k....xv. new hampshire'sdeath penally statute does not constitute cruel or unusual punishment,...
TRANSCRIPT
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)
-i-
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
-xii-
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
-xiii-
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
-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
-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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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
-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
-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
-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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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
-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
-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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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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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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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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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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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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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
-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
-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
-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
-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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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
-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
-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
-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
-xxxix-
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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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
-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
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
-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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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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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
-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
-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
-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
-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
-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.
-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.
-3-
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
-4-
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
-5-
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.
-6-
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___.
-7-
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.”
-8-
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.”
-9-
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.
-10-
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.
-11-
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.
-12-
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.
-13-
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.
-14-
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.
-15-
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.
-16-
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.
-17-
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.
-18-
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
-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.
-20-
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.
-21-
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
-22-
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.
-23-
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.
-24-
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]
-25-
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.
-26-
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-
-27-
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-
-28-
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.
-29-
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.
-30-
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.
-31-
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.
-32-
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
-33-
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
-36-
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.
-37-
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.
-38-
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.
-39-
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.
-40-
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,
-41-
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.
-42-
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.
-43-
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.
-44-
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
-48-
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.
-53-
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.