Appeal from Hillsborough County.
The defendant, Arthur J. Burley, was convicted of second degree murder after a jury trial in Superior Court (Groff, J.). On appeal he raises three issues: whether the indictment was constitutionally insufficient; whether the evidence was sufficient to prove, pursuant to RSA 630:1-b, I(b) (1986), that the defendant acted under circumstances manifesting extreme indifference to the value of human life; and whether the trial court erred in instructing the jury that it had to agree unanimously that the defendant was not guilty of the greater offense before it could consider a lesser included offense. For the reasons that follow, we affirm.
On January 7, 1989, the defendant was at home with his ex-wife, Debbie Glines, with whom he had reconciled. He drank at least six beers between noon and 6:00 p.m. At approximately 6:30 p.m., he telephoned 911 requesting an ambulance for a gunshot wound. The police and ambulance crews arrived to find Ms. Glines lying on the kitchen floor with a gunshot wound on the right side of her head, from which she eventually died.
The defendant told the officers on the scene that he had been cleaning a .22 caliber semi-automatic handgun when it accidentally discharged. He agreed to accompany the officers to the police department for an interview, after being assured he was not under arrest. At the station the defendant explained that he had been keeping the handgun and a .22 caliber rifle for a friend. He stated that he retrieved the gun and a loaded clip of ammunition from a closet, placed them on tables in the living room, went to the kitchen for a beer, and took a cotton swab from the bathroom to clean the gun, which he admitted he had cleaned two weeks before. Later in the interview he admitted that he had loaded the gun, knowing he had made it ready to fire, before getting the beer. He stated that after watching television for twenty minutes, he picked up the gun and went to sit on the living room floor at the entryway to the kitchen. He knew that his ex-wife was in the kitchen. The gun went off, he stated, as he was cleaning excess oil from it, with the gun in his left hand and a finger in the trigger housing. He acknowledged familiarity with the operation of a .45 caliber semi-automatic, which is functionally similar to a .22.
A search of the defendant's apartment revealed two spent bullet casings in a garbage bag. No cotton swabs were found in the living room or kitchen. The defendant agreed to re-enact the shooting at his apartment, which was videotaped by the police. Although at first stating that he did not know what had happened to the empty casing, when the officers told him it had been found in the trash, he admitted that he must have thrown it away. He admitted that he had occasionally "dry-fired" the gun by aiming the unloaded weapon at articles around the room. He was unable to tell the officers where they might find the clip to the .22, which they had been unsuccessful in locating.
Several days later the defendant returned to the police station after locating the clip. It had apparently been in his jacket pocket and had fallen out at his mother's house later on the night of the shooting. At the station the defendant provided another statement to the police. He eventually admitted, after being told of a bullet found lodged in his wall, that the second shell found in the trash came from his having fired the rifle in the apartment two days before shooting his ex-wife. He had been "joking around with it and it discharged." Ultimately, the defendant admitted he had not been cleaning the handgun when he shot his ex-wife, although he denied he had been dry-firing it. He stated that he "was fooling around with it on the floor and it went off." In all, he gave the police three different versions of how he had been holding the gun that night.
The defendant was tried on the charge of second degree murder. He requested and was granted a lesser included offense instruction for ...