THE STATE OF NEW HAMPSHIRE SUPREME COURT. No The State of New Hampshire. Michael Addison (Capital Murder)

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No The State of New Hampshire v. Michael Addison (Capital Murder) Appeal Pursuant to Rule 7 from Judgment of the Hillsborough County Superior Court/North BRIEF FOR THE STATE OF NEW HAMPSHIRE Volume 2: Process-Related Issues THE STATE OF NEW HAMPSHIRE Michael A. Delaney Attorney General Peter Hinckley, NH Bar # Assistant Attorney General Janice K. Rundles, NH Bar #2218 Senior Assistant Attorney General Thomas E. Bocian, NH Bar # Assistant Attorney General Criminal Justice Bureau 33 Capitol Street Concord, N.H (603) (Oral Argument Requested)

2 VOLUME 2: TABLE OF CONTENTS I. THE TRIAL COURT CORRECTLY DENIED THE DEFENDANT'S MOTION TO CHANGE THE VENUE OF HIS TRIAL BECAUSE HE FAILED TO DEMONSTRATE THAT THE PUBLICITY SURROUNDING HIS CASE WAS SO PERVASIVE THAT THE COURT EITHER COULD NOT, OR DID NOT, FIND AN UNBIASED JURY TO DECIDE HIS CASE 101 II. III. IV. NEITHER THE STATE CONSTITUTION NOR ANY STATUTE REQUIRED THE TRIAL COURT TO GRANT TEN ADDITIONAL PEREMPTORY STRIKES TO THE DEFENDANT AND FIVE ADDITIONAL PEREMPTORY STRIKES TO THE STATE BEYOND THOSE ALLOWED UNDER RSA 606:3, I, AND RSA 606:4, I THE TRIAL COURT CORRECTLY REFUSED TO DISMISS TWO JURORS FOR CAUSE BECAUSE BOTH JURORS MADE CLEAR THAT THEY COULD DECIDE THE CASE FAIRLY AND WITH DUE REGARD TO THE COURT'S INSTRUCTIONS AND THEIR OATH 164 THE TRIAL COURT CORRECTLY PERMITIED THE STATE TO OFFER EVIDENCE OF THE CRIMES THAT THE DEFENDANT PERPETRATED IN THE DAYS LEADING UP TO BRIGGS'S MURDER BECAUSE SUCH EVIDENCE DEMONSTRATED THE DEFENDANT'S MOTIVE, INTENT, AND KNOWLEDGE, ALL THREE OF WHICH WERE THE MOST HOTLY CONTESTED ISSUES AT TRIAL 198 V. THE TRIAL COURT'S INSTRUCTION ON REASONABLE DOUBT WAS AN ACCURATE STATEMENT OF THE LAW BECAUSE IT CORRECTLY DESCRIBED THE BURDEN OF PROOF, CORRECTLY STATED THE PRESUMPTION OF INNOCENCE, AND CLOSELY MODELED THE CHARGE THAT THIS COURT UPHELD IN STATE V. WENTWORTH 226

3 -101- ARGUMENT I. THE TRIAL COURT CORRECTLY DENIED THE DEFENDANT S MOTION TO CHANGE THE VENUE OF HIS TRIAL BECAUSE HE FAILED TO DEMONSTRATE THAT THE PUBLICITY SURROUNDING HIS CASE WAS SO PERVASIVE THAT THE COURT EITHER COULD NOT, OR DID NOT, FIND AN UNBIASED JURY TO DECIDE HIS CASE. The defendant contends that the trial court erred by denying his request to change the venue of his trial. DB 90. He asserts that the jurors in his case were exposed to an amount of adverse publicity unprecedented in this state, which rendered them uniquely susceptible to the State s pleas for the condemnation of the murderer of a Manchester police officer. DB 90. Those assertions must be rejected. Before trial, the defendant filed a motion to change the venue of his trial. Def s Mot. for Change of Venue (filed Apr. 20, 2008) (hereinafter DMCV ). He argued that Briggs s murder set in motion an unprecedented wave of public passion, outcry and outrage in the community in which the prospective jury venire resides. DMCV at 1. Such hostile sentiment, he argued, caused irreparable prejudice that would prevent the court from being able to empanel a fair and impartial jury to decide his case. DMCV at 25. In support of that position, he pointed to ceremonies honoring Briggs, memorials to Briggs, statements made by public officials concerning Briggs s death, and the media

4 -102- coverage of events related to this case. See DMCV at 4-14; see generally Attachments to DMCV. The State objected. It argued that the defendant s case had not received the notoriety of other New Hampshire cases where a change of venue ha[d] been denied, such as the murder case against Pamela Smart and the [then] ongoing murder case against Sheila LaBarre in Rockingham County Superior Court. State s Obj. to Def s Mot. for Change of Venue (filed May 29, 2008) (hereinafter SODMCV ). It pointed out that the overwhelming bulk of the media coverage, which the defendant cite[d], [had] occurred over eighteen months [earlier], in the immediate aftermath of the murder of Ofr. Briggs. SODMCV at 2-3. Further, the State pointed out, the media coverage ha[d] been primarily factual. SODMCV at 3. The State also noted that the parties had been able to select fair and impartial juries for the trials related to the El Mexicano robbery, the 7-Eleven robbery, and the shooting on Edward J. Roy Drive. SODMCV 6. In fact, in the trial arising out of the shooting on Edward J. Roy Drive, a Manchester jury, far from demonstrating any sort of bias or prejudice against the defendant, actually acquitted him of one of the charges. TS Therefore, the State argued, the defendant had failed to demonstrate any inherent prejudice. SODMCV 5. In the alternative, the State asked the court to deny the motion until after jury

5 -103- selection so that the parties and the court could assess whether the venire was, in fact, impermissibly tainted. SODMCV at 12. The same day that the State filed its objection to the motion for a change of venue, the defendant filed additional materials which, he argued, supported his position. See Supp. Materials to Mot. for Change of Venue (filed May 29, 2008). He included some articles from the Union Leader, the transcript of a legislative debate on the death penalty, materials from various community websites, and documents created by an investigator from the public defender s office. Id. On June 12, 2008, the court convened a hearing on the defendant s motion. At the hearing, the defendant reiterated his belief that he could not obtain a fair trial in Manchester. T(6/12) 5. In support of his claim that the case had generated unprecedented media publicity, he argued that some 211 articles from the Union Leader had either the defendant or Briggs as their focus or as a secondary commentary in the particular story. T(6/12) 8, 17, 20. He also pointed out that the Union Leader had devoted a special section of its website to the Briggs murder and that WMUR, New Hampshire s ABC television affiliate, had run some 133 stories concerning the Briggs murder. T(6/12) 8, 10. With respect to WMUR, the defendant suggested that even though it is the only major network affiliate for the entire state of New Hampshire, the people of Manchester paid more attention to, or had

6 -104- more interest in, its broadcasts than did the rest of the state s citizens. 1 T(6/12) 12. The defendant also assigned significance to the fact that Manchester police officers interact with Manchester residents, businesses, and organizations. T(6/12) And, he claimed to have established that the LaBarre and Smart cases had generated less media interest and publicity. T(6/12) 14, 16. During the course of the defendant s argument, the trial court asked where he wanted to have the case tried. T(6/12) 22. He replied that the parties would need to litigate that issue, T(6/12) 22, but that his tentative view was that neither Manchester nor Merrimack County were appropriate locations for the trial, T(6/12) 24. That response prompted the court to ask, So you re saying if I granted your motion and I designated a courthouse where the trial would take place, you wouldn t object? No more objections about it? Is that what you re saying? T(6/12) 25. The defendant demurred. T(6/12) The defendant appears to resurrect that assertion or something similar in his appellate brief. DB 100. This Court should reject it. If Channel 9 is the only major television network affiliate that is broadcast from, and based out of, New Hampshire, then surely its telecasts are of interest to viewers statewide. It strains credulity to think that Manchester residents who watch Channel 9 possess some unique ability to view its telecasts with more attention and concern than the residents of, say, Keene, Concord, Nashua, Hanover, Berlin, or Portsmouth. See State v. Cooke, 910 A.2d 279, 287 (Del. Super. Ct. 2006) (noting that a defendant s motion for change of venue was not supported by the record because the statewide circulation of the newspaper publicity provided no reason to believe that a transfer of venue to New Castle County would have accomplished anything ).

7 -105- The court also inquired how a change of venue from the state s most ethnically diverse jurisdiction would affect the defendant s challenges to the racial composition of the venire. T(6/12) The defendant replied that the venue motion was not really a racial diversity motion. It s a community motion. T(6/12) at 26. He did not offer to abandon his challenges to the racial composition of the jury or the venire if the trial were moved to a less racially-diverse judicial district. See T(6/12) 43 (State points out that the defendant had argued that he could not get a jury that was sufficiently racially diverse if his trial went forward in Manchester, yet he wanted to move his trial to a judicial district that would have been even less racially diverse than Manchester). For its part, the State largely reiterated the arguments that it had advanced in its written objection. It contended that the publicity in the instant case was comparable to Smart, T(6/12) 38, that any biased jurors could be identified and dismissed through the voir dire process, T(6/12) 38, that two-thirds of the articles cited by the defense were published immediately after the murder, T(6/12) 38, that there was no way to know from where and by whom certain online comments had been posted, T(6/12) 39, that many of the online comments were unfavorable to both sides not just the defendant, T(6/12) 41, and that residents statewide would have been exposed to coverage from WMUR Channel 9, T(6/12) 40.

8 -106- The trial court issued an eighteen-page order denying relief. See Order on Def s Mot. to Change Venue (filed June 25, 2008) (hereinafter, Order ). It began with several factual findings: (1) that [m]uch of the publicity surrounding this case occurred immediately after the shooting of Officer Briggs, (2) that the articles and television clips [submitted by the defendant were] largely factual, discussing developments in the investigation of the death of Officer Briggs and subsequent charging and prosecution of the defendant, (3) that some of the articles at issue may have contained inadmissible evidence or evidence about the defendant s criminal history, and (4) that the online comments posted on the Union Leader website pertained to the defendant, to crime in Manchester, to the Briggs family, to the death penalty in general, and to developments in the defendant s case. Order at 1-3. The court then moved to its analysis. First, it rejected the defendant s efforts to cast state constitutional provisions concerning venue as more protective than their federal counterparts, observing that this Court already had decided that issue in Petition of the State of N.H. (State v. Johanson), 156 N.H. 148, 154 (2007), and other cases. Order at 5-6. Next, the court noted that there are two types of prejudice that can require a change of venue: inherent or presumed prejudice, and actual prejudice. Order at 6. The court ruled that inherent prejudice exists when either the voir dire demonstrates that the court must go to great

9 -107- lengths to find impartial jurors or the pretrial publicity is so overwhelming and inflammatory that it generates a huge wave of public passion against a defendant. Order at 7. The court concluded that such overwhelming and inflammatory publicity was not present in this case; therefore, there was not a huge wave of public passion. Id. In support of its conclusion, the court stated that it had reviewed all of the publicity that the defendant had submitted, but found that it was not the kind of adverse inflammatory publicity that raises a concern about inherent prejudice. Order at 10. It characterized the media coverage as largely factual and found that very few stories displayed hostility towards the defendant or related facts about the defendant in a way that could be described as prejudicial. Order at 10. The court noted that although some of the coverage revealed potentially inadmissible evidence, both this Court and the United States Supreme Court had held that revelations of inadmissible evidence, alone, are not a sufficient basis to require a change of venue. Order at 11. In addition, the court found that although there were approximately seventy articles about the Briggs murder in October 2006, that number had diminished to ten in May Order at 11. The court further noted that the nature of the stories had changed over time from more emotional stories about the Briggs family and death to rather dry

10 -108- accounts of pleadings that ha[d] been filed and the hearings and rulings on those pleadings. Order at 12. With respect to the website comments that the defendant cited, the court found that many were anonymous, that people had used the comments to express their opinions more than once, that the number of persons who participate on the webboards is certainly fewer than the number of comments, and that the relatively low number of inflammatory comments, in a judicial district of more than 190,000 people, [did] not signal inherent community prejudice. Order at 14. Finally, the court noted that it had been able to test the effect of pre-trial publicity on jurors in Manchester and Nashua through the trials arising out of the El Mexicano robbery, the 7-Eleven robbery, and the shooting on Edward J. Roy Drive. Order at 15. Based upon its experience in those cases, the court found that only twelve to twenty percent of jurors believed that the defendant was guilty before hearing any evidence and it noted that such percentages were well below those in which courts had required a change of venue. Order at The defendant then petitioned this Court to exercise its original jurisdiction and to order the trial court to grant a change of venue. Pet. For Orig. Juris.: To Vacate Trial Court s Erroneous Denial of Mot. for 2 The court also noted that the defendant s position on venue was at odds with his argument that a less racially diverse jury would be less likely to judge his case fairly. Order at 18.

11 -109- Change of Venue (filed July 8, 2008). This Court denied the petition by order dated July 24, (N.H. Sup. Ct. No ). The parties then proceeded through the voir dire process, the result of which was the selection of a jury consisting of eighteen members, only one of whom the defendant unsuccessfully challenged for cause. JS And with respect to that juror, after the trial court denied the for-cause challenge, the defendant did not exercise a peremptory strike. Further, he has not contended on appeal that the denial of his for-cause challenge was erroneous. After jury selection, the defendant renewed his motion for a change of venue. Renewed Mot. for Change of Venue (filed Oct. 17, 2008) (hereinafter RMCV ). In his pleading, he recast the precise nature of his initial motion for a change of venue, asserting that its basis was more the allegedly hostile community sentiment that had developed instead of the level and nature of the pretrial publicity. RMCV at 1. He further asserted that the responses that the veniremen gave both in court and on the questionnaires that they completed tended to demonstrate that the community was against him and that any trial would be unfair. RMCV at 2-6. The State opposed the defendant s motion, arguing that he had selectively culled responses from the prospective jurors to make the venire appear more hostile to him than it actually was. State s Obj. to

12 -110- Def s Renewed Mot. for Change of Venue at 4 (filed Oct. 20, 2008). The State further asserted that [t]he vast majority of those prospective jurors removed by the Court for cause were not removed because of prejudgment of the case or worry over community pressure, but for hardship or because their views regarding the death penalty, both for and against, disqualified them from service on this case. Id. at 4-5. The State also noted that defense counsel had questioned the prospective jurors as to whether they would feel any pressure or influence from the community to render a particular verdict. Id. at 5. The court then denied the defendant s motion for the reasons set forth in the State s objection. Order on Def s Renewed Mot. for Change of Venue (filed Oct. 20, 2008). Over the course of the next five months, both during and after trial, the defendant filed two additional pleadings that he claimed bore upon the question of proper venue. In one pleading, he submitted media accounts of developments in his case and editorials regarding the outcome of the case. See Def s Supp. Regarding Media (filed Jan. 16, 2009). In the other, he purported to document what he believed was a hostile courtroom atmosphere when the jury rendered its verdict at the conclusion of the guilt phase of the trial. See Def s Mot. to Supp. Record on Venue (filed Nov. 14, 2008). In that pleading, he claimed that one hundred police officers had attended the verdict, wearing all kinds of

13 -111- clothing from regular uniforms, to camouflage, to a ski mask. Id. at 1-2. He further claimed that [a]dditional chairs lined the aisle between the rows of fixed bench seats in the public gallery. Id. at 2. He termed the courtroom gathering as unprecedented and argued that all of the jurors must have felt pressure to deliver a verdict favorable to the State. Id. at 2-3. The State filed a response to the defendant s pleading and disagreed almost completely with his characterization of the courtroom atmosphere. State s Resp. to Def s Mot. to Supp. Record Regarding Venue (filed Nov. 25, 2008). More importantly, however, the Court entered an order in which it, too, disagreed with the defendant s characterizations and assertions. Order on Def s Mot. to Supp. The Record on Venue (filed Dec. 29, 2008). In its order, the court also described several precautions that it had taken to ensure that the jury would not be exposed to extrinsic influences. Id. at 2-3. With respect to the defendant s specific allegations regarding the taking of the verdict during the guilt phase of the trial, the court found that only ten additional chairs had been placed in the public gallery, that spectators stood in the entrance to the courtroom and in the courthouse lobby, that none of the spectators reacted audibly, that only four or five uniformed officers were actually inside the courtroom when the verdict was announced, that the jurors could not see the courthouse lobby from

14 -112- the jury box, that the footage from WMUR Channel 9 that the defendant submitted with his motion captured scenes after the jury had left the courtroom, and that the spectators included the victim s family, members of the media, and representatives from the public defender s office. Id. at 4-5. Finally, the court concluded that the defendant s claims of bias affecting the eligibility and sentencing phases of the trial were undermined by the facts that the jury (1) found only two of three mental state aggravating factors during the eligibility phase, and (2) determined that the only aggravating factor that the defendant contested during the sentencing phase, future dangerousness, was not proven. Id. at 7. Against that backdrop, this Court must decide the defendant s appellate claims regarding the venue of his trial. A trial court s decision on a motion to change venue is entitled to special deference. State v. Smart, 136 N.H. 639, 653 (1993). Accordingly, this Court will not reverse the trial court s decision on a motion to change venue unless the decision amounted to manifest error. Id. at 648, 653. Manifest error occurs when a ruling creates serious injustice. State v. Menard, 133 N.H. 708, 710 (1990). This Court explained the rationale for applying such a deferential standard of review over twenty years ago. Particularly with respect to pretrial publicity,... primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of

15 -113- any such claim of prejudice his own perception of the depth and extent of news stories that might influence a juror. Id. (quotation omitted); see Skilling v. United States, 130 S. Ct. 2896, 2918 (2010) ( Appellate courts making after-the-fact assessments of the media s impact on jurors should be mindful that their judgments lack the on-the-spot comprehension of the situation possessed by trial judges. ); Mu Min v. Virginia, 500 U.S. 415, 427 (1991) (similar). Further, this Court stated, the determination of the impartiality of the jurors selected [is] essentially a question of demeanor and credibility, which is often left to the trier of fact. Id. (quotation omitted); cf. State v. Giles, 140 N.H. 714, (1996) ( We defer to the jury s findings on credibility in part because a trial transcript provides no indication of a witness s tone of voice or demeanor, two useful tools in the assessment of credibility. ). Part I, article 17 of the New Hampshire Constitution dictates the terms under which the venue of a criminal prosecution may be changed. It provides that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except... upon motion by the defendant and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed. One circumstance that may lead the trial court to make such a finding is an inability to empanel an impartial jury as required by part I, article 35 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. After all, the right of a criminal

16 -114- defendant to a fair and impartial jury has been deemed a basic requirement of due process under the state and national constitutions. See, e.g., Smart, 136 N.H. at 646; State v. Laaman, 114 N.H. 794, 798 (1974). The defendant suggests that the state constitution may offer heightened due process protection in this area, DB , but that argument is foreclosed by Smart, in which this Court expressly concluded that the level of protection offered by both constitutions is the same, Smart, 136 N.H. at 646. Because the defendant does not ask this Court to overrule Smart and does not offer any arguments under the four-part test that this Court applies when deciding whether to overrule a previous decision, see, e.g., Jacobs v. Dir., N.H. Div. Motor Vehicles, 149 N.H. 502, (2003), Smart must be considered good law for purposes of this appeal, State v. Dodds, 159 N.H. 239, 248 (2009) (arguments not briefed are deemed waived). Both this Court and the United States Supreme Court have determined that intense pretrial publicity may undermine the fairness of a trial if it results in either presumed prejudice, sometimes called inherent prejudice, or actual prejudice. See, e.g., Murphy v. Florida, 421 U.S. 794, 803 (1975); Smart, 136 N.H. at 647; see also Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); Estes, 381 U.S. 532, 536 (1965); Rideau v. Louisiana, 373 U.S. 723, 726 (1965). Neither was present here.

17 -115- Actual prejudice manifests itself at jury selection, when voir dire reveals that pretrial publicity had such a pervasive effect so as to deny the seating of a fair jury. Goss v. Nelson, 439 F.3d 621, 629 (10th Cir. 2006). To establish actual prejudice, the party seeking a change of venue must demonstrate the actual existence of such an opinion in the mind[s] of the [seated] juror[s] as will raise the presumption of partiality. Murphy, 421 U.S. at 800 (quotation omitted); accord Smart, 136 N.H. at , 659; Laaman, 114 N.H. at 798. In other words, the question is whether the voir dire testimony of those who became trial jurors demonstrated... actual prejudice against a defendant. United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001); see Skilling, 130 S. Ct. at (a claim of actual prejudice focuses upon the seated jurors who actually decided the case). Presumed prejudice, on the other hand, exists when the publicity by its nature has so tainted the trial atmosphere that it will necessarily result in a lack of due process. Smart, 136 N.H. at 647. In other words, prejudice is presumed where pretrial publicity is so pervasive and prejudicial that [the court] cannot expect to find an unbiased jury pool in the community. Goss, 439 F.3d at 628. Courts should not be too ready to find presumed prejudice because, as this Court cautioned, the constitution does not require that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread

18 -116- and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. Smart, 136 N.H. at 647 (emphasis added) (quotation omitted); cf. State v. Nelson, 103 N.H. 478, 484 (1961) ( The very nature of the charges against these defendants could not fail to create general public interest with attendant widespread publicity through the various news channels. The newspaper coverage was undoubtedly extensive. It does not follow, however, that the inevitable result is that the defendants must be released because they can never be constitutionally tried.... (Ellipsis and quotation omitted.)). Similarly, the United States Court of Appeals for the Eighth Circuit has explained, Because our democracy tolerates, even encourages, extensive media coverage of crimes such as murder and kidnapping, the presumption of inherent prejudice is reserved for rare and extreme cases. Blom, 242 F.3d at 803; accord Goss, 439 F.3d at ( To demonstrate that prejudice should be presumed, the defendant must establish that an irrepressibly hostile attitude pervaded the community. Simply showing that all the potential jurors knew about the case and that there was extensive pretrial publicity will not suffice to demonstrate that an irrepressibly hostile attitude pervaded the community. (Quotation and ellipsis omitted.)); Busby v. Dretke, 359 F.3d 708, 725

19 -117- (5th Cir. 2004) (presumed prejudice is applicable only in the most unusual cases ); cf. Mu Min, 500 U.S. at 429 ( Any killing that ultimately results in a charge of capital murder will engender considerable media coverage.... ). Accordingly, when an appellant asserts that a trial court erred by refusing to find presumed prejudice, the question is whether pretrial publicity was so extensive and corrupting that a reviewing court is required to presume prejudice of a constitutional magnitude. Pruett v. Norris, 153 F.3d 579, 585 (8th Cir. 1998). The principal United States Supreme Court case on the issue of pretrial publicity and prejudice is Rideau, 373 U.S. at 723. There, the defendant robbed a bank in a small Louisiana town, kidnapped three bank employees, and killed one of them. Id. at Police interrogated the defendant at the local jail, without counsel present, until they obtained his confession. Id. at 724. The entire interrogation was filmed, unbeknownst to the defendant. Id. The police then gave the filmed confession to a local media outlet which, shortly before the trial, broadcast it to audiences ranging from 24,000 to 53,000 individuals. Id. In light of the broadcasts, the defendant moved for a change of venue, arguing that he could not receive a fair trial in the parish where the crime occurred, which had a population of approximately 150,000 people. Id. The trial court denied the motion, a jury eventually convicted

20 -118- him, and he was sentenced to death. Id. at The Supreme Court of Louisiana upheld the conviction. Id. at 725. The United States Supreme Court, however, reversed. It noted that [w]hat the people [in the community] saw on their television sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder. Id. The interrogation, to the tens of thousands of people who saw and heard it, was in a very real sense was Rideau s trial at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality. Id. at 726. The Court therefore held, without pausing to examine a particularized transcript of the voir dire, that [t]he kangaroo court proceedings that followed the televised confession resulted in a denial of due process. Id. at In a later case, Estes v. Texas, 381 U.S. at 538, the Court again found that media coverage had tainted a criminal prosecution. There, extensive publicity before trial became even worse during preliminary court proceedings as reporters and television crews flooded the courtroom and bombard[ed]... the community with the sights and sounds of those pretrial hearings. Id. The Supreme Court decided that the media s efforts to report on the case were overzealous, led to

21 -119- considerable disruption, and therefore denied the defendant the judicial serenity and calm to which [he] was entitled. Id. at 536. Similarly, in Sheppard v. Maxwell, 384 U.S. at 353, news outlets extensively reported the story of a man who bludgeoned his pregnant wife to death. The Supreme Court characterized the proceedings in that case as bedlam and said that newsmen took over practically the entire courtroom, thereby thrusting jurors into the role of celebrities. Id. Although the media generated months [of] virulent publicity about Sheppard and the murder, the Court concluded that such coverage alone did not create a due process violation. Id. at 354. Rather, the Court reversed the murder conviction because the trial itself had a carnival atmosphere. Id. at 358. In Murphy, 421 U.S. at 795, the defendant, a notorious murderer, who had conspired to steal the Star of India sapphire from American Museum of Natural History in New York, was charged with robbery and assault. Citing extensive press coverage about him, the defendant unsuccessfully sought to transfer the venue of his trial. Id. at 796. Some of the jurors had a vague recollection of the robbery with which [he] was charged and each had some knowledge of [his] past crimes, but none betrayed any belief in the relevance of [his] past to the present case. Id. at 800 (footnote omitted). The United States Supreme Court upheld the conviction, reasoning that Murphy s trial was decidedly

22 -120- different from the proceedings at issue in Rideau, Estes, and Sheppard, which, the Court said, entirely lack[ed]... the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. Id. at 799. In Patton v. Yount, 467 U.S. 1025, (1984), the defendant was facing a retrial on murder charges after the verdict from the first trial had been reversed because of a violation of the Fifth Amendment. Before the retrial, the media filed extensive reports about the defendant s confession to the brutal murder and his prior conviction for that crime. Id. During voir dire, all but two veniremen had heard of the case, 77% of prospective jurors acknowledged they would carry an opinion into the jury box, and eight of the fourteen seated jurors and alternates admitted that at some time they had formed an opinion as to Yount s guilt. Id. Some jurors even suggested that they would have required evidence to overcome their beliefs in the defendant s guilt. Id. at Nevertheless, the Supreme Court rejected Yount s claims that publicity had prejudiced the outcome of his case. The Court concluded that the adverse publicity and community outrage had peaked prior to the defendant s first trial, four years before the second prosecution, and that time had helped sooth[e] and eras[e] community prejudice. Id. at In fact, said the Court, It is not unusual that one s recollection of the fact that a notorious crime was committed lingers long after the

23 -121- feelings of revulsion that create prejudice have passed. Id. at The relevant question, the Court held, is not whether the community remembered the case, but whether the jurors at Yount s trial had such fixed opinions that they could not judge impartially the guilt of the defendant. Id. at The jurors in Yount did not hold such fixed opinions; therefore, the Court held that there was no manifest error in the trial court s conclusion that the defendant had received a fair trial. Id. In a more recent case, Skilling, 130 S. Ct. at , the defendant, a former CEO of Enron, stood charged with several offenses arising out of his participation in a conspiracy to commit fraud by manipulating the company s financial documents. The fraud perpetrated by the defendant and his coconspirators eventually led to Enron s collapse. The defendant moved to change the venue of his trial, asserting that because of the hostility toward him in Houston and extensive pretrial publicity, he would be unable to receive a fair trial. Id. at In support of that assertion, he submitted hundreds of news reports detailing Enron s collapse and presented affidavits from experts who discussed community attitudes in Houston as opposed to those in other potential venues. Id. The trial court denied the motion. The Supreme Court affirmed. The Court began its analysis by summarizing Rideau, Estes, and Sheppard. Id. at Those cases,

24 -122- it said, resulted in reversals because the convictions [were] obtained in a trial atmosphere that was utterly corrupted by press coverage. Id. at 2914 (brackets omitted). Those cases could not, however, be made to stand for the proposition that juror exposure to news accounts of the crime alone presumptively deprives the defendant of due process. Id. (ellipses and quotation omitted). Prominence, the Court reasoned does not necessarily produce prejudice, and juror impartiality... does not require ignorance. Id. at Accordingly, a presumption of prejudice... attends only the extreme case. Id. The Court determined that Skilling s case was not such an extreme one because (1) Houston was a very large city and it was difficult to believe that twelve impartial jurors could not be found, (2) the Enronrelated publicity did not contain the type of blatantly prejudicial information that readers or viewers could not reasonably be expected to shut from sight, (3) trial did not swiftly follow the commission of the crime, and (4) the jury actually acquitted Skilling on some counts, so it would be odd for an appellate court to presume prejudice in a case in which jurors actions run counter to that presumption. Id. at The Court also rejected Skilling s claim of actual prejudice, noting that he had failed to show that the deliberating jurors had prejudged his guilt. Id. at

25 -123- This Court has never found presumptive prejudice arising out of pretrial publicity, even in Smart, 136 N.H. at 649, where, much like here, the publicity surrounding the defendant s case was enormous and, as claimed by some, unprecedented in this State. (Emphasis added.) In Smart, a school official conspired with some students, one of whom was her lover, to kill her husband. Id. at 646. In the aftermath of the crime and during the days leading up to the trial, there was extraordinarily heavy and widespread media coverage. Id. Regional newspapers from Boston and national media outlets, such as Time magazine, reported on the case. Id. Further, before jury selection was to begin, WMUR Channel 9 aired a special program entitled, Anatomy of a Murder. Id. at 649. The program consisted of footage from earlier news broadcasts that included film of pre-arrest interviews with the defendant, of her arrest and that of the teenage boys, along with commentary by a station reporter. Id. The program also referred to three new indictments that had been brought against the defendant, charging her with attempting to murder a potential witness. Id. at 650. The pretrial media attention generated so many news stories that the defendant was able to create for submission to the court a several-inch-thick volume of newspaper accounts and videotaped television news stories in support of her motion for a change of venue. Id. at 649.

26 -124- Despite all that publicity, this Court upheld the trial court s refusal to transfer the defendant s trial to a different venue. Id. at 653. In reaching its decision, this Court noted several principles of law. First, this Court acknowledged that it is the adverse nature of the publicity, not merely its quantity, that is critical in finding presumptive prejudice. Id. at 649. Second, this Court noted that hostile and accusatory news coverage is not enough to justify a change of venue. Id. Distinguishing between straightforward factual publicity about a celebrated case and inflammatory, adverse press is crucial. To ignore these real differences in the potential for prejudice would not advance the cause of fundamental fairness, but only make impossible the timely prosecution of persons who are well known in the community, whether they be notorious or merely prominent. Id. (quotation omitted). Third, this Court determined that [e]xposure to inadmissible evidence... is not sufficient to presume jury prejudice. Id. at 650. Fourth, relying upon the presumption that jurors follow instructions, this Court noted that publicity is of little moment if it is dated after the court issues an admonishment not to read or view media accounts concerning the case. Id. And fifth, this Court noted that [m]ere familiarity... is not sufficient to presume prejudice. Id. Applying those principles, this Court held that Smart had failed to demonstrate presumed prejudice. With respect to the unprecedented amount of media coverage, this Court concluded that although some pieces were hostile and accusatory, the overwhelming bulk of the

27 -125- material submitted consisted of straightforward, unemotional factual accounts of events and of the progress of the case. Id. at 649. With respect to the fact that the media had reported upon facts that were not admissible at trial, this Court cited the familiar principle that exposure to such evidence was not enough to presume prejudice and noted that the one juror who acknowledged having heard about such evidence was the subject of a peremptory strike by the State. Id. at 650. With respect to actual prejudice and the fact that some jurors were familiar with the defendant s case, this Court noted that those who had prejudged the defendant s guilt were excused for cause or by the use of peremptory strikes. Id. The Court further noted that no member of the defendant s jury expressed an opinion on voir dire that she was guilty. And, importantly, none sat on her jury over objection. It is difficult to conclude in such circumstances that the trial court s finding that the jury was impartial constituted manifest error. Id. at 648, 653. This Court offered similar reasoning in Laaman, 114 N.H. at 796. There, the defendant was charged with bombing the Manchester police and fire departments. Almost immediately after his arrest, he became the subject of continuous and widespread coverage by all factions of the news media, most notably, at least in terms of characterization, by the Manchester Union Leader. Id. at 797. The coverage continued and increased in intensity in the days leading up to and even during his trial.

28 -126- Id. It included photographs of the defendant, details about his previous criminal activities, and discussions about the different phases of the trial, the verdicts, and sentencing. Id. at One local radio station ran forty-five different news stories, over a four-month period, regarding the defendant and his criminal activities. Id. at Despite the heavy volume of publicity, this Court rejected the defendant s claims of presumed and actual prejudice. With respect to presumed prejudice, this Court contrasted Laaman s case with the facts of Rideau and Sheppard, and concluded that the publicity in Laaman s case did not prevent him from receiving a fair trial. Id. at 799. With respect to actual prejudice, this Court determined that it was not enough to allege adverse publicity without a showing that as a result thereof, the jury was not free from the dominant influence of knowledge acquired outside the courtroom thus creating a reasonable likelihood that a fair trial was not had. Id. Further, this Court stated, To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Id. at 800. Accordingly, this Court held that, notwithstanding the fact that several jurors had been exposed to press coverage of the crime, the defendant received a fair and impartial jury trial consistent with the

29 -127- requirements of due process because all of the jurors who decided his case stated under oath that they had not prejudged the case and would decide it in accordance with the evidence presented in court. Id. at 801. The legal principles that this Court set forth and relied upon in Smart and Laaman were not novel in New Hampshire. Over a hundred years ago, in State v. Sawtelle, 66 N.H. 488, (1891), a defendant, who had been charged with murder, asserted a violation of his right to be tried by a fair and impartial jury because a juror was empanelled despite that juror s assertion that he already had formed so strong an opinion that it would have required evidence to change it. This Court rejected that position, reasoning that jurors: generally form, and frequently express, opinions of the guilt and the deserts of the accused, in a case of this kind, before the trial. Upon newspaper report they often declare with emphasis that he ought to be hung, and that they would hang him if they were on the jury. There is no occasion for surprise when those who have been the most violent in such denunciation, being empanelled in his case, are led by the evidence and a sense of responsibility to take a firm stand on the other side.... Few, if any, can be found who have not formed an opinion of more or less strength before the cause comes to trial.... The difference between an impression and an opinion even a fixed and settled opinion is a difference of degree only. However weak it may be, further consideration or further information is necessary to change it. When persons drawn for jury service say they have formed opinions which it would take evidence to remove, or (as in this case) have formed opinions which are so strong that it would require evidence to change them, a portion of their testimony is superfluous. In belief, as in the material world, changes do not occur without reason. Opinions are

30 -128- not formed or abandoned without cause. If all the residents of the county (being otherwise competent) whose opinion of this case could only be changed by evidence were excluded from the jury, the defendant could not be tried. The possibility or probability of obtaining jurors who had not formed an opinion was properly considered. The question was not whether those examined as to their judicial competency could change their minds without cause, but whether they could and would disregard the information they had received and the opinions they had formed concerning the case, and render a verdict on nothing but the evidence given them during the trial. This was a question of fact to be determined at the trial term. Id. (quotations and citations omitted); see State v. Pike, 49 N. H. 399, 407 (1870) (refusing to reverse a conviction where a juror testified that he had read reports about the case in the newspapers and had formed the impression that the defendant was guilty; that he paid little attention to such reports; that, notwithstanding the impression he had received from the reports that he had read, he thought he could try the defendant on the evidence without prejudice; and that he thought he had no opinion or impression which would prevent him from trying the defendant impartially on the evidence); see also State v. Lister, 122 N.H. 603, 606 (1982) (rejecting claim that the jury was not impartial, where the defendant escaped during jury selection, and the five jurors already selected and all of the veniremen assured the court that the escape would not affect their ability to decide the case fairly); State v. Sullivan, 121 N.H. 301, (1981) (upholding the denial of a motion to change venue even though the defendant s family had a history of trouble with

31 -129- local police and the defendant had a reputation for brawling); State v. Stewart, 116 N.H. 585, 586 (1976) (rejecting claims of presumed and actual prejudice where the defendant was the subject of continuous and widespread media coverage). Nor are such principles novel in case law from across the country. See generally Annotation, Pretrial Publicity In Criminal Case As Ground For Change Of Venue, 33 A.L.R.3d 17 (1970 & Supp. 2012) (collecting cases). Applying those principles to the facts of the instant case compels the conclusion that the trial court s denial of the defendant s motion for a change of venue must be upheld. The defendant failed to demonstrate both presumed prejudice and actual prejudice. The instant case was nothing like Rideau or Sheppard, where the proceedings were more of a farce than a dignified trial. Importantly, the defendant s effort to characterize one aspect of the proceedings as carnival-like, see Def s Mot. to Supp. Record on Venue (filed Nov. 14, 2008), fell flat as the trial court specifically found that his assertions about what happened in the courtroom were incorrect, see Order on Def s Mot. to Supp. The Record on Venue (filed Dec. 29, 2008). Instead, the instant case more closely resembled Smart, Laaman, and Yount, where, despite intense press coverage, the defendants were able to obtain a fair trial by an impartial jury. Accordingly, the trial court s ruling should be upheld.

32 -130- With respect to presumed prejudice, the trial court found that the publicity about the defendant s case, although voluminous, was not the kind of adverse inflammatory publicity that raises a concern about inherent prejudice. Order at Relatedly, the court also found that the bulk of the articles and clips were factual reports, consisting of descriptions and depictions of [the] circumstances of Officer Briggs [s] death and funeral, the defendant s arrest for capital murder, and the legal happenings in the capital case. Order at 10. The court further found that very few editorials about the case displayed hostility towards the defendant. Order at 10. All of these findings are supported by the record and should not be overturned. Further, under the principles that this Court articulated in Smart, each of those findings supports the conclusion that there was no presumed prejudice here. In addition, the court found that although the media did reveal certain facts about the defendant s past that may have been inadmissible at trial, such facts were neither unforgettable nor anything like the spectacle of Rideau s dramatically staged and broadcast confession. Order at 11 (quotation omitted) (referring to the facts of Rideau, 373 U.S. at ). Because [e]xposure to inadmissible evidence, [alone], is not

33 -131- sufficient to presume jury prejudice, this aspect of the trial court s ruling should be regarded as sound. Smart, 136 N.H. at Further, the court found that the publicity was at its heaviest immediately after the death of Officer Briggs and had diminished substantially since that time. Order at 11 (noting that seventy articles appeared in the Union Leader in October 2006, but less than ten appeared in May 2008). Likewise, the court found that while stories concerning the case often headlined WMUR s newscasts in October and November 2006, by 2008, they were very brief and often buried in the middle of newscasts. Order at 11. And the court found that the media accounts had changed in tone over time, from emotional to rather dry. Order at 12. Each of these findings is supported by the record. Further, each also supports the conclusion that presumed prejudice was not present in the instant case. See, e.g., Yount, 467 U.S. at In addition, the court rejected the defendant s reliance upon website comments as a means of demonstrating impermissible and irreparable prejudice because they did not have the same prominence and circulation of an actual press account, because the total number of 3 To the extent the defendant emphasizes that the media reported his confession, DB 111, it is worth pointing out that, at jury selection, defense counsel specifically noted that only a few jurors knew about the confession and that it had been suppressed. JS 1041.

34 -132- comments was small, because the people who posted the comments were anonymous, because the defendant offered no evidence to show that the comments were not posted by a few individuals using many different and false names, and because only a small portion of the comments were actually inflammatory. Order at 12, 14. Those factual findings are supported by the record. But, more importantly, the court s reasoning was sound and it parallels that offered by other courts that have rejected venue claims based upon website comments. See, e.g., State v. Dwyer, 985 A.2d 469, 476 (Me. 2009) (website comments, while less factual, represent the views of a select group that are addressed to a limited audience, and they do not necessarily represent the views held by the public at large ); Commonwealth v. Morales, 800 N.E.2d 683, 688, 690 (Mass. 2003) (comments from a web board did not create presumptive prejudice). Although the defendant tries to portray the publicity and sentiment surrounding his as unique, they are not. See, e.g., DB 111; see also DB 110 (arguing that the trial court failed to give appropriate consideration to the fact that the defendant was facing the death penalty). For example, federal courts have refused to transfer venue in cases that generated much more publicity than the defendant s, such as the prosecutions arising out of the 1993 World Trade Center bombing and the prosecution of John Walker Lindh, a man whom the press called the