THE STATE OF NEW HAMPSHIRESUPREME COURT

No. 2008-0945

The State of New Hampshire

v.

Michael Addison(Capital Murder)

Appeal Pursuant to Rule 7 from Judgmentof the Hillsborough County Superior Court/North

BRIEF FOR THE STATE OF NEW HAMPSHIREVolume 2: Process-Related Issues

THE STATE OF NEW HAMPSHIRE

Michael A. DelaneyAttorney General

Peter Hinckley, NH Bar # 18708Assistant Attorney General

Janice K. Rundles, NH Bar #2218Senior Assistant Attorney General

Thomas E. Bocian, NH Bar # 16420Assistant Attorney General

Criminal Justice Bureau33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3671

(Oral Argument Requested)

VOLUME 2: TABLE OF CONTENTS

I. THE TRIAL COURT CORRECTLY DENIED THE DEFENDANT'SMOTION TO CHANGE THE VENUE OF HIS TRIAL BECAUSEHE FAILED TO DEMONSTRATE THAT THE PUBLICITYSURROUNDING HIS CASE WAS SO PERVASIVE THAT THECOURT EITHER COULD NOT, OR DID NOT, FIND ANUNBIASED JURY TO DECIDE HIS CASE 101

II. NEITHER THE STATE CONSTITUTION NOR ANY STATUTEREQUIRED THE TRIAL COURT TO GRANT TEN ADDITIONALPEREMPTORY STRIKES TO THE DEFENDANT AND FIVEADDITIONAL PEREMPTORY STRIKES TO THE STATE BEYONDTHOSE ALLOWED UNDER RSA 606:3, I, AND RSA 606:4, I. ..... 147

III. THE TRIAL COURT CORRECTLY REFUSED TO DISMISS TWOJURORS FOR CAUSE BECAUSE BOTH JURORS MADE CLEARTHAT THEY COULD DECIDE THE CASE FAIRLY AND WITHDUE REGARD TO THE COURT'S INSTRUCTIONS AND THEIROATH 164

IV. THE TRIAL COURT CORRECTLY PERMITIED THE STATE TOOFFER EVIDENCE OF THE CRIMES THAT THE DEFENDANTPERPETRATED IN THE DAYS LEADING UP TO BRIGGS'SMURDER BECAUSE SUCH EVIDENCE DEMONSTRATED THEDEFENDANT'S MOTIVE, INTENT, AND KNOWLEDGE, ALLTHREE OF WHICH WERE THE MOST HOTLY CONTESTEDISSUES AT TRIAL 198

V. THE TRIAL COURT'S INSTRUCTION ON REASONABLE DOUBTWAS AN ACCURATE STATEMENT OF THE LAW BECAUSE ITCORRECTLY DESCRIBED THE BURDEN OF PROOF,CORRECTLY STATED THE PRESUMPTION OF INNOCENCE,AND CLOSELY MODELED THE CHARGE THAT THIS COURTUPHELD IN STATE V. WENTWORTH 226

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ARGUMENT

I. THE TRIAL COURT CORRECTLY DENIED THE DEFENDANT’S MOTION TO CHANGE THE VENUE OF HIS TRIAL BECAUSE HE FAILED TO DEMONSTRATE THAT THE PUBLICITY SURROUNDING HIS CASE WAS SO PERVASIVE THAT THE COURT EITHER COULD NOT, OR DID NOT, FIND AN UNBIASED JURY TO DECIDE HIS CASE.

The defendant contends that the trial court erred by denying his

request to change the venue of his trial. DB 90. He asserts that the

jurors in his case were “exposed to an amount of adverse publicity

unprecedented in this state,” which rendered them “uniquely susceptible

to the State’s pleas for the condemnation of the murderer of a

Manchester police officer.” DB 90. Those assertions must be rejected.

Before trial, the defendant filed a motion to change the venue of his

trial. Def’s Mot. for Change of Venue (filed Apr. 20, 2008) (hereinafter

“DMCV”). He argued that Briggs’s murder “set in motion an

unprecedented wave of public passion, outcry and outrage in the

community in which the prospective jury venire resides.” DMCV at 1.

Such hostile sentiment, he argued, caused irreparable prejudice that

would prevent the court from being able to empanel a fair and impartial

jury to decide his case. DMCV at 25. In support of that position, he

pointed to ceremonies honoring Briggs, memorials to Briggs, statements

made by public officials concerning Briggs’s death, and the media

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coverage of events related to this case. See DMCV at 4-14; see generally

Attachments to DMCV.

The State objected. It argued that the defendant’s case had “not

received the notoriety of other New Hampshire cases where a change of

venue ha[d] been denied, such as the murder case against Pamela Smart

and the [then] ongoing murder case against Sheila LaBarre in

Rockingham County Superior Court.” State’s Obj. to Def’s Mot. for

Change of Venue (filed May 29, 2008) (hereinafter “SODMCV”). It pointed

out that the “overwhelming bulk of the media coverage, which the

defendant cite[d], [had] occurred over eighteen months [earlier], in the

immediate aftermath of the murder of Ofr. Briggs.” SODMCV at 2-3.

Further, the State pointed out, “the media coverage ha[d] been primarily

factual.” SODMCV at 3. The State also noted that the parties had been

able to select fair and impartial juries for the trials related to the El

Mexicano robbery, the 7-Eleven robbery, and the shooting on Edward J.

Roy Drive. SODMCV 6. In fact, in the trial arising out of the shooting on

Edward J. Roy Drive, a Manchester jury, far from demonstrating any sort

of bias or prejudice against the defendant, actually acquitted him of one

of the charges. TS 1068. Therefore, the State argued, the defendant had

failed to demonstrate any inherent prejudice. SODMCV 5. In the

alternative, the State asked the court to deny the motion until after jury

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selection so that the parties and the court could assess whether the

venire was, in fact, impermissibly tainted. SODMCV at 12.

The same day that the State filed its objection to the motion for a

change of venue, the defendant filed additional materials which, he

argued, supported his position. See Supp. Materials to Mot. for Change

of Venue (filed May 29, 2008). He included some articles from the Union

Leader, the transcript of a legislative debate on the death penalty,

materials from various community websites, and documents created by

an investigator from the public defender’s office. Id.

On June 12, 2008, the court convened a hearing on the

defendant’s motion. At the hearing, the defendant reiterated his belief

that he could not obtain a fair trial in Manchester. T(6/12) 5. In

support of his claim that the case had generated “unprecedented” media

publicity, he argued that some 211 articles from the Union Leader had

either the defendant or Briggs “as their focus or as a secondary

commentary in the particular story.” T(6/12) 8, 17, 20. He also pointed

out that the Union Leader had devoted a special section of its website to

the Briggs murder and that WMUR, New Hampshire’s ABC television

affiliate, had run some 133 stories concerning the Briggs murder.

T(6/12) 8, 10. With respect to WMUR, the defendant suggested that even

though it is the only major network affiliate for the entire state of New

Hampshire, the people of Manchester paid more attention to, or had

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more interest in, its broadcasts than did the rest of the state’s citizens.1

T(6/12) 12. The defendant also assigned significance to the fact that

Manchester police officers interact with Manchester residents,

businesses, and organizations. T(6/12) 13-14. And, he claimed to have

established that the LaBarre and Smart cases had generated less media

interest and publicity. T(6/12) 14, 16.

During the course of the defendant’s argument, the trial court

asked where he wanted to have the case tried. T(6/12) 22. He replied

that the parties would need to litigate that issue, T(6/12) 22, but that his

tentative view was that neither Manchester nor Merrimack County were

appropriate locations for the trial, T(6/12) 24. That response prompted

the court to ask, “So you’re saying if I granted your motion and I

designated a courthouse where the trial would take place, you wouldn’t

object? No more objections about it? Is that what you’re saying?”

T(6/12) 25. The defendant demurred. T(6/12) 25.

1 The defendant appears to resurrect that assertion or something similar in his appellate brief. DB 100. This Court should reject it. If Channel 9 is the only major television network affiliate that is broadcast from, and based out of, New Hampshire, then surely its telecasts are of interest to viewers statewide. It strains credulity to think that Manchester residents who watch Channel 9 possess some unique ability to view its telecasts with more attention and concern than the residents of, say, Keene, Concord, Nashua, Hanover, Berlin, or Portsmouth. See State v. Cooke, 910 A.2d 279, 287 (Del. Super. Ct. 2006) (noting that a defendant’s motion for change of venue was not supported by the record because “the statewide circulation of the newspaper publicity provided no reason to believe that a transfer of venue to New Castle County would have accomplished anything”).

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The court also inquired how a change of venue from the state’s

most ethnically diverse jurisdiction would affect the defendant’s

challenges to the racial composition of the venire. T(6/12) 22-23. The

defendant replied that the venue motion was “not really a racial diversity

motion. It’s a community motion.” T(6/12) at 26. He did not offer to

abandon his challenges to the racial composition of the jury or the venire

if the trial were moved to a less racially-diverse judicial district. See

T(6/12) 43 (State points out that the defendant had argued that he could

not get a jury that was sufficiently racially diverse if his trial went

forward in Manchester, yet he wanted to move his trial to a judicial

district that would have been even less racially diverse than Manchester).

For its part, the State largely reiterated the arguments that it had

advanced in its written objection. It contended that the publicity in the

instant case was comparable to Smart, T(6/12) 38, that any biased jurors

could be identified and dismissed through the voir dire process, T(6/12)

38, that “two-thirds” of the articles cited by the defense were published

“immediately after the murder,” T(6/12) 38, that there was no way to

know from where and by whom certain online comments had been

posted, T(6/12) 39, that many of the online comments were unfavorable

to both sides—not just the defendant, T(6/12) 41, and that residents

statewide would have been exposed to coverage from WMUR Channel 9,

T(6/12) 40.

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The trial court issued an eighteen-page order denying relief. See

Order on Def’s Mot. to Change Venue (filed June 25, 2008) (hereinafter,

“Order”). It began with several factual findings: (1) that “[m]uch of the

publicity surrounding this case occurred immediately after the shooting

of Officer Briggs,” (2) that the “articles and television clips [submitted by

the defendant were] largely factual, discussing developments in the

investigation of the death of Officer Briggs and subsequent charging and

prosecution of the defendant,” (3) that some of the articles at issue may

have contained inadmissible evidence or evidence about the defendant’s

criminal history, and (4) that the online comments posted on the Union

Leader website pertained to the defendant, to crime in Manchester, to the

Briggs family, to the death penalty in general, and to developments in the

defendant’s case. Order at 1-3.

The court then moved to its analysis. First, it rejected the

defendant’s efforts to cast state constitutional provisions concerning

venue as more protective than their federal counterparts, observing that

this Court already had decided that issue in Petition of the State of N.H.

(State v. Johanson), 156 N.H. 148, 154 (2007), and other cases. Order at

5-6. Next, the court noted that there are two types of prejudice that can

require a change of venue: inherent or presumed prejudice, and actual

prejudice. Order at 6. The court ruled that inherent prejudice exists

when either the voir dire demonstrates that the court must go to great

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lengths to find impartial jurors or the pretrial publicity is so

overwhelming and inflammatory that it generates a “huge wave of public

passion” against a defendant. Order at 7. The court concluded that

such overwhelming and inflammatory publicity was not present in this

case; therefore, there was not a “huge wave of public passion.” Id.

In support of its conclusion, the court stated that it had reviewed

all of the publicity that the defendant had submitted, but found that it

was “not the kind of adverse inflammatory publicity that raises a concern

about inherent prejudice.” Order at 10. It characterized the media

coverage as largely factual and found that very few stories “displayed

hostility towards the defendant” or “related facts about the defendant in

a way that could be described as prejudicial.” Order at 10. The court

noted that although some of the coverage revealed potentially

inadmissible evidence, both this Court and the United States Supreme

Court had held that revelations of inadmissible evidence, alone, are not a

sufficient basis to require a change of venue. Order at 11.

In addition, the court found that although there were

approximately seventy articles about the Briggs murder in October 2006,

that number had diminished to ten in May 2008. Order at 11. The court

further noted that the nature of the stories had changed over time from

more emotional stories about the Briggs family and death to “rather dry

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accounts of pleadings that ha[d] been filed and the hearings and rulings

on those pleadings.” Order at 12.

With respect to the website comments that the defendant cited, the

court found that many were anonymous, that people had used the

comments to “express their opinions more than once,” that “the number

of persons who participate on the webboards is certainly fewer than the

number of comments,” and that the relatively “low number of

inflammatory comments, in a judicial district of more than 190,000

people, [did] not signal inherent community prejudice.” Order at 14.

Finally, the court noted that it had been able to “test the effect of

pre-trial publicity on jurors” in Manchester and Nashua through the

trials arising out of the El Mexicano robbery, the 7-Eleven robbery, and

the shooting on Edward J. Roy Drive. Order at 15. Based upon its

experience in those cases, the court found that only twelve to twenty

percent of jurors believed that the defendant was guilty before hearing

any evidence and it noted that such percentages were well below those in

which courts had required a change of venue. Order at 16.2

The defendant then petitioned this Court to exercise its original

jurisdiction and to order the trial court to grant a change of venue. Pet.

For Orig. Juris.: To Vacate Trial Court’s Erroneous Denial of Mot. for

2 The court also noted that the defendant’s position on venue was “at odds” with his argument that a less racially diverse jury would be less likely to judge his case fairly. Order at 18.

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Change of Venue (filed July 8, 2008). This Court denied the petition by

order dated July 24, 2008. (N.H. Sup. Ct. No. 2008-489). The parties

then proceeded through the voir dire process, the result of which was the

selection of a jury consisting of eighteen members, only one of whom the

defendant unsuccessfully challenged for cause. JS 2651-54. And with

respect to that juror, after the trial court denied the for-cause challenge,

the defendant did not exercise a peremptory strike. Further, he has not

contended on appeal that the denial of his for-cause challenge was

erroneous.

After jury selection, the defendant renewed his motion for a change

of venue. Renewed Mot. for Change of Venue (filed Oct. 17, 2008)

(hereinafter “RMCV”). In his pleading, he recast the precise nature of his

initial motion for a change of venue, asserting that its basis was more the

allegedly hostile community sentiment that had developed instead of the

level and nature of the pretrial publicity. RMCV at 1. He further

asserted that the responses that the veniremen gave both in court and

on the questionnaires that they completed tended to demonstrate that

the community was against him and that any trial would be unfair.

RMCV at 2-6.

The State opposed the defendant’s motion, arguing that he had

“selectively culled” responses from the prospective jurors to make the

venire appear more hostile to him than it actually was. State’s Obj. to

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Def’s Renewed Mot. for Change of Venue at 4 (filed Oct. 20, 2008). The

State further asserted that “[t]he vast majority of those prospective jurors

removed by the Court for cause were not removed because of

prejudgment of the case or worry over community pressure, but for

hardship or because their views regarding the death penalty, both for

and against, disqualified them from service on this case.” Id. at 4-5. The

State also noted that defense counsel had questioned the prospective

jurors as to whether they would feel any pressure or influence from the

community to render a particular verdict. Id. at 5. The court then

denied the defendant’s motion “for the reasons set forth in the State’s

objection.” Order on Def’s Renewed Mot. for Change of Venue (filed Oct.

20, 2008).

Over the course of the next five months, both during and after

trial, the defendant filed two additional pleadings that he claimed bore

upon the question of proper venue. In one pleading, he submitted media

accounts of developments in his case and editorials regarding the

outcome of the case. See Def’s Supp. Regarding Media (filed Jan. 16,

2009). In the other, he purported to “document” what he believed was a

hostile courtroom atmosphere when the jury rendered its verdict at the

conclusion of the guilt phase of the trial. See Def’s Mot. to Supp. Record

on Venue (filed Nov. 14, 2008). In that pleading, he claimed that one

hundred police officers had attended the verdict, wearing all kinds of

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clothing—from regular uniforms, to camouflage, to a ski mask. Id. at 1-

2. He further claimed that “[a]dditional chairs lined the aisle between the

rows of fixed bench seats in the public gallery.” Id. at 2. He termed the

courtroom gathering as “unprecedented” and argued that all of the jurors

must have felt pressure to deliver a verdict favorable to the State. Id. at

2-3.

The State filed a response to the defendant’s pleading and

disagreed almost completely with his characterization of the courtroom

atmosphere. State’s Resp. to Def’s Mot. to Supp. Record Regarding

Venue (filed Nov. 25, 2008). More importantly, however, the Court

entered an order in which it, too, disagreed with the defendant’s

characterizations and assertions. Order on Def’s Mot. to Supp. The

Record on Venue (filed Dec. 29, 2008). In its order, the court also

described several precautions that it had taken to ensure that the jury

would not be exposed to extrinsic influences. Id. at 2-3.

With respect to the defendant’s specific allegations regarding the

taking of the verdict during the guilt phase of the trial, the court found

that only ten additional chairs had been placed in the public gallery, that

spectators stood in the entrance to the courtroom and in the courthouse

lobby, that none of the spectators reacted audibly, that only four or five

uniformed officers were actually inside the courtroom when the verdict

was announced, that the jurors could not see the courthouse lobby from

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the jury box, that the footage from WMUR Channel 9 that the defendant

submitted with his motion captured scenes after the jury had left the

courtroom, and that the spectators included the victim’s family,

members of the media, and representatives from the public defender’s

office. Id. at 4-5. Finally, the court concluded that the defendant’s

claims of bias affecting the eligibility and sentencing phases of the trial

were undermined by the facts that the jury (1) found only two of three

mental state aggravating factors during the eligibility phase, and (2)

determined that the only aggravating factor that the defendant contested

during the sentencing phase, future dangerousness, was not proven. Id.

at 7.

Against that backdrop, this Court must decide the defendant’s

appellate claims regarding the venue of his trial. A trial court’s decision

on a motion to change venue is entitled to “special deference.” State v.

Smart, 136 N.H. 639, 653 (1993). Accordingly, this Court will not reverse

the trial court’s decision on a motion to change venue unless the decision

amounted to “manifest error.” Id. at 648, 653. Manifest error occurs

when a ruling creates “serious injustice.” State v. Menard, 133 N.H. 708,

710 (1990). This Court explained the rationale for applying such a

deferential standard of review over twenty years ago.

Particularly with respect to pretrial publicity, . . . primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of

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any such claim of prejudice his own perception of the depth and extent of news stories that might influence a juror.

Id. (quotation omitted); see Skilling v. United States, 130 S. Ct. 2896,

2918 (2010) (“Appellate courts making after-the-fact assessments of the

media’s impact on jurors should be mindful that their judgments lack

the on-the-spot comprehension of the situation possessed by trial

judges.”); Mu’Min v. Virginia, 500 U.S. 415, 427 (1991) (similar). Further,

this Court stated, the “determination of the impartiality of the jurors

selected [is] essentially a question of demeanor and credibility,” which is

often left to the trier of fact. Id. (quotation omitted); cf. State v. Giles, 140

N.H. 714, 718-19 (1996) (“We defer to the jury’s findings on credibility in

part because a trial transcript provides no indication of a witness’s tone

of voice or demeanor, two useful tools in the assessment of credibility.”).

Part I, article 17 of the New Hampshire Constitution dictates the

terms under which the venue of a criminal prosecution may be changed.

It provides that

no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except . . . upon motion by the defendant and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed.

One circumstance that may lead the trial court to make such a

finding is an inability to empanel an impartial jury as required by part I,

article 35 of the New Hampshire Constitution and the Sixth Amendment

to the United States Constitution. After all, the right of a criminal

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defendant to a fair and impartial jury has been deemed a basic

requirement of due process under the state and national constitutions.

See, e.g., Smart, 136 N.H. at 646; State v. Laaman, 114 N.H. 794, 798

(1974).

The defendant suggests that the state constitution may offer

heightened due process protection in this area, DB 109-10, but that

argument is foreclosed by Smart, in which this Court expressly

concluded that the level of protection offered by both constitutions is “the

same,” Smart, 136 N.H. at 646. Because the defendant does not ask this

Court to overrule Smart and does not offer any arguments under the

four-part test that this Court applies when deciding whether to overrule

a previous decision, see, e.g., Jacobs v. Dir., N.H. Div. Motor Vehicles, 149

N.H. 502, 504-05 (2003), Smart must be considered good law for

purposes of this appeal, State v. Dodds, 159 N.H. 239, 248 (2009)

(arguments not briefed are deemed waived).

Both this Court and the United States Supreme Court have

determined that intense pretrial publicity may undermine the fairness of

a trial if it results in either presumed prejudice, sometimes called

“inherent prejudice,” or actual prejudice. See, e.g., Murphy v. Florida,

421 U.S. 794, 803 (1975); Smart, 136 N.H. at 647; see also Sheppard v.

Maxwell, 384 U.S. 333, 363 (1966); Estes, 381 U.S. 532, 536 (1965);

Rideau v. Louisiana, 373 U.S. 723, 726 (1965). Neither was present here.

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Actual prejudice manifests itself at jury selection, when voir dire

reveals that pretrial publicity “had such a pervasive effect so as to deny

the seating of a fair jury.” Goss v. Nelson, 439 F.3d 621, 629 (10th Cir.

2006). To establish actual prejudice, the party seeking a change of

venue must demonstrate “the actual existence of such an opinion in the

mind[s] of the [seated] juror[s] as will raise the presumption of partiality.”

Murphy, 421 U.S. at 800 (quotation omitted); accord Smart, 136 N.H. at

647-48, 659; Laaman, 114 N.H. at 798. In other words, the question is

“whether the voir dire testimony of those who became trial jurors

demonstrated . . . actual prejudice against a defendant.” United States v.

Blom, 242 F.3d 799, 803 (8th Cir. 2001); see Skilling, 130 S. Ct. at 2917-

20 (a claim of actual prejudice focuses upon the seated jurors who

actually decided the case).

Presumed prejudice, on the other hand, “exists when the publicity

by its nature has so tainted the trial atmosphere that it will necessarily

result in a lack of due process.” Smart, 136 N.H. at 647. In other words,

prejudice is presumed where “pretrial publicity is so pervasive and

prejudicial that [the court] cannot expect to find an unbiased jury pool in

the community.” Goss, 439 F.3d at 628.

Courts should not be too ready to find presumed prejudice

because, as this Court cautioned, the constitution

does not require that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread

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and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.

Smart, 136 N.H. at 647 (emphasis added) (quotation omitted); cf. State v.

Nelson, 103 N.H. 478, 484 (1961) (“The very nature of the charges

against these defendants could not fail to create general public interest

with attendant widespread publicity through the various news channels.

The newspaper coverage was undoubtedly extensive. It does not follow,

however, that the inevitable result is that the defendants must be

released because they can never be constitutionally tried . . . .” (Ellipsis

and quotation omitted.)).

Similarly, the United States Court of Appeals for the Eighth Circuit

has explained, “Because our democracy tolerates, even encourages,

extensive media coverage of crimes such as murder and kidnapping, the

presumption of inherent prejudice is reserved for rare and extreme

cases.” Blom, 242 F.3d at 803; accord Goss, 439 F.3d at 628-29 (“To

demonstrate that prejudice should be presumed, the defendant must

establish that an irrepressibly hostile attitude pervaded the community.

Simply showing that all the potential jurors knew about the case and

that there was extensive pretrial publicity will not suffice to demonstrate

that an irrepressibly hostile attitude pervaded the community.”

(Quotation and ellipsis omitted.)); Busby v. Dretke, 359 F.3d 708, 725

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(5th Cir. 2004) (presumed prejudice is “applicable only in the most

unusual cases”); cf. Mu’Min, 500 U.S. at 429 (“Any killing that ultimately

results in a charge of capital murder will engender considerable media

coverage . . . .”). Accordingly, when an appellant asserts that a trial

court erred by refusing to find presumed prejudice, the question is

whether “pretrial publicity was so extensive and corrupting that a

reviewing court is required to presume prejudice of a constitutional

magnitude.” Pruett v. Norris, 153 F.3d 579, 585 (8th Cir. 1998).

The principal United States Supreme Court case on the issue of

pretrial publicity and prejudice is Rideau, 373 U.S. at 723. There, the

defendant robbed a bank in a small Louisiana town, kidnapped three

bank employees, and killed one of them. Id. at 723-24. Police

interrogated the defendant at the local jail, without counsel present, until

they obtained his confession. Id. at 724. The entire interrogation was

filmed, unbeknownst to the defendant. Id. The police then gave the

filmed confession to a local media outlet which, shortly before the trial,

broadcast it to audiences ranging from 24,000 to 53,000 individuals. Id.

In light of the broadcasts, the defendant moved for a change of venue,

arguing that he could not receive a fair trial in the parish where the

crime occurred, which had a population of approximately 150,000

people. Id. The trial court denied the motion, a jury eventually convicted

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him, and he was sentenced to death. Id. at 724-25. The Supreme Court

of Louisiana upheld the conviction. Id. at 725.

The United States Supreme Court, however, reversed. It noted that

“[w]hat the people [in the community] saw on their television sets was

Rideau, in jail, flanked by the sheriff and two state troopers, admitting in

detail the commission of the robbery, kidnapping, and murder.” Id. The

interrogation, “to the tens of thousands of people who saw and heard it,

was in a very real sense was Rideau’s trial—at which he pleaded guilty to

murder. Any subsequent court proceedings in a community so

pervasively exposed to such a spectacle could be but a hollow formality.”

Id. at 726. The Court therefore held, “without pausing to examine a

particularized transcript of the voir dire,” that “[t]he kangaroo court

proceedings” that followed the televised confession resulted in a denial of

due process. Id. at 726-27.

In a later case, Estes v. Texas, 381 U.S. at 538, the Court again

found that media coverage had tainted a criminal prosecution. There,

extensive publicity before trial became even worse during preliminary

court proceedings as reporters and television crews flooded the

courtroom and “bombard[ed] . . . the community with the sights and

sounds of” those pretrial hearings. Id. The Supreme Court decided that

the media’s efforts to report on the case were overzealous, “led to

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considerable disruption,” and therefore denied the defendant the “judicial

serenity and calm to which [he] was entitled.” Id. at 536.

Similarly, in Sheppard v. Maxwell, 384 U.S. at 353, news outlets

extensively reported the story of a man who bludgeoned his pregnant

wife to death. The Supreme Court characterized the proceedings in that

case as “bedlam” and said that “newsmen took over practically the entire

courtroom,” thereby thrusting jurors “into the role of celebrities.” Id.

Although the media generated “months [of] virulent publicity about

Sheppard and the murder,” the Court concluded that such coverage

alone did not create a due process violation. Id. at 354. Rather, the

Court reversed the murder conviction because the trial itself had a

“carnival atmosphere.” Id. at 358.

In Murphy, 421 U.S. at 795, the defendant, a notorious murderer,

who had conspired to steal the Star of India sapphire from American

Museum of Natural History in New York, was charged with robbery and

assault. Citing “extensive press coverage” about him, the defendant

unsuccessfully sought to transfer the venue of his trial. Id. at 796.

“Some of the jurors had a vague recollection of the robbery with which

[he] was charged and each had some knowledge of [his] past crimes, but

none betrayed any belief in the relevance of [his] past to the present

case.” Id. at 800 (footnote omitted). The United States Supreme Court

upheld the conviction, reasoning that Murphy’s trial was decidedly

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different from the proceedings at issue in Rideau, Estes, and Sheppard,

which, the Court said, “entirely lack[ed] . . . the solemnity and sobriety to

which a defendant is entitled in a system that subscribes to any notion of

fairness and rejects the verdict of a mob.” Id. at 799.

In Patton v. Yount, 467 U.S. 1025, 1029-30 (1984), the defendant

was facing a retrial on murder charges after the verdict from the first

trial had been reversed because of a violation of the Fifth Amendment.

Before the retrial, the media filed extensive reports about the defendant’s

confession to the brutal murder and his prior conviction for that crime.

Id. During voir dire, all but two veniremen had heard of the case, 77% of

prospective jurors acknowledged they would “carry an opinion into the

jury box,” and eight of the fourteen seated jurors and alternates

“admitted that at some time they had formed an opinion as to Yount’s

guilt.” Id. Some jurors even suggested that they would have required

evidence to overcome their beliefs in the defendant’s guilt. Id. at 1030.

Nevertheless, the Supreme Court rejected Yount’s claims that

publicity had prejudiced the outcome of his case. The Court concluded

that the adverse publicity and community outrage had peaked prior to

the defendant’s first trial, four years before the second prosecution, and

that time had helped “sooth[e] and eras[e]” community prejudice. Id. at

1034. In fact, said the Court, “It is not unusual that one’s recollection of

the fact that a notorious crime was committed lingers long after the

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feelings of revulsion that create prejudice have passed.” Id. at 1036. “The

relevant question,” the Court held, “is not whether the community

remembered the case, but whether the jurors at Yount’s trial had such

fixed opinions that they could not judge impartially the guilt of the

defendant.” Id. at 1036. The jurors in Yount did not hold such fixed

opinions; therefore, the Court held that there was no manifest error in

the trial court’s conclusion that the defendant had received a fair trial.

Id.

In a more recent case, Skilling, 130 S. Ct. at 2907-08, the

defendant, a former CEO of Enron, stood charged with several offenses

arising out of his participation in a conspiracy to commit fraud by

manipulating the company’s financial documents. The fraud perpetrated

by the defendant and his coconspirators eventually led to Enron’s

collapse. The defendant moved to change the venue of his trial, asserting

that because of the hostility toward him in Houston and extensive

pretrial publicity, he would be unable to receive a fair trial. Id. at 2908.

In support of that assertion, he submitted hundreds of news reports

detailing Enron’s collapse and presented affidavits from experts who

discussed community attitudes in Houston as opposed to those in other

potential venues. Id. The trial court denied the motion.

The Supreme Court affirmed. The Court began its analysis by

summarizing Rideau, Estes, and Sheppard. Id. at 2914-15. Those cases,

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it said, resulted in reversals because the “convictions [were] obtained in a

trial atmosphere that was utterly corrupted by press coverage.” Id. at

2914 (brackets omitted). Those cases could not, however, “be made to

stand for the proposition that juror exposure to news accounts of the

crime alone presumptively deprives the defendant of due process.” Id.

(ellipses and quotation omitted). “Prominence,” the Court reasoned “does

not necessarily produce prejudice, and juror impartiality . . . does not

require ignorance.” Id. at 2915. Accordingly, a “presumption of

prejudice . . . attends only the extreme case.” Id.

The Court determined that Skilling’s case was not such an extreme

one because (1) Houston was a very large city and it was difficult to

believe that twelve impartial jurors could not be found, (2) the Enron-

related publicity did not contain the type of “blatantly prejudicial

information” that readers or viewers “could not reasonably be expected to

shut from sight,” (3) trial did not swiftly follow the commission of the

crime, and (4) the jury actually acquitted Skilling on some counts, so it

“would be odd for an appellate court to presume prejudice in a case in

which jurors’ actions run counter to that presumption.” Id. at 2915-16.

The Court also rejected Skilling’s claim of actual prejudice, noting that he

had failed to show that the deliberating jurors had prejudged his guilt.

Id. at 2917-20.

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This Court has never found presumptive prejudice arising out of

pretrial publicity, even in Smart, 136 N.H. at 649, where, much like here,

the “publicity surrounding the defendant’s case was enormous and, as

claimed by some, unprecedented in this State.” (Emphasis added.) In

Smart, a school official conspired with some students, one of whom was

her lover, to kill her husband. Id. at 646. In the aftermath of the crime

and during the days leading up to the trial, there was “extraordinarily

heavy and widespread media coverage.” Id. Regional newspapers from

Boston and national media outlets, such as Time magazine, reported on

the case. Id. Further, before jury selection was to begin, WMUR

Channel 9 aired a special program entitled, “Anatomy of a Murder.” Id.

at 649. The program consisted of “footage from earlier news broadcasts

that included film of pre-arrest interviews with the defendant, of her

arrest and that of the teenage boys, along with commentary by a station

reporter.” Id. The program also referred to three new indictments that

had been brought against the defendant, charging her with attempting to

murder a potential witness. Id. at 650. The pretrial media attention

generated so many news stories that the defendant was able to create for

submission to the court a “several-inch-thick volume of newspaper

accounts and videotaped television news stories” in support of her

motion for a change of venue. Id. at 649.

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Despite all that publicity, this Court upheld the trial court’s refusal

to transfer the defendant’s trial to a different venue. Id. at 653. In

reaching its decision, this Court noted several principles of law. First,

this Court acknowledged that “it is the adverse nature of the publicity,

not merely its quantity, that is critical in finding presumptive prejudice.”

Id. at 649. Second, this Court noted that “hostile” and “accusatory” news

coverage is not enough to justify a change of venue. Id.

Distinguishing between straightforward factual publicity about a celebrated case and inflammatory, adverse press is crucial. To ignore these real differences in the potential for prejudice would not advance the cause of fundamental fairness, but only make impossible the timely prosecution of persons who are well known in the community, whether they be notorious or merely prominent.

Id. (quotation omitted). Third, this Court determined that “[e]xposure to

inadmissible evidence . . . is not sufficient to presume jury prejudice.”

Id. at 650. Fourth, relying upon the presumption that jurors follow

instructions, this Court noted that publicity is of little moment if it is

dated after the court issues an admonishment not to read or view media

accounts concerning the case. Id. And fifth, this Court noted that

“[m]ere familiarity . . . is not sufficient to presume prejudice.” Id.

Applying those principles, this Court held that Smart had failed to

demonstrate presumed prejudice. With respect to the “unprecedented”

amount of media coverage, this Court concluded that although some

pieces were hostile and accusatory, “the overwhelming bulk of the

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material submitted” consisted of “straightforward, unemotional factual

accounts of events and of the progress” of the case. Id. at 649. With

respect to the fact that the media had reported upon facts that were not

admissible at trial, this Court cited the familiar principle that exposure to

such evidence was not enough to presume prejudice and noted that the

one juror who acknowledged having heard about such evidence was the

subject of a peremptory strike by the State. Id. at 650.

With respect to actual prejudice and the fact that some jurors were

familiar with the defendant’s case, this Court noted that those who had

prejudged the defendant’s guilt were excused for cause or by the use of

peremptory strikes. Id. The Court further noted that “no member of the

defendant’s jury expressed an opinion on voir dire that she was guilty.

And, importantly, none sat on her jury over objection. It is difficult to

conclude in such circumstances that the trial court’s finding that the

jury was impartial constituted manifest error.” Id. at 648, 653.

This Court offered similar reasoning in Laaman, 114 N.H. at 796.

There, the defendant was charged with bombing the Manchester police

and fire departments. Almost immediately after his arrest, “he became

the subject of continuous and widespread coverage by all factions of the

news media, most notably, at least in terms of characterization, by the

‘Manchester Union Leader.’” Id. at 797. The coverage continued and

increased in intensity in the days leading up to and even during his trial.

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Id. It included photographs of the defendant, details about his previous

criminal activities, and discussions about the different phases of the

trial, the verdicts, and sentencing. Id. at 798-99. One local radio station

ran forty-five different news stories, over a four-month period, regarding

the defendant and his criminal activities. Id. at 797-98.

Despite the heavy volume of publicity, this Court rejected the

defendant’s claims of presumed and actual prejudice. With respect to

presumed prejudice, this Court contrasted Laaman’s case with the facts

of Rideau and Sheppard, and concluded that the publicity in Laaman’s

case did not prevent him from receiving a fair trial. Id. at 799. With

respect to actual prejudice, this Court determined that it was “not

enough to allege adverse publicity without a showing that as a result

thereof, the jury was not free from the dominant influence of knowledge

acquired outside the courtroom thus creating a reasonable likelihood

that a fair trial was not had.” Id. Further, this Court stated,

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. at 800. Accordingly, this Court held that, notwithstanding the fact

that several jurors had been exposed to press coverage of the crime, the

defendant “received a fair and impartial jury trial consistent with the

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requirements of due process” because all of the jurors who decided his

case stated under oath that they had not prejudged the case and would

decide it “in accordance with the evidence presented in court.” Id. at

801.

The legal principles that this Court set forth and relied upon in

Smart and Laaman were not novel in New Hampshire. Over a hundred

years ago, in State v. Sawtelle, 66 N.H. 488, 537-38 (1891), a defendant,

who had been charged with murder, asserted a violation of his right to be

tried by a fair and impartial jury because a juror was empanelled despite

that juror’s assertion that he already had formed so strong an opinion

that it would have required evidence to change it. This Court rejected

that position, reasoning that jurors:

generally form, and frequently express, opinions of the guilt and the deserts of the accused, in a case of this kind, before the trial. Upon newspaper report they often declare with emphasis that he ought to be hung, and that they would hang him if they were on the jury. There is no occasion for surprise when those who have been the most violent in such denunciation, being empanelled in his case, are led by the evidence and a sense of responsibility to take a firm stand on the other side. . . . Few, if any, can be found who have not formed an opinion of more or less strength before the cause comes to trial. . . . The difference between an impression and an opinion—even a “fixed and settled” opinion—is a difference of degree only. However weak it may be, further consideration or further information is necessary to change it. When persons drawn for jury service say they have formed opinions which it would take evidence to remove, or (as in this case) have formed opinions which are so strong that it would require evidence to change them, a portion of their testimony is superfluous. In belief, as in the material world, changes do not occur without reason. Opinions are

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not formed or abandoned without cause. If all the residents of the county (being otherwise competent) whose opinion of this case could only be changed by evidence were excluded from the jury, the defendant could not be tried. The possibility or probability of obtaining jurors who had not formed an opinion was properly considered. The question was not whether those examined as to their judicial competency could change their minds without cause, but whether they could and would disregard the information they had received and the opinions they had formed concerning the case, and render a verdict on nothing but the evidence given them during the trial. This was a question of fact to be determined at the trial term.

Id. (quotations and citations omitted); see State v. Pike, 49 N. H. 399, 407

(1870) (refusing to reverse a conviction where a juror testified that he had

read reports about the case in the newspapers and had formed the

impression that the defendant was guilty; that he paid little attention to

such reports; that, notwithstanding the impression he had received from

the reports that he had read, he thought he could try the defendant on

the evidence without prejudice; and that he thought he had no opinion or

impression which would prevent him from trying the defendant

impartially on the evidence); see also State v. Lister, 122 N.H. 603, 606

(1982) (rejecting claim that the jury was not impartial, where the

defendant escaped during jury selection, and the five jurors already

selected and all of the veniremen assured the court that the escape

would not affect their ability to decide the case fairly); State v. Sullivan,

121 N.H. 301, 303-04 (1981) (upholding the denial of a motion to change

venue even though the defendant’s family had a history of trouble with

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local police and the defendant had a reputation for brawling); State v.

Stewart, 116 N.H. 585, 586 (1976) (rejecting claims of presumed and

actual prejudice where the defendant was the subject of “continuous and

widespread” media coverage). Nor are such principles novel in case law

from across the country. See generally Annotation, Pretrial Publicity In

Criminal Case As Ground For Change Of Venue, 33 A.L.R.3d 17 (1970 &

Supp. 2012) (collecting cases).

Applying those principles to the facts of the instant case compels

the conclusion that the trial court’s denial of the defendant’s motion for a

change of venue must be upheld. The defendant failed to demonstrate

both presumed prejudice and actual prejudice. The instant case was

nothing like Rideau or Sheppard, where the proceedings were more of a

farce than a dignified trial. Importantly, the defendant’s effort to

characterize one aspect of the proceedings as carnival-like, see Def’s Mot.

to Supp. Record on Venue (filed Nov. 14, 2008), fell flat as the trial court

specifically found that his assertions about what happened in the

courtroom were incorrect, see Order on Def’s Mot. to Supp. The Record

on Venue (filed Dec. 29, 2008). Instead, the instant case more closely

resembled Smart, Laaman, and Yount, where, despite intense press

coverage, the defendants were able to obtain a fair trial by an impartial

jury. Accordingly, the trial court’s ruling should be upheld.

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With respect to presumed prejudice, the trial court found that the

publicity about the defendant’s case, although “voluminous,” was “not

the kind of adverse inflammatory publicity that raises a concern about

inherent prejudice.” Order at 9-10. Relatedly, the court also found that

the bulk of the articles and clips were factual reports, consisting of

“descriptions and depictions of [the] circumstances of Officer Briggs’[s]

death and funeral, the defendant’s arrest for capital murder, and the

legal happenings in the capital case.” Order at 10. The court further

found that “very few editorials about the case displayed hostility towards

the defendant.” Order at 10. All of these findings are supported by the

record and should not be overturned. Further, under the principles that

this Court articulated in Smart, each of those findings supports the

conclusion that there was no presumed prejudice here.

In addition, the court found that although the media did reveal

certain facts about the defendant’s past that may have been inadmissible

at trial, such facts were neither unforgettable nor anything like the

“spectacle of Rideau’s dramatically staged and broadcast confession.”

Order at 11 (quotation omitted) (referring to the facts of Rideau, 373 U.S.

at 724-26). Because “[e]xposure to inadmissible evidence, [alone], is not

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sufficient to presume jury prejudice,” this aspect of the trial court’s

ruling should be regarded as sound. Smart, 136 N.H. at 650.3

Further, the court found that “the publicity was at its heaviest

immediately after the death of Officer Briggs” and had diminished

substantially since that time. Order at 11 (noting that seventy articles

appeared in the Union Leader in October 2006, but less than ten

appeared in May 2008). Likewise, the court found that “while stories

concerning the case often headlined WMUR’s newscasts in October and

November 2006, by 2008, they were very brief and often buried in the

middle of newscasts.” Order at 11. And the court found that the media

accounts had changed in tone over time, from emotional to “rather dry.”

Order at 12. Each of these findings is supported by the record. Further,

each also supports the conclusion that presumed prejudice was not

present in the instant case. See, e.g., Yount, 467 U.S. at 1034-35.

In addition, the court rejected the defendant’s reliance upon

website comments as a means of demonstrating impermissible and

irreparable prejudice because they did not have the same prominence

and circulation of an actual press account, because the total number of

3 To the extent the defendant emphasizes that the media reported his confession, DB 111, it is worth pointing out that, at jury selection, defense counsel specifically noted that only a few jurors knew about the confession and that it had been suppressed. JS 1041.

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comments was small, because the people who posted the comments

were anonymous, because the defendant offered no evidence to show

that the comments were not posted by a few individuals using many

different and false names, and because only a small portion of the

comments were actually inflammatory. Order at 12, 14. Those factual

findings are supported by the record. But, more importantly, the court’s

reasoning was sound and it parallels that offered by other courts that

have rejected venue claims based upon website comments. See, e.g.,

State v. Dwyer, 985 A.2d 469, 476 (Me. 2009) (website comments, while

“less factual,” “represent the views of a select group that are addressed to

a limited audience, and they do not necessarily represent the views held

by the public at large”); Commonwealth v. Morales, 800 N.E.2d 683, 688,

690 (Mass. 2003) (comments from a “web board” did not create

presumptive prejudice).

Although the defendant tries to portray the publicity and sentiment

surrounding his as unique, they are not. See, e.g., DB 111; see also DB

110 (arguing that the trial court failed to give appropriate consideration

to the fact that the defendant was facing the death penalty). For

example, federal courts have refused to transfer venue in cases that

generated much more publicity than the defendant’s, such as the

prosecutions arising out of the 1993 World Trade Center bombing and

the prosecution of John Walker Lindh, a man whom the press called the

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“American Taliban.” See Skilling, 130 S. Ct. at 2913 n.11 (discussing

cases). Likewise, the Arizona Supreme Court flatly rejected a venue

argument, where the defendant was convicted and sentenced to death for

the first killing of a Tucson police officer in twenty-one years. State v.

Montenegro Cruz, 181 P.3d 196, 202-05 (Ariz. 2008). In that case,

[t]he media extensively covered the death of Officer Hardesty and Cruz’s apprehension. Hundreds of television broadcasts and newspaper articles reported on the crime and Cruz’s suspected guilt. Local radio stations and grocery stores raised money for Hardesty’s family; a billboard was erected on a major Tucson street that proclaimed, “Officer Patrick K. Hardesty, Your service to Tucson will never be forgotten”; flags were flown at half staff; and a local police substation was named for Hardesty.

Id., 181 P.3d at 204. Further, polls showed that 79% of potential Pima

County jurors had heard of the case and 51% thought the defendant was

guilty. Id. See also State v. Bible, 858 P.2d 1152, 1163-69 (Ariz. 1993)

(rejecting a venue challenge where “nearly all” potential jurors had heard

of the case, local news outlets reported about inadmissible evidence such

as that the defendant had failed a lie detector test, and the media falsely

reported that he was a “child molester” who had committed “child rape”);

Morales, 800 N.E.2d at 688 (no presumed prejudice despite significant

press coverage of the case that included “the defendant’s confession, his

criminal record, and the fact of the victim’s twenty-one year service as a

police officer, his popularity in the community, and the memorials in his

honor”); Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (rejecting

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a venue challenge where the community had 128,980 qualified potential

jurors and the media ran nearly 200 stories or broadcasts about the

crime).

With respect to actual prejudice, the defendant failed to

demonstrate that the jurors who actually deliberated in his case were

anything other than impartial. All of them swore that they would set

aside any preconceived ideas, follow the court’s instructions, and decide

the case fairly. None expressed the view that they would enter the case

with a firm predisposition to find the defendant guilty.

According to the defendant’s own chart, see DBA G1-G5, only

about 13% of jurors who actually reported for voir dire—that is, 15 out of

113—had expressed some form of an opinion about the defendant’s guilt.

That is hardly an overwhelming portion and it certainly does not suggest

that the defendant’s trial must have been unfair. See, e.g., Ritchie v.

Rogers, 313 F.3d 948, 957, 959 (6th Cir. 2002) (four of twelve seated

jurors had opinions that were “not firmly held” about the defendant’s

guilt); Hale v. Gibson, 227 F.3d 1298, 1331-33 (10th Cir. 2000) (thirty-

four of thirty-seven jurors questioned had prior knowledge of the case,

twelve had opinions regarding defendant’s guilt, and six of those twelve

were seated on the jury); see also Blom, 242 F.3d at 804-06 (on direct

review, no actual prejudice where thirty-seven of seventy-five prospective

jurors were struck for cause and all jurors selected had at least some

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knowledge that defendant, charged with being a felon in possession of

firearms, was accused of a notorious abduction and murder, but all

stated that they understood the kidnapping and murder charges were

separate and that they could set aside pretrial publicity and render an

impartial verdict based solely on the evidence presented at trial).

Of the approximately 13% who had arguably expressed an opinion

about the defendant’s guilt, only one—Juror B19—actually served on the

case. In answering Question 107 on his questionnaire, Juror B19 wrote,

“It definitely seems like the defendant caused the death of Officer Briggs.”

DBA G25; JS 1175. At voir dire, the court asked the juror about what he

had written and he qualified his response, stating that he had formed the

opinion based upon news stories and conversations with others. JS

1175. Importantly, he stated that he understood the presumption of

innocence, would set aside any opinion he may have formed, and would

decide the case based upon the evidence presented. JS 1175. Likewise,

he assured defense counsel that he would approach the trial “with a

clean slate [and] with an open mind.” JS 1182. See Casey v. Moore, 386

F.3d 896, 903, 910 n.8 (9th Cir. 2004) (rejecting a venue challenge where

a juror reported to voir dire with an opinion that the defendant was guilty

based upon extensive media reports in the small community, but

assured the court that she would decide the case based upon evidence

presented at trial), cert. denied, 545 U.S. 1146 (2005). The defendant did

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not challenge Juror B19 for cause and he has not argued on appeal that

Juror B19, in particular, was not impartial. JS 1206. Cf. Smart, 136

N.H. at 648 (“No member of the defendant’s jury expressed an opinion on

voir dire that she was guilty. And, importantly, none sat on her jury over

her objection. It is difficult to conclude in such circumstances that the

trial court’s finding that the jury was impartial constituted manifest

error.”).

The only deliberating juror that the defendant did challenge for

cause was Juror E41. Yet, that challenge was not on the basis that she

had any preconceived judgment about his case. Instead, the challenge

was based upon the defendant’s opinion that the juror had given

incorrect or conflicting responses to his questions about the role of

mitigating and aggravating evidence. JS 2651-54. The trial court

properly rejected the defendant’s characterizations of the juror’s answers,

attributing the allegedly incorrect answers to defense counsel’s phrasing

of the voir dire questions that prompted them, and the defendant has not

challenged that ruling on appeal. JS 2654. Nor has he argued that juror

E41, in particular, was not impartial. And besides, arguably inconsistent

answers and confusion over death penalty law are not, alone, an

adequate basis to establish impermissible prejudice.

It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors

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represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially.

Yount, 467 U.S. at 1039.

Equally important, as in Skilling, the way that voir dire was

conducted also served to diminish any chance of bias or prejudice.

Skilling, 130 S. Ct. at 2919. The court and the parties examined each

prospective juror individually, thus preventing the spread of any

prejudicial information from one venireperson to another. Id. Further,

to encourage candor, the court repeatedly admonished that there were

no “right or wrong answers” to the questions that would be posed. See,

e.g., JS 1208, 1239; Skilling, 130 S. Ct. at 2919. And in listening to the

prospective jurors’ responses, the trial court was aware that it needed to

be particularly sensitive to improper sentiment or bias because the

defendant already had raised those issues in his motion to change venue.

Because the court and the parties were able to use voir dire to ferret out

jurors who harbored bias, prejudice, or inappropriate views, the process

necessarily had the desired, salutary effect and worked to ensure a fair

trial. See State v. Addison, 160 N.H. 493, 499 (2010) (“The fact that

several members of the venire who were not seated admitted that they

had already formed an opinion about the robbery charge demonstrates

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that the trial judge’s questions were sufficient to uncover any bias or

prejudice among the jurors.”).

The defendant tries to distance his case from Smart by repeatedly

asserting that Briggs’s murder generated “extraordinary” and

“unprecedented” publicity and community sentiment. See, e.g., DB 95,

99, 111. For one thing, the murder of Smart’s husband also generated

“unprecedented” publicity and sentiment. Smart, 136 N.H. at 649. So,

the use of such rhetoric is of no consequence unless the “unprecedented”

nature of the coverage actually caused a constitutional violation. For the

reasons expressed earlier, it did not.

Perhaps more importantly, however, the defendant has not shown

that his case was, in fact, the subject of any worse or more intense

publicity or sentiment than Smart. As support for his claim that the

circumstances of the instant case were more extreme than Smart, the

defendant relies on two memoranda that were drafted by an investigator

from the public defender’s office. See Def’s Second Set of Supp.

Materials to Mot. for Change of Venue (filed June 5, 2008) at Exh. E. In

her memoranda, the investigator offered the results of two searches that

she had conducted on the Union Leader’s website, one using the term

“Sheila LaBarre” and the other using the term “Pamela Smart.” Id.

The defendant’s reliance upon the results of such searches seems

difficult to justify. To explain, the defendant’s venue arguments have as

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one premise—if not the main premise—that local media influence can

inflame the sentiments of the venire within a particular judicial district.

Consistent with that principle, he asserts that his trial should have been

moved from Manchester to another judicial district because of, among

other things, the effects of the intense coverage of his case by the Union

Leader, which he characterizes as a newspaper with special significance

to the people in the immediate area of Manchester—that is, to the people

of the northern judicial district of Hillsborough County. DB 100.

When applied to the Smart and LaBarre cases, that principle

should compel the conclusion that the defendant ought to have

consulted at least some Rockingham County news sources, such as the

Portsmouth Herald or Foster’s Daily Democrat, if he was trying to obtain

an accurate assessment of the level of publicity and community

sentiment that potentially would have affected the venire in those two

cases. After all, a Rockingham County venire includes people from

places such as Portsmouth, Rye, and Hampton, none of which could

reasonably be considered “local” to Manchester. Yet, there is no evidence

that the defendant took any Rockingham County sources into account.

If, on the other hand, the defendant is contending that the Union

Leader has broad, statewide significance and appeal, such that its

content can serve as an accurate measure of sentiment and publicity

statewide, then its stories cannot serve as the basis for a claim that a

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fairer trial could have been had in a different judicial district because all

judicial districts would have been equally affected by its extensive news

coverage. For those reasons, perhaps, the trial court apparently and

correctly rejected the defendant’s efforts to distinguish the Smart case

and instead relied upon Smart as persuasive authority in its analysis of

the venue challenge in this case. See Order at 10-11.

In addition to characterizing his case as extreme and attempting to

distinguish it from Smart, the defendant also supports his venue

arguments by referring to a chart that he included in the appendix to his

brief. See, e.g., DB 92, 104-07. The chart, while technically accurate in

most respects, has allowed the defendant to offer some somewhat

misleading assertions. For example, according to the chart, 108 out of

113 potential jurors were aware of the case, 83 knew the defendant’s

name, and 50 knew facts about the case. DBA G5. In his brief, the

defendant relies upon those numbers to assert that “98% of [jurors] knew

about this case[,] . . . over 80% recognized Addison by name as the

person charged with murdering Briggs[,] . . . and many prospective jurors

remembered details reported in the media about the murder, [the

defendant’s] criminal record, or Briggs’s life.” DB 93. The problem with

that broad assertion, in the context of the defendant’s entire argument

on venue, is that it suggests that all of these jurors were following the

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details of the case with passion and fervor, and that therefore the

defendant could not receive a fair trial. That is not what happened.

Take, for instance, Juror B61. DBA G2. According to the chart,

Juror B61 knew about the defendant and Briggs, and “knew basic or

specific facts of the case.” DBA G1. Yet, during voir dire, he told the

court that he read about the shooting when it happened, but had not

followed it closely over time. JS 1244. Similarly, the chart says the

Juror C3 knew about the defendant, knew about Briggs, knew about

Bell-Rogers, heard the nickname “Stix,” and was aware of the defendant’s

criminal record. DBA G2. But voir dire revealed that Juror C3 was

hardly following the case closely. To the contrary, he had grown tired of

hearing about it and refused to watch or read media accounts of it. JS

1399. So too with Juror C73. DBA G2; JS 1411. And, the chart says

that Juror E41 knew about the case, see DBA G3, but voir dire revealed

some fairly significant qualifications: “It was just not anything I was like

really interested in knowing all the details of the case. I just, I guess, felt

sad that the whole situation had happened, when I would see it. But I

really don’t know an awful lot about all the details.” JS 2634.

Along those lines, the chart says that Jurors A2 and B2 had some

level of familiarity with the case. DBA G1. But Juror B2 stated in

response to Question 97 on his questionnaire that he had received only

“general recaps from newspaper and radio.” In response to Questions 99

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through 103 and Question 105, he reported that he had not read or seen

anything regarding the defendant, Officer Briggs, or any of the witnesses

named in the questionnaire, though he did believe that he had passed a

memorial for Officer Briggs. Similarly, in response to Questions 99

through 103 and Question 105, Juror A2 said that while he heard about

the case on television, he did not remember hearing anything about the

defendant, Officer Briggs, or the witnesses.

In a similar vein, the chart says Juror D39 was familiar with the

case, reads the Union Leader, and watches Channel 9. DBA G3. But she

qualified during voir dire that she only heard and read about coverage of

the case on the day of the murder and does not have time to read the

newspaper regularly because she is too busy operating her daycare

center. JS 2108-09. Likewise, the chart classifies Juror E9 as “ma, ob”

(aware of the defendant, aware of Officer Briggs) and indicates that the

juror has a significant connection to Manchester. DBA G4. But the

juror noted in response to Questions 99 and 100 on the questionnaire

that she had not heard or read anything about the defendant or Officer

Briggs. Further, the juror stated during voir dire, “I don’t know much

about the case, so I’m not coming into this with a prejudiced opinion. I

wasn’t living around here when this happened in 2006, and I don’t watch

the news much. So I don’t know anything about it.” JS 2786.

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Accordingly, the chart and assertions based upon it do not reveal

the full picture of the potential jurors’ exposure to media and knowledge

about the case. Therefore, generalizations based upon the chart should

be viewed with caution. While it may be accurate to say that many

prospective jurors were aware of the case, it does not necessarily follow

that the community, as a whole, was inflamed and following every detail

of the case with fervor. And of course, jurors’ mere knowledge about a

case is not enough to justify a venue change. Laaman, 114 N.H. at 800.

In urging reversal, the defendant emphasizes that the victim in the

instant case was a police officer and that the courthouse where his trial

took place was across the street from the police station. See, e.g., DB 93,

113-14. Citing the reliance that Manchester residents place upon the

city’s police force to protect them, the defendant suggests that the jury

may have been predisposed or felt obligated to help its protectors at the

expense of giving him a fair trial. Id.; DB 112 (the police are “beloved”;

the defendant is “reviled”). The defendant asserts too much. If

Manchester residents tended to favor the police because the police

protect them, or if Manchester residents were affected by the fact that

the courthouse is across from the police station, then there would be fair

trial problems in all cases where a Manchester law enforcement officer

was the victim. The defendant has not advanced any sound basis to

justify such a sweeping conclusion. Further, in Laaman, the defendant

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firebombed the Manchester police and fire stations, both of which are

across from the courthouse, but this Court declined to find that the

superior court in Manchester was not a proper venue for the trial.

Laaman, 114 N.H. at 796-802.

The defendant also asserts that his trial should have taken place in

a different judicial district because the State’s opening and closing

arguments improperly “exploited” the venue. DB 93-94, 117. For one

thing, the defendant has not shown that he contemporaneously objected

to the State’s opening and closing on the basis that they affected his

claims regarding venue.4 So those kinds of arguments are not preserved.

State v. Nightingale, 160 N.H. 569, 577 (2010). In addition, even if such

arguments are preserved, they should be rejected on the merits because

the defendant has failed to show how those comments created a trial

atmosphere that was “circus like.” Smart, 136 N.H. at 652-65.

This case is nothing Rideau or Sheppard. The trial court

maintained order and control at all times and the proceedings had the

atmosphere of decorum and the dignity that they deserved. See

generally Order on Def’s Mot. to Supp. The Record on Venue (filed Dec.

29, 2008) (describing the atmosphere of the trial and the many

safeguards that the court employed to ensure fairness). Further, any

4 He did object to the State’s closing argument during the sentencing phase, for a different reason, and that objection is the basis for Argument XII in his brief. DB 275-306.

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suggestion that jurors were swayed by improper prosecutorial arguments

or the location of the trial is severely undermined by the fact that the

jury rejected some of the aggravators that the State had alleged during

the eligibility and sentencing phases of the proceedings. See TE 94; DBA

D6. And fair juries had been assembled in Manchester to hear the

Edward J. Roy Drive shooting and El Mexicano robbery cases. Order at

15. In the former trial, in fact, the jury actually acquitted the defendant

of one of the charges, despite having been made aware by the trial court

that he stood accused of killing Briggs. TS 1067-68. Finally, the

defendant actually conceded identity and opportunity in his opening

statement, so it is not as though the jury convicted a person who

proclaimed total innocence. TG 33-34.

The defendant also urges reversal on the basis of media accounts

that aired or were published after the verdicts and sentence in this case.

DB 96. But the trial court cannot change the venue of a trial that had

already occurred, so it is difficult to understand how those materials are

relevant to a venue challenge, especially since the jury, by that time, had

been admonished repeatedly not to read or view media accounts about

the case. Cf. Smart, 136 N.H. at 650, 658. See, e.g., Chandler v. Crosby,

454 F. Supp. 2d 1137, 1158 (M.D. Fla. 2006) (post-trial articles

submitted by the defendant “are clearly not relevant to Chandler’s claim

that a change of venue was required due to pretrial publicity”).

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To the extent the defendant asserts that such materials show a

“carnival-like” trial atmosphere, reversal is unwarranted for the reasons

explained earlier, which are incorporated here by reference. The State

further adds that the trial court asked the jurors each morning if they

had been exposed to any media accounts about the case, and the jurors

always said no. So there is no basis to claim that the media influenced

the jurors during the trial. See Johnson v. State, 749 N.E.2d 1103, 1106-

07 (Ind. 2001) (defendant’s renewed motion for change of venue based

upon media exposure during the trial was properly denied where the

court repeatedly admonished the jury not to be exposed to media

coverage about the case and polled the jury each day).

In summary, the trial court correctly denied the defendant’s

motion for a change of venue. He failed to demonstrate actual or

inherent prejudice. The jury that actually deliberated in his case was

impartial, and the publicity and sentiment surrounding his case, while

significant, were not the types that have caused courts to presume

prejudice. His conviction should be upheld.

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II. NEITHER THE STATE CONSTITUTION NOR ANY STATUTE REQUIRED THE TRIAL COURT TO GRANT TEN ADDITIONAL PEREMPTORY STRIKES TO THE DEFENDANT AND FIVE ADDITIONAL PEREMPTORY STRIKES TO THE STATE BEYOND THOSE ALLOWED UNDER RSA 606:3, I, AND RSA 606:4, I.

The defendant contends that the trial court erred when it refused

to grant him ten additional peremptory challenges, beyond the number

allowed by RSA 606:3, I (2001). DB 121-32. Relatedly, he argues, it was

a mistake for the court not to grant the State five additional peremptory

challenges. DB 121. See RSA 606:4, I (2001). He asserts that the trial

court’s refusal to grant the additional challenges amounted to a statutory

violation and a violation of part I, article 15 of the New Hampshire

Constitution. Those arguments must be rejected.

On the second day of jury selection, the parties asked the trial

court to grant additional peremptory strikes to each side in light of the

fact that the court intended to select eighteen jurors, including

alternates, to hear the case. JS 84. The State represented that both

sides had agreed to a total of thirty peremptory strikes for the defense

and fifteen for the State. JS 85.

In explaining his rationale for supporting the joint proposal, the

defendant argued that the number of challenges set forth in RSA 606:3,

I, and RSA 606:4, I, was intended to apply in cases where only twelve

jurors would be selected from the venire. JS 86. He further suggested

that the statute was premised upon the principle that the selection of

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any additional jurors—that is, alternates—beyond the deliberating

twelve, would require the court to increase the number of peremptory

strikes proportionally. JS 86.

In response, the court stated, “Well, the statute says 20 and 10,

and to think that a capital punishment statute does not contemplate

alternate jurors is kind of not reasonable in my mind. And it doesn’t say

anything about 12 jurors, does it? To pick 12 jurors, you get 20 and

10?” JS 87.

Thereafter, the State acknowledged that the statutes were silent as

to whether or how the court should increase the number of peremptory

strikes beyond the enumerated twenty and ten, but it argued that the

court had the discretion to do so. JS 87. It suggested that even if the

court thought “that 15 and 30 [were] perhaps too much, [it] could come

up with an alternative proposal and would have the discretion to do

that.” JS 87. So, that is what the court did. It ruled that the defendant

would be allowed twenty-four peremptory strikes and the State would be

allowed twelve. JS 87.

Now on appeal, the defendant presses his claim that the trial court

was required to grant the parties’ joint request to allot fifteen peremptory

strikes to the State and thirty to the defendant. In order to decide

whether the trial court erred by denying the joint request, this Court will

need to construe the two relevant statutes. Statutory interpretation is an

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issue of law that this Court considers de novo. State v. Brown, 155 N.H.

590, 591 (2007). “When construing a statute, [this Court] first examines

its language, ascribing the plain and ordinary meaning to the words used

by the legislature. [This Court] consider[s] words and phrases within the

context of the statute as a whole, and in light of the policy or purpose

advanced in the statutory scheme.” Id. (citations omitted). It will

“neither ignore the plain language of the legislation nor add words which

the lawmakers did not see fit to include.” Id. In addition, this Court

construes a statute “to effectuate its overall purpose and avoid an absurd

or unjust result.” State v. Horner, 153 N.H. 306, 314 (2006); cf. RSA

625:3 (2007) (“All provisions of th[e] [criminal] code shall be construed

according to the fair import of their terms and to promote justice.”).

RSA 606:3 provides:

Every person arraigned and put on trial for any offense may, in addition to challenges for cause or unless he stands willfully mute, peremptorily challenge :

I. 20 jurors for capital murder.

II. 15 jurors for murder in the first degree.

III. 3 jurors in any other case.

RSA 606:4 provides:

The state shall be entitled to the following number of peremptory challenges, in addition to challenges for cause, in the following cases:

I. Upon the trial for capital murder, 10 challenges.

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II. Upon the trial for murder in the first degree, 15 challenges.

III. Upon the trial for any other case, 3

challenges.

By their plain terms, both statutes allow a set number of

peremptory challenges for each side during the trial of a capital case.

For defendants, that number is plainly twenty; for the State it is ten.

Neither statute speaks generally of increasing the number of strikes

depending upon the circumstances or idiosyncrasies of a given capital

case. Nor, more particularly, does either statute set forth a requirement

that the number of peremptory strikes should be increased

proportionally based upon whether, or how many, alternate jurors are

selected. Had the legislature wanted to achieve such an outcome, it

could easily have drafted a statute to that effect. Babiarz v. Town of

Grafton, 155 N.H. 757, 759-60 (2007) (noting that if the legislature had

desired a particular outcome, it could easily have drafted the statute at

issue to accomplish it). It did not, and this Court will neither ignore the

plain meaning of the legislature’s words nor add text to the statute to

give it a new meaning. See Brown, 155 N.H. at 591; cf. Nicolaou v.

Vermont Mut. Ins. Co., 155 N.H. 724, 731 (2007) (court will not perform

“amazing feats of linguistic gymnastics” to find a term ambiguous).

In light of the plain meaning of RSA 606:3, I, and RSA 606:4, I, the

defendant’s assertion of a statutory violation must fail because the trial

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court allowed both him and the State to have more strikes than were

authorized under the statutes. On like reasoning, his due process claim

must fail because that constitutional provision is violated only when the

prosecution or the court takes away “that which state law provides.”

Ross v. Oklahoma, 487 U.S. 81, 89 (1988); see Goins v. Angelone, 52 F.

Supp. 2d 638, 670 (E.D. Va. 1999) (rejecting Sixth, Eighth, and

Fourteenth Amendment challenges, where the trial court gave each side

more peremptory strikes than they were allowed under state law), cert.

denied, 531 U.S. 1046 (2000); Walker v. Commonwealth, 515 S.E.2d 565,

571 (Va. 1999) (there is no Sixth, Eighth, or Fourteenth Amendment

right to additional peremptory challenges beyond those provided under

state law). The fact that the trial court, in its discretion, allowed both

sides to have more peremptory strikes than set forth in the statutes does

not change the result. See, e.g., Epperson v. Commonwealth, 197 S.W.3d

46, 64-65 (Ky. 2006) (“This Court has repeatedly held that the decision

on whether to grant additional peremptory challenges is within the

sound discretion of the trial judge, even in a death penalty case.”); cf.

State v. Bone, 131 N.H. 408, 410 (1989) (the trial court has broad

discretion over the voir dire process). This Court has recognized that

trial courts retain the discretion to construe or supplement procedural

rules in order to help ensure fundamental fairness. See, e.g., State v.

Ploof, 162 N.H. 609, 620-21 (2011) (permitting the trial court to consider

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the reliability and trustworthiness of evidence even though the rules of

evidence do not apply in a civil commitment proceeding under the

sexually violent predator statute).

Here, the additional peremptory strikes that the trial court

granted—four for the defendant and two for the State—were a means of

helping the parties to achieve the right of an impartial jury. Cf. State v.

Wamala, 158 N.H. 583, 594 (2009) (voir dire “is but a means to achieve

the end of an impartial jury”). But nothing in the statute required the

court to grant a particular number of peremptory strikes to achieve that

end. And tellingly, the defendant does not contend, on appeal, that he

suffered any specific prejudice or that any specific juror who actually

deliberated was not impartial. Cf. Ross, 487 U.S. at 88.5

In an apparent effort to establish that the trial court’s ruling was

not a mere exercise of discretion, the defendant says that because the

court granted the extra strikes, it must have agreed that it was compelled

to do so under RSA 606:3 and RSA 606:4 in order to preserve for the

parties “a significant measure of discretionary control over the selection

of the jurors.” DB 125-26 (emphasis added). An initial flaw in that logic

is that “[t]he right of peremptory challenge . . . is not of itself a right to

select, but a right to reject, jurors.” Pointer v. United States, 151 U.S.

5 The trial court’s ruling did not leave the defendant without a means of removing biased veniremen from his jury. He could challenge them for cause and appeal any erroneous denials.

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396, 412 (1894) (emphasis added). The defendant was able to exercise

his right to reject twenty veniremen and then some. Equally important,

the peremptory strike does not serve to create some sort of legal right for

criminal defendants to select the jury that they feel will be most likely to

return an acquittal. Ross, 487 U.S. at 87-88. In fact, the peremptory

strike, in itself, is not a substantive constitutional right at all. Id. at 88;

Wamala, 158 N.H. at 594 (holding in the context of a challenge to the

voir dire process).

The defendant also contends that the legislative history for RSA

606:3 and RSA 606:4 requires this Court to reverse his conviction. He

begins that line of attack by asserting that RSA 606:3, I, and RSA 606:4,

I, can be read in two equally plausible ways. Under his preferred

interpretation, he claims that the ten and twenty peremptory challenges

set forth in RSA 606:3, I, and RSA 606:4, I, bespeak a specific legislative

intent that “a court must increase the number of each party’s

peremptory challenges in proportion to the increase in the total number

of jurors selected.” DB 126. Under that view, if any alternates are

selected beyond the twelve required to deliberate, the trial court is

required to grant a proportional increase in the number of peremptory

strikes allowed by RSA 606:3, I, and RSA 606:4, I. DB 126. Under the

second or alternative interpretation offered by the defendant, the two

statutes set the minimum number of peremptory strikes that must be

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given to each side, and allow the trial court to retain “discretion to

increase the number of peremptory challenges to accommodate a given

number of alternate jurors.” DB 126. That view, he says, “represents

the proper view of the statutes if, in designating twenty and ten

peremptory challenges respectively, the legislature had in mind a jury

that included some alternates.” DB 127.

Because the statutes can be read in two equally plausible ways,

the defendant argues, this Court should turn to legislative history to

decide which is correct.6 DB 127. Resort to those historical materials,

he says, will show that the legislature decided upon twenty peremptory

strikes at a time in the 1800s when only twelve jurors were chosen from

the venire. DB 127. Therefore, he contends, the allotment of twenty

peremptory strikes must be viewed as dependent upon the selection of

twelve jurors. DB 127-28. When more jurors are selected, he argues,

more peremptory strikes must be given. DB 130. Otherwise, he claims,

the legislature’s initial, intended ratio of jurors-to-peremptory strikes will

be defeated. DB 130.

The legislative histories of RSA 606:3 and RSA 606:4 cannot

support the weight that the defendant has placed upon them. To

6 As set forth above, however, the State urges this Court to conclude that the statutes are not ambiguous and that resort to legislative history is unnecessary. For the reasons explained in this section of the State’s brief, however, even if this Court does consider the history behind the statutes, the defendant cannot prevail.

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explain, the earliest version of RSA 606:3 is found in RS 225:5 (1842),

which authorized twenty peremptory challenges for defendants facing the

potential punishments of death or confinement to hard labor for life. No

peremptory challenges were allowed for the State. RS 225:6 (1842). The

legislature later recodified, without material change, both provisions at

CS 240:7 and 240:8 (1853), respectively.

By 1867, however, some change was afoot. At approximately that

time, the legislature enacted a provision to allow defendants twenty

peremptory strikes in cases where the potential punishment was death,

and two challenges in all other types of cases. GS 243:8 (1867). It

allowed the State two peremptory strikes in “all criminal cases.” GS

243:9 (1867).

By 1878, the number of peremptory challenges allotted to

defendants remained the same, but the State was allowed ten in cases

where the potential punishment was death. GL 261:9 (1878); GL 261:10

(1878). General Laws 261:10 did not contain any provision authorizing

the State to exercise peremptory challenges in non-death-penalty cases.

Later, in the early and mid-twentieth century, the legislature again

changed the number of peremptory strikes allowed to each side. This

time, the defendant was allotted twenty in cases where the potential

punishment was death and three in any other type of case. See PS 254:9

(Supp. 1901-13); PL 368:11 (1926); RL 428:11 (1942); RSA 606:3 (1955).

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The State, on the other hand, was allotted ten in cases where the

potential punishment was death, and three in any other case. PS 254:10

(Supp. 1901-13); PL 368:12 (1926); RL 428:12 (1942); RSA 606:4 (1955).

In 1974, the legislature again changed the peremptory strike

statutes. It allowed defendants to have twenty peremptory strikes in

both death penalty and first degree murder cases. Laws 1974, 34:5. In

all other types of cases, a defendant was allowed three. Id. The State, on

the other hand, was allowed ten peremptory strikes in both death penalty

and first degree murder cases, and three in all other types of case. Laws

1974, 34:6.

The 1974 amendments to RSA 606:3 and RSA 606:4 were the

product of significant debate between the House and the Senate, which

eventually needed to be resolved through a committee of conference. See

N.H.S. Jour. 197-212, 652-81, 708-25 (1974). To explain, a version of

the law initially offered in the Senate eliminated capital murder as a

special class of murder, and replaced it with one broad category called

first degree murder, the punishment for which was life in prison without

the possibility of parole. Id. at 198. It gave defendants twenty

peremptory strikes in first degree murder cases and the State got ten. Id.

at 200. Senator Bradley described that version of the bill as “an entire

rewrite” of the capital punishment statutes. Id. at 202-03. He also

referred specifically to the proposed peremptory strike provisions, saying

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that they would “expand[ ] the number of challenges you would have

available both for the defendant and the State.” Id. at 203. The House,

however, bristled at the Senate version of the bill and insisted upon

twenty challenges for defendants charged with capital murder and three

in all other kinds of cases. N.H.H.R. Jour. 299 (1974). Likewise, the

House wanted the State to have ten challenges in a death penalty case

and three in all other cases. Id. at 300.

By the mid-1980s, the legislature had again made changes. It

allowed the State to have ten challenges in a death penalty case, twenty

challenges in a first degree murder case, and three in all other types of

cases. RSA 606:4 (1986). The defendant’s allotment remained the same

as it was in 1974. RSA 606:3 (1986).

Finally, in 1993, the legislature enacted the peremptory challenge

statutes that exist today. To reiterate, those statutes allow defendants to

have twenty strikes in capital murder cases, fifteen strikes in first degree

murder cases, and three strikes in other types of cases. RSA 606:3

(2001). The State is allowed ten strikes in capital cases, fifteen in first

degree murder cases, and three in all other types of cases. RSA 606:4

(2001). At the time of the 1993 legislation, Senator Hollingworth

specifically stated, “The committee discussed the possibility of changing

the number of challenges for all murder cases, including capital, but

decided because of the nature of the capital murder charges, that

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number should not be changed.” N.H.S. Jour. 627 (1993) (emphasis

added). Representative Lozeau explained that the legislature decided to

reduce the number of challenges allowed in first degree murder cases

from twenty to fifteen because twenty challenges had proved

“unnecessary and time consuming.” N.H.H.R. Jour. 376 (1993).

In light of the activity described in the preceding paragraphs, it is

simply not possible to characterize the legislative evolution of RSA 606:3

and RSA 606:4 as some sort of rote or thoughtless repeal and

reenactment of the pertinent statutes, anchored in a mid-nineteenth

century tradition of selecting only twelve jurors from the venire. See DB

127-30. Further undermining such a view, legislative provisions for the

selection and use of alternate jurors have been in place since at least

1941, see Laws 1941, 104:1; yet, the legislature did not alter RSA 606:3

and RSA 606:4, or their predecessor statutes, to increase, beyond

twenty, the allotment of peremptory strikes in capital cases. Still worse

for the defendant’s position here, the legislature actually decreased the

number of peremptory strikes allowed in first degree murder cases as

part of the 1993 amendments. And at that time, members of the

legislature specifically said that it had considered, but decided against,

changing the number of strikes allowed in capital cases. In that

connection, the comments from Senator Hollingworth and Representative

Lozeau, when taken together, suggest that the change under

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consideration in 1993 was actually a decrease in the number of strikes

available in capital cases. But regardless whether a decrease was, in

fact, under consideration, there is simply no basis to conclude that the

legislature plainly intended the number of peremptory strikes to be

increased in proportion to the number of alternate jurors selected. True,

there have been some statutes that have authorized additional

peremptory strikes for use during the selection of alternate jurors, see,

e.g., Laws 1941, 104:1, but even in those instances, each side was given

only one additional strike to deploy—not the proportional increases

advocated by the defendant here.

Accordingly, for all that appears, the legislative history supports

the plain meaning interpretation of RSA 606:3 and RSA 606:4. That is,

each side is to be allowed a set number of challenges. The trial court’s

decision to grant additional challenges, as explained above, must

therefore be considered an exercise of discretion intended to help achieve

the goal of an impartial jury, not the product of a statutory or

constitutional mandate. As a related point, in the absence of evidence

that the legislature intended the selection of alternate jurors to require

corresponding or proportional increases in the number of peremptory

strikes, the trial court’s ruling cannot possibly have affected or “diluted”

any right or entitlement conferred by statute because no such right

would exist. DB 131.

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The defendant also asserts that his conviction should be reversed

because the trial court failed to offer a sufficient explanation for its

decision on the number of additional peremptory strikes that it would

allow. That assertion should be rejected for a few reasons. First, the

State was unable to find any point in the transcript at which the

defendant informed the trial court that its ruling lacked an adequate

explanation. For the defendant to prevail on that argument here, he

needed to make the trial court aware of it first. See, e.g., State v. Kelley,

160 N.H. 190, 194-95 (2010) (a specific, contemporaneous objection in

the trial court is required to preserve an issue for appeal; this rule, based

on “common sense and judicial economy, affords a trial court an

opportunity to correct an error it may have made” (quotations omitted)).

Second, it appears that the trial court began to say that its ruling was

based upon a belief that the parties had proposed too many strikes, but

defense counsel interposed a question before the court was able to finish

its sentence. See JS 85. Certainly, the prosecutor understood the court

to have believed that the parties’ joint proposal sought too many extra

peremptory strikes, for she referred to that very point during the course

of her argument to the court. JS 87. Third, the court’s ruling is not

without “any objective basis.” DB 131. RSA 606:3 and RSA 606:4

plainly contemplate that the defendant will have two peremptory strikes

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to every one that the State is allotted. Consistent with that principle, the

court gave the defendant four additional strikes and the State two.

Finally, the defendant contends that he does not need to establish

that the trial court’s ruling caused him any prejudice in order to obtain

reversal. DB 131-32. Instead, he asserts, an “adverse consequence from

the ruling is sufficiently established by the fact that [he] exhausted his

allotted twenty-four peremptory challenges before the court reached the

end of its process of selecting eighteen jurors.” DB 132. That argument

must be rejected.

In Rivera v. Illinois, 556 U.S. 148, 156-61 (2009), the United States

Supreme Court made clear that, unless a trial court arbitrarily or

deliberately violated state law, a showing of specific prejudice is

necessary to obtain reversal on the basis of a claim that a state court

unconstitutionally denied a criminal defendant’s effort to use a

peremptory strike. Id. The Court explained that the erroneous denial of

a peremptory strike should not be deemed a structural error because it

does not necessarily render “a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.” Id. at 160

(quotation omitted).

This Court should apply the principles from Rivera to the facts of

the instant case and hold that even if the trial court harbored a mistaken

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view of the two pertinent statutes, reversal is unwarranted.7 Such a

result is sound because, in the absence of any evidence that the

deliberating jurors were biased or that the court’s ruling was arbitrary,

there is simply no basis to conclude the defendant’s trial was unfair or

that its outcome was unreliable, which are necessary predicates for a

successful fair trial claim. Cf. State v. Cyrs, 129 N.H. 497, 501 (1987)

(explaining, in the context of an ineffective assistance of counsel claim,

that an unfair trial is one in which the outcome is unreliable). See

People v. DePriest, 163 P.3d 896, 917 (Cal. 2007) (rejecting a claim that

the trial court erred by refusing to grant additional peremptory strikes,

where there was no evidence that the deliberating jurors were not

impartial); People v. Gardenhire, 903 P.2d 1165, 1169 (Colo. Ct. App.

1995) (rejecting a due process challenge to the trial court’s refusal to

grant additional peremptory challenges, in part because the defendant

had “not indicated any facts that would support the conclusion that the

impaneled jury was not fair and impartial”); Berry v. State, 480 S.E.2d

32, 34 (Ga. 1997) (refusing to reverse a conviction on the basis that the

trial court did not follow a state statute governing the allotment of

additional peremptory strikes because the defendant did not demonstrate

7 In Argument III of the State’s brief, there is an extended discussion of why this Court should adopt the view of the federal courts and refuse to apply an automatic reversal rule in most cases where there are claimed errors relating to the use of peremptory strikes. That discussion is equally applicable here and, in an effort to avoid unnecessary repetition, the State incorporates it by reference.

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that his trial was unfair); State v. Johnson, No. E2010-00172-CCA-R3-

DD, 2012 WL 690218, at *50-*51 (Tenn. Crim. App. Mar. 5, 2012)

(rejecting the claim that the trial court erred by refusing to grant the

number of additional peremptory strikes requested by a criminal

defendant, in part because he failed to show that the jury that actually

deliberated in his case was not impartial).

In summary, the trial court correctly concluded that neither RSA

606:3 nor RSA 606:4 required it to adopt the parties’ joint proposal for

additional peremptory strikes. Rather, the decision whether to grant

additional peremptory strikes fell within the trial court’s sound

discretion. And here, the court exercised that discretion in order to help

achieve the end of an impartial trial. Its ruling did not run afoul of any

statutory or constitutional mandates. The defendant’s conviction should

be affirmed.

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III. THE TRIAL COURT CORRECTLY REFUSED TO DISMISS TWO JURORS FOR CAUSE BECAUSE BOTH JURORS MADE CLEAR THAT THEY COULD DECIDE THE CASE FAIRLY AND WITH DUE REGARD TO THE COURT’S INSTRUCTIONS AND THEIR OATH.

The defendant contends that two veniremen demonstrated an

inability or unwillingness to give appropriate consideration to mitigating

evidence during the sentencing phase of his trial. DB 133. Therefore, he

asserts, the trial court erred when it refused to dismiss them for cause.

DB 133-57. He bases his claim of error upon his state and federal

constitutional rights to due process, trial by an impartial jury, and

freedom from cruel and unusual punishment. DB 133. In that

connection, he cites nine different constitutional provisions and contends

that all of them were violated. DB 133. He also asserts that the trial

court’s ruling resulted in a violation of his “statutory right to excuse for

cause any juror who [was] ‘not indifferent.’” DB 133 (quoting RSA 500-

A:12, II (2007)). These arguments must be rejected.

The voir dire of the two jurors at issue, A-8 and B-15, began with a

series of questions from the court. One question was whether they knew

of any reason why they could not be fair and impartial jurors in this

case. JS 398, 1118. Both said no. JS 398, 1118. The court then

explained how the trial would proceed and some of the rules or principles

that would guide the jury’s consideration of the evidence. JS 396-98,

1118-20. For example, the court explained the State’s burden of proof

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during the guilt phase of the trial and the role of aggravating and

mitigating circumstances during the sentencing phase of the trial. JS

396-98, 1118-20. At the conclusion of the court’s explanation, both

jurors said that they understood and accepted the procedure that the

court had outlined. JS 398, 1120. The parties then proceeded to

question them.

With respect to Juror B-15, the State asked her why she would

make a good juror. JS 1122. She replied that she liked to debate issues,

get “to the bottom of things,” and determine “the truth.” JS 1122. She

acknowledged that the decision whether to impose the death penalty was

“a big responsibility” and that it was not to be taken “lightly.” JS 1123.

When the State asked Juror B-15 what factors she would want to

consider in deciding whether to impose the death penalty, she replied,

“The intentions of the criminal . . . what [was] in his mind while he was

committing the crime.” JS 1124. The State then asked the juror if she

would be willing to consider the defendant’s childhood, background, and

upbringing. JS 1124. The juror replied, “I wouldn’t think it would

matter that much because we all come from different backgrounds. Not

all people who are abused or have negative backgrounds commit crimes.”

JS 1124-25. That response prompted the State to ask the juror if she

would obey an instruction from the court to consider the defendant’s

background, childhood, and upbringing. JS 1125. She replied, “If the

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law said I had to consider it, I would.” JS 1125. But, she said, such

evidence would have to be “very, very convincing” in order for it to have

weight in her decision. JS 1125. The juror also said that evidence of

“very, very serious” mental deficits might play a role in her decision-

making. JS 1125-26.

The State then asked the juror if she would “give the defense a fair

opportunity [and] listen to the evidence that they [were] going to present

to say why [the defendant] should get . . . life without parole.” JS 1126.

The juror replied, “Of course.” JS 1126. The juror also said that she

would not “automatically” vote for the death penalty, that she would vote

for the death penalty only if the defendant was “very deserving of it,” and

that the State would need to “fully convince” her that the defendant

deserved the death penalty. JS 1126-27.

Finally, the State concluded by asking Juror B-15 some questions

about the burdens of proof that each side would have during the

sentencing phase of the trial. When the State first explained that its

burden of proof for the aggravating circumstances was higher than the

defendant’s burden for the mitigating circumstances, the juror said that

she felt the burden should be the same for both sides. JS 1128. When

the State then asked the juror if she would accept an instruction from

the court that she was to apply a lesser standard of proof to the

mitigating evidence, she replied, “I would accept less burden. At the

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same time, it shouldn’t be too light.” JS 1129. Juror B-15 later added

that the differing burdens “made sense,” that she could “accept” them,

and that she would follow the law. JS 1130-31.

Next, the defense questioned the juror. When defense counsel

asked her if she could “see how” mental deficits could be considered

mitigating evidence, she said, “Yeah, I could look into it, yeah.” JS 1138.

When defense counsel asked, “So if the defense presented evidence of

mitigating factors and did not prove them beyond a reasonable doubt, . .

. but proved them to some lesser standard, could you consider those

mitigating factors,” she replied, “Yes.” JS 1139. Defense counsel then

asked the juror to name the types of circumstances that she might

consider to be sufficiently mitigating to warrant a sentence of life without

parole. JS 1140-43. Based upon the juror’s responses to that question,

defense counsel said, “It sounds like it would have to be really

overwhelmingly convincing to persuade you not to impose the death

penalty.” JS 1143. Juror B-15 responded, “Yeah. Because taking a

person’s life is a very serious thing too. . . . The murder or me sending a

person to death is very serious too.” JS 1143.

Finally, the court posed a few additional questions. It asked if

Juror B-15 could “give as great a consideration to the mitigating factors

the defense presents as [she] would the aggravating the State presents.”

JS 1145. The juror responded that she would consider both sides’

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evidence “equally” and specifically said that she would consider

mitigating evidence of “child abuse, child neglect, or . . . background

when [the defendant]. . . was a younger person.” JS 1145.

At the conclusion of the voir dire of Juror B-15, the defendant

moved to exclude her for cause. He argued that she could not apply the

proper burdens of proof and that she could not give appropriate

consideration to all of the mitigating evidence that he intended to offer.

JS 1146. The State objected. It noted that the juror’s first language was

not English. JS 1147. It argued that she recognized the significance of

the decision whether to impose the death penalty, that she could

consider any mitigating evidence that was presented to her, and that she

could apply the correct standard of proof. JS 1148. After hearing

argument from both sides, the court declined to dismiss the juror for

cause, finding that she would not lightly impose the death penalty and

“would be a very fair juror to both sides.” JS 1149. Defense counsel

then exercised a peremptory strike. JS 1149. When the Court asked,

“So you didn’t want to see whether the State would [exercise a

peremptory] first,” defense counsel replied, “No. I think we have a pretty

fair idea how the State—.” JS 1149.

The voir dire of Juror A-8 was similar. The defense questioned

Juror A-8 first. Defense counsel asked the juror, “Is there a category of

cases where someone commits an intentional murder and is guilty of

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that intentional murder where you believe that life without parole instead

of death would be the appropriate sentence?” JS 407. Juror A-8 replied,

“Well, I haven’t really followed many cases where I would say that, but I

feel if somebody intentionally did it with no motive, then I would not have

a problem with that.” JS 407. Defense counsel then asked if the juror

would be willing to take into account evidence that the defendant had a

difficult life or childhood; the juror said yes. JS 408. Defense counsel

later asked almost the same question, wondering if a person’s

“upbringing,” “the type of opportunities they have had in their lives,” and

the “types of things that they have had to overcome” would play a role in

the juror’s decision-making. JS 422-23. The juror responded that his

decision would depend upon the evidence that he actually heard. JS

423. He further said that he would want both sides to prove to him that

the defendant was “really, really deserving” of a sentence of life

imprisonment or death. JS 423.

When the State questioned Juror A-8, it asked if he would consider

evidence that the defendant “had a very, very difficult upbringing and

very difficult circumstances compared to . . . an average person.” JS

425-26. The juror replied, “Not knowing what they might be, I would say

no.” JS 426. When the State sought clarification as to whether Juror A-

8 would fully consider the evidence presented to him, he said yes. JS

426. The juror also said that he would consider “mental health

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evidence.” JS 426. In fact, he said, “everything should be considered.”

JS 427. See JS 429 (juror confirms for the court that he would consider

evidence about the defendant’s background and financial and emotional

difficulties, and that such evidence might “be a reason” for him to

determine that the death penalty was not “warranted”).

At the conclusion of Juror A-8’s voir dire, the defendant moved to

exclude him for cause. He argued that the juror would be unable to give

appropriate consideration to the mitigation evidence. JS 429. The State

objected. It argued that the juror clearly expressed the ability to consider

mitigating evidence and to follow the court’s instructions. JS 431. After

argument from both sides, the court denied the defendant’s motion. It

found that the juror, although not particularly articulate, was “sincere”

and that his answers “were consistent with the law.” JS 431. The

defendant then exercised a peremptory challenge. JS 432.

In deciding whether the trial court erred by refusing to dismiss

Jurors B-15 and A-8 for cause, this Court’s first task will be to determine

the standard of review. The defendant suggests that a de novo standard

may be appropriate. DB 133. Further, citing case law from other

jurisdictions, he suggests that this Court should adopt the rule that “all

doubts regarding juror impartiality must be resolved in favor of the

accused.” DB 133 (quotation omitted).

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The problem with the defendant’s suggestions is that they are not

supported by New Hampshire case law. For one thing, “[t]he law here is

that the question of whether a juror is impartial is one of fact to be

determined by the Trial Court.” State v. White, 105 N.H. 159, 161 (1963).

See Matthews v. Jean’s Pastry Shop, Inc., 113 N.H. 546, 549-50 (1973)

(“the question of whether the juror was impartial was one of fact to be

determined by the Trial Court”). And, as with most other factual

questions that it reviews, this Court already has decided that it will not

reverse a trial court’s findings concerning juror bias unless they

constitute an unsustainable exercise of discretion or are against the

weight of the evidence. See State v. Goupil, 154 N.H. 208, 218 (2006)

(when a juror’s impartiality is questioned, the trial court has a duty to

determine whether or not the juror is indifferent, which “is a fact-specific

determination, [that this Court] will not reverse absent an unsustainable

exercise of discretion or a finding that the decision is against the weight

of the evidence”); State v. Wong, 138 N.H. 56, 67 (1993) (same).

Viewing the question of juror bias as one of fact, to be overturned

only upon a showing of an unsustainable exercise of discretion, makes

good sense. After all, in order to resolve questions about a potential

juror’s impartiality, the trial court must consider all of the circumstances

presented—not just the content of his or her answers. That is, the trial

court will need to consider the juror’s credibility, demeanor, apparent

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intelligence, and candor in answering the questions posed during voir

dire. State v. Barone, 969 P.2d 1013, 1019 (Or. 1998); see also

Wainwright v. Witt, 469 U.S. 412, 426 (1985) (“deference must be paid to

the trial judge who sees and hears the juror”). Those kinds of on-the-

spot judgments are precisely the types that this Court traditionally has

left within the sound discretion of the factfinder. See, e.g., State v. Giles,

140 N.H. 714, 718-19 (1996) (this Court defers to a factfinder’s on-the-

spot credibility determinations because “a trial transcript provides no

indication of a witness’s tone of voice or demeanor”).

With respect to the defendant’s assertion that this Court should

adopt a rule that “all doubts regarding juror impartiality should be

resolved in favor of the accused,” DB 133, neither the United States

Supreme Court nor this Court has ever held that it will apply any sort of

presumption that jurors are partial to one side or the other. Quite to the

contrary, both courts have determined that jurors are “presumed to be

impartial.” State v. Addison, 160 N.H. 493, 497 (2010); see Ross v.

Oklahoma, 487 U.S. 81, 86 (1988) (“The Constitution presupposes that a

jury selected from a fair cross section of the community is impartial,

regardless of the mix of individual viewpoints actually represented on the

jury. . . .” (Quotation and brackets omitted.)); cf. State v. Comtois, 122

N.H. 1173, 1175 (1982) (rules work to ensure a fair trial and to promote

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the discovery of truth; they should not be a “roadblock to justice for

either side”).

For at least two reasons, this Court should not retreat from that

long-standing principle. First, the defendant has not asked this Court to

overrule any of its own long-standing case law. Nor has he provided any

compelling or fully briefed reason to do so. So, his efforts to reshape the

standard of review do not rest upon sound procedural footing. State v.

Dodds, 159 N.H. 239, 248 (2009) (arguments not briefed are deemed

waived); State v. Blackmer, 149 N.H. 47, 49 (2003) (arguments not fully

briefed are deemed waived).

Perhaps more importantly, however, they do not rest upon sound

substantive footing either. Aside from extreme cases in which a would-

be juror’s answers demonstrate an obvious bias in favor of one side or

the other, appellate courts have recognized that there is simply no

substitute for the trial court’s firsthand observations of a venireman who

may not have the legal savvy of an attorney or who may, at least initially,

be somewhat confused about a very complicated area of criminal law like

death penalty litigation. See, e.g., Gardner v. State, 306 S.W.3d 274,

297-98 (Tex. Crim. App. 2009). As the Oregon Supreme Court explained:

[I]t is in situations in which a potential juror’s answers are contradictory or unclear that the trial court’s discretion most meaningfully may come into play. The trial court has the opportunity to observe the challenged juror and may develop a sense about the juror’s probable future behavior. Its observations may enable the trial court to make sense of

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seemingly contradictory statements. As such, even when a juror’s statements that support a trial court’s ruling on a challenge for bias are equivocal, there is good reason for applying our usual standard of review, i.e., abuse of discretion.

Barone, 969 P.2d at 1021. Accordingly, for the foregoing reasons, this

Court should review this case under the unsustainable exercise of

discretion standard and it should not adopt any sort of rule to the effect

that a juror will be deemed a partisan of the State in close cases.

In addition to deciding the standard of review, this Court will need

to confront another preliminary issue. “It is a long-standing rule that

parties may not have judicial review of matters not raised in the forum of

trial.” Bean v. Red Oak Prop. Mgmt., Inc., 151 N.H. 248, 250 (2004).

Further, it “is the burden of the appealing party . . . to demonstrate that [

]he raised [his] issues before the trial court.” Id. Here, the defendant

has asserted a violation of nine different constitutional provisions. “To

preserve a state constitutional claim, the defendant must: (1) raise it in

the trial court; and (2) specifically invoke a provision of the State

Constitution in his brief.” State v. Oakes, 161 N.H. 270, 285 (2010). To

preserve a federal constitutional claim, a defendant must refer to the

federal constitution in the trial court. Id. If a defendant fails to make the

requisite references to the state and federal constitutions, and if a

statutory basis for the appellate claim is available, this Court will decide

the claim on the basis of the applicable statute. Id.

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In the instant case, the defendant challenged both jurors for cause.

See generally JS 429-32, 1146-49. But with respect to Juror B-15, the

defendant did not cite any specific constitutional provisions as he was

articulating his challenges—let alone, the full nine that he relies upon

here. See JS 1146-49; DB 133. Further, the State has reviewed the

lengthy jury selection transcript and was unable to find any point at

which the defendant asked for some sort of standing objection or

agreement under which all of his for-cause challenges would be based

upon the nine constitutional provisions he cites on appeal. Accordingly,

this Court’s analysis of the issues involving Juror B-15 should be much

narrower than the broad, multipartite constitutional assault that the

defendant has briefed.8 That is, because the defendant did not properly

raise and preserve constitutional claims concerning Juror B-15 in the

trial court, his claims on appeal should be analyzed solely by reference to

RSA 500-A:12, II. See Oakes, 161 N.H. at 285.

With respect to Juror A-8, the defendant’s for-cause challenge was

based upon his “due process rights and rights to be protected against

cruel and unusual punishment under the New Hampshire and Federal

8 The State respectfully requests that this Court make clear the extent to which federal constitutional claims have been preserved or are deemed waived, for such procedural matters will become highly significant if this case proceeds to federal habeas corpus litigation. See, e.g., Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (explaining that, in most circumstances, if “the state court rejects the claim on procedural grounds, the claim is barred in federal court”).

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Constitutions.”9 JS 430. Those broad references to Eighth and

Fourteenth Amendment-type claims did not, even under the most

charitable of readings, put the trial court on notice that the defendant

intended to argue that Juror A-8’s continued service would amount to a

legislative abridgment of the right to a jury trial. See N.H. Const. pt. I,

art. 16. Accordingly, at a minimum, arguments based upon part I,

article 16 must be deemed unpreserved with respect to Juror A-8.

Once this Court resolves which of the defendant’s constitutional

arguments have been properly preserved, it will need to confront yet

another obstacle to reaching the merits. That is, the United States

Supreme Court and a growing majority of state courts have held that a

defendant’s rights to due process and to an impartial jury are “not denied

or impaired when [he] chooses to use a peremptory challenge to remove a

juror who should have been excused for cause.” United States v.

Martinez-Salazar, 528 U.S. 304, 317 (2000). Here, the defendant

exercised peremptory challenges to remove jurors A-8 and B-15.

Accordingly, under the reasoning of Martinez-Salazar, the trial court’s

rulings on the for-cause challenges did not result in the constitutional

violations that the defendant has asserted.

9 The qualifications required for impartial jurors during jury selection are not grounded in the Eighth Amendment. Wainwright v. Witt, 469 U.S. 412, 423 (1985).

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To explain more fully, in Martinez-Salazar, two codefendants were

tried together in federal court on several weapons and narcotics offenses.

Id. at 308. Federal Rule of Criminal Procedure 24(b) required that

codefendants be allotted ten peremptory challenges exercisable jointly in

the selection of twelve jurors. Id. The trial court allotted the ten

peremptory challenges required under the rule, and one additional

challenge to be used in the selection of an alternate juror. Id. During

jury selection, a venireman offered responses that suggested a bias in

favor of the prosecution, prompting the codefendants to ask the trial

court to dismiss the juror for cause. Id. at 308-09. The court refused

and Martinez-Salazar twice objected to the refusal. Id. The codefendants

thereafter peremptorily struck the juror from the panel and they

subsequently exhausted the remainder of their peremptory challenges.

Id.

On appeal, Martinez-Salazar argued that the trial court’s

erroneous refusal to dismiss the juror for cause resulted in a violation of

his right to an impartial jury under the Sixth Amendment and his right

to due process under the Fifth Amendment. Id. The United States

Court of Appeals for the Ninth Circuit rejected the defendant’s Sixth

Amendment challenge but granted relief under the Fifth Amendment. Id.

It reasoned that the trial court’s error in denying the for-cause challenge

forced the defendant “to use a peremptory challenge curatively, thereby

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impairing his right to the full complement of peremptory challenges to

which federal law entitled him.” Id. at 310.

The United States Supreme Court reversed. It began its analysis

by tracing the common law and legislative history of the peremptory

challenge. Id. at 311. It noted that peremptory challenges had been

authorized by statute or by the Federal Rules of Criminal Procedure since

1790. Id. at 311-12. It further noted that “such challenges are auxiliary;

unlike the right to an impartial jury guaranteed by the Sixth

Amendment, peremptory challenges are not of federal constitutional

dimension.” Id. at 311.

With that common law and legislative history in mind, the Court

turned to the merits. Relying upon Ross v. Oklahoma, 487 U.S. 81, 88

(1988), the Court flatly rejected any contention that the erroneous

rejection of a for-cause challenge and subsequent, curative use of a

peremptory strike, resulted in a violation of the Sixth Amendment right

to an impartial jury. In Ross, the Court had held that peremptory

challenges “are a means to achieve the end result of an impartial jury.

So long as the jury that sits is impartial, the fact that the defendant had

to use a peremptory challenge to achieve that result does not mean that

the Sixth Amendment was violated.” Ross, 487 U.S. at 88.

Having disposed of Martinez-Salazar’s Sixth Amendment challenge

on the basis of Ross, the Court then addressed his due process

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arguments under the Fifth Amendment. The Supreme Court

acknowledged the trial court’s erroneous ruling on the for-cause

challenge, but rejected the notion that any such error forced him to

challenge the venireman peremptorily, thereby reducing his allotment of

peremptory challenges by one. Martinez-Salazar, 528 U.S. at 315. The

Court reasoned:

A hard choice is not the same as no choice. Martinez-Salazar, together with his codefendant, received and exercised 11 peremptory challenges (10 for the petit jury, one in selecting an alternate juror). That is all he is entitled to under the Rule.

After objecting to the District Court’s denial of his for-cause challenge, Martinez-Salazar had the option of letting [the venireman] sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, Martinez-Salazar elected to use a challenge to remove [the venireman] because he did not want [the venireman] to sit on his jury. This was Martinez-Salazar’s choice. The District Court did not demand—and Rule 24(b) did not require—that Martinez-Salazar use a peremptory challenge curatively.

In choosing to remove [the venireman] rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. Moreover, the immediate choice Martinez-Salazar confronted—to stand on his objection to the erroneous denial of the challenge for cause or to use a peremptory challenge to effect an instantaneous cure of the error—comports with the reality of the jury selection process. Challenges for cause and rulings upon them . . . are fast paced, made on the spot and under pressure. Counsel as well as the court, in that setting must be prepared to decide, often between shades of gray, by the minute.

Id. at 315-16.

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The rules that the Supreme Court articulated in Ross and

Martinez-Salazar control the defendant’s federal constitutional claims

here. More importantly, however, they are sound and, for several

reasons, this Court should adopt them under the state constitution. For

one thing, Ross and Martinez-Salazar are consistent with this Court’s

published decisions. For example, in cases where the impartiality of a

juror has been challenged in some way, this Court has repeatedly

emphasized that it will examine the effect, if any, that the juror at issue

may have had upon deliberations. See, e.g., State v. Wong, 138 N.H. 56,

68 (1993) (one reason that a trial court’s error in refusing to dismiss a

juror was harmless is that the juror was made an alternate and did not

deliberate; “[n]ot every error affecting the selection or removal of jurors

requires reversal. The error will be found harmless if it appears beyond a

reasonable doubt that the error did not affect the verdict.” (Citations

omitted.)); State v. Hannan, 137 N.H. 612, 617 (1993) (one reason a trial

court’s error involving a juror was harmless is that the defendant was

not prejudiced by the juror’s presence on the jury); State v. Cere, 125

N.H. 421, 424 (1984) (where the trial court refused to question the entire

panel about their acceptance of the presumption of innocence, this Court

remanded to determine whether the actual jurors who sat held

problematic views). Accordingly, in New Hampshire, claims of a violation

of the constitutional right to an impartial jury are analyzed by reference

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to the jury that actually deliberated and rendered a verdict. See State v.

Anaya, 131 N.H. 330, 331 (1988) (citing Ross v. Oklahoma with approval

and rejecting the argument that the trial court abused its discretion in

not excusing a venireman for cause, thereby improperly forcing the

defendant to exercise a peremptory challenge).

With respect to the defendant’s due process arguments, it is true

that some state courts require automatic reversal in cases where a

defendant has used a peremptory strike to cure a trial court’s erroneous

denial of a for-cause challenge. See DB 155 (collecting cases). But in

those states, the use or exercise of a peremptory challenge has been

deemed a “substantial right.” See, e.g., Shane v. Commonwealth, 243

S.W.3d 336, 341 (Ky. 2008); People v. Macrander, 828 P.2d 234, 244

(Colo. 1992). By sharp contrast, this Court has decided that the jury

selection process, itself, is not an important substantive right. State v.

Wamala, 158 N.H. 583, 594 (2009) (holding in the context of a challenge

to the voir dire process); see State v. Prevost, 105 N.H. 90, 92-93 (1963)

(“This rule, applicable both to prosecution and defense, is based on the

proposition that it is more important to select an impartial jury than it is

to give either the prosecution or the defense a vested right in the

rejection of a juror.”). Rather, as the United States Supreme Court said

in Ross, the jury selection process is “but a means to achieve the end of

an impartial jury.” Compare Wamala, 158 N.H. at 594 with Ross, 487

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U.S. at 88. So, the doctrinal underpinning of the holdings in cases like

Macrander and Shane is simply absent from New Hampshire case law.

Even if this Court determines that its precedents do not compel it

to accept the rule set forth in Ross and Martinez-Salazar, there are other

reasons for it to do so. For example, as the Wisconsin Supreme Court

pointed out, a rule mandating automatic reversal in cases where a trial

court wrongly denied a for-cause challenge would require the appellate

court to reverse convictions and order new trials “in cases where the

[first] trial was nearly perfect and the verdict is unquestionably sound.”

State v. Lindell, 629 N.W.2d 223, 249 (Wis. 2001). That result is plainly

inconsistent with the widely accepted principle that “the Constitution

entitles a criminal defendant to a fair trial, not a perfect one.” Ross, 487

U.S. at 91 (brackets and quotation omitted); see Appeal of School

Administrative Unit #44, 162 N.H. 79, 85 (2011) (quoting a Connecticut

case for the same proposition).

Further, an automatic reversal rule would appear to favor

assumptions over record support. In cases where a defendant exhausted

his peremptory strikes, an automatic reversal rule would assume,

without regard to whether there was record support, that: (1) if the

defendant had one more peremptory challenge to deploy, he would have

used it against one of the jurors who actually decided his case; and (2)

this hypothetically preemptible juror somehow prejudiced the verdict. To

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require trial courts, victims of crime, witnesses, and the parties to

participate in new trials based upon hypothetical prejudice or dubious

assumptions would be to elevate technical and inconsequential error over

practical fairness. Historically, this Court has not favored such

outcomes. Cf. State v. Wall, 154 N.H. 237, 245 (2006) (“The harmless

error doctrine recognizes the principle that the central purpose of a

criminal trial is to decide the factual question of the defendant’s guilt or

innocence. The harmless error doctrine promotes public respect for the

criminal process by focusing upon the underlying fairness of the trial

rather than on the virtually inevitable presence of immaterial error.”

(Citation omitted.)). Further, by indulging the assumption that some

hypothetically preemptible juror may have prejudiced the defendant, this

Court would be undermining or eroding its long-stranding adherence to

the principle that jurors are presumed impartial. Addison, 160 N.H. at

497.

In addition, a rule requiring automatic reversal in circumstances

like those presented here “puts the defendant in a ‘win-win’ situation.”

Lindell, 629 N.W.2d at 248.

If the [trial] court erroneously fails to exclude a prospective juror who should be struck for cause, the defendant may take his or her chances and refuse to exercise a peremptory challenge, wait until the jury renders its verdict, appeal if he or she does not like the result, and then receive a new trial. On the other hand, the defendant may exercise a peremptory challenge and strike the prospective juror, then claim[,] after [a] trial that produces a bad result[,] that his or her due

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process was violated. The latter rule applies even though the defendant’s peremptory strike comes so quickly that the prosecutor has no chance to use a strike to correct the error. This sort of gamesmanship does not instill confidence in our system of justice.

Id. at 248-49 (citation omitted); accord State v. Hickman, 68 P.3d 418,

426 (Ariz. 2003). And it undermines the principle that a criminal

defendant is entitled to a fair and impartial jury—not the jury that he

thinks provides the best opportunity for an acquittal. Ross, 487 U.S. at

87-88.

In light of the many sound reasons supporting the rules from Ross

and Martinez-Salazar, it should be no surprise that they represent the

view of an “ever-growing majority of state courts.” Kopsho v. State, 959

So. 2d 168, 175 (Fla. 2007) (Bell, J., concurring); see also Green v.

Maynard, 564 S.E.2d 83, 85 (S.C. 2002) (“Since Martinez-Salazar was

decided, a majority of state courts considering the issue have interpreted

their state constitutions to conform to its holding.”).10

10 See, e.g., Dailey v. State, 828 So. 2d 340, 343-44 (Ala. 2001) (an erroneous ruling on a for-cause challenge does not require reversal as long as the jury that actually heard the case was impartial); Minch v. State, 934 P.2d 764, 769-70 (Alaska Ct. App. 1997) (similar); State v. Hickman, 68 P.3d 418, 424 (Ariz. 2003) (similar); Bangs v. State, 998 S.W.2d 738, 744-45 (Ark. 1999) (similar); People v. Yeoman, 72 P.3d 1166, 1185 (Cal. 2003) (similar); State v. Pelletier, 552 A.2d 805, 810 (Conn. 1989) (similar); Manley v. State, 709 A.2d 643, 655 n.15 (Del. 1998) (similar); State v. Ramos, 808 P.2d 1313, 1314-15 (Idaho 1991) (similar); People v. Harris, 596 N.E.2d 1363, 1366 (Ill. App. Ct. 1992) (similar); Dye v. State, 717 N.E.2d 5, 18 n.13 (Ind. 1999) (similar); State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993) (similar); State v. Manning, 19 P.3d 84, 96-98 (Kan. 2001) (similar), disapproved on other grounds by State v. King, 204 P.3d 585, 594 (Kan. 2009); People v. Bell, 702 N.W.2d 128, 138-39 (Mich. 2005) (similar); State v. Barlow, 541 N.W.2d 309, 311-12 (Minn. 1995) (similar);

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In urging this Court to turn its back on the majority view, the

defendant argues, “If this Court would affirm the judgment regardless of

erroneous denials of challenges for cause, it would equally have to affirm

a judgment where the trial court arbitrarily reduced the number of

peremptory challenges allocated to defendant by New Hampshire law.”

DB 156. Not so. Due process is offended by a procedure that results in

an arbitrary or deliberate denial of “that which state law provides.” Ross,

487 U.S. at 89. So, as both Ross and Martinez-Salazar recognize, if a

trial judge were to arbitrarily or deliberately take away the peremptory

challenges required under a state statute like RSA 606:3, I, reversal

would be in order. See Martinez-Salazar, 528 U.S. at 316; Ross 487 U.S.

at 89. But that is not what happened here. In this case, the defendant

was allowed more peremptory challenges than required under

Mettetal v. State, 602 So. 2d 864, 869 (Miss. 1992) (similar); State v. Storey, 40 S.W.3d 898, 904-05 (Mo. 2001) (similar, but decided on a purely statutory basis); State v. Quintana, 621 N.W.2d 121, 134 (Neb. 2001) (similar); Blake v. State, 121 P.3d 567, 578 (Nev. 2005) (similar); State v. DiFrisco, 645 A.2d 734, 753 (N.J. 1994) (similar); State v. Entzi, 615 N.W.2d 145, 149 (N.D. 2000) (similar); Myers v. State, 17 P.3d 1021, 1026-28 (Okla. Crim. App. 2000) (similar), overruled on other grounds by James v. State, 152 P.3d 255, 257 (Okla. Crim. App. 2007); State v. Barone, 969 P.2d 1013, 1018-19 (Or. 1998) (similar); Maynard, 564 S.E.2d at 85-87 (similar); State v. Verhoef, 627 N.W.2d 437, 440-42 (S.D. 2001) (similar); State v. Middlebrooks, 840 S.W.2d 317, 329 (Tenn. 1992) (similar), superseded by statute on other grounds by Tenn. Code Ann. § 39-13-204(i)(7) (Supp.1995); State v. Baker, 935 P.2d 503, 506 (Utah 1997) (similar); State v. Fire, 34 P.3d 1218, 1220 (Wash. 2001) (similar); State v. Lindell, 629 N.W.2d 223, 243-46 (Wis. 2001) (similar); Klahn v. State, 96 P.3d 472, 480-84 (Wyo. 2004) (similar).

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RSA 606:3, I, and he alone chose when and how he would use each of

them.

Accordingly, because the automatic reversal rule is applied in a

shrinking minority of states, because it is inconsistent with this Court’s

case law, and because it represents an unsound practice that

necessitates reversal even when the deliberating jury is unquestionably

impartial, this Court should refuse to adopt it. Instead, this Court

should join the federal courts and the increasing majority of state courts

in holding that a defendant’s voluntary use of a peremptory strike to cure

an allegedly erroneous denial of a for-cause challenge necessitates

reversal only when the jury that actually sat and deliberated the case

was not impartial.

Application of the majority rule in the instant case compels

affirmance. Here, the defendant was entitled to twenty peremptory

challenges. RSA 606:3, I. He was given twenty-four. JS 87. There is no

allegation that the defendant’s peremptory challenges were subject to

later, arbitrary diminution by the court. Further, there is no evidence

that the trial court acted arbitrarily or capriciously in denying the

defendant’s for-cause challenges. Instead, for all that appears in the

record, the trial court gave each side’s challenges due consideration.

Equally important, on appeal, the defendant has not argued that

any specific juror who actually deliberated in his case was biased or

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incompetent. Further, it appears as though the defendant challenged

only one of the deliberating jurors for cause during the jury selection

process and he has not pursued any appellate arguments concerning her

selection on appeal. JS 2651-54. Thus, the only specific jurors that the

defendant has urged this Court to find problematic were removed from

the venire through his exercise of peremptory strikes. As the United

States Supreme Court pointed out in Martinez-Salazar, 528 U.S. at 315-

16, the defendant was free to exercise his peremptory challenges to

remove Jurors A-8 and B-15 or to allow them to sit on his jury and, upon

conviction, pursue a Sixth Amendment claim. He chose the former.

Because that result was not forced upon him and because he has not

shown that biased or incompetent jurors decided his case, his appellate

contentions should fail.

Even if this Court considers the merits of the defendant’s claims,

they still should be rejected. The trial court correctly concluded that

neither Juror A-8 nor Juror B-15 needed to be excluded for cause. “It is

a fundamental precept of our system of justice that the defendant has

the right to be tried by a fair and impartial jury.” Addison, 160 N.H. at

497; see also N.H. Const. pt. I, art. 35 (“It is the right of every citizen to

be tried by judges as impartial as the lot of humanity will admit.”). Any

juror who is not indifferent must be excused from the trial of a case.

RSA 500-A:12, II. “To be indifferent, a juror need not come into the trial

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with no information or impression of the nature of the case.” State v.

Weir, 138 N.H. 671, 676 (1994). “It is sufficient if the juror can lay aside

[his or her] impression or opinion and render a verdict based on the

evidence presented in court.” State v. Laaman, 114 N.H. 794, 800

(1974). In the context of a death penalty case, the United States

Supreme Court has described the question of indifference as being

“whether the juror’s views would substantially impair the performance of

his duties as a juror in accordance with his instructions and his oath.”

Wainwright, 469 U.S. at 424 (quotation and footnote omitted); see Adams

v. Texas, 448 U.S. 28, 45 (1980); see also State v. Comery, 78 N.H. 6, 11-

12 (1915) (discussing when veniremen may be seated as jurors in a

capital case).

Although this Court has not had occasion to apply the Wainwright

standard in a death penalty case, many other courts have. For example,

in State v. Barone, 969 P.2d 1013, 1020 (Or. 1998), defense counsel

asked a prospective juror, “Can you think of any situation, intentional

murder that has those kinds of aggravating circumstances, can you

think of any situation where the death penalty is not appropriate?” The

juror replied, “Not really.” Id. Defense counsel then asked if there was

“any situation in which you could sentence or respond no to the question

should a defendant receive a sentence of death?” Id. The juror replied, “I

can’t think of any.” Id. Later, however, when defense counsel asked if

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the juror would follow the trial judge’s instructions to consider mitigating

evidence, the juror repeatedly said yes. Id. at 1020-21. The defendant

unsuccessfully challenged the juror for cause, arguing that her views

were “extreme” and that she was too inclined to impose the death

penalty. Id. at 1020.

On appeal, the Oregon Supreme Court upheld the trial court’s

refusal to dismiss the juror for cause. It reasoned that juror bias “does

not arise out of the fact that the challenged juror holds certain views, but

out of the fact that those views are likely to impair the juror’s

performance of his or her duties.” Id. at 1021. The court acknowledged

that some of the juror’s answers appeared contradictory, but it insisted

that “it is in situations in which a potential juror’s answers are

contradictory or unclear that the trial court’s discretion most

meaningfully may come into play.” Id.

Similarly, in State v. Group, 781 N.E.2d 980, 991 (Ohio 2002), a

prospective juror wrote in her questionnaire, “I firmly believe in the death

penalty.” The juror said during voir dire that killers “should just be put

to death.” Id. She added, “I don’t understand why somebody—you

would give somebody a lesser sentence than death if they killed

someone.” Id. (brackets omitted). Later, when defense counsel asked if

he could present any evidence that she might find “important” to “weigh

against the possibility of death,” she said, “I don’t think so.” Id. But, the

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juror also acknowledged that “there are certain murder cases where the

death penalty would not be appropriate and that in some instances 30

years of imprisonment would be a fair sentence.” Id. The juror also said

that she would want to know the reason that the defendant committed

the crime and that she “might” consider mitigating evidence, such as

whether the defendant had been a “hard worker,” had a mental disease,

or grew up “in a one-parent household.” Id. at 992. Based upon the

juror’s responses, the defendant unsuccessfully challenged her for cause,

arguing that she would not consider mitigation evidence if it was

presented. Id.

On appeal, the Ohio Supreme Court upheld the trial court’s refusal

to dismiss the juror for cause. It noted that some of her answers were

equivocal but, like the Oregon Supreme Court, it concluded that “where a

prospective juror gives contradictory answers on voir dire, the trial judge

need not accept the last answer elicited by counsel as the prospective

juror’s definitive word.” Id. Instead, the court said, it was for the trial

court to “determine which answer reflects the juror’s true state of mind.”

Id. (quotation omitted). And based upon its review of the entire record,

the Ohio Supreme Court was unable to conclude that the trial court

erroneously found that the juror could consider mitigating evidence and

obey her instructions and oath. Id.

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The Louisiana Supreme Court confronted similar circumstances in

State v. Blank, 955 So. 2d 90, 114-20 (La. 2007). There, during voir dire,

two jurors expressed views that prompted the defendant to challenge

them for cause. Id. One juror said that he could consider mitigating

circumstances, but then added that if the defendant’s guilt were

established, he would vote for the death penalty. Id. at 114-15. When

defense counsel pressed the juror on the subject of mitigating evidence,

the juror said that he would consider some of it but that other aspects of

it “wouldn’t swing” him. Id. at 115. The other juror said that he could

consider mitigating evidence, but then added that he would also need to

think about how he would feel if he were a member of the victim’s family.

Id. at 119.

In upholding the trial court’s refusal to dismiss these two jurors for

cause, the Louisiana Supreme Court noted that

even a strong predisposition towards capital punishment does not disqualify a prospective juror, or at least a trial judge does not abuse his or her broad discretion by so finding, if the juror’s responses as a whole fairly support a conclusion that the juror would keep an open mind about penalty, no matter how grudgingly, until all of the evidence has been presented.

Id. at 117.

Barone, Group, and Blank are not outliers. See Winstead v.

Commonwealth, 283 S.W.3d 678, 685-87 (Ky. 2009) (upholding the trial

court’s refusal to dismiss a juror who said that a defendant’s poverty and

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family life would not bear upon his decision whether to impose the death

penalty because the juror said that he would consider mitigating

evidence and would not automatically impose the death penalty); State v.

Cummings, 648 S.E.2d 788, 800-03 (N.C. 2007) (upholding trial court’s

refusal to strike a juror for cause after the juror said that the death

penalty should be imposed for premeditated, first-degree murder, but

then said he would follow the court’s instructions); Myers v. State, 17

P.3d 1021, 1027 (Okla. Crim. App. 2000) (upholding trial court’s refusal

to strike a juror for cause after the juror said that the death penalty was

often more appropriate in cases of first degree murder, but that she

would consider all punishment options available under state law);

Gardner v. State, 306 S.W.3d 274, 296-98, 299 (Tex. Crim. App. 2009)

(upholding the trial court’s refusal to dismiss several veniremen for cause

on the basis that they could not adequately consider mitigating evidence;

one venireman said that he would consider evidence of birth, upbringing,

and environment in assessing punishment, but he did not “personally

find them relevant”); Allridge v. State, 850 S.W.2d 471, 481-82 (Tex.

Crim. App. 1991) (similar).

The principle underlying the above-described cases—that a

venireman need not be disqualified from serving on a jury simply

because he comes to the case with certain preconceived ideas—is one

that this Court has embraced and applied for years in deciding questions

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of juror bias. For example, in State v. Sawtelle, 66 N.H. 488, 537 (1891),

the defendant argued that his right to an impartial jury was violated

when a juror was empanelled despite his assertion that he already had

“formed opinions which [we]re so strong that it would require evidence to

change them.” This Court rejected that argument, reasoning that the

question was not whether those examined as to their judicial competency could change their minds without cause, but whether they could and would disregard the information they had received and the opinions they had formed concerning the case, and render a verdict on nothing but the evidence given them during the trial.

Id. at 538. Some thirty years later, in State v. Rheaume, 80 N.H. 319,

319 (1921), this Court confirmed that the mere fact that a juror had

formed and expressed an opinion upon the merits did not necessarily

disqualify him from serving on the trial. And that principle has endured.

See, e.g., State v. Cross, 128 N.H. 732, 737 (1986) (even if a juror says

that he is doubtful about the presumption of innocence, there is no

requirement that he be removed unless he also says that he will not

follow the court’s instructions). Accordingly, the defendant’s argument

that this Court has adopted some higher or more rigid standard for

analyzing claims of juror bias should not be well-taken. DB 142-43.

When applied to the instant case, the principles discussed in the

preceding paragraphs compel the conclusion that neither Juror A-8 nor

Juror B-15 harbored views that would have substantially impaired their

performance of the duties required by their oath as jurors. With respect

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to Juror A-8, he said that he would be willing to consider mitigating

evidence concerning the defendant’s mental health, difficult life

circumstances, or difficult childhood. JS 408, 426. He also said that he

would fully consider the evidence presented to him. JS 426. In fact, he

said, “everything should be considered.” JS 427. See JS 429 (juror

confirms for the court that he would consider evidence about the

defendant’s background and financial and emotional difficulties, and

that such evidence might “be a reason” for him to determine that the

death penalty was not “warranted”). Accordingly, far from being

unwilling or unable to give consider and give effect to the defendant’s

mitigating evidence, Juror A-8 expressly said that he would take it into

account when deciding the case.

With respect to Juror B-15, she acknowledged that the decision

whether to impose the death penalty was “a big responsibility” and that it

was not to be taken “lightly.” JS 1123. She said that, if instructed to do

so, she would consider the defendant’s mental health, background,

childhood, and upbringing as mitigating evidence. JS 1125, 1138. She

also said that she would give the defense a “fair opportunity,” listen to all

of the defendant’s evidence, not automatically vote for the death penalty,

and require the State to fully convince her that the defendant deserved to

be put to death. JS 1126-27. Although initially confused about the

burden of proof for each side, see, e.g., JS 1128-29, Juror B-15 finally

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said that the differing burdens “made sense,” that she could “accept”

them, and that she would follow the law, JS 1130-31, 1139, 1145.

Accordingly, the trial court did not commit an unsustainable exercise of

discretion in refusing to dismiss Juror B-15 for cause.

While it is true that some of the jurors’ answers, in isolation, may

provide fodder for the defendant’s claim that they were not impartial,

three points bear mention. First, the jurors’ allegedly “incorrect” or

biased answers, when considered in context, represented more of an

initial misconception about the applicable legal principles than some

deeply held or rigid belief that would “substantially impair” their ability to

follow the court’s instructions and decide the case fairly. Wainwright,

469 U.S. at 424 (emphasis added). Second, the defendant faults both

jurors for being unable to answer hypothetical questions about the

circumstances under which mitigating evidence might justify a sentence

of life without parole. See, e.g., DB 146, 151. But the defendant’s

hypothetical questions were confusing and difficult to answer, especially

for non-lawyers. In fact, the trial court twice discussed that issue with

defense counsel and at one point it actually said that it felt “bad for the

jurors.” JS 508, 2085-88. Third, the trial court was permitted, in its

broad discretion, to take into account not just the content of the jurors’

answers, but also their tone of voice, credibility, and demeanor in

assessing whether they could follow instructions and render a fair

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verdict. The trial court did so. See JS 431, 1149. Taken together, its

observations of the jurors and the record of their entire voir dire provide

ample support for the decision to deny the for-cause challenges. As the

many cases cited above make clear, a juror’s inconsistent answers or

initial misunderstandings about a complex area of law are not enough to

establish error in the denial of a for-cause challenge. See, e.g., Winstead,

283 S.W.3d at 685-87; Group, 781 N.E.2d at 991; Barone, 969 P.2d at

1021.

Further, none of the cases cited by the defendant compels a

contrary conclusion. For example, he relies heavily upon White v.

Mitchell, 431 F.3d 517 (6th Cir. 2005). DB 150-51. There, after some

equivocation, a juror eventually said that she would consider all of the

evidence and follow the law, but she refused to confirm that she would

fairly decide the case. Id. at 540-41. Further, the juror said that she (1)

already had determined that death was an appropriate punishment

based upon media reports that she had seen, (2) “relished” the idea of

meting out a death sentence, and (3) “believed that her anticipated

outcome of the case was the true and honest one.” Id. at 541. Under

those circumstances, the Sixth Circuit held that the juror's presence on

the jury during the penalty phase resulted in a violation of the right to a

fair trial. Id. at 542.

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Nothing so dramatic happened here. Neither Juror A-8 nor Juror

B-15 “relished” the thought of sending the defendant to death. Further,

neither juror expressed such a firm belief that the defendant was guilty

and should be executed. More importantly, however, both jurors gave

responses that, when considered as a whole, demonstrated that they

could set aside whatever beliefs they may have harbored and decide the

case fairly.

In conclusion, claims involving the allegedly erroneous denial of a

for-cause challenge are analyzed by deciding whether an impartial jury

actually deliberated in the case. Here, the defendant voluntarily

exercised a peremptory strike to remove jurors A-8 and B-15 from the

venire. Therefore, because those two jurors did not deliberate in this

case and because the defendant has not identified any specific

deliberating juror who harbored an impermissible bias, his appellate

contentions should be rejected. Even if this Court declines to analyze the

defendant’s arguments by reference to the jury that actually deliberated,

however, his conviction still should be upheld. Both of the jurors at

issue here made clear that they could decide the case fairly and with due

regard to the trial court’s instructions and their oath.

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IV. THE TRIAL COURT CORRECTLY PERMITTED THE STATE TO OFFER EVIDENCE OF THE CRIMES THAT THE DEFENDANT PERPETRATED IN THE DAYS LEADING UP TO BRIGGS’S MURDER BECAUSE SUCH EVIDENCE DEMONSTRATED THE DEFENDANT’S MOTIVE, INTENT, AND KNOWLEDGE, ALL THREE OF WHICH WERE THE MOST HOTLY CONTESTED ISSUES AT TRIAL.

The defendant contends that the trial court erred by allowing the

State to introduce evidence of the crimes that he committed in the week

leading up to Briggs’s death. DB 158. He asserts that such evidence

“shed no legitimate light on the issues in dispute,” was unnecessary in

light of alterative evidence that the State could have presented to prove

its case, and was unfairly prejudicial. DB 158. He rests his claim of

error upon Rules of Evidence 401, 403, and 404(b), part I, article 15 of

the New Hampshire Constitution, and the Fifth and Fourteenth

Amendments to the United States Constitution. DB 158. The

defendant’s arguments must be rejected.

Before trial, the parties filed dueling motions concerning the

admissibility of the evidence at issue. For his part, the defendant

initially contended that the trial court was required to exclude all

evidence of the crimes that he committed in the week before he murdered

Briggs, and all evidence of prior convictions or uncharged misconduct.

See Def’s Mot. In Lim.: Trial Phase Evid. That Addison Was Wanted For

Other Crimes At The Time of Shooting (filed Aug. 18, 2008) (hereinafter,

“DMIL 1”); Def’s Mot. In Lim.: Character and Related Evid. (filed August

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18, 2008) (hereinafter, “DMIL 2”). He argued that there was a

“particularly acute” risk that the jury would consider such evidence for

an improper purpose such as propensity. DMIL 1 at 3. He further

argued that the “incremental probative value [of the evidence] [was]

substantially outweighed by its prejudicial impact.” DMIL 1 at 4. He

also raised the specter of a “trial within a trial” if any factual

disagreements arose concerning his earlier conduct. DMIL 1 at 5.

For its part, the State filed a 54-page motion in limine, arguing that

evidence of the defendant’s “participation in two armed robberies, a

shooting at Edward J. Roy Drive, and his possession and use of the

murder weapon in the days leading up to the fatal shooting of Police

Officer Michael Briggs, as well as [his] status as a convicted felon,” was

relevant and admissible because it bore upon “several contested and

material trial issues.” State’s Mot. In Lim. No. 2 (filed August 18, 2008)

(hereinafter “SMIL 2”). Over a span of some thirteen pages, the State

made a detailed offer of proof concerning the specific evidence that it

sought to introduce. SMIL 2 at 3-16. It argued that the evidence was

admissible to prove motive, intent, lack of accident, knowledge, and

identity. SMIL 2 at 18-36. It also argued that the evidence was

admissible to provide context for certain statements that the defendant

made before the murder. SMIL 2 at 37-38. And it contended that the

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probative value of the evidence was not substantially outweighed by any

prejudicial effect. SMIL 2 at 39-53.

Both parties then filed responsive pleadings identifying various

perceived faults with the other side’s position. For example, the

defendant reiterated his view that the State could prove its case without

the evidence that it sought to admit. See Def’s Obj. to State’s Mot. In

Lim. #2 (filed August 28, 2002) at 2-3. He also asserted, notwithstanding

the State’s thirteen-page written proffer, that it was “difficult to formulate

specific objections to the evidence because the State had not made clear

what evidence it would introduce.” Id. at 3-4. Then, he faulted the State

for relying upon case law from other jurisdictions, id. at 5, and

contended that this Court’s Rule 404(b) jurisprudence was “more

restrictive” than that of its counterparts around the country, id. at 5-6.

Finally, he represented that he would not mount an accident defense at

trial and asserted that the evidence at issue therefore should not have

been admitted to disprove that the shooting was an accident. Id. at 6.

The State reiterated or emphasized many of the arguments made in its

original motion in limine. See State’s Resp. to Def’s Mot. In Lim. To

Preclude Evid. And Information Pertaining to Certain Aspects of His

Personal History and Character (filed August 28, 2008); State’s Resp. to

Def’s Mot. In. Lim. To Preclude Evid. And Information Regarding His

Commission of Other Crimes (filed Aug. 29, 2008).

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The court convened a hearing on the issue on September 3, 2008.

At the hearing, the State emphasized that the evidence at issue was

highly probative as to the defendant’s motive and intent to kill Briggs.

T(9/3) at 11, 19-20. To that end, the State argued that the jury needed

to understand the “basic factual predicate” for each of the crimes

committed in the week leading up to Briggs’s murder so that it could

appreciate the grave circumstances that the defendant would face if he

was apprehended. Id. at 13. The State also took issue with the

defendant’s assertion that it could prove its case without the disputed

evidence. Id. at 14-17. The defendant countered that the State was

seeking to admit a significant amount of extrinsic evidence that would

result in unfair prejudice. Id. at 25. He reiterated that he did not intend

to mount an accident defense, but said that he was unable to rule out

contesting opportunity and identity. Id. He also said that he failed to

see a “logical nexus” between a motive to kill and the fact that the

defendant had committed several serious crimes immediately before he

shot Briggs. Id. at 27. He acknowledged that evidence of the Edward J.

Roy Drive shooting might have been admissible, but said that it would be

wholly unnecessary for the State to elicit information about the 7-Eleven

and El Mexicano robberies. Id. at 31-32.

By order dated October 15, 2008, the trial court granted the State’s

motion and denied the defendant’s. See Order on State’s Mot. in Lim.

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No. 2 (Guilt Phase) and Def’s Mot. in Lim.: Trial Phase Evidence That

Addison Was Wanted For Other Crimes At Time Of Shooting (filed Oct.

15, 2008) (hereinafter, “Order”). The court began its analysis by noting

that it had presided over the trials arising out of the El Mexicano

robbery, the 7-Eleven robbery, and the shooting on Edward J. Roy Drive.

Order at 2. It then expressly adopted the statement of facts set forth in

the State’s motion. Id. It ruled that the fact that the defendant

committed serious crimes within a week of Briggs’s murder, knew the

police were looking for him in connection with those crimes, and was a

convicted felon who could not possess a firearm, were all relevant to

prove his motive for shooting Briggs, his intent to do so, and his

knowledge that Briggs was a police officer. Id. at 4. Such evidence, the

court found, was “highly probative” because it tended to show that the

defendant “had a powerful incentive to elude [the police] by whatever

means.” Id. at 5. In addition, the court found that the evidence “easily

met” the clear proof prong of a Rule 404(b) analysis and that any

prejudice to the defendant did not substantially outweigh the probative

value of the evidence. Id. at 6. The court also offered to give limiting

instructions if the defense proposed or requested them. Id. at 8.

After the court issued its ruling, it asked the State to make an offer

of proof regarding the evidence that it would discuss during its opening

statement. T(10/14) 3-4. In response, the State made an oral proffer

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that was consistent with the written one that it had offered in its motion

in limine. Compare T(10/14) 5-12 with SMIL 2 at 3-16. At trial, the

State elicited information about the El Mexicano robbery, the 7-Eleven

robbery, and the shooting on Edward J. Roy Drive as described in the

Statement of Facts set forth earlier in the State’s brief. Rather than

repeat the Statement of Facts, the State incorporates it here by reference.

The trial court’s ruling did not run afoul of the rules of evidence or

the due process provisions of the state and federal constitutions.11 Rule

404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

N.H. R. Ev. 404(b).

Under Rule 404(b), evidence of other acts is inadmissible unless: (1) it is relevant for a purpose other than to show the person’s bad character or disposition; (2) there is clear proof that the person committed the other crimes or acts; and (3)

11 The State analyzes the issue by reference to Rule 404(b) because that is the approach taken in the defendant’s brief. In so doing, the State in no way intends to suggest that the analysis or outcome would be different under the state or federal constitutions. To the contrary, the State maintains that for the very same reasons the trial court’s ruling did not run afoul of Rule 404(b), it likewise did not run afoul of constitutional due process protections. See, e.g., State v. White, No. 2010-526, slip op. at 8 (N.H. Mar. 9. 2012) (due process is violated by a trial procedure that is fundamentally unfair). Further, since the defendant did not explain in his brief why the state or federal constitution would compel a different result from that reached under Rule 404(b), the issue is waived in any event. State v. Hancock, 156 N.H. 301, 305-06 (2007) (arguments not briefed are deemed waived).

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the prejudicial effect of the evidence does not substantially outweigh its probative value.

State v. Pepin, 156 N.H. 269, 277 (2007) (quotation omitted).

With respect to the first prong of the test, “[t]here must be a clear

connection between the particular evidentiary purpose and the other bad

acts.” State v. Douthart, 146 N.H. 445, 447-48 (2001) (quotation and

ellipsis omitted). In addition, “the act must be fairly close in time . . . to

material events constituting the crime charged.” State v. Richardson,

138 N.H. 162, 167 (1993).

Here, as the trial court aptly found, the evidence at issue served to

establish motive, intent, and knowledge. Order at 4. The State begins

with motive, which has been defined as “supplying the reason that

nudges the will and prods the mind to indulge in criminal intent.” State

v. Costello, 159 N.H. 113, 119 (2009) (quotation omitted).

It is “well established that where the motive for a crime charged is

the concealment of a prior crime, evidence of the prior crime is

admissible for the limited purpose of showing motive.” State v.

Martineau, 116 N.H. 797, 798-99 (1976); see State v. Smalley, 151 N.H.

193, 196-99 (2004) (evidence of uncharged drug deals was admissible to

establish a motive for murder); State v. Avery, 126 N.H. 208, 213 (1985)

(evidence of a defendant’s involvement in an uncharged murder was

admissible to show motive for charged murder); State v. Cantara, 123

N.H. 737, 738-39 (1983) (evidence of a prior conviction for harassment

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admissible to show motive for criminal threatening charge, regardless

whether the State had other evidence through which it could have proved

motive).

The sound rationale for admitting evidence of motive is one that

this Court explained over a century ago:

The absence or presence of motive renders the alleged fact less or more probable. . . . Motive does not itself prove guilt. It is a unit contributing to make the sum total of proof . . . . The natural and logical course of human thought, when a crime has been committed, is to inquire, What motive could have influenced a sane person to do such an act?

State v. Palmer, 65 N.H. 216, 218 (1889). In light of this Court’s

recognition that it is “natural” for jurors to ask themselves why an

otherwise senseless act may have occurred, the prosecution runs a very

real risk of undermining its own case if it fails to offer some form of

answer to that question. State v. Glidden, 123 N.H. 126, 135 (1983);

State v. Dearborn, 59 N.H. 348, 349 (1879) (while it is “undoubtedly true

that a motive is never required to be shown in order to establish the fact

of a person’s guilt[,] . . . it is also true that the absence of any apparent

motive is always a fact in favor of the accused”); cf. Old Chief v. United

States, 519 U.S. 172, 188 (1997) (“If jurors’ expectations are not

satisfied, triers of fact may penalize the party who disappoints them by

drawing a negative inference against that party.” (Quotation and

brackets omitted.)). Evidence of motive, therefore, is “an important

element in a chain of presumptive proof.” Dearborn, 59 N.H. at 349.

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Here, evidence of the El Mexicano robbery, the 7-Eleven robbery,

the shooting on Edward J. Roy Drive, the defendant’s status as a

convicted felon, and the fact that he previously had possessed the

murder weapon, together explain why the defendant had every reason

not to stop when Briggs commanded him to do so. That is, he had a very

strong incentive to avoid being apprehended and brought to court to

answer for his earlier and very serious criminal behavior. If he had just

run away or fired a shot to try to scare off the police, his apprehension

likely would have been imminent. It was only by murdering Briggs that

he could hope to stop the person who was most immediately trying to

apprehend him, delay or distract other officers from reaching him, and

flee successfully from the police.

The defendant suggested to the trial court that any criminal would

possess a fear of, or desire to avoid, apprehension. T(9/3) 27.

Regardless whether that point is true, the defendant was not a small-

time misdemeanant facing a possible fine or a low-level felon facing some

minimal term of incarceration. Nor was he someone who had committed

a slew of offenses over time, the bulk of which the police may not even

have known about or connected to him. Rather, he was a serial offender

who, as the trial court recognized, had been on a serious crime spree

over the course of the preceding week and was facing “many years of

imprisonment if apprehended by the police.” Order at 5.

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The magnitude of his potential punishment and the fact that he

knew the police were searching for him presented him with an unusually

“powerful incentive to elude the[ ] grasp [of the police] by whatever

means.” Id. So, the evidence at issue explains not just why the

defendant chose to flee or may have wanted to avoid capture, but also

why he elected to take the unusually drastic step of shooting Briggs in

the head in an effort to ensure, as best he could, that his flight would be

successful. See Lesko v. Owens, 881 F.2d 44, 53-55 (3d Cir. 1989) (prior

crimes evidence—an uncharged murder—was relevant and admissible

because it explained why the defendant would take the “extreme” step of

killing a law enforcement officer who tried to apprehend him); United

States v. Puff, 211 F.2d 171, 175 (2d Cir. 1954) (evidence of prior robbery

was admissible to explain why the defendant had a motive to shoot his

way out of a hotel to avoid capture); State v. Hampton, 843 P.2d 483, 486

(Or. Ct. App. 1992) (“A jury could reasonably infer that the degree of

force that a defendant used was proportional to the degree of fear that he

had of becoming subject to the victim [police officer’s] control.”); State v.

Pearson, 943 P.2d 1347, 1351 (Utah 1997) (“The only question for the

jury was whether [the defendant] intended to kill the officer or did so

recklessly. The more reasons [the defendant] had to kill the officer and

thus evade capture and future dealings with law enforcement, the more

plausible was the State’s theory that he did so intentionally rather than

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recklessly.”); State v. Anderson, 864 P.2d 1001, 1006-07 (Wash. Ct. App.

1994) (“the trier of fact may permissibly infer that a defendant

incarcerated on several serious felonies would have a greater motive and

intent to cause serious bodily injury to a police officer while attempting

to escape than a defendant incarcerated on a single felony”). Equally

important, the defendant made motive a contested issue at trial, TG 64,

which only served to heighten the probative value of the evidence. See

State v. Fernandez, 152 N.H. 233, 242 (2005) (the superior court is

justified in assigning high probative value to evidence when the evidence

bears upon an issue that is hotly contested at trial).

In addition to its relevance as to motive, the evidence at issue was

also highly probative as to intent. The grand jury indicted the defendant

for violating RSA 630:1, I (2007), which required the State to prove at

trial that he acted knowingly. A “knowing” state of mind exists when the

actor is aware that his conduct may cause the death of another person.

RSA 626:2, II(b) (2007). “Because persons rarely explain to others the

inner workings of their minds or mental processes, one’s culpable mental

state must, in most cases, as here, be proven by circumstantial

evidence.” State v. Sharon, 136 N.H. 764, 765-66 (1993). Further,

“extrinsic acts evidence may be critical to the establishment of the truth

as to a disputed issue, especially when that issue involves the actor’s

state of mind and the only means of ascertaining that mental state is by

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drawing inferences from conduct.” State v. Pelkey, 145 N.H. 133, 136

(2000).

Here, as the State argued below, the evidence at issue showed

that the defendant did not merely mean to scare off or menace Officer Briggs when the victim approached, but to do whatever in the defendant’s mind he believed that he had to—namely, murder—in order to avoid apprehension. In other words, given the consequences that the defendant faced if stopped by the police, it is less likely that when he shot it was with the intention just to warn or to intimidate. After all, as the defendant well knew, conduct commensurate with such a lesser intent may have had little or no . . . dilatory effect, and instead could have led to his immediate capture.

Indeed, any reasonable person in the defendant’s position, with his background and the uncharged crimes hanging over his head, would know that the police only would intensify their immediate pursuit of him if he . . . merely shot at Officer Briggs to scare him back. Only if the defendant killed Officer Briggs did the defendant have a hope of ensuring his escape and continued liberty as other officers attended to their fallen comrade.

SMIL 2 at 25.

Accordingly, the probative value of the evidence was high because,

without it, the defense may have led the jury to believe that murder was

(1) unnecessary for the defendant to extricate himself from the situation,

(2) disproportionate to his perceived self-interest, and (3) therefore not

actually intended or knowing. Cf. State v. Beltran, 153 N.H. 643, 648

(2006) (upholding, in a murder prosecution, the admission of evidence

that the defendant physically abused his girlfriend by pulling her hair,

punching and beating her, and on several occasions shooting her with a

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Taser gun, to explain why the girlfriend took the seemingly inexplicable

steps, against her own interests, of loading the gun for the defendant

prior to the murders and why she initially withheld information from and

repeatedly lied to the police). The probative value of the evidence was

only heightened by the fact that the defendant made intent one of the

most hotly contested issues during the guilt phase of the trial, asking the

jury to convict him of the reckless second degree murder. TG 34. See

Fernandez, 152 N.H. at 242 (the superior court is justified in assigning

high probative value to intent when it is hotly contested at trial).

In addition, the proffered evidence, and especially the video of the

7-Eleven robbery, were relevant and admissible to counter the

defendant’s efforts to portray himself as uncomfortable or unfamiliar

with the gun.12 TG 1357-75. To explain, in his opening statement, the

defendant described his act of shooting Briggs as “fast” and “totally

unplanned.” TG 34. He said that he did not intend to have the gun in

his possession on the night of the murder, let alone to shoot anyone. TG

44. Rather, he said, he had the gun only because he needed to prevent

Bell-Rogers from using it to harm someone else. TG 45. The defendant

12 It was because the defendant sought to portray himself as unfamiliar or uncomfortable with the gun that the State sought to introduce the video of the 7-Eleven robbery. TG 1357-75. Nowhere in the pretrial discussions of the evidence at issue was the State able to find any reference or clue that the defendant might offer such a self-portrayal at trial. It is therefore unfair and inaccurate to suggest that the State’s decision to seek the admission of the video amounted to some sort of renege on a promise or heavy-handed power play. DB 164-65, 173-74.

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then suggested that he had “never fired” the murder weapon “except for

the single fatal shot that took Officer Briggs’[s] life.” TG 64. The

defendant returned to these themes throughout the trial, using cross-

examination of the State’s witnesses to portray himself as something of a

gun novice, who had the gun to protect others rather than to harm

anyone. TG 1026-28 (defendant prevented Bell-Rogers from using the

gun in Mary Peters’s apartment); TG 1074, 1095 (defendant took the gun

apart before giving it back to Bell-Rogers, after Bell-Rogers had used it to

threaten Jennifer Roman); TG 1176-77 (describing a conversation in

which Jennifer Roman told Jennifer Joseph that if the defendant had not

needed to intervene to save her from Bell-Rogers, Briggs’s murder might

not have occurred). He also used cross-examination to suggest that his

shot at Briggs was not deliberate. See, e.g., TG 2402-03 (the defendant

received the trial court’s permission to have the State’s gun expert allow

each juror to pull the trigger on the murder weapon so that the jurors

could see how easily it could be fired, arguing that such a demonstration

was relevant to “the issue of recklessness or knowing or intent”).

The trial court noticed the defendant’s efforts and, in articulating

its reasoning for allowing the State to play the video of the 7-Eleven

robbery. It stated:

And certainly on all the cross-examinations where its applicable to the State’s witnesses, the implication I think that the defense is making or the inference they’re asking the jury to draw is that the defendant only had the gun that

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night because of certain circumstances. That is to say that he had the gun to protect Bell-Rogers from himself and to protect Jenn Roman from Bell-Rogers. That he normally wouldn’t have the gun. That’s he’s not familiar otherwise with the gun. And certainly the video shows that he was comfortable with the gun and had knowledge of it and used it at that point. And I think where this whole case is going to hinge on his state of mind and whether the gun—that he used the gun recklessly or knowingly and purposely, that this video provides highly probative evidence on those issues.

TG 1373-74; see TG 2400-01 (court expresses similar rationale for

admitting testimony from Birely that the defendant had the gun before

the shooting on Edward J. Roy Drive).

That reasoning applies to all of the evidence at issue here on

appeal. The prior armed robberies, the fact that the defendant had

handled the gun on previous occasions, and the shooting on Edward J.

Roy Drive refuted the suggestions that the defendant had the gun simply

because he was trying to protect others and that he was less familiar

with it than Bell-Rogers. Rather, these incidents demonstrated that the

defendant knew how to use the gun, that his shooting of Briggs was

therefore more likely an intentional or deliberate act, and that he viewed

the gun as part and parcel of the crime spree that culminated in Briggs’s

murder. Cf. United States v. Hillsberg, 812 F.2d 328, 334 (7th Cir. 1987)

(evidence that a defendant had previously used a gun was relevant and

admissible to show that his shooting of a victim was an intentional act

and not inadvertent); Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App.

2004) (similar).

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In addition to its high probative value with respect to issues of

motive and intent, the evidence at issue was relevant to whether the

defendant knew that Briggs was a law enforcement officer. See RSA

630:1, I (a) (the State must prove that the defendant “knowingly cause[d]

the death of . . . a law enforcement officer . . . acting in the line of duty”).

The proffered evidence served to explain why the defendant knew that

the police were looking for him. Concomitantly, since the defendant

knew the police were looking for him, the evidence at issue was relevant

to whether he was aware that Briggs was a law enforcement officer who

was seeking to apprehend him.

Equally important, the proffered evidence provided context for one

of the more significant windows into the defendant’s knowledge and

intent: his boastful declaration that he would “pop” a policeman rather

than return to prison. State v. Melcher, 140 N.H. 823, 829-30 (1996)

(context is a permissible basis to admit evidence under Rule 404(b)). See

Jarrett v. State, 986 S.W.2d 101, 102-03 (Ark. 1999) (in a capital murder

case, where the defendant claimed he was unaware that he shot at

policemen, the court upheld the admission of his previous threats to

shoot a police officer because those threats demonstrated that he knew

the identity of his victims); cf. People v. Gonzalez, 800 P.2d 1159, 1171

(Cal. 1990) (upholding the admission of evidence of uncharged narcotics

offenses in a capital murder trial because such evidence bore upon,

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among other things, the defendant’s knowledge that he shot at a police

officer who was executing a search warrant).

The proffered evidence was also relevant to identity and

opportunity, as the trial court correctly found. Order at 5. Although the

defendant conceded identity and opportunity at trial, he did not do so at

the time the trial court ruled upon the Rule 404(b) issue. Compare

T(9/3) 25 with TG 34. Accordingly, this Court may consider whether

identity and opportunity were yet other bases upon which the evidence

was admissible. See, e.g., State v. Nightingale, 160 N.H. 569, 573 (2010)

(this court considers the correctness of pretrial evidentiary rulings in

light of the evidence that was presented to the trial court at the time it

made its ruling).

First, evidence showing that the defendant had handled the gun on

previous occasions was significant in light of the well-established

principle that “an accused person’s prior possession of the physical

means of committing the crime is relevant and admissible because it

offers some evidence of the probability of his guilt.” Gamble v. United

States, 901 A.2d 159, 170 (D.C. 2006) (quotation omitted); see

Commonwealth v. Toro, 480 N.E.2d 19, 21 (Mass. 1985) (“The fact that a

defendant had a weapon that could have been used in the commission of

a crime is relevant as a link tending to prove that the defendant

committed the crime.”); Johnson v. State, 562 P.2d 1294, 1298 (Wyo.

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1977) (“a weapon identified as similar to or bearing a sufficient

resemblance to the one used by the defendant in the commission of the

criminal act is admissible in evidence . . . [because it is] relevant to show

the availability to the defendant of the means to commit the crime in

conformity with the charges filed against him”).

Second, the prior criminal acts demonstrate a relevant association

between the defendant and Bell-Rogers. That association is significant

because Bell-Rogers was seen walking with the shooter just prior to

Briggs’s murder. The fact that the defendant had perpetrated the prior

crimes with Bell-Rogers, over a relatively short period of time and using

the same gun that was used to kill Briggs, made it all the more likely that

he was the person who was walking with Bell-Rogers and who then shot

and killed Briggs. See, e.g., United States v. Higgs, 353 F.3d 281, 312

(4th Cir. 2003) (evidence of uncharged shooting incidents that occurred

months before the charged, capital murder were admissible to prove the

defendant’s identity), cert. denied, 543 U.S. 1004 (2004); State v. Parker,

625 So. 2d 1364, 1372-73 (La. Ct. App. 1993) (where the defendant was

on trial for murdering a police officer, evidence of two burglaries that the

defendant committed with his accomplice to the shooting was relevant to

show motive and identity). Accordingly, because the evidence at issue

was admissible to demonstrate motive, intent, knowledge, and identity,

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this Court should conclude that it satisfied the first prong of the Rule

404(b) test.

The second prong of the Rule 404(b) test “is satisfied when the

[proponent] presents evidence firmly establishing that the defendant, and

not some other person, committed the prior bad act.” State v. Lesnick,

141 N.H. 121, 126 (1996) (quotation omitted). There is no requirement

that a trial court hold an evidentiary hearing on a motion to admit

evidence under Rule 404(b). State v. Haley, 141 N.H. 541, 543-45

(1997). Instead, the State may satisfy the clear proof requirement

though the use of hearsay and by offer of proof. State v. Koehler, 140

N.H. 469, 470-72 (1995); State v. Trainor, 130 N.H. 371, 374-75 (1988).

Here, by the time that the capital murder case was tried, each of

the prior crimes at issue had been the subject of a trial over which the

court had presided. Order at 5-6. Based upon the evidence elicited

during those trials, the court found that the clear proof prong was “easily

met.” Order at 5. That finding should not be set aside because it has

ample record support—the previous trials resulted in convictions.

Under the third prong of the Rule 404(b) test, evidence should not

be admitted if its prejudicial effect substantially outweighs its probative

value. Pepin, 156 N.H. at 277.

Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base

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its decision on something other than the established propositions in the case. Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove his guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial. Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.

State v. Yates, 152 N.H. 245, 249-50 (2005) (quotation omitted).

Here, the trial court specifically found that the evidence was not

substantially more prejudicial than probative. Order at 6. “Only rarely—

and in extraordinarily compelling circumstances—will [an appellate

court], from the vista of a cold appellate record, reverse a trial court’s on-

the-spot judgment concerning the weighing of probative value and unfair

effect.” United States v. Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st

Cir. 1989) (quotation and ellipsis omitted); accord Pepin, 156 N.H. at 278

(this Court will “accord considerable deference to the trial court’s

determination in balancing prejudice and probative worth of evidence

under Rule 404(b)” (quotation and citation omitted)).

This case does not present such extraordinary or compelling

circumstances. For one thing, as noted earlier, knowledge and intent

were the most hotly contested issues at trial. Indeed, the entire defense

revolved around persuading the jury that the defendant acted recklessly

rather than knowingly. So, the evidence at issue here was not offered to

establish some peripheral fact or to tip the decisional scales through the

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submission of gratuitous prejudice. Rather, the evidence was offered so

that the State could counter the specific defense that was interposed and

meet its high burden of proving beyond a reasonable doubt all of the

elements of the charged crime. Indeed, this Court has recognized that

“[w]hile evidence of a prior offense or bad act is always prejudicial, the

prejudice is frequently outweighed by the probative value of the evidence

when the defendant’s knowledge or intent is a contested issue in the

case.” State v. Kim, 153 N.H. 322, 331 (2006); see State v. Ayer, 154

N.H. 500, 513 (2006) (similar); see also Martineau, 116 N.H. at 799

(“Although there is always a risk of some prejudice inherent in the

admission of evidence of a defendant’s prior crimes, it is well established

that where the motive for the crime charged is the concealment of a prior

crime, evidence of the prior crime is admissible for the limited purpose of

showing motive.”).

In addition, the evidence was not unfairly prejudicial. Against the

backdrop of a case that involved, for example, shooting a police offer in

the head, autopsy photographs, testimony from the medical examiner,

and police officers emotionally describing their dying colleague sprawled

out on a Manchester street, the evidence at issue was not overly

inflammatory or likely to cause the jury to decide the matter on an

emotional—rather than evidentiary—basis.

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Further diminishing any prejudice from the evidence at issue, the

prior crimes and other incidents were distinct from and dissimilar to the

charged crime of shooting a police officer in the head. Kim, 153 N.H. at

331 (“The degree of prejudice inherent in a reference to another bad act

may depend upon the similarity of the other incident to that for which

the defendant is currently on trial.”). And adding yet another layer of

protection against unfair prejudice, the trial court repeatedly instructed

the jury, even during the trial, that it could not consider the prior bad

acts evidence for any improper purpose. See, e.g., TG 1395, 3079. Had

the defendant wanted the court to give even more limiting instructions, it

was up to him to request them. State v. Ericson, 159 N.H. 379, 389

(2009) (in the Rule 404(b) context that where, as here, a defendant fails

to request a limiting instruction, “he cannot [on appeal] complain of

error”) (quotation omitted)); see N.H. R. Ev. 105 (a court must give a

limiting instruction when requested).

Finally, the evidence that the State sought to introduce here was

the same type of evidence—and arguably even more benign—that courts

around the country have deemed admissible, in murder cases, under

evidentiary rules similar or identical to New Hampshire Rule of Evidence

404(b). See, e.g., Lesko, 881 F.2d at 52-53 (evidence of an uncharged

murder); Porter v. Estelle, 709 F.2d 944, 954-56 (5th Cir. 1983) (evidence

of armed robbery); United States v. Bryant, 471 F.2d 1040, 1045-46

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(D.C. Cir. 1972) (evidence that the defendant was a fugitive and had

robbed a bank); Puff, 211 F.2d at 174-75 (evidence of bank robbery);

Shelton v. State, 699 S.W.2d 728, 736 (Ark. 1985) (evidence of burglary);

Williams v. State, 386 N.E.2d 670, 673 (Ind. 1979) (evidence of robbery

and kidnapping); State v. Blank, 955 So. 2d 90, 124-25 (La. 2007)

(evidence of five other capital murders and two attempted murders);

Veney v. State, 246 A.2d 568, 578-79 (Md. 1968) (evidence that the day

before the charged murder, the defendant participated in a robbery and

shot an officer during an escape from custody); Johnson v. State, 416 So.

2d 383, 386-87 (Miss. 1982) (evidence that defendant broke into a

residence and attempted to rape the occupant); State v. Mallett, 732

S.W.2d 527, 534-35 (Mo. 1987) (evidence of robbery); State v. Williams,

233 S.E.2d 507, 510 (N.C. 1977) (evidence of armed robbery and

homicide); Porter v. State, 623 S.W.2d 374, 285-86 (Tex. Crim. App.

1981) (evidence of armed robbery). See SMIL 2 at 52 n.17 (collecting

cases).

The defendant contends that the evidence at issue was unfairly

prejudicial because he made some concessions and because the State

had a significant amount of other evidence available to prove motive,

intent, and knowledge. DB 165, 175. That contention must be rejected.

Just because some bland or more defense-friendly evidence may tend to

prove a certain factual proposition, it does not necessarily follow that

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better evidence of that proposition must be excluded. Old Chief, 519

U.S. at 179 (if “relevant evidence is inadmissible in the presence of other

evidence related to it, its exclusion must rest not on the ground that the

other evidence has rendered it ‘irrelevant’ but on its character as unfairly

prejudicial, cumulative or the like, its relevance notwithstanding”).

Perhaps more important, although the State often may not

introduce Rule 404(b) evidence where a defendant has stipulated to an

element of a crime, State v. Glodgett, 144 N.H. 687, 691-93 (2000), or to

preemptively counter an anticipated attack on some types of witness

testimony, State v. Montgomery, 144 N.H. 205, 209 (1999), “the

prosecution is under no obligation to wait and see whether the defendant

argues the non-existence of an element of crime before the prosecution

presents evidence establishing that element,” United States v. Buchanan,

633 F.2d 423, 426 (5th Cir. Unit A 1980); accord State v. Brewster, 147

N.H. 645, 650 (2002) (“When intent is not conceded by the defense, and

it is an element of the crime to be proven by the State, it is sufficiently at

issue to require evidence at trial.” (Quotation omitted.)). Here, the

defendant did not stipulate to intent, knowledge, or motive. In fact, as

explained earlier, those were the most hotly contested issues at trial.

Accordingly, the State needed to satisfy its burden of proving intent

beyond a reasonable doubt. The evidence at issue was part and parcel of

the State’s effort to do so.

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The defendant also suggests that the State could have achieved the

same result by simply introducing his previous convictions, without the

underlying details, or by introducing a sanitized version of events to

minimize the prejudice that he believes he suffered here. DB 167. The

United States Supreme Court recognized the problem with a similar

argument over ten years ago, noting that evidence

has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. Jury duty is usually unsought and sometimes resisted, and it may be as difficult for one juror suddenly to face the findings that can send another human being to prison, as it is for another to hold out conscientiously for acquittal. When a juror’s duty does seem hard, the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant’s legal fault.

But there is something even more to the prosecution’s interest in resisting efforts to replace the evidence of its choice with admissions and stipulations, for beyond the power of conventional evidence to support allegations and give life to the moral underpinnings of law’s claims, there lies the need for evidence in all its particularity to satisfy the jurors’ expectations about what proper proof should be. Some such demands they bring with them to the

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courthouse, assuming, for example, that a charge of using a firearm to commit an offense will be proven by introducing a gun in evidence. A prosecutor who fails to produce one, or some good reason for his failure, has something to be concerned about. If jurors’ expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party. Expectations may also arise in jurors’ minds simply from the experience of a trial itself. The use of witnesses to describe a train of events naturally related can raise the prospect of learning about every ingredient of that natural sequence the same way. If suddenly the prosecution presents some occurrence in the series differently, as by announcing a stipulation or admission, the effect may be like saying, “never mind what's behind the door,” and jurors may well wonder what they are being kept from knowing. A party seemingly responsible for cloaking something has reason for apprehension, and the prosecution with its burden of proof may prudently demur at a defense request to interrupt the flow of evidence telling the story in the usual way.

Old Chief, 519 U.S. at 187-89 (brackets, quotation, and citation omitted).

In urging reversal, the defendant also suggests that he suffered

prejudice because the State offered evidence that was not included in its

proffer, namely that the defendant had the gun in his possession before

the shooting on Edward J. Roy Drive. DB 174. That suggestion is

inconsistent with the record. In its lengthy written proffer in its motion

in limine, the State specifically referred to testimony that the defendant

handled the gun while he was at 267 Central Street before the shooting

on Edward J. Roy Drive. SMIL 2 at 7.

The defendant also claims prejudice from three specific statements

offered by particular witnesses. DB 172. But he never objected to those

specific statements at trial or asked for a limiting instruction with regard

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to them. So, it seems unfair for him to fault the trial court for admitting

them. After all, contemporaneous and specific objections are required to

preserve issues for appeal. State v. Dodds, 159 N.H. 239, 244 (2009);

Bean v. Red Oak Prop. Mgmt., Inc., 151 N.H. 248, 250 (2004)

The defendant also emphasizes that the challenged testimony

spanned 168 pages of the transcript. DB 164. Without conceding that

all 168 pages contain allegedly prejudicial material, the State

acknowledges that, at first blush, 168 pages may seem like a lot. But the

entire transcript of the guilt phase of the trial is some 3,232 pages in

length, which means that the disputed testimony or evidence consumed

only about five percent of the trial. The defendant cites no case law

standing for the proposition that devoting roughly five percent of a

capital murder trial to evidence bearing upon intent and motive—two of

the most hotly contested issues—is necessarily excessive.

Even if the trial court erred, however, the error was harmless.

To establish that an error was harmless, the State must prove beyond a reasonable doubt that the error did not affect the verdict. . . . An error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant’s guilt is of an overwhelming nature, quantity, or weight, and if the evidence that was improperly admitted or excluded is merely cumulative or inconsequential in relation to the strength of the State’s evidence of guilt.

State v. Peters, 162 N.H. 30, 36 (2011) (citations omitted).

As explained more fully in the Statement of Facts in this brief, the

evidence against the defendant was overwhelming. The State briefly

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summarizes that evidence here, and incorporates by reference the much

more detailed discussion found in the Statement of Facts.

Many police officers described how the defendant shot and killed

Briggs, including Breckinridge, Reardon, Beaule, and Macken, to name a

few. So too did Eric Robinson. TG 650-665. Further, many witnesses

testified about how the defendant had expressed a desire to kill a

policeman and how he would rather kill a law enforcement officer than

return to jail. TG 1656-58, 1660, 1685-86, 1723-25, 1921-26, 2760-64.

And in the immediate aftermath of the shooting, the defendant made

incriminating statements, lied about what he had done, asked others to

conceal his involvement in the shooting, and fled, all demonstrating

consciousness of guilt. See, e.g., Peters, 162 N.H. at 37-38 (discussing

consciousness of guilt). See TG 985-86, 1115-16, 1141-45, 1161-62,

1174-75, 1231, 1264-66, 1295, 1306 1475-80. The State also had

strong physical or forensic evidence to corroborate the accounts of

various witnesses and to link the defendant to Briggs’s murder, such as

the murder weapon, bullets and shell casings, the red sweatshirt that the

defendant wore when he shot Briggs, telephone records, and the fact that

his cellular telephone was found at the scene of the shooting. TG 844,

1055, 1127, 1267, 1345, 2041, 2044-46, 2363, 2523, 2560-79, 2686,

2571-72. Against this backdrop, the challenged evidence was

inconsequential in relation to the strength of the State’s case.

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V. THE TRIAL COURT’S INSTRUCTION ON REASONABLE DOUBT WAS AN ACCURATE STATEMENT OF THE LAW BECAUSE IT CORRECTLY DESCRIBED THE BURDEN OF PROOF, CORRECTLY STATED THE PRESUMPTION OF INNOCENCE, AND CLOSELY MODELED THE CHARGE THAT THIS COURT UPHELD IN STATE V. WENTWORTH.

The defendant contends that the trial court gave an incorrect jury

instruction regarding the standard of proof. DB 176. He asserts that the

definition of “reasonable doubt,” as given by the court, impermissibly

tipped the decisional scales in the State’s favor. DB 176. That assertion

must be rejected.

On the very first day of the guilt phase of the trial, the court gave

the following instruction as part of its preliminary charge to the jury:

Under our Constitutions, all defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The burden of proving guilt is entirely on the State. The defendant Michael Addison does not have to prove his innocence.

Also, a person accused of a crime has an absolute right not to take the witness stand to testify. If the defendant does not testify, you must not consider that in any way. Remember that the defendant enters this courtroom as an innocent person, and you must consider him to be an innocent person until the State convinces you beyond a reasonable doubt that he is guilty of every element of the alleged offense.

“[B]eyond a reasonable doubt” does not mean that the State must prove its case beyond all doubt or to a mathematical certainty, or demonstrate the complete impossibility of innocence. Rather, a reasonable doubt is just what the words would ordinarily imply. The use of the word “reasonable” means simply that the doubt must be reasonable rather than unreasonable. It must be a doubt based on reason. It is not a frivolous or fanciful doubt, nor

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is it one that can easily be explained away. Rather, it is such a doubt based on reason as remains after consideration of all of the evidence that the State has offered against it.

The test you must use is this: If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.

TG 13-14. The defendant did not object to this instruction.

On the twelfth day of trial, the court held a charge conference with

counsel for both sides. TG 2388. It previously had given the parties

written copies of its proposed instructions, including an instruction

identical to the one quoted above. At that time, the defendant took issue

with the court’s definition of “beyond a reasonable doubt.” TG 2391.

The defendant argued that the court’s use of the phrases “mathematical

certainty” and “complete impossibility of innocence” were erroneous. TG

2391. In response, the court noted that its proposed instruction was the

same as the one it had given in its preliminary charge. TG 2391.

Further, the court noted, the defendant had not objected to the

preliminary instruction. TG 2391.

When defense counsel suggested that perhaps he had interposed

an objection off the record, the court flatly rejected his suggestion,

stating, “I do not remember that in any form [your] taking an objection to

it, but I’ve already instructed the jury this way and I gave you a copy of

my instructions before I read them to the jury, and there wasn’t any

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objection.” TG 2392. At that point, defense counsel replied, “[T]he Court

may well be correct that we haven’t previously objected. To the extent we

haven’t previously objected, it was an error on our part, and we’d just

like to state for the record our objection to that.” TG 2392. The State

then offered its position. Like the trial court, the State did not “recall

hearing a prior objection” and it argued that the court’s instruction was

an accurate statement of the law in any event. TG 2392. At the end of

the trial, the court gave a jury charge that was consistent in all pertinent

respects to the one quoted above. Compare TG 3068-70 with TG 13-14.

The purpose of jury instructions

is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. When reviewing jury instructions, [this Court] evaluate[s] allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. [This Court] determine[s] whether the jury instructions adequately and accurately explain each element of the offense and reverse[s] only if the instructions did not fairly cover the issues of law in the case. Whether a particular jury instruction is necessary, and the scope and wording of jury instructions are within the sound discretion of the trial court, and [this Court] review[s] the trial court’s decisions on these matters for an unsustainable exercise of discretion.

State v. Hernandez, 159 N.H. 394, 400 (2009) (citations omitted).

Both Part I, Article 15 of the New Hampshire Constitution and the

Fourteenth Amendment to the United States Constitution require the

prosecution, as a matter of due process, to prove each element of a

criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358,

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364 (1970); State v. Parker, 142 N.H. 319, 321 (1997). This requirement

“dates at least from our early years as a Nation.” Winship, 397 U.S. at

361. It provides “concrete substance for the presumption of innocence—

that bedrock axiomatic and elementary principle whose enforcement lies

at the foundation of the administration of our criminal law.” Id. at 363

(quotation omitted). And it “safeguard[s] men from dubious and unjust

convictions [based upon factual error], with resulting forfeitures of life,

liberty and property.” Id. at 362 (quotation omitted). In other words,

“by impressing upon the factfinder the need to reach a subjective state of

near certitude of the guilt of the accused, the standard symbolizes the

significance that our society attaches to the criminal sanction and thus

to liberty itself.” Jackson v. Virginia, 443 U.S. 307, 315 (1979).

In light of the importance of the beyond a reasonable doubt

standard in a criminal trial, this Court requires trial courts to define the

term “reasonable doubt” for the jury. See State v. Blackstock, 147 N.H.

791, 798-99 (2002) (the trial court may define “reasonable doubt” in its

preliminary charge and then refer to, but not define, the concept in its

final instructions after the close of the evidence); State v. Aubert, 120

N.H. 634, 637 (1980) (“this court feels strongly that a jury must be given

some assistance in understanding the concept”). The United States

Supreme Court, on the other hand, does not. It requires trial courts to

instruct the jury that the defendant’s guilt must be proven beyond a

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reasonable doubt, but it has not construed the federal constitution to

require that a definition of “reasonable doubt” be provided to the jury as

a matter of course. Victor v. Nebraska, 511 U.S. 1, 5 (1994).

Regardless whether done as a matter of discretion or obligation,

when a trial court defines the term “reasonable doubt” for the jury, it

must do so correctly. Victor, 511 U.S. at 5; Aubert, 120 N.H. at 637. But

correctness, in this context, is a subjective concept, for neither the state

nor the federal constitution has been construed to require any particular

phrasing for the definition of “reasonable doubt.” See, e.g., Victor, 511

U.S. at 5; Aubert 120 N.H. at 638; State v. Wentworth, 118 N.H. 832, 838

(1978); see also People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo.

Ct. App. 2010) (while trial courts “must instruct the jury that a

defendant’s guilt must be proved beyond a reasonable doubt, [they] need

not use any particular language in doing so”); Clermont v. State, 704 A.2d

880, 886-87 (Md. 1998) (similar).

In the absence of any constitutionally mandated language, the

difficult task of defining reasonable doubt has been left to the courts.

See Victor, 511 U.S. at 5 (“Although this standard is an ancient and

honored aspect of our criminal justice system, it defies easy

explication.”); Aubert 120 N.H. at 637 (“This court is acutely aware of the

problems inherent in attempting to define an amorphous concept like

reasonable doubt.”). And a trial court’s effort in that regard frequently

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results in an assignment of error on appeal. Wentworth, 118 N.H. at

838.

This Court attempted to reduce the number of appellate claims

related to reasonable doubt instructions by proposing a model charge

that defines the term to mean

simply that the doubt must be reasonable rather than unreasonable; it must be a doubt based on reason. It is not a frivolous or fanciful doubt, nor is it one that can easily be explained away. Rather, it is such a doubt based upon reason as remains after consideration of all of the evidence that the State has offered against it.

Wentworth, 118 N.H. at 839.

The model charge, however, was promulgated as an exercise of this

Court’s supervisory powers. Id. at 838. Nothing in Wentworth requires

trial courts to use the model instruction as a matter of state

constitutional law. Nor does Wentworth or any of its progeny say that a

deviation from the model instruction automatically will be deemed a

constitutional violation. Cf. State v. Letendre, 133 N.H. 555, 557 (1990)

(rejecting a defendant’s contention that this Court should create a “per

se” rule that any deviation from the model charge in Wentworth will

result in reversal). So, the fact that the trial court deviated from the

model charge cannot, in itself or without more, be a basis for reversal

here. Cf. State v. Preston, 122 N.H. 153, 161 (1982) (noting that it is

“generally accepted” for a trial court to deviate from the Wentworth model

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and instruct the jury that “reasonable doubt may arise not only out of all

evidence presented but also out of lack of evidence”).

In that connection, it is worth emphasizing at this point that the

defendant has not asked this Court to exercise its supervisory powers to

remedy the wrong that he perceives. Nor has he asked this Court to hold

that a verbatim recitation of the model Wentworth charge is required as a

matter of state or federal law. So, such arguments not properly before

this Court. State v. Fortier, 146 N.H. 784, 792 (2001) (arguments not

briefed are deemed waived); State v. Cross, 128 N.H. 732, 738 (1986)

(where the defendant fails to invoke the court’s supervisory power, the

court will not make an inquiry into whether it could or should have

applied). The claim that the defendant has advanced on appeal and

developed in his brief is one of constitutional dimension and, therefore,

the narrow question that this Court must decide is whether the state or

federal constitution was offended by the challenged instruction.

When a criminal defendant challenges a reasonable doubt

instruction, “[t]he proper inquiry is not whether the instruction could

have been applied in an unconstitutional manner, but whether there is a

reasonable likelihood that the jury did so apply it.” Victor, 511 U.S. at

6.13 Appellate courts conduct that inquiry by examining the challenged

13 The defendant seems to suggest that this Court approaches the question differently from the federal courts. DB 184. He bases that suggestion upon a perceived distinction between this Court’s practice of looking to see if the

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instruction in the context of the entire charge. See Victor, 511 U.S. at 6;

Letendre, 133 N.H. at 557 (this Court will inquire whether a trial court’s

instruction on reasonable doubt, in the context of the entire charge,

prejudiced the defendant); State v. Slade, 116 N.H. 436, 439 (1976) (“To

be adequate, the instruction when considered as a whole must convey

the concept of reasonable doubt to the jury.”).

Both this Court and the United States Supreme Court have

considered several constitutional challenges to reasonable doubt

instructions. And in so doing, both courts have upheld many different

variations on the definition of reasonable doubt. For example, in Victor,

the Supreme Court considered challenges to the reasonable doubt

instructions given in two separate cases. In the first, the instruction

provided:

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt.

challenged instruction caused “prejudice” and the federal courts’ practice of looking for a reasonable likelihood that the concept of reasonable doubt was misunderstood. DB 184. This Court should reject the defendant’s efforts to create a distinction between the state and federal standards. Although phrased differently, they lead to the same result. Prejudice can exist only if the jury harbored a misunderstanding of reasonable doubt or the burden of proof. To put it another way, if the jury did not misunderstand reasonable doubt, a defendant cannot have suffered prejudice.

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Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

Victor, 511 U.S. at 7 (emphasis omitted). Although the defendant in that

case took issue with the instruction’s references to “moral certainty,”

“moral evidence,” and reasonable doubt as “not a mere possible doubt,”

the Supreme Court found no constitutional infirmity. Id. at 15-17. The

Court reasoned that, in context, the phrase “moral certainty” was

equivalent to proof “beyond a reasonable doubt,” and that a “possible

doubt” was not a “reasonable” one. Id.

In the companion case in Victor, the trial court gave the following

instruction:

“Reasonable doubt” is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt reasonably arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of

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evidence on the part of the State, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.

Id. at 18 (emphasis added).

The defendant challenged the instruction on the basis that its use

of the phrases “substantial doubt,” “moral certainty,” and “strong

probabilities” raised various constitutional problems. Again, however,

the Court found no constitutional infirmities. First, “to the extent the

word ‘substantial’ denote[d] the quantum of doubt necessary for

acquittal,” the Court held that “the ‘hesitate to act’ standard [gave] a

common sense benchmark for just how substantial such a doubt must

be.” Id. at 20-21. Therefore, it was not “reasonably likely that the jury

would have interpreted this instruction to indicate that the doubt must

be anything other than a reasonable one.” Id. at 21. Second, the Court

concluded that the phrase “moral certainty” did not create a risk of an

unjust conviction because the phrase required a moral certainty to

convict, not to acquit. Id. at 21-22. And third, the Court decided that,

when viewed in context, the instruction’s reference to a conviction upon

“strong probabilities” did not dilute the prosecution’s burden of proof. Id.

at 22.

Similarly, in Dunbar v. United States, 156 U.S. 185, 199 (1895), the

Court rejected a challenge to an instruction that provided:

I will not undertake to define a reasonable doubt further than to say that a reasonable doubt is not an unreasonable

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doubt; that is to say, by a reasonable doubt you are not to understand that all doubt is to be excluded. It is impossible in the determination of these questions to be absolutely certain. You are required to decide the question submitted to you upon the strong probabilities of the case, and the probabilities must be so strong as not to exclude all doubt or possibility of error, but as to exclude reasonable doubt.

The Justices reasoned that the instruction “gave all the definition

of reasonable doubt which a court can be required to give, and one which

probably made the meaning as intelligible to the jury as any elaborate

discussion of the subject would have done.” Id. See Holland v. United

States, 348 U.S. 121, 140 (1954) (upholding an instruction that defined

reasonable doubt as “the kind of doubt . . . which you folks in the more

serious and important affairs of your own lives might be willing to act

upon”); Hopt v. Utah, 120 U.S. 430, 441 (1887) (quoting approvingly an

instruction that provided, “It is not necessary that you should have a

certainty which does not belong to any human transaction whatever. It is

only necessary that you should have that certainty with which you

should transact your own most important concerns in life”); Miles v.

United States, 103 U.S. 304, 309, 312 (1880) (similar).

In only one case, Cage v. Louisiana, 498 U.S. 39, 40 (1990),

overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4

(1991), has the United States Supreme Court reversed a conviction on

the basis that a reasonable doubt instruction was constitutionally infirm.

There, the instruction provided:

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If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.

Cage, 498 U.S. at 40.

The Court began its analysis by noting that the instruction

“equated a reasonable doubt with a ‘grave uncertainty’ and an ‘actual

substantial doubt.’” Id. at 41. It then concluded that “the words

‘substantial’ and ‘grave,’ as they are commonly understood, suggest a

higher degree of doubt than is required for acquittal under the

reasonable-doubt standard.” Id. Finally, the Court held, when “those

statements are then considered with the reference to ‘moral certainty,’

rather than evidentiary certainty, it becomes clear that a reasonable

juror could have interpreted the instruction to allow a finding of guilt

based on a degree of proof below that required by the Due Process

Clause.” Id. In other words, the Court determined that the instruction,

as a whole, overstated the level of doubt needed to acquit.

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This Court, too, has rejected several constitutional challenges to

reasonable doubt instructions. For instance, in State v. Zysk, 123 N.H.

481, 488 (1983), the trial court gave the model Wentworth instruction,

but then added, “In other words, to justify a conviction in this case the

evidence must be sufficient to eliminate from the minds of the Jury all

reasonable doubt as to the guilt of this defendant.” This Court

concluded that the trial court’s additional instruction did not result in a

constitutional violation because the entire charge adequately and

accurately explained reasonable doubt. Id.

In State v. Langdon, 121 N.H. 1065, 1067 (1981), a sexual assault

case, the trial court gave the following instruction:

The State has to prove that a person is guilty beyond a reasonable doubt, and this is as to all the elements of the crime. The State does not have to prove that each and every statement that a person has made comes up to that standard. It does not have to prove beyond a reasonable doubt that the event took place in the bedroom or on the couch but they have to prove that there was this event. Now this concept of a reasonable doubt means exactly what the term should imply. It is a doubt that is based upon reason, it is based upon thinking. It is not a doubt that is a fanciful doubt, it is not some doubt that can be explained away easily, it is not some frivolous doubt, it is a doubt based upon reason that the state must prove that as to their key elements that there has been proof beyond a reasonable doubt.

(Brackets and ellipses omitted.) This Court held that the instruction

accurately stated the law and was not a basis for reversal, especially

since it came in the context of an entire charge that informed the jury

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about the presumption of innocence, the right of the defendant not to

testify, the fact that the defendant does not have the burden of proof, and

the fact that a criminal defendant’s decision not to testify cannot be

considered in deciding guilt. Id. at 1068.

In Letendre, 133 N.H. at 558, the trial court gave the standard

Wentworth instruction with the exception that it omitted the words, “The

test you must use is this.” On appeal, this Court rejected the

defendant’s argument that the omission rendered the instruction

improper, reasoning that “the charge as a whole conveyed the correct

concept of reasonable doubt to the jury.” Id. at 559.

In State v. Allard, 123 N.H. 209, 214 (1983), the trial court gave

the model Wentworth charge but then added, ““It is of utmost importance

that no person who is guilty should go free, and, likewise, it is equally

important that no person who is innocent should be convicted.” This

Court flatly rejected the suggestion that the trial court’s additional

instruction violated the constitution. Id. at 214-15. It reasoned that the

entire charge adequately explained the reasonable doubt standard, the

burden of proof, and the presumption of innocence. Id. at 214-15.

In State v. Donovan, 120 N.H. 603, 608-09 (1980), the trial court

instructed the jury that reasonable doubt is “the kind of doubt that

would make a reasonable person hesitate to act upon something of great

importance to him,” and that such doubt exists when jurors “do not feel

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convinced to a moral certainty that the defendant is guilty of the charges

against him.” This Court held that those two statements did not render

the charge unconstitutional, especially since the trial court also

instructed the jury on the presumption of innocence and the burden of

proof. Id. at 609.

In Wentworth, 118 N.H. at 835, the trial court gave the following

charge:

Under our system of justice, which has been time-tested, . . . every person accused of crime who walks into a courtroom is presumed to be innocent. The defendant in a criminal case has no burden of proving anything.

What is this presumption of innocence? Until such time as the State proves beyond a reasonable doubt all of the essential allegations contained in the complaint, the defendant is presumed to be innocent.

I just used the phrase “reasonable doubt.” Under our system of justice, we do not require that the State prove their case to a mathematical certainty, [n]or do we require that the State remove all slight or frivolous doubt from your minds, but before a verdict of guilty can be returned in any case by a jury, all reasonable doubt must be removed by the evidence which you have heard presented by the State. And once again, upon any issue which you have to determine in this case, you can consider the evidence as you heard it from any witness, no matter who produced it.

In December of last year, the State of New Hampshire Supreme Court decided a case called State v. Black . . . and that case probably has as good a definition of what reasonable doubt is as any I've seen. In that case, our Supreme Court defined a reasonable doubt as follows:

“A reasonable doubt can be defined as a strong and abiding conviction that still remains after a careful consideration of all of the evidence ‘a strong and abiding conviction’ but where our belief in a fact is so uncertain that we would

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hesitate to act upon the strength of it to undertake something of importance and seriousness equal to this case, then there is reasonable doubt.”

(Emphasis added.)

This Court upheld the charge. Wentworth, 118 N.H. at 838. It

concluded that the charge accurately stated the law and that it did not

shift the burden of proof. Id. at 837-38. It also emphasized that the trial

court had instructed the jury on the presumption of innocence and the

fact that burden of proof was upon the State. Id. at 837. See State v.

Belkner, 117 N.H. 462, 471 (1977) (rejecting a challenge to an instruction

that reasonable doubt “does not mean a trivial or a frivolous or a

principal doubt nor one which can be readily or easily explained away

but rather such a strong and abiding conviction as still remains after

careful consideration of all the facts and arguments against it”); State v.

Black, 116 N.H. 836, 837 (1976) (similar).

One of the only reasonable doubt instructions that this Court has

deemed unconstitutional came in Aubert, 120 N.H. at 636. There, the

trial court gave the following instruction:

Now, the phrase “reasonable doubt” means exactly what those words imply. It is a doubt based upon reason arising from an impartial consideration of all the evidence offered to you. It is not a doubt which is merely fanciful. It is not a doubt which is speculative. The test you must use is as follows. If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, then you will find the defendant not guilty. However, if you find that the State has proved all of the

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elements of the offense charged beyond a reasonable doubt, then you will return a verdict of guilty.

Now, it is not an object of this rule of proof to impose upon you the duty of looking (sic) or examining this evidence in any strange, peculiar or extraordinary way. Nor is it intended by this rule to impose upon the State an impossible burden in establishing its case. It is a matter of common knowledge to all of us that absolute positive certainty can almost never be attained. But bear in mind, Members of the Jury, that the State is not required to establish guilt beyond all doubt. That is not the State’s burden. The State is not required to establish guilt to a mathematical certainty. That is not the State’s burden. Neither is the State required to establish guilt to a scientific certainty. The State’s burden is fully met when it has established guilt beyond a reasonable doubt.

Although this Court discerned no infirmity in the first paragraph of

the instruction, it took issue with the second. Id. It concluded that the

second paragraph “overly favored the prosecution” because of its

“repeated emphasis that the State need not establish guilt to a

mathematical certainty, and need not establish guilt to a scientific

certainty, and need not establish guilt beyond all doubt.” Id. at 637-38.

In other words, the second paragraph repeatedly hammered away at the

standard, thereby creating confusion about the quantum of guilt needed

to convict and the quantum of doubt permissible to acquit.

Here, although the trial court’s instruction deviated slightly from

the model Wentworth charge, it was quite similar to the instruction that

was actually given and upheld in Wentworth. Compare TG 3068-70 with

Wentworth, 118 N.H. at 835 (“Under our system of justice, we do not

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require that the State prove their case to a mathematical certainty. Nor

do we require that the State remove all slight or frivolous doubt from

your mind.”). Further, the instruction at issue here clearly and correctly

(1) described the presumption of innocence, (2) reminded the jury that

the burden of proof remained with the State, (3) explained that a

reasonable doubt is not a fanciful or frivolous one, a principle that this

Court repeatedly has endorsed, see, e.g., Wentworth, 118 N.H. at 838-39,

(4) informed the jury that its decision had to be based upon the evidence

presented in the case, and (5) left open the possibility of nullification,

just as this Court requires, State v. Bonacorsi, 139 N.H. 28, 30-31

(1994). TG 3069-70.

Equally important, the challenged instruction is found in the

context of a final charge that correctly and specifically reminded the jury

that (1) the defendant did not need to offer evidence in his own behalf, (2)

the fact that the defendant had been charged with a crime was not

evidence of guilt, (3) the seriousness of the alleged crime did not affect

burden of proof or presumption of innocence, (4) the defendant had no

obligation to testify, and (5) the defendant’s failure to testify could not be

considered in any way. TG 3064-82. As explained above, this Court has

repeatedly upheld reasonable doubt instructions that are found within

the context of an entire charge that accurately states some or all of those

points of law. See Allard, 123 N.H. 214-15; Langdon, 121 N.H. at 1068;

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Donovan, 120 N.H. at 609; Wentworth, 118 N.H. at 837. Further, at least

thirteen times over the course of the entire charge, the court in some way

referred to the State’s burden or to what the State needed to prove. TG

3064-82.

Relying upon Aubert, the defendant urges reversal, arguing that

the trial court favored the prosecution and shifted the burden of proof by

“emphasiz[ing] that the State need not prove guilt ‘beyond all doubt’ or ‘to

a mathematical certainty’ and that the State need not ‘demonstrate the

complete impossibility of innocence.’” DB 181. That argument should be

rejected.

For one thing, the court did not “emphasize” anything. The

phrases that the defendant identifies as objectionable come from a single

sentence of an instruction on reasonable doubt that spans four

paragraphs in a final jury charge that covers some eighteen pages. TG

3069. So, what happened here is nothing like what happened in Aubert.

There, the reasonable doubt instruction consisted of two paragraphs and

the problematic language spanned an entire one of them, repeatedly and

almost rhythmically—in sentence after sentence—overstating the doubt

required for acquittal and minimizing the State’s high burden. Aubert,

120 N.H. at 636. Aubert, thus, stands for the proposition that the trial

court may not repeatedly hammer away at the presumption of innocence

and burden of proof. Id. at 637 (faulting the court’s “repeated

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emphasis”). It does not stand for the proposition that particular phrases,

if used, always result in a constitutional violation.

Besides, courts—including this one and the United States Supreme

Court—have repeatedly endorsed the principles set forth in the

instruction at issue here or have upheld jury instructions that contain

some of the words or phrases the defendant here labels unconstitutional.

See, e.g., Holland v. United States, 348 U.S. 121, 138 (1954) (“The

Government must still prove every element of the offense beyond a

reasonable doubt though not to a mathematical certainty”); United States

v. Allen, 469 F.3d 11, 17 (1st Cir. 2006) (“It is at least plausible that the

jury could have understood the prosecutor’s statement to mean that the

beyond a reasonable doubt standard does not require a finding of

absolute mathematical certainty, something which is undoubtedly

true.”); Thompson v. Kelchner, 46 Fed. Appx. 75, 81 (3d Cir. 2002)

(upholding an instruction that provided, in part, “this does not mean the

Commonwealth must prove its case beyond all doubt or to a

mathematical certainty, or must it demonstrate the complete

impossibility of innocence”); Gilday v. Callahan, 59 F.3d 257, 260-67 (1st

Cir. 1995) (similar); Reid v. Beard, No. 04-2924, 2009 WL 2876206, at

*13 (E.D. Pa. Sept 2, 2009) (unpublished opinion) (similar), aff’d, No. 09-

3727, 2011 WL1097609 (3d Cir. Feb. 7, 2011); Patterson v. Pool, 02 Civ.

5389, 2004 WL 1874967 at *7 (S.D.N.Y. Aug. 18, 2004) (unpublished

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opinion) (similar); Harris v. State, 2 So. 3d 880, 913 (Ala. Crim. App.

2007) (rejecting a challenge to an instruction that provided, “Now, the

State is not required to convince you of the defendant's guilt beyond all

doubt or to a mathematical certainty or beyond a shadow of a doubt but

simply beyond all reasonable doubt.”); State v. Knight, 7 A.3d 425, 432

(Conn. App. Ct. 2010) (approving an instruction that referred to

“mathematical certainty” and “beyond all doubt”); Newman v. United

States, 705 A.2d 246, 265 (D.C. 1997) (similar); Anderson v. State, 685

S.E.2d 716, 719 (Ga. 2009) (similar); State v. Lewis, 372 A.2d 1035,

1035-36 (Me. 1977) (finding no manifest error in similar language);

Commonwealth v. Innis, No. 09–P–1856, 2010 WL 4608676, at *2 (Mass.

App. Ct. Nov. 16, 2010) (unpublished opinion) (similar); State v. Johnson,

396 N.W.2d 906, 909 (Minn. Ct. App. 1986) (similar).

Accordingly, the trial court’s instruction on reasonable doubt did

not tip the decisional scales in the State’s favor. The court’s instruction

was an accurate statement of law. Further, it was consistent with

instructions that have been upheld by the United States Supreme Court,

by this Court, and by courts from around the country. The defendant’s

conviction should be upheld.