State v. Johnson

• Decision Date: 31 July 1991
• Docket Number: No. 91-017,91-017
• Citation: 134 N.H. 570,595 A.2d 498
• Parties: The STATE of New Hampshire v. Kenneth JOHNSON and another.
• Court: New Hampshire Supreme Court

Page 498

595 A.2d 498

134 N.H. 570

The STATE of New Hampshire v. Kenneth JOHNSON and another.

No. 91-017.

Supreme Court of New Hampshire.

July 31, 1991.

John P. Arnold, Atty. Gen. (Michael D. Ramsdell and Mark E. Howard, Asst. Attys. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, orally, and Bjorn Lange, New Hampshire Public Defender Program, Concord, by brief, for defendant Kenneth Johnson.

Twomey & Sisti Law Offices, Portsmouth (Alan J. Cronheim, on the brief and orally), for defendant Anthony Pfaff.

Kinghorn & Maynard P.A., Nashua (Clifford R. Kinghorn, Jr., on the brief and Steven L. Maynard, on the brief and orally), for defendant Jason Carroll.

THAYER, Justice.

In this interlocutory appeal by the State, see RSA 606:10, II(d), we are asked to determine the applicability of New Hampshire's capital punishment statutes, RSA 630:5 (Supp.1990) (effective until Jan. 1, 1991) (hereinafter referred to as "former RSA 630:5") and RSA 630:5 (Supp.1990) (revised effective Jan. 1, 1991) (hereinafter referred to as "current RSA 630:5"), to the defendants, Kenneth Johnson, Anthony Pfaff, and Jason Carroll.

On January 23, 1990, the defendants were indicted on charges, inter alia, of capital murder, RSA 630:1, I(c) (Supp.1990), for their alleged involvement in the death of Sharon Johnson, the wife of defendant Kenneth Johnson. Pursuant to the defendants' motions, and prior to trial, the Superior Court (Murphy, J.) ruled: (1) that retroactive application of current RSA 630:5 would violate the State constitutional prohibition against retrospective laws, see N.H. CONST. pt. I, art. 23; (2) that retroactive application of current RSA 630:5 would also be contrary to the legislature's intent and hence unlawful; and (3) that enforcement of the capital punishment procedures under former RSA 630:5 against the defendants would violate the defendants' constitutional rights to trial by jury, to equal protection under the law and to due process. The State now appeals from these rulings, and we affirm.

The New Hampshire Legislature has provided that "[a] person convicted of a capital murder may be punished by death." RSA 630:1, III. As of January 1, 1991, whenever the State intends to seek the death penalty against a person facing a capital murder charge, it must initiate the detailed procedures set out in current RSA 630:5. This provision represents an extensive revision of the less detailed procedures found in former RSA 630:5, which were in effect when the defendants were indicted. In this appeal, we are not asked to address the broad question of the death penalty's constitutionality, but rather, assuming its validity, whether the revised procedures under current RSA 630:5 are enforceable against these particular defendants. In response to the State's assertion that these revisions should apply in this case, the defendants argue that such an application would be retrospective and thus contrary to the legislature's intent and to the New Hampshire and Federal Constitutions, see N.H. CONST. pt. I, art. 23; U.S. CONST. art. I, § 10. "It is unnecessary for us to address [the] constitutional argument[s] because rules of statutory construction require [current RSA 630:5] to apply prospectively only." LaBarre v. Daneault, 123 N.H. 267, 271, 461 A.2d 89, 92 (1983).

Except for its effective date of January 1, 1991, current RSA 630:5 is silent as to whether it should apply prospectively or retrospectively. The general rule that statutes are only to be applied prospectively, State v. Theodosopoulos, 123 N.H. 287, 289, 461 A.2d 100, 102 (1983); Mihoy v. Proulx, 113 N.H. 698, 700-01, 313 A.2d 723, 725 (1973), is further buttressed by a presumption against retrospective application when the statute affects a party's substantive rights, Norton v. Patten, 125 N.H. 413, 417, 480 A.2d 190, 193 (1984). This presumption, however, reverses when the statute is determined to affect only procedural or remedial rights of a party. Id.; see also LaBarre, 123 N.H. at 271-72, 461 A.2d at 92. Thus, our inquiry turns to the question of whether current RSA 630:5 affects substantive or, rather, procedural rights of the defendants.

Under former RSA 630:5, upon the jury's determination of the defendant's guilt, the judge would proceed to the sentencing phase of the trial. RSA 630:5, II. It was during this phase that the jury was asked to determine whether the defendant should be sentenced to death. Id. at IV. Although the State was given broad latitude to introduce any evidence relevant to sentencing, id. at II, a defendant could not be sentenced to death without a unanimous finding by the jury that at least one of seven statutory aggravators was present. Id. at II(a), IV.

The same basic principles also apply under current RSA 630:5. The jury must still unanimously find statutory aggravators in order to sentence a defendant to death, but now at least two statutory aggravators must be found, and they must be weighed against any mitigating factors which may exist. Id. at IV. The current statute also requires the State to prove the statutory aggravators to the jury beyond a reasonable doubt. Id. at III.

Despite these increased burdens for the State, however, application of current RSA 630:5 adversely affects the defendants' rights in one significant and substantive way. Now, if the jury finds either that the offense occurred "after substantial planning and premeditation," see current RSA 630:5, VII(f), or that "[t]he victim was particularly vulnerable," see id. at VII(g), it may rely on these statutory aggravators in recommending that the defendants be sentenced to death. Under former RSA 630:5, these statutory aggravators were not available as a basis for recommending the death sentence. Compare former RSA 630:5, II(a) with current RSA 630:5, VII(f), (g). Because current RSA 630:5 provides two new statutory grounds upon which the State may seek the death penalty, there is a possibility that the defendants may now face capital punishment because of circumstances which could not have served as the statutory basis for such a penalty under former RSA 630:5. Such a possibility increases the likelihood of imposition of the death penalty and can hardly be considered procedural or remedial in its impact on the defendants.

Faced with a statute that contains no expression of the legislature's intent that it be applied retrospectively and that also has an adverse and substantial impact on the rights of the defendants, we agree with the superior court's conclusion that "the legislature did not intend [that current RSA 630:5] apply to incidents occurring prior to its effective date." Thus, the State's argument for retroactive application of current RSA 630:5 fails. In view of our holding, the parties' constitutional issues pertaining to the retrospective application of current RSA 630:5 are rendered moot. See LaBarre, 123 N.H. at 271, 461 A.2d at 92.

As it did before the superior court, the State also argues that, absent the applicability of current RSA 630:5, the defendants are subject to former RSA 630:5, which sets forth the capital punishment procedures existing at the time the alleged murder occurred. In pertinent part, this statute provides:

"I. At the conclusion of all cases of capital murder and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without consideration of punishment.

II. If the jury returns a verdict of guilty, the court shall resume the trial and conduct a pre-sentence hearing before the jury at which time the only issue shall be the determination of punishment to be imposed, at which evidence may be presented as to any matter that the court deems relevant to sentence, including the following aggravating or mitigating circumstances: ..."

Former RSA 630:5.

The trial court disagreed with the State and ruled that, based on the above language, the statutory capital punishment procedures do not apply in cases where defendants plead guilty to capital murder, thus removing the threat of the death penalty upon a guilty plea. Under this interpretation of the statute, the defendants face the dilemma of choosing between waiving their constitutional right to a jury trial by pleading guilty, thereby subjecting themselves to a maximum punishment of life imprisonment, or asserting their right to a trial, whereupon, if found guilty, they could be subject to a maximum punishment of death. According to the trial court, such a choice violates the defendants' constitutional rights to due process and equal protection.

On appeal, the State asserts that the trial court's interpretation of the statute is in error. According to the State, the statute applies to all defendants, regardless of whether they plead guilty or are found guilty by a jury, and, thus, there is no constitutional violation. In reaching this conclusion, the State maintains that former RSA 630:5 is ambiguous, and, therefore, we should examine the pertinent case law and legislative history in order to determine the legislature's intent. Under the State's interpretation of former RSA 630:5, the ambiguity lies in the fact that the statute appears to exclude defendants who plead guilty to capital murder, while it requires a jury to consider a verdict in "all cases of capital murder." Former RSA 630:5, I. The State maintains that such a result could not have been intended because it contradicts prior case law. The State further maintains that this case law and the legislative history of former RSA 630:5 reveal no intention to limit the trial court's authority when a defendant admits his or her guilt. Relying on this court's decision in State v. Comery, 78 N.H. 6, 95 A. 670 (1915), and its own interpretation of the capital punishment statutes that preceded former RSA 630:5, the State asserts that when a defendant pleads guilty to capital murder, the trial court...