2013-0426, State of New Hampshire v. Richard Paul

“jury nullification defense.” We affirm. requested and by giving other jury instructions that effectively contravened his 519:23 - a (Supp. 2013) by declining to give the jury nullification instruction he defendant appeals, asserting that the trial court f ailed to comply with RSA represented to be LSD. See RSA 318 - B:2,:26 (2011) (amended 2013). The ounce or more of m arijuana, and one count of the sale of a substance or more of marijuana, one count of possession with intent to distribute an defen dant, Richard Paul, was convicted on three counts of the sale of an ounce LYNN, J. F ollowing a jury trial in Superior Court (Kissinger, J.), the

brief and orally), for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2013 - 426 Cheshire

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

which states: what the law ought to be.” The second is the so - called W entworth instruction, must follow the law as I explain it regardless of any opinion you may have as to to negate such an argument. The first is the in struction which states, “You provisions of the standard instructions given to jurors in criminal cases tended 519: p. 2 23 - a afforded him the right to argue nullification to the jury, two give the proposed instruction, the defendant contended that although RSA State’s proposed instruction. In support of his argument that the court should arguments, the defendant informed the court that he did not object to the A t a hearing to review jury instructions held just before closing

its burden o f proof. it is within your power to acquit even if you find the state has met feel that a conviction would not be a fair or just result in this case, the defendant guilty is repugnant to your sense of justice, and you established guilt beyond a reas onable doubt. However, if finding that you should find the defendant guilty if the state has instruction on the law as I give it to you, including the instruction We are a nation governed by laws. You should follow the

propose d the following alternative language: The Stat e responded by objecting only to the wording of the instruction, and

has established guilt beyond a reasonable doubt. mind that you may not find the defendant guilty unless the State instructio n on the law as I gave it to you. You must also keep in repugnant to your sense of justice you should follow the governed by laws. Unless finding the defendant guilty is of proof. You must however keep in mind that we are a nation your power to acquit even if you find the state has met its burden conviction would not be a fair or just result in this case, it is withi n You are not required to convict the defendant. If you feel that a

activist,” requested the following jury instruction: Before trial, the defendant, who characterizes himself as a “marijuana

on all charges. arrested. The defendant was tried before a jury in April p. 2 201 p. 3 3 and found guilty represented to be LSD. During the May 30 meeting, the defendant was the defendant also sold the confidential informant a substance that he defendant, with a final controlled buy arranged for May 30, 2012. On April 27, confidential informant, conducted controlled buys of marijuana from the and May 16, 2012, the Attorney General’s Drug Task Force, using a The following facts are de rived from the record. On April 17, April 27, 3

defendant did not object to this portion of the instruction s. to you, then you must follow my instructions and ignore the statements of t he lawyers.” The The court also instructed that, “If the lawyers state the law differently from the law as I explain it 1

than the standard Wentworth instruction to i nsure that the jury is adequately argument; and ( p. 3 3) the trial c ourt give a more rigorous nullification instruction court ’s jury instructions neither contravene n or undermine the defendant’s court allow the defendant to make a jury nullification argument; (2) the trial be con strued broadly and that compliance with it requires that: (1) the trial laid out in RSA 519:23 - a. T he defendant contends that RSA 519:23 - a should and undermined the defendant’s explanation of the jury’s nullification right as The defendant asserts that the trial court’s jury instruction s contradicted

court denied. This appeal followed. defendant moved for judgment notwithstanding the verdict, which the trial gave the standard Wentworth instruction. Following the conviction s, the any opinion you may have as to what the law ought to be.” The court also 1 instructed the jury that, “You should follow the law as I explain it regardless of should find the defendant guilty. After closing arguments, the tr ial court nullification was correct, but argued that based on the evidence the jury closing, the State acknowledged that the defendant’s description of jury man, in these circumstances, the fair and just verdict is not guilty.” In its beyond a reasonable doubt, and she urged the jury to do so, arguing, “with this could acquit the defendant even if they thought the State had proven its case During closing arguments, defense counsel informed the jurors that they

further objection. agreed to make this change to the instruction, and the defendant made no if the word “must” in the instruction were changed to “should.” The court response, the State suggested that the defendant’ s objection could be resolved the instruction that the jury “must” follow the law as stated by the court. In jury nullification instruction. The defendant then reiterated his objection to Following the hearing, t he trial court announced that it wou ld not give a

a does not compel th e court to give such an instruction. instruction using the language it had proposed, but observed that RSA 519:2 p. 3 3 its ability to nullify. The St ate did not object to giving a nullification Wentwo rth instruction is too subtle and does not adequately apprise the jury of defendant argued that the distinction between “must” and “should” within the State v. Wentworth, 118 N.H. 832, 839 (1978) (emphasis added). The

reasonable doubt, you should find the defend ant guilty. has proved all of the elements of the offense charged beyond a find the defendant not guilty. However, if you find that the State any one or more of the elements of the crime charged, you must If you have a reasonable doubt as to whether the State has proved p. 4 4

prior to the date it took effect. have no occasion to consider the question of whether the statute applies to offenses committed The State does not contest the applicability of this statute to the offenses at issue. Thus, we 2

the law – the prerogative which, the de fendant claims, lies at the heart of jury decidedly not a direction that the jury is to have the right to sit in ju dgment of jury of its right to judge the applicat ion of th e law in relation to the facts, is language in both the statute and the preamble, which speak s of informing the as to jury nullification. Second, and more importantly, the highlighted that purports to impose upon the trial court an y obligation to instruct the jury the arguments advanced by the defendant. First, neither contains languag e Two features of both the statute and the preamble stand out in regard to

Laws 2012, 2 p. 4 43:1 (emphasis added).

art icles 15 and 20, New Hampshire Bill of Rights. the rights of a criminal defendant, as enumerated in part 1, and recognized in the American jurisprudence, while preserving and reiterate the rights of the jury, as ordained under common la w the jury’s prerogatives. The general court wishes to perpetuate The jury system functions at its best when it is fully informed of application of the law in relationship to the facts in controversy. Supreme Court, the jury has the right to judge the facts and the both th e New Hampshire supreme court and the United States Findings and Intent of the General Court. Under the decisions of

statute, the legislature incl uded the following preamble: 519:23 - a (Supp. 2013) (emphasis added). In the session law enacting this and the application of the l aw in relation to the facts in controversy.” RSA court shall permit the defense to inform the jury of its right to judge the facts took effect on January 1, 2013. It states: “I n all criminal proceedings the 2 In 2012, the New Hampshire legislature enacted RSA 519:23 - a, which

isolation. Id. interpret a statute in the context of the overall statutory scheme and not in said n or add language it did not see fit to include. Id. Additionally, we statute as written and will neither consider what the legislature might have to its pl ain and ordinary meaning. Id. We interpret legislative intent from the language of the statute itself, and, if possible, construe that language according considered as a whole. Id. W hen interpreting statutes, w e look to the plain fi nal arbiters of the legislature’ s intent as expressed in the words of the statute review de novo. See State v. Addison, 160 N.H. 732, 75 p. 4 4 (2010). We are the Th e construction of RSA 519:23 - a presents a n issue of law, which we

codifies pre - existing law. We agree with the State. informed about nullification. The State asserts that RSA p. 5 519:23 - a merely 5

than conferring on the jury a right to judge or nullify the law, is consistent with Finally, construing RSA p. 5 519:23 - a as merely codifying existing law, rather

defendant to inform the jury of this right. See Laws 2012, ch. 243. enac ted in 2012, contained only the requirement that the court permit the and the application of the law to the facts in controversy, and, as ultimately the requirement that the court instruct the jury of its right to judge the facts further amended to make it applicable only to criminal cases and to eliminate defendant to explain this right to the jury. See id. Thereafter, the bill was application of t he law to the facts, and requiring the court to permit the requiring the court to instruct the jury of its right to judge the facts and the [the jurors] find to be unjust.” See id. at 341. Substituted was language granting the jury the right to “judge the law” and to “nullify any and all actions recommitted to the committee, where it was amended to remove the language committee’s recommendation came before the full House, the bill was unquestioned right of nullification without misleading it.” I d. When the the so - called ‘ Wentworth ’ instruction.. . adequately informs the jury of its of the law in the case actually before it. The committee furthe r concluded that incorrectly instruct the jury to put the law on trial rather than the application 281 (2011). “The committee concluded that, as d rafted, this bill would recommend that the bill was “inexpedient to legislate” (ITL). See N. H. H. R. Jour. Following public hearing, the House Judiciary Committee voted 1 p. 5 5 - 0 to

right of jury nullification to the jury. to permit the defendant or counsel for the defendant to explain this any and all actions they find to be unjust. The court is mandated inherent right to judge the law as well as the facts and to nullify In all court proceedings the court shall instruct the jury of its

the right to judge both the facts and the law. It stated: originally drafted, HB 146 contained language that would have given the jury session of the legislature as House Bill (HB) 146. See Laws 2012, ch. 243. As legislation that ultimately became RSA p. 5 519:2 3 - a was introduced in the 2011 makes plain the limited intent of the legislature to codify existing law. The history of the statute is particularly instructive in this case. That history Altho ugh we do not find RSA 519:23 - a to be ambiguous, the legislative

the application of the law to the fact, and the decision of the law by the jury”). J.) (criticizing some courts and lawyers for “a failure to discriminate between just verdict.”); see also Pierce v. The State, 13 N.H. p. 5 53 p. 6 6, 549 (1843) (Gilchrist, given to you in these instructions to the facts and in this way reach a fair and Bar Assoc., Criminal Jury Instructions 1.01 (1985) (“You must apply the law must necessarily perform in every case in order to reach a verdict. See N.H. of determining how the law applies to the f acts as it has found them, which it Cir. 1972). Instead, the statute merely deli neates the jury’s traditional function nullification. Cf. United States v. Dougherty, 473 F.2d 1113, 1130 - 37 (D.C. 6

the defendant to make such an argument asking the jury to judge the law medically applied.” Nothing in RSA 519:23 - a required the trial court to p ermit the other hand there are several governments who are allowi ng it to be sense to you, that on one hand something has no medical application, yet, on notwithstan ding the law, arguing: “But ask yourself whether this law makes issue, counsel contended that the jury should find the defendant not guilty facts proved by the State at trial. Rather, as pertinent to the nullification of RSA chapter 318 - B that he was charged with violating did not apply to the In her closing, the defendant’s counsel did not argue that the provi sions

anything more. and, a s discussed above, nothing in RSA 5 19:23 - a required the court to do 132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction, particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown, within the sound discretion of the trial court depending on the facts of a instruction, and t he d ecision to give such an instruction, when requested, lies p. 6 629. The defendant is not entitled to a more specific ju ry nullification which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at (quotation omitted)). The trial court ordinarily gives the Wentworth instruction, (1984) (recognizing jury nullification to be “an his torical prero gative of the jury” and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203 jury to acquit, even if its verdict is contrary to the law as given by the judg e N.H. 625, 629 (2005). Rather, j ury nullification is the undisputed power of the right of the defendant nor a defense recognized by law. State v. Sanchez, 152 summarize that law. I t is well established that jury nullification is neither a pre - existing law regard ing the function of the jury in criminal cases, we briefly Having concluded that RSA 519:23 - a represents simply a codification of

criminal cases”). new doctrine was announced that the jury are not the judges of the law in the jury to ju dge the law, “was held to be illegal and unconstitutional, and the the common law of New Hampshire, which prior to that decision had permitted C.J.); s ee also State v. Hodge, 50 N.H. 510, 523 (18 p. 6 69) (noting that, in Pierce, is undoubted, and their exemption from accountability equally cle ar.”) (Parker, in all cases, without regard to the law or the evidence, for their power so t o do established a right to do that act, the jury might rightfully acquit the accused were true that the legal power to do an act, without legal accountability for it, jury, contrary to the instructions of the court.”) (Gilchrist, J.); id. at 5 p. 7 71 (“If it less, questions of constitutional law, should be decided by the verdict of the inconsistent with the spirit of the constitution that questions of law, and still See Pierce, 13 N.H. at 554 (“[I]t is the opinion of the court, that it is nullify the law, there would be a significant question as to its constitutionality. 620 (2011). Were RSA 519:23 - a interpreted to grant juries the right to judge or bringing it into conflict with the constitution. See Sta te v. Ploof, 162 N.H. 609, requires us, whenever reasonably possible, to construe a statute so as to avoid the doctrine of constitutional avoidance. This well - established doctrine 7

DALIANIS, C.J.