officers, and/or the defendant’s “trial within a trial” argument, asserting that jurors should

(2007). The court ruled that the State could present prior crimes evidence to what weight to assign proven aggravators.” Finally, the State disagreed with considered in sentencing”; and (3) “inform the decision of individual jurors as proven particular aggravators beyond a reasonable doubt and thus can be

“inform the jury’s unanimous threshold decision of whether the State has of the proof against the defendant and the nature of the crimes in order to p. 119 Brian St. Peters, went to the residence of Mathys Morgan to discuss a debt that

Londonderry police officer Kim Bernard. Briles testified that he and a friend,

that occurred in October 2003: Gerald Briles, one of the victims, and Fourth, two witnesses testified about the false imprisonment incident

weapon.

armed robbery and two counts of assault and battery by means of a dangerous stabbed Purdy during this physical assault. The defendant pleaded guilty to him, caught him, and repeatedly punched and kicked him. The defendant

one took his hat and a fight ensued. When Purdy ran away, the group chased

that, when walking near a local high school, Purdy encountered four teenagers; assailants had stabbed him. Detective Benton interviewed Purdy and learned assaulted. She noticed a wound on Purdy’s hip and Purdy said that one of the

responded to the residence of Tredaine Purdy, who told her that he had been

Jeremiah Benton. Officer Lezama testified that pursuant to a 911 call, she

in March 1997: Boston police officer Diane Lezama and Boston police detective Third, two witnesses testified about the stabbing incident that occurred

the gun was capable of being discharged.

about his forensic examination of the gun and the two bullets, concluding that a firearm, possession of ammunition, and assault and battery. Dupre testified pleaded guilty to charges of armed assault with intent to murder, possession of

grounds and discovered that it was loaded with two bullets. The defendant

responded to the scene. Officer Pitts testified that he located the gun on school ensued, and Officer Pitts, who was a school security officer at the time, face and pulled the trigger twice, but the gun did not discharge. A fight

shot today.” When Andrade turned around, the defendant pointed a gun at his

school, he heard a person behind him say, “Some Cape Verdean is going to get

Pitts, and Marc Dupre, a forensic expert. Andrade testified that while in Manual Andrade, who was the victim of the crime, Boston police officer Jerome Second, three witnesses testified about the December 1996 gun incident:

delinquent to charges of assault and battery and issuing threats. residence and arrested him. He was sixteen years old at the time and pleaded rocks at her window. The police located the defendant outside Kiser’s

beat me down, dog bitch,” and that he left her apartment and began throwing

arm and threatened to kill her. She also stated that he told her, “You can’t 1996. They testified that Kiser told them that her teenage son had grabbed her testified about the defendant’s assault on his mother, Cheryl Kiser, in August

factors. First, Boston police officers Thomas Garneau and Daniel Moroney

criminal episodes underlying the prior crimes non-statutory aggravating The State called several witnesses to testify about six of the seven

and reaffirmed its November 25 written order. evening of the shooting. The trial court overruled the defendant’s objections p. 120 State introduced the surveillance video recording as a full exhibit; during the

Second, regarding the 7-Eleven convenience store armed robbery, the

including approximately $300 in cash. money. He testified that he was afraid and gave the defendant several items,

robbery, the defendant threatened him with a utility knife and demanded

shoot him. Paz, a customer in the restaurant, testified that, during the and then lowered his head because he thought that Bell-Rogers was going to remembered that he told the gunman that he could not remove the bracelet

second time over Rodriguez’s head, demanding the bracelet. Rodriguez

was unable to remove a bracelet from his wrist. Bell-Rogers fired the gun a Rodriguez’s legs. Rodriguez relinquished his watch and his gold necklace but demanded all of his possessions, and fired a single shot into the floor between

When Rodriguez approached, Bell-Rogers pointed a gun at Rodriguez,

the cash register and the defendant positioned himself near a billiards table.

defendant and Bell-Rogers came into his restaurant, Bell-Rogers walked over to the crime. Rodriguez, the owner of the restaurant, testified that when the Restaurant armed robbery: Jose Rodriguez and Alexander Paz, both victims of

2006 non-capital crimes. First, two witnesses testified about the El Mexicano

The State also presented additional evidence regarding the three October

probation violation. sentences. The defendant’s Massachusetts probation officer testified about the charges, the defendant’s plea colloquy at court, the resulting convictions, and the criminal charges for both the gun and the stabbing incidents, testified about the convictions. Additionally, Mark Zanini, the Boston prosecutor who had pursued defendant as the perpetrator, and certified court records documenting the December 1996 crime, police photograph arrays from which victims identified the various exhibits during their direct testimony, including the gun used during the The witnesses who testif ied about these 1996-2003 crimes referred to

stipulated as true.

conviction also resulted in a probation violation report, which the defendant holding St. Peters. The defendant pleaded guilty to false imprisonment. This statement and then located the car in which the defendant and Morgan were

Sergeant Bernard, the responding officer, testified that she took Briles’s

car, Briles ran to the closest house for help, and the resident called the police. Peters if Briles made any “mistakes.” While St. Peters remained locked in the order to retrieve his wallet from his car and threatened to harm him and St.

impound lot, the defendant and Morgan allowed Briles to leave the vehicle in

impounded, and the four men traveled to Londonderry to find the car. At the told the defendant and Morgan that his wallet was in his car, which had been he was afraid when he saw the gun and that his “heart [was] racing.” Briles

they demanded payment from Briles, showing him a gun. Briles testified that Briles owed Morgan. The defendant and Morgan were at the residence, and the shooting.

p. 121 minutes. Frank Swist testified that he was “[s]hocked, to say the least” during

bathroom and Dale go outside with a baseball bat. The police arrived within heard several more gunshots. He saw Edwards come out of the apartment made his bed shake. While crawling on his hands and knees in the hallway, he

bedroom when he was awakened by a gunshot. He recalled that a second shot

Frank Swist, Angela Swist’s father, testified that he was sleeping in his

fire and then he ran from the apartment to chase Bell-Rogers.

with the baseball bat, trying to make Bell-Rogers think that he was returning

parked car and start shooting at his apartment. Dale hit the balcony railing porch. Within a few minutes, Dale saw Bell-Rogers emerge from behind a Dale picked up an aluminum baseball bat for protection and went onto the

background say, “You’re dead anyways.” When the telephone call concluded,

argued over the telephone about Davis. He recalled hearing a person in the

him. When he returned to his apartment at Roy Drive, he and his sister had been at a local club where Edwards told him that three men had “jumped” Dale Swist, Angela Swist’s brother, testified that earlier in the evening he

shot at the balcony. had returned to the Central Street apartment, the defendant said that they had nearby gas station, and Davis recalled that after the shooting, when the group

on a balcony. Before the shooting occurred, Swist and Shipley drove Davis to a

apartment complex, Davis saw Edwards and Angela Swist’s brother standing kill Edwards. Later, when she was in Hussey’s car driving by the Roy Drive apartment in the back of the building, where he indicated that he was going to

that before the shooting, she and the defendant were outside the Central Street

saw it in his waistband when he returned from the club. Davis also recalled

his possession before he went to the local club that evening; and second, she of a gun on two occasions at the Central Street apartment: first, she saw it in testified that on the night of the shooting, she saw the defendant in possession

presented by way of a transcript from the prior non-capital felony trial. Davis

The testimony of Kyarra Davis, the daughter of Bruce Edwards, was

Shipley’s bedroom at the Central Street apartment.

Edwards at the club and that she later saw the defendant holding a gun in

Hussey testified that she saw the defendant, Bell-Rogers, and Birely beat up drove Birely back to the apartment complex before the shooting occurred. Shipley’s Central Street apartment on the evening of the shooting. She also

was an acquaintance of Paul Birely and accompanied him to a local club and to

Hussey, Kyarra Davis, Dale Swist, Frank Swist, and Henry Aliberti. Hussey Third, five witnesses testified about the Roy Drive shooting: Laura

video itself had not been admitted into evidence. guilt phase of the trial the video recording had been played for the jury, but the b. Appellate Argument

p. 122 proven the ten prior crimes non-statutory aggravating factors. When the jury returned its sentencing verdict, the jury found that the State had exceeding the bounds of the trial court’s November 25 or December 1 rulings. The defendant did not object to the Stat e’s presentation of this evidence as

sentence that the defendant could face for each conviction. conclusion of the capital murder trial and testified about the maximum the defendant would not receive sentences for these convictions until the

possession in connection with the Roy Drive shooting. She also explained that

the resulting convictions, and the defendant’s acquittal of the charge of felon in

the length of testimony and the number of witnesses who testified at each trial, was part of the prosecution team for all three trials. Gorham testified about Gorham, an assistant attorney general for the State of New Hampshire who

the three October 2006 non-capital crimes through the testimony of Karen

Federal Constitutions.” See N.H. CONST. pt. I, arts. 15, 18, 33; U.S. CONST.

Further, the State presented certified copies of the defendant’s convictions for that the police officers had discussed during their guilt phase testimony. several photographs of the El Mexicano Restaurant and Roy Drive crime scenes

“the Due Process and Cruel and Unusual Punishment Clauses of the State and the defendant, the trial court’s evidentiary decision violated RSA 630:5, III and unduly influenced by evidence of other crimes [he] committed.” According to

number of exhibits during their testimony, including Bell-Rogers’s gun and

apartment because that allegation was not included in the State’s notice of

The witnesses for the October 2006 non-capital crimes also referred to a

he was away, because he expected his home to be a secure and safe place.

contends that the prior crimes evidence permitted by the trial court was the certified records of his convictions and the guilt phase trial evidence. He have limited the prior crimes evidence at the sentence selection phase of trial to testimony of Hussey and Davis that he possessed a gun at the Central Street Second, the defendant argues that the trial court erred by admitting the

amends. VIII, XIV.

“unnerving, initially” to learn that a bullet had penetrated his apartment while

regarding the prior crimes evidence. First, he argues that the trial court should The defendant raises two challenges to the trial court’s decisions

the apartment floor. Aliberti testified that it was “pretty shocking” and Aliberti called the police, and the investigating officer found a bullet lodged in television news reports. After discovering a bullet hole in his living room wall,

when he returned home after a weekend away, he learned of the shooting from Henry Aliberti, also a resident of the apartment complex, testified that murder. See RSA 630:5 (2007); Tuilaepa v. California, 512 U.S. 967, 972 p. 123 evaluating the defendant’s character and the circumstances of the capital

not substantially outweighed by the dangers identified in RSA 630:5, III. Cf.

was substantially outweighed by its unfairly prejudicial impact. phase of a capital trial given that, at that phase, the jury’s task involves

be admitted at sentencing, provided that the probative value of the evidence is

he contends that the probative value of the testimonial and exhibit evidence criminal conduct, may be properly admitted during the sentence selection defendant does not challenge the relevance of the evidence admitted. Instead, to the certified records of his convictions and the guilt phase evidence, the In challenging the trial court’s refusal to limit the prior crimes evidence

1. Testimonial Evidence and Related Exhibits

34 S.W.3d 93, 113 (Mo. 2001). (1994); United States v. Fell, 360 F.3d 135, 143 (2d Cir. 2004); State v. Johns, c. Discussion penalty notice. Accordingly, a wide range of relevant prior crimes evidence may prior felony trial, rather than by live testimony. that the State may present regarding aggravating factors identified in a death The capital sentencing statute is silent as to the sources or types of proof prejudicial at the guilt phase of a capital trial, such as a defendant’s prior sentence” (quotation omitted)). Further, evidence that would be unfairly choosing the sources and types of evidence on which to rely in imposing Kimball, 140 N.H. 150, 151 (1995) (“[a] trial court has broad discretion in Punishment Clauses of the State and Federal Constitutions.” See N.H. CONST. has always been free to consider a wide range of relevant material”); State v. fairness concerns addressed by the Due Process and Cruel and Unusual Payne v. Tennessee, 501 U.S. 808, 820-21 (1991) (“the sentencing authority was inadmissible under RSA 630:5, III” and “also implicate[d] arbitrariness and

presentation of the testimony of Kyarra Davis through a transcript from the objections to the witness testimony that he does not appeal, such as the State’s December 1 hearing the trial court rejected several of the defendant’s specific bench ruling in tandem with the court’s November 25 written order. trial court’s rulings on the prior crimes evidence, we consider the December 1 discretion. See State v. Wamala, 158 N.H. 583, 592 (2009). In reviewing the evidentiary decisions under RSA 630:5, III was an unsustainable exercise of We first consider the defendant’s argument that each of the trial court’s aggravating factor, the uncharged incident of felon in possession of a firearm intent to seek the death penalty. He argues that “[a]bsent a nexus to an

pt. I, arts. 15, 18, 33; U.S. CONST. amends. V, VIII, XIV. We note that at the aggravating factors justified the imposition of the death penalty. See RSA

p. 124 aggravating factors, and the jury’s task included assessing whether proven prove beyond a reasonable doubt the existence of the non-statutory The State bore the burden at the sentence selection phase of trial to

guilt phase evidence were sufficient to establish their severity. the prior crimes and that the court records of his convictions as well as the challenged evidence was slight, given that he did not dispute that he committed

(Citations omitted.) The defendant argues that the probative value of the

explain the nature and severity of the aggravating offenses. factors and the State should be allowed to admit evidence to

will present extensive evidence in support of his mitigating

aggravators against established mitigators. The defendant

acts, the jury may not be able to fairly weigh these aggravator. Without sufficient information of the underlying information to determine the weight to afford to each proven More importantly, the jury must be given sufficient

beyond a reasonable doubt. that a court document is adequate to prove the conviction

deserving of a death sentence. aggravating value; that is, whether they tended to show that the defendant was

fact occurred. The capital jury may not, for example, find

relevant to proving beyond a reasonable doubt that they in the State has proven beyond a reasonable doubt that the facts or circumstances the facts and circumstances of the prior offenses is highly following aggravating factors. ‘Proven’ means that the jury unanimously agrees that well as the facts underlying these crimes. Testimony about

conviction. The jury was instructed to assess, among other things, whether the circumstances underlying the prior crimes and not just upon the fact of sentence is appropriate.” (Emphasis added.) prior crimes non-statutory aggravating factors depended upon the facts and alleged are true and that those facts or circumstances tend to show that the death

following: “Instructions: Mark with an ‘X’ PROVEN or NOT PROVEN for each of the 2 In line with the final jury instructions, the Special Verdict Form set forth the aggravators, i.e., the offenses for which he was convicted as

630:5, III, IV. The trial court’s ruling recognized that the significance of the

evidence to establish the information alleged in the the jury must undergo, the State is entitled to present some Given the State’s burden of proof and the weighing process

Regarding probative value, the trial court ruled as follows: the defendant’s bad character or criminal propensity. See Fell, 360 F.3d at 143 p. 125 concerning the October 2006 non-capital crimes for the purpose of establishing

precluded during the guilt phase of the trial from presenting evidence It is significant that, consistent with Rule 404(b), the State had been

crimes non-statutory aggravating factors.

criminal conduct, and, therefore, relevant to the jury’s assessment of the prior

evidence was highly probative of the nature and severity of the defendant’s court acted well within its discretion under RSA 630:5, III in ruling that the evidence may have overlapped portions of the guilt phase evidence, the trial

the jury to review it for sentencing purposes. While some of the anticipated

admission of the surveillance video recording of the 7-Eleven robbery enabled

testimony of three residents who were present during the shooting. Also, the included aspects of the crime that the jury had not yet heard, such as the Restaurant. Similarly, the expected testimony about the Roy Drive shooting

evidence of what happened during the armed robbery of the El Mexicano

hearing, the defendant acknowledged that the jury had not heard any direct to New Hampshire Rule of Evidence 404(b). Indeed, during the December 1 the evidence presented to the jury during the guilt phase was limited pursuant

VI.A (Guilt Phase Review-Rule 404(b) Prior Crimes Evidence) of this opinion, Regarding the October 2006 non-capital crimes, as discussed in Part

crimes would assist the jury in evaluating the defendant’s conduct.

in ruling that evidence regarding the facts and circumstances of the 1996-2003

situation.” We conclude that the trial court sustainably exercised its discretion

crimes would show that the second defendant created “a much more dangerous actual gun. As the trial court noted, evidence about the circumstances of the defendant pretended to have a gun and the other in which a defendant used an

an example of two hypothetical armed robbery convictions: one in which a

hearing, the court illustrated the probative value of explanatory evidence using could properly evaluate the defendant’s criminal conduct. At the November 20 convictions, the jury should have an explanation of these crimes so that it

focus on the particulars of the criminal conduct at issue and to avoid inquiries

defendant stated that he would not challenge the validity of the actual

guilt for a particular crime. Adjudications of guilt are deliberately cabined to (“Facts relevant to sentencing are far more diffuse than matters relevant to these crimes to testify. The trial court determined that, even though the these convictions and that he expected the State to call some of the victims of jury had not heard any evidence describing his criminal conduct underlying Regarding the 1996-2003 crimes, the defendant acknowledged that the

factor. judgment when evaluating the weight to accord to each proven aggravating

justified a death sentence, each juror was required to render a qualitative instructions that in order to determine whether proven aggravating factors meaningless and abstract ritual, but rather a process

p. 126 Consideration of prior “convictions” was not intended to be a

of considering the enumerated aggravating circumstances. defendant’s character and record, as is applicable to the task account such relevant information, bearing upon a

responsibility under the law. See United States v. Sampson, 486 F.3d 13, 44

identified in the prior crimes non-statutory aggravating factors. See RSA

analysis applies with equal force to those exhibits. See Parker, 886 S.W.2d at present sentencing statute is to allow a jury to take into

jury with important information to assist it in discharging its solemn testimony concerning the defendant’s prior criminal conduct would provide the latitude in presenting its case to meet its burden under RSA 630:5, and that The trial court properly recognized that the State has considerable

related exhibits that explained the facts and circumstances of each crime

during their testimony, but makes no specific argument about them. Our function of character analysis, and the central idea of the The defendant briefly refers to exhibits that the witnesses discussed Sentencing has long been regarded as having at its core a

trial as relevant to the defendant’s character). As the Supreme Court of Pennsylvania explained: Our holding is consistent with numerous decisions in other jurisdictions.

innocence.”); State v. Parker, 886 S.W.2d 908, 924 (Mo. 1994) (evidence 630:5, III. prior crimes). because they were used to help the jury understand the circumstances of the court was justified in ascribing high probative value to witness testimony and aggravating factors and the State’s high burden of proof, we hold that the trial circumstances of the crime” (quotation and emphasis omitted)); Johns, 34 (1st Cir. 2007). Given the jury’s responsibility to evaluate the alleged

selection phase of the trial. See Tuilaepa, 512 U.S. at 972 (the objective of aggravating factors is admissible at the sentence selection phase of a capital

irrelevant evidence in front of the jury before the determination of guilt or

924 (photographs of prior crimes were admissible at capital sentencing hearing

determination on the basis of the character of the individual and the

contrast, the defendant’s character was directly at issue in the sentence detailing the circumstances of prior convictions submitted as non-statutory into tangential matters that may bear on the defendant’s character.”). In

character and conduct, while avoiding the possibility of placing prejudicial or the presentation of a wide range of evidence about the defendant’s past S.W.3d at 113 (“A separate punishment phase exists in capital cases to permit

sentence selection at a capital sentencing is to make “an individualized the December 1 hearing, the State identified the witnesses whom it intended to

p. 127 prior victims concerning “how they felt when the crime was occurring.” During

victims of prior crimes,” while allowing the State to elicit testimony from the court precluded the State from presenting evidence of “impact statements by witnesses who can testify about physical evidence related to the crime.” The

each offense, who will be victims of the crimes, investigating officers, and/or

representation that: “The testimony will be given by four or fewer witnesses for evidence. In its initial written order, the court approved the State’s The trial court limited the amount and content of the prior crimes

used it. to unfair prejudice: its volume; its content; and the manner in which the State history. He identifies three aspects of the prior crimes evidence as giving rise

an unacceptable risk that the jury would be unduly influenced by his criminal Com. v. Flor, 998 A.2d 606, 622-23 (Pa. 2010) (quotation omitted), cert. denied, The defendant nonetheless argues that the prior crimes evidence created a defendant’s character than is relevant. would be a hollow process, yielding far less information about

certified copies of the previous convictions. See State v. Pandeli, 161 P.3d 557,

reasoning that we find persuasive. statute that is materially different from RSA 630:5, or do not set forth those facts and circumstances, consideration of “convictions”

State’s presentation of prior crimes evidence should have been limited to The defendant relies upon five cases to support his argument that the

However, these cases either were decided in the context of a capital sentencing character of a defendant, and, indeed, without reference to 83 (Tenn. 2004); State v. Clark, 24 P.3d 1006, 1031-32 (Wash. 2001). concomitant to its commission, has much bearing upon the 650 P.2d 54, 63 (Okla. Crim. App. 1982); State v. Odom, 137 S.W.3d 572, 580ascertained through examination of the circumstances 565 (Ariz. 2007); State v. Lee, 559 P.2d 657, 661 (Ariz. 1976); Brewer v. State,

2006). S.E.2d 846, 858 (N.C. 2003); State v. Bennett, 632 S.E.2d 281, 287 (S.C. 924; Emil v. State, 784 P.2d 956, 961 (Nev. 1989); State v. Valentine, 591 (2006); State v. Allen, 913 So. 2d 788, 803 (La. 2005); Parker, 886 S.W.2d at (Kan. 2001), overruled on other grounds by Kansas v. Marsh, 548 U.S. 163 Ballard, 794 N.E.2d 788, 815 (Ill. 2002); State v. Kleypas, 40 P.3d 139, 264 (Colo. 1999); Cox v. State, 819 So. 2d 705, 716-17 (Fla. 2002); People v. defendant’s character. The nature of an offense, as 758 P.2d 1189, 1204-05 (Cal. 1988); People v. Dunlap, 975 P.2d 723, 745 through which a jury would gain considerable insight into a 131 S. Ct. 2102 (2011); see, e.g., Sampson, 486 F.3d at 44; People v. Karis, p. 128 The trial court focused upon providing the jury with sufficient information to The defendant has not demonstrated that this evidence was excessive.

trial. estimated 5,400 pages of testimony transcript covering all three phases of the

State for consideration at sentencing comprised approximately 500 pages of an crimes.” Bennett, 632 S.E.2d at 287. The Supreme Court of Louisiana

phase of the trial — the totality of the prior crimes evidence presented by the transmuting into a sentencing referendum on all of the defendant’s prior direct testimony on the October 2006 prior crimes presented during the guilt prior crimes evidence should “prevent a capital sentencing proceeding from sentence selection phase of trial — together with the challenged 168 pages of of South Carolina recognized that the trial court’s decision as to the extent of

officers. Taking into account the challenged 349 pages of transcript during the evidence admitted during a capital sentencing proceeding. The Supreme Court Several courts have expressed concerns about the volume of prior crimes

eighteen witnesses, and related exhibits that were introduced by the State.

locations, different victims, different eyewitnesses, and different investigating related exhibits, covered seven distinct criminal episodes involving different more than four witnesses for each of the other crimes. This evidence, including during the sentence selection phase of trial, which comprise the testimony of

another unrelated crime.” State v. Smith, 793 So. 2d 1199, 1209, 1210 (La.

7-Eleven crime, the testimony of five witnesses for the Roy Drive crime, and no Here, the trial court permitted the State to introduce one exhibit for the court’s ruling permitted, the defendant focuses upon 349 pages of transcript murder [he] committed.” To illustrate the volume of evidence that the trial increas[ed] the risk of a verdict based on considerations aside from the capital the prior offenses a central feature of the penalty phase.” Cox, 819 So. 2d at

sentence for this offense and this offender” to “the defendant’s involvement in jury’s focus away from its primary function of determining the appropriate [prior crimes] evidence, although highly probative, impermissibly shifts the

716-17. evidence made his prior crimes a “central feature” at sentencing and “thus details of prior crimes evidence had been emphasized “to the level of rendering The defendant first argues that the sheer volume of the challenged Johns, 34 S.W.3d at 113. The Supreme Court of Florida examined whether the phase in a capital proceeding “result[ing] in a ‘mini-trial’ of prior offenses.” use of these witnesses. 2001). Similarly, the Supreme Court of Missouri cautioned against the penalty

observed that “there can be a point when the sheer magnitude and detail of the

witnesses regarding the Roy Drive shooting. The court approved the State’s call relating to the October 2006 non-capital prior crimes, including five testified about any harm that they sustained as a result of the crimes. Cf. Payne, p. 129 of the shooting. Consistent with the trial court’s order, none of the witnesses described how he felt when he first returned to his apartment and saw evidence

Aliberti was not present in his apartment during the Roy Drive shooting, he confrontation, Briles was scared and his “heart [was] racing.” Although Henry testified that when the defendant or his friend showed Briles a gun during their they experienced at the time the crime was occurring. Gerald Briles, for instance, responded, “I was afraid.” Other witnesses also briefly related the feelings that feel” when the defendant was robbing him at knifepoint, to which the witness conclusion of direct examination, the State asked Alexander Paz “how did you about how that witness felt while the crime was occurring. For example, at the In several instances, the witness briefly responded to a single question

that the defendant challenges on appeal is fully consistent with this order. to show the gravity of the crimes committed by the defendant. The testimony Thus, the court determined that such testimony had probative value as tending testimony from the witnesses about how they felt as the crimes were occurring. not present victim impact testimony on prior crimes, but that it could elicit The trial court ruled in its November 25 written order that the State could

case.” those crimes on their victims” as a “potential sentencing factor in the capital he complains that the testimony allowed the jury to consider “the impact of

seriousness of his prior criminal conduct as reflective of his character. Rather, murder. See Johns, 34 S.W.3d at 113 (rejecting defendant’s claim that twentybased upon the character of the defendant and the circumstances of the capital

harm caused by the defendant”). 501 U.S at 825-26 (referring to victim impact evidence as “evidence of the specific

testimony was irrelevant or lacked probative value concerning the relative diverting the jury’s focus from its primary function of determining the sentence

reactions to the prior crimes. The defendant does not argue that such identifies several instances when witnesses testified about their emotional conclude that the extent of the prior crimes evidence created an undue risk of With respect to the content of the prior crimes evidence, the defendant phase trial that lasted approximately two months. On this record, we cannot the defendant constituted approximately two days of testimony in a threeof the defendant’s prior crimes. See Bennett, 632 S.E.2d at 287. the admitted evidence transform the sentencing phase into a referendum on all seriousness of [the defendant’s] actions after the [capital murder]”). Neither did

statutory aggravating factors. Further, the sum total of evidence identified by evaluate the existence and qualitative weight of each of the prior crimes non-

were eight prior crimes and the “quantity of evidence was directly related to the one witnesses in the penalty phase “was over the top,” reasoning that there selection phase of trial “increased the potential abuse of the other crimes p. 130 legislature did not see fit to include. State v. Addison, 160 N.H. 732, 754 referenced the prior crimes evidence during its closing argument in the sentence The defendant also contends that the manner in which the State

evidence.

neither ignore the plain language of the legislation nor add words that the Our statutory scheme does not impose such a restriction. We can

sustainably exercised its discretion in establishing limits on the prior crimes

eyewitness. See, e.g., Rodriguez v. State, 753 So. 2d 29, 44-45 (Fla. 2000); 130 forth under RSA 630:5, III. Cf. Williams v. New York, 337 U.S. 241, 246

defendant’s prior crimes at capital sentencing. limit upon the number and type of witnesses who may testify about a number and type of prior crimes witnesses and, as discussed above,

two witnesses consisting of a law enforcement officer, a victim, or an types of relevant prior crimes evidence at sentencing within the boundaries set of the victim or of any eyewitness to the crime, see Smith, 793 So. 2d at 1209-

unduly focusing the jury’s attention upon prior convictions, see Finney, 660

legitimate concern for the trial court to consider, we decline to impose a specific shows that the trial court considered the risks of unfair prejudice regarding the (1949); State v. Breest, 116 N.H. 734, 755 (1976). The record in this case

in other jurisdictions that he claims limit such testimonial evidence to one or (2010). The trial court retains the discretion to admit various sources and “choose from any category of acceptable witnesses.” He relies upon decisions convictions to documents certifying the fact of conviction and to the testimony The defendant nevertheless faults the trial court for allowing the State to

of prior violent crimes, such as the risk of overly emotional testimony or of

determining the sentence for the capital offense. While we agree that this is a feature of the sentencing phase and shift the jury’s focus away from its task of 10. Both courts were concerned that the prior crimes evidence would become a

So. 2d at 683-84; the Supreme Court of Louisiana limited evidence of prior aggravating factors. “potential sentencing factor” distinct from the prior crimes non-statutory against the danger of unfair prejudice associated with live testimony of victims unfair prejudice because witness testimony somehow interjected into the case a Smith, 793 So. 2d at 1209-10. The Supreme Court of Florida cautioned defendant’s argument that the content of the prior crimes evidence gave rise to Finney v. State, 660 So. 2d 674, 683 (Fla. 1995); Allen, 913 So. 2d at 807-08; outweighed by the danger of unfair prejudice. Accordingly, we reject the it ruled that the probative value of such testimony was not substantially crimes. The court sustainably exercised its discretion under RSA 630:5, III when witnesses’ emotional reaction testimony was probative of the severity of the prior We conclude that the trial court did not err in determining that the under the Due Process and Cruel or Unusual Punishment Clauses. See N.H. p. 131 unusual; and (3) the State Constitution provides him with enhanced protection implicated his rights to be free from punishments that are cruel and/or

Amendment to the Federal Constitution; (2) the prior crimes evidence

independent constitutional analysis. See State v. Ayer, 154 N.H. 500, 513

this evidence violated RSA 630:5, III, in that it constituted evidence that was

argument was not preserved for appellate review. See State v. Matton, 163 crimes evidence during the sentence selection phase of trial. Thus, this process under Part I, Article 15 of the State Constitution and the Fourteenth Federal Constitution in the context of evaluating the admissibility of the prior

RSA 630:5, III. Accordingly, we conclude that these claims do not warrant without adequately developed legal argument apart from his argument under any event, the defendant’s constitutional arguments on appeal are presented apartment before the Roy Drive shooting. He contends that “[t]he admission of Hussey and Kyarra Davis that he possessed a gun at the Central Street Next, the defendant challenges the admission of testimony by Laura

2. Gun Possession Testimony presented and argued was so prejudicial that it violated his rights to due trial court that the State Constitution affords him greater protection than the challenges in a cursory fashion including: (1) the prior crimes evidence as We note that on appeal the defendant asserts a number of constitutional

argument before the trial court, it was not preserved for appellate review). In

did not expressly address them. Further, the defendant did not argue to the (2006); State v. Chick, 141 N.H. 503, 504 (1996). fashion to the trial court, which, we assume, the court rejected even though it defendant presented his constitutional arguments in a similarly cursory was clearly untenable or unreasonable to the prejudice of his case. trial court’s decision under RSA 630:5, III to admit the prior crimes evidence In sum, we hold that the defendant has failed to demonstrate that the

N.H. 411, 415 (2012) (because the defendant did not raise the constitutional

CONST. pt. I, arts. 15, 18, 33; U.S. CONST. amends. V, VIII, XIV. The

permitting the testimonial and exhibit evidence. supports a conclusion that the court unsustainably exercised its discretion in argument that the manner in which the State used the prior crimes evidence non-statutory aggravating factors. Accordingly, we reject the defendant’s occurring, evidence that we have determined was probative of the prior crimes present testimony from the witnesses about how they felt as the crimes were fully consistent with the court’s November 25 written order allowing the State to the harm Addison wrought on each victim.” The State’s remarks, however, were evidence.” The defendant argues that the State “in closing, specifically invoked facts and circumstances of the prior crimes were relevant to proving that those p. 132 The trial court ruled from the bench at the December 1 hearing that the

at Central Street. firearm at Roy Drive; it did not concern being a felon in possession of a firearm

which the defendant was acquitted involved being a felon in possession of a

informed the court that it intended to introduce evidence that the charge of Court that [the defendant] was acquitted of that charge.” The State also Roy Drive, the State observed that the jury had “already been instructed by th[e]

the jury to speculate that it was he, and not Bell-Rogers, who fired the gun at

With regard to the defendant’s assertion that the testimony would cause

was probative for the same reasons as the evidence of his intent to kill.

Central Street apartment would corroborate Birely’s guilt phase testimony and

also argued that further testimony about the defendant’s gun possession at the

Edwards went to the weight that the jury should accord that factor. The State shooting. It argued that the serious nature of the defendant’s threat toward alleged in the non-statutory aggravating factor concerning the Roy Drive

tied to the conspiracy to commit criminal threatening and reckless conduct

In response, the State argued that the challenged testimony was directly

by a jury of that charge.”

being a felon in possession at Edward J. Roy Drive, [and] that he was acquitted

defendant requested that the court instruct the jury “that [he] was charged with “did more than he was charged with, that perhaps he even fired the gun.” The rise to “the risk for prejudicial impact” in that the jury may conclude that he

conjunction with further witness testimony about the Roy Drive shooting, gave

shooting. He argued that additional testimony of his gun possession, in

possessed the gun at the Central Street apartment on the evening of the trial, the jury already had heard Paul Birely’s testimony that the defendant Hussey’s testimony, the defendant argued that, during the guilt phase of the

and that the State did not include in its death penalty notice. With respect to

with Bell-Rogers to murder Edwards, crimes for which he was never indicted that he was an accomplice to attempted murder and engaged in a conspiracy aggravators . . . in the State’s notice.” That evidence, he contended, suggested

the Roy Drive incident that goes beyond the incident and that goes beyond the

the trial court that Davis’s expected testimony would comprise “evidence about at the Central Street apartment on the evening of the shooting. He argued to objected to Hussey testifying that she saw the defendant in possession of a gun

intended to kill Edwards and that she saw him there with a gun. He also

that, while at the Central Street apartment, the defendant told her that he At the December 1 hearing, the defendant objected to Davis testifying

Before addressing his argument, we set forth the procedural context. prejudicial and not relevant to prove an enumerated aggravating factor.” possession of a firearm at Edward J. Roy Drive. He was

p. 133 threatening. He also had been charged with being a felon in

with a firearm and conspiracy to commit criminal defendant was convicted of accomplice to reckless conduct Edward J. Roy Drive. As far as those events went, the

the witnesses who testified in the trial regarding the events at Members of the jury, you’ve just heard testimony by one of

instructed the jury at the sentence selection phase as follows:

testimony was unfairly prejudicial. At defense counsel’s request, the trial court

We also reject the defendant’s argument that the gun possession

residence and that he aided Bell-Rogers who discharged a firearm.

the defendant agreed with Bell-Rogers to threaten people at the Roy Drive

testimony was relevant to the non-statutory aggravating factor charging that

Rogers departed for Roy Drive, where Bell-Rogers discharged it. Such gun possession at the Central Street apartment shortly before he and Bellfactor. The challenged testimony of Davis and Hussey, however, related to his

the Roy Drive location, and, thus, the court struck the related aggravating

felon in possession charge based upon his alleged possession of a firearm at submitted its initial death penalty notice, the defendant was acquitted of the gun possession at the Central Street apartment. It is true that after the State

shooting, and the State did not seek to amend the notice to include his alleged

felon in possession of a firearm when he was involved in the Roy Drive trial, the court struck an aggravating factor alleging that the defendant was a The defendant points out that before the sentence selection phase of the

prove one of the State’s duly-noticed non-statutory aggravating factors.

Accordingly, the testimony of Davis and Hussey was specifically introduced to proving conspiracy to commit criminal threatening, to the reckless conduct.” to kill Edwards, “goes to the weight of the aggravator. It goes directly to

possession testimony, along with Davis’s testimony as to the defendant’s intent

December 1 hearing, the State expressly argued that the challenged gun gun possession evidence related to this specific aggravating factor. During the record demonstrates that the State argued to the trial court that the challenged

establishing the Roy Drive shooting non-statutory aggravating factor. The The defendant’s armed presence at Central Street was relevant to

the State’s argument, however, is not supported by the record.

such testimony was relevant to an aggravating factor. His characterization of

corroborate Birely’s guilt phase testimony and that the State did not argue that defendant contends that the State offered the gun possession testimony only to that the proffered testimony was not unduly prejudicial. On appeal, the

the prior crimes non-statutory aggravating factors. The court also concluded crimes occurred and would assist the jury in determining the weight to afford offer “to give up every right” regarding the capital murder charge in exchange

p. 134 were connected to his background, and he asked the jury to consider his plea

asserted that the acts of violence that he had committed during his lifetime compassion and mercy, such as the circumstances of his childhood. He made as an adult. The defendant argued that reasons existed for exercising

through counsel, that he accepted responsibility for the choices that he had

identified in the non-statutory aggravating factors, the defendant stated, murderer.” Although acknowledging that he had committed the violent crimes presented would demonstrate that he was “not the very worst kind of substantially outweighed by any danger of unfair prejudice. See RSA 630:5, III.

purposely killed Officer Briggs, and he asserted that the evidence to be discretion in deciding that the probative value of the testimony was not

conclusion of the eligibility phase of trial that the State had not proven that he non-statutory aggravating factor, or that it unsustainably exercised its “the very worst kind of murder.” He emphasized the jury’s finding at the court erroneously admitted evidence that was not relevant to a duly-noticed evidence previously presented to the jury demonstrated that he did not commit Accordingly, we hold that the defendant has not established that the trial In his opening, the defendant asserted, through counsel, that the

remarks that are challenged on appeal. the sentence selection phase of the trial as context for the prosecutor’s closing State’s closing. We provide an overview of the parties’ opening statements in

apartment just prior to the Roy Drive shooting. violation of his rights under the State and Federal Constitutions, see N.H. phase that the defendant possessed Bell-Rogers’s firearm at the Central Street Crimes Evidence) of this opinion, the jury heard evidence during the guilt

presented closing arguments and the defendant challenges four aspects of the

the potential to introduce an arbitrary factor into the sentence process” in trial. Moreover, as outlined in Part VI.A (Guilt Phase Review-Rule 404(b) Prior

At the conclusion of the sentence selection phase of trial, the parties

a. Background

to the extent it was preserved — that “the improperly-admitted evidence had The trial court had similarly instructed the jury during the guilt phase of the

defendant had possessed a firearm at Edward J. Roy Drive.

4. Closing Argument

CONST. pt. I, arts. 15, 18, 33; U.S. CONST. amends. V, VIII, XIV.

Our conclusion necessarily resolves the defendant’s constitutional argument —

that the State had proven beyond a reasonable doubt that the acquitted of that charge. That is to say, the jury did not find with the State arguing first, followed by the defendant. See RSA 630:5, III

p. 135 At the conclusion of the evidence, the parties made their closing arguments,

which more than fifty witnesses testified and numerous exhibits were admitted. selection phase over the course of approximately thirteen trial days, during After opening statements, the parties presented evidence for the sentence

just punishment.

Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV.

the victims in the Briggs’ family,” a death sentence would be the most fair and this crime committed by this defendant and especially for this victim and all prosecutor concluded that “the defendant does not deserve life . . . because for

cumulatively, violated the due process guarantees of the State and Federal

of Officer Briggs” but “was really more about him trying to cut his losses.” The

sentence. According to the defendant, these errors, standing alone and imprisonment without possibility of parole as an alternative to a death suffering of Officer Briggs; and (4) improperly minimized a sentence of life

plea offer did not show that he had “accepted full responsibility for the murder imposition of a death sentence. According to the prosecutor, the defendant’s invites us to review them for plain error. See Sup. Ct. R. 16-A (plain error defendant’s childhood, nor any other circumstances, mitigated against the

b. Appellate Argument

than forty separate aggravating and mitigating factors.

not contemporaneously object at trial to the prosecutor’s statements. He protection the law affords us.” The prosecutor further asserted that neither the

exhibits and the testimony of nearly one hundred witnesses, addressing more

constitutional rights; (3) misused the victim impact evidence when responding police officers; (2) improperly commented upon the exercise of his standard). impose a death sentence to deter possible future offenders from murdering The defendant argues that the State: (1) improperly urged the jury to As to his third and fourth arguments, the defendant acknowledges that he did police officer — a “public guardian” and “the person who embodies the very remained “undeterred,” with his criminal choices culminating in the killing of a argued that despite his convictions and periods of incarceration, the defendant

presented during all three phases of the capital trial through hundreds of

criminal history and asserting that his actions became “increasingly violent.” It The State began its opening statement by focusing upon the defendant’s

(2007). During the closing arguments, the parties discussed the evidence death.”

the defendant asked the jury to “stop short of putting another human being to for a sentence of life imprisonment without possibility of parole. Ultimately, regarding whether the imposition of a death sentence is warranted. See State p. 136 argument regarding the existence of aggravating and mitigating factors, and

RSA 630:5, III. This statute affords broad latitude to both parties to present permissible at the sentencing phase. State v. Guevara, 506 S.E.2d 711, 721

advocacy that may be impermissible at the guilt phase of a capital trial may be jury. the presumption of innocence no longer applies. Accordingly, prosecutorial open and the defendant shall conclude the argument to the already has determined the defendant’s guilt of capital murder, and, therefore, that case of imposing a sentence of death. The state shall

jury determines only whether the State has proven the defendant’s guilt beyond information to establish the existence of any of the at a capital sentencing trial differs significantly from that at a trial in which a opportunity to present argument as to the adequacy of the due process rights”). We recognize that the focus of a prosecutor’s summation (Pa. 1998) (“At the penalty hearing, where the presumption of innocence no information received at the hearing and shall be given fair acceptable in the sentencing phase”); Com. v. Abu-Jamal, 720 A.2d 79, 116 different, and rhetoric that might be prejudicially improper in the guilt phase is closing argument. See State v. Ellsworth, 151 N.H. 152, 154 (2004); see also (N.C. 1998) (“the foci of the arguments in the two phases are significantly we apply our established standard for reviewing the propriety of a prosecutor’s To evaluate the merits of the defendant’s constitutional challenges here,

by a prosecutor during closing statements may implicate a criminal defendant’s The state and the defendant shall be permitted to rebut any State v. Stowe, 162 N.H. 464, 473 (2011) (“[c]ertain improper comments made

court wisely has chosen . . . to approve open and far-ranging argument.”). Cf. Gregg v. Georgia, 428 U.S. 153, 203 (1976) (“We think that the Georgia may the prosecutor forcefully argue for the imposition of a sentence of death. may strenuously advocate his case for a sentence of life imprisonment, so too v. Thomas, 514 S.E.2d 486, 514 (N.C. 1999). Therefore, just as the defendant

sentencing phase of a capital trial. It states, in pertinent part: RSA 630:5, III provides parameters for closing argument at the

c. Discussion

226, 231-33 (1983). and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. We first address the defendant’s arguments under the State Constitution likely could have affected the outcome of the case.” Ellsworth, 151 N.H. at 155 p. 137 instruction; and (3) whether any prejudice surviving the court’s instruction

sentence of death. See RSA 630:5, III, IV (2007); see also Guevara, 506 S.E.2d 137

improper advocacy. See Ellsworth, 151 N.H. at 155; see also State v. Gaiolas, We first must determine whether the challenged remarks amounted to

deliberate; (2) whether the trial court gave a strong and explicit cautionary

factors exist beyond a reasonable doubt that warrant the imposition of a

violation where prosecutor’s reference in closing argument to defendant’s United States v. Robinson, 485 U.S. 25, 31-33 (1988) (no constitutional permit counsel to respond to opposing counsel’s closing argument); see also argument); State v. Boetti, 142 N.H. 255, 262 (1997) (trial court has latitude to presented as well as reasonable inferences which arise therefrom”). to a legal argument and were a permissible response to the defendant’s closing v. Cote, 143 N.H. 368, 375 (1999) (challenged prosecutorial remarks were akin constitute a fair response to a position advanced by defense counsel. See State factors: “(1) whether the prosecutor’s misconduct was isolated and/or U.S. 637, 645 (1974). For instance, viewed in context, challenged remarks may reversal of the verdict. The latter determination involves balancing three N.H. at 473; Gaiolas, 116 N.H. at 217; see also Donnelly v. DeChristoforo, 416 persuade the jury in accord with the death penalty notice that aggravating statements were improper, we then determine whether the error requires consider the challenged remarks in the context of the case. See Stowe, 162 sentencing phase must be considered in light of the State’s responsibility to To assess whether the State advanced an improper argument, we culpability, the propriety of the prosecutor’s closing remarks during the defendant’s due process challenge to the State’s closing argument). v. Parker, 142 N.H. 319, 322 (1997) (citing federal standard for reviewing a (citing United States v. Rodriguez, 215 F.3d 110, 122 (1st Cir. 2000)); cf. State

capital sentencing jury and “may argue all of the evidence which has been and to urge the jury to draw inferences of guilt from the evidence.” Stowe, 162

comment does not transgress “the bounds of legitimate advocacy”). If the 116 N.H. 216, 217-18 (1976) (due process is not implicated where prosecutorial the sentencing phase of a capital trial is not the defendant’s criminal

at 721 (counsel is afforded wide latitude in presenting closing argument to a argument to both summarize and discuss the evidence presented to the jury Under New Hampshire law, “[a] prosecutor has great latitude in closing

an impassioned plea for a sentence of death.”). longer has application, the prosecutor is granted greater latitude in presenting

standard under Federal Constitution). However, because the ultimate issue in (1994); see State v. Merritt, 143 N.H. 714, 720-21 (1999) (applying same N.H. at 473 (quotation omitted); State v. Vandebogart, 139 N.H. 145, 160 p. 138 (Quotations omitted.) According to the defendant, although the prosecutor’s

Ellsworth, 151 N.H. at 155 (quoting United States v. Taylor, 54 F.3d 967, 976

commission of similar future capital crimes by other prospective offenders.”

persuade the jurors of its import. unreasonable to the prejudice of his case. State v. Sanchez, 152 N.H. 625, 628 the parties’ last, best chance to marshal the evidence and jurors that they should return a capital verdict in order to prevent the describes several remarks made by the prosecutor as “seek[ing] to persuade the crime and the character of the offender in determining sentence.” He

sustainable, the defendant must demonstrate that it was clearly untenable or an especially delicate point in the trial process and represent

damaging interpretations.” Donnelly, 416 U.S. at 646-47; see Com. v. Rollins, principle that, to avoid arbitrariness, juries must focus on the circumstances of absent an unsustainable exercise of discretion. Id. at 261; see State v.

compromised in the process.” Boetti, 142 N.H. at 260.

on the jury). Therefore, to show that the trial court’s decision is not relevant to closing arguments, for such arguments come at liberty to strike foul ones.” This maxim is particularly through lengthy exhortation, will draw that meaning from the plethora of less [W]hile a prosecutor “may strike hard blows, he is not at presented a general deterrence argument in violation of “the constitutional improper prosecutorial remarks warrant a mistrial or other remedial action The defendant first argues that during its closing argument the State Further, we will not overturn the trial court’s ruling as to whether

fashion argument with the need to ensure that a defendant’s rights are not (2005).

to gauge any prejudicial effect the prosecutor’s closing remarks may have had Demond-Surace, 162 N.H. 17, 23 (2011) (the trial court is in the best position ambiguous remark to have its most damaging meaning or that a jury, sitting

prosecutor’s comments involves balancing “a prosecutor’s broad license to argument at capital sentencing). Ultimately, determining the propriety of a 738 A.2d 435, 449 (Pa. 1999) (“oratorical flair” is permissible in closing

same time, “a court should not lightly infer that a prosecutor intends an limits: (1st Cir. 1995)); see State v. Williams, 510 S.E.2d 626, 642 (N.C. 1999). At the Although prosecutors may present their cases zealously, this latitude has

counsel). opportunity to testify is fair response to claim made by defendant or his under our law, who will be safe and who will protect us?

p. 139 without the most serious consequences we can hand out If we let criminals like this defendant kill the police

else to go.

like Gerald Briles turns to the police when he has no place

make the inner-city streets of Boston safer. Even a criminal Litchutt told you how essential the police were in helping Even the defendant’s own witnesses, Dr. Leonard and Tracy

it tears — that crime tears at the very fabric of our society. Murdering a police officer is the ultimate crime because

our safety, and our freedom. They are our peace keepers.

every day is what allows the rest of us to enjoy our families,

between us and criminals like him. The work that they do

moments. The police are our public guardians. They stand safe, and to help us in our worst and most desperate every one of us rely on the police to protect us, to keep us

defendant chose to take the life of a police officer. Each and The reason we are all here today is because the

stated:

At the commencement of the State’s closing argument, the prosecutor

with the parameters of RSA 630:5.” argument focuses on the particular circumstances of this crime, consistent

making the murder of an on-duty police officer a capital offense. Such

comment upon Officer Briggs’ role as a police officer, and the policy reasons for

the preclusion of a general deterrence argument, the State is permitted to mitigating factors at issue in the case. The court also ruled: “Notwithstanding and, thus, the State’s closing argument, to the aggravating factors and

considerations outlined in RSA 630:5” and it limited the jury’s consideration,

general deterrence argument is contrary to the individualized sentencing request by written order dated December 15, 2008. It concluded that “[a] induce a verdict based on inappropriate factors.” The court denied the State’s

argument “is beyond the bounds of legitimate closing, and has the potential to

The defendant objected, arguing that the proposed general deterrence the specific context of the murder of a police officer acting in the line of duty. allowing it to present closing argument on the subject of general deterrence in

Before the sentence selection phase concluded, the State sought a ruling

deterrence argument. court erroneously permitted the State to make what was, in effect, a general

15, 2008, in which the court outlined boundaries of permissible argument, the comments were consistent with the trial court’s written order dated December found him eligible for the death penalty. Our elected

p. 140 here. You said that he was the worst of the worst when you

the worst murders. Nothing could be farther from the truth among the worst of the worst, and this murder is not among this was not a case for the death penalty because he is not In his opening statement, defense counsel told you that

the worst kinds of murders: classify the killing of a police officer acting in the line of duty as ranking among

Shortly thereafter, the prosecutor referred to the legislature’s decision to

out there to protect us, our community, and our State. that man, a very dangerous criminal. He was murdered going

had his life stolen from him, his family, and from this city by

Let it speak of the fact that Mike Briggs risked and ultimately I ask you today to let your verdict speak of his sacrifice.

everything that Mike Briggs had.

on a criminal like him that was just as willing to take

did that even though he knew he had to go out there and take gave everything to do his duty to try to keep this city safe. He out of the hands of a violent criminal like him. Mike Briggs

fifteen minutes of his life taking a dangerous weapon like this

evidence in this case that Mike Briggs chose to spend the last most of all, you know from having sat through all the he ran into a burning building to save peoples’ lives. And

the road. He would stop to fix their tire. And you heard how

he would stop if somebody had broken down on the side of

to the people and closer to the community. You heard how liked to be on that bike patrol because it brought him closer You heard how he liked to be on the bike patrol. He

Officer. And he chose to serve our State as a Manchester Police served his country. He chose to serve as a corrections officer.

to do with his life. He chose to serve as a marine when he

caring. To protect and serve; that’s what Mike Briggs chose police officer. He was honest. He was dedicated. He was Mike Briggs embodied all the values that we want in a

The prosecutor then commented on Officer Briggs’s role as a police officer:

Addison to death.

Hampshire is asking you to sentence the defendant Michael That is why we are here today. That is why the State of New extent that the rhetorical question could be understood as presenting a general

p. 141 to be the most serious of offenses, deserving of the death penalty. To the

profession if the killing of a police officer in order to evade arrest is not judged suggested that persons may be less inclined to enter the law enforcement implied general deterrence argument. The tenor of the query, however, at most

prosecutor asked the rhetorical question that the defendant characterizes as an

crime that tears at the very fabric of our society.” In this context, the community at large and argued that “murdering a police officer is the ultimate the role of the police as “public guardians” and “peace keepers” who protect the

and particularly worthy of the imposition of a death sentence. She discussed

duty police officer for the purpose of evading arrest was especially egregious The prosecutor tried to explain why the defendant’s murder of an on-

statements as pressing a general deterrence argument.

we disagree with the defendant’s characterization of the prosecutor’s

the rhetorical question and other remarks in context, rather than in isolation, police officers, which will, in turn, leave the community unprotected.” Viewing sentence, other criminals like the defendant would be “emboldened to kill

verdict, has the power to deter future, similar crimes” and that without a death

deterrence arguments at capital sentencing proceedings. See, e.g., Davis v. As the defendant recognizes, many jurisdictions have approved general

impermissible general deterrence argument.

protect us?” He contends that this statement “impl[ied] that the jury, with its consequences we can hand out under our law, who will be safe and who will let criminals like this defendant kill the police without the most serious

The defendant characterizes these aspects of the State’s closing argument as

focuses upon a rhetorical question that the prosecutor posed to the jury: “If we Among the closing remarks quoted above, the defendant especially

remarks as advancing a general deterrence argument.

so. most serious punishment under our law, and his actions say

need not weigh in on the matter, however, because we do not read the State’s Crim. App. 1992); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). We S.E.2d 168, 236 (N.C. 2000); Walker v. State, 841 P.2d 1159, 1163 (Okla. general deterrence arguments are improper. See, e.g., State v. Golphin, 533 Commonwealth, 357 S.E.2d 500, 505 (Va. 1987). Others have concluded that 578 (Nev. 2005); State v. Allen, 687 S.E.2d 21, 24 (S.C. 2009); Payne v. State v. Amrine, 741 S.W.2d 665, 669 (Mo. 1987); Blake v. State, 121 P.3d 567, murdering a police officer in the line of duty is eligible for the 871, 879-80 (Ark. 2004); Fleming v. State, 458 S.E.2d 638, 639 (Ga. 1995); representatives said so when they made a law that said Kemp, 829 F.2d 1522, 1527-28 (11th Cir. 1987); Greene v. State, 146 S.W.3d example, in State v. Guevara, the prosecutor argued:

p. 142 Golphin, 533 S.E.2d at 237.

other courts have held do not constitute general deterrence arguments. For The prosecutor’s remarks are similar to prosecutorial statements that

officer for the purpose of evading arrest justifies the most severe penalty.

for your state, for your law enforcement officers. message to people who have no regard for your way of life, next bad case. We can’t rely on the next jury to send that

not for the purpose of deterrence, but because murdering an on-duty police

these two defendants, nobody else will. We can’t rely on the

short, the challenged statements called for the imposition of the death penalty duty should be eligible for “the most serious punishment” under the law. In legislature’s judgment that a murderer of a police officer acting in the line of

Guevara, 506 S.E.2d at 721. The Supreme Court of North Carolina concluded will not tolerate this any longer.” If you don’t tell that to despicable act is encouraged. got to tell people like these two defendants, “We absolutely they did, for their motives, for their actions. Someone has 142

the jury of the findings it made in rendering its death eligible verdict and of the

disrespect for law and order that is inherent in that officer is dealt with the utmost seriousness, then the These two defendants deserve the death penalty for what answered. You see unless the killing of a law enforcement

crime and the importance of the jury’s duty.” Id. In a subsequent case, that a valuable police officer who had served the community. She also reminded murder. The prosecutor reviewed the particular attributes of Officer Briggs as quoted above, underscored her point regarding the egregious nature of the The prosecutor’s remarks before and after the rhetorical question, as

murdering a police officer did not amount to a general deterrence argument: that’s the way [the murder victim] was left and his plea was court also concluded that the following advocacy regarding the gravity of

argument, but properly “focused the jury’s attention on the seriousness of the that this statement, viewed in context, did not constitute a general deterrence

of the capital murder of Officer Briggs. of the State’s argument that encouraged the jury to focus upon the seriousness

I know undoubtedly you feel that you’ve seen it enough, but State’s exhibit number 9, it is not pleasant to look at it. And

such. Indeed, in context, the prosecutor posed the rhetorical question as part deterrence argument, we do not infer that the jury in fact understood it as this trial — p. 143 fraction of the due process that he has rightly received in coming. If the defendant had given Mike Briggs even a

bullet into Mike Briggs’ head when Mike didn’t even see it In contrast, on October 16th the defendant put a

each of you to fairly sit and consider this case on this jury.

hear. And he was even involved in the process of selecting

forth any relevant mitigating evidence that he wants you to question every witness. He has had the opportunity to put competent and able attorneys. He has had the chance to

been honored. He has been represented by three very Throughout this process, his constitutional rights have

courtroom; that’s what your duty is as a juror. and the rule of law. Applying the laws of our[ ] state in this

courtroom has been about the fair administration of justice

has gone on in this courtroom. What has gone on in this compare what he did to Officer Briggs to the process that or two wrongs don’t make a right. But you cannot even Now some of you may think, I don’t want to be like him,

rights and protections afforded to the defendant during the capital trial: During its closing argument, the State referred to certain constitutional

2. Exercise of Defendant’s Constitutional Rights to remove the taint from the sentencing hearing.

a mistrial and that the “curative” instruction given by the court was inadequate untenable or unreasonable to the prejudice of his case. punishment.” He contends that the trial court erred in denying his motion for egregious the defendant’s crime and thus the more severe the appropriate

that the trial court’s decision to allow the State’s closing argument was clearly argument. Accordingly, we hold that the defendant has failed to demonstrate greater the procedural rights the law grants to a criminal defendant, the more officer acting in the line of duty and did not advance a general deterrence

defendant, the prosecutor’s remarks communicated the message that “the sought to persuade the jury of the gravity of the defendant’s murder of a police by reference to the extent of his procedural rights.” According to the We likewise conclude that the prosecutor’s remarks, viewed in context, upon his constitutional rights by “ask[ing] the jury to measure his culpability The defendant next argues that the State impermissibly commented exercised those rights. We, therefore, reject the defendant’s argument that the

p. 144 conveyed to the jury that the defendant deserved the death penalty because he defendant’s decision to exercise his constitutional rights nor otherwise of justice and the rule of law. The prosecutor neither denigrated the

death sentence imposed upon him would be based upon the fair administration

prosecutor referred to the defendant’s constitutional rights to explain that a based upon the notion that “two wrongs don’t make a right.” Thus, the addressed the hesitancy that some jurors may have to impose a death sentence

or she could impose the death penalty. It was at that point that the prosecutor

stated that if the aggravating evidence outweighed the mitigating evidence, he to uphold and apply the law fairly. She also reminded the jurors that each had given during jury selection to keep an open mind, to be fair to both parties, and

prosecutor called upon the jurors to remember the assurances that each had

prosecutor’s argument. Immediately prior to her challenged remarks, the

disturbing the trial court’s judgment regarding the substance of the Considering the challenged remarks in context, we see no basis for

given any due process in that alley.

that he could have made in that alley, Mike Briggs was not unfair. You know that. Even though he had different choices that alley. Mike Briggs, how he was treated, was completely Mike Briggs should be — should have been given a chance in

The State then continued its closing argument as follows:

sentence of this defendant . . . .

trial has no bearing on your decision as to the appropriate

And because the defendant has exercised his right to a jury constitutional rights. Among them is the right to a jury trial. Members of the jury, the defendant, as you know, has certain

follows: the jury, which the defendant accepted. The court instructed the jury as taking the life of Officer Briggs. It agreed, however, to provide an instruction to

pursuant to the legal process was not comparable to the defendant’s actions in

jury’s sentencing task was a difficult one, the imposition of a sentence of death In so doing, it ruled that the prosecutor was making the point that while the characterization of the State’s argument and denied his motion for a mistrial.

his constitutional rights. The trial court disagreed with the defendant’s

immediate instruction to the jury foreclosing it from considering his exercise of do so. He moved for a mistrial or, in the alternative, for the court to provide an exercised his constitutional rights and because he was advised by counsel to

arguing to the jury that he is more deserving of the death penalty because he At this point the defendant objected to the State’s remarks as improperly constitutions. [The victim] didn’t have that when he was gunned down.” Com. p. 145 defense attorney and the fact of the United States and Pennsylvania 145

defendant was concerned about his own rights instead. Id. Also, in

to due process, to the presumption of innocence, to reasonable doubt.” State v.

a fair-minded, impartial Judge and the representation of a very, very competent

comparable to death.” Id. at 270. because defendant exercised his constitutional rights and did not suggest that same as killing someone on a street corner and that life in prison is not rights as a human being that the defendant had disregarded and that the that, thanks to procedural safeguards, imposing the death penalty was not the prosecutor’s remarks were permissible because the State “reminded the jury v. Carson, 913 A.2d 220, 269-70 (Pa. 2006). The court concluded that the

now. He wants his right to a trial, his right to two very good lawyers, his right

judgment that night in a nice orderly courtroom, with a record being taken and Similarly, in State v. Garcell, a prosecutor commented: “[T]his man did you may consider the fact that [the victim did] not have 12 people sitting in this case and think about the circumstances under which [the victim] was shot Commonwealth v. Carson, a prosecutor argued: “But when you do think about

permissible “since the argument did not urge the jury to return a death verdict prosecutor permissibly encouraged the jury to consider that the victim had appropriate instructions, have a jury decide it.” People v. Ervine, 220 P.3d Garcell, 678 S.E.2d 618, 650 (N.C. 2009). The court concluded that the example, in Burgess v. State, a prosecutor argued: “No matter what happened this courtroom with a Judge to make sure everything’s right, give you neither received “due process” nor had the benefit of “two lawyers comin[g] into not care about [the victim’s] rights. He violated her rights. He is big on rights system.” Id. Also, in People v. Ervine, a prosecutor commented that the defendant’s] fate was to be determined by the rule of law and the judicial exercised his right to counsel as a reminder that, unlike the victim, “[the (quotation omitted). defendant should be given a greater penalty because he had a trial.” Id.

820, 869 (Cal. 2009). The court held that the prosecutor’s remarks were

constitute improper commentary about a defendant’s constitutional rights. For Several courts have concluded that similar prosecutorial remarks did not defendant was “his own Judge, jury, and executioner” and that the victim which the defendant had exercised his constitutional rights. prosecutor invited the jury to determine the penalty by assessing the extent to

constituted a permissible comment on the fact that the defendant had 134, 167 (Ala. Crim. App. 1998). The court concluded that these remarks this case. We have been in an orderly process.” Burgess v. State, 827 So. 2d . . . [the defendant has] had the opportunity to have lawyers represent him in capital murder and eligible for the death penalty and did not invite any

right.” Id. It stated: “The use of these various improper arguments creates an the prosecution to penalize a defendant for the exercise of a constitutional this case were made after the jury had found the defendant both guilty of constitutional right against self-incrimination.”). In contrast, the remarks in reference to the failure of a defendant to testify is a violation of the defendant's

invite an unfair inference of guilt. Cf. Ellsworth, 151 N.H. at 155 (“Comment proceeding, reference to a defendant’s exercise of constitutional rights may well

constitutional rights” and noted its state precedent “condemn[ing] attempts by

decide his fate.” Shell, 554 So. 2d at 900. The court expressed its disapproval [the murder victim] never got. And that is a jury of twelve good people to either by a prosecutor or the court which may be construed as an unfavorable exercised its discretion in ruling that the prosecutor did not do so. Cf. the full protection of the Constitution of the United States and he has got what upon that inference. Here, we conclude that the trial court sustainably defendant’s exercise of his constitutional rights and to base its penalty decision In Shell, the defendant challenged the prosecutor’s comment made defendant was presumed innocent under the law. At that stage of a capital made during closing argument at the guilt phase of the trial when the the case persuasive and decline to follow it. unfair inference of guilt.” Id. (emphasis added). The comment in Shell was

Walker can be read as prohibiting any reference by the State in closing to due infringe upon [the defendant’s] Fifth Amendment rights”). To the extent that explain himself “did not in the light of the comments by defense counsel of any prosecutorial comments regarding “a defendant’s exercise of specific

during closing argument at the guilt phase that the defendant was “clothed in

improperly called upon the jury to draw a negative inference from the were improper. See Walker v. State, 913 So. 2d 198, 241 (Miss. 2005); Shell v.

process or other specific constitutional rights of the defendant, we do not find

Walker, 913 So. 2d at 241. The court concluded that the content of the closing at a criminal trial that the defendant could have taken the stand to defendant with the defendant’s conduct in illegally taking the life of the victim. Robinson, 485 U.S. at 31 (holding that the prosecutor’s statement during

prosecutor’s remarks in context when evaluating whether the remarks Mississippi to support his argument that the prosecutor’s remarks in this case specific constitutional rights and to “due process.” Nonetheless, we review the The defendant relies upon two decisions of the Supreme Court of 242. As the defendant here points out, the State in this case did refer to include any specific reference to due process or to constitutional rights. Id. at remarks did not taint the sentencing proceeding in part because they did not

closing argument at capital sentencing compared the legal process afforded the v. Mississippi, 498 U.S. 1 (1990). In Walker, the prosecutor’s comments during State, 554 So. 2d 887, 900 (Miss. 1989), rev’d on other grounds sub nom. Shell another holiday that passes where they don’t think of their

p. 147 single parent. And Brian and Mitchell, there will never be

Laura Briggs has to raise her family now, her sons, as a alley when he watched his partner take a bullet to his head. John Breckinridge still patrolled the streets of that

this crime don’t involve protracted cruelty. doesn’t ring true that the circumstances and the impact of ground immediately when he put a bullet in his head, but it

impact evidence in contravention of constitutional principles outlined in Payne

the prosecutor stated: circumstances of the homicide did not involve torture or protracted cruelty,” In responding to the defendant’s mitigating factor that “[t]he

judicial proceedings. Id. The State argues that the defendant’s challenge fails error must seriously affect the fairness, integrity, or public reputation of the

Briggs’s survivors. According to the defendant, the prosecutor misused victim

attention of the trial court or the supreme court.” Sup. Ct. R. 16-A. The rule

trial court. State v. Guay, 164 N.H. 696, 703 (2013); see United States v. under the first prong of the plain error analysis, and we agree. Under the plain error rule, we may consider errors not raised before the 3. Victim Impact

the prejudice of his case. error must be plain; (3) the error must affect substantial rights; and (4) the plain error rule sets forth four requirements: (1) there must be an error; (2) the miscarriage of justice would otherwise result. Guay, 164 N.H. at 704. Our him to be a “worse person” based upon the “torture” he inflicted on Officer should be used sparingly, its use limited to those circumstances in which a cruelty. He characterizes the prosecutor’s argument as asking the jury to find when refuting his mitigating factor relating to lack of torture or protracted substantial rights may be considered even though it was not brought to the Davis, 609 F.3d 663, 677 (5th Cir. 2010). “A plain error that affects

remarks for plain error. v. Tennessee, 501 U.S. 808 (1991). He asks us to review the prosecutor’s the denial of his motion for mistrial was clearly untenable or unreasonable to Accordingly, we conclude that the defendant has failed to establish that

rights. improper negative inference from the defendant’s exercise of his constitutional

The defendant argues that the State misused the victim impact evidence p. 148 Payne, 501 U.S. at 825 (quotation and brackets omitted); see RSA 630:5, III;

The defendant points to no case in the country other than Payne to

family. represents a unique loss to society and in particular to his

extent and quality of the suffering of Officer Briggs’s survivors. rely upon victim impact evidence to find him to be a “worse person” due to the

individual, so too the victim is an individual whose death

defendant’s characterization of the prosecutor’s remarks as asking the jury to

that just as the murderer should be considered as an defendant is entitled to put in, by reminding the sentencer interest in counteracting the mitigating evidence which the

Officer Breckinridge and Officer Briggs’s family. We disagree with the

persuaded that the prosecutor’s argument contravened the precepts of Payne. harm caused by the defendant. The State has a legitimate

circumstances and the impact of this crime,” by highlighting the testimony of actually committed. The prosecutor expressly focused upon “the by redirecting the jurors to the circumstances of the crime that the defendant 148

the defendant’s actions . . . and to counteract mitigating evidence”). We are not have before it at the sentencing phase evidence of the specific

disputed that such a proposed mitigating factor warranted any mitigating value

that victim impact evidence may be used both to assess the harm caused by Ball v. State, 699 A.2d 1170, 1193-94 (Md. 1997) (noting that Payne “suggests defendant’s moral culpability and blameworthiness, it should conclude that for the jury to assess meaningfully the

We are now of the view that a State may properly

death by acts of torture or protracted cruelty. The prosecutor’s argument that his crime could have been more egregious had he caused Officer Briggs’s The defendant’s proposed mitigating factor asked the jury to consider

has held: Trial-Victim Impact Evidence) of this opinion, the United States Supreme Court support his argument. As noted in Part VII.B.1 (Sentence Selection Phase

defendant seem a worse person.” evidence should not heighten the chance of a death sentence by making the by increasing the jury’s estimation of the harm done by the crime, such

Relying solely upon Payne, the defendant contends that these statements

tortured every day when he thinks about his son? father. And you saw Lee Briggs. You don’t think that he is

powerful victim impact evidence may heighten the chance of a death sentence comprise plain error. According to the defendant, “[W]hile the admission of this murder. How can that be fair? How can that be just?

p. 149 close to life anyway for the crimes that he committed before

on killing Mike Briggs because he is basically going to do sentence him to life without parole he essentially gets a pass just on the crimes he committed before the murder. If you

him practically the very same sentence that he was facing

committed before this murder. And now he wants you to give avoid being held fully accountable for the crimes he He made the choice to take Officer Briggs from us to

penalty. another reason why this case is deserving of the death time, how is life without parole adequate here? That’s

is punished for the murder of Officer Mike Briggs facing this

facing essentially what amounts to a life sentence before he

regardless of what happens in this trial. If the defendant is doubt that the judge is going to give him this time, Mike Briggs. And with his criminal history, there is little

prosecutor’s remarks for plain error. See id. The State argues that the

the crimes that he committed before he murdered Officer

to Officer Briggs and his survivors. Again, the defendant asks us to review the imprisonment without possibility of parole would constitute a personal affront because the remarks communicated that choosing a sentence of life thirty-one-and-a-half to sixty-three years in prison just for 149 when he murdered Officer Mike Briggs. He was and is facing And you now know that he was facing almost a life sentence

pass” argument calculated to appeal to the passion and emotion of the jury

characterizes the prosecutor’s remarks as advancing an impermissible “free be granting the defendant “a pass” for the murder of Officer Briggs. He made statements to the effect that if the jury imposed a life sentence, it would Early in her closing, the prosecutor made the following statements:

again, we agree.

and, thus, his challenge fails under the first prong of plain error analysis. See

identifies two portions of the State’s closing argument in which the prosecutor

defendant’s challenge fails under the first prong of plain error analysis, and,

4. Minimizing a Sentence of Life Without Possibility of Parole

prosecutor’s remarks fell outside the bounds of permissible closing argument, Accordingly, we hold that the defendant has failed to establish that the

a sentence of life imprisonment without possibility of parole. Specifically, he The defendant argues that the State improperly minimized the severity of

Guay, 164 N.H. at 703-04. evidence, the prosecutor argued in closing that the defendant likely would

p. 150 prison] plus the one year in jail on the misdemeanor.” Based upon this

maximum for the total would be thirty-one-and-a-half to sixty-three years [in the sentencing range for each of the convictions and stated that “[t]he sentencing until the capital proceedings were complete. She then testified as to

three non-capital crimes because he requested that the trial court postpone

felony trials, testified that the defendant had not yet been sentenced for the October 2006. Specifically, Karen Gorham, one of the prosecutors in the prior defendant could receive for the three non-capital crimes he committed in

the sentence selection phase of trial as to the maximum sentences the

Officer Briggs. These remarks were based upon the evidence presented during the punishment for other prior crimes, which would “trivialize” the life of tacked on years,” “a pass” for the murder of Officer Briggs, and an “add-on” to

sentence for the capital murder would amount to “an afterthought,” “a few

lengthy prison term for the three non-capital crimes, a life imprisonment

value. The prosecutor argued that because the court likely would impose a whether the defendant’s plea offer for the capital murder had any mitigating sentence of life imprisonment without possibility of parole would be just and on

Viewed in context, the prosecutor’s statements center on whether a

that. accept that. Mike Briggs’ life — his life is worth more than

committed when he put a bullet in Mike Briggs’ head. Don’t

and to trivialize the cold-hearted murder that the defendant to treat Mike Briggs’ life as an add-on is to trivialize his life be punished for the murder of Officer Briggs, and in this case,

already facing essentially a life sentence. That’s before he will

nothing to lose. That plea offer was hollow because he was

the line to protect us against dangerous felons who have and to the other police officers who every day put their lives on That so-called [plea] offer is an insult to Officer Briggs

Later in her closing, the prosecutor remarked as follows:

injustice.

officer. That would be a grave injustice; a very grave

defendant cannot be given a pass for murdering a police receive the death penalty? A career criminal like the what are the consequences for the murder if he does not

he is facing for the crimes he committed before the murder, Let’s just be blunt about this. In light of the sentences

loved ones is worth more than a few tacked on years.

that Mike Briggs lived and had snatched from him and his This cold-blooded murder cannot be an afterthought. The life p. 151 Id. at 447.

to sentence him to death. consider [the defendant’s] earlier crimes in deciding whether

Rodden v. Delo, the defendant murdered a man and a woman during the same permissible by the United States Court of Appeals for the Eighth Circuit. In [the defendant] was a multiple killer. The jury could properly The prosecutor’s argument is similar to arguments found to have been

murder case. Rather, the prosecutor merely pointed out that murder trial should control the jury’s decision in the [second] sentences for the defendant’s convictions on the three non-capital crimes. man], the prosecutor did not suggest the outcome of the [first] these facts, the prosecutor focused the jury’s attention upon the potential

parole means nothing . . . . Should he not be punished for the murder of [the

that another jury had convicted [the defendant] of killing [the sufficient to do justice in this case.” To negate the proffered mitigating value of

does he get the murder of the second person free? Another fifty years without urged the jury to consider the likely sentence that the defendant would serve and did not invite a sentencing verdict based upon emotion. Rather, the State punishment for the additional crime. And in commenting As in Rodden, the prosecutor’s argument here rested upon the evidence State,” as facts “tend[ing] to show that a life sentence is appropriate or “attempted to plead guilty to Capital Murder but his offer was rejected by the Phase Review) of this opinion, the defendant asked the jury to consider that he

people and he got fifty years in prison without parole for killing one person,

years. Id. During the sentencing phase for the murder of the woman, the murder being free urged the jury to impose additional In context, the prosecutor’s statements about the second submitted mitigating factors. For example, as outlined in Part VII (Sentencing closing argument. Id. at 445. It concluded: The challenged remarks also offered rebuttal to certain of the defendant’s that murder, and the federal court rejected his challenge to the prosecutor’s additional sentence for the additional crime of capital murder.

prosecutor argued, among other things: “Now, if [the defendant] killed two

he received a sentence of life in prison without probation or parole for fifty Rodden v. Delo, 143 F.3d 441, 444 (8th Cir. 1998). For the murder of the man, criminal episode and was convicted of the murders in separate proceedings.

crimes, and, therefore, the jury should impose a sentence of death as an receive the equivalent of a life imprisonment sentence for the non-capital p. 152 See Guay, 164 N.H. at 703-04.

reach the same conclusion under the Federal Constitution. See State v. Hill, does the State Constitution under these circumstances, and, accordingly, we trial court error, his challenge fails under the first prong of plain error analysis. that the Federal Constitution affords the defendant no greater protection than permissible closing argument. Because the defendant has failed to establish failed to establish that the prosecutor’s remarks fell outside the bounds of

the sentence selection phase of trial amounted to improper advocacy in of the challenged remarks made by the prosecutor during closing argument at 146 N.H. 568, 576 (2001); Stowe, 162 N.H. at 470. In sum, we conclude that the defendant has failed to establish that any

under the State and Federal Constitutions differ in this context. We conclude CONST. amends. V, XIV. Nor does he argue that the due process protections submitted mitigating factors. Accordingly, we hold that the defendant has Federal Due Process Clause, without engaging in a separate analysis. See U.S. CONST. pt. I, art. 15. The defendant makes identical arguments under the

more than two persons should be sentenced to death.” Id. it is tantamount to the conclusion that, as a matter of law, a person who kills

‘free dead people,’ or ‘murders for free.’” Id. It concluded that such argument

prosecutor convey to the jurors that they were prohibited from considering the that the defendant could receive for the non-capital crimes. Nor did the were legally bound to impose the death penalty given the maximum sentences five freebies.” Id. at 403 (emphasis omitted). Unlike Kuntu, the prosecutor here did not convey to the jurors that they killed seven people. If you do not sentence him to death that will be giving him

constitutes “an inflammatory statement with no basis in either law or fact [and] capital murder for all seven deaths in a single proceeding. Id. at 386, 390. The

be sentenced to death or be deemed to have received one or more ‘freebies,’ sentence of life imprisonment, a defendant who commits more than two must communicating the message that “because two murders result in a minimum The defendant relies upon People v. Kuntu to argue that the prosecutor’s The Supreme Court of Illinois characterized the prosecutor’s argument as accountable for the capital murder. for the non-capital crimes and to impose a sentence of death to hold him

Illinois is that if you kill two people you go to jail for life without parole. He prosecutor argued to the sentencing jury, among other things: “The law in

a residential apartment building, killing seven people, and was convicted of 2001). We are not persuaded. In Kuntu, the defendant intentionally set fire to remarks constitute reversible error. See People v. Kuntu, 752 N.E.2d 380 (Ill. p. 153 A. Death Penalty Challenge Under State Constitution

request for discovery which he sought during the pendency of this appeal.

defendant also asserts that the trial court erroneously denied his post-verdict

separation of powers, grand jury indictments, and duplicative factors. The

standing tradition of affording greater protection to individual liberties under

factors violate provisions of the State and Federal Constitutions regarding and impartial jury and to due process; and (7) the non-statutory aggravating qualifying” the jury prior to the guilt phase of trial violates his right to a fair Supreme Judicial Court of Massachusetts in District Attorney for the Suffolk

today than in 1980.” He further argued that “New Hampshire has a long-

discrimination renders the death penalty unconstitutional; (6) “death punishments” clause of Part I, Article 18. He argued that the decision of the

penalty offends contemporary standards of decency — holds even more true that “the reasoning behind the Massachusetts opinion — that the death identical to that in the New Hampshire Constitution. The defendant contended

statute violates separation of powers and due process; (5) the risk of racial punishments” clause of Part I, Article 33 and the “true design of all the inapplicability of the rules of evidence at capital sentencing under the statute facially violates the State Constitution’s “cruel or unusual the burdens of proof in the capital sentencing statute violate due process; (4) the trial court barring the death penalty, arguing that the capital sentencing

commonwealth’s constitution, was “persuasive” because it interpreted language

function for the class of murderers who are eligible for the death penalty; (3) Approximately one year prior to trial, the defendant sought an order from

a. Background

1. Facial Challenge punishment violated the “cruel or unusual punishments” clause of that District v. Watson, 411 N.E.2d 1274 (Mass. 1980), which held that capital

applied in this case, violates the New Hampshire Constitution. See RSA 630:1 The defendant argues that the death penalty statute on its face, and as

aggravating factors fail to perform the constitutionally required narrowing facially and as applied violates our State Constitution; (2) the statutory constitutional and statutory claims: (1) the capital sentencing statute both

(2007) (amended 2011); RSA 630:5 (2007). We address each argument in turn.

court denied all of his motions. On appeal, the defendant asserts the following

otherwise seeking to preclude the imposition of the death penalty. The trial challenging the constitutionality of New Hampshire’s death penalty statute or Well in advance of trial, the defendant filed numerous motions b. Appellate Argument

p. 154 Hampshire’s capital murder sentencing scheme is constitutional.”

follow Watson because: (1) the Watson court “did not employ general principles community standards of decency in this state. Finally, the court declined to

scientific/sociological studies, to overcome the presumption that New

Constitution, as well as his argument that capital punishment offends general

objective evidence, either by way of national legislative trends or

Article 33 provide more protection than the Eighth Amendment to the Federal court rejected the defendant’s argument that Part I, Article 18 and/or Part I, by the text of the State Constitution and “by then existing societal norms.” The

2009, the trial court denied his motion because it could not find “sufficient commission to study the death penalty.” By written order dated March 19, not challenge the death penalty under the Eighth Amendment. See Gregg v. [that had] transpired,” including that “New Hampshire considered forming a