2013-0813, State of New Hampshire v. Robert Breest

convicted of murdering Susan Randall. At the t ime of the murder, the police The pertinent facts are not in dispute. In 1973, t he defendant was

remand. of DNA testing conducted with the consent of the State. We vacate and Court (Smu kler, J.) denying his motion for a new trial based upon the results LYNN, J. The defendant, Robert Breest, appeals an order of the Superior

defendant. of Armonk, New York (Ian M. Dumain on the brief and orally), for the Albert E. Scherr, of Concord, by brief, and Boies, Schiller & Flexner LLP,

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2013 - 813 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

within three years after the rendition of the judgment complained of, or the failure of the suit.” RSA 5 p. 2 26:4 (2007) provides that “[a] new trial shall not be granted unless the petition is filed 1

habeas corpus based up on a claim of actual innocence. After reviewing federal construed the defendant’s motion for a new trial as a petition for a writ of Second, the court considered whether relief would be available if it

because his request was untimely. 1 determined that it could not grant the defendant a new trial under this statute up on newly discovered evidence – here, the DNA test results. The court the defendan t’s motion for a new trial pursuant to RSA 5 p. 2 26: 1 (2007), based potentially available to the defendant. First, it looked at whether it could grant The trial court then considered tw o alternative avenues of relief

D,” thus foreclosing the defendant from seeking relief under the statute. found that the DNA “results do not trigger the remedial provisions of RSA 651 necessary to obtain testing in the first instance. For this reason, the court dete rmine whether the defendant had satisfied the statutory prerequi sites pursuant to an order issued under the statute, the court was never asked to Because the DNA at issue was tested with the State’s consent, rat her than establish the existence of these prerequisites by clear and convi ncing evidence. order directing DNA testing, and that the statute requires that the defendant imposes certain prerequisites before a convicted defendant may obtain a court defendant’s case. In its subsequent order, t he court noted that the statute determination that the remedial provisions of RSA 651 - D: p. 2 2 a pplied to the In response to the State’s motion, the trial cour t reconsidered its initial

for reconsideration. State’s consent. The trial court denie d t he State’s motion, and the State moved petition the court for DN A testing, but instead obtained the testing with the provisions of the statute were not available to the defendant because he did not (Supp. p. 2 2014). The State moved to dismiss, arguing that the remedial a defendant has obtained favorable DNA test results. See RSA 651 - D:2, VI(b) arguing that RSA chapter 651 - D empowers the court to order a new trial when Based on the 2012 test results, the defendant moved for a new trial,

profiles, but was excluded as a contri butor of the second. T he defend ant could not be excluded as a contributor of one of the male DNA showed that the clippings contained DNA material from two different males. new and more sensitive technology, produced results which, for the first time, DNA testing on the remaining clippings. This most r ecent testing, which used contributor. In p. 2 2012, the defendant, with the State’s consent, obtained further post - conviction relief because the defe ndant could not be excluded as the DNA DNA testing on the fingernail clippings; however, none of these tests led to various motions to the trial court, the defendant obtained multiple rounds of obtained fingernail clippings from Randall. Between 2000 and 2008, by p. 3 3

an order vacating and setting aside the judgment, discharging the shall enter any order that serves the interest s of justice, including favorable to the petitioner, the court shall order a hearing and [I] f the results of DNA testing conducted under this section are

of nine enumera ted criteria. RSA 651 - D:2, I, III. The statute goes on to state: material” if the petitioner can establish, by clear and convincing evidence, each conviction . . . petition the court for forensic DNA testing of any biological person in custody pursuant to the judgment of the court may, at any time after The post - conviction DNA testing stat ute provides, in pertinent part: “A

Cost ella, 166 N.H. at ___; RSA 625: p. 3 3 (2007). Criminal Code according to the fair import of its terms and to promote justice.” Builders v. O’Connor, 157 N.H. 387, 388 (2008). Finally, “[w] e construe the such a reading would lead to an absurd result.” Great Tr aditions Home “However, we will not interpret statutory language in a literal manner when said or add language that the legislature did not see fit to include.” Id. at ___. the statute as written and will not consider what the legislature might have meaning to the words used.” Id. at ___. “We interpret legislative intent from examining the language of the statute, we ascribe the plain and ordinary expressed in the words of a statute considered as a whole.” Id. at ___. “When interpretation, we are the final arbiters of the intent of the legislature as N.H. ___, ___ (decided September 12, 2014). “In matters of statutory statute is a question of law, which we review de novo.” State v. Costella, 166 r equires us to engage in statutory construction. “The interpretation of a testing is conducted by agreement between the State and the defendant Determining whether RSA 651 - D:2, VI(b) may be invoked when DNA

his other arguments. obtaine d with the State’s consent. We agree. Therefore, we need not consider erred by determining that RSA 651 - D:2, VI(b) does not a pply to DNA testing On appea l, the defendant argues, among other things, that the trial court

motion for a new trial. This appeal followed. its original order, and granted the State’s motion to dismiss the defendant’s the defendant, t he trial court granted the State’s motion to reconsider, vacate d Because it determined that there were no avenues of relief available to

relief. presented at trial.” T hus, it concluded that the defendant was not entitled to would not [have found him] guilty . .. based on the DNA evidence and evidence defendant to show by clear and convincing evidence that “a reasonable jury standard” employ ed by some states, which it interpreted as requiring a burden, even when app lying wh at it characterized as the “more lenient and state law, the court determined that the defendant had not met his p. 4 4

results. that the defendant would seek relief under RSA 651 - D:2, VI(b) if the testing produced favorable trial. Under the circumstances the State cannot, and does not, suggest that it did not understand a s obviously must have known – was to obtain favorable evidence that would entitle him to a new defendant’s obvious purpose in seekin g the additional DNA testi ng – a purpose that the State just acknowledge that the defendant did not seek such a waiver, the argument misses the mark. The testing, he did not seek a waiver of the requirements of RSA chapter 651 - D. While we The State argues that when the defendant sought an agreement to the latest round of DNA 2

for a determination of whether the DNA results in this case are favora ble under the rem edial provisions of the statute. We therefore remand to the trial court to an absurd result, we conclude that DNA tests obtained by consent trigger Because the literal reading of RSA 651 - D:2 urged by the State would lead

convicted). noting that the goal of the statute is to protect the rights of the wrongfully Comm. (Jan. 13, 200 p. 4 4) at 2 (statement of Rep. Bette Lasky, prime sponsor, Conviction DNA Testing: Hearing on H.B. 640 - FN Before the H ouse Finance of the statute.” Costella, 166 N.H. at ___; s ee also An Act Relative to Post leading to an absurd result and nullifying to an appreciable extent the purpose test results. “[I] t is not to be presumed that the legislature would pass an act 2 proceeded with the State’s consent would not, despite equally favorable DNA court for testing would be entit led to relief, whereas the defendant who be treated differen tly under the statute. The defendant who had petitioned the results – one by petition to the court, the other with the State’s consent – would defendants, both of whom had obtained favorable pos t - conviction DNA test by consent, as the State suggests, an absurd result would follow: t wo interpret the statute to deny relief to defendants who had obtained DNA results DNA results obtained by court order, not by consent. However, w ere we to W e agree with the State that RSA 651 - D:2 s pecifically addresses only

obtained by consent rather than by petition to the court. thus the remedial provision s of the statute do not apply when testing is “the results of DNA testing conducted under this section” is unambiguous, and lead to an absurd resul t. The State, on the other hand, argues that the phrase for relief under the statute would defeat the statute’s remedial purpose and that to isolate the phrase “petition the court” as the only possible mechanism meaning of the statute when considered as a whole. To that end, he argues the statute is silent regarding consent, he argues that it is implied within th e consented to the DNA testing at issue. While the defendant acknowledges that reme dial provision s of the statute were not triggered because the Stat e The defendant argues that the trial court erred in finding that the

RSA 651 - D:2, VI(b).

petitioner, or granting a new trial. petitioner if the petitioner is in custody, resentencing the p. 5 5

D:2, VI(b).” further examination, which can take place in the context of a hearing conducted un der RSA 6 p. 5 51 identification of the second male donor of the DNA found under the victim’s fingernails warrants here, we think that the trial court’s original order was correct in concluding that “[t]he “the court shall order a hearing.” RSA 651 - D:2, VI(b) (emphasis added). Under the circumstances latter issue, the statute specifically states that if the DNA testing is favorable to the defendant, evidence is favorable to the defendant and, if so, whether a hearing is required. Indeed, as to the impose a clear and convincing evidence standard upon the determination of whether DNA evidence that a jury would reach a different verdict.” However, RSA 651 - D:2, VI(b) does not court co ncluded that the latest DNA evidence “does not rise to the level of clear and convincing analyzed the defendant’s motion for a new trial as a petition for habea s corpus relief, the trial W e recognize that, in the portion of its order on the State’s motion for reconsideration in which it 3

DALIANIS, C.J.