2013-0079 State of New Hampshire v. Myles Webster

eyewitness identification evidence and for a change of venue. We affirm. the Superior Court (Abramson, J.) erred by denying his motion s to suppress and resisting arrest, see RSA 642:2 (Supp. 2013). On appeal, he argues that armed robbery, see RSA 636:1 (2007); reckless conduct, see RSA 631:3 (2007); a jury of attempted murder, see RSA 629:1 (2007); RSA 630:1 (Supp. 2013); DALIANIS, C. J. The defendant, Myles Web ster, appeals his conviction by

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Stacey L. Pawlik, assistant attorney

No. 2013 - 079 Hillsborough - northern judicial district

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

photographs of the man who shot him. April, and, at that time, told the police that he had seen on television the subject in a news paper. Doherty was interviewed about the incident in statement. Martin mentioned to the police that she had seen a photograph of witnessed. A pproximately two weeks later, she was asked to give a recorded called the police on the night of the incident to tell them what she had she believed s he had seen shoot an officer the day before on March p. 2 21. Martin newspaper article and on the internet, she saw photographs of a man whom the police spoke with Edwards and Martin. Edwards told the police that, in a 22, the police released his booking photograph to the media. Later that day, The defendant was apprehended that evening, and at 4:44 a.m. on March

man being chased and observed him raise a gun to ward the officer. chasing a man toward her vehicle. For a few seconds, s he was able to see the intersection of Wayne and Rimmon Streets, when she observed a police offic er Holly Martin was sitting in her car, which was parked near the

feet away from him. testified that she clearly saw the shooter because she was only about twenty returned o utside and observed an officer lying on t he ground. Edwards handgun. She ran inside and heard many shots. After the shots subsided, she chasing someone. She saw th at person then “whip[ ] around” and raise a black when the shooting occurr ed. She heard people running and saw an officer Kimberly Edwards was on the porch of her Wayne Street apartment

subject’s fa ce. The subject then ran away. three feet away from Doherty, who testified that he could clearly see the Doherty as he did so. When th e shooting stopped, the subject was only two or Doherty returned fire. The subject repeatedly shot Doherty, moving closer to waistband and shot Doherty. Doherty fell backward. While l ying on his back, within t hree - to - five feet of the subject, the subject pulled a gun out of his The two ran across Dubuque Street to Wayne Street. After Doherty got

then radioed for assistance. yelled, “Police, show me your hands!” Doherty pursued the subject on foot and clearly saw the subject’s face. The suspect started running when Doherty subject was about thirty feet away from Doherty, and Doherty testified that he on Dubuque Street. He exited his cruiser and walked toward the subject. The request for assistance in detaining a subject. Doherty saw the subject walking March p. 2 21, 2012, Manchester Police Officer Daniel Doherty respon ded to a The trial court found, or the record establishes, the following facts. O n

A. Background

I. Motion to Suppress p. 3 3

attenti on, the accuracy of the witness’ prior description of the criminal, the opportunity “to view the criminal at the time of the crime, th e witness’ degree of considered in evaluating the likelihood of misidentification,” the witness’ 409 U.S. 188 (1972). See id. at 199 - 200 (listing, among the “factors to be reliable and admissible according to the factors enumerated in Neil v. Biggers, court identificatio ns by Doherty, Edwards, and Martin and found them to be In its order f ollowing the second hearing, the court evaluated the out - of -

procedure was unnecessarily suggestive. upon the above findings, the trial court determined that the identification arraignment,” the police acted impro perly by releasing the photograph. Based police department] released the photo graph mere hours before [his] public the fact that witnesses had yet to identify [the] defendant, and the fact that [the circumstances sur rounding this case,” including “the extensive media coverage, inc luding [his] booking photograph.” The court further found that “given the defendant as the shooter by referencing the photographs in the media, The court found that Doherty, Edwards, and Martin all “identified [the] response to media inquiries and in accordance with normal d epartment policy. the testimony of a police sergeant that the photograph was released in “mere hours before [the] defendant’s public arraignment.” The court credited booking photo “in a press rel ease at 4:44 a.m. on March 22, 2012,” which was circumstances.” The court found that the police released the defendant’s enforcement and were procured under unnecessarily suggestive identifications by Doherty, Edwards, and Martin “were arranged by law In its order f ollowing t he first hearing, the trial court ruled that the out - of - court The trial court held two hearings on the defendant’s motion to suppress.

15; U.S. CONST. amends. V, XIV. and federal constitutional rights to due process. See N.H. CONST. pt. I, art. into evidence of these out - of - court and in - court identifications violated his state by the pervasive media coverage.” The defendant argued that the admission [him] in a photo array or lineup” and because “their memories [were] affected identifications would be “unreliable because they were no t asked to identify identifications made by other eye witnesses, arguing that their in - court Additionally, the defendant sought to preclude initial in - court

unnecessarily suggestive out - of - court identifications. that such identifications would have been irreparably tainted by the to preclude these witnesses from identifying him in court during trial, arguing first using non - sugges tive identification procedures. The defendant also sought releasing his booking photograph before interviewi ng the witnesses and without using an unnecessarily suggestive identification procedure that entailed Manchester Police Department procured those out - of - court identifications by identifications m ade by D oherty, Edwards, and Martin. He argued that the Before trial, the defendant moved to suppress the out - of - court p. 4 4

decision.” (quotation and brackets omitted)). mistaken grounds, we will affirm if valid alternative grounds support the N. H. 5 p. 4 44, 552 (2013) (“Where the trial court reaches the correct result on an unnecessarily suggestive identification procedure. See State v. Dion, 164 contrary to the trial court’s finding, those identifications were not the result of analyzing the out - of - court examinations under the Biggers factors because, We first consider whether, as the State contends, the trial court erred by

1. Out - of - C ourt Identifications

the identification unreliable and, hence, inadmissible. Id. determine whether the identification procedure was so suggestive as to render defendant has met t his burden must we then consider the Biggers factors to identification procedure was un necessarily suggestive. Id. Only if the process of law. Id. The defendant has the initial burden of proving that the to irreparable mistaken identification that the defendant was denied due ident ification procedures used were so unnecessarily suggestive and conducive N.H. p. 4 400, 404 (2012). In making this determination, we ask whether the conclude that it is contrary to the weight of the evidence.” State v. Perri, 164 will not overturn the trial court’s ruling unless, after reviewing the record, we 33 (1983). “On appeal from a motion to suppress identificatio n evidence, we rely upon federa l law only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - We first address the defendant’s claim s under the State Constitution and

unnecessarily su ggestive identification procedure. things, that the trial court erred when it determined that the police used an pt. I, art. 15; U.S. CONST. amends. V, XIV. The State argues, among other argues, violated the State and Federal Due Process Clauses. See N.H. CONST. police. The admission of the out - of - court and in - court identifica tions, he made by witnesses who had not previously identif ied the defendant to the erred by declining to apply the Biggers factors to the in - court identifications because it misapplied the Biggers factors. Second, he asserts that the court out - of - court identifications by Doherty, Edwards, and Martin were admissible The defendant first contends that the court erroneously found that the

B. Analysis

defendant’s mot ion to suppress. v. Perry, 166 N.H. 717, 721 (201 p. 4 4). The court, therefore, denied the of other witnesses. See State v. King, 1 p. 5 56 N.H. 371, 376 (2007); see also State also ruled tha t the Biggers factors did not apply to the in - court identifications propriety of any in - court identification” made by those witnesses. The court concluded, the court determined that it had “no need to separately examine the length of time between th e crime and the confrontation”). Having so level of certainty demonstrated by the witness at the confron tation, and the 5

beca use the viewing itself “is not engineered by [the] prosecution or law ordinarily constitute an impermissibly suggestive identification procedure” witness’ [s] viewing of a suspect’s photograph through the media does not state action as contemplated by Biggers.” Id. As one cou rt has explained, “A releasing the booking photograph was improper, “this is not a case involving 3797 p. 5 597, at *8 (Tex. Crim. App. Aug. 28, 2012). Even if we assume that 00248 - CR, 03 - 11 - 00249 - CR, 03 - 11 - 00250 - CR, 03 - 11 - 00251 - CR, 2012 WL defendant’ s booking photograph. Bell v. State, Nos. 03 - 11 - 00247 - CR, 03 - 11 eyewitnesses, Doherty, Edwards, and Martin, “of [their] own accord,” saw the did not constitute an unnecessarily suggestive identification procedure. The Here, we conclude that the release of the defendant’s booking photograph

conduct. See id. at 724 - 28. trigger a Biggers analysis because they were not created by improper police Perry, 132 S. Ct. at 727 - 28. Suggestive circumstances such as those do not

crime. defendant was the person the witness observed committing the circumstances might have “suggested” to the wit ness that the saw him on the day and in the vicinity of the crime. Any of these witness knew that the defendant ran with the wrong crowd and report implicating the defendant in the crime. Or suppose the defendant in the press captioned “theft suspect,” o r hearing a radio defendant to police officers after seeing a photograph of the circumstances. For example, suppose a witness identifies the volunteered by witnesses are also likely to involve suggestive Indeed, all in - court identifications do. Out - of - cour t identifications Most eyewitness identifications involve some element of suggestion.

In Perry, the C ourt explained:

out - of - court identification in the absence of improper state action). (2010) (holding that the Biggers analysis does not ap ply to either in - court or Id. at 728 (emphasis added); see also State v. Addison, 1 p. 6 60 N.H. 792, 801 - 02 evidence for reliability before allowing the jury to assess its creditworthiness.” state conduct, warrant a due process ru le requiring a trial court to screen such “The fallibility of eyewitness evidence does not, without the taint of improper circumstances arranged by law enforcement.” Id. at 730 (emphasis added). when the i dentification was not procured under unnecessarily suggestive a preliminary judicial inquiry into the reliability of an eyewitness identification Perry, 132 S. Ct. at 72 p. 5 5. It held that “the Due Process Clause does not require reliability any time an identification is made un der suggestive circumstances.” “support[] a rule requiring trial judges to prescreen eyewitness evidence for Supreme Court rejected the contention that its identification decisions In Perry v. New Hampshire, 132 S. Ct. 716 (2012), the United States 6

identific ations made by witnesses who had not previously made out - of - court erred when it declined to apply the Biggers factors to the in - court We next determine whether, as the defendant contends, the trial court

2. In - C ourt Identifications

affirm its ruling. court for its admission of the evidence of the out - of - court identifications, we reasonable doubt. Accordingly, notwithstanding the reasons given by the trial that the State had the burden of proving the defendant’s guilt beyond a identification evidence. In addition, the court instructed the jury several times court gave the jury a lengthy instruction on the fallibility of eyewitness their out - of - court identifications. Moreover, as requested by the defendant, the defendant vigorously cross - examined Doherty, Edwards, and Martin about Indeed, many of the safeguards identified in Perry were used in this case. The requirement that guilt be proven beyond a reasonable doubt.” Id. at 721. and jury instructions on both the fa llibility of eyewitness identification and the purpose, notably . . . vigorous cross - examination, protective rules of evidence, reliability through the rights and opportunities generally designed for that impermissibly sugges tive identification procedure, “it suffice[d] to test [their] Because the out - of - court identifications were not the result of an

S. Ct. at 724 - 28, we reach the same conclusion under the Federal Constitution. rights than the State Constitution under these circumstances, see Perry, 132 Because the Federal Constitution is no more protective of the de fendant’s defendant’ s argument that the trial court misapplied the Biggers factors. Martin to the Biggers test. In light of our decision, we need not consider the subjected the out - of - court identific ations made by Doherty, Edwards, and the meaning of Biggers. Accordingly, the trial court also erred when it releasing the defendant’s booking photograph constituted state action within Therefore, we hold that the trial court erred when it determined that

media outlets by police). within meaning of Biggers, even though photograph had been disseminated to (newscast showing “mug shot” photograph of defendant was not s tate action CA - CR 2005 - 0 335, 200 p. 7 7 WL 55783 p. 6 61 (Ariz. Ct. App. Sept. 21, 2007), at *4 serendipitous viewing of [his] picture on television”); State v. Miramon, No. 2 Defendant’s arrest” and did not “arrange for or encourage the victim’s not “state action” when State “was not responsible for the media coverage of (Ariz. Ct. App. Oct. 18, 2007) (concluding that police release of photograph was Biggers. See State v. Kennedy, No. 1 CA - CR 06 - 05 56, 2007 WL 5209493, at * 2 that photograph by a witness, there is no state action within the meaning of media, absent evidence that law enforce ment also orchestrated the viewing of Although law enforcement may have disseminated the photograph to the enforcement agencies.” O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001). 7

change of venue, arguing that a change was required because the crime with Also before trial, over the State’s objection, t he defendant moved for a

peremptory challenges. deciding that, as set forth in RSA 606:3, he was entitled to no more than three The court denied the defendant’s request for additional peremptory challenges, prospective jurors, but not outside the pre sence of other prospective jurors. motion in part, ordering that the attorneys would be allowed to question attorneys in this case.” Following a hearing, t he court granted the defendant’s form of voir d ire, which would permit some individual questioning by the procedures were not warranted, but stating that it did not object to “a hybrid 606:3 (2001). The State partially objected, arguing that special jury - selection the potential jurors” and “to peremptor ily challenge up to 15 juror[s],” s ee RSA filed a motion requesting that his counsel be allowed “to individually voir dire The record establishes the following facts. Before trial, the defendant

A. Background

II. Motion for Change of Venue

Perry. See id. a t p. 7 7 21 - 23. invitation for the same reasons that we declined the defe ndant’s invitation in Perry, invites us to overrule King. See Perry, 166 N.H. at 721. We decline his also King, 156 N.H. at 376. Alternatively, the defendant, like the defendant in identification procedure before identifying a defendant in court. See id.; see that a defendant does not have the right to a non - suggestive pretrial We rejected a nearly identical argument in Perry, 166 N.H. at 720, explaining the witness in King was presented, before trial, with a “non - suggestive lineup.” The defendant argues that King is distinguishable from this case because

at p. 7 721. testing its reliability under the Biggers factors. See id.; see also Perry, 166 N.H. the trial court did not err in admitting the in - court identification without firs t constitutional concern.” Id. Accordingly, consistent with King, we hold that suggestiveness in the normal trial procedure. . . does not rise to the level of argument.” Id. at 376 (quotation omitted). We concluded that “[t]he inherent suggestiveness of an in - court identification is cross - examination and not apply to in - court identifications and that the remedy for any alleged join[ed] the apparent majority of courts in concluding that Neil v. Biggers does different considerations involved in pretrial and in - court identifications, we suggestive pretrial confrontation.” King, 156 N.H. at 374. “Based upon the applies to a strictly in - court identification not preceded by an impermissibly identifications. In King, we addressed whether the “two - step [Biggers] analysis 376, when it found the Biggers analysis inapplicable to the in - court identifications. The trial court relied upon our decision in King, 156 N.H. at p. 8 8

N.H. CONST. pt. I, art. 17; see N.H. CONST. pt. I, art. 35 (“It i s the right of

obtained. county or judicial district in which a fair and impartial trial can be offense may be committed, the court shall direct the trial to a court that a fair and impartial trial cannot be had where the district, upon motion by the defendant, and after a finding by the committed; except in any case in any particular county or judicial any other county or judicial district than that in which it is estate of the citizen, that no crime or offense ought to be tried in they happened, is so essential to the security of the life, liberty and In criminal prosecutions, the trial of facts, in the vicinity where

Hampshire Constitution provides: 165 N.H. 3 p. 8 81, 425 (2013) (quotation omitted). Part I, Article 17 of the New receive a trial by a fair and impartial jury.” State v. Addison (Capital Murder), “It is well established that due process requires that an accused must

U.S. CONST. amends. V, VI, XIV. jury and entitle s him to a new trial. See N.H. CONST. pt. I, arts. 15, 17, 35; s tate and f ederal c onstitutional rights to due process and a fair and impartial individual juror voir dire and /or additional p er emptory challenges, violated his change venue, prece ded by the denials of his motion for attorney - conducted, The defendant contends that the trial court’s denial of his motion to

B. Analysis

inherently prejudicial. pretrial publicity, including facts about his criminal background, was court rejected the defe ndant’s assertion that the information revealed in the defendant “failed to submit any evidence” to support that claim. Finally, the connection to the citizenry of Manchester,” the court observed that the because the victim was a police officer, he had “a much more personal substantially since that time.” Although the defendant cont ended that, immediately after the shooting in March 2012 and has diminished found that “the media coverage surrounding this case was most extensive and of the progress o f investigations.” (Quotation omitted.) The court further submitted consists of straightforward, unemotional factual accounts of events the defendant, the court concluded that “the overwhelming bulk of the material absent a change of venue. After reviewing the media compilation submitted by the defendant failed to prove that he could not receive a fair and impartial jury the jury pool. Following a hearing on th at motion, the court determined that prospective venire resides” and t hat “inflammatory” media coverage had tainted wave of public passion, outcry, and outrage in the commun ity in which the which he was charged – shooting a Manchester police officer – “set in motion a p. 9 9

with the capital murder of Manchester P olice O fficer Michael Briggs and was venue was compelled. Id. For instance, t he defendant in Addison was charged We have never found inherent prejudice in a case such that a ch ange of

finding presumptive prejudice.” Id. at 428 (quotation omitted). is the adverse nature of the publicity, not merely its quantity, that is critical in adverse publicity attends only the extreme c ase.” Id. (quotation omitted). “[I]t Id. (quotation and brackets omitted). “A presumption of prejudic e because of jury was drawn as to render it virtually impossible to obtain an impartial jury.” publicity about a case so saturated the community from wh ich the defendant’ s “P rejudice may properly be presumed where prejudicial, inflammatory

unless it amounts to manifest error. Id. (quotation omitted). Accordingly, we will not reverse the trial court’s decision of the depth and extent of news stories that might influence a juror.” Id. and brings to his evaluation of any such claim of prejudice his own perception that court sits in the locale where the publicity is said to have had its effect, court makes good sense.” Id. (quotation and ellipsis omitted). “The judge of respect to pretrial pu blicity[,] primary reliance on the judgment of the trial entitled to special deference.” Id. (quotation omitted). “Particularly with “A trial court’s determination of the impartiality of the selected jurors is

insufficient to ensure an unbiased jury “despite the publicity about the case.” additional p er emptory challenges, “[t]he jury selection process he received” was denials of his r equests for attorney - conducted, individual juror voir dire and /or 427 (quotation omitted). The defendant asserts that in light of the trial court’s such cases the defendant need not show actual identifiable pr ejudice.” Id. at the trial atmosphere that it will necessarily result in lack of due process. In Inherent prejudice “exists when the publicity by its nature has so tainted

Addison, 165 N.H. at 426 - 27. Here, the defendant argues only the former. accused’s rig ht to a fair trial: inherent prejudice and actual prejudice. Publicity about a case can result in two types of preju dice with regard to the rely upon federal law only to aid our analysis. See Ball, 124 N.H. at 231 - 33. We first address the defendant’s claim under the State Constitution and

protection as the Federal Constit ution.” Id. (quotation and ellipses omitted). (quotation omitted). “In this way [,] Part I, Article 17 provides the same level of venue, the defendant has an absolute right to a change of venue.” Id. Accordingly, “upon proof that a fair trial cannot be had in the place of proper cannot obtain a fair trial there.” Addison, 165 N.H. at 426 (quotation omitted). wa s committed and the right to obtain a change of venue upon proof that he 17 grants a criminal defendant two rights: the right to be tried where the crime admit”); see also U.S. CONST. amend VI. As we have explained, “Part I, Article every citizen to be tried by judges as impartial as the lot of humanity will p. 10 10

of prejudice arose from the pretrial publicity. See Addison, 165 N.H. at 433. circumstances, we conclude that he has failed to establish that a presumption substantially since that time.” (Quotation omitted.) Under these immediately after the shooting in March 2012 and ha [d] diminished and that “the media coverage surround ing this case was most extensive unemotional factual accounts of events and of the progress of investigations,” erred when it found the material he submitted consisted of “straightforward, Gribble, 165 N. H. at 19 - 28. Moreover, he has not argued that the trial court “greater or more inflammatory” than that in Addison, 165 N.H. at 425 - 33 or The defendant here concedes that the publicity in his case was not

Id. at 28. publicity in the case was insufficient to establish a presumption of prejudice. accounts of the crimes.” Id. at 21. Accordingly, w e held that the pretri al agreed with the trial court that most consisted of “straightforward, factual accusatory in content and included graphic descriptions of the crimes,” we by reason of insanity.” Id. Although “some of the news reports were admitted that he committed the crimes charged but [that he] pleaded not guilty “[s]ever al articles and a local television station . . . reported that the defendant 15 (quotation, brackets, and ellipsis omitted). After Spader’s conviction, the right side of Cates’ throat” and then on the other side of her throat. Id. at conspirator testified that he saw “[the defendant] take his knife and put it on in the trial of one of the defendant’s co - conspirators, Steven Spader, a third co - “deprav[ed].” Id. at 21 (quotations omitted). Media accounts also related that, Other accounts described it as “vicious,” “savage,” “gruesome,” “horrific,” and Id. at 15. One article described the murder as “grisly.” Id. (quotation omitted). The crimes in th at case “generated an extensive amount of media coverage.” Vernon, which resulted in the death of Kimberly Cates. Gribble, 165 N.H. at 5. among other crimes, first degree murder ari sing out of a home invasion in Mont The defendant in State v. G ribble, 165 N.H. 1 (2013), was charged with,

a presumption of prejudice.” Id. at 433 (quotation omitted). emo tionally charged, inflammatory, sensationalistic coverage needed to support extensive media coverage, the defendant had “not presented us with the type of Id. at 422. We upheld the trial court’s decision, concluding that, despite the circumstances, the court denied the defendant’s motion for a change in venue. defendant in a way that could be described as prejudicial.” Id. Under those Officer Briggs had an emotional tone, very few related facts about the court found that “some of the articles a nd television clips about the death of that raises a concern about inherent prejudice.” Id. at 423. Although the it was “voluminous, . . . it [was] not the kind of adverse inflammatory publicity defendant submitted to support his motion, the trial court found that, although facing the death penalty. Id. at 4 p. 11 11. Upon reviewing the material the 11

here has not attempted to demonstrate that the community from which the Further, u nlike the defendants in Addison and Gribble, the defendant

pro spective jurors. attorneys to question individual prospective jurors in the presence of the other charged with either capital or first deg ree murder, the trial court allowed the 2014, 40:1 (effective Jan. 1, 2015). Here, although the defendant was not murder cases.” State v. Wamala, 158 N.H. 583, 592 (2009). But see Laws voir dire is cond ucted solely by the trial judge, except in capital and first - degree challenges). Moreover, “[t] he practice in New Hampshire has been that jury to fifteen, and a defendant in any other criminal case to three, peremptory defendant in a capital case to twenty, a defendant in a first degree murder case did because they were entitled to them by statute. See RSA 606:3 (entitl ing a defendants in Addison and Gribble had more peremptory challenges than he Addison and Gribble is of no moment. As the defendant a cknowledges, the not receive the same jury selection procedures as did the defendants in selection procedures,” which were denied him. The fact that the defendant did Gribble because the defendants in those cases were “afforded extensive jury The defendant merely argues that “his case differs from” Addison and

Skilling, 561 U.S. at 386 (citation omitted); Gribble, 165 N.H. at 24.

member ’ s fitness for jury service. court a more intimate and immediate basis for assessing a venire by the appellate court, the in - the - moment voir dire affords the trial apprehension of duty. In contrast to the cold transcript received inflection, sincerity, demeanor, candor, body language, and capture fully in the record — am ong them, the prospective juror’ s appraisal is ordinarily influe nced by a host of factors impossible to the tria l judge’ s estimation of a juror’s impartiality, for that judge’ s Reviewing courts are properly resistant to second - guessing

the Supreme Court: province o f the trial judge” (quotation omitted)). Accordingly, as recognized by 386 (2010) (observing that “[j] ury selection . . . is p articularly within th e trial court on voir dire. Id. at 24; see Skilling v. United States, 561 U.S. 353, free from prejudice is a determination to be made in the first instance by the 24 (quotations, citation, and brackets omitted). Whether a prospective jur or is dictates the necessary d epth or breadth of voir dire.” Gribble, 165 N.H. at 23 within the sound discretion of the trial court, and no hard - and - fast formula Gribble, 165 N.H. at 23. “The manner in which voir dire is conducted is wholly Manchester, we conclude that this argument is also unavailing. See id.; insufficient to eliminate the prejudice to him from trying the case in case permeated the venire and that the voir dire process used by the court was To the extent that the defendant argues that the pretrial publicity in this p. 12 12

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

constitutions. see Gribble, 165 N.H. at 28, we reach the same result under both greater protection than does the State Constitution under these circumstances, individual juror voir dire. As the Federal Constitution offers t he defendant no his motion for additional peremptory challenges and/or attorney - conducted, denial of the defendant’s motion for a change of venue, fol lowing its denial of Accordingly, we hold that there was no manifest error in the trial court’s

Gribble, 165 N.H. at 23 - 28. drawing an unbiased jury was impossible. See Addison, 165 N.H. at 433 - 39; jury was drawn was so hostile, as a result of pervasive media coverage, that