k....xv. new hampshire'sdeath penally statute does not constitute cruel or unusual punishment,...

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THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 2008-0945 The State of New Hampshire v. Michael Addison (Capital Murder) Appeal Pursuant to Rule 7 from Judgment of the Hillsborough County Superior Court/North BRIEF FOR THE STATE OF NEW HAMPSHIRE Volume 1: Questions Presented, Statements of the Case and Facts, Summary of the Argument THE STATE OF NEW HAMPSHIRE Michael A. Delaney Attorney General Peter Hinckley, NH Bar #18708 Assistant Attorney General Janice K. Rundles, NH Bar #2218 Senior Assistant Attorney General Thomas E. Bocian, NH Bar # 16420 Assistant Attorney General Criminal Justice Bureau 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671 (Oral Argument Requested)

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Page 1: K....XV. NEW HAMPSHIRE'SDEATH PENALlY STATUTE DOES NOT CONSTITUTE CRUEL OR UNUSUAL PUNISHMENT, NOR DOES IT CONSTITUTE A GROSSLY DISPROPORTIONATE PENALlY, EITHER ON ITS FACE ORAS APPLIED

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 1: Questions Presented, Statements of the Case and Facts,

Summary of the Argument

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)

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TABLE OF CONTENTS

TABLE OF AUlliORITIES vii

ISSUES PRESENTED 1

STATEMENT OF lliE CASE 6

STATEMENT OF FACTS 9

A. Introduction 9

B. The Robbery of the EI Mexicano Restaurant 12

C. The Robbery Of The 7-Eleven Convenience Store 15

D. The Shooting At Edward J. Roy Drive 17

E. The Defendant's Statements About Shooting PoliceOfficers 24

F. Bell-Rogers Physically Assaulted Jennifer Roman AndFired A Gun At 337 Lake Avenue On October 15, 2006,Immediately Before Officer Briggs Was Murdered 26

G. The Murder Of Manchester Police Officer Michael Briggs 31

H. The Defendant's Flight In The Aftermath Of TheShooting 38

1. The Search For The Defendant And His Arrest .42

J. The Jury Found The Defendant Eligible To Receive TheDeath Penalty 45

K. The Jury Recommended That The Defendant BeSentenced To Death 47

SUMMAR)' OF lliE ARGUMENT 89

ARGUMENT 101

1. lliE TRIAL COURT' CORRECTL)' DENIED THE DEFENDANT'SMOTION TO CHANGE THE VENUE OF HIS TRIAL BECAUSEHE FAILED TO DEMONSTRATE THAT THE PUBLICIlYSURROUNDING HIS CASE WAS SO PERVASIVE THAT THECOURT' EITHER COULD NOT, OR DID NOT, FIND ANUNBIASED JUR)' TO DECIDE HIS CASE 101

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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 1WOJURORS FOR CAUSE BECAUSE BOTH JURORS MADE CLEARTHAT THEY COULD DECIDE THE CASE FAIRLY AND WITHDUE REGARD TO THE COUIITS INSTRUCTIONS AND THEIROATH 164

N. THE TRIAL COURT CORRECTLY PERMITTED 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. WEN1WORTH 226

VI. THE TRIAL COURT IN THE ELIGIBILI1Y PHASE SUSTAINABLYEXERCISED ITS DISCRETION IN PRECLUDING THEDEFENDANT FROM OFFERING UNRELIABLE AND SELF­SERVING STATEMENTS. THE DEFENDANT NEVER SOUGHTTO ADMIT THOSE STATEMENTS IN THE SENTENCESELECTION PHASE, WHERE THE TRIAL COURT GAVE HIMVIRTUALLY FREE REIN TO PRESENT MITIGATINGINFORMATION 247

VII. VICTIM IMPACT EVIDENCE IS ADMISSIBLE UNDER THEEVIDENTIARY GUIDELINES SET FORTH IN RSA 630:5, ANDTHE EVIDENCE SUBMITTED AT THE DEFENDANT'SSENTENCING HEARING DID NOT RENDER THATPROCEEDING FUNDAMENTALLY UNFAIR 267

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VIII. THE DEFENDANT'S ATIACK ON THE RELEVANCY OFCERTAIN SPECIFIED TESTIMONY REGARDING PRISONCONDITIONS IS UNPRESERVED. IN ANY EVENT, THEEVIDENCE WAS RELEVANT TO THE STATE'S FUTUREDANGEROUSNESS AGGRAVATOR AND TO MITIGATORS THEDEFENDANT CHOSE TO SUBMIT 311

IX. THE TRIAL COURT CORRECTLY REFUSED TO INSTRUCTJURORS ON THE MODE OF CARRYING OUT A CAPITALSENTENCE, A MATIER THAT EVEN ON APPEAL THEDEFENDANT FAILS TO ARTICUlATE WAS RELEVANT AT THECAPITAL SENTENCING HEARING 331

X. THE TRIAL COURT SUSTAINABLY EXERCISED ITSDISCRETION IN PERMITIING THE STATE TO PRESENTRELIABLE EVIDENCE HIGHLY PROBATIVE OF TEN OF THESTATE'S SUBMITTED NONSTATUTORY AGGRAVATINGCIRCUMSTANCES AS WELL AS THE DEFENSE MENTALHEALTH MITIGATOR 335

XI. THE TRIAL COURT PROPERLY ALLOWED THE STATE TOINTRODUCE BRIEF TESTIMONY OF THE DEFENDANT'SPOSSESSION OF A HANDGUN, EVIDENCE DIRECTLYPROBATIVE OF ONE OF THE STATE'S SUBMITTEDAGGRAVATORS 353

XII. THE DEFENDANT'S ATTACKS ON PORTIONS OF THEPROSECUTOR'S CLOSING ARGUMENT AT SENTENCING AREFOR THE MOST PART UNPRESERVED. IN ANY EVENT, THECHALLENGED SUMMATION REMARKS FELL WELL WITHINTHE BROAD BOUNDS OF ARGUMENT PERMISSIBLE ATSENTENCING 364

XIII. THE CAPITAL SENTENCING STATUTE PROVIDESCONSTITUTIONALLY ADEQUATE DUE PROCESS BYASSIGNING THE LOWEST BURDEN OF PROOF TOMITIGATORS, BY ASSIGNING THE HIGHEST BURDEN OFPROOF TO AGGRAVATORS, AND BY REQUIRING THATAGGRAVATORS OUlWEIGH MITIGATORS BEFORE ASENTENCE OF DEATH MAY BE IMPOSED 385

A. RSA 630:5, III Assigns The Lowest Burden Of Proof ToMitigators And Contains Other Safeguards To EnsureThat the Jury Properly Considers Mitigating Evidence 386

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B. RSA 630:5, IV Satisfies Due Process By Requiring ThatAggravating Factors Be Proved Unanimously And BeyondA Reasonable Doubt, By Requiring That They OutweighAny Mitigating Factors, And By Requiring That TheDeath Penalty Be Imposed Only By A Unanimous Jury... .402

C. The Defendant's Federal Due Process Claim Is NotPreserved, And, Even If It Was, It Would Be Rejected ByFederal Courts 415

XIV. RSA 630:5, WHICH EXPRESSLY SETS FORTH EVIDENTIARYSTANDARDS APPLICABLE AT THE CAPITAL SENTENCINGHEARING THAT ENSURE THAT EVIDENCE PRESENTED ISRELEVANT AND RELIABLE, IS NOT UNCONSTITUTIONAL ONITS FACE FOR NOT INCORPORATING THE NEW HAMPSHIRERULES OF EVIDENCE 418

XV. NEW HAMPSHIRE'S DEATH PENALlY STATUTE DOES NOTCONSTITUTE CRUEL OR UNUSUAL PUNISHMENT, NOR DOESIT CONSTITUTE A GROSSLY DISPROPORTIONATE PENALlY,EITHER ON ITS FACE OR AS APPLIED TO THIS DEFENDANT. .432

A. New Hampshire's Death Penalty Statute Is Not FaciallyUnconstitutional 432

B. The Death Penalty Is Not Unconstitutional As Applied ToThis Defendant 456

XVI. THE DEFENDANT HAS SHOWN NO EQUAL PROTECTIONVIOLATION WITH RESPECT TO THE ISSUE OF RACE INCAPITAL P~TNISHME~ CASES 468

A. The Evidence Adduced By The Defendant Fails To ShowThat Racial Discrimination Affects Jury Decision-MakingIn Capital Cases 468

B. The Defendant Has Demonstrated No Change In TheSocial Science Research Sufficient To QuestionMcCleskey 480

C. This Court's Equal Protection Analysis Under The NewHampshire Constitution Is the Same As Under TheFederal Constitution 489

XVII. "DEATH QUALIFICATION" OF A CAPITAL JURY BEFORE THEGUILT PHASE IS A WELL-ACCEPTED AND NECESSARYPROCEDURE TO ENSURE A FAIR TRIAL FOR THEDEFENDANT AND THE STATE 494

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A. The Evidence Proffered By the Defendant Does NotSupport His Claim That "Death Qualification" Produces AConviction-Prone Jury 495

B. "Death Qualification" Does Not Violate A CapitalDefendant's Constitutional Right To An Impartial Jury... .499

C. The Defendant's Part I, Article 15 Rights Were NotViolated By The "Death Qualification" Of His Jury 516

XVIII. THE TRIAL COURT CORRECTLY DENIED THE DEFENDANT'SMOTION FOR POST-VERDICT DISCOVERY BECAUSE HEFAILED TO DEMONSTRATE HOW THE EVIDENCE THAT HESOUGHT WAS FAVORABLE OR MATERIAL 520

XIX. DESIGNATING NON-STATUTORY AGGRAVATING FACTORS ISAN EXECUTIVE, NOT A LEGISLATIVE, FUNCTION; SUCHFACTORS NEED NOT BE ALLEGED IN AN INDICTMENT ASTHEY ARE NOT ELEMENTS OF THE OFFENSE, NOR DO THEYSUBJECT THE DEFENDANT TO A GREATER PENALTY; ANDTHE NON-STATUTORY FACTORS IN THIS CASE WERE NOTDUPLICATIVE OF EACH OTHER. 536

A. The Defendant Cannot Establish Any ConstitutionalViolations With Respect To The Non-StatutoryAggravating Factors 536

B. RSA 630:5, I(b) Does Not Violate The Separation OfPowers Clause OfThe New Hampshire Constitution 537

C. Non-Statutory Aggravating Factors Are Not Elements OfThe Crime Of Capital Murder, Nor Do They Increase ThePenalty A Capital Defendant Faces 546

D. The Non-Statutory Aggravating Factors In this Case WereNot Duplicative 551

XX. THE 1WO STATUTORY AGGRAVATING FACTORS RELATINGTO THE DEFENDANTS MENS REA PROPERLY PERFORMEDTHE CONSTITUTIONALLY REQUIRED NARROWINGFUNCTION, AND THE TRIAL COURT CORRECTLY REJECTEDTHE DEFENDANTS PROPOSED JURY INSTRUCTIONS ONTHESE FACTORS BECAUSE HIS PROPOSED INSTRUCTIONSCHANGED THE PLAIN MEANING OF THE STATUTE AND DIDNOT COMPORT WITH RELEVANT CASE LAW 559

A. The Mens Rea Statutory Aggravators Narrow TheCategory Of Murderers Who May Be Subjected To ADeath Penalty, Both On Their Face And As Applied ToThis Defendant 561

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B. The Trial Court's Instructions On The Two Mens ReaAggravators Accurately Conveyed The ApplicableStatutory Definitions, And The Trial Court ProperlyRefused To Instruct In The Language Requested By TheDefendant 568

XXI. TIlE STATE PROVED BEYOND A REASONABLE DOUBT ITSALLEGED AGGRAVATING FACTORS 573

XXII. TIlE DEFENDANT'S SENTENCE WAS NOT IMPOSED UNDERTIlE INFLUENCE OF PASSION, PREJUDICE, OR ANY OlliERARBITRARY FACTOR IN VIOLATION OF RSA 630:5, XI(a) 585

A. Background 586

B. Statutory Interpretation Of RSA 630:5, XI(a) 591

C. The Defendant's Sentence Was Not Imposed Under TheInfluence of Passion, Prejudice, Or Any Other ArbitraryFactor 598

CONCLUSION 615

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TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman, 550 u.s. 233 (2007) .406, 407

Adams v. Texas, 448 U.S. 28 (1980) 188, 500

Addington v. Texas, 441 U.S. 418 (1979) .410

Aesoph v. State, 721 P.2d 379 (Nev. 1986) 510

Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005) 552

Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991) 192

Almendarez-Torres v. United States, 523 U.S. 224 (1998) 392

Anderson v. Motorsport Holdings, LLC, 155 N.H. 491 (2007) .492

Anderson v. State, 685 S.E.2d 716 (Ga. 2009) 246

Andrews v. Commonwealth, 699 S.E.2d 237 (S.C. 2007) 324

Andrews v. Schulsen, 802 F.2d 1256 (10th Cir. 1986),cert. denied, 485 U.S. 919 (1988) .404, 416

Anglin v. Kleeman, 140 N.H. 257 (1995) 593

Appeal ofCampaignfor Ratepayers Rights, 133 N.H. 480 (1990) 506

Appeal of School Administrative Unit #44,162 N.H. 79 (2011) 182

Appeal of st. Louis, 162 N.H. 762 (2011) 595

Apprendi v. New Jersey, 530 U.S. 466 (2000) 546, 576

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Arave v. Creech, 507 U.S. 463 (1993) .460, 560

Arizona v. Rumsey, 467 U.S. 203, 211 (1984) 576

Atkins v. Virginia, 536 U.S. 304 (2002) 390, 440, 447

Babiarz v. Town of Grafton, 155 N.H. 757 (2007) 150

Bacon v. Town ofEnfield, 150 N.H. 468 (2004) 468, 491, 492

Baines v. N.H. Senate President, 152 N.H. 124 (2005) 419, 432, 434

Ball v. State, 699 A.2d 1170 (Md. 1997) 284

Bangs v. State, 998 S.W.2d 738 (Ark. 1999) 184

Banks v. State, 43 P.3d 390 (Okla. Crim. App. 2002) 345

Barclay v. F1orida, 463 U.S. 939 (1983) 558

Batson v. Kentucky, 476 U.S. 79 (1986) .483

Bean v. Red Oak Prop. Mgmt., Inc., 151 N.H. 248 (2004) 174, 224

Belcher v. State, 961 So. 2d 239 (Fla. 2007) 289

Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996) 133

Bennett v. Lembo, 145 N.H. 276 (2000) 593

Beny v. State, 480 S.E.2d 32 (Ga. 1997). 162

Blake v. State, 121 P.2d 567 (Nev. 2005) 185,371,613

Blount v. State, 511 A.2d 1030 (Del. 1986) 510

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Blystone v. Pennsylvania. 494 U.S. 299 (1990) 395

Boltz v. State, 806 P.2d 1117 (Okla. Crim. App.),cert. denied, 502 U.S. 846 (1991) 510

Boycev. Concord General Mutuallns. Co., 121 N.H. 774 (1981) .434

Brady v. Maryland, 373 U.S. 83 (1962) 526

Brannan v. State, 561 S.E.2d 414 (Ga.),cert. denied, 537 U.S. 1021 (2002) 510, 601, 602

Breard v. Commonwealth, 445 S.E.2d 670 (Va. 1994) 597

Brecht v. Abrahamson, 507 U.S. 619 (1993) pet. cert.filed,No. 08-70048 (U.S. Dec. 27, 2011) 582

Bronshtein v. Hom, 404 F.3d 700 (3d Cir. 2005) 595

Brown v. Sanders, 546 U.S. 212 (2006) 582, 584

Buchanan v. Kentucky, 483 U.S. 402 (1987) 503

Bullington v. Missouri, 451 U.S. 430 (1981) 575

Burgess v. State, 827 So. 2d 134 (Ala. Crim. App. 1998) 376

Busby v. Dretke, 359 F.3d 708 (5th Cir. 2004) 117

Bussiere v. Cunningham, 132 N.H. 747 (1990) 542

Cage v. Louisiana. 498 U.S. 39 (1990) 236, 237

California v. Ramos, 463 U.S. 992 (1983) .405, 417

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Canales v. State, 98 S.W.3d 690 (Tex. Crim. App.),cert. denied, 540 U.S. 1051 (2003) 510

Cannon V. State, 961 P.2d 838 (Okla. Crim. App. 1998) 299

Cargle V. State. 909 P.2d 806 (Okla. Crim. App. 1995) 30 1

Casey V. Moore, 386 F.3d 896 (9th Cir. 2004),cert. denied. 545 U.S. 1146 (2005) 135

Chanaki V. Walker. 114 N.H. 660 (1974) 388.407

Chandler V. Crosby. 454 F. Supp. 2d 1137 (M.D. Fla. 2006) 145

Clemons V. Mississipp~ 494 U.S. 738 (1990) 580, 581. 582

Clermont V. State. 704 A.2d 880 (Md. 1998) 230

Commonwealth V. Anderson. 650 A.2d 20 (Pa. 1994) 566

Commonwealth V. Bronshtein. 691 A.2d 907 (Pa.),cert. denied. 522 U.S. 936 (1997) .404

Commonwealth V. Carson. 913 A.2d 220 (Pa. 2006) 376

Commonwealth V. Colon-Cruz. 470 N.E.2d 116 (Mass. 1984) .447

Commonwealth v. Cor. 998 A.2d 606 (Pa. 2010) 344

Commonwealth V. Curry, 330 N.E.2d 819 (Mass. 1975) 510

Commonwealth V. Fisher. 681 A.2d 130 (Pa. 1996) 270

Commonwealth V. Innis, No. 09-P-1856.2010 WL 4608676 (Mass. App. Ct. Nov. 16.2010) 246

Commonwealth v. Jermyn. 533 A.2d 74 (Pa. 1987) 510

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Commonwealth v. McAlister. 313 N.E.2d 113 (Mass. 1974) 509

Commonwealth v. Mitchell. 902 A.2d 430 (Pa. 2006) 257

Commonwealth v. Morales. 800 N.E.2d 683 (Mass. 2003) 132. 133

Commonwealth v. Prendergast. 433 N.E.2d 438 (Mass. 1982) 510

Commonwealth v. TOTO. 480 N.E.2d 19 (Mass. 1985) 214

Commonwealth v. Wholaver. 989 A.2d 883 (Pa. 2010) 366.606

Community ResourcesJOT Justice, Inc. v. City ojManchester,154 N.H. 748 (2007) 490

Connor v. State. 303 S.E.2d 266 (Ga. 1983) 592

Conover v. State, 933 P.2d 904 (Okla. Crtm. App. 1997) 300. 301

Cooks v. Ward. 165 F.3d 1283, 1289 OOth Cir. 1998),cert. denied. 528 U.S. 834 (999) 552

Dailey v. State, 828 So. 2d 340 (Ala. 2001 184

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (993) .484

Davis v. Kemp. 829 F.2d 1522 OIth Cir. 1987),cert. denied. 485 U.S. 929 (988) 371.613

District Attomey v. Watson. 411 N.E.2d 1274 (Mass. 1980) ........ .438. 439

Dodd v. State. 100 P.3d 1017 (Okla. Crtm. App. 2004) 299.301

Donnelly v. DeChristojoTO. 416 U.S. 637 (1974) 374

Dumas v. State. 803 N.E.2d 1113 (Ind. 2004) .421

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Dunbar v. United States. 156 U.S. 185 (1895) 235. 236

Duquette v. Warden. 154 N.H. 737 (2007) passim

Dye v. State, 717 N.E.2d 5 (Ind. 1999) 184

Edmund v. Florida, 458 U.S. 782 (1982) .461

Elledge v. State, 346 So. 2d 9981 (Fla. 1977) 344

Emond v. N. H. Dept. ofLabor. 146 N.H. 230 (2001) .491

Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006) 151

Estes v. Texas. 381 U.S. 532 (1965) 114, 118. 119. 120. 121

Evans v. State, 914 A.2d 25 (Md. 2006),cert. denied. 552 U.S. 835 (2007) .475.487

Ex Parte Waldrop. 859 So. 2d 1181 (Ala. 2002),cert. denied. 540 U.S. 968 (2003) .404

Fields v. Gibson. 277 F.3d 1203 (10th Cir.),cert. denied. 537 U.S. 1023 (2002) 556

Flamer v. State. 490 A.2d 104 (Del. 1983) 590

Fleming v. State, 458 S.E.2d 638 (Ga. 1995) 366, 367, 371

Ford v. Strickland, 696 F.2d 804 (llth Cir.),cert. denied. 464 U.S. 865 (1983) .403. 416

Furman v. Georgia. 408 U.S. 238 (1972) passim

Gamble v. United States. 901 A.2d 159 (D.C. 2006) 214

Gardner v. State. 306 S.W.3d 274 (Tex. Crim. App. 2009) 173. 192

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Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995) 245

Godfrey v. Georgia, 446 U.S. 420 (1980) 561, 562

Goins v. Angelone, 52 F. Supp. 2d 638 (E.D. Va. 1999),cert. denied, 531 U.S. 1046 (2000) 151

Goss v. Nelson, 439 F.3d 621 (lOth Cir. 2006) 115, 116

Gray v. Lucas, 685 F.2d 139 (5th Cir. 1982),cert. denied, 461 U.S. 910 (1983) .404, 416

Green v. Georgia, 442 U.S. 95 (1979) 262

Green v. Maynard, 564 S.E.2d 83 (S.C. 2002) 184, 185

Green v. State, 558 P.2d 110 (Kan. 1976) 510

Green v. zant, 738 F.2d 1529 (11th Cir. 1984) 576

Greene v. State, 146 S.W.2d 871 (Ark. 2004) 371, 613

Gregg v. Georgia, 428 U.S. 153 (1976) passim

Guillou v. State, Department ofMotor Vehicles, 127 N.H. 579 (1986) ....545

Hale v. Gibson, 227 F.3d 1298 (lOth Cir. 2000) 134

Hammer, 25 F. Supp. 2d 518 (M.D. Pa. 1998),appeal dismissed, 226 F.3d 229 (3d Cir. 2000) .416, 417

Hampton & Co. v. United States, 276 U.S. 394 (1928) 541

Harlow v. State, 70 P.3d 179 (Wyo. 2003) 308, 362

Harrington v. Richter, 131 S. Ct. 770 (2011) 175

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Harris v. State. 2 So. 3d 880 (Ala. Crim. App. 2007) 246

Hayes v. Missouri. 120 U.S. 68 (1887) 504

Hayward v. State. 24 So.3d 17 (Fla. 2009) 307

Hitchcock v. Dugger. 481 U.S. 393 (1987) 529

Holland v. United States. 348 U.S. 121 (1954) 236.245

Hopkinson v. State. 632 P.2d 79 (Wyo. 1981).cert. denied. 455 U.S. 922 (1982) 511

Hopt v. Utah, 120 U.S. 430 (1887) 236

Humphries v. State. 570 S.E.2d 160 (S.C. 2002) 307

In re Below. 151 N.H. 135 (2004) 434

In re Certain Scholarship Funds. 133 N.H. 227 (1990) .489

In re Dumaine. 135 N.H. 103 (1991) .491

In re Eduardo L.. 136 N.H. 678 (1993) 396.422.430

In re Noah W.. 148 N.H. 632 (2002) .428. 430

In re Sandra H. 150 N.H. 634 (2004) .490

In re State (State v. Fischer). 152 N.H. 205 (2005) .410

In re Winship. 397 U.S. 358 (1970) 228. 229

Iqbal v. State. 805 N.E.2d 401 (Ind. Ct. App. 2004) 212

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Irwin v. Dowd. 366 U.S. 717 (1961).cert. denied. 510 U.S. 917 (1993) .483. 506

Ivey v. Catoe, 36 Fed. Appx. 718 (4th Cir. 2002) 329

Jackson v. Virginia, 443 U.S. 307 (1979) 229. 560

Jacobs v. Dir., N.H. Div. Motor Vehicles. 149 N.H. 502 (2003) 114

Jarrett v. State. 986 S.W.2d 101 (Ark. 1999) 213

Jennings v. McDonough, 490 F.3d 1230 (llth Cir. 2007).cert. denied. 552 U.S. 1298 (2008) 582

Johnson v. State. 416 So. 2d 383 (Miss. 1982) 220

Johnson v. State. 562 P.2d 1294 (Wyo. 1977) 214.215

Johnson v. State. 749 N.E.2d 1103 (Ind. 2001) 146

Jones v. State. 946 So. 2d 903 (Ala. Crim. App. 2006) .446. 447

Jones v. United States. 527 U.S. 373 (1999) 537.551.553

Kabsch v. State. 866 N.E.2d 726 (Ind. 2007),cert. denied. 553 U.S. 1067 (2008) .404

Kansas v. Marsh. 548 U.S. 163 (2006) 406. 414. 415. 417

Keenan v. Fearon. 130 N.H. 494 (1988) .416

Kennedy v. Wainwright. 483 So. 2d 424 (Fla.),cert. denied. 479 U.S. 89 (1986) 510

Kent v. United States. 383 U.S. 541 (1966) 393

Klahn v. State. 96 P.3d 472 (Wyo. 2004) 185

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-xvi-

Kopsho v. State, 959 So. 2d 168 (Fla. 2007) 184

Kormody v. State, 845 So. 2d 41 (Fla. 2003) 320

Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989) 207, 219

Lewis v. Jeffers, 497 U.S. 764 (1990) 444, 460, 560

Lockett v. Ohio, 438 U.S. 586 (1978) passim

Lockett v. State, 53 P.3d 418 (Okla. Crim. App. Ct. 2002) 300

Lockhart v. McCree, 476 U.S. 162 (1986) passim

Lowenfield v. Phelps, 484 U.S. 231 (1988) 562, 596

Lucas v. State, 555 S.E.2d 440 (Ga. 2001) 324

Malone v. State, 168 P.3d 185 (Okla. Crim. App. 2007) 557

Manley v. State, 709 A.2d 643 (Del. 1998) 184

Matthews v. Eldridge, 424 U.S. 319 (1976) 393,395, 516

Matthews v. Jean's Pastry Shop, Inc., 113 N.H. 546 (1973) 171

McCleskey v. Kemp, 481 U.S. 279 (1987) passim

McKoy v. North Carolina, 494 U.S. 433 (1990) 390

Mettetal v. State, 602 So. 2d 864 (Miss. 1992) 185

Miles v. United States, 103 U.S. 304 (1880) 236

Minch v. State, 934 P.2d 764 (Alaska Ct. App. 1997) 184

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-xvii-

Morganv. illinois, 504 U.S. 719 (1992) 491, 503, 504

Mu'Min v. Virginia, 500 U.S. 415 (1991) 113. 117

Murphy v. Florida, 421 U.S. 794 (1975) 114, 115, 119, 120

Murphy v. Sirmons, 497 F. Supp. 2d 1257 (E.D. Okla. 2007) 291

Murray v. New Hampshire Div. ofState Police, 154 N.H. 579 (2006) .....587

Myers v. State, 17 P.3d 1021 (Okla. Crim. App. 2000) 185, 192

Nance v. State, 623 S.E.2d 470 (Ga. 2005) 598

Nelson v. Wyman, 99 N.H. 33 (1954) .435

New Hampshire Dept. ofEnvtl. Services v. Marino,155 N.H. 709 (2007) 542

Newman v. United States, 705 A.2d 246 (D.C. 1997) 246

Nicolaou v. Vermont Mut. Ins. Co., 155 N.H. 724 (2007) 150

O'Brien v. Curran, 106 N.H. 252 (1965) 505

Old Chiefv. United States, 519 U.S. 172 (1997) 205,221,223,342

Olsen v. State, 67 P.3d 536 (Wyo. 2003) 270, 594

Opinion of the Justices (Prior Sexual Assault Evidence),141 N.H. 562 (1997) 420, 425

Oregon v. Guzek, 546 U.S. 517 (2006) 256, 257

Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003),cert. denied, 540 U.S. 1150 (2004) 557

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-xviii-

Patterson v. Pool. 02 Civ. 5389. 2004 WL 1874967(S.D.N.Y. Aug. 18. 2004) 245

Patton v. Yount. 467 U.S. 1025 (1984) passim

Payne v. Tennessee. 501 U.S. 808 (1991) passim

Penry v. Lynaugh, 492 U.S. 302 (1989) 390. 400

People v. Alvarado-Juarez. 252 P.3d 1135 (Colo. Ct. App. 2010) 230

People v. Ballard. 794 N.E.2d 788 (Ill. 2002) 343

People v. Banks. 934 N.E.2d 435 (Ill. 2010) 325

People v. Barnett, 954 P.2d 384 (Cal. 1998) 571

People v. Bean. 560 N.E.2d 258 (Ill. 1990).cert. denied. 499 U.S. 932 (1991) .404

People v. Bell, 702 N.W.2d 128 (Mich. 2005) 184

People v. Biegenwald. 524 A.2d 130 (N.J. 1987) .407

People v. Booker. 245 P.3d 366 (Cal. 2011) 304

People v. Brady, 236 P.3d 312 (Cal. 2010) 283. 299

People v. Bramit, 210 P.3d 1171 (Cal. 2009) 304

People v. Bullock. 485 N.W.2d 866 (Mich. 1992) .438

People v. Carmony, 26 Cal. Rptr. 3d 365 (Ct. App. 2005) .437

People v. DePriest. 163 P.3d 896 (Cal. 2007) 162

People v. Drake, 748 P.2d 1237 (Colo. 1988) 510

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-xix-

People v. Dunlap. 975 P.2d 723 (Colo. 1999) 343

People v. Emerson, 727 N.E.2d 302 (Ill.).cert. denied. 531 U.S. 930 (2000) 510

People v. Ervine. 220 P.3d 820 (Cal. 2009) 376

People v. Garcia, 258 P.3d 751 (Cal. 2011) 283

People v. Gardenhire. 903 P.2d 1165 (Colo. Ct. App. 1995) 162

People v. Gonzalez, 800 P.2d 1159 (Cal. 1990) 213

People v. Harris. 596 N.E.2d 1363 (Ill. App. Ct. 1992) 184

People v. Harris. 779 N.E.2d 705 (N.Y. 2002) 510

People v. Jackson. 783 P.2d 211 (Cal. 1989) 376

People v. Jackson. 920 P.2d 1254 (Cal. 1996),cert. denied. 520 U.S. 1216 (1997) 510

People v. Kelly. 171 P.3d 548 (Cal. 2007) 283.304

People v. Kuntu. 752 N.E.2d 380 (Ill. 2001) 382.383. 605

People v. Macrander. 828 P.2d 234 (Colo. 1992) 181. 182

People v. Mason. 802 P.2d 950 (Cal.• 1991) 320.325

People v. Melton. 750 P.2d 741 (Cal. 1988) 556. 557

People v. Moon. 117 P.3d 591 (Cal. 2005),cert. denied. 126 S. Ct. 1146 (2006) 446. 447

People v. Nelson. 246 P.3d 301 (Cal. 2011). 304

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-xx-

People v. Prince, 156 P.3d 1015 (Cal. 2007) 605.606

People v. Stanley. 140 P.3d 736 (Cal. 2006).cert. denied. 549 U.S. 1269 (2007) .404

People v. Tenneson. 788 P.2d 786 (Colo. 1990) .407

People v. Terrel~ 708 N.E.2d 309 (Ill. 1998). 261

People v. Virgil. 253 P.3d 553 (Cal. 2011) 289

People v. Williams. 737 N.E.2d 230 (Ill. 2000) 576

People v. Yeoman. 72 P.3d 1166 (Cal. 2003) 184

People v. Zamudio. 181 P.3d 105 (Cal. 2008) 283, 304

Perry v. New Hampshire. 132 S. Ct. 716 (2012) 260

Petition ofBagley. 128 N.H. 275 (1986) 392

Petition ofPreisendoTjer. 143 N.H. 50 (1998) 386,387.389.400

Petition of the State ofN.H. (State v. Johanson).156 N.H. 148 (2007) 106

Pointer v. United States. 151 U.S. 396 (1894) 152. 153

Poland v. Arizona, 476 U.S. 147 (1986) 576

Porter v. Estelle, 709 F.2d 944 (5th Cir. 1983) 219

Porter v. State. 623 S.W.2d 374 (Tex. Crim. App. 1981) 220

Prieto v. Commonwealth, 721 S.E.2d 484 (Va. 2012) 289

Proffitt v. Florida. 428 U.S. 242 (1976) .406

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-xxi-

Pruett v. Commonwealth, 351 S.E.2d 1 (Va. 1986),cert. denied, 482 U.S. 931 (1987) 510

Pruett v. Noms, 153 F.3d 579 (8th Cir. 1998) 117

Puckett v. United States, 556 U.S. 129 (2009) 596

Pulley v. Hams. 465 U.S. 37 (1984) 458. 590

Rector v. State. 659 S.W.2d 168 (Ark. 1983),cert. denied. 466 U.S. 988 (1984) 510. 518

Reid v. Beard. No. 04-2924. 2009 WL 2876206(E.D. Pa. Sept 2. 2009), aifd. No. 09-3727.2011 WLI097609 (3d Cir. Feb. 7.2011) 245

Rhodes v. Chapman. 452 U.S. 337 (1981) .436

Rideau v. Louisiana, 373 U.S. 723 (1965) passim

Ring v. Arizona, 536 U.S. 584 (2002). 546. 575

Ritchie v. Rogers. 313 F.3d 948 (6th Cir. 2002) 134

Rivera v. illinois. 556 U.S. 148 (2009) 161

Roberts v. Louisiana, 428 U.S. 325 (1976) 588

Roper v. Simmons. 543 U.S. 551 (2005) .441. 447

Ross v. Oklahoma. 487 U.S. 81 (1988) passim

Salazar v. State. 90 S.W.3d 330 (Tex. Crim. App. 2002) 301

Santosky v. Kramer. 455 U.S. 745 (1982) .400

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) 576.579

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-xxii-

Satterwhite v. Texas. 486 U.S. 249 (1988) 265.362

Sears v. Upton. 130 S. Ct. 3259 (2010) 262

Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2008) 181, 182

Shell v. State. 554 So. 2d 887 (Miss. 1989) 374

Shelley v. Kraemer. 334 U.S. 1 (1948) 491

Shelton v. State. 699 S.W.2d 728 (Ark. 1985) 220

Sheppard v. Maxwell. 384 U.S. 333 (1966) passim

Simmons v. Epps. 654 F.3d 526 (5th Cir. 2011) 582

Skilling v. United States. 130 S. Ct. 2896 (2010) passim

Smith Ins., Inc. v. Grievance Committee. 120 N.H. 856 (1980) 541

Solem v. Helm 463 U.S. 277 (1983) .436

Spann v. State. 857 So. 2d 845 (Fla. 2003) 557

Stariford v. Kentucky. 497 U.S. 361 (1989) .447

State v. Addison. 159 N.H. 87 (2009) 585. 591

State v. Addison. 160 N.H. 493 (2010) passim

State v. Addison. 161 N.H. 300 (2010) 353

State v. Allard. 123 N.H. 209 (1983) 239.243

State v. Allen. 687 S.E.2d 21 (S.C. 2009) 369.371.613

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-xxili-

State v. Anaya. 131 N.H. 330 (1988) 181

State v. Anaya. 134 N.H. 346 (1991) 7

State v. Anderson, 306 S.W.3d 529 (Mo. 2010). 256, 257

State v. Anderson, 864 P.2d 1001 (Wash. Ct. App. 1994) 208

State v. Anthony, 776 So. 2d 376 (La. 2000) 304

State v. Aubert, 120 N.H. 634 (1980) 229,230,241.242,244

State v. Avery, 126 N.H. 208 (1985) 204

State v. Ayer, 154 N.H. 500 (2006) 218

State v. Baker, 935 P.2d 503 (Utah 1997) 185

State v. Barlow, 541 N.W.2d 309 (Minn. 1995) 184

State v. Barone, 969 P.2d 1013 (Or. 1998) passim

State v. Bartholomew, 683 P.2d 1079 (Wash. 1984) .426

State v. Basden, 451 S.E.2d 238 (N.C. 1994) 376

State v. Beaty, 762 P.2d 519 (Ariz. 1988),cert. denied. 492 U.S. 938 (1989) .404

State v. Belkner, 117 N.H. 462 (1977) 241, 307

State v. Beltran, 153 N.H. 643 (2006) 209

State v. Benn, 845 P.2d 289 (Wash. 1993) 595

State v. Bergeron, 115 N.H. 70 (1975) 542

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-xxiv-

State v. Bernard, 141 N.H. 230 (1996) .408, 409

State v. Bertrand, 123 N.H. 719 (1983) 394

State v. Bible, 858 P.2d 1152 (Ariz. 1993) 133

State v. Black, 116 N.H. 836 (1976) 241

State v. Blackmer, 149 N.H. 47 (2003) 173, 255, 281, 420

State v. Blackstock, 147 N.H. 791 (2002) 229

State v. Bland, 958 S.W.2d 651 (Tenn. 1997) 590

State v. Blank, 955 So. 2d 90 (La. 2007) 191, 220

State v. Bobo, 727 S.W.2d 945 (Tenn.),cert. denied, 484 U.S. 872 (1987) 510

State v. Boetti, 142 N.H. 255 (1997) 376

State v. Bonacorsi, 139 N.H. 28 (1994) 243

State v. Bone, 131 N.H. 408 (1989) 151

State v. Bortner, 150 N.H. 404 (2004) 333

State v. Bradbeny, 129 N.H. 68 (1986) .489

State v. Brewster, 147 N.H. 645 (2002) 221

State v. Brown, 155 N.H. 590 (2007) 149, 150, 586

State v. Brown, 940 P.2d 546 (Wash. 1997) 511, 512

State v. Bujnowski, 130 N.H. 1 (1987) 365

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-xxv-

State v. Burchett, 399 N.W.2d 258 (Neb. 1986) 510

State v. Burroughs, 113 N.H. 21 (1973) 442, 443, 465

State v. Cantara, 123 N.H. 737 (1983) 204

State v. Carter, 888 P.2d 629 (Utah 1995) 281, 308

State v. Cegelis, 138 N.H. 249 (1994) 561

State v. Cere, 125 N.H. 421 (1984) 180

State v. Chick, 141 N.H. 503 (1996) .416

State v. Chris icos , 158 N.H. 82 (2008) 492

State v. Cohen, 604 A.2d 846 (Del. 1992) .404

State v. Comeaux, 514 So. 2d 84 (La. 1987),cert. denied, 522 U.S. 1150 (1998) 510

State v. Comery, 78 N.H. 6 (1915) passim

State v. Comtois, 122 N.H. 1173 (1982) 172

State v. Cook, 125 N.H. 452 (1984) 393

State v. Cook, 148 N.H. 735 (2002) 593

Statev. Cooke, 910A.2d 279 (Del. Super. Ct. 2006) 104

State v. Costello, 159 N.H. 113 (2009) 204

State v. Cote, 143 N.H. 368 (1999) : 375

State v. Croft, 142 N.H. 76 (1997) 254,317,326,358

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-xxvi-

State v. Cross, 128 N.H. 732 (1986) 193, 232, 507, 516

State v. Cummings, 648 S.E.2d 788 (N.C. 2007) 192

State v. Cyrs, 129 N.H. 497 (1987) 162

State v. Darcy, 121 N.H. 220 (1981) 442, 443,465

State v. Davis, 79 P.3d 64 (Artz. 2003) .437

State v. Dayutis, 127 N.H. 101 (1985) .436, 459

State v. Dearborn, 59 N.H. 348 (1879) 205

State v. Deflorio, 128 N.H. 309 (1986) 436,440,459,465

State v. Demond-Surace, 162 N.H. 17 (201l) 365

State v. Devaney, 139 N.H. 473 (1995) 327

State v. DeWitt, 143 N.H. 24 (1998) 526

State v. DiFrisco, 645 A.2d 734 (N.J. 1994) 185

State v. Dinapoli. 149 N.H. 514 (2003) 365

State v. Dodds, 159 N.H. 239 (2009) passim

State v. Donovan, 120 N.H. 603 (1980) 239, 244

State v. Douthart, 146 N.H. 445 (2001) 204

State v. Dowdle, 148 N.H. 345 (2002) 593

State v. Dukette, 127 N.H. 540 (1986) 525

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-xxvii-

State v. Dumont, 122 N.H. 866 (1982) 371

State v. Dwyer, 985 A.2d 469 (Me. 2009) 132

State v. Elbert, 125 N.H. 1 (1984) 436,454,455,459

State v. Enderson, 148 N.H. 252 (2002) 435, 459

State v. Entzi, 615 N.W.2d 145 (N.D. 2000) 185

State v. Ericson, 159 N.H. 379 (2009) 219, 603

State v. Etienne, 146 N.H. 115 (2011) .408

State v. Evans, 127 N.H. 501 (1985) .436, 454

State v. Farrow, 118 N.H. 296 (1978) passim

State v. Fernandez, 152 N.H. 233 (2005) 208, 210

State v. Fire, 34 P.3d 1218 (Wash. 2001) 185

State v. Fletcher, 555 S.E.2d 534 (N.C. 2001) 369

State v. Forte, 629 S.E.2d 137 (N.C. 2006) 329, 610

State v. Fortier, 146 N.H. 784 (2001) 232

State v. Foster, 80 N.H. 1 (1921) .455

State v. Fraser, 120 N.H. 117 (1980) 464

State v. Fry, 126 P.3d 516 (N.M. 2005),cert denied, 548 U.S. 909 (2006) 510

State v. Furgal, 161 N.H. 206 (2010) 385, 419

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-xxviii-

State v. Garcell, 678 S.E.2d 618 (N.C. 2009) 376

State v. Giles, 140 N.H. 714 (1996) 113, 172

State v. Gill, 167 S.W.3d 184 (Mo. 2005) 282, 286, 601

State v. Glenn, 160 N.H. 480 (2010) 359

State v. Glidden, 123 N.H. 126 (1983) 205

State v. Glodgett, 144 N.H. 687 (2000) 221

State v. Gollehon, 864 P.2d 249 (Mont. 1993),cert. denied, 513 U.S. 827 (1994) 510

State v. Golphin, 533 S.E.2d 168 (N.C. 2000) 370

State v. Goodale, 144 N.H. 224 (1999) 260, 608

State v. Goupil, 154 N.H. 208 (2006) 171

State v. Gray, 887 S.W.2d 369 (Mo. 1994) 304

State v. GTitfin, 741 A.2d 913 (Conn. 1999) 510, 512, 513

State v. Group, 781 N.E.2d 980 (Ohio 2002) 189, 190, 191, 196

State v. Guevara. 506 S.E.2d 711 (N.C. 1998) 366, 370

State v. Guyette, 139 N.H. 526 (1995) 339

State v. Guzek, 906 P.2d 272 (Or. 1995) 269

State v. Hacheney, 158 P.3d 1152 (Wash. 2007) 585

State v. Haley, 141 N.H. 541 (1997) 216

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-xxix-

State v. Hall. 148 N.H. 394 (2002) .462

State v. Hall. 152 N.H. 374 (2005). 537

State v. Hampton. 843 P.2d 483 (Or. Ct. App. 1992) 207

State v. Hancock. 156 N.H. 301, 305-06 (2007) 203

State v. Hannan. 137 N.H. 612 (1993) 180

State v. Hamum 142 N.H. 195 (1997) 280

State v. Harris, 723 So. 2d 546 (Miss. 1997) 565

State v. Haselden. 577 S.E.2d 594 (N.C. 2003) 307

State v. Hast. 133 N.H. 747 (1990) 388

State v. Hearns. 151 N.H. 226 (2004) 367

State v. Heirtzler. 147 N.H. 344 (2001) .494

State v. Hernandez. 159 N.H. 394 (2009) 228. 537

State v. Hickman. 68 P.3d 418 (Ariz. 2003) 184

State v. Hochstein. 632 N.W.2d 273 (Neb. 2001) 585

State v. Hofland, 151 N.H. 322 (2004) .492

State v. Homer. 153 N.H. 306 (2006) 149. 586

State v. Howe. 145 N.H. 41 (2000) passim

State v. Hughes, 521 S.E.2d 500 (S.C. 1999) .467

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-xxx-

State v. Hughes, 721 P.2d 902 (Wash. 1986) 512

State v. Jalowiec, 744 N.E.2d 163 (Ohio 2001) 321

State v. Jennings, 159 N.H. 1 (2009) 586

State v. Jenot, 158 N.H. 181 (2008) 359

State v. Johns, 736 P.2d 1327 (Idaho 1987) 510

State v. Johnson, 134 N.H. 570 (1991) 499, 453, 585

State v. Johnson, 396 N.W.2d 906 (Minn. Ct. App. 1986) 246

State v. Johnson, 969 P.2d 925 (Mont. 1998),cert. denied, 526 U.S. 1090 (2000) 598

State v. Johnson, No. E2010-00172-CCA-R3-DD,2012 WL 690218 (Tenn. Crim. App. Mar. 5, 2012) 163

State v. Kelley, 160 N.H. 190 (2010) 160

State v. Kepple, 155 N.H. 267 (2007) 593

State v. Kido, 654 P.2d 1351 (Haw. Ct. App. 1982) .437

State v. Kim, 153 N.H. 322 (2006) 218, 219

State v. King, 204 P.3d 585 (Kan. 2009) 184

State v. Kleypas, 40 P.3d 139 (Kan. 2001) 323,324,437

State v. Knese, 985 S.W.2d 759 (Mo. 1999) 283

State v. Knight, 7 A.3d 425 (Conn. App. Ct. 2010) 246

State v. Koehler, 140 N.H. 469 (1995) 216

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-xxxi-

State v. Komahrens, 350 S.E.2d 180 (S.C. 1986),cert. denied, 480 U.S. 940 (1987) 510

State v. Kulikowski, 132 N.H. 281 (1989) 604

State v. L'Hereux, 150 N.H. 822 (2004) 408

State v. Laaman, 114 N.H. 794 (1974) passim

State v. Langdon, 121 N.H. 1065 (1981) 238, 243

State v. Laurie, 139 N.H. 325 (1995) 391, 526

State v. Lavoie, 152 N.H. 542 (2005) 388

State v. Lavoie, 155 N.H. 477 (2007) 388, 395, 398, 410

State v. LeBaron, 148 N.H. 226 (2002) 549

State v. Lemons, 530 S.E.2d 542 (N.C. 2000) 321

State v. Lesnick, 141 N.H. 121 (1996) 216

State v. Letendre, 133 N.H. 555 (1990) 231, 233, 239

State v. Lewis. 372 A.2d 1035 (Me. 1977) 246

State v. Lindell, 629 N.W.2d 223 (Wis. 2001) 182, 183, 184, 185

State v. Lister, 122 N.H. 603 (1982) 128

State v. Little, 121 N.H. 765 (1981) 393, 394, 395

State v. Littlefield, 152 N.H. 331 (2005) passim

State v. Locklear, 505 S.E.2d 277 (N.C. 1998) 261

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-xxxii-

State v. Loftin. 724 A.2d 129 (N.J.),cert. denied, 528 U.S. 897 (1999) .488

State v. Lopez, 156 N.H. 416 (2007) 381.392

State v. Mallett. 732 S.W.2d 527 (Mo. 1987) 220

State v. Manning, 19 P.3d 84 (Kan. 2001) 184

State v. Martin, 278 S.E.2d 214 (N.C. 1981) 596

State v. Martineau. 112 N.H. 278 (1972) .453. 588

State v. Martineau. 116 N.H. 797 (1976) 204. 218

State v. McDowell. 391 N.W.2d 661 (S.D. 1986) 510

State v. McLellan. 146 N.H. 108 (2001) passim

State v. McLellan. 149 N.H. 237 (2003) 548, 549

State v. Melcher, 140 N.H. 8230 (1996) 213

State v. Melvin, 150 N.H. 134 (2003) 392. 546. 549

State v. Menard. 133 N.H. 708 (1990) 112. 113

State v. Mendola, 160 N.H. 550 (2010) 281

State v. Middlebrooks. 840 S.W.2d 317 (Tenn. 1992) 185

State v. Mitchell. 577 N.W.2d 481 (Minn. 1998) .438

State v. Montenegro Cruz. 181 P.3d 196 (Ariz. 2008) 133

State v. Montgomery. 144 N.H. 205 (1999) 221

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-xxxiii-

State v. Moody, 94 P.3d 1119 (Ariz. 2004) 510

State v. Moscone, 161 N.H. 355 (2011) .458

State v. Munoz, 157 N.H. 143 (2008) 316, 326, 358

State v. Murray, 757 A.2d 578 (Conn. 2000) 565

State v. Nelson, 103 N.H. 478 (1961) 116

State v. Neuendorf, 509 N.W.2d 743 (Iowa 1993) 184

State v. Nicholas H., 131 N.H. 569 (1989) .422

State v. Nightingale, 160 N.H. 569 (2010) 144, 214, 525, 534

State v. O'Brien, 132 N.H. 587 {l989) 408

State v. O'Brien, 588 N.W.2d 8 (Wis. 1999) 531

State v. Oakes, 161 N.H. 270 (2010) passim

State v. Ogden, 880 P.2d 845 (N.M. 1994) 585

State v. Palmer, 65 N.H. 216 (1889) 205

State v. Panarello, 157 N.H. 204 (2008) 381

State v. Pandeli, 161 P.3d 557 (Ariz. 2007) 345

State v. Parker, 142 N.H. 319 (1997) 229

State v. Parker, 625 So. 2d 1364 (La. Ct. App. 1993) 215

State v. Pearson, 943 P.2d 1347 (Utah 1997) 207

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-xxxiv-

State v. Pelkey, 145 N.H. 133 (2000) 209

State v. Pelletier, 552 A.2d 805 (Conn. 1989) 184

State v. Pepin, 156 N.H. 269 (2007) 204, 216, 217

State v. Peters, 162 N.H. 30 (2011) 224, 225, 408

State v. Pierce, 152 N.H. 790 (2005) passim

State v. Pike, 49 N. H. 399 (1870) 128

State v. Pliskaner, 128 N.H. 486 (1986) .456, 459

State v. Ploof, 162 N.H. 609 (2011) passim

State v. Polke, 638 S.E.2d 189 (N.C. 2006),cert. denied, 552 U.S. 836 (2007) 463, 464, 467, 598

State v. Preston, 121 N.H. 147 (1981) 593

State v. Preston, 122 N.H. 153 (1982). 231

State v. Prevost, 105 N.H. 90 (1963) 181, 506

State v. Quintana, 621 N.W.2d 121 (Neb. 2001) 185

State v. Ramos, 131 N.H. 276 (1988) 280

State v. Ramos, 808 P.2d 1313 (Idaho 1991) 184

State v. Ramsey, 1 A.3d 796 (N.J. Super. Ct. App. Div. 2010) 565

State v. Reeves, 448 S.E.2d 802 (N.C. 1994) 330

State v. Rheaume, 80 N.H. 319 (1921) 193

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-xxxv-

State v. Riccio, 130 N.H. 376 (1988) 392

State v. Richard, 160 N.H. 780 (2010) 260

State v. Richardson, 138 N.H. 162 (1993) 204

State v. Ross, 646 A.2d 1318 (Conn. 1994) passim

State v. Sawtelle, 66 N.H. 488 (1891) 127, 128, 193, 506

State v. Scognamiglio, 150 N.H. 534 (2004) 365, 599

State v. Sefton, 125 N.H. 533 (1984) 295

State v. Sharon, 136 N.H. 764 (1993) 208

State v. Shepherd, 159 N.H. 163 (2009) 526, 527, 532, 534

State v. Sims, 45 S.W.3d 1 (Tenn. 2001) 262

State v. Sivak, 674 P.2d 396 (Idaho 1983),cert. denied, 468 U.S. 1220 (1984) .404

State v. Skatzes, 819 N.E.2d 215 (Ohio 2004) 510

State v. Skillicom, 944 S.W.2d 877 (Mo.),cert. denied, 522 U.S. 999 (1997) 510

State v. Slade, 116 N.H. 436 (1976) 233

State v. Smagula, 117 N.H. 663 (1977) 393, 545

State v. Smalley, 151 N.H. 193 (2004) 204

State v. Smart, 136 N.H. 639 (1993) passim

State v. Sostre, 802 A.2d 754 (Conn. 2002) 585

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-xxxvi-

State v. Soucy, 139 N.H. 349 (1995) 394

State v. Spencer, 149 N.H. 622 (2001) .481, 494

State v. Stayman, 138 N.H. 397, 401-03 (1994) 593

State v. Steams, 130 N.H. 475 (1988) .455

State v. Stewart, 116 N.H. 585 (1976) 129

State v. Storey, 40 S.W.3d 898 (Mo. 2001) 185

State v. Sullivan, 121 N.H. 301 (1981) 128

State v. Swift, 101 N.H. 340-43 (1958) 542

State v. Thacker, 164 S.W.3d 208 (Tenn. 2005) 257

State v. Thibodeaux, 750 So. 2d 916 (La. 1999) 324

State v. Thomas, 514 S.E.2d 486 (N.C. 1999) 367, 606

State v. Tichnell, 509 A.2d 1179 (Md.),cert. denied, 479 U.S. 995 (1986) 510

State v. Trainor, 130 N.H. 371 (1988) 216

State v. Tufts, 136 N.H. 517 (1992) .410

State v. Valentine, 591 S.E.2d 846 (N.C. 2003) 343

State V. Vandebogart, 136 N.H. 107 (1992) 506, 516

State V. Vassar, 154 N.H. 370 (2006) 388

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-xxxvii-

State v. Veale, 158 N.H. 632,cert. denied, 130 S. Ct. 748 (2009) 391, 392

State v. Velez, 150 N.H. 589 (2004) 362

State v. Verhoef, 627 N.W.2d 437 (S.D. 2001) 185

State v. Wakefield, 921 A.2d 954 (N.J. 2007),cert. denied, 552 U.S. 1146 (2008) .488

State V. Wall, 154 N.H. 237 (2006) 183, 537

State V. Wamala, 158 N.H. 583 (2009) passim

State v. Warren, 5 P.3d 1115 (Or. Ct. App.),rev. denied, 8 P.3d 220 (Or. 2000) 565, 566

State v. Webb, 680 A.2d 147 (Conn. 1996) 590

State V. Weir, 138 N.H. 671 (1994) 188, 507, 516

State V. Wentworth, 118 N.H. 832 (1978) passim

State v. White, 105 N.H. 159 (1963) 171

State V. White, 155 N.H. 119 (2007) 334

State V. White, No. 2010-526, slip op. (N.H. Mar. 9. 2012) 203

State V. Whitfield, 837 S.W.2d 503 (Mo. 1992) 344

State V. Williams, 233 S.E.2d 507 (N.C. 1977) 220

State V. Williams, 301 S.E.2d 335 (N.C. 1983) 598

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-xxxviii-

State v. Williams. 565 S.E.2d 609 (N.C. 2002),cert. denied. 537 U.S. 1125 (2003) 510

State v. Wilson. 48 N.H. 398 (1869) 512

State v. Wong. 138 N.H. 56 (1993) 171. 180

State v. Wood. 150 N.H. 233 (2003) 367. 375. 593

State v. Woods. 23 P.3d 1046 (Wash. 2001) 594

State v. Yates. 152 N.H. 245 (2005) 217.287.375.594

State v. Young. 159 N.H. 332 (2009) 565

State v. Young. 853 P.2d 327 (Utah 1993) 510

State v. Zysk. 123 N.H. 481 (1983) 238

Stringer v. State. 500 So. 2d 928 (Miss. 1986) 510

Taylor v. Louisiana, 419 U.S. 522 (1975) .483

Tennard v. Dretke. 542 U.S. 274 (2004) 390

Thomas v. State. 148 P.2d 727 (Nev. 2006) 320

Thomas v. State. 634 A.2d 1 (Md. 1993) .437

Thompson v. Commonwealth. 147 S.W.3d 22 (Ky. 2004),cert. denied, 545 U.S. 1142 (2005) 510

Thompson v. Kelchner. 46 Fed. Appx. 75 (3d Cir. 2002) 245

Tichnell v. State. 468 A.2d 1 (Md. 1983) 590. 598

Tison v. Arizona. 481 U.S. 137 (1987) passim

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Trop v. Dulles, 356 U.S. 86 (1958) 436, 441

Tucker v. Kemp, 802 F.2d 1293 (11th Cir. 1986) 597

Tuilaepa v. California, 512 U.S. 967 (1994) passim

Turner v. Murray, 476 U.S. 28 (1986) .482, 483

United States v. Allen, 469 F.3d 11 (1st Cir. 2006) 245

United States v. Bagley, 473 U.S. 667 (1985) 526

United States v. Barnette, 211 F.3d 803 (4th Cir. 2000) 299, 597

United States v. Barrett, 496 F.3d 1079 (lOth Cir. 2007),cert. denied. 552 U.S. 1260 (2008) 539

United States v. Basham 561 F.3d 302 (4th Cir. 2009),cert. denied, 130 S. Ct. 3353 (2010) 597

United States v. Bin Laden. 126 F. Supp. 2d 290 (S.D.N.Y. 2001);aifd. In re Terrorist Bombings oj U.S. Embassies in East AJrica,552 F.3d 93 (2d Cir. 2008), cert. denied sub nom.Al-'Owhali v. United States, 129 S. Ct. 2778 (2009) 555, 567

United States v. Blom 242 F.3d 799 (8th Cir. 2001) 115. 116, 134

United States v. Brown. 441 F.3d 1330 (5th Cir. 2006),cert. denied, 549 U.S. 1182 (2007) 547

United States v. Bryant, 471 F.2d 1040 (D.C. Cir. 1972) 220

United States v. Buchanan, 633 F.2d 423 (5th Cir. Unit A 1980) 221

United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000) 282

United States v. Cheever. 423 F. Supp. 2d 1181 (D. Kan. 2006) ..485, 487

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-xl-

United States v. Cooper, 91 F. Supp. 2d 90 (D.D.C. 2000) 539

United States v. Davis, 609 F.3d 663 (5th Cir. 2010) 261,381,605

United States v. Fell, 360 F.3d 135 (2d Cir. 2004) 341, 427

United States v. Fell, 531 F.3d 197 (2d Cir. 2008),cert. denied, 130 S. Ct. 1880 (2010) 547, 553, 555

United States v. Fields, 488 F.3d 313 (5th Cir. 2007) 307

United States v. Fulks, 454 F.3d 410 (4th Cir. 2006) .427

United States v. Gabrion, 648 F.3d 307 (6th Cir. 2011) .415, 416

United States v. Higgs, 353 F.3d 281 (4th Cir. 2003),cert. denied, 543 U.S. 1004 (2004) 215, 539,547

United States v. Hillsberg, 812 F.2d 328 (7th Cir. 1987) 212

United States v. Johnson, 495 F.3d 951 (8th Cir. 2007) ....... 282,292, 601

United States v. Jones, 132 F.3d 232 (5th Cir. 1998) 539, 540, 596

United States v. LeCroy, 441 F.3d 914 (lIth Cir. 2006) 547

United States v. Lee, 374 F.3d 637 (8th Cir. 2004) 341, 427

United States v. Martinez-Salazar, 528 U.S. 304 (2000) passim

United States v. Mayhew, 380 F. Supp. 2d 936 (S.D. Ohio 2005) 540

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996),cert. denied, 520 U.S. 1213 (1997) 540, 551, 552, 571

United States v. Nelson, 347 F.3d 701 (8th Cir. 2003) 292, 601

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-xli-

United States v. Paul, 217 F.3d 989 (8th Cir. 2000) 293, 539, 597

United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y. 1992) 544

United States v. Puff, 211 F.2d 171 (2d Cir. 1954) 207, 220

United States v. Purkey, 428 F.3d 738 (8th Cir. 2005),cert denied, 549 U.S. 975 (2006) passim

United States v. Robinson, 367 F.3d 278 (5th Cir.),cert. denied, 543 U.S. 1005 (2004) 553

United States v. Rodriguez-Estrada, 877 F.2d 153 (1st Cir. 1989) 217

United States v. Salerno, 481 U.S. 739 (1987) 419

United States v. Sampson, 275 F. Supp. 2d 49 (D. Mass. 2003) ... 539, 545

United States v. Sampson, 335 F. Supp. 2d 166 (D. Mass. 2004) 296

United States v. Sampson, 486 F.3d 13 (1st Cir. 2007),cert. denied, 553 U.S. 1035 (2008) passim

United States v. Spinkellink, 578 F.2d 582 (5th Cir. 1978) 511

United States v. Tipton, 90 F.3d 861 (4th Cir. 1996) 552

United States v. Umana, No. 3:08CR134-RJC,2010 WL 1688441 (W.D.N.C. 2010) 323, 324

United States v. Wilson, 493 F. Supp. 2d 364 (E.D.N.Y. 2006) ..... 283, 555

Utley v. State, 589 N.E.2d 232 (Ind. 1992),cert. denied, 506 U.S. 1058 (1993) 510

Veney v. State, 246 A.2d 568 (Md. 1968) 220

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xlii·- -

Victor v. Nebraska, 511 U.S. 1 (1994) 230,232,233,234,235

Wainwright v. Witt, 469 U.S. 412 (1985) passim

Walker v. Commonwealth, 515 S.E.2d 565 (Va. 1999) 151

Walker v. State, 913 So. 2d 198 (Miss 2005) 374

Walton v. Arizona, 497 U.S. 639 (l990) 390, 393, 395, 406

Warner v. State, 144 P.3d 838 (Okla. Crim. App. 2006),cert. denied, 550 U.S. 942 (2007) .404

Watkins v. Commonwealth, 331 S.E.2d 346 (Va. 1985) 343

Wayte v. United States, 470 U.S. 598 (l985) .482

Weems v. United States, 217 U.S. 349 (1910) .439, 440

Wheeler v. State, 4 So.3d 599 (Fla. 2009) 283

White v. Mitchell, 431 F.3d 517 (6th Cir. 2005) 196

Whittlesey v. State, 665 A.2d 223 (Md. 1995) 304

Williams v. Norris, 612 F.3d 941 (8th Cir. 2010) 308, 362

Williams v. State, 386 N.E.2d 670 (Ind. 1979) 220, 329

Wilson v. Sirmons, 536 F.3d 1064 (lOth Cir. 2008) 300

Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) 191, 196

Winston v. Commonwealth, 604 S.E.2d 21 (Va. 2004) 345, 598

Witherspoon v. illinois, 391 U.S. 510 (1968) 497, 499

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-xliii-

Woodson v. North Carolina, 428 U.S. 280 (1976) 441, 562, 588

Wyman v. Uphaus, 100 N.H. 436,vacated on other grounds, 355 U.S. 16 (1957) .435

Young v. Kemp, 760 F.2d 1097 (11th Cir. 1985) 576

zant v. Redd, 290 S.E.2d 36 (Ga. 1982) 576

zant v. Stephens, 462 U.S. 862 (1983) 400,406,417,544

Statutes

21 U.S.C. § 848(h), (n) (2000) 539

42 Pa. Cons. Stat. § 971l(h)(3)(i) 595

720 Ill. Camp. Stat. 5/9-1 .452

Ala. Code § 13A-5-40(a)(1)-(18) 452

Ariz. Rev. Stat. § 13-703(F) .452

Ark. Code Ann. § 5-10-101 .452

Colo. Rev. Stat. Ann. § 18-3-102 .452

CS 240:7 (1853) 155

CS 240:8 (1853) 155

GL 261:9 (1878) 155

GL 261: 10 (1878) 155

GS 243:8 (1867) 155

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-xliv-

GS 243:9 (1867) 155

IC § 35-5-2-9 422

Ind. Code § 35-50-2-9 452

Laws 1941. 104:1 158. 159

Laws 1974. 34: 1 588

Laws 1974. 34:5 156

Laws 1974, 34:6 156

Laws 1977. 440:2 589

N.Y. Penal Law §125.27 452

Nev. Rev. Stat. § 200.030,200.033,200.035 .452

Ohio Rev. Code Ann. § 2903.01,2929.02,2929.04 .452

Pa. Cons. Stat. Ann. § 1102 .452

PL 368: 11 (1926) 155

PL 368: 12 (1926) 156

PS 254:9 (Supp. 1901-13) 155

PS 254:10 (Supp. 1901-13) 156

RL 428: 11 (1942) 155

RL 428: 12 (1942) 156

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-xlv-

RS 225:5 (1842) 155

RS 225:6 (1842) 155

RSA 135-E: 10 (Supp. 20 11) .424

RSA 169-C:35 (Supp. 2011) 387

RSA21-M:8-k (Supp. 2011) 272, 273, 599

RSA 21-M:8-k, III (Supp. 2011) 273

RSA 500-A: 12, II (2007) 164, 175, 187

RSA 585:4 (1955) 156, 588

RSA 606:3 (1986) 157

RSA 606:3 (2001) passim

RSA 606:3, I (2001) passim

RSA 606:4 (1986) 157

RSA 606:4 (2001) passim

RSA 606:4, I (2001) 147, 150, 153, 517

RSA 625: 11, VI (2007) 568, 569

RSA 625:3 (2007) 149, 586

RSA 626:2, II (2007) 208, 564, 568

RSA 626:2, III (2007) 564

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-xlvi-

RSA 630: 1, I (2007) passim

RSA 630:5 (2007) passim

RSA 630:5, I (2007) passim

RSA 630:5, II (2007) 421, 494

RSA 630:5, III (2007) passim

RSA 630:5, N (2007) passim

RSA 630:5, VI (2007) 411, 529, 530, 531

RSA 630:5, VII (2007) passim

RSA 630:5, IX (2007) 398, 414

RSA 630:5, X (2007) 8, 520

RSA 630:5, XI (2007) passim

RSA 7: 11 (2003) 545

RSA 7:34 (Supp. 2011) 545

RSA 7:6 (Supp. 2011) 545

S.C. Code Ann. § 16-3-20 452

S.D. Codified Laws § 22-16-4 .452

Tenn. Code Ann. § 39-13-204 185, 452

Va. Code Ann. § 18.2-31 452

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-xlvii-

Rules

Fed. R. Crim. Pra. 24(b) 177. 179

N.H. R. Ev. 105 219

N.H. R. Ev. 1101(b) 423, 424

N.H. R. Ev. 110l(d)(3) .420. 421

N.H. R. Ev. 401 198.359.531

N.H. R. Ev. 403 passim

N.H. R. Ev. 404(b) passim

N.H.R. Ev. 401 531

Constitutional Provisions

U.S. Canst. art. I, § 1 541

U.S. Canst. amend. V passim

U.S. Canst. amend. VI passim

U.S. Canst. amend. VII passim

U.S. Canst. amend. XIV passim

N.H. Canst. pt. I. art. 2 489. 490

N.H. Canst. pt. I, art. 15 passim

N.H. Canst. pt. I, art. 16 176. 434

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-xlviii-

N.H. Canst. pt. I, art. 17 113

N.H. Canst. pt. I, art. 33 passim

N.H. Canst. pt. I, art. 35 passim

N.H. Canst. pt. I, art. 37 536, 540, 541

N.H. Canst. pt. II, art. 4 435

Other Authorities

Annotation, Pretrial Publicity In Criminal Case As Ground ForChange Of Venue, 33 A.L.R.3d 17 (1970 & Supp. 2012) 129

Black's Law Dictionary (9th ed. 2004) .442

Joan T. Buckley, Annotation, Victim Impact Evidence in CapitalSentencing Hearings - Post-Payne v. Tennessee,79 A.L.R. 5 th 33 (2000 & 2008 Supp.) 281, 599

N. Singer & J.D. Singer, Statutes and Statutory Construction,Vol. 1, § 21: 14 (7th Ed. 2008) .433

N.H.H.R. Jour. 299 (1974) 157

N.H.H.R. Jour. 376 (1993) 158

N.H.H.R. Jour. 527 (1977) 589

N.H.S. Jour. 197-212,652-81, 708-25 (1974) 156

N.H.S. Jour. 2701 (1977) 589

N.H.S. Jour. 627 (1993) 158

N.H.S. Jour. 923 (1991) 272

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-xlix-

Sommers and Ellsworth, How Much Do We Really Know AboutRace and Juries? A Review ofSocial Science Research,78 Chi.-Kent L. Rev. 997 (2003) .480

The Federalist No. 73 (Alexander Hamilton) .450

U.S. Dept. of Justice (FBI), Unifonn Crime Reporting Statistics, StateCrime Estimates 1960-2010 452

Uhlman et. al., Are Members ofLow Status Groups PerceivedAs Bad, Or Badly OIf? Egalitarian Negative Associations andAutomatic Prejudice. 42 Journal of Experimental SocialPsychology 491-499 (2006) 479

Webster's Third New Int'l Dictionary(unabridged ed. 2002) 441, 591, 592

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-1-

ISSUES PRESENTED

I. Whether the trial court correctly denied the defendant’s

motion to change the venue of his trial where the publicity surrounding

his case was not so pervasive that the court either could not, or did not,

seat an impartial jury to decide his case.

II. Whether the trial court was required to grant ten additional

peremptory strikes to the defendant and five additional peremptory

strikes to the State, where the pertinent statutes do not contain any

provision for an increase in the number of peremptory strikes for each

side and there is no constitutional right to peremptory strikes in any

event.

III. Whether the trial court’s refusal to dismiss two jurors for

cause requires reversal of the defendant’s conviction, where the

defendant exercised peremptory strikes to remove the jurors in any

event, and both jurors said that they could decide the case fairly and

consistently with the court’s instructions and their oath.

IV. Whether the trial court sustainably exercised its discretion

in allowing the State to offer evidence of the crimes that the defendant

perpetrated in the days leading up to Briggs’s murder, where such

evidence was offered with respect to the hotly contested issues of motive,

intent, and knowledge.

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-2-

V. Whether, by informing the jury that the State was not

required to prove its case “to a mathematical certainty” or to demonstrate

“the complete impossibility of innocence,” the trial court gave an

incorrect instruction on the burden of proof, where the court also

described the presumption of innocence and this Court and others have

approved similar language.

VI. Whether the trial court sustainably exercised its discretion

in the eligibility stage of the sentencing hearing when it precluded the

defendant from offering unreliable and self-serving statements at that

particular stage of the proceedings.

VII. Whether RSA 630:5 requires express authorization of “victim

impact evidence” in order for such relevant information to be admissible

at a capital sentencing hearing, and whether the limited evidence

actually submitted at the hearing rendered that proceeding

fundamentally unfair in violation of the defendant’s constitutional right

to due process.

VIII. Whether the trial court sustainably exercised its discretion

by permitting the State to elicit brief testimony from one witness

regarding prison conditions that the defendant would face upon

sentencing, when such testimony was relevant to the State’s future

dangerousness aggravator and to mitigators that the defendant chose to

submit to the jury.

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IX. Whether the trial court correctly denied the defense request

to instruct the jury at the sentence selection phase on the mode of

carrying out a capital sentence, when the requested information was

irrelevant to issues properly before the jurors at that proceeding.

X. Whether the trial court sustainably exercised its discretion

in permitting the State to present abbreviated and reliable evidence

pertaining to prior criminal acts committed by the defendant, when such

evidence was necessary to prove ten of the State’s nonstatutory

aggravating circumstances submitted to the jury, and was probative not

only of those aggravators but also of the defendant’s submitted mental

health mitigator.

XI. Whether the trial court sustainably exercised its discretion

in allowing the State to elicit brief evidence of the defendant’s prior

possession of a handgun, which evidence was directly probative of one of

the State’s aggravating factors submitted to the jury.

XII. Whether isolated portions of the prosecutor’s lengthy

summation at the sentence selection hearing fell outside the broad

bounds of argument permitted at such a proceeding.

XIII. Whether RSA 630:5, III and IV violated due process by

requiring the defendant to prove a mitigating factor by a preponderance

of the evidence before it may be considered in the jury’s final weighing

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process and by not requiring that the jury find that aggravating factors

outweigh mitigating factors beyond a reasonable doubt.

XIV. Whether RSA 630:5, which expressly sets forth evidentiary

standards applicable at the capital sentencing hearing that ensure that

evidence presented is relevant and reliable, is unconstitutional on its face

under the separation of powers doctrine or the due process clause for not

incorporating the New Hampshire Rules of Evidence.

XV. Whether RSA 630:5 is facially violative of the New Hampshire

Constitution’s prohibition against cruel or unusual punishment, and

whether the death penalty, as applied to this defendant, constitutes a

grossly disproportionate sentence.

XVI. Whether the defendant presented sufficient evidence to

support a finding that RSA 630:5, on its face or as applied to him,

violates the equal protection guarantees of the United States and New

Hampshire constitutions because of racial discrimination.

XVII. Whether the defendant has demonstrated that his

constitutional right to an impartial jury was violated by the process of

“death qualifying” the jury prior to the guilt phase of his trial.

XVIII. Whether the trial court correctly denied the defendant’s

motion for post-verdict discovery of the Attorney General’s

correspondence concerning her decision to seek the death penalty, where

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the sentencing phase proceeding focused upon the defendant’s actions,

not those of the Attorney General.

XIX. Whether RSA 630:5, I(b) violates the New Hampshire

Constitution’s separation of powers provision by allowing prosecutors to

identify and seek to prove non-statutory aggravating factors; whether

such factors must be alleged in the indictment and presented to the

grand jury; and whether the non-statutory aggravating factors in this

case were unconstitutionally duplicative.

XX. Whether the two mens rea statutory aggravating factors

found by the jury in this case properly narrowed the category of

defendants subject to the death penalty, and whether the trial court

sustainably exercised its discretion in refusing to give the instructions

the defendant requested with respect to these factors.

XXI. Whether, consistent with RSA 630:5, XI(b), there was

sufficient evidence of the aggravating factors that the jury found beyond

a reasonable doubt, where the defendant makes no specific claim that

the evidence was insufficient.

XXII. Whether the defendant’s sentence was imposed under the

influence of passion, prejudice, or another arbitrary factor in violation of

RSA 630:5, XI (a), where the record does not show the existence of any

overwhelming emotion, irrational hostility, or other capricious

circumstance.

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STATEMENT OF THE CASE

On October 16, 2006, Michael Briggs, an on-duty Manchester

police officer, was shot in the head. TG 2880, 2886.1 He died from his

injuries the following day. TG 2880. On October 16, 2006, the

defendant was arrested in Dorchester, Massachusetts, in connection

with Briggs’s murder. TG 98, 1315. On February 20, 2007, the grand

jury indicted the defendant on one count of capital murder for knowingly

shooting Briggs in the head. DBA B1-B4. The indictment alleged

statutory aggravating factors, which permitted the State to seek the

death penalty, a process that began on May 7, 2007, when the State filed

a notice of its intent to seek the death penalty. Prior to trial, the parties

engaged in extensive litigation, which required both evidentiary and non-

evidentiary hearings. The nature of that litigation will be discussed, as

necessary, as the State responds to each of the defendant’s appellate

contentions.

1 References to the transcript of the guilt phase of the proceedings will be made as TG___. References to the transcript of jury selection will be made as JS___. References to the transcript of the eligibility phase of the proceedings will be made as TE___. References to the transcript of the sentencing phase of the proceedings will be made as TS___. References to the transcript of the sentencing hearing held on December 22, 2008, will be made as S___. References to the transcript of a hearing will be made as T(date of hearing)___. References to the defendant’s brief will be made as DB___, and the appendix thereto as DBA___. References to the appendix to the State’s brief will be made as SBA___.

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Jury selection began on September 22, 2008. JS 4. The

proceedings that followed consisted of three phases. The first phase,

during which the jury was required to determine whether the defendant

was in fact guilty of capital murder, began with opening statements and

a view on October 20, 2008.2 TG 17-66, 78. During his opening

statement and after an Anaya colloquy, TG 4-6, the defendant conceded

that he had shot and killed Briggs, TG 33, and he asked the jury to find

him guilty of reckless second degree murder. TG 34. See State v. Anaya,

134 N.H. 346, 353-54 (1991). After hearing the evidence, however, the

jury convicted the defendant of capital murder on November 13, 2008.

TG 3230.

On November 17, 2008, the next phase of the proceedings began,

during which the jury heard evidence regarding whether the defendant

was eligible to receive the death penalty.3 TE 4. In addition to the

evidence presented during the guilt phase, the jury was allowed to

consider one stipulation offered by the parties and one witness presented

by the State. TE 4. The jury returned its verdict that same day, finding

the defendant eligible to receive the death penalty. TE 94, 96.

On November 21, 2008, the final phase of the proceedings began.

During that phase, the jury heard evidence regarding whether the

2 Hereinafter, the State shall refer to this portion of the proceedings as the “guilt phase.” 3 Hereinafter, the State shall refer to this portion of the proceedings as the “eligibility phase.”

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defendant should be sentenced to death or to life in prison.4 TS 4. On

December 18, 2008, the jury recommended that the defendant be

sentenced to death. TS 2625. The Hillsborough County Superior Court

(McGuire, J.) imposed that sentence on December 22, 2008. S 20. On

December 31, 2008, this Court opened the present appeal pursuant to

RSA 630:5, X (2007), which requires automatic review in any case where

the death penalty has been imposed.

4 Hereinafter, the State shall refer to this portion of the proceedings as the “sentencing phase” or the “sentence selection phase.”

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STATEMENT OF FACTS

A. Introduction.

On October 15, 2006, Michael Briggs and John Breckinridge, two

Manchester police officers, reported for work. TG 112. They were

partners, assigned to the bicycle patrol on the so-called jeep shift, which

required them to be on duty from 6:30 that night until 3:00 the next

morning. TG 112-13. They began their shift, as they often did, with roll

call and a briefing. TG 92. During the briefing, Officer Sean Leighton

explained that the defendant and an associate, Antoine Bell-Rogers, were

wanted in connection with a shooting at an apartment building on

Edward J. Roy Drive. TG 93-94.

The shooting, however, was just one of several violent crimes that

the defendant and Bell-Rogers had perpetrated over a period of a few

days. They also had committed the armed robberies of a Mexican

restaurant and a convenience store. 5 In addition, one or both of them

had aggressively confronted other people or threatened them with

physical harm while armed with a handgun or other weapons. And

throughout the course of this menacing and violent behavior, both men

specifically and boastfully declared that if the police tried to stop them,

5 The defendant’s nickname was “Stix” and Bell-Rogers’s nickname was “Twiz.” TG at 1036, 1040. Throughout the trial witnesses and counsel referred to the defendant and Bell-Rogers by both names.

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an officer would get shot. See, e.g., TG 1724 (defendant); TG 1924-25

(defendant and Bell-Rogers).

In addition to the defendant and Bell-Rogers, several other people

also were involved in this spree of violence. These additional people

played some role in the events and circumstances leading up to Briggs’s

murder. Because the connections between those people and the

defendant form a necessary basis to explain the events that culminated

in Briggs’s murder, the State offers a brief discussion of them.

Teresa Shipley lived at 267 Central Street in Manchester with her

two children and a woman named Ruth Schulz. TG at 1380. Although

they were not related, Schulz viewed Shipley and her children as

members of her family. TG 1611. Angela Swist and her two children

also lived with Shipley and Schulz at 267 Central Street. TG 1614.

Swist and Shipley were friends. TG 1381. In addition, Paul Birely, a

man named Riz Black, and an eleven-year-old girl named Kyarra lived in

the apartment. TG 1380. Birely was one of Shipley’s former boyfriends,

TG 2735; Black, also known as Keyonn Brown, was another of Shipley’s

former boyfriends and a close acquaintance of the defendant’s and Bell-

Rogers’s, TG 1267, 1439-40; Kyarra was the daughter of still another of

Shipley’s former boyfriends, Bruce Edwards, TG 1382. Bruce Edwards

lived in an apartment on Edward J. Roy Drive in Manchester with Swist’s

father. TS 887; TG 1424.

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Shipley had been friends with the defendant for several years, and

when the defendant needed a place to spend the night, Shipley allowed

him to stay with her. TG 1384-85, 1614. Shipley considered the

defendant to be like a member of her family. TG 1385. In addition to

being friends with Shipley, by October 2006, the defendant was having a

sexual relationship with Swist. TG 1385-86, 1615-16, 1696. At

approximately that time, Shipley met Bell-Rogers and began an intimate

relationship with him. TG at 1386-87, 1615, 1697. The defendant

socialized with some combination of Bell-Rogers, Shipley, and Swist on

almost a daily basis. TG 1387-89, 1696-97.

The defendant and Bell-Rogers met sometime in the late summer

or early fall of 2006. TG 1242. From the beginning, they were very close

friends and Bell-Rogers referred to the defendant as “family” and as a

“brother[ ].” TG 1041, 1129, 1242-43, 1389, 1699, 2738.

Mary Peters, her boyfriend Michael Harris, Peters’s daughter

Jennifer Roman (also known as “J.J.” or “Jayda”), Peters’s adopted

daughter Felicia Mills, and Felicia’s boyfriend Eric Robinson all lived at

in an apartment at 337 Lake Avenue in Manchester. TG 618-22, 675,

936-39, 953, 1237. Bell-Rogers was involved in a romantic relationship

with Jennifer Roman and often spent the night with her at that

apartment. TG 622-23, 944, 1239-40. The defendant visited the

apartment too because he was friends with both Bell-Rogers and Roman.

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TG 945-47. Bell-Rogers often kept a handgun in the apartment. TG

947-49, 1244-45. When Mary Peters saw it, she got upset and told him

that he could not keep it in her home. TG 949.

B. The Robbery of the El Mexicano Restaurant.

Sometime during the summer of 2006, Bell-Rogers became friends

with Jeff Hayes. TG 1895. They met through a mutual acquaintance

who had spent time in a county jail with Bell-Rogers. TG 1895. On the

day that they met, Bell-Rogers showed Hayes a handgun and asked

Hayes if he had any potential “jobs,” meaning armed robberies and other

“quick ways to get cash.” TG 1895-96. The gun that Bell-Rogers showed

to Hayes was the same weapon that the defendant ultimately used to

murder Briggs. TG 1896, 2064, 2641-44. Within a few days of the

meeting, Hayes and Bell-Rogers committed two armed robberies together.

TG 1897-99.

A week or two after those robberies, Hayes met the defendant for

the first time when Bell-Rogers introduced him to Hayes as his “brother.”

TG 1900-01. Bell-Rogers told Hayes that the defendant was “cool,” that

they needed “a job to do,” and that they “need[ed] to make some money.”

TG 1900-01. Hayes proposed that they rob a Mexican restaurant

because its owner, who often was present, wore a valuable gold bracelet.

TG 1902.

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On October 10, 2006, Hayes drove to 267 Central Street and the

defendant and Bell-Rogers got into his car. TG 1400. After leaving

Central Street, the three men drove around discussing the robbery. TG

1904. They then went to the El Mexicano restaurant. TG 1906-08.

Hayes told his accomplices that because the owner knew him, the

defendant and Bell-Rogers should commit the robbery while he waited in

the car. TG 1908. When Bell-Rogers got out of the car, he checked the

clip of his handgun to make sure that it was loaded. TG 1909. The

defendant and Bell-Rogers then headed toward the restaurant. TG 1911.

After about five minutes, they both came running back to the car. TG

1911. When they returned, Bell-Rogers still had the handgun, and the

defendant was armed with an orange contractor’s razor. TG 1911, 1913.

Hayes saw smoke coming from the barrel of the gun. TG 1911.

Once the defendant and Bell-Rogers got into the car, Bell-Rogers

said that the owner had refused to take off the bracelet, so he fired a few

shots. TG 1912. Unable to steal the bracelet, Bell-Rogers stole a heavy

gold necklace instead. TG 1912. The defendant said that he had robbed

a customer of some cash. TG 1912. He then handed fifty dollars to

Hayes. TG 1912. Hayes noticed that, upon his return from the

restaurant, the defendant also had a gold watch with diamonds on its

face. TG 1912-13.

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After the robbery, the defendant called Shipley and told her to meet

him outside the apartment. TG 1401. Hayes pulled up in the car and

the defendant got out and handed a bundle of clothing to Shipley. TG

1401. The defendant told Shipley to put the clothing away. TG 1401.

He then left with Hayes and Bell-Rogers. TG 1401.

Later that day, the three men returned to 267 Central Street. TG

1401-02, 1915. This time, the defendant, Bell-Rogers, and Hayes all

entered the apartment and went straight into Shipley’s room, where they

discussed how they would split the proceeds from the robbery. TG 1402,

1915. When Shipley entered the room, she saw a watch and necklace

that matched the jewelry that had been stolen from the El Mexicano

restaurant. TG 1402-04, 1912-13; see TG 1720-23 (Swist also saw the

defendant, Bell-Rogers, and Hayes with the stolen items). She also saw a

handgun, which she recognized as Bell-Rogers’s, on the bureau. TG

1408-09. Bell-Rogers kept the gun with him whenever he visited Shipley,

and he stored it under her mattress or in one of her drawers. TG 1409.

Shipley had seen the defendant handle the gun before too. TG 1409.

One time, when the defendant had the gun, Bell-Rogers took it from him,

made a comment about “guns for dummies 101,” and then disassembled

it. TG 1410. The gun used in the El Mexicano robbery was the same

weapon that the defendant used to kill Briggs. TG 1410, 2064, 2641-44.

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In addition to the observations discussed above, Shipley also

overheard the men make several statements. For example, she heard

Hayes say, “I told you that Spanish place was easy.” TG 1404, 1915.

She overheard the defendant say that a customer at a table looked

scared and handed him three hundred dollars. TG 1404. And she heard

Bell-Rogers say that he wished that they had been able to take the

bracelet. TG 1405. Hayes eventually left the apartment with the

necklace, hoping to sell it. TG 1411, 1915-16.

C. The Robbery Of The 7-Eleven Convenience Store.

After Hayes left with the necklace from the El Mexicano robbery,

the defendant, Bell-Rogers, Shipley, and Swist went to a bar or dance

club in Manchester called Club Liquid. TG 1411, 1699. After leaving the

club, the defendant and Bell-Rogers wanted to commit another robbery

but they believed that “Manchester was too busy with too many cops.”

TG 1700. So, they traveled to Hudson in Swist’s car during the early

morning hours of October 11, 2006. TG 1412-13, 1700-01. The group

eventually stopped at a 7-Eleven convenience store. TG 1701. Shipley

selected the store as their target because “it looked quiet,” insofar as

there were neither cars nor people around it. TG 1413, 1701-02. Swist

parked the car, the defendant and Bell-Rogers had a discussion about

using the gun during the robbery, and then both men got out and

entered the store. TG 1414-15, 1702-03. The defendant had the gun.

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TG 1703. He pointed the gun at the clerk, while Bell-Rogers took the

money from the cash drawer. TG 1415-16.

After a few minutes, the defendant and Bell-Rogers returned to

Swist’s car carrying the store’s cash drawer. TG 1417-18, 1704. They

told her to “hurry up and drive.” TG 1704. When the group got back to

267 Central Street, the defendant took the gun and put it on Shipley’s

computer table. TG 1418-19, 1705. Bell-Rogers told the defendant that

the gun was “double loaded” or jammed and that if he had tried to fire it,

it “could have really hurt somebody.” TG 1419, 1706. The defendant

said that he was unaware of the gun’s condition, and both men laughed

about it. TG 1419, 1706.

Shipley was familiar with the gun, for she had handled it one time

when she found it hidden in her bed. TG 1419-20, 1422, 1622, 1706-07.

At that time, she picked it up, pointed it at the floor, and pulled the

trigger. TG 1420. The gun then discharged a bullet into the floor. TG

1420. The defendant and Bell-Rogers were not in the apartment at the

time, but when they found out that Shipley had fired the gun in the

house, they laughed and made fun of her. TG 1421-22. Following

Briggs’s murder, DNA testing on the gun showed a mixture of DNA

consistent with the profiles of defendant, Bell-Rogers, and Shipley. TG

2680-2701.

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Shipley and Swist eventually pled guilty to both conspiracy to

commit robbery and accomplice to robbery for their roles in the 7-Eleven

robbery. TG 1389-93, 1692-95.

D. The Shooting At Edward J. Roy Drive.

On October 14, 2006—three days after the 7-Eleven robbery and

less than 24 hours before Briggs was murdered—the defendant, Bell-

Rogers, Shipley, Swist, and Paul Birely, were socializing at 267 Central

Street. TG 1422. Kyarra Davis was there as well. TG 1382, 1617-18.

That night, the defendant, Bell-Rogers, and Paul Birely decided to

go to Club Liquid. TG 1128, 1425, 1711-12, 2739-40. Later, when the

three of them returned to Central Street, they were “amped up” and

angry because they had gotten into a fight with Bruce Edwards, Kyarra’s

father, over how he was treating Kyarra. TG 1426, 1624, 1712-13, 2744-

46. Their anger was only exacerbated by a series of telephone calls

between the residents of Central Street and the residents of Edward J.

Roy Drive. TS 892; TG 1426-27, 1625-26, 1713-14. After one of the

calls, Angela Swist became extremely upset and told the others at

Central Street that Edwards had threatened to travel to Central Street

and fire shots into the apartment. TG 1427, 1714-15, 2746-47. When

the defendant and Bell-Rogers heard about Edwards’s threat, they

became even angrier and said that they were “going to fight fire with fire.”

TG 1428, 1715, 2747.

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The defendant, Bell-Rogers, Shipley, Swist, and Kyarra then got

into Swist’s car, left Central Street, and headed toward Edward J. Roy

Drive. TG 1429-30, 1715, 2748. The defendant was carrying the

handgun. TG 2749-50.

Birely left in a separate car with two other women. TG 1429-30,

1715-16, 2750-51. On the way to Edward J. Roy Drive, Kyarra got out of

Swist’s car and went with Birely and the other women because Shipley

was afraid that something bad would happen when they reached Edward

J. Roy Drive and she did not want Kyarra to see it. TG 1431, 1716,

2752-53.

When they arrived at Edward J. Roy Drive, Bell-Rogers stopped the

car near Edwards’s apartment building. TG 1431, 1717. The defendant

and Bell-Rogers then got out of the car and ran up the hill toward the

building where Edwards lived. TG 1432, 1717. Shipley and Swist heard

a series of gunshots and then saw the defendant and Bell-Rogers

running back to the car. TG 1433-34, 1717-18.

When they got back to Swist’s car, both men were excited and

“amped up.” TG 1436, 1717-18. They thought that at least one of their

bullets had hit someone, and the defendant spoke of dodging bullets by

making a reference to the movie “The Matrix.” TG 1437, 1718. They told

Swist, who was then in the driver’s seat, to drive and she did, bringing

them back to the Central Street apartment. TG 1432-33, 1436. When

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-19-

they reached the apartment, Bell-Rogers had the handgun. TG 1436,

1719.6

That night, instead of staying at the Central Street apartment, as

he sometimes did, the defendant accompanied Bell-Rogers to Jennifer

Joseph’s apartment. TG 1129-30, 1439, 1720, 2756. Joseph was

another woman with whom the defendant had a sexual or romantic

relationship. TG 1119. When the defendant and Bell-Rogers arrived at

Joseph’s apartment, the defendant told her that he and Edwards had

been fighting about his treatment of Kyarra. TG 1130. Both the

defendant and Bell-Rogers then spent the night at Joseph’s apartment.

TG 1130-31. The next morning, October 15, 2006, the day of the

homicide, the defendant and Bell-Rogers watched football and left

Joseph’s apartment sometime in the afternoon. TG 1131-32.

Meanwhile, out of concern that the police might go to the Central

Street apartment to question her about her involvement in criminal

activity with Bell-Rogers and the defendant, Shipley asked her mother to

stop by, pick up the children, and babysit them. TG 1440, 1442. When

Shipley’s mother arrived at Central Street, she and Ruth Schulz got into

an argument and, as a result, one of the neighbors called the police. TG

1443-44, 1628-29, 1726, 2756-58.

6 At the defendant’s request, the jury was instructed that, although the defendant had been convicted of being an accomplice to reckless conduct with a firearm, he was acquitted of being the person who fired the gun at 345 Edward J. Roy Drive. TG 1434-36, 1438.

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Soon, some uniformed police officers arrived and ended up

arresting Paul Birely on an unrelated outstanding warrant. TG 1444-45,

1629, 1726-27, 2756-58. After the uniformed officers left, two detectives

came and asked to speak to Swist and Kyarra at the police station. TG

1445, 1629-30, 1727-28. They agreed to go.

At the station, the police questioned Swist about the shooting at

her father’s apartment and asked whether she knew the defendant and

Bell-Rogers. TG 1727-29. Swist lied and told them she did not know

anything. TG 1729. The police, however, confronted Swist about her lie

and told her that Kyarra had divulged some information about the

incident. TG 1730. At that point, Swist suffered a panic attack and

returned to the Central Street apartment with Lieutenant Nick Willard

and another police detective. TG 1446, 1630, 1730-31. When she

entered the apartment, Swist was upset, hysterical, and crying, and the

detectives were trying to calm her down. TG 1446, 1630-31.

When he brought Swist home, Willard took the opportunity to

question Shipley in an alley outside the Central Street apartment. TG

1446-47, 1731. He asked Shipley where the defendant and Bell-Rogers

were, and Shipley told him that she had not seen them all day and did

not know where they were at that time. TG 1447-48. After speaking

with Shipley, Willard went into the apartment building and Shipley

remained outside. TG 1448-49.

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Moments after Willard went inside, the defendant and Bell-Rogers

pulled up in Swist’s car, the same car that they had used in two of their

earlier crimes, with Bell-Rogers driving and the defendant in the

passenger seat. TG 1449-50. Shipley went up to the passenger side of

the car and told the two men that they needed to leave because the police

were looking for them, but both the defendant and Bell-Rogers looked at

Shipley as though she were joking. TG 1449-50, 1452-53. She then

went around the car to the driver’s side, banged on the car, and told

them, “I’m not fucking kidding. You need to leave now,” or “I’m fucking

for real. You need to leave.” TG 1450-51, 1453. Bell-Rogers said, “I

don’t give a fuck. I’m out for blood.” TG at 1454. At almost the same

time, the defendant stated, “Yeah, we don’t give a fuck. We’re out for

blood.” TG 1454. As the men were dismissing Shipley’s warnings, she

observed the handgun on Bell-Rogers’s lap. TG 1454. After yelling at

the two men, Shipley went into the apartment and the defendant and

Bell-Rogers drove off. TG 1455.

When Shipley entered the apartment, she did not tell Willard that

she had just seen the defendant and Bell-Rogers outside. TG 1456.

Further, when one of the detectives asked Shipley to accompany him to

the police station for an interview, she told him that she would think

about it. TG 1456-57. Shipley’s reluctance to participate in an interview

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was motivated, at least in part, by a desire to protect the defendant and

Bell-Rogers. TG 1457.

At some point later, Ruth Schulz received a call from the

defendant. TG 1458. He wanted her to pick up him and Bell-Rogers and

give them a ride to the Central Street apartment. TG 1458, 1632, 1733.

Shipley also spoke with the defendant and he asked her whether the

police were at the apartment and whether she had revealed any

information to them. TG 1458, 1633-34. She assured him that she had

not. TG 1458. Schulz then left to get the defendant and Bell-Rogers. TG

1459, 1638, 1734.

When the defendant and Bell-Rogers got into Schulz’s car, they

asked why the police were at the apartment. TG8 at 1643. The

defendant said that they had to get rid of Swist’s car, which they had

used in two of the three prior crimes. TG 1644. He said that they had to

“dump it” and that their friend, Riz Black, was going to come and “wipe it

down.” TG 1644.7 Both the defendant and Bell-Rogers seemed panicked

and scared. TG 1645.

When the defendant and Bell-Rogers arrived at the Central Street

apartment with Schulz, the defendant asked Shipley where Kyarra was.

TG 1459, 1638, 1734-35. Swist or Shipley told him that the police had

taken her and were not going to let her return to Central Street. TG

7 An analysis of phone records, described at trial, confirmed a series of calls between the defendant, Shipley, Schulz, and Riz Black. TG 2568-71.

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1459, 1735. The defendant became upset and said that the police were

“fucking retards” and that they did not care about Kyarra. TG 1459-60,

1735-36. The defendant, Bell-Rogers, Shipley, and Swist then talked

about leaving Manchester until “things cooled off.” TG 1461, 1736-37.

The defendant and Bell-Rogers also informed Swist that they had gotten

rid of her car because the police were looking for it. TG 1736-37. The

defendant and Bell-Rogers then told the women that they were going to

pack their belongings and would meet them later. TG 1461-62, 1737-38.

After the two men left, Shipley and Swist walked down to the police

station to be interviewed. TG 1462-63, 1649, 1740. The police

interviewed Shipley and Swist in separate rooms. TG 1463-64.

Eventually, Shipley told the police “little bits and pieces” about the 7-

Eleven robbery and the shooting at Edward J. Roy Drive but she “tried to

sugarcoat everything.” TG 1464. Swist also provided some information

but lied about the extent of her involvement in the crimes. TG 1741-42.

At a certain point, both women were allowed to leave the police

department and they walked home. TG 1465, 1742. On the way home,

Shipley spoke to the defendant and he said that he would be visiting her

later that night. TG 1466, 1743, 2574-78. Shipley did not see the

defendant again, although as described below, she received one more

telephone call from him after Briggs was shot. TG 1470.

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E. The Defendant’s Statements About Shooting Police Officers.

On a few different occasions before he murdered Briggs, the

defendant said that he intended to kill a police officer if he was ever

threatened with being arrested. For example, Ruth Schulz had a

conversation with the defendant about his feelings toward the police. TG

1656-57. Sometime in late August or early September 2006, Schulz

revealed to the defendant that she once had been arrested by an

undercover police officer. TG 1657-58. The defendant told Schulz that if

the police ever tried to arrest him, there would be a shoot-out and the

police would not take him alive. TG 1657-58. The defendant said words

to the effect that “it was them or him, and ‘F’ them, and it was going to

go his way or no way.” TG 1660, 1685-86.

A similar conversation took place following the robbery of the El

Mexicano restaurant. At that point, the defendant, Jeff Hayes, and Bell-

Rogers were in an alley discussing what they would do with the watch

that they had stolen during the robbery. TG 1921-24. Hayes was

uncomfortable having the conversation in the alley. He warned the

defendant and Bell-Rogers that the police often came to the area and

asked for identification in connection with their investigation of recent

crimes. TG 1924. The defendant said that “if the cops pull[ed] up, he’[d]

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pop shots; that he’d pop a cop. That is how they do it in the Bean.”8 TG

1924-25. Bell-Rogers agreed, saying, “They’d pop shots. He didn’t want

to go to jail. And . . . the[ ] [police] would think twice about chasing

[them] . . . .” TG 1926. Hayes told the defendant and Bell-Rogers that, if

they fired shots, the police would either kill them or find and arrest

them. TG 1926.

Swist also recalled a conversation in which the defendant and Bell-

Rogers discussed shooting a police officer. That conversation, between

her, the defendant, Bell-Rogers, and Shipley, took place sometime after

the 7-Eleven robbery but before the shooting at Edward J. Roy Drive. TG

1723-24. During the conversation, the defendant and Bell-Rogers asked

the two women what they would do if the police approached them. TG

1724. Each of the two men then asked the other how he would react if

the police approached. TG 1724. The defendant said that he would “pop

a cop.” TG 1724. Bell-Rogers said that he was not afraid of the police

because no one could get in their way. TG 1724. The defendant and

Bell-Rogers repeatedly questioned each other on the subject as though it

was some sort of test or competition. TG 1724-25.

Paul Birely also recalled a conversation, approximately one week

before Briggs’s murder, in which the defendant expressed the intention

to shoot a police officer. TG 2760-62, 2764. The defendant told Birely

8 “The Bean” was an apparent reference to Boston, the defendant’s hometown. TG 1925.

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that “he would pop out, badge or no badge, didn’t matter. Anybody that

tried to stop him, they were going to get it.” TG 2762, 2820-22, 2859.

Both the defendant and Bell-Rogers told Birely that they were going to

“pop a cop” because they did not want to go back to prison. TG 2763,

2860. Birely told the two men that he did not want anything to do with

the shooting of a police officer. TG 2763. It was against the backdrop of

all of these comments and conversations about shooting a police officer

that the events leading up to Briggs’s murder ultimately unfolded.

F. Bell-Rogers Physically Assaulted Jennifer Roman And Fired A Gun At 337 Lake Avenue On October 15, 2006, Immediately Before Officer Briggs Was Murdered.

During the day on October 15, 2006, Mary Peters and Jennifer

Roman got into a violent fight and Peters told Roman she had to move

out of the apartment at 337 Lake Avenue. TG 950, 1003-07, 1245-46,

1281. Later, the defendant and Bell-Rogers called Roman and told her

that they wanted to meet her at the apartment at 337 Lake Avenue. TG

1246. Roman initially met them outside the apartment and took them

to the store to buy two forty-ounce cans of beer. TG 1247. Both men

were acting nervously, as though they did not want to been seen outside.

TG 1247-48. Although they both smelled of marijuana, neither seemed

impaired. TG 1248.

Around midnight, Roman brought the defendant and Bell-Rogers

back to the apartment at 337 Lake Avenue. TG 622-24, 631-32, 1011-

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14, 1249, 2581. When the defendant and Bell-Rogers entered, Peters

told them that the police were looking for them. TG 626. The defendant

and Bell-Rogers looked at each other, smiled, and responded, “You think

we don’t know that?” TG 626, 632. Peters also told them that they

needed to be careful because there were a lot of patrols around the city.

TG 1253. The defendant responded that they would be on their best

behavior. TG 1253. Peters’s boyfriend, Harris, also told the defendant

and Bell-Rogers that he had a bad feeling because there were so many

police around the area. TG 1253. Bell-Rogers seemed to become

paranoid and started looking out the window. TG 1254. The defendant

said that he, too, had a bad feeling and that his stomach hurt. TG 1254.

Later, the defendant was heard talking on his cell phone and saying, “I’m

not going down. I’m not going back to jail.” TG 628, 635.

During the course of the night, Roman observed both men drinking

beer and smoking “blunts.” TG 1250. Bell-Rogers appeared impaired,

but the defendant exhibited no signs of impairment. TG 1250-51.

Similarly, although Peters smelled beer on the defendant’s breath, she

did not think he appeared intoxicated. TG 954, 1032-33.

At some point during the night, Roman started to fight with Bell-

Rogers because he had impregnated another woman. TG 1008-09, 1255.

Roman screamed at Bell-Rogers and tried “to get a rise out of him.” TG

638. Eventually, the fight escalated to physical violence and, when Bell-

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Rogers tried to leave, Roman attempted to prevent him. TG 337, 1256.

The defendant unsuccessfully tried to intervene and calm the situation

by suggesting that Roman take her anger out on him instead. TG 639,

676. But Roman persisted and accused Bell-Rogers of being a

homosexual, which enraged Bell-Rogers and prompted him to threaten to

kill Roman. TG 639, 680, 957. He grabbed a dog leash and wrapped it

around her throat to choke her. TG 958, 1256-57. Peters and the

defendant then pulled Bell-Rogers off Roman so that he would not hurt

her. TG 959, 1287. Undeterred, Roman continued to berate Bell-Rogers,

calling him names and degrading him. TG 959, 1002. Peters and the

defendant continued to try to separate Bell-Rogers from Roman. TG 960,

1256-57, 1287-88.

Their efforts were unsuccessful and, at one point, Roman told Bell-

Rogers that he was not a man because he had to hide behind a gun.

TG6 960, 1025, 1257-58. In response, Bell-Rogers pulled out his gun

and gestured as though he was going to shoot Roman. TG 960, 1026,

1257-58. Peters intervened and the defendant pushed Bell-Rogers out

the door to the back hallway. TG 960-61, 1026-28, 1257-58. Once the

door closed, a gunshot rang out. TG 962, 1259. Peters then heard

someone say, “Pick up the shell casings. That’s evidence.” TG 962.9

After Bell-Rogers fired the gun, Peters called the police on a cell phone.

9 When the police later searched 337 Lake Avenue, they did not find the shell casing. TG10 at 2099-2100.

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TG 640, 962, 981, 1260. The Manchester police arrived at 1:50 a.m.,

shortly after Peters made the call. TG 643, 743-44, 981.

While the police were interviewing the occupants of 337 Lake

Avenue, the defendant and Bell-Rogers went down the street to Kelly Ann

Grady’s apartment. TG 1045. Grady was another woman with whom

Bell-Rogers had a sexual relationship. TG 1038. When the two men

arrived at Grady’s, the defendant was talking with someone on his cell

phone and immediately went into Grady’s bathroom to continue his

conversation. TG 1045-46, 1073. Grady believed the defendant was

talking to a girlfriend because she overheard him saying, “I love you.” TG

1046. Phone records established that the defendant was speaking to

Jennifer Joseph around this time. TG 2586-88.

When the defendant emerged from the bathroom, he handed Bell-

Rogers a handgun that had been broken down into three pieces. T 1047.

Bell-Rogers, in turn, handed the gun to Grady, who put it in her dresser

drawer.10 TG 1047. Later, as the defendant and Bell-Rogers were about

to leave, Grady observed the defendant take the pieces of the handgun

out of her dresser drawer. TG 1049-50. He and Bell-Rogers then went

into the bathroom where she heard them reassemble the gun. TG 1049-

51. When the defendant came out of the bathroom, the gun was

reassembled and Grady saw him put it in the waistband of his pants

10 Grady identified the gun used to murder Briggs as consistent with the gun that she put in her dresser drawer. TG 1047-48, 2064.

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with the handle sticking out; he then pulled his sweatshirt over the gun.

TG 1049-52, 1105-06. The defendant and Bell-Rogers then left Grady’s

apartment at 2:45 a.m. TG 1049. Bell-Rogers was wearing a gray,

hooded “G-Unit” sweatshirt and the defendant was wearing a red, hooded

“South Pole” sweatshirt that Grady had lent to him. TG 1054-56.

Meanwhile, Sergeant Maureen Tessier was among the officers who

had gone to 337 Lake Avenue in response to Schulz’s 911 call. As part of

her investigation into what had happened, Tessier interviewed Jennifer

Roman. TG 957. Roman was very uncooperative and refused to provide

much information about the shooting that had taken place. TG 757-59,

1260. At one point while the police were interviewing Roman, she

answered a phone call from the defendant. TG 1261, 1294, 2582-84.

When the police asked Roman to whom she was speaking, she lied and

told them that it was friend named “Jess.” TG 1261-62.

As the police were interviewing other people at 337 Lake Avenue

about the domestic incident that had occurred between Bell-Rogers and

Roman, officers discovered that one of the people there, Eric Robinson,

had a bench warrant for an unpaid traffic ticket. TG 439, 532-33, 645.

So, they arrested Robinson and placed him in the Manchester police

prisoner transport wagon. TG 646-47. The officers in charge of the

transport wagon then left 337 Lake Avenue to bring Robinson to the

police station for booking. TG 440 534.

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G. The Murder Of Manchester Police Officer Michael Briggs.

The night that the defendant and Bell-Rogers were at the Lake

Avenue apartment, Briggs and his partner, Breckinridge, reported for

duty. As described above, on October 15, 2006, Detective Sean Leighton

offered a briefing for the officers, including Briggs and Breckinridge, who

were assigned to work during the jeep shift. TG 92. Leighton informed

the officers that the defendant and Bell-Rogers were the subjects of an

investigation into the shooting on Edward J. Roy Drive the night before.

TG 93-94, 258-59. Officers on the jeep shift were given photographs of

the defendant and Bell-Rogers and were instructed to stop and hold the

two suspects so that they could be questioned. TG 94-95, 258-60.

Officers who were assigned to the midnight shift were given a

similar briefing. TG 102-04, 736-37. Further, by the time that the

midnight shift began, a detective had begun the process of seeking arrest

warrants for the defendant and Bell-Rogers, so the officers on that shift

were given the additional instruction to arrest the defendant and Bell-

Rogers on sight. TG 105, 431, 530, 736-37. Later, after a judge signed

the arrest warrants, a radio transmission from the dispatcher informed

all officers on duty to arrest the defendant and Bell-Rogers for the

shooting at Edward J. Roy Drive. TG 127, 175-76, 266-67, 738, 740-41.

As members of the bicycle patrol, both Briggs and Breckinridge

wore bike patrol uniforms that clearly identified them as police officers.

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TG 115, 2282-96. For example, Briggs’s helmet was marked with the

word “police” in reflective print. TG 125, 160. Their bicycles also were

clearly marked with the word “police” in two places. TG 116-18.

While out on patrol, at 1:48 a.m., Briggs and Breckinridge heard a

call from the police dispatcher to the effect that gunshots had been fired

during a domestic incident at 337 Lake Avenue. TG 120. They decided

to go to that address in response to the call. When they arrived, the two

officers found a bullet hole in the stairwell. TG 121-22, 751-55. The

bullet seemed to have exited the building and hit a car that was parked

outside. TG 121-22, 751-55. The police unsuccessfully searched for the

spent shell casing that was associated with the bullet hole. TG 755-56.

While Briggs and Breckinridge were at 337 Lake Avenue, they

learned that the defendant and Bell-Rogers were involved in the shooting.

TG 126-27, 175-76, 756-57. Although, by that time of night, Briggs and

Breckinridge were nearing the end of their shift, Briggs suggested that he

and Breckinridge should go up the street to check a location where,

earlier in the week, he saw someone who resembled the defendant. TG

127-28. Breckinridge wanted to go back to the station to finish

paperwork, but Briggs insisted they look for the defendant, and

Breckinridge finally acquiesced. TG 128.

On their way to the location that Briggs wanted to check,

approximately one or two hundred feet from 337 Lake Avenue, the two

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officers approached the intersection of Lincoln Street and Litchfield Lane.

TG 129, 178. As the officers passed Litchfield Lane on their bicycles,

they noticed two men walking down an alley. TG 129. The two men

matched the description of the defendant and Bell-Rogers that they had

been given earlier in the evening. TG 129, 760-61. One of the men, who

was wearing a red sweatshirt, was later identified as the defendant. TG

129, 331, 650-51. The other man, who was wearing a gray sweatshirt,

was later identified as Bell-Rogers. TG 129, 550, 650-51, 865-66. The

defendant and Bell-Rogers approached Lincoln Street and both officers

turned their bikes around so that Briggs was closer to them. TG 130.

Briggs then issued the command, “Stop, Police!” TG 130. He did not

shout, but his tone was authoritative. TG 145. Bell-Rogers immediately

stopped, but the defendant kept on walking with his hands in front of

him, near his waist. TG 130, 145.

Because the defendant did not stop, Briggs again stated, “Stop,

Police!” but the defendant continued to walk away and his pace actually

decreased. TG 131, 146. The defendant’s shoulders were hunched or

rolled forward, and his head was down. TG 146. It appeared to

Breckinridge as though the defendant slowed to allow Briggs to get closer

to him. TG 249. Briggs then got off his bike and quickly closed the

distance between them. TG 131, 146. When Briggs was within an arm’s

length of the defendant’s left shoulder, he commanded a third time,

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“Stop, Police!” TG 131, 146-47. The defendant quickly turned toward

his left, raised both of his hands toward Briggs’s head, and fired the gun.

TG 131, 151. Briggs was wearing his bike helmet and the bullet passed

through the helmet right below the word “Police.” TG 152; St. Exh. 95.

Briggs dropped to the ground immediately. TG 131.

The defendant then took off running down an alley. TG 131.

Breckinridge fired his gun at him, but the defendant did not break stride.

TG 131-32. Instead, he kept running until Breckinridge lost sight of

him. TG 131-32. By that time, other officers had arrived in the area, so

Breckinridge went to check on Briggs. TG 133, 276.

Officer Stephen Reardon, who arrived at the intersection of Lincoln

and Litchfield in a street crime van just as the first shots were being

fired, jumped out of the van and saw the defendant in the alley. TG 276-

77. He observed the defendant look back toward him and then hunch

over and move his arms back and forth at about waist level. TG 277-78,

295-96. The defendant’s motions were consistent with those that one

would make when trying to clear a jam from a semi-automatic

handgun.11 TG 297-99. The defendant was also darting back and forth

as though he was trying to find a way out of the alley. TG 278, 297. As

Reardon was watching the defendant, he heard gunshots and was

concerned that Briggs could be in danger, so he pulled Briggs from the

11 When the police recovered the murder weapon it was jammed. TG 2064, 2232, 2317-18.

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middle of the street to a safer area. TG 278-79. After pulling Briggs out

of the line of fire, Reardon chased the defendant. TG 282.

Two other officers also saw some of the events surrounding the

shooting. Officers Emmett Macken and Simmon Beaule were driving

down Lincoln Street in the Manchester Police Department prison

transport wagon. TG 432, 443, 528. The prison transport wagon was a

large vehicle with blue lights and lettering that clearly marked it as being

affiliated with the Manchester police. TG 432. Robinson, who had been

arrested at 337 Lake Avenue for the outstanding traffic ticket, was in the

back of the wagon. TG 440 534, 646-47. As Macken approached the

intersection of Lincoln Street and Litchfield Lane, he noticed two men

who matched the descriptions of the defendant and Bell-Rogers. TG 443.

They were walking down Litchfield Lane toward the intersection with

Lincoln Street. TG 443. Both men had their hands in front of them,

either in the pockets of their hooded sweatshirts or underneath their

sweatshirts. TG 444. As Macken passed the intersection with Litchfield

Lane, he put the wagon in reverse to try to get a better view of the

suspects. TG 446. Watching in the rear-view mirror, he observed the

defendant and Bell-Rogers walk right behind the van, across Lincoln

Street, and on to Litchfield Lane. TG 446-47.

At the same time that Macken saw the two men cross behind the

police wagon, he noticed Briggs ride past the passenger side of the van

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on his bike. TG 447. In fact, as Macken put the wagon into park, he

commented to Beaule, his partner, that he almost hit Briggs. TG 449-50.

As Beaule saw Briggs approach and position himself in close proximity to

the defendant, she looked down to open the van door. TG 541-43. At

that moment, she heard gunfire and, when she looked up, she saw

Briggs fall to the ground. TG 543. She drew her gun to fire upon the

assailant, but did not take the shot because she believed that she might

hit one of the buildings in the alley. TG 544. Beaule then went over to

check on Briggs. TG 540, 545.

As Macken was getting out of the van, he heard a gunshot

immediately followed by several more shots. TG 450-51. Macken

focused his attention upon the man in the red sweatshirt, the defendant.

TG 452-53. He observed the defendant jogging and bobbing as though

he was trying to find a way out of the alley. TG 453-56. He saw the

defendant turn and raise his arm toward the officers as though he was

going to fire. TG 453-56. Macken described the defendant’s movement

as an “unmistakable” gesture that put him in fear for his own life and the

safety of the other officers. TG 453-54, 520. So, Macken took out his

own gun and fired at the defendant. TG 453, 520. Macken had never

before fired his own gun in self-defense, despite being involved in

numerous felony arrests, including arrests of individuals with firearms.

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TG 456-57. Once Macken fired, the defendant took off running. TG 459.

Macken then gave chase until he lost sight of the defendant. TG 459-60.

Robinson offered a similar account. As the wagon passed the

intersection, Robinson saw the defendant and Bell-Rogers walk behind it,

and heard Macken say to Beaule, “I think that’s them.” TG 650-52.

Macken then put the wagon into reverse and it made a beeping noise.

TG 652. When Macken stopped the wagon, the rear was angled toward

Litchfield Lane, which allowed Robinson to have a full view of Bell-Rogers

and a partial view of the defendant as they walked down Litchfield Lane.

TG 465, 653-54, 662. Robinson heard a male police officer say, “Stop,

hold it right there.” TG 654-55, 700. Within two to three seconds

Robinson heard a gunshot. TG 655. He saw the defendant “fidget” and

Bell-Rogers jump to the ground and remain still. TG 656, 698, 702.

Robinson also saw Macken fire his gun and heard other officers shooting

as well. TG 657. Eventually, Robinson was brought to the police station

where he was interviewed about his observations. TG 665.

Meanwhile, when Breckinridge checked on his partner, he noticed

that Briggs’s eyes were rolled back in his head and he was gurgling as he

breathed. TG 132. Breckinridge then went over to Bell-Rogers and

demanded to know the identity of the man in the red sweatshirt who had

shot Briggs. TG 132. Bell-Rogers said that he did not know the

assailant’s identity and that he was just trying to buy “weed” from him.

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TG 132. Soon, an ambulance arrived and Breckinridge accompanied

Briggs to the hospital. TG 133. Briggs did not regain consciousness

before he died. TG 134.

H. The Defendant’s Flight In The Aftermath Of The Shooting.

Immediately after shooting Briggs, the defendant ran from the

scene toward the apartment of his girlfriend, Jennifer Joseph, at 420

Spruce Street.12 TG 1113-15, 2047. Along the way, he threw the gun

into the backyard of Rowena Dicey’s house at 453 Central Street. TG

1336, 1343-44, 2049. Dicey found the gun the next morning and

contacted the police. TG 1343-45, 2059.

When the defendant reached Joseph’s apartment, he was out of

breath and appeared nervous. TG 1137. He was breathing so heavily

that Joseph thought he was having an asthma attack. TG 1137. At

some point, Jennifer Roman contacted him using her cell phone. TG

984, 1263-64, 1295. Because Roman had her telephone phone on

speaker mode during the call, Mary Peters was able to overhear him tell

Roman, “You’ll never see me again. I just shot a cop.” TG 985-86; TG

1264, 1266 1295. Upon hearing the defendant say that he had shot a

policeman, Roman immediately turned off the phone’s speaker mode and

12 The defendant started dating Jennifer Joseph around May 2006. TG 1120. They would see each other a few days per week and he would sleep overnight at her house once or twice per week. TG 1121.

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told Peters to mind her own business. TG 987, 1264, 1296. Roman then

spoke to the defendant and asked, “Are you f’ing stupid?” TG 1264-65.

Jennifer Joseph then took the phone from the defendant so that

she could speak with Roman. TG 1139, 1265-67, 1296. Roman told

Joseph to make sure that the defendant left Manchester because the

police were looking for him. TG 1265-67. Roman heard the defendant in

the background screaming at Joseph, “Get off the f’ing phone. You know

what I just did.” TG 1265, 1305-06.

According to Joseph,13 after she ended the call with Roman, she

asked the defendant what had happened. TG 1140. Initially, the

defendant told Joseph to leave him alone so that he could catch his

breath. TG 1140. But once he caught his breath, he told Joseph that he

was walking down an alley and a police officer called out to him. TG

1115, 1141, 1174-75. The defendant told Joseph that he got scared and

ran, and the gun accidentally went off in his pocket. TG 1115, 1141,

1174-75. The defendant told Joseph that “his brother, Twiz,” was with

13 Joseph’s version of the calls differs substantially from Roman’s account of the same interaction. Compare TG 1140 with TG 1165-67. Based upon Joseph’s own admissions, she had a substantial motive to downplay the defendant’s responsibility for the murder of Briggs. Joseph continued to maintain a boyfriend-girlfriend relationship with the defendant even after he was arrested. TG 1118-19 Even then, she hoped that they would get married. TG 1119. Roman, on the other hand, acknowledged initially lying to protect the defendant. TG 1270-71. She testified at trial that she eventually told the truth about her conversations with the defendant because the police had her phone records and she decided that she needed to move on with her life. TG 1271-74. Following Briggs’s murder, Roman had no further contact with the defendant or Bell-Rogers. TG 1274.

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him at the time. TG 1142, 1174-75. The defendant also told Joseph that

he threw the gun in the alley after it went off because he was scared and

did not want to get in trouble for having the weapon. TG 1141, 1143,

1174-75.

The defendant spent that night with Joseph. TG 1116. The next

morning he told her that he needed a ride to Boston because his

grandmother had a family emergency. TG 1116, 1145. Joseph asked

her sister, Angel Alden, to bring her and the defendant to Boston, which

Alden agreed to do. TG 1116, 1146, 1207. Before leaving Joseph’s

home, the defendant put his belongings in a duffle bag. TG 1146, 1213.

As they were preparing to depart for Boston, one of Joseph’s

friends called to tell her that the defendant was on the news because he

was wanted for shooting a police officer. TG 1147. They then left. TG

1147. On the way to Boston, the three stopped in Lawrence,

Massachusetts to try to get a new phone for the defendant. TG 1149-50,

1215-16. Joseph wanted to make sure that she would be able to keep in

touch with the defendant because he had told her that he was going to

be gone for a while. TG 1150.

Eventually, they arrived in Boston at the defendant’s

grandmother’s house. TG 1151-52, 1219. The defendant’s father met

them there and, upon arriving, entered a bedroom to speak with the

defendant alone. TG 1152, 1220. When they came out of the bedroom,

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the defendant’s grandmother asked the defendant and Joseph to give her

a ride so that she could pay her phone bill, which they agreed to do. TG

1153-54, 1221.

While the defendant’s grandmother was paying her bill, Joseph got

a call from another friend who told Joseph that the defendant was on the

news. TG 1155. Joseph then started to ask the defendant more

questions about what had happened. TG 1155-56. At first, the

defendant said that he was not guilty. TG 1156, 1181. But, then he

changed his story and repeatedly insisted that he had gotten scared

because a police officer had called out to him and he did not want to get

caught with a gun in his pocket. TG 1157, 1181.

In any event, after bringing the defendant and his grandmother

back to her apartment, Joseph and Alden headed back to New

Hampshire. TG 1161. As Joseph and Alden were driving, the defendant

called Joseph and asked her to lie for him and tell the police that he had

spent the night with her and that she had dropped him off at South

Station in Boston. TG 1161-62, 1231. He also told Joseph and Alden

that “his brother” was the person who had shot the police officer. TG

1227-28. Alden described the defendant’s demeanor as calm throughout

her interaction with him that morning and said that nothing about his

behavior betrayed that he was responsible for shooting a police officer.

TG 1214, 1228.

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I. The Search For The Defendant And His Arrest.

After Reardon and the other officers chased the defendant down

Litchfield Lane and lost track of him, they discovered the red, hooded

“South Pole” sweatshirt that he had been wearing; it had been discarded

on the porch of a house. TG 282-83, 785-86, 841-48, 1055-56. The

police tried to use the sweatshirt to track the defendant with a police

dog, but they were unsuccessful. TG 284-85, 783-88.

Meanwhile, after Beaule arrested Bell-Rogers, she noticed a black

cell phone on Litchfield Lane. TG 551. It was ringing. TG 551. Beaule

picked it up, checked the incoming number, and noticed that the caller

was Riz Black. TG 552. Riz Black, as explained earlier, was a friend of

the defendant’s, and the police later determined that the cell phone that

Black was calling belonged to the defendant. TG 1127, 1267, 2041,

2044-46, 2564, 2571-72.14

Later that night, after Shipley and Swist had gone to sleep,

members of the Manchester police department’s SWAT team stormed into

their apartment, looking for the defendant. TG 1470-72, 1745. Although

the defendant was not there, the police nevertheless took Shipley, Swist,

and Schulz to the station for questioning. TG 1472-73, 1746. All of

14 At trial, Roman testified that after she spoke to the defendant and Jennifer Joseph, she immediately called the defendant’s friend, Riz Black. TG 1267-68. She told Black that he needed to help get the defendant and Bell-Rogers out of town because one of them had shot a police officer. TG 1267-68. Riz then apparently called the defendant’s cell phone. TG 2593-97.

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them eventually were released around mid-morning. TG 1472-73; TG

1746.

Sometime between noon and 3:00 p.m., Shipley received a

telephone call from a number that she did not recognize. TG 1474-75,

1481-82, 1656, 1748.15 When Shipley answered the phone, she

recognized the defendant’s voice on the other end of the call. TG 1475.

Shipley asked him where he was and what was going on, and the

defendant told her not to worry. TG 1475, 1479. Shipley then asked

him what he had done and the defendant asked, “[Y]ou seen that?” TG

1475, 1479. She responded affirmatively and the defendant then said,

“[N]ice, huh?” TG 1475, 1479. The defendant “sounded almost like he

was proud of it.” TG 1479-80. Shipley asked the defendant what he had

been thinking and he responded, “I wasn’t. I was shook.” TG 1476,

1480. During the conversation the defendant also told Shipley, “[T]hey

got Twiz,” which was a nickname for Bell-Rogers. TG 1476, 1480.

The defendant then asked Shipley whether she had revealed any

incriminating information to the police and she told him she had not. TG

1476. She again asked him where he was and whether he was okay. TG

1476. He told her he was fine and that she should not worry about

where he was. TG 1476. He also told her that he probably would not see

15 Although the police were unable to find any records of a call between Shipley and the defendant to corroborate this exchange, witnesses offered several explanations for why the call may not have appeared in the telephone records. TG 2508-25, 2542-46, 2547-55, 2560-63.

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her again, but that he would keep in touch. TG 1476. The defendant

ended the conversation by saying, “One,” and Shipley replied, “[O]ne,” a

slang expression meaning “one life, one love.” TG 1476. Shipley did not

tell the police about this telephone conversation with the defendant until

shortly before the trial. TG 1477.

The police eventually tracked the defendant to his grandmother’s

apartment in Dorchester, Massachusetts. TG 1315. The Boston Police

Department’s SWAT team surrounded the apartment and a crisis

negotiator, Colm Lydon, placed a telephone call to the apartment, but no

one answered. TG 1315, 1317. So, Lydon used a bullhorn and called

out for the defendant, but again, there was no response. TG 1317.

Lydon then used the bullhorn and called out for the defendant’s

grandmother, Elouise Wilson. TG 1318. She responded, and Lydon told

her to pick up the telephone, which she did. TG 1318. When Lydon

asked to speak with the defendant, Wilson put the defendant on the

telephone. TG 1319.

The defendant told Lydon that he wanted to turn himself in

because he had not done anything wrong. TG 1320. He then told Lydon

that he did not want to die. TG 1321. Lydon instructed the defendant

how he could surrender peacefully. TG 1321. The defendant responded

by saying that he wanted to have a cigarette first. TG 1322. The

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defendant then opened the door and was taken into custody without

incident. TG 1323.

J. The Jury Found The Defendant Eligible To Receive The Death Penalty.

Based upon the evidence described in the preceding pages, the jury

convicted the defendant of capital murder. TG 3230. Following the

conviction, the trial continued into a second phase, the eligibility phase,

in which the jury was asked to determine whether the State had proven

the statutory aggravating factors necessary to make the defendant

eligible to receive the death penalty. TE 6. During that phase of the

trial, Detective Stacy Howe testified as the only witness. TE 16.

On the night of October 16, 2006, Howe had been investigating the

shooting at 345 Edward J. Roy Drive. TE 17. In connection with his

investigation, he attempted to obtain arrest warrants for the defendant

and Bell-Rogers on the charge of being accomplices to felony reckless

conduct with a firearm. TE 18-19. Because of the seriousness of the

crime, Howe stayed past the end of his shift and faxed the arrest warrant

applications to the on-call judge at 11:50 p.m. on Sunday, October 15,

2006. TE 20-23. The judge signed the warrants and returned them to

Manchester police department at 12:40 a.m. on October 16, 2006. TE

21. Howe immediately brought the warrants to the communications

center at the police department so that information about their existence

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could be transmitted to the police officers who were out on the streets.

TE 23.

Howe also explained to the jury that if Briggs had succeeded in

stopping the defendant on Litchfield Lane, he could have been arrested

on the charge contained in the outstanding warrant, as well as on

charges of having an unlicensed firearm and of being a felon in

possession of a firearm. TE 24-25, 31.

In addition to the evidence presented during the guilt phase of the

trial and Detective Howe’s testimony, the jury was also given a

stipulation to consider. The parties stipulated that the defendant had

previously been incarcerated on sentences totaling four years, three

months, and twenty-four days. TE 33. Both parties presented closing

arguments and the jury returned a verdict that same day finding that the

State had proven the statutory aggravating factors necessary to make the

defendant eligible to receive the death penalty. TE 94.

Specifically, the jury found that the defendant: (1) purposely

inflicted serious bodily injury that resulted in the Briggs’s death; (2)

purposely engaged in conduct that he knew would create a grave risk of

death to another and that resulted in Briggs’s death; and (3) murdered

Briggs for the purpose of avoiding or preventing a lawful arrest or

effecting an escape from lawful custody. TE 94-95. The jury did not,

however, find that the State had proven beyond a reasonable doubt that

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the defendant purposely killed Briggs. TE 94. In light of the jury’s

findings, the defendant was eligible to receive the death penalty. TE 97.

So, the trial entered a third phase, the sentencing phase. TE 97.

K. The Jury Recommended That The Defendant Be Sentenced To Death.

On November 21, 2008, the jury began to hear evidence of

aggravating and mitigating factors relevant to the issue of whether the

defendant should receive the death penalty or be sentenced to life in

prison. The State alleged fourteen non-statutory aggravating factors as

authorized by RSA 630:5, I(b) (2007), TS 8-12, and the defense alleged

twenty-eight mitigating factors, TS 15-19. In addition to the evidence

that the jury heard during the guilt and eligibility phases of the trial, the

parties presented the following additional evidence.

1. Aggravating Factors.

a. The Defendant’s Assault On, And Threat To Kill, His Own Mother.

On August 10, 1996, the Boston police were called to Dorchester

Street in South Boston after the defendant’s mother, Cheryl Kiser, made

a 911 call. TS 235-36. Kiser reported that the defendant had grabbed

her arm and pushed her down. TS 237. She further reported that he

threatened to kill her and said, “You can’t beat me, dog bitch.” TS 237-

38. The defendant was subsequently arrested and, because he was

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sixteen years old at the time, was charged as a juvenile delinquent with

two crimes: assault and battery, and threatening. TS 239. The

defendant pled guilty to the charges. TS 240-41.

b. The Defendant’s Assault On A Fellow Student And Attempt To Shoot That Student By Pulling The Trigger Of A Loaded Revolver Twice.

In December 1996, as Manuel Andrade was walking to his

homeroom at the Jeremiah E. Burke High School in Dorchester,

Massachusetts, he heard someone behind him say that a Cape Verdean

was going to get shot. TS 152-53. When Andrade, a Cape Verdean,

turned around to see who had made the comment, he saw that the

defendant was pointing a silver gun in his face. TS 153, 157. The

defendant pulled the trigger twice but the gun malfunctioned and did not

fire. TS 153-55. The defendant and Andrade then got into a fistfight

that a school security guard ended. TS 155. The school’s headmaster,

Dr. Steven Leonard, said that the incident was the only time in his six-

year tenure at the school in which one student had drawn a gun on

another and then pulled the trigger. TS 1787.

As a result of his conduct, the defendant was indicted as a

youthful offender and charged with armed assault with intent to murder,

assault and battery, possession of a firearm, and possession of

ammunition. TS 283, 288. The defendant pled guilty and was sentenced

to be committed to the Department of Youth Services until he was

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twenty-one, with a two- to three-year suspended sentence at the state

prison to follow. TS 289.

c. The Defendant’s Armed Robbery Of Tredaine Purdy With A Knife And Subsequent Stabbing And Beating Of Purdy.

On March 20, 1997, the Boston police were called to a basketball

court in Roxbury in response to a reported stabbing incident. TS 253-

54. When they arrived, the police found Tredaine Purdy with a bloody lip

and a gaping wound on his hip. TS 255. Purdy told police that he had

been walking through the athletic fields near where he lived and was

approached by four men. TS 264-65. Purdy shook hands with the men

when they approached and they asked to see a hat that Purdy was

wearing. TS 265. Purdy let one of the men look at the hat, but the man

refused to give it back. TS 265. One of the four men then punched

Purdy, and Purdy punched him back and started to run. TS 265. The

men gave chase, caught up to Purdy, knocked him to the ground, and

continued to kick and beat him. TS 265. One of the men then pulled

out a knife and stabbed Purdy three or four times before the four men

finally left. TS 266. Purdy later picked the defendant out of a photo

lineup as the man who had stabbed him. TS 270-71.

As a result, the defendant was indicted for assault and battery

with a knife, assault and battery with a shod foot, armed robbery with a

knife, and armed assault with intent to murder. TS 294. The defendant

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pled guilty to the two counts of assault and battery and to the armed

robbery charge. TS 295. He was sentenced to two to three years at the

state prison and to probation for a period of two to three years following

his release. TS 307-08.

d. The Defendant’s False Imprisonment Of Brian St. Peter By Keeping Him In A Locked Vehicle.

Gerald Briles was Brian St. Peter’s boss at a local Wendy’s

restaurant. TS 653. In addition to his work at Wendy’s, Briles also sold

drugs for a man named Mathys Morgan. TS 654, 662. On October 27,

2003, Briles asked St. Peter to give him a ride to Morgan’s home in

Manchester. TS 654. Briles needed to speak with Morgan because

Morgan had fronted him five hundred dollars’ worth of marijuana to sell,

but the marijuana was stolen, leaving Briles indebted to Morgan. TS

654.

When Briles and St. Peter arrived at Morgan’s home, the defendant

was there. TS 654. After Briles revealed that the marijuana had been

stolen, the defendant and Morgan told him that he would not be able to

leave until he paid his debt. TS 655. And, at one point, Morgan

brandished a gun, which made Briles’s heart start “racing.” TS 655.

After seeing the gun, Briles concocted a story to try to extricate

himself from the situation. He told Morgan and the defendant that he

had left his ATM card in his car, that his car was in an impound lot in

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Londonderry, and that if they would permit him to get his ATM card, he

would go to the bank and get the money that he owed Morgan. TS 656.

Morgan and the defendant apparently credited the story, for they drove

with Briles to the impound lot. TS 656. St. Peter followed them in a

separate car. TS 656. Along the way, they threatened Briles by telling

him that if he was “stupid” or made “any mistakes,” they would do

something violent to both him and St. Peter. TS 657.

When they arrived in the area of the impound lot, Briles got out of

the car and the defendant and Morgan made St. Peter get into their car

with them. TS 658. Briles, believing that the situation had gotten out of

control, then ran toward the impound lot. TS 657. Once he was out of

sight, however, he changed direction and dashed to the nearest home.

TS 657. Once there, he banged on the window and asked the residents

to call the police because he feared that someone was going to get shot or

hurt. TS 657. The residents made the call and Kimberly Bernard, a

Londonderry police officer responded. TS 724. When she arrived, Briles

was “scared [and] sh[a]ken up.” TS 724. Briles told her “that these two

guys had his buddy and they were babysitting him because he owed

them money and that if he didn’t hurry up and find his buddy they were

going to beat his ass.” TS 660, 725. Briles also described the car in

which the defendant and Morgan were traveling and told Bernard that

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the defendant and Morgan had made threats on both his life and St.

Peter’s. TS 660.

Bernard then set about looking for the car that Briles had

described. Initially, she did not see it, but then she spotted it as it pulled

out of a parking lot. TS 725. The police stopped the car and ordered its

occupants out at gunpoint. TS 726. The defendant was driving, Morgan

was in the passenger seat, and St. Peter was in the back. TS 726. The

police placed the defendant under arrest and took him into custody. TS

660, 727. On November 4, 2003, with the assistance of appointed

counsel, the defendant pled guilty to one count of false imprisonment

and received a six-month, incarcerative sentence. TS 727, 729.

e. The Defendant’s Violation Of Probation By Committing The Crime Of False Imprisonment Against Brian St. Peter.

As noted above, for his assault upon Purdy, the defendant was

sentenced to two to three years at the state prison and to probation for a

period of two to three years following his release. TS 307-08. He was

released from prison on July 29, 2000. TS 340. He then began a three-

year period of probation in Massachusetts under the supervision of a

probation officer named Mary Ann Zoulalian. TS 340. At first, he met

with Zoulalian and discussed with her his obligations as a probationer.

TS 340-63. He also told Zoulalian that he was seeking employment, but

she never saw any real evidence of that search. See, e.g., TS 362.

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On November 14, 2000, the defendant had a dispute with his

mother, Cheryl Kiser, during which he said that if he had a gun, he

would have killed her. TS 371. After the dispute, he disappeared,

prompting Zoulalian to seek and obtain a warrant for his arrest. TS 371.

The defendant was arrested on that warrant on June 6, 2001. TS 738.

Approximately one month later, in July 2001, the defendant

disappeared again. TS 747. As a result, his new probation officer, Kerri

McClellan, obtained a warrant for his arrest. TS 747. It was not until

June 2004, however, that the police finally arrested him on that warrant.

TS 644-52. And by that time, he had falsely imprisoned Brian St. Peter

in Londonderry and had served his six-month jail sentence for that

crime. TS 729, 751.

By June of 2004, the defendant was living in the Manchester area.

TS 644. For some reason, the Manchester police became aware of his

presence and discovered the outstanding warrant for a probation

violation in Suffolk County. TS 644. So, a Manchester police detective

called the Boston police and asked if the Boston police wanted the

Manchester police to take him into custody. TS 644. Sergeant Richard

Clancy, a Boston detective, took the call and asked the Manchester police

to detain the defendant, which they did. TS 644. The defendant was

then arraigned in Manchester District Court, waived extradition, and was

taken back to Boston. TS 646-52.

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Upon learning of the defendant’s arrest and return to Boston,

McClellan filed a document with the superior court in Massachusetts,

alleging several acts that constituted parole violations, including the false

imprisonment of Brian St. Peter in Londonderry. TS 752. The

defendant, again represented by counsel, acknowledged that his conduct

amounted to a violation of the terms of his probation, and he was

ordered to serve six months in jail. TS 753.

f. The Defendant’s Armed Robbery Of The El Mexicano Restaurant.

As explained in more detail earlier in the State’s brief, the

defendant and Bell-Rogers robbed the El Mexicano restaurant in

Manchester. The State offered evidence of that robbery in its case in

chief during the guilt phase of the trial. The jury was permitted to

consider all of that evidence during the sentencing phase as well. In

addition, the State offered testimony from people who were inside the

restaurant and interacted with the defendant and Bell-Rogers during the

robbery.

For example, Jose Rodriguez, the owner of the restaurant, was

working on the day of the robbery. TS 854. As he was standing at the

counter, the defendant and Bell-Rogers entered the restaurant and the

defendant asked to see a menu. TS 854. Rodriguez gave him a menu

and then went into the kitchen. TS 854. When Rodriguez turned

around, he noticed that Bell-Rogers had followed him into the kitchen

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with a gun in his hand. TS 854. Bell-Rogers then demanded that

Rodriguez “give him everything [he] had” and fired a shot between

Rodriguez’s legs. TS 854. Rodriguez complied, giving Bell-Rogers a

watch and a chain with a medal on it. TS 857. Rodriguez was not,

however, able to take off his bracelet, which prompted Bell-Rogers to

become angry and fire a shot into the air. TS 854, 857. At that point,

Rodriguez lowered his head, fearing that he was going to be shot, but the

defendant and Bell-Rogers left instead. TS 855, 857. Rodriguez then

called the police. TS 855.

Alejandro Paz, a customer, was inside the restaurant when the

defendant and Bell-Rogers entered. TS 879. While Bell-Rogers was

inside the kitchen area, firing shots and stealing from Rodriguez, the

defendant remained in the dining area. TS 881. Wielding a knife, he

demanded that Paz empty his pockets. TS 881. Paz complied and gave

the defendant a packet of cigarettes, his keys, and the three hundred

dollars that he had just been paid. TS 882. At that point, Bell-Rogers

came out of the kitchen and headed for the door. TS 882. The defendant

started to leave with Bell-Rogers, returned briefly to take Paz’s cell

phone, and then left. TS 882.

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g. The Defendant, A Convicted Felon, Possessed A Deadly Weapon During The Robbery Of The El Mexicano Restaurant.

As noted above, during the robbery of the El Mexicano restaurant,

the defendant threatened Paz with a knife. TS 881. In that connection,

he stood “very close” to Paz and made Paz feel “afraid.” TS 881, 885.

Further, by the time of the robbery, the defendant had been convicted of

the many offenses described earlier in this brief. TS 1127-28. As a

result, the State charged him with robbery and with being a felon in

possession of a firearm. TS 1074. After a seven-day trial, a jury

convicted him of both offenses. TS 1074.

h. The Defendant’s Armed Robbery Of The 7-Eleven Store In Hudson.

As explained in detail earlier in the State’s brief, the defendant and

Bell-Rogers robbed a 7-Eleven convenience store in Hudson. The State

offered evidence of that robbery in its case in chief during the guilt phase

of the trial. The evidence included testimony from the store clerk who

was working that night and video from a surveillance camera inside the

store, which showed that the defendant wielded a gun during the

robbery. TG 1415, 2724-33; TS 1083. The jury was permitted to

consider all of that evidence during the sentencing phase as well.

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i. The Defendant, A Convicted Felon, Possessed A Deadly Weapon During The Robbery Of The 7-Eleven Store In Hudson.

In addition to the evidence described above, the State elicited

testimony that, as a result of his conduct at the 7-Eleven, the defendant

was charged with armed robbery, conspiracy to commit robbery, and

being a felon in possession of a handgun. TS 1072. After a five-day trial,

a jury convicted him on all three charges. TS 1072; see also TS 1127

(stipulation regarding the defendant’s prior arrests and convictions).

j. The Defendant Conspired With Bell-Rogers To Threaten People At 345 Edward J. Roy Drive And Then Acted In Concert With And Aided Bell-Rogers, Who Discharged A Firearm Outside The Residence.

As explained in detail earlier in the State’s brief, the defendant and

Bell-Rogers conspired to fire shots into an apartment at 345 Edward J.

Roy Drive in Manchester. Their apparent target was Bruce Edwards.

The State offered evidence of the conspiracy and the shooting in its case

in chief during the guilt phase of the trial. The jury was permitted to

consider all of that evidence during the sentencing phase as well. In

addition, the State offered testimony from people who had interacted

with the defendant and Bell-Rogers before the shooting or who were

inside the apartment at the time of the shooting.

For example, Dale Swist lived in the apartment with Edwards and

with his father, Frank Swist. TS 887. Angela Swist, Dale’s sister, had

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been living there too, along with Kyarra, but they moved out of the

apartment after having some kind of a dispute with Edwards. TS 888.

One night, Dale and Edwards went to Club Liquid in Manchester

with an acquaintance named Susan. TS 889. The defendant and Bell-

Rogers also were there. TS 821-22. When the defendant and Bell-Rogers

saw Edwards, they began to talk about how he allegedly had beaten

Kyarra a few nights earlier. TS 825. At some point, Edwards broke away

from Dale and Susan in order to speak with the DJ at the club. TS 890.

The defendant and Bell-Rogers took that opportunity to attack him.

They pulled their hoods over their heads and followed him toward the

stage where the DJ was working. TS 825. Then a fight broke out. TS

826. Eventually, some bouncers ended the fight and the defendant and

Bell-Rogers left the club. TS 826, 890. Edwards told Dale and Susan

that he had been jumped. TS 891.

Later that evening, after they returned to the apartment on Edward

J. Roy Drive, Dale asked Edwards to call Angela so that he could speak

with her about bringing Kyarra back to the apartment. TS 892. During

the call, the conversation turned hostile and Dale overheard someone in

the background say, “You’re dead anyways.” TS 832, 893. The

conversation concerned Dale, so he got a baseball bat and sat on the

porch with Susan. TS 893.

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Meanwhile, back at the Central Street apartment, the defendant,

Bell-Rogers, and Angela were angry. TS 776. While they discussed their

next move, the defendant was holding a gun. TS 833-34. At some

point, he pulled Kyarra aside, told her that he had fought with Edwards

because Edwards did not care about her, and asked her what she

wanted him to do with her father. TS 776-78. She said that she did not

care. TS 778. Although the defendant did not expressly say so, Kyarra

believed that he was going to kill Edwards and saw him tuck the gun into

his pants. TS 780, 789.

The defendant and Bell-Rogers then asked Paul Birely, who was at

the Central Street apartment, go to the Edward J. Roy Drive apartment

complex to try to determine whether Edwards was there. TS 786, 837.

Birely agreed, drove past the complex, saw some people sitting on the

balcony of the apartment in which Dale and Edwards lived, and then

called either the defendant or Bell-Rogers to say “that they were sitting

on the balcony.” TS 787, 838.

Soon, Dale, who still was sitting on the balcony with Susan, heard

gunshots. TS 894. He looked down toward a nearby parking lot and saw

a tall, thin, black man holding his hand in the air as though he was

firing a gun. TS 894. Dale could not, however, see a gun. TS 894. In

order to frighten the shooter away, Dale banged his baseball bat on the

balcony’s railing so that it made a noise resembling the firing of a gun.

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TS 896. He then saw the two men run out of the parking lot and toward

the road. TS 896. Dale later learned that Bell-Rogers was the shooter

and that one of the bullets that Bell-Rogers fired actually had struck the

railing of the balcony where he had been sitting with Susan. TS 898.

Frank Swist went to bed at approximately 11:30 that night. TS

887, 904. At some point, he heard Dale and Edwards enter the

apartment with Susan. TS 904. Thereafter, he heard gunshots and felt

something rattle his bed. TS 904. “It felt like [he] was laying in a

vibrator bed [sic].” TS 905. He later learned that a bullet actually had

gone into his mattress. TS 795, 907. Upon hearing the shots and feeling

his bed vibrate, Frank crawled down the hall, where he saw Edwards and

Dale running outside to go after the shooter. TS 897, 904. He followed

them outside, and the police arrived within minutes. TS 905.

Henry Aliberti, who rented an apartment in the same complex on

Edward J. Roy Drive, happened to be visiting his family in Maine on the

night of the shooting. TS 846. When he returned home, he found a

bullet hole in one of his walls. TS 848. He later learned that a bullet

had entered his apartment, ricocheted off the steel frame of a futon upon

which he often sat, and went into the floor. TS 848, 850; TG 2252.

As a result of his involvement in the shooting at Edward J. Roy

Drive, the defendant was charged with reckless conduct, criminal

threatening, and being a felon in possession of a handgun. TS 1067.

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After an eight-day trial, a jury convicted him of criminal threatening and

reckless conduct, but acquitted him of being a felon in possession of a

handgun. TS 1067-68.

k. The Defendant, A Convicted Felon, Possessed

A Deadly Weapon When He Committed The Murder Of Officer Michael Briggs.

As explained earlier, the defendant did not contest his status as a

convicted felon at trial, and the parties offered a stipulation, detailing his

arrests and convictions for the crimes described herein. TS 1127.

l. The Defendant Engaged In Reckless Conduct And Placed Others In Danger Of Serious Bodily Injury By The Manner In Which He Disposed Of The Firearm That He Used To Kill Officer Briggs.

In the immediate aftermath of the shooting, the police took steps to

find both the defendant and the gun that he had used to kill Briggs. For

example, police officers traced the route that they believed the defendant

took as he fled. TG 2047-49. In addition, because the police had

information that the defendant may have thrown the gun as he ran away,

they also searched the roofs, gutters, yards, and trash of the buildings

along that route, looking for the gun. TG 2056-57. Despite those efforts,

they were not able to find the gun. TG 2060.

Rowena Dicey lived on the first floor at 453 Central Street in

Manchester. TG 1336. On October 17, 2006, she was watching

television and looking for her cat, which had not come home the night

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before. TG 1343. As she peered out her window and into her garden,

she saw a silver object that she thought was the nozzle for a garden hose.

TG 1344. Initially, Dicey was unconcerned about the silver object but, as

she sat watching television, its presence began to bother her because her

neighbor’s children sometimes entered the garden. TG 1345-46. So, she

went back to her window for a second look. TG 1345. Upon seeing the

object a second time, Dicey became concerned that it might be a gun.

TG 1345. Accordingly, she went to the door of her apartment and called

out to a cameraman who happened to be working in nearby Harriman

Park, where there was a playground and basketball court for children.

TG 1340, 1345. She told him that she thought she had seen a gun in

her back yard and that she needed a police officer to come to her

apartment. TG 1345. Soon, some officers arrived. TG 1345.

Upon arriving, the police discovered that the object was, in fact, a

gun and they took photographs of it. TG 2063. They then seized the gun

and inspected it, at which time they discovered that it was jammed, the

result of two live rounds trying to enter the chamber at the same time.

TG 2064, 2318. The State’s firearm expert, Marc Dupre, opined that the

gun likely had jammed because of something that the shooter did or

because it had been dropped. TG 2344-47. After Dupre cleared the jam,

he was able to fire the gun. TG 2336.

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m. The Defendant’s Future Dangerousness.

On the issue of the defendant’s future dangerousness, the jury

heard evidence concerning the violent acts that he perpetrated against

others, as described in elsewhere in this brief. In addition, in order to

demonstrate that the defendant would remain a threat to others, even if

he were incarcerated, the State presented evidence of his conduct while

in prison.16

For example, Thomas Black, who worked in a Massachusetts

youth detention facility where the defendant had been incarcerated,

described an incident during which the defendant approached another

resident from behind and gestured as though he was pulling the trigger

of a gun. TS 415. During another incident, the defendant pretended to

stab a resident in the neck with a pencil. TS 416. During a third

incident, the defendant and another resident pretended to stab each

other with forks. TS 419. In a fourth incident, the defendant threatened

a teacher inside the facility. TS 420. And during a fifth incident, he

actually fought with another resident. TS 422. Based upon the

defendant’s disciplinary record, Black concluded that he had a “large

amount” of infractions when compared to other juveniles. TS 427, 439.

The defendant’s caseworker concluded that the defendant was “very

16 The jury found that the aggravator concerning future dangerousness was “not proven.” DBA D-6.

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attached to [a] streetwise gang-like mentality, which is all he knows and

[the] only thing he can understand to best solve his problems.” TS 430.

Similarly, Caroline Sawyer, the director of records management for

the Massachusetts Department of Corrections, confirmed that her

records showed that the defendant was put in a special management

unit or administrative segregation because of his behavior. TS 519, 529.

Douglas Adams, a correctional officer at a prison in Massachusetts,

recalled that he had to prepare a disciplinary report regarding the

defendant because the defendant had not followed prison rules. TS 579-

81. Adams regarded the defendant as a “program failure” who seemed

disinterested in keeping the correctional officers “off his back.” TS 584.

Likewise, Shaun Cremin, another correctional officer at the

Concord prison, recalled that the defendant had been placed in isolation

because he fought with another inmate. TS 596. At some point, when

Cremin informed the defendant that he would be returning to the general

prison population, the defendant became defiant and swore at him. TS

597. When Cremin told the defendant that he would be preparing a

disciplinary report because of his defiance, the defendant replied that the

report did not mean “shit.” T 597. Cremin viewed the incident as

significant. TS 598.

Wayne Hancock, a correctional officer at a prison in Shirley,

Massachusetts, also had encounters with the defendant. TS 615-17.

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He explained that the defendant had been listed in a “problematic log

book” at the prison on account of his behavior. TS 617. He also

explained various infractions of prison rules that the defendant had

committed, TS 620-22, and recalled an incident during which the

defendant refused to stand for a head count, TS 626. When Hancock

told him that he was required to stand, the defendant replied, “[F]uck

you. I ain’t standing for your fucking count, and that’s the way it is.” TS

626.

Jarrod Gero, who worked as a correctional officer at a jail in

Boston, testified that he interviewed the defendant about his gang

affiliation. TS 2426. The defendant openly acknowledged his

membership in a gang called the Orchard Park Trailblazers, and Gero

concluded that the defendant was an active and significant member of

that group. TS 2426, 2428. Gero also explained that the defendant was

a leader inside the jail and that he always knew when the defendant was

in his unit. TS 2429.

Finally, Richard Gerry, the warden at the state prison in New

Hampshire, described the conditions under which the defendant would

be incarcerated if he were sentenced to a term of life imprisonment.

Gerry explained that the prison operates under an inmate classification

system. TS 913-17. The inmate’s classification level determines the

extent of the privileges that he is allowed inside the prison. TS 913. For

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example, an inmate in the top level of the classification system, which is

where the defendant would begin his term of incarceration, would live

alone in a cell and be permitted to leave the cell for one hour each day.

TS 919-20. Over time, the inmate could earn more privileges within his

classification level or work his way at least part way down through the

various classification levels to obtain still other privileges and more

freedom within the prison walls. TS 920-43.

Gerry also explained that the defendant was being housed in N-

tier, a part of the prison’s special housing. TS 952. He was the only

inmate on the N-tier, which consisted of four cells that were monitored

by a video camera at all times. TS 952, 954. If the defendant were given

a life sentence, Gerry said, he would be moved into a regular, maximum-

security cell. TS 954. Because the defendant had been kept under such

isolated and restricted conditions on the N-tier, Gerry was unable to

predict the danger, if any, that the defendant might pose to guards or

other inmates if he ultimately were placed in circumstances less

restrictive than those of the N-tier. TS 956. Gerry did, however, note

that even during his time on the N-tier, the defendant had been guilty of

two minor disciplinary infractions for failing to remove his headphones

and for failing to cooperate with a strip search. TS 1050-51. Gerry also

explained that prison officials are required to confront problems involving

escape attempts, weapons, violence, and gangs. TS 959, 961, 964.

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n. The Defendant’s Actions Affected The Victim’s Family.

Members of Briggs’s family described how his loss had affected

their lives individually and as a family. For example, Laura Briggs, his

wife, recalled how she first met Officer Briggs when he was in the

Marines, how they continued their relationship until he was discharged,

how he served as a correctional officer and as a police officer over the

years, and how he worked extra hours to provide for his family. TS 113-

127. She also described the time when the couple bought their first

home. TS 125.

Laura Briggs recalled the night she found out that her husband

had been shot. That night, she woke up at the time when he usually

returned from his shift and realized that he was not there. TS 104. She

assumed that he had been busy. TS 104. Approximately an hour later,

however, she heard members of the Concord Police Department knocking

on her door. TS 104. When she opened the door, she could tell by the

look on the officers’ faces that “things weren’t good.” TS 105. They told

her that there had been an accident and that she needed to go to the

hospital. TS 105. The officers then drove her to Manchester. TS 107.

Once at the hospital, she went to the room where Briggs was being

treated. TS 108-09. He was not conscious and his hands were cold. TS

108-09. She tried to communicate with him but it “just didn’t feel like he

was there at all.” TS 109. When her two sons, Brian and Mitchell,

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arrived at the hospital to see their father, they looked “stunned, shocked,

[and] confused.” TS 110. Later, Laura had to make the difficult decision

to have her husband taken off life support. TS 110-11.

Laura characterized the days leading up to the funeral and

memorial service as “hard” and said that her family was not able to enjoy

any sense of privacy at the time. TS 113. For Briggs’s family, Officer

Briggs’s absence has meant that he is not there to play with his children

or to coach their sports teams, as he used to do. TS 131, 135, 138. He

is not present for their school functions or to participate in parent-

teacher conferences. TS 136-37. In short, there “is nothing that’s the

same. It’s all different.” TS 130.

Briggs’s younger sister, Melissa, discussed their shared childhood

and his role within their family. With respect to his role in their family,

she described him as “supportive, protective, [and] funny,” and she said

that, from a very young age, he “would do anything for [the family],

anything.” TS 672, 673, 680. She also characterized him as the “buffer”

in the family who “made sure everything was going to be okay.” TS 672.

Briggs’s two sons, Brian and Mitchell, “meant the world to him” and he

always wanted to spend time with them. TS 678, 680. Melissa said that

what she will “miss the most” in Briggs’s absence is watching him spend

time with the two boys. TS 678, 691. She also will miss his presence at

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family gatherings, which are “emotional” and “just not the same” without

him. TS 682.

With respect to their shared childhood, Melissa remembered being

very close to her brother as they were growing up, going fishing, climbing

trees, and building tree houses. TS 673-74. They remained close as

they grew older, and continued to go fishing together, especially during

large family vacations to Maine. TS 675, 686.

On the day that Briggs was killed, Melissa awoke to the sound of

father banging on her window. TS 688. He told her that Briggs had been

injured in an accident. TS 688. He further told Melissa that Laura

Briggs had just called and that she should go to the hospital quickly. TS

689. So, Melissa and her mother got into the car and drove to the

hospital. TS 689. Upon entering, Melissa saw Laura and “could tell just

by looking at her, it wasn’t good.” TS 689. They went into the

emergency room to see Briggs. TS 689. His body was cold and he was

unresponsive. TS 689, 690. Nevertheless, the Briggs family spent

almost all of their time at the hospital with him. TS 689-90. “It was

extremely painful and difficult.” TS 690. And although Briggs never

regained consciousness, the family said their “goodbyes” and believed

that they “saw tears from his eyes” a few times. TS 691.

Mary Ann and Leland Briggs, Officer Briggs’s mother and father,

also described his role within their “very close family” and his

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upbringing. TS 1104, 1111. He was their only son, and enjoyed

hunting, fishing, and other sports. TS 1102. “He loved his parents and

he loved his sisters,” and he “enjoyed spending a lot of time with them.”

TS 1104. As a young man, he followed in his father’s footsteps, working

on a nearby farm, joining the armed forces, and eventually becoming a

police officer. TS 1116, 1118.

Even after he entered the Marines, Briggs remained in close

contact with his family by writing letters and placing telephone calls to

them. TS 1105. Similarly, after he left the Marines and began a family

of his own with Laura, he still stopped by to visit his parents. TS 1106,

1121. With respect to his own, immediate family, he was a “great

father,” who “loved to take . . . part [in] bringing his children up.” TS

1106, 1122.

After Briggs’s death, life for the family changed. The family no

longer took its annual summer trip to a beach in Maine because such

trips were filled with memories of Officer Briggs, making a vacation on

the Maine coast too “difficult” for everyone. TS 1108. Mary Ann said

that her son’s death affected her “every single day,” and that she missed

seeing him come through her door with his two children, speaking with

him in person or by telephone, and having him at family gatherings. TS

1109, 1112, 1114. Likewise, Leland said that his son’s absence from

family life was “hard,” and that he missed being able to socialize with his

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son, speak with him, and participate in father-son activities with him.

TS 1124-25. Briggs’s death also affected Leland’s health, causing him to

have heart problems and difficulty sleeping. TS 1125-26.

2. Mitigating Factors.

The defendant’s mitigating evidence falls into four broad

categories.17 TS 87. This statement of facts will address that evidence

by reference to those categories.

a. Evidence Regarding Defendant’s Family And Childhood.

The defendant’s mother was Cheryl Kiser, the daughter of Ira and

Rosetta Kiser. T 1163, 1626. Ira and Rosetta also had a son, Darryl

Kiser. TS 1623, 1627. Ira consumed excessive amounts of alcohol and

he was abusive toward Rosetta, so she eventually separated from him.

TS 1289-90, 1318, 1626-27. After the separation, Rosetta, Cheryl, and

Darryl moved to Boston. TS 1627. There, Rosetta had a sexual

relationship with a man named Aaron Weathers. TS 1632-34. That

relationship resulted in her giving birth to another son, Aaron Michael

Kiser (“Big Mike”). TS 1633. Shortly after the birth, however, Weathers

was killed by his stepfather. TS 1634. Some time later, Rosetta began a

relationship with Lucious Addison and, in 1971, the two had a son,

17 The jury found that sixteen out of twenty-eight of the mitigators had been proven. DBA D7-D12.

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Lamont Lushan Addison (“Shan”). TS 1634-1635, 2139-40. Once

Rosetta’s divorce from Ira was finalized, she married Lucious, and they

lived with the four children in an apartment in the Orchard Park projects

in Roxbury, Massachusetts. TS 1632, 1635, 2140, 2143.

When Cheryl was about four years old, she began to display some

behavior problems, which included lashing out, throwing things, and

banging her head against the wall. TS 1628-29. On the

recommendation of officials at Cheryl’s school, Rosetta brought her to a

hospital in Boston for psychological testing and then to a special school

for children with learning and behavioral problems. TS 1630. Cheryl’s

problems did not subside, however, and she expressed a desire to hurt

herself. TS 1631.

In 1977, Rosetta and Lucious moved the family out of the projects

and into a home in Brockton. TS 1635, 2143, 2151. The home was in a

quiet neighborhood where “there really wasn’t that much trouble.” TS

1363. Darryl and Big Mike adjusted to the move; Cheryl did not. TS

1636. She missed her friends in Boston and believed that Roxbury did

not provide enough excitement. TS 1636. So, she often would return to

Boston, sometimes without telling Rosetta and sometimes when she was

supposed to be in school. TS 1636-37. Over time, it became

commonplace for her to run away from home, and she was placed into

another school for those with mental or behavioral issues. TS 1638,

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2148, 2153. Rosetta never bothered to call the police or to try to find

Cheryl because she knew that Cheryl would stay with acquaintances

named Delores Sims or Helen Davis in the Orchard Park projects. TS

1325, 1639-40. Davis and Sims would consume alcohol with Cheryl

and, although Rosetta did not approve of that practice, she was content

at least to know where Cheryl was. TS 1297-98, 1641-42.

Cheryl’s behavior did not improve as time passed. She continued

to consume alcohol to excess, had been the subject of criminal charges

for fighting, and generally displayed chaotic, impulsive, aggressive, and

self-destructive behavior. TS 1268, 1270, 1652, 1654. It was during this

period that Cheryl met the defendant’s father, Michael Wilson. TS 1164.

When the two got together, they would drink alcohol and smoke

marijuana. TS 1165. They would also stay together at Davis’s

apartment. TS 1143, 1650-52.

By late 1979, Cheryl was pregnant with the defendant. TS 1175.

She continued to consume alcohol and drugs during her pregnancy, even

though Rosetta encouraged her not to do so. TS 1176-77, 1300-01,

1655; DBA F10. Further, although she did attend some prenatal care

visits at a local clinic, her attendance was “sporadic” and she often did

not keep her appointments. DBA F10. Finally, in late March 1980, she

gave birth to the defendant. DBA F10. The birth itself was considered

“normal,” though his size was “described as small . . . apparently due to

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Cheryl’s poor nutrition and failure to take her iron pills regularly during

the pregnancy.” DBA F10.

In light of Cheryl’s behavioral issues and apparent failure to

provide good prenatal care for the defendant, a concerned social worker

filed a petition seeking to limit Cheryl’s custody over the new baby. DBA

F10. As a result of the petition, the defendant remained in the hospital

for approximately one week while the issue of his immediate custody was

sorted out in a Massachusetts court. TS 1661-65; DBA F11. The court

decided to award legal custody of the defendant to the Department of

Public Welfare and temporary physical custody to Rosetta and Lucious,

on the condition that the defendant not be left alone with Cheryl. DBA

F11; TS 1665.

After he left the hospital, the defendant spent a week with Rosetta

at the home in Brockton. TS 1667. Thereafter, he continued to live in

the Brockton home, but Rosetta’s aunt or another relative took care of

him during the day. TS 1668; DBA F11. A social worker reported that

the defendant “seemed to do well” in Rosetta’s care and that she brought

him for medical visits and immunizations. DBA F11. The social worker

also reported that he was “in good health, [and] seem[ed] happy and well

cared for.” DBA F11.

When Rosetta’s aunt no longer was able to take care of the

defendant, Rosetta brought him to the Word of God Christian Academy, a

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daycare and kindergarten just down the street from where she worked.

TS 1673-74. As time passed, and although Cheryl was not supposed to

be alone with the defendant, Rosetta allowed her to spend time with him,

believing that it was in the defendant’s “best interest” to be with his

mother. TS 1669. Further, there was evidence that not all of these visits

were supervised and that the defendant was left alone in Cheryl’s care or

in Michael Wilson’s care from time to time. TS 1189, 1191, 1195, 1671-

72. On those occasions, and at a young age, the defendant was exposed

to drugs or alcohol because both Cheryl and Michael Wilson consumed

those substances or were under their influence while in his presence. TS

1197, 1201, 1852; but see TS 1301 (Delores Sims testified that she

would not drink alcohol with Cheryl when Cheryl brought the defendant

to her apartment in Orchard Park). In fact, Cheryl would bring the

defendant back to the Orchard Park projects where she continued to

engage in the same types of ill-advised behaviors that she had engaged in

before and during the pregnancy, TS 1187-89, 1191, 1222, 1278, 1324,

and Michael Wilson recalled a time when the defendant heard him trying

to sell marijuana, TS 1195, 1815. Michael Wilson also acknowledged

that he consumed other drugs and spent time in jail as a result. TS

1227; see TS 1492 (Darryl Kiser’s testimony about Michael Wilson’s drug

use).

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Against this backdrop, the relationship between Cheryl and

Michael Wilson was beginning to fall apart. Although they had two more

children together, Shala and Kamare, the couple often had verbal

disputes and the hostility between them turned into physical aggression.

TS 1204, 1299. During one argument, Michael Wilson told Cheryl that

because she acted like “trash,” he was going to treat her like trash. TS

1206. He then threw her into a Dumpster. TS 1206. She responded by

throwing bricks and bottles at him. TS 1206. The couple finally

separated in 1986 or 1987. TS 1201.

Circumstances at the home in Brockton also deteriorated over

time. Lucious began to consume excessive amounts of drugs and

alcohol, and sometimes he would disappear for days to “party.” TS 1330-

31, 1409, 1420-21, 1681. Further, he and Rosetta began to have more

and more disagreements, and their disagreements also turned violent.

TS 1407, 1413, 1471, 1680, 1682. During one argument, Lucious

picked up a coffee table and shattered it. TS 1408, 1682. During

another, he pointed a gun at Rosetta. TS 1416, 1477, 1688, 2171. They

finally separated in 1984. TS 2170.

In addition to the problems between Lucious and Rosetta, several

of Cheryl’s siblings, who lived in the Brockton home and sometimes

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supervised the defendant, began to consume drugs.18 TS 1440. For

example, Big Mike smoked crack. TS 1520. Similarly, Darryl became

involved with drugs and even started to steal things, including checks

from his own mother.19 TS 1429, 1478, 1484, 1678, 1708, 1728.

Sometimes, the police came to the home to look for Darryl. TS 1485.

They even barged into the house with a warrant and flashlights one

night. TS 1430.

Shortly after Lucious and Rosetta separated, Rosetta’s mother

became sick and Rosetta needed to return to North Carolina to be with

her. TS 1691. So, she sent the defendant and Shan to live with Lucious,

who then was in Melrose, Massachusetts. TS 1691, 2175. Shan was

about thirteen at the time; the defendant was almost five. TS 1420-21.

The living conditions in Melrose were the subject of some conflicting

testimony at trial. Lucious painted a positive picture, saying that he took

the boys to parks, museums, and the aquarium. TS 2177. Shan said

that Lucious consumed so much alcohol and so many drugs that an

aunt ended up moving into Lucious’s apartment to care for the children.

TS 1420-21.

In any event, what was not disputed was that during his time in

Melrose, the defendant showed signs of difficulty in school. TS 2178. In

18 Shan, however, did not experience these problems and seemed to be a “perfect kid.” TS 1209. 19 Darryl did eventually overcome his drug problems. TS 1336.

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fact, sometimes Lucious had to pick him up from school because school

officials felt that his behavior was unfairly disruptive to the other

students. TS 2178; see also TS 2194 (Lucious went to the school to meet

with officials to discuss the defendant’s difficulties). Upon a

recommendation from officials at the defendant’s school, Lucious asked

the school district to evaluate the defendant to see if he was eligible for

special services. TS 2180. The district did the evaluation, concluded

that the defendant was eligible for special services, and developed an

individualized educational plan. TS 2181.

By the end of that school year, however, Rosetta had returned from

North Carolina and the defendant and Shan returned to Brockton to live

with her. TS 1420-22. Despite the problems going on in the home in

Brockton, described earlier, and the defendant’s difficulties in school in

Melrose, Rosetta still attempted to raise him well, to teach him the value

of work by giving him an allowance for doing chores, to help him with his

homework as he got older, and to teach him right from wrong. TS 1438,

1495, 1500, 1707, 1754, 1758. In fact, one neighborhood child who

used to play with the defendant considered Rosetta to be a firm

disciplinarian. TS 1381. Indeed, Rosetta remarked that the defendant

did not act out as much in her presence. TS 1712. Rosetta also brought

the defendant to church with her and took him on family vacations to the

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Statue of Liberty, Washington, D.C., and Disney World. TS 1453, 1723,

1736.

Rosetta’s efforts notwithstanding, the defendant continued to

experience problems in school after his return to Brockton. At age five or

six, he would throw temper tantrums that sometimes lasted twenty

minutes. TS 1701. Further, he demonstrated non-compliant behaviors,

had a short attention span, and appeared to have a problem with

authority figures. TS 1699, 2124. So, school officials convened some

meetings involving the defendant’s teacher, a psychologist, a psychiatrist,

and a social worker, after which it was recommended that the defendant

be placed in a different school where there were resources or programs

better suited to his needs. TS 1699-1700. Rosetta agreed and took him

there. TS 1700.

The new school that the defendant attended had a special

classroom called a city resource room. TS 1702. A city resource room

usually had about six to ten students “who were found not to be able to

function in a normal classroom setting.” TS 1829. Despite the new

setting, the defendant’s behavioral issues persisted. TS 1716. For

example, at age nine, he would have tantrums and throw things. TS

1717. His anger or frustration came in “waves” and sometimes his

tantrums would last up to an hour. TS 1716.

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In an effort to improve the defendant’s behavior, Rosetta sought

mental health counseling for him at the Goddard Medical Center in

Brockton. TS 1714. Cheryl attended some of the counseling sessions at

Goodard as well, although with her, “nothing was consistent” because

she was in and out of the home, fighting, and abusing alcohol and drugs.

TS 1536, 1717, 1720. Further complicating matters, Rosetta stopped

bringing the defendant to Goddard after just one summer. TS 1720. So,

the formal counseling sessions ended abruptly and after a relatively

short period.

During this time, the defendant continued to see and to interact

with Cheryl from time to time. Those interactions were the subject of

conflicting testimony. On one hand, some witnesses claimed that Cheryl

was physically abusive toward the defendant and that she would strike

his head with her hand. See, e.g., TS 1373, 1512, 1523. Other

witnesses, however, never saw Cheryl strike the defendant. See, e.g., TS

1494, 1747.

In addition, the defendant also began to spend his summers with

Robert and Eloise Wilson. TS 1862. Robert and Eloise, were, by all

accounts, very good caregivers and role models for the defendant. See,

e.g., TS 1228-29, 1284, 1342, 1495, 1804-05. In fact, Robert and Eloise

raised both Kamare and Shala, Cheryl’s other two children, and they

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both had largely positive childhoods and became successful adults.20

See, e.g., TS 1804, 1867.

In any event, when the defendant was in the Wilsons’ care, they

would allow him to attend a summer camp with one of their grandsons,

Mario Wilson. TS 1862. Throughout each summer, the Wilsons

generally, but especially Robert, would work with the defendant to

improve his behavior and even his personal hygiene. TS 1864-65. And

although the defendant did improve after he spent time with the Wilsons,

he would revert to poor behavior and practices once he left at the end of

the summer. TS 1866.

By the time the defendant reached middle school, his teacher,

Martin Rudenstein, found him to be “well-liked in the classroom,” to have

a “great smile,” and to have a “good personality.” TS 1835. Rudenstein

acknowledged that he sometimes had to keep the defendant after school

as a punishment for something that he had done, but Rudenstein

considered the defendant to be “pretty easy to reach” and believed that

he did well in the structured setting of his classroom. TS 1839; but see

TS 1724 (in middle school the defendant had good days and bad days,

according to Rosetta). Rudenstein also recalled that Rosetta always

20 Cheryl abandoned Kamare and Shala when they were very young. TS 1704. A friend brought the two children to Boston City Hospital, where the medical stuff discovered that Shala had severe diaper rash and that both children showed signs of neglect. TS 1704. As a result, state officials placed the two children in foster care, TS 1704, and the Wilsons eventually obtained custody of them at some point thereafter. TS 1706.

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returned his calls if he needed to speak with her about the defendant.

TS 1841.

When the defendant was fourteen years old, Rosetta lost her job.

TS 1727, 1730-31. So, she decided to move to North Carolina, where she

was able to find another. TS 1731, 1733. She and the defendant spent

one year there together, during which the defendant attended a public

school. TS 1734. During the year, Rosetta noticed a change in the way

that the defendant spoke and behaved—and it was not positive. TS

1737-38, 1871. She no longer felt that she was able to control him. TS

1738. So, she spoke with the Wilsons and asked if the defendant could

return to live with them. TS 1738. They agreed. TS 1807.

The Wilsons treated the defendant well. TS 1810. Robert tried to

instill in the defendant the need to be respectful, to get an education,

and to do the “right thing.” TS 1811. If Robert found out that the

defendant was not in school, he would become “highly upset” and go to

the school to find out where the defendant was. TS 1813. He would

spend “hours” speaking with the defendant about making the correct

decisions in life. TS 1814. And apparently, the defendant was listening,

for he told Shala that he was going “wisen up and kind of think about

what [he was] doing with [his] life.” TS 1815. He knew that many of his

friends had been shot or imprisoned, and he wanted to avoid that same

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fate. TS 1815. But the defendant did not do so. Instead, he engaged in

the violent behaviors described earlier in this brief.

b. Evidence Regarding The Defendant’s Mental Capacity.

The defense retained Dr. Benjamin Presskreischer, an expert in

clinical psychology, neuropsychology, and psychological assessment, to

perform a psychological evaluation of the defendant.21 TS 1970-72. To

accomplish that task, Presskreischer interviewed the defendant, gave

him various psychological tests, and reviewed certain records relating to

the defendant and his family. TS 1972-76. Presskreischer also reviewed

the results of several types of brain scans, all of which showed normal

brain activity. TS 2101-06.

During his interviews with the defendant, Presskreischer found

him to be cooperative, able to attend to the testing, engaged in the

process, and motivated, although slightly anxious. TS 1977.

Presskreischer’s testing revealed that the defendant had an average IQ.

TS 1974. In addition, he had average abilities in the areas of spelling

and reading, but performed math at a sixth grade level. TS 1984. The

defendant’s memory was “functioning well” and he did not have

“problems in either auditory or visual processing.” TS 1985. But

Presskreischer did believe that the defendant had some impairment in

21 One alleged mitigating factor was that the “defendant suffers from impaired brain function.” DBA D9. The jury found that factor to be “not proven.” DBA D9.

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the frontal cortex of his brain, resulting in deficits in the areas of

cognitive flexibility and impulse control. TS 1990-2025, 2028.

Presskreischer attributed these deficits to the defendant’s exposure

to alcohol during Cheryl’s pregnancy, to his “maltreatment as a child,”

and to his “[p]ossible exposure to fighting” or other stressful events. TS

2029, 2058. Presskreischer gave particular attention to the defendant’s

exposure to alcohol during his mother’s pregnancy. Such exposure, he

said, was known to cause “fetal alcohol spectrum disorder,” which is a

set of adverse effects on “the fetus and . . . on the brain and brain

development.” TS 1046, 2045. Presskreischer opined that some of the

defendant’s behaviors—difficulty controlling aggression, “difficulty in the

social world,” difficulty adapting and controlling his behavior, and

difficulty with impulse control—were consistent with fetal alcohol

spectrum disorder. TS 2049. Presskreischer acknowledged, however,

that prenatal exposure to alcohol did not cause the defendant’s criminal

behavior. TS 2065.

In rebuttal, the State called Dr. William Barr, the chief of

neuropsychology at New York University’s Langone Medical Center. TS

2236. Like Presskreischer, Barr interviewed the defendant, administered

tests to him, and reviewed records relating to him and his family. TS

2243-45.

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Barr did not agree with Presskreischer’s conclusions. For one

thing, Barr did not believe that the defendant met the criteria for a

diagnosis of fetal alcohol spectrum disorder. TS 2251. More specifically,

Barr did not notice anything the defendant’s records to suggest that he

suffered abnormal neurodevelopment in the first four years of his life. TS

2249. Barr further noted that the defendant did not display any of the

physical characteristics or motor skills deficits typically associated with

fetal alcohol spectrum disorder. TS 2250-51. In fact, to the contrary,

Barr said that the defendant appeared to have been a good athlete. TS

2251.

When Barr met with the defendant, he found him to be “very

attentive,” “very reflective,” responsive, and cooperative. TS 2254-56,

2262. Barr considered the defendant’s memory to be “pretty good,” and

found that he was an assertive person, making clear when he wanted to

speak with his attorneys and insisting that an interview had “better be

done by middle of the afternoon because he was interested in a

particular football game involving the Alabama Crimson Tide.” TS 2255,

2258.

Based upon the results of several tests, Barr concluded that “there

was no evidence of any of this significant frontal lobe impairment that

Dr. Presskreischer had written about in his report.” TS 2273. In

support of his position, Barr pointed out that the defendant scored in the

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average or low average range on all of the tests that he administered. TS

2269; see generally TS 2267-74 (summarizing test results). Barr also

pointed out that the defendant’s score on the general knowledge subtest

of Wechsler Adult Intelligence Scale was in the ninetieth percentile. TS

2260.

Although Barr did not believe that the defendant suffered from the

types of frontal lobe deficits that Presskreischer had described, he did

conclude that the defendant displayed many of the characteristics of

antisocial personality disorder. TS 2284. For example, he did not

display “much sympathy for victims in his previous encounters,” TS

2285, and he excitedly described his previous criminal behavior “with

relish” and “bravado,” TS 2400-01. Barr explained that a person with

antisocial personality disorder still has the capacity to make choices and

to appreciate right from wrong; they understand the rules, but actively

try to get around them. TS 2287.

c. The Circumstances Regarding The Murder Of Officer Briggs.

During his closing argument, the defendant reminded jurors that,

hours before he shot Briggs, he had intervened to help Jennifer Roman

when Bell-Rogers put the dog leash around her neck and choked her. TS

2573. He also reminded the jury that, when Bell-Rogers pointed the gun

at Roman during the same incident, he ushered Bell-Rogers out of the

apartment before any shots were fired. TS 2574. Further, he

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emphasized that he fired only one shot at Briggs, and that he did so

“while escaping.” TS 2587.

Three pieces of evidence on this score bear mention. First, the

medical examiner testified that the trajectory of the bullet through

Briggs’s brain was consistent with the path it would have taken if Briggs

was trying to duck away as the defendant fired upon him. TG 2916.

Second, while the defendant did fire only one shot at Briggs, there was

evidence to suggest that the gun had jammed after the defendant fired it,

and the police saw the defendant pumping his shoulders in a motion

consistent with trying to clear a jammed gun. TG 298, 2064, 2318.

Third, the defendant had wielded the gun in the past. See TG 1415

(surveillance video of the defendant holding the gun during the robbery

of the 7-Eleven).

d. Evidence Regarding Defendant’s Acceptance Of Responsibility.

The defendant offered to plead guilty to capital murder in exchange

for a sentence of life imprisonment without possibility of parole. D’s Exh.

DDDD. The State rejected that offer. D’s Exh. DDDD. The defendant

extended the offer after he had filed twenty-eight unsuccessful motions

challenging the death penalty and after he already had been convicted for

his roles in the Edward J. Roy Drive shooting, the 7-Eleven robbery, and

the El Mexicano robbery. TS 1073, 1075, 2433-34, 2503. At no time did

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the defendant offer to concede guilt and proceed to a trial solely on the

issue of sentencing. TS 2434.

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SUMMARY OF THE ARGUMENT

I. The trial court correctly denied the defendant’s motion for a

change of venue. He failed to demonstrate actual or inherent prejudice.

With respect to actual prejudice, the jury that deliberated in his case was

impartial. In fact, the defendant only challenged one of the deliberating

jurors for cause, and he does not argue that the trial court’s denial of

that motion was erroneous. Further, the publicity and sentiment

surrounding his case, while significant, were not the types that have

caused courts to presume prejudice.

II. The trial court correctly declined to adopt the parties’ joint

proposal for additional peremptory strikes. Neither RSA 606:3 nor RSA

606:4 required the court to grant the number of additional strikes that

the parties requested. Further, there is no constitutional right to

peremptory strikes in any event. Rather, the decision whether to grant

additional peremptory strikes fell within the trial court’s sound

discretion. Here, by giving the defendant four additional strikes and the

State two, the court properly exercised its discretion in order to help

achieve the end of an impartial trial.

III. The defendant claims that the trial court erroneously failed

to strike two veniremen for cause. 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

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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.

IV. The trial court correctly permitted the State to introduce

evidence of the crimes that the defendant committed in the week leading

up to Briggs’s death. Evidence of the prior crimes was highly probative

with respect to intent, motive, and knowledge. That is, it explained why

the defendant chose to ignore Briggs’s commands to stop, why he

desperately wanted to avoid capture, and why he elected to take the

unusually drastic step of shooting Briggs in the head in an effort to

ensure that his flight would be successful. The evidence also refuted the

defendant’s claims that he had the gun to protect others and that he was

less familiar with it than Bell-Rogers. Even if the court erred in

admitting the evidence, however, any error was harmless beyond a

reasonable doubt.

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V. The trial court’s instruction on reasonable doubt did not tip

the decisional scales in the State’s favor. The court’s use of the phrases

“mathematical certainty” and “complete impossibility of innocence”

amounted to an accurate description of the burden of proof. Further, the

court described the presumption of innocence, reminded the jury that

the burden of proof remained with the State, informed the jury that its

decision had to be based upon the evidence presented in the case, and

left open the possibility of nullification, just as this Court requires.

Finally, similar instructions have been upheld by the United States

Supreme Court, by this Court, and by courts from around the country.

VI. The trial court properly exercised its discretion in the

eligibility phase in precluding the defendant from offering into evidence

custodial self-serving statements that he had successfully moved to

suppress on Miranda grounds. The proffered statements had low

probative value at that proceeding, and the low probativeness was

substantially outweighed by the danger of unfairly prejudicing the State,

confusing the limited issues presented at the eligibility phase, and

misleading the jurors at that stage. The trial court also correctly ruled

on the proffered evidence’s reliability, an issue affirmatively argued by

the defense below and logically pertinent to any evaluation into probative

value. Lastly, the court’s evidentiary ruling was expressly limited to the

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eligibility phase. The defendant never sought to admit those proffered

statements in the sentence selection phase, a separate sentencing

proceeding at which the trial court granted the defendant wide latitude to

present mitigating information to the sentencing jury.

VII. Victim impact evidence is admissible under the evidentiary

guidelines set forth in RSA 630:5. No express statutory authority for

such evidence is required, because such evidence falls within the

applicable plain language of the evidentiary standards contained in the

capital sentencing statute, just like any other duly noticed and otherwise

proper aggravating evidence. Moreover, the victim impact evidence

presented in this case, properly evaluated in the context of the trial and

sentencing hearing in its entirety, the complete State’s case in

aggravation, and the significant evidence in mitigation submitted by the

defense, fell far short of rendering the defendant’s sentencing hearing

fundamentally unfair. Despite the defendant’s challenges to specific

aspects of victim impact evidence presented – many of which are

unpreserved – the evidence was dignified and restrained in nature and

scope, and had no improper influence on jurors, as demonstrated by the

record presented by the defendant regarding post-verdict comments

made by jurors.

VIII. The trial court properly exercised its discretion and

permitted the State to elicit brief evidence from a single witness regarding

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prison conditions that the defendant would face upon his sentencing.

The defendant has not preserved his appellate challenge premised on

relevancy, because below he never objected to the testimony at issue on

that basis. In any event, the evidence was relevant to the State’s

submitted future dangerousness aggravator, and to mitigators that the

defendant chose to admit regarding the alternative to a capital sentence

and his potential to adjust well to prison conditions. The evidence was

particularly probative in light of the defendant’s special and unique

pretrial incarceration conditions, which existed at the request of his

lawyers. The defendant’s attacks on specific aspects of the testimony

presented were never voiced below and are unpreserved, but regardless

fail to recognize the relevance of such information in light of the future

dangerousness aggravator and defense mitigators presented.

IX. The trial court correctly refused to instruct the jurors on the

mode of carrying out a capital sentence. Even on appeal, the defendant

fails to articulate the relevance of such information at the capital

sentencing hearing. That information was not rendered relevant because

of the State’s limited introduction of testimony on prison conditions,

which was separately probative of a submitted aggravator and submitted

mitigators.

X. The trial court properly exercised its discretion and

permitted the State to present evidence regarding the defendant’s

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commission of prior offenses. The evidence was directly relevant to ten of

the State’s submitted nonstatutory aggravators, and also shed pertinent

light on the defense mental health mitigator. The submitted evidence

was reliable, as it was based solely on conduct that had been fully

adjudicated by trial or guilty plea. The State was not limited by statute

or other legal constraint to present merely the certificates of conviction of

his prior crimes, which by themselves would have provided a less than

complete picture of the defendant’s history and character. In any event,

the submitted aggravators were not so limited, but rather required the

State to prove beyond a reasonable doubt underlying criminal conduct.

Moreover, the scope of the evidence presented was far less than that

presented at related trials, was commensurate with the number of

applicable aggravating and mitigating factors pertinent thereto, and

made no improper reference to victim impact.

XI. The trial court properly allowed the State to elicit evidence of

the defendant’s prior possession of a handgun, because that evidence

was directly probative of one of the State’s submitted aggravators. The

underlying possessory act at issue was not an independent aggravator,

but instead was evidence of a properly submitted aggravator. And, the

defendant’s commission of that underlying act had never been previously

adjudicated.

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XII. The State’s summation at the sentence selection phase fell

well within the bounds of permissible argument, the contours of which

are even broader at a capital sentencing hearing. The defendant failed to

preserve three of his four discrete challenges to the prosecutor’s closing

argument. As to those challenges, the prosecutor did not make an

appeal to general deterrence – which is permissible argument in any

event – but rather argued that the capital murder at issue was

particularly worthy of capital punishment, not as a means of deterrence

but because the murdered victim’s status as a police officer warranted

that ultimate penalty, argument that was entirely consistent with the

trial court’s ruling. The prosecutor’s brief mention of the defendant’s

exercise of constitutional rights was not derogatory or otherwise negative,

merely contrasted the lack of process that the defendant provided to his

murder victim, and in any event was the subject of a direct and

responsive curative instruction by the court. The prosecutor did not

misuse victim impact evidence when it appropriately rebutted defense

argument that the circumstances of the homicide did not involve torture

or protracted cruelty by noting the actual harm caused by the

defendant’s act of murder. Lastly, the prosecutor properly suggested to

the jurors that a sentence of life imprisonment would not adequately

account for the gravity of his capital crime, properly considered in light of

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the lengthy prison sentences that the defendant would serve in any event

for his previously adjudicated unrelated noncapital offenses.

XIII. The capital sentencing statute satisfies due process by

assigning the lowest burden of burden of proof that still ensures

reliability to mitigating factors. The statute also contains safeguards to

ensure against any risk that a death penalty will be imposed if not

warranted, including allowing the jury to consider an unlimited range of

mitigating evidence, and requiring the defendant to prove mitigating

factors to only one juror, while the State must prove aggravating factors

beyond a reasonable doubt and unanimously. The final weighing

process that precedes the jury’s sentencing decision is a value-driven

moral choice, rather than the kind of factual finding to which a burden of

proof should be applied. Additional safeguards ensure that this decision

will not be arbitrary or unfair, including the requirement that the jury

unanimously agree on a sentence of death, and the fact that the jury is

never required to impose the death penalty, regardless of the result of

their weighing process.

XIV. RSA 630:5 is not unconstitutional on its face for not

incorporating the New Hampshire Rules of Evidence. The capital

sentencing statute contains express and readily-applicable rules of

evidence that permit only relevant, probative, and reliable evidence at the

sentencing hearing. Those rules do not violate either the separation of

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powers doctrine or the due process clause. As to the former, the New

Hampshire Rules of Evidence by its express terms apply neither to

sentencing hearings nor when otherwise provided by statute, and in any

event, RSA 630:5 is wholly consistent with the judicial functions and

policies embodied within the formal Rules. As to the latter, the absence

of the Rules of Evidence does not prevent or even hinder a judge from

excluding irrelevant and unfairly prejudicial evidence from a capital

sentencing hearing conducted under RSA 630:5, and the evidentiary

safeguards contained within the statute permit the heightened reliability

needed in such a proceeding.

XV. The death penalty is not a cruel or unusual punishment

under the New Hampshire Constitution. Our constitution and legislature

have historically recognized the death penalty as an appropriate penalty

in some circumstances. This view has not changed over time. Moreover,

this Court has applied the same standards to questions of cruel and

unusual punishment or sentence proportionality as applied under the

federal constitution. By those standards, the death penalty is neither

facially unconstitutional, nor disproportionate as applied to this

defendant’s case.

XVI. The evidence presented by the defendant in this case does

not support his contention that administration of the death penalty is

infected with racial bias. As the defendant does not claim that there was

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purposeful racial discrimination in his case, and has not shown that

racial discrimination actually affected the application of the death

penalty to him, his equal protection claim must fail under the both the

federal and state constitutions.

XVII. The evidence adduced in the trial court also failed to support

the defendant’s claim that “death qualification” of the jury prior to the

guilt phase of his trial produced a jury that was more “conviction-prone.”

Even assuming that death qualification has some tendency to produce

such a jury, the procedural safeguards provided by voir dire, jury

instructions, and the process of jury deliberations adequately protect the

defendant’s due process right to an impartial jury.

XVIII. The defendant contends that he is entitled to a new

sentencing hearing because the State withheld exculpatory evidence.

That is not the argument that he made to the trial court; he asked the

trial court to permit him to take post-verdict discovery. Therefore, the

defendant’s appellate contention is unpreserved. To the extent this

Court concludes that some form of the defendant’s argument is

preserved, however, it should hold that the trial court correctly denied

the defendant’s motion for post-verdict discovery. He failed to identify

any theory under which additional discovery would produce evidence

material to guilt or punishment. Further, this Court should deny the

defendant’s request to vacate his sentence and remand for a new

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sentencing hearing because the defendant did not identify any favorable

or material evidence that the prosecution withheld.

XIX. It is not a violation of the separation of powers clause of the

New Hampshire Constitution to allow the prosecution to designate and

seek to prove not-statutory aggravating factors. Identifying such factors

is simply an exercise of the traditional role of the prosecuting attorney in

arguing for imposition of a particular sentence. As the non-statutory

aggravating factors are not elements required to prove capital murder or

qualify the defendant to receive the death penalty, they need not be

presented to a grand jury. The non-statutory aggravators in this case

were not duplicative as they each identified a separate criminal act

committed by the defendant, a traditional sentencing factor.

XX. The two statutory aggravating factors relating to mens rea

that were found by the jury properly narrowed the category of defendants

subject to a death penalty, as they each required a higher mental state

than required for conviction of the crime of capital murder itself. The

trial court properly rejected the defendant’s proposed jury instructions

on these factors because they were contrary to the statutory language

defining the factors, and to established precedent allowing the jury to

consider the circumstances of the defendant’s crime in deciding whether

statutory aggravators have been proved.

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XXI. The requirements of RSA 630:5, XI(b) were satisfied. The

jury correctly found that the State proved all but one of its alleged

aggravating factors beyond a reasonable doubt.

XXII. By its plain meaning, RSA 630:5, XI (a) requires this Court

to determine whether some overwhelming emotion, irrational hostility, or

other capricious circumstance caused the jury to return a sentence of

death. The record is bereft of any evidence that such impermissible

factors caused the sentencing verdict in this case. Through the use of

limiting instructions, a comprehensive final charge, and careful

observation of the jurors, the court was able to ensure that the

defendant’s sentence was the product of a reliable and fair process.