2015-0338, The State of New Hampshire v. Terry Adams, Jr.

misconduct. We affirm. (3) prohibiting him from intro ducing evidence of alleged prosecutorial charge; (2) d enying his motion to introduce exculpatory evidence at trial; and recalling the jury to correct an error in the verdict on the reckless conduct (Schu lman, J.). The defendant argues that the trial court erred by: (1) assault, RSA 631:2 - a (2007), following a jury trial in Superior Court convictions of reckless conduct, RSA 631:3 (2007) (amended 2014), and simple DALIANIS, C. J. The defendant, Terry Adams, Jr., appeals from his

Gleason on the brief and orally), for the defendant. Gleason Law Offices, P.C., of Haverhill, Massachusetts (Thomas J.

and orally), for the State. Joseph A. Foster, attorney general (Sean R. Locke, attorney, on the brief

No. 2015 - 0338 Rockingham

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

second verdict. Following a hearing, t h e trial court denied the motion. The rendered by the jury on the reckless conduct charge and to set aside the The d efendant subsequently moved to enforce the original verdict

juror individually responded, “Guilty.” The trial court then dismissed the jury. his or her verdict with respect to the charge of reckless conduct, to which each collectively replied, “Yes.” The clerk then asked each individual juror to state the jury, “S o say you all, ladies and gentlemen of the jury,” to which the jur ors reckless conduct,” to which the foreperson answered, “Guilty.” The c lerk asked then asked the foreperson “is the Defendant guilty or not guilty of the charge of the right verdict from each juror, so there’s no misunderstandi ng.” The clerk that there’s any discrepancy, we will poll the jury to make sure that we have believed she heard. We’re going to take the verdict again, and to the extent the jury that “[w]hen we took the ve rdict, the Clerk wrote down what she The jury returned to the courtroom at 3:56 p.m. The court explained to

verdict again on the reckless conduct charge, [and] poll the jury.” asked, and announced that it was going to “bring the jury back, take the the courtroom at 3:5 p. 2 2 p.m. The court explained what the fore person had immediately ended its discussion with the jurors and reconvened the parties in “guil ty” on the reckless conduct char ge as he said he intended. The court fore person “almost immediately” asked whether the court hear d him say T he trial court then met with the jury in the deliberation room and the

court recessed at 3:48 p.m. with trial counsel as to the jury’s verdict on the simple assault charge, and the the jury left the courtroom at 3:43 p.m., the court conducted a b ail hearing deliberation room so that the court could “thank them” for their service. After court told the jury they were “free to go,” but invited the jurors to return to the guilty,’ until [it] observed the Clerk write down the words ‘not guilty.’” The trial “not guilty.” The trial court “was not sure whether the foreperson said ‘not and recorded the verdict as such. The defendant and defense counsel heard his throat or stumbled over his word s. The clerk heard the words “not guilty” foreperson announced the verdict on the reckless conduct charge, he cleared returned to the courtroom with its verdict at 3:41 p.m. When the jury trial court and began its deli berations at approximately 11: p. 2 21 a.m. The jury A t the close of a two - day trial, the jury received its instructions from the

grabbing her around her neck and throat area.” in that he “knowingly caused unprivileged physical contact to [the victim] by said vehicle being a deadly wea pon.” He was a lso charged with simple assault open, thereby causing [the victim] to fall from the vehicle onto the roadway, [victim]. . . was not completely inside said vehicle, and the passenger door was operating a motor vehicle, accelerating from a stopped position while the November 9, p. 2 201 p. 3 3, the defendant was charged with reckless conduct “by The relevant facts follow. Based upon an incident that occurred on 3

v. Santiago, 159 N.H. 75 p. 3 3, 758 (2010) (ruling that trial court did not “The discretion of the trial court in this respect is broad.” Id.; see State

279, 281 (1975) (quotation and ellipses omitted). some mistake which produced their verdict.” Bothwick v. LaBelle, 115 N.H. be exercised whenever [the court] is of the opinion the jury may have made Rather, “[t]he power of the trial court to reconvene and interrogate a jury may power to recall the jury is “one of the general supervisory powers of the court”). p. 3 303; see Caldwell v. Ye atman, 91 N.H. 150, 155 (1940) (explaining that the not necessarily disable them to undo the i njustice of such a mistake.” Id. at render all [the verdict’s] errors incurable; and the separation of jurors . . . does recognized that “[t]he recording of an erroneous verdict . . . does not necessarily separation; but in this state a different practice prevails.”). This court has jurisdictions a recorded verdict cannot be amended by the jury after thei r Hampshire. See Dearborn v. Newhall, 63 N.H. 301, 302 - 03 (1884) (“In some the jury has been discharged.” Such a bright - line rule is not the law in New no juror registers dissent,” the trial court may not seek “clarification . . . after final when deliberations are over, the re sult is announced in open court, and We reject the defendant’s assertion that because “[a] verdict is valid and

verdict the first time.” the jury so that it could correct an error that arose when the jury read the discharged and the trial court sustainably ex ercised its discretion by recalling the protective shield of the court and re - entered the public it had not been not guilty.” The State argues that “because the jury in this case had not left circumstances,” the trial court erred by “allow [ing] the jury to alter its verdict of the jury was formally discharged.” H e asserts that “[u]nder these by the Foreman, collectively endorsed by the jurors, recorded by the Clerk and the reckless conduct charge “was final and irrevocable after it was announced On appeal, the defendant argues that the jury’s “not guilty” verdict on

purpose of clarifying its verdict.” verdict.” Thus, the court reasoned, “it was proper to recall the jury for the the jury recog nized that its foreperson failed to properly annunciate the actual was not exposed to any improper influences.” The court “also conclude [d] that case, (b) the jury did not reconsider or alter its actual verdict, and (c) the jury concluded that “(a) the jury did not have the opportunity to re - deliberate the discharged after they first announced their verdict.” Nonetheless, the court The trial court acknowledged that “the jurors were told they were

offense.” he neither said, nor meant to say [,] that the defendant was not guilty of the the foreperson “certainly made some sort of noise prior to say ing ‘guilty [,] ’ . . . with respect to the Reckless Conduct charge.” The court stated that although dozen times” and had “concluded that the foreperson did not say ‘not guilty’ court noted that it had “since listened to th e audio tape of the verdict at least a p. 4 4

that crime. The defendant asserts that such evidence was a dmissible under specifics of the event, including that it was the defendant who was the victim of convicted of burglary, it did not allow the defense to int roduce evidence of the defense to introduce evidence that the victim had been charged with and giving rise to the charges in this case. Although the trial court allowed the home approximately three weeks after the incident on November 9, 2013, motion to introduce evidence that the victim had burglarized the defendant’s The defendant next argues that the trial court erred when it denied his

address it. See State v. Chick, 1 p. 4 41 N.H. 503, 504 (1996). fails to adequately develop his legal argument, and, therefore, we decline to his double jeopardy rights, under both the F ederal and State Constitutions,” he constituted a violation of his “rights to due process of law and a fair trial and (2003). Likewise, although t he defendant asserts that reconvening t he jury develop that argument fo r our review. See State v. Blackmer, 149 N.H. 47, 49 ended subjected the jury to “outside influences,” he does not sufficiently law, the presence of the alternate juror in the jury room after the trial had error in the verdict. To the extent the defendant argues that, as a matter of court unsu stainably exercised its discretion to reconvene the jury to correct an The record supports these findings, and we are not per suaded that the trial

time for even the briefest re - deliberation. there is no evi dence that she did), there was clearly insufficient by the alternate, but even if she wished to dispute the verdict (and exposure to anybody other than the bailiff. They were then joined world. They went from the courtroom to the jury room and had no time, they had no acces s to, or communication with the outside and the time they were recalled to clarify their verdict. During that only a few minutes elapsed between the time of their “discharge”

Here, the trial court found that exposure of juror s to “improper influences.” Drop Anchor, 126 N.H. at 683 - 8 p. 4 4. consider such factors as “the lapse of time since the close of trial” and the In considering whether to reconvene a jury, the trial court should

1 p. 5 59 N.H. at 757. clearly untenable or unreasonable to the prejudice of a party’s case.” Santiago, unsustainable exercise of discretion standard, and reverse only if the ruling is the court’s instructions). “We review the trial court’s decision under an motion to reconvene the jury to determine whether the jury members ignored that the trial court unsustainably exercised its discreti on by denying his Low, 138 N.H. 86, 88 (1993) (holding that the defendant failed to demonstrate the close of trial was “within the sound discretion of the trial court”); State v. (explaining that, in a civil case, whether to reconvene the jury five days after Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 67 p. 4 4, 683 (1985) unsustainably exercise its discret ion by declining to reconvene the jury); Drop 5

trouble associated with that and so I’m trying to maintain the motive side of defense counsel acknowledged: “[I] f I open the bias issue, I have a l ot of relationship of these parties,” and then “Pandora’s box gets open.” In response, to admit the evidence on grounds of bias, “the jury needs to see the full making a bias argument.” The court observed tha t if defense counsel did seek that’s evidence of their relationship, it’s evidence of bias . . . . You’re not defense counsel, “if one witness commits a felony against another witness, answered, “No. No, Jud ge. Just motive.” As t he trial court explain ed to whether the defense had any grounds, other than motive, defense counsel that the victim subsequently burglarized. When asked by the trial court upon bias as a ground for admitting evidence that it was the defendant’s home Furthermore, w e agree with the State that at trial the defen se did not rely

we affirm. exercised its discretion when it precluded him from presenting such evidence, defendant has failed to persuade us that the trial court unsustainably or misinterpreted his argument regarding the notice iss ue. Because the defendant never suggested to the trial court that the court had misunderstood November 28, 2013, approximately three weeks later. We note that the charges in this case t o her decision to burglarize the defendant’s home on connected her decision to report the November 9, 2013 incident underlying the court’s finding that the victim’s testimony did not show a common motive that We have reviewed the record and conclude that it supports the trial

burglary . . . on November 28 th.” don’t see a common motive between the report on November 9th and the because first of all, burglarizing his house doesn’t get him in jail. . . . I just when that didn’t happen to her satisfaction, she burglarized his house, November 9 th so that the Defendant would go to jail or get prosecuted. And that a jury could reasonably find that this witness told an untrue tale on November. That goes to bias.” T he court reasoned that it did not “see proof dislikes the Defendant. But that doesn’t go to mo tive to fabricate on the 9th of court explained, the burglary incident on November 28 “shows that [the victim] provides a motive for making a false report on November 9 th.” As the trial at least the burglary of his house, beating him up, and so on and so forth, concluded that it “[didn’t] see how what happened on the 28 th of November, or outside the presence of the jury. Following that voir dire, the trial court The tr ial court permitted the defense to conduct a voir dire of the victim

Kim, 1 p. 5 53 N.H. 322, 327 (200 p. 6 6). untenable or unreasonable to the prejudice of the defendant’s case. State v. unsustainable exercise of discretion, and will reverse only if it was clearly burglary rele vant under Rule 404(b).” We review the trial court’s ruling for an common motive that would make revealing the defendant as the victim of the and/or bias.” The State asserts that the defendant “failed to demonstrate a New Hampshire Rule of Evidence 404(b) “to show the alleged victim’s motive 6

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

decline to address this issue for the first time on appeal. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Accordingly, we demonstrate that he raised all of his appeal issues before the trial court. See defendant has the burden of providing this court with a record sufficient to presented to, or addressed by, t he trial court. As the appealing party, the prosecution,” the defendant has failed to demonstrate that this issue was the alleged victim . . . constitutes prosecutorial overreaching and/or selective “[t]he def ense believes that the simultaneous prosecution of the defendant and wanted to introduce” evidence of alleged prosecutorial overreaching, and that “prosecutorial overreaching.” Although he asserts that “[t]he defense . . . by not allowing the defense to introduce evidence regarding alleged The third issue raised by the defendant is whether the trial court erred

(quotation omitted); see also State v. Young, 144 N.H. 477, 484 - 85 (1999). and specific objection” and any obje ction not raised at trial is deemed waived Dodds, 159 N.H. 239, 244 (2009) (preservation requires a “contemporaneous show bias, that issue is not preserved for our appellate review. See State v. to the ex tent that the defendant argues that the evidence was admissible to entirely . . . uncontrolled.” Based upon the record before us, w e conclude that, the ledger because I think it applies[ ] [and] [b] ecause . . . bias just becomes