State v. Addison

• Decision Date: 06 October 2010
• Docket Number: No. 2008–945.,2008–945.
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Michael ADDISON.

160 N.H. 732

7 A.3d 1225

The STATE of New Hampshire

v.Michael ADDISON.

No. 2008–945.

Supreme Court of New Hampshire.

Argued: April 28, 2010.

Opinion Issued: Oct. 6, 2010.

Michael A. Delaney, attorney general (N. William Delker, senior assistant attorney general, and another on the brief, and Mr. Delker orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, and another on the brief, and Mr. Rothstein orally, for the defendant.

Cassandra Stubbs and Brian W. Stull, of Durham, North Carolina, staff attorneys, on the joint brief, for the American Civil Liberties Union Foundation, as amicus curiae.

Barbara Keshen, of Concord, staff attorney, on the joint brief, for the New Hampshire Civil Liberties Union, as amicus curiae.

Bernstein Shur, of Manchester (Andru H. Volinsky on the brief), for Chief Justice Deborah T. Poritz (Ret.) and Professor Carol S. Steiker, as amici curiae.

Brennan Caron Lenehan & Iacopino, of Manchester (Michael J. Iacopino on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.

Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Jason R.L. Major on the brief), for New Hampshire Associations of Chiefs of Police, The New Hampshire Sheriff's Association, The New Hampshire Police Association, and The New Hampshire Troopers Association, as amici curiae.

BRODERICK, C.J.

This is the second opinion in which we address the process we will follow in applying the provisions of RSA 630:5 (2007) to our mandatory review of the defendant's sentence of death. See State v. Addison, 159 N.H. 87, 977 A.2d 520 (2009).

I

The defendant, Michael Addison, was convicted of capital murder for the killing of a law enforcement officer acting in the line of duty. See RSA 630:1, I(a) (2007). On December 18, 2008, a jury recommended that he be sentenced to death, RSA 630:5, IV, and four days later, the Superior Court (McGuire, J.) imposed the recommended sentence, see RSA 630:5, V. His conviction and sentence are before us on appeal. See RSA 630:5, X.

In Addison, we addressed the parties' responses regarding the recommended procedure and schedule to be followed in this appeal. In response to our request that the parties address five enumerated questions, they submitted joint answers to four of them but were unable to agree as to "[t]he process that the court should follow in reviewing the sentence of death, and in making the specific determinations required by RSA 630:5, XI." Addison, 159 N.H. at 89, 977 A.2d 520. While we concluded that formal rulemaking for review of death penalty cases was not required, id. at 93, 977 A.2d 520, we also concluded that "in the interest of fairness, because the parties do not have the benefit of [any] prior interpretation of RSA 630:5 [by this court], we will determine the standards to be applied to each of the three factors in RSA 630:5, XI prior to our review of the merits." Id. at 94, 977 A.2d 520.

Accordingly, on July 29, 2009, we issued the following order, which states in pertinent part:

RSA 630:5, XI provides:

XI. With regard to the sentence the supreme court shall determine:

(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (b) Whether the evidence supports the jury's finding of an aggravating circumstance, as authorized by law; and

(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Pursuant to our opinion dated July 9, 2009, the parties are ordered to file briefs addressing the following:

The process that the court should follow in reviewing the sentence of death and in making the specific determinations required by RSA 630:5, XI, and the standards the court should apply to each of the three factors enumerated in RSA 630:5, XI.

We will decide the standards this court should apply to RSA 630:5, XI(a) and (b) as necessary in the merits appeal. At this juncture we address only section XI(c), commonly known as comparative proportionality review. As we have noted previously, "states that continue to require a comparative proportionality review have developed standards." Addison, 159 N.H. at 94, 977 A.2d 520. However, in New Hampshire, RSA 630:5, XI(c) has not yet been construed because the defendant's case is the first death sentence imposed since the provision was enacted. Thus, the issue of the standards to be applied under RSA 630:5, XI(c) is a question of first impression. See id.

II

Paragraphs X to XII of RSA 630:5 establish the procedure we are required to follow in reviewing a capital murder appeal when a defendant has been sentenced to death. Paragraph XI specifically requires us to make three determinations with regard to the sentence. The third of these determinations is "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RSA 630:5, XI(c). This provision must be construed in light of several decisions of the United States Supreme Court that outline constitutionally permissible legislative choices for the administration of the death penalty. We turn then to that history.

In 1972, the Supreme Court struck down capital punishment statutes in Georgia and Texas that left the decision to impose the death penalty to the uncontrolled discretion of the judge or the jury. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The Court held that death sentences imposed and carried out under such statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Id. Although five justices supported the per curiam decision, they did so for varying reasons, with each justice writing a separate opinion.

Justice Douglas concluded that sentencing procedures which vested juries with uncontrolled discretion in deciding whether to impose capital punishment led to arbitrary application of the death penalty to "unpopular minorities," id. at 255, 92 S.Ct. 2726 (Douglas, J., concurring), thereby violating the principle of equal protection implicit in the ban on cruel and unusual punishments, id. at 253–57, 92 S.Ct. 2726 (Douglas, J., concurring). Justices Brennan and Marshall concluded that the death penalty constituted cruel and unusual punishment in all circumstances. Id. at 305, 92 S.Ct. 2726 (Brennan, J. concurring); id. at 370, 92 S.Ct. 2726 (Marshall, J. concurring). Justice Stewart concluded that the death sentences in the case before the Court were cruel and unusual because they were "wantonly" and "freakishly" imposed upon a capriciously selected few, "in the same way that being struck by lightning is cruel and unusual." Id. at 309–10, 92 S.Ct. 2726 (Stewart, J., concurring). Justice White concluded, based upon the infrequent imposition of the death penalty and the lack of a meaningful basis for distinguishing cases in which it was imposed from those in which it was not, that the discretionary imposition of the death penalty constituted cruel and unusual punishment. Id. at 310–14, 92 S.Ct. 2726 (White, J., concurring). Accordingly, the Court reversed in part and remanded for further proceedings. Id. at 240, 92 S.Ct. 2726.

As a result of the Furman decision, many states revised their death penalty statutes to comply with its constitutional commands. In 1976, the Supreme Court upheld the post-Furman death penalty statutes of Georgia, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Florida, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Texas, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), but rejected as unconstitutional the mandatory death penalty statutes of North Carolina, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Louisiana, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The Georgia statute upheld in Gregg narrowed the class of defendants subject to capital punishment to those who committed homicide and against whom the jury found at least one of ten statutory aggravating circumstances beyond a reasonable doubt. Gregg, 428 U.S. at 196–97, 96 S.Ct. 2909 (plurality opinion). In addition, the Georgia statute allowed the jury to consider any other appropriate aggravating or mitigating circumstances in determining the sentence. Id. at 197, 96 S.Ct. 2909. The statute also provided for expedited direct review by the Georgia Supreme Court of "the appropriateness of imposing the sentence of death in the particular case." Id. at 166, 96 S.Ct. 2909. The state court was directed to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and ... [w]hether ... the evidence support[ed] the jury's or judge's finding of a statutory aggravating circumstance ..., and ... [w]hether the sentence of death [was] excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Id. at 166–67, 96 S.Ct. 2909 (quotation omitted).

The majority of the Court in Gregg rejected the argument that the death penalty constitutes cruel and unusual punishment in all circumstances, id. at 187, 96 S.Ct. 2909 (plurality opinion), 226, 96 S.Ct. 2909 (White, J. concurring), and determined that the Georgia statute was constitutional because it gave the sentencing authority adequate guidance in the exercise of its discretion, id. at 195, 198, 96 S.Ct. 2909 (plurality opinion). The Court construed Furman as holding that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Id. at 188, 96 S.Ct. 2909. As the Court explained, "Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of...