State v. Ayer
| Decision Date | 26 September 2003 |
| Docket Number | No. 2000–513.,2000–513. |
| Citation | 834 A.2d 277,150 N.H. 14 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Daniel AYER, Sr. |
Peter W. Heed, attorney general (Kelly A. Ayotte, associate attorney general, on the brief, and Simon R. Brown, senior assistant attorney general, orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, by brief and orally, for the defendant.
Daniel E. Ayer, Sr., by brief, pro se.
The defendant, Daniel Ayer, Sr., appeals his conviction for first-degree murder and its mandatory sentence of life in prison without parole, see RSA 630:1–a (1996), which were entered after a jury trial in the Superior Court (Hampsey , J.). We reverse and remand.
On August 20, 1999, the defendant shot Mark Rowland, a Nashua social worker, when he arrived at the defendant's home for a previously scheduled appointment. Rowland died from the gunshot wound and the defendant was arrested for his murder.
After booking the defendant at the Nashua Police Department, two detectives took the defendant to an interrogation room for questioning. The detectives advised the defendant of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and obtained his waiver. Then, after the detectives questioned him for an hour and fifteen minutes, the defendant inculpated himself. The detectives asked the defendant if he would recount their conversation on videotape, to record a statement with his confession. The defendant agreed and the detectives recorded a forty-five minute statement with his confession. Only ten minutes of the recorded statement was introduced at trial. Soon thereafter, the defendant was indicted for Mark Rowland's murder. The defendant pleaded "not guilty" and his case was docketed for a jury trial.
On July 18, 2001, after eight days of jury selection but before the jury was sworn, the defendant moved to be allowed to represent himself after the jury was empanelled. After conducting a colloquy to determine if the defendant's request was knowing, intelligent and voluntary, the trial court granted the defendant's motion. The following day upon reconsideration, however, the trial court reversed its ruling because of the defendant's intention to proceed with trial pro se , in absentia to protest certain earlier rulings the trial court had made.
The trial court ruled that proceeding pro se in absentia would be incompatible with self-representation, finding that although "the defendant is a competent individual, and ... he has been made aware of the dangers and disadvantages of self-representation[,] ... he has chosen to disregard these consequences in an effort to denounce the judicial process." The trial court found that these circumstances "skewed [the defendant's] otherwise knowing and intelligent ability to waive his right to counsel and represent himself in his trial for first-degree murder." Consequently, the trial court denied the defendant's motion and ordered his two appointed public defenders to continue representing him through trial.
The defendant filed an interlocutory appeal of this ruling, which we accepted. The trial court, however, refused to stay the trial and swore in the jurors, allowing opening statements, a view and eight witnesses to be examined over two days of trial, before we ordered a stay of proceedings on July 20, 2001. The next day, we summarily reversed and remanded to the trial court based upon our holding in State v. Davis, 139 N.H. 185, 650 A.2d 1386 (1994), which allows a defendant to proceed pro se in absentia after a jury has been empanelled if he does so in a knowing, intelligent and voluntary manner.
On remand, the trial court held a hearing on the appropriate remedy for its denial of the defendant's right of self-representation at that stage of trial. The defendant argued that the only appropriate remedy was a complete dismissal of his case with prejudice for the trial court's violation of his constitutional rights. The State, however, requested an opportunity to brief and be heard on the legal issues raised by the defendant's request for a mistrial with prejudice. The defendant did not object, and the trial court gave each party the opportunity to brief their positions. After reviewing the legal briefs, the trial court denied the defendant's request for a mistrial with prejudice and granted the State's request for a further hearing on whether the trial court, sua sponte , should grant a mistrial without prejudice over the defendant's objection or whether it should continue the trial.
At the second hearing, the defendant again argued that the only appropriate remedy was a complete dismissal of the charges because, otherwise, he would be required to sacrifice his constitutional rights to proceed pro se , to be tried by an impartial jury, and to be protected from double jeopardy. The State represented that the decision was within the court's discretion, and the State would proceed either with the same jury panel if the trial continued or with a new jury panel at a new trial if a mistrial without prejudice were granted. The trial court ruled that, before ordering either remedy, it would individually voir dire each of the fifteen jurors to determine whether, in light of the defendant's newly pro se in absentia status, they had been tainted by the defendant's earlier representation by counsel, thereby preventing the defendant from receiving a fair trial. Cf . State v. Gould, 144 N.H. 415, 417–18, 743 A.2d 300 (1999) ().
Before doing so, the trial court again asked the parties if they objected to a mistrial without prejudice. The defendant did, citing double jeopardy and his earlier request for a mistrial with prejudice, and reminded the court that he did not waive his double jeopardy protections or his rights to a fair trial under the State and Federal Constitutions. The trial court then asked if the defendant had any comments on the trial court's proposed voir dire of the jurors. The defendant answered: The trial court finally engaged the defendant in the following colloquy to clarify his legal position on each issue:
(Emphasis added.) The trial court then questioned the fifteen jurors on the record and decided to continue trial with the jury already empanelled, finding that neither manifest necessity nor the ends of public justice required a mistrial.
After hearing two days of unchallenged testimony and argument presented by the State, the jury deliberated for five hours and returned a guilty verdict on the charge of first-degree murder. The trial court entered the mandatory sentence of life imprisonment without parole, and this appeal followed.
On appeal, the defendant argues that: (1) the trial court erred by not granting a mistrial without prejudice over his objection; (2) the trial court erred by not suppressing the incomplete recording of his statement at the Nashua Police Department; (3) the trial court denied his right to be tried by a jury of his peers because it improperly excluded all jurors with financial hardships; and (4) the trial court should have recused itself after he threatened to harm court personnel. The defendant, pro se , also argues that: (1) the trial court erred by denying his request for a mistrial with prejudice; (2) the juror compensation scheme is unconstitutional; and (3) he received ineffective assistance of counsel in this appeal because the appellate defender did not address his seventeen other issues preserved in his notice of appeal.
The defendant argues that the trial court should have ordered, sua sponte , a mistrial without prejudice over his objection, because the denial of his right...
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