THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 2008 ...

THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 2008-0945

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

Summary of the Argument

David M. Rothstein Deputy Chief Appellate Defender NH Bar #: 5991 Christopher M. Johnson Chief Appellate Defender NH Bar #15149 Richard C. Guerriero New Hampshire Public Defender NH Bar #10530 Heather S. Ward New Hampshire Public Defender NH Bar #17661 NH Appellate Defender Program 2 White Street Concord, NH 03301 (603) 228-9218 (Oral Argument Requested)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ix

QUESTIONS PRESENTED

1

STATEMENT OF THE CASE

10

STATEMENT OF FACTS

16

SUMMARY OF THE ARGUMENT

83

ARGUMENTS

I. THE TRIAL COURT ERRED IN DENYING ADDISON'S

MOTIONS FOR CHANGE OF VENUE, BECAUSE ALLOWING

THE STATE TO TRY HIM FOR THE MURDER OF A

MANCHESTER POLICE OFFICER BEFORE JURORS DRAWN

FROM MANCHESTER AND ITS SURROUNDING

COMMUNITIES VIOLATED HIS RIGHT TO A FAIR TRIAL

90

A. Introduction

90

B. Addison's Motions for Change of Venue

95

C. Basic Constitutional Principles

96

D. The Pretrial Publicity

99

E. Jury Selection

104

1. Case-specific cause dismissals

105

2. Publicity

106

3. Positive remembrances of Officer Briggs

107

4. Negative comments about Addison

107

F. Inherent Prejudice

108

G. Effect of Publicity on the Venire

114

H. The State Exploited the Trial Court's Venue Ruling

117

i

II. THE TRIAL COURT ERRED IN FAILING TO GRANT THE

PARTIES' JOINT REQUEST FOR ADDITIONAL PEREMPTORY

CHALLENGES

121

III. THE TRIAL COURT ERRED IN DENYING ADDISON'S

MOTIONS TO DISMISS FOR CAUSE PROSPECTIVE JURORS

A-8 AND B-15

133

A. The Legal Principles Governing Eligibility to Serve as a

Capital Sentencing Juror

134

B. The Trial Court's Error in Qualifying Two Prospective

Jurors Requires Reversal of the Death Sentence

143

1. Juror B-15

143

2. Juror A-8

151

3. The erroneous rulings require reversal

155

IV. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE

TO ADMIT, AT THE GUILT PHASE, DETAILS OF THE

CRIMES UNDERLYING ADDISON'S PRIOR CONVICTIONS

158

A. The Other Crimes Evidence

158

B. Rule 404fb): Necessity and Scope

165

C. The 7-Eleven Video and Birely Gun Evidence

173

D. Conclusion

174

V. THE TRIAL COURT ERRED IN ADDING LANGUAGE TO THE

STANDARD REASONABLE DOUBT INSTRUCTION THAT

FAVORED THE PROSECUTION AND REDUCED ITS

BURDEN OF PROOF

176

VI. THE TRIAL COURT ERRED IN BARRING THE DEFENSE

FROM INTRODUCING ADDISON'S STATEMENT TO THE

MANCHESTER POLICE IN THE TRIAL'S DEATH ELIGIBILITY

AND SENTENCE SELECTION PHASES

186

A. The Ruling Violated RSA 630:5, III

191

B. The Trial Court's Assertion of the Power to Exclude

Evidence It Found Not Credible Violated the State and

Federal Constitutions

197

ii

C. The Court Erred in Finding the Evidence Not Reliable

202

VII. THE TRIAL COURT ERRED IN RULING THAT NEW

HAMPSHIRE LAW AUTHORIZES VICTIM IMPACT

EVIDENCE, AND IN RULING THAT THE EVIDENCE

ADMITTED DID NOT EXCEED THE SCOPE OF WHAT IS

PERMISSIBLE UNDER THE DUE PROCESS CLAUSE

205

A. Payne v. Tennessee

205

B.. Victim Impact Evidence is Inadmissible Absent Statutory

Authority

206?

C. The Victim Impact Evidence Exceeded the Scope of What

Was Necessary to Afford the Jury a "Quick Glimpse" of

Briggs's Life and the Harm to his Family

209

1. Summary of the victim impact evidence

210

i. Laura Briggs

211

ii. Melissa Briggs

211

111. Mary Ann Briggs

212

IV. Leland Briggs

212

2. The applicability of RSA 630:5, III

213

3. State and Federal Constitutional principles

214

4. Application of the admissibility factors

221

VIII. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO

ADMIT IRRELEVANT EVIDENCE OF GENERAL PRISON

CONDITIONS

226

A. The Prison Conditions Evidence

227

B. Other References to Prison Conditions Evidence

230

C. Legal Principles

231

D. Cases Addressing General Prison Conditions Evidence

234

1. Permissible use of confinement evidence to show

adjustment to prison life

234

111

2. Impermissible use of evidence of general prison

conditions

237

E. The Trial Court Erroneously Admitted Evidence of

General Prison Conditions

242

IX. IF THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF

GENERAL PRISON CONDITIONS FOR A LIFE WITHOUT

PAROLE INMATE, IT ERRED IN DENYING ADDISON'S

REQUEST TO INFORM THE JURY OF THE MODE OF HIS

EXECUTION

245

X. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE

TO CALL EIGHTEEN WITNESSES TO TESTIFY ABOUT

ADDISON'S PRIOR CONVICTIONS AT SENTENCING,

BECAUSE THE EVIDENCE WAS INADMISSIBLE UNDER

RSA 630:5, III, AND ITS ADMISSION VIOLATED THE DUE

PROCESS AND CRUEL AND UNUSUAL PUNISHMENT

CLAUSES

249

A. The State's Introduction of Evidence of Addison's Other

Crimes at Sentencing

249

B. Addison's Objections to the Other Crimes Evidence

25 i

C. The Trial Court Erred in Admitting Detailed Evidence of

the Crimes Underlying Addison's Prior Convictions at

Sentencing

255

1. New Hampshire law

256

2. Out-of-state cases

257

D. The Other Crimes Evidence Was Prejudicial

263

XI. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO

ADMIT SENTENCING PHASE TESTIMONY THAT ADDISON

POSSESSED A GUN AT 267 CENTRAL STREET, WHERE

THE ALLEGATION WAS NOT INCLUDED IN THE STATE'S

NOTICE OF INTENT TO SEEK THE DEATH PENALTY

269

XII. THE PROSECUTION'S IMPERMISSIBLE SENTENCE

SELECTION PHASE CLOSING ARGUMENT REQUIRES

REVERSAL OF THE DEATH SENTENCE

275

A. Due Process Bars Argument Amounting to Comment on

General Deterrence

281

IV

B. The Prosecution's Comment on Addison's Assertion of

His Constitutional Rights Warranted a Mistrial

288

C. In Two Respects, the Prosecutor's Arguments Require

Reversal as Plain Error

296

1. The prosecutor misused victim impact evidence

296

2. The prosecutor improperly minimized the

seriousness of the sentence of life imprisonment

without parole

299

3. The arguments require reversal on plain error

review

301

D. The Cumulative Effect of Prosecutorial Misconduct in

Closing Argument Requires ReversaL

304

XIII. THE CAPITAL SENTENCING STATUTE VIOLATES DUE

PROCESS BY EXCLUDING FROM THE WEIGHING

PROCESS MITIGATING CIRCUMSTANCES NOT PROVEN BY

A PREPONDERANCE OF THE EVIDENCE, AND BY NOT

REQUIRING THAT JURORS BE CONVINCED BEYOND A

REASONABLE DOUBT BEFORE THEY IMPOSE A DEATH

SENTENCE

307

A. The Capital Sentencing Statute Violates Due Process by

Preventing Jurors from Weighing Mitigating

Circumstances which are Not Proven by a Preponderance

of the Evidence

309

1. Due process generally

310

2. No litigant has a greater interest in due process

than a capital defendant in a sentence selection

hearing

311

3. The preponderance standard for mitigating factors

unnecessarily increases the risk of error by

excluding important evidence from the weighing

process

312

a. Preponderance is Not the Lowest Standard

312

b. The Preponderance Standard Prevents Jurors

from Considering Important Mitigating

Evidence

315

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