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State v. Adams

Supreme Court of New Hampshire

August 23, 2016

THE STATE OF NEW HAMPSHIRE
v.
TERRY ADAMS, JR.

          Argued: May 5, 2016

         Rockingham

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

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

          DALIANIS, C.J.

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

         The relevant facts follow. Based upon an incident that occurred on November 9, 2013, the defendant was charged with reckless conduct "by operating a motor vehicle, accelerating from a stopped position while the [victim] . . . was not completely inside said vehicle, and the passenger door was open, thereby causing [the victim] to fall from the vehicle onto the roadway, said vehicle being a deadly weapon." He was also charged with simple assault in that he "knowingly caused unprivileged physical contact to [the victim] by grabbing her around her neck and throat area."

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

         The trial court then met with the jury in the deliberation room and the foreperson "almost immediately" asked whether the court heard him say "guilty" on the reckless conduct charge as he said he intended. The court immediately ended its discussion with the jurors and reconvened the parties in the courtroom at 3:52 p.m. The court explained what the foreperson had asked, and announced that it was going to "bring the jury back, take the verdict again on the reckless conduct charge, [and] poll the jury."

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

         The defendant subsequently moved to enforce the original verdict rendered by the jury on the reckless conduct charge and to set aside the second verdict. Following a hearing, the trial court denied the motion. The court noted that it had "since listened to the audio tape of the verdict at least a dozen times" and had "concluded that the foreperson did not say 'not guilty' with respect to the Reckless Conduct charge." The court stated that although the foreperson "certainly made some sort of noise prior to saying 'guilty[, ]' . . . he neither said, nor meant to say[, ] that the defendant was not guilty of the offense."

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

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

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

         "The discretion of the trial court in this respect is broad." Id.; see State v. Santiago, 159 N.H. 753, 758 (2010) (ruling that trial court did not unsustainably exercise its discretion by declining to reconvene the jury); Drop Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 674, 683 (1985) (explaining that, in a civil case, whether to reconvene the jury five days after the close of trial was "within the sound discretion of the trial court"); State v. Low, 138 N.H. 86, 88 (1993) (holding that the defendant failed to demonstrate that the trial court unsustainably exercised its discretion by denying his motion to reconvene the jury to determine whether the jury members ignored the court's instructions). "We review the trial court's decision under an ...


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