Argued June 18, 2014.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Law Office of Joshua L. Gordon, of Concord ( Joshua L. Gordon on the brief and orally), for the defendant.
LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
Following a jury trial in Superior Court ( Kissinger, J.), the defendant, Richard Paul, was convicted on three counts of the sale of an ounce or more of marijuana, one count of possession with intent to distribute an ounce or more of marijuana, and one count of the sale of a substance represented to be LSD. See RSA 318-B:2, :26 (2011) (amended 2013). The defendant appeals, asserting that the trial court failed to comply with RSA 519:23-a (Supp. 2013)
by declining to give the jury nullification instruction he requested and by giving other jury instructions that effectively contravened his " jury nullification defense." We affirm.
The following facts are derived from the record. On April 17, April 27, and May 16, 2012, the Attorney General's Drug Task Force, using a confidential informant, conducted controlled buys of marijuana from the defendant, with a final controlled buy arranged for May 30, 2012. On April 27, the [167 N.H. 41] defendant also sold the confidential informant a substance that he represented to be LSD. During the May 30 meeting, the defendant was arrested. The defendant was tried before a jury in April 2013 and found guilty on all charges.
Before trial, the defendant, who characterizes himself as a " marijuana activist," requested the following jury instruction:
You are not required to convict the defendant. If you feel that a conviction would not be a fair or just result in this case, it is within your power to acquit even if you find the state has met its burden of proof. You must however keep in mind that we are a nation governed by laws. Unless finding the defendant guilty is repugnant to your sense of justice you should follow the instruction on the law as I gave it to you. You must also keep in mind that you may not find the defendant guilty unless the State has established guilt beyond a reasonable doubt.
The State responded by objecting only to the wording of the instruction, and proposed the following alternative language:
We are a nation governed by laws. You should follow the instruction on the law as I give it to you, including the instruction that you should find the defendant guilty if the state has established guilt beyond a reasonable doubt. However, if finding the defendant guilty is repugnant to your sense of justice, and you feel that a conviction would not be a fair or just result in ...