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State v. Addison

Supreme Court of New Hampshire

November 6, 2013

The State of New Hampshire
v.
Michael Addison (Capital Murder)

Argued November 14, 2012.

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Hillsborough-northern judicial district.

Michael A. Delaney, attorney general (Peter Hinckley, assistant attorney general, Janice K. Rundles, senior assistant attorney general, and Thomas E. Bocian, assistant attorney general, on the brief, and Elizabeth C. Woodcock, assistant attorney general, Mr. Hinckley, and Ms. Rundles orally), for the State.

David M. Rothstein, deputy chief appellate defender, Christopher M. Johnson, chief appellate defender, Richard C. Guerriero, New Hampshire public defender, and Heather S. Ward, New Hampshire public defender, of Concord, on the brief, and Mr. Rothstein orally, for the defendant.

DALIANIS, C.J., and HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

OPINION

Per Curiam.

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[165 N.H. 409] TABLE OF CONTENTS

I.

THE CAPITAL MURDER................................

412

II.

PROCEDURAL HISTORY................................

415

III.

PROCEDURE IN CAPITAL MURDER.......................

417

[165 N.H. 410] IV.

APPELLATE STANDARDS OF REVIEW................

418

V.

VENUE AND JURY SELECTION REVIEW.............

419

A. VENUE

421

B. PEREMPTORY CHALLENGES

440

C. CHALLENGES FOR CAUSE

444

VI.

GUILT PHASE REVIEW...........................

453

A. RULE 404(B) PRIOR CRIMES EVIDENCE

458

B. REASONABLE DOUBT INSTRUCTION

475

VII.

SENTENCING PHASE REVIEW..........

480

A. ELIGIBILITY PHASE TRIAL

488

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1. ADDISON'S STATEMENT

489

B. SENTENCE SELECTION PHASE TRIAL

499

1. VICTIM IMPACT EVIDENCE

501

2. CONDITIONS OF CONFINEMENT AND MODE OF EXECUTION

514

3. PRIOR CRIMES

527

4. CLOSING ARGUMENT

545

VIII.

CONSTITUTIONAL AND STATUTORY REVIEW.......

563

A. DEATH PENALTY CHALLENGE UNDER STATE CONSTITUTION

564

B. STATUTORY AGGRAVATING FACTORS (NARROWING FUNCTION)

576

C. STATUTORY BURDENS OF PROOF

586

D. INAPPLICABILITY OF RULES OF EVIDENCE

597

E. IMPACT OF RACE IN CAPITAL SENTENCING

602

F. DEATH-QUALIFIED JURY

619

G. NON-STATUTORY AGGRAVATING FACTORS (SEPARATION OF POWERS; GRAND JURY INDICTMENT; DUPLICATIVE FACTORS)

627

H. POST-VERDICT REQUEST FOR DISCOVERY

642

IX.

MANDATORY SUPREME COURT REVIEW............

654

A. PASSION, PREJUDICE OR OTHER ARBITRARY FACTOR.

654

[165 N.H. 411] B. EVIDENCE OF AGGRAVATING CIRCUMSTANCES

656

X.

APPENDIX

A. SPECIAL FINDINGS FORM

658

B. SPECIAL VERDICT FORM

663

The defendant, Michael Addison, was convicted in Superior Court ( McGuire, J.) of the capital murder of Manchester Police Officer Michael Briggs and sentenced to death. This is the first death sentence imposed in New Hampshire since the enactment of the current statutory scheme in 1977. See Laws 1977, 440:2. The defendant appeals his conviction and his sentence. S.Ct. R. 7. The capital sentencing statute also requires independent review by this court when a defendant has been sentenced to death. RSA 630:5, X-XII (2007).

On appeal, the defendant contends that numerous errors undermine his conviction and sentence. This opinion addresses each of the twenty-two issues briefed by the defendant. Regarding his capital murder trial, the defendant's claims of error relate to venue, peremptory challenges and challenges for cause to prospective jurors, prior crimes evidence under New Hampshire Rule of Evidence 404(b), and the jury instruction on reasonable doubt. Regarding sentencing, the defendant's claims of error relate to his custodial statement, victim impact evidence, evidence of conditions of confinement, evidence of and jury instruction on mode of execution, prior crimes evidence, and closing argument. He also raises several constitutional and statutory issues that relate to the constitutionality of the capital punishment statute, the narrowing function of the statutory aggravating factors, the statutory burdens of proof, the inapplicability of the rules of evidence, the impact of race in capital sentencing, the process of " death qualifying" the jury, the non-statutory aggravating factors' compliance with certain constitutional requirements, and his post-verdict request for discovery.

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In addition, we are statutorily required to address: (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (2) whether the evidence supports the jury's finding of an aggravating circumstance, as authorized by law; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. RSA 630:5, XI. Only the first two statutory questions are before us at this stage of the proceeding; we will address the third question after further briefing and oral argument.

[165 N.H. 412] With respect to the issues raised by the defendant on appeal, we find no reversible error. Accordingly, we affirm the defendant's conviction for capital murder. Furthermore, we conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor, and that the evidence was sufficient to support the jury's findings of aggravating circumstances. We note that our review of the defendant's sentence is not yet complete. Only after additional briefing and oral argument on comparative proportionality under RSA 630:5, XI(c) will we conclude our review of the defendant's sentence of death, at which time we will issue a further opinion.

I. THE CAPITAL MURDER

The following facts are based upon the evidence adduced at the guilt phase of the trial and upon the jury's findings and verdict. On October 16, 2006, the defendant shot Officer Briggs in the head in order to evade apprehension by the police. The shooting occurred at approximately 2:45 a.m. in Litchfield Lane, an alley in Manchester. The defendant fled the crime scene, but the police located him later that day at his grandmother's home in Massachusetts and took him into custody. Officer Briggs died the following day.

During the week before the shooting, the defendant committed several violent crimes in the area. On October 10, he and Antoine Bell-Rogers robbed the El Mexicano Restaurant in Manchester. The defendant, a convicted felon, was armed with a knife, and Bell-Rogers fired his semiautomatic handgun twice during the robbery. After the men fled the scene, Manchester police officers recovered two empty shell casings from the floor and a bullet lodged in the ceiling.

The following morning, the defendant and Bell-Rogers robbed at gunpoint the clerk of a 7-Eleven convenience store in Hudson. As the defendant brandished the same weapon that had been used in the restaurant robbery, Bell-Rogers took the cash drawer, and the men fled. A store surveillance camera recorded the robbery.

In the early morning of October 15, the defendant and Bell-Rogers drove to an apartment complex on Edward J. Roy Drive in Manchester. They approached the building, at which Bell-Rogers fired several rounds, and the two men fled. Manchester police recovered shell casings, bullet fragments in a parked car, and a bullet lodged in the bedroom wall of an apartment. The police later found a bullet lodged in the living room floor of another apartment.

Prior to the shooting of Officer Briggs, the defendant knew that the police were searching for him, and throughout the week he told friends that [165 N.H. 413] if the police approached him he would shoot. On the day of the Roy Drive shooting, Manchester police interviewed several people associated with the defendant and Bell-Rogers. A friend warned the men that the police were nearby looking for them; the defendant and Bell-Rogers responded by declaring that they were " out for blood."

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That afternoon, the men brought the car that they had used in two of the previous crimes to a friend so that he could " wipe it out," and they made plans to leave the state.

That evening, Officer Briggs and his partner, Officer John Breckinridge, reported to the Manchester Police Department for the 6:30 p.m. to 3:00 a.m. shift. Their shift began with a roll call and briefing during which they learned that the defendant and Bell-Rogers were wanted in connection with a shooting. The officers received physical descriptions and photographs of the defendant and Bell-Rogers, as well as information about the people, places, and vehicles associated with them. A detective told the officers that the defendant and Bell-Rogers likely were armed and dangerous and that, if apprehended, they should be held for questioning. Officer Briggs was familiar with the defendant as a result of a prior encounter with him.

Officers Briggs and Breckinridge were assigned to bicycle patrol on the east side of Manchester. They were in uniform and wearing bicycle helmets marked " Police." Numerous officers in patrol vehicles were canvassing the area, searching for the defendant and Bell-Rogers. By the early morning of October 16, arrest warrants had been issued for both men, and the officers were instructed to arrest the defendant and Bell-Rogers on sight. At that time, the defendant and Bell-Rogers were at an apartment on Lake Avenue in Manchester, aware that the police were in the immediate vicinity looking for them.

Shortly before 2:00 a.m., Officers Briggs and Breckinridge heard a dispatch report of a gunshot having been fired during a domestic incident at an apartment on Lake Avenue. They responded to assist and, while on their way, learned that the suspects had fled on foot. At the scene, the police searched the apartment building to make sure that the shooter was no longer there. Officers Briggs and Breckinridge assisted with that investigation, and learned that the defendant and Bell-Rogers had been involved.

At approximately 2:45 a.m., Officers Briggs and Breckinridge left the Lake Avenue apartment. At that time, the defendant and Bell-Rogers were walking past a marked police vehicle and entering the Litchfield Lane alley. Both men were wearing sweatshirts with hoods over their heads and the defendant had Bell-Rogers's loaded semiautomatic handgun tucked in his waistband; the gun was concealed by his sweatshirt. As Officers Briggs and Breckinridge were crossing the intersection of Lincoln Street and Litchfield Lane, they spotted the defendant and Bell-Rogers in the alley. Another officer in a police vehicle traveling on the same street also saw the [165 N.H. 414] defendant and Bell-Rogers in the alley and maneuvered his vehicle to get a closer look at them. Officer Briggs turned his bicycle sharply to pursue the defendant and Bell-Rogers. Officer Breckinridge quickly followed.

As Officer Briggs approached the two suspects, he commanded, " Stop, Police!" Bell-Rogers stopped almost immediately, but the defendant continued walking away, keeping his hands near his waist and out of the officer's sight. His head was " leaning down and forward a little bit." As Officer Briggs neared the defendant, he again issued the same command -- " Stop, Police!" The defendant continued walking away, " rolling his shoulders forward" and " looking downward" in a " balling-up sort of a motion." He slowed his pace while Officer Briggs closed the gap between them. When Officer Briggs was within an arm's length, he issued a third command -- " Stop, Police!" The defendant suddenly turned, raised both arms together " in a unified

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motion" about " chest to head high," and fired a single gunshot at Officer Briggs. The bullet penetrated the side of Officer Briggs's helmet and he instantly collapsed to the ground. The defendant turned and ran up the alley as Officer Breckinridge fired several shots at him.

Police officers in the area responded immediately. One officer saw the defendant in the alley looking for a way to escape. The officer saw the defendant turn and raise his arm toward the officers as though he was going to fire a gun at them; the officer took aim at the defendant and fired his weapon four or five times. Another officer also took aim at the defendant but did not fire because she could not take a clear shot. The defendant looked back at the officers, then " hunched down" and moved his arm back and forth at waist level as if trying to clear a jam from his gun. Several officers chased the defendant up the alley, while others went to Officer Briggs's aid.

The police discovered the defendant's cellular telephone at the scene and his red sweatshirt nearby. Later that day, they tracked him to his grandmother's Boston apartment, where he surrendered to the police and was taken into custody. A resident in the neighborhood of the shooting later found the gun in her backyard where the defendant had discarded it while fleeing, and she notified the police.

Officer Briggs never regained consciousness. He died the next day, October 17, from a single gunshot wound to his head.

II. PROCEDURAL HISTORY

On February 20, 2007, a grand jury indicted the defendant on one count of capital murder. The indictment alleged that

[165 N.H. 415] Michael K. Addison ... of Manchester, New Hampshire, on or about October 16, 2006, at Manchester in the County of Hillsborough, with force and arms, ... knowingly caused the death of Manchester Police Officer Michael L. Briggs, a law enforcement officer, by shooting Officer Briggs in the head with a firearm, while Officer Briggs was acting in the line of duty ... .

See RSA 630:1, I(a) (2007). The indictment also alleged certain statutory aggravating factors that would make the defendant eligible to receive a death sentence. On May 7, 2007, the State filed its notice of intent to seek the death penalty, identifying statutory and non-statutory aggravating factors pursuant to RSA 630:5, I (2007). This notice was later amended.

The defendant's capital murder trial took place from October to December 2008. At the defendant's request, the trial court bifurcated sentencing into two stages. Consequently, the trial consisted of three phases: (1) the guilt phase, in which the jury determined whether the defendant committed capital murder; (2) the eligibility phase, in which the jury determined whether there existed statutory aggravating factors making the defendant eligible for the death penalty; and (3) the sentence selection phase, in which the jury determined, based upon consideration of all the evidence, including aggravating and mitigating factors, whether to sentence the defendant to life imprisonment without possibility of parole or to death.

The guilt phase began on October 20, 2008, and the evidence included numerous exhibits and the testimony of more than forty witnesses. The guilt phase ended on November 13, when the jury found the defendant guilty of capital murder for having knowingly killed a law enforcement officer acting in the line of duty. See RSA 630:1, I(a). The eligibility phase lasted one day, November 17, and included one witness who testified for the State, and a

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stipulation relating to the defendant's prior incarceration. At the conclusion of this phase, the jury determined that the State had proven statutory aggravating factors making the defendant eligible for the death penalty. See RSA 630:5, VII (2007). The jury recorded these findings on a Special Findings Form, which is included in Appendix A to this opinion. The sentence selection phase began on November 21, and the evidence included numerous exhibits and the testimony of more than fifty witnesses. This final phase ended on December 18, when the jury returned findings on the non-statutory aggravating factors evidence proffered by the State and the mitigating factors evidence proffered by the defendant, and recommended that the defendant be sentenced to death. See RSA 630:5, IV (2007). The jury recorded these findings and its verdict on a Special Verdict Form, which is included in Appendix B to this opinion. As required by statute, the superior court imposed the recommended death sentence on December 22. [165 N.H. 416] See RSA 630:5, V (2007). On December 31, 2008, this court docketed the automatic appeal required under RSA 630:5, X (2007). On May 1, 2009, the defendant filed his notice of appeal pursuant to Supreme Court Rule 7.

We previously have issued several decisions related to this case. In 2009, we concluded that formal rulemaking for review of death penalty cases was not required. State v. Addison, 159 N.H. 87, 93, 977 A.2d 520 (2009). In 2010, we determined the standard applicable for comparative proportionality review under RSA 630:5, XI(c) (2007), and noted that we would decide the applicable standards under sections XI(a) and (b) as necessary in our decision on the appeal. State v. Addison, 160 N.H. 732, 741, 7 A.3d 1225 (2010). Also in 2010, the defendant moved for a partial remand to the trial court for additional discovery and proceedings. We granted his motion, in part, to allow the trial court to rule upon his post-verdict motion for discovery. The trial court conducted further proceedings and denied the defendant's post-verdict motion.

We also issued decisions in the appeals of three non-capital cases involving the defendant. During the sixteen months between the State's filing of its initial notice to seek the death penalty and the start of the defendant's capital murder trial, the parties tried three felony cases arising out of the events that occurred during the week preceding the shooting of Officer Briggs. These three cases are relevant to the capital murder proceedings because they relate to certain non-statutory aggravating factors identified in the State's amended notice of intent to seek the death penalty.

First, the defendant was convicted of armed robbery and of being a felon in possession of a deadly weapon for participating in the robbery of the El Mexicano Restaurant in Manchester on October 10, 2006. Second, he was convicted of conspiracy to commit robbery, armed robbery, and of being a felon in possession of a firearm for participating in the robbery of the 7-Eleven convenience store in Hudson on October 11, 2006. Third, he was convicted of conspiracy to commit criminal threatening and accomplice to reckless conduct with a firearm for participating in the shooting at the apartment complex located on Edward J. Roy Drive in Manchester on October 15, 2006. He was acquitted of the charge of being a felon in possession of a deadly weapon during the Roy Drive shooting. We affirmed the defendant's non-capital convictions in all three cases. See State v. Addison, 160 N.H. 493, 8 A.3d 53 (2010) (7-Eleven robbery); State v. Addison, 160 N.H. 792, 8 A.3d 118 (2010) (El Mexicano Restaurant robbery); State v. Addison, 161 N.H. 300, 13 A.3d 214

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(2010) (Roy Drive shooting). The trial court imposed sentences for each of these convictions on December 22, 2008, the same day it imposed the death sentence for the capital murder.

[165 N.H. 417] III. PROCEDURE IN CAPITAL MURDER

Under New Hampshire law, a defendant is eligible for a death sentence if a unanimous jury finds beyond a reasonable doubt both that the defendant is guilty of capital murder as defined under RSA 630:1 (2007) (amended 2011), and, following a sentencing hearing, that the State has proven two statutory aggravating factors. RSA 630:5, I, II, IV, VII (2007). When the crime in this case occurred, the statute identified six types of capital murder, each defined as " knowingly caus[ing] the death of another" in specific circumstances. RSA 630:1; see RSA 630:1, I(g) (Supp. 2012) (statute amended in 2011 to add seventh type of capital murder). One type of capital murder is defined as knowingly killing " a law enforcement officer acting in the line of duty." RSA 630:1, I(a). One of the two requisite statutory aggravating factors relates to whether the defendant acted " purposely" when committing the capital murder. RSA 630:5, VII(a)(1)-(3). The second relates to the circumstances of the crime, the background of the defendant, or the status of the victim. RSA 630:5, VII(b)-(j).

At a capital sentencing hearing, the jury also considers whether additional aggravating factors exist, provided such factors were set forth in the State's notice of intent to seek the death penalty. RSA 630:5, I, III (2007). These additional factors may be those identified in the statute (statutory aggravating factors) or may be " other aggravating factors which the state will seek to prove as the basis for the death penalty" (non-statutory aggravating factors). RSA 630:5, I(b). Further, each juror considers whether mitigating factors exist. RSA 630:5, III. Although the jury's finding with respect to an aggravating factor must be unanimous, " any member of the jury who finds the existence of a mitigating factor may consider such a factor established." RSA 630:5, IV. The State bears the burden of proving the existence of an aggravating factor beyond a reasonable doubt; the defendant bears the burden of proving the existence of a mitigating factor by a preponderance of the evidence. RSA 630:5, III.

If a sentencing jury unanimously finds the existence of the two statutory aggravating factors that are necessary to make the defendant eligible for a death sentence, then each juror considers whether all of the aggravating factors found to exist " sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death." RSA 630:5, IV. A recommendation " that a sentence of death be imposed rather than a sentence of life imprisonment without possibility of parole" must be " by unanimous vote." Id. Moreover, " [t]he jury, regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence and the jury shall be so instructed." Id. [165 N.H. 418] Should the jury recommend a death sentence, the court is required to impose that sentence. RSA 630:5, V (2007).

IV. APPELLATE STANDARDS OF REVIEW

The issues before us raise questions of statutory and constitutional interpretation and require our review of the trial court's evidentiary rulings. Our settled principles of judicial review apply to this appeal. The trial court's rulings on

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questions of law, including statutory interpretation and constitutional questions, are reviewed de novo . State v. Marshall, 162 N.H. 657, 661, 34 A.3d 540 (2011). Because we decide cases on constitutional grounds only when necessary, when a claim of error is based upon both a statutory provision and a constitutional provision, we first will address the statutory argument. See State v. Wamala, 158 N.H. 583, 592, 972 A.2d 1071 (2009).

In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. State v. Etienne, 163 N.H. 57, 71, 35 A.3d 523 (2011). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. State v. Moussa, 164 N.H. 108, 128, 53 A.3d 630 (2012). Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent. Etienne, 163 N.H. at 72. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include. State v. Addison, 160 N.H. 732, 754, 7 A.3d 1225 (2010). Our goal is to apply statutes in light of the policy sought to be advanced by the entire statutory scheme. Id. Accordingly, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id. Additionally, " we construe provisions of the Criminal Code according to the fair import of their terms and to promote justice." Id. (quotation and citation omitted).

Legislative acts are presumed to be constitutional and will not be declared invalid " except upon inescapable grounds." Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 745, 919 A.2d 767 (2007). " This means that we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution." Petition of S. N.H. Med. Ctr ., 164 N.H. 319, 324, 55 A.3d 988 (2012) (quotation omitted). " It also means that when doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality." Id. (quotation omitted). " The party challenging a statute's constitutionality bears the burden of proof." State v. Pierce, 152 N.H. 790, 791, 887 A.2d 132 (2005). To prevail on a facial challenge, the defendant must establish that no set of circumstances exists under which the challenged statute would be valid. State v. Hollenbeck, 164 N.H. 154, 158, 53 A.3d 591 (2012).

[165 N.H. 419] Where the defendant claims a violation of both the State and Federal Constitutions, we first address his claims under the State Constitution, and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). When the United States Supreme Court has decided an issue of federal law, we must " follow the case [that] directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp ., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see State v. Melvin, 150 N.H. 134, 140, 834 A.2d 247 (2003) (" When interpreting federal law, ... we are bound by the United States Supreme Court's current explication of it." ).

The admission of evidence falls within the trial court's sound discretion. State v. Oakes, 161 N.H. 270, 280, 13 A.3d 293 (2010); State v. Giddens, 155 N.H. 175, 179, 922 A.2d 650 (2007). We review the trial court's ruling for an unsustainable exercise of discretion. See Giddens, 155 N.H. at 179. To prevail under this standard, the defendant must

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demonstrate that the challenged evidentiary ruling was " clearly untenable or unreasonable to the prejudice of his case." Id. Additionally, we review the propriety of the trial court's pretrial rulings in the context in which evidentiary disputes were presented to the court. See State v. Glodgett, 144 N.H. 687, 694, 749 A.2d 283 (2000); State v. Bassett, 139 N.H. 493, 497, 659 A.2d 891 (1995).

V. VENUE AND JURY SELECTION REVIEW

On appeal, the defendant raises one challenge to venue and two to jury selection. He first argues that the trial court erred in denying his motions for change of venue. Regarding jury selection, he argues that the trial court erred in denying his request that he be allotted thirty peremptory challenges and in denying his motions to dismiss two prospective jurors for cause. We first provide an overview of the jury selection process in this case.

In September 2008, at the start of the first day of juror voir dire, the trial court described the jury selection process that had taken place to that point. Approximately 1,200 prospective jurors had been summoned for the case and those who responded to the summons submitted a completed five-page preliminary questionnaire. Counsel jointly determined which individuals should be excused immediately based upon the questionnaire responses alone, and they met periodically with the trial court to discuss their recommendations. The court noted that counsel " almost always agreed on who should be excused and ... whose request should be denied." In addition, the court excused persons who clearly were not eligible for jury service, as well as those who were entitled to be excused.

Juror voir dire lasted approximately seventeen days, generating approximately 2,800 pages of transcript testimony. Over 300 prospective [165 N.H. 420] jurors reported to the courthouse for jury selection and the trial court divided them into several panels. Each panel was brought before the court for preliminary voir dire, during which the trial court described the charge against the defendant, the jury selection process, and the law generally applicable to criminal cases, including capital cases. Prospective jurors who knew any of the potential witnesses were excused, and the remainder completed a long-form juror questionnaire, specially prepared for the case.

This forty-one page form, modeled largely upon the defendant's proposed questionnaire, covered a variety of topics ranging from the prospective juror's views on racial discrimination, the death penalty, and the criminal justice system, to opinions that he or she might have formed about the guilt or innocence of the defendant or the possible punishment if he were convicted. The questionnaire included several questions about the prospective juror's media exposure, including his or her sources for news ( e.g ., newspaper, talk radio, television, or internet) and frequency of reading or listening to the news. The questionnaire included a list of television shows and channels, and radio stations and programs and prompted the prospective juror to indicate which he or she watched or listened to on a regular basis. The questionnaire asked whether the individual participated in social media such as MySpace or Facebook. In addition, the questionnaire asked a series of questions concerning aspects of the case that the prospective juror might have read about, heard, or discussed with anyone, including information about the defendant and Officer Briggs. Many of the questions were designed to prompt narrative or explanatory answers, and each prospective juror signed

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his or her completed questionnaire under oath.

Next, approximately 114 prospective jurors participated in individual, sequestered voir dire . Before each prospective juror entered the courtroom, the trial court asked counsel whether specific questioning was necessary in light of the individual's answers to the long-form questionnaire. If requested by either party, the trial court asked targeted questions of the prospective juror based upon information provided in response to questions in the questionnaire. The court then questioned each prospective juror as to whether he or she understood, and accepted, certain principles of law, including that the defendant was presumed innocent unless and until the State convinced a unanimous jury beyond a reasonable doubt that he was guilty. The court explained to each individual the phases of a death penalty case and questioned each as to his or her understanding of these phases. The court also asked the prospective juror whether he or she understood that the jury would not be required to impose the death penalty, and that the jury could impose the death penalty only if it unanimously found that aggravating factors sufficiently outweighed [165 N.H. 421] mitigating factors. It asked each prospective juror if there was any reason that he or she could not be a fair and impartial juror in the case. Following this questioning, counsel for both the defendant and the State were allowed equal time to question the prospective juror, including questioning about information provided on the long-form questionnaire. Counsel's questioning ranged from exposure to media coverage, community ties, and opinions of police officer credibility, to the ability to be fair and impartial and opinions about the death penalty.

During voir dire, the State and the defendant moved to dismiss certain prospective jurors for cause; some of the motions were granted, and others were not. Individuals were dismissed by the trial court for a variety of reasons including their particular views about the death penalty, and other statements indicating a lack of impartiality or an inability to follow the law. The State exercised eleven of its twelve allotted peremptory challenges. The defendant exercised the last of his twenty-four allotted peremptory challenges after the seventeenth juror was seated. Ultimately, the trial court seated eighteen jurors, including six alternates. The defendant did not move to dismiss the eighteenth selected juror for cause.

A. Venue

1. Background

The superior court for the Hillsborough-North judicial district is located in Manchester. Approximately six months before trial, the defendant moved for a change of venue, arguing that " [t]he crime with which he is charged set in motion an unprecedented wave of public passion, outcry, and outrage in the community in which the prospective venire resides," and that " [t]his community has rallied around the victim, his surviving family, and his brother officers, and against [the defendant], such that it would be fundamentally unfair to compel [him] to select his jury in the Hillsborough-North district." In support of this argument, the defendant alleged, among other things, that: " [w]ithin roughly two hours of [Officer Briggs's] death, in a widely broadcast press conference, [then] Attorney General Kelly Ayotte announced that the State would seek to execute the man responsible for killing [him]" ; the community's reaction to Officer Briggs's death " reveals how the community ... felt about the crime, the police, and the level of violence in the community" ; and " [t]he case has prompted politicians, public figures, and the media to

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emphasize the threat posed by crime to the community, and to focus community outrage at [the defendant]."

The defendant included with his motion copies of Union Leader and Concord Monitor newspaper articles, WMUR Channel 9 telecasts, a summary of reader comments posted on the Union Leader website, a list [165 N.H. 422] of blogs and websites that mentioned Officer Briggs, a table of the Union Leader 's print circulation figures, the Manchester Police Department 2006 annual report, population figures for New Hampshire counties and selected cities, photographs and maps establishing the relative locations of the Manchester Police Department and the Hillsborough-North Superior Court, and memoranda documenting the Union Leader 's coverage of two other high-profile murder cases. He argued that the " voluminous" publicity " in itself justifies moving th[e] trial from Hillsborough-North." In addition, the defendant alleged that on a blog maintained on the Union Leader website, " many Manchester residents have expressed their views on the proper outcome of th[e] prosecution." According to the defendant, " [b]ecause this community has reacted so powerfully to the crime, the trial must be moved to a less deeply affected judicial district ... [where he] can ... get the fair and impartial trial society mandates." The defendant subsequently supplemented his motion with additional materials.

The State objected, arguing that the motion should be denied because the defendant " has failed to meet his burden to establish that the media coverage of his case has inherently or presumptively prejudiced the potential jury pool." According to the State, the " overwhelming bulk of the media coverage, which the defendant cites, occurred over eighteen months [earlier], in the immediate aftermath of the murder of [Officer] Briggs," and " the media coverage has been primarily factual." The State noted that for jury selection, the trial court intended to call a larger pool of potential jurors than usual, that each juror would receive a detailed questionnaire asking about familiarity with the case, and that the court and the parties would undertake individual, sequestered voir dire of the prospective jurors. Thus, the State argued, " [t]he extensive voir dire by the Court and the parties ... will resolve whether it is possible to obtain a fair and impartial jury."

Following a hearing, the trial court denied the defendant's motion by written order dated June 25, 2008. Having examined the publicity surrounding the case, the trial court found that much of it " occurred immediately after the shooting of Officer Briggs." It noted that the television clips were " largely factual, discussing developments in the investigation of the death of Officer Briggs and subsequent charging and prosecution of the defendant," while other articles and television clips discussed " debates over the death penalty in general, ... the defendant's personal history, and ways in which people have posthumously honored Officer Briggs and supported his widow and children." In addition, however, the trial court found that " [s]ome of the articles and television clips refer to evidence that may be inadmissible during the defendant's capital murder trial" ; for example, extensive coverage of the three non-capital trials and [165 N.H. 423] articles about the defendant's criminal history. Regarding comments posted by readers on the Union Leader website, the trial court found that many were " personal attacks on the defendant" or were " messages of support to the Briggs family or remembrances of Officer Briggs," that others concerned " crime in Manchester" or " the death penalty in general," and that some were reactions to developments in the defendant's case.

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After reviewing the materials submitted by the defendant, the trial court concluded that " while the press concerning this case has been voluminous, especially immediately after the death of Officer Briggs, it is not the kind of adverse inflammatory publicity that raises a concern about inherent prejudice." The trial court found that although " some of the pieces are hostile in tone and accusatory in content, the overwhelming bulk of the material submitted consists of straightforward, unemotional factual accounts," and that " [w]hile some of the articles and television clips about the death of Officer Briggs had an emotional tone, very few related facts about the defendant in a way that could be described as prejudicial." (Quotation omitted.) In addition, the trial court stated that " very few editorials about the case displayed hostility towards the defendant" ; rather, " [m]ost expressed sadness about the death of Officer Briggs, debated the value of the death penalty, and generally discussed crime in Manchester." While some of the media coverage revealed facts about the defendant's criminal history that might be inadmissible during the guilt phase of his trial, the court noted that " [e]xposure to inadmissible evidence ... is not sufficient to presume jury prejudice." (Quotation omitted.)

The trial court declined to consider media website comments such as those posted on the Union Leader website as " publicity" for the purposes of its analysis of inherent prejudice, characterizing media websites as " merely places where members of the public can express their opinions about any topic, a kind of electronic general store," and stating that such comments were " clearly not posted to transmit information or news in an objective fashion but [were] often emotional reactions to articles posted on the Union Leader website." Further, the court rejected the defendant's argument that internet comments and community reaction as reported in the media reflected a deep hostility that would make it impossible to select an impartial jury in the Hillsborough-North judicial district. The trial court found that: " the total number of comments is small" ; the majority of the comments were from webboards where the writers were often anonymous and posted opinions more than once, and therefore the number of " commenters" could not be accurately gauged; about two-thirds of the " commenters" who identified themselves lived in towns outside the judicial district; and " the vast majority of the comments express support for Officer Briggs, his family, the police department, or describe memories of Officer [165 N.H. 424] Briggs." The court's " informal" review revealed that less than one quarter of the small number of comments were of " an inflammatory nature," which, in a judicial district of more than 190,000 people, " does not signal inherent community prejudice."

The trial judge noted that, because she had previously presided over the defendant's two non-capital trials held in Manchester, she " ha[d] been able to test the effect of pretrial publicity on jurors" and that, through juror voir dire, the court had been " able to secure fair and impartial juries in those cases without exhausting the jury pools." Finally, the trial court disagreed with the defendant's assertion that the close proximity of the Manchester Police Station -- where a monument to fallen officers, including Officer Briggs, was located -- to the courthouse weighed in favor of a change of venue because jurors could be prejudiced as they entered the courthouse. The court found that the Manchester Police Station, located diagonally across the street from the courthouse, was a nondescript building and that the monument was not readily visible from the courthouse. In addition, the court found that the monument listed Officer

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Briggs " as one of four downed police officers in Manchester's history" and that the names of the officers could be read only upon close inspection. The trial court noted that " during the trial, the jurors will park at an off-site location and be bused to the courthouse each day where they will enter through the backdoor, out of sight of the Manchester Police Station."

The defendant then petitioned this court to exercise its original jurisdiction and order the trial court to grant a change of venue. We denied the petition.

Following jury selection, the defendant renewed his motion for change of venue, arguing that " [a] review of actual juror comments, both to the Court and in questionnaires, indicates that this community is so aligned with the Manchester Police, and so hostile to [him], that a trial in this judicial district is fundamentally unfair." The defendant argued that " in spite of the jury selection process, he [would] suffer actual prejudice by having his trial in ...


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