State v. Lamy, No. 2008-189.

CourtSupreme Court of New Hampshire
Writing for the CourtDuggan
Citation969 A.2d 451
PartiesThe STATE of New Hampshire. v. Joshua LAMY.
Docket NumberNo. 2008-189.
Decision Date08 April 2009
969 A.2d 451
The STATE of New Hampshire.
v.
Joshua LAMY.
No. 2008-189.
Supreme Court of New Hampshire.
Argued: January 15, 2009.
Opinion Issued: April 8, 2009.

[969 A.2d 453]

Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.


After a jury trial in the Superior Court (Abramson, J.), the defendant, Joshua Lamy, was convicted of three felony counts of aggravated driving while impaired, see RSA 265:82 (2004) (repealed 2006; current version at RSA 265-A:3 (Supp.2008)), two counts of second degree assault, see RSA 631:2 (2007), two counts of manslaughter, see RSA 630:2 (2007), and two counts of negligent homicide, see RSA 630:3 (2007), and was sentenced to the state prison for forty-and-one-half to eighty-one years. He appeals his convictions, arguing that the trial court erred in not dismissing the manslaughter indictment pertaining to the death of D.E., in not granting a mistrial because of juror misconduct, and in drawing the inference at sentencing that he lacked remorse. We affirm in part, reverse in part, and remand.

The jury could have found the following facts. Around 1:00 a.m. on February 18,

969 A.2d 454

2006, the defendant, while intoxicated, drove his car down Maple Street in Manchester. Traveling at speeds over 100 miles per hour, the defendant ran multiple red lights before colliding with a taxi. The collision caused serious injuries to the defendant and his passenger, as well as the driver of the taxi, Brianna Emmons, and her passenger. The passenger in the taxi later died from her injuries.

Because Emmons was seven months pregnant at the time of the collision, she was brought directly to the labor and delivery floor at Elliot Hospital. As a result of the injuries she sustained, blood flow to the fetus, D.E., was cut off, necessitating an emergency Cesarean section. Prior to the Cesarean section, D.E. showed a severely depressed heart rate of fifty beats per minute. However, by the time doctors extracted D.E. they noted that "he was limp, pale, had no spontaneous breathing on his own, and no detectible heart rate." He was "basically in cardiac arrest."

Nine-and-a-half minutes later, doctors were able to stimulate D.E.'s heart with medication and return his heart rate to normal levels. Through "heroic resuscitative efforts, medications, lines, intubation, and so forth," the doctors were able to stabilize D.E. Once a heart rate was reestablished, doctors immediately gave him medication to maintain his blood pressure and put him on a respirator to assist with his breathing. A birth certificate was issued.

From the moment of extraction, D.E. never showed any evidence of neurological function, and never manifested the ability to breathe on his own. He was removed from life support about two weeks later and died of perinatal asphyxia resulting from maternal abdominal trauma, which was caused by decreased blood flow after Emmons sustained injuries.

At the close of the State's evidence, the defendant moved to dismiss the manslaughter indictment pertaining to D.E., arguing that the State had failed to prove that D.E. was "born alive," as required under New Hampshire law. The trial court denied the motion, stating: "[T]here is evidence from Doctor Andrew that the child was born alive and the weight, if any, to be given to Doctor Andrew's testimony is an issue for the jury and not the court." The case was submitted to the jury, which returned guilty verdicts on all charges.

At sentencing, the trial court stated that it had considered the goals of sentencing, the pre-sentence investigation (PSI) report, the arguments of counsel, the defendant's prior record, the nature of the charges, the victim impact statements and the defendant's own statement before reaching a sentence. The court then stated:

[I]n considering all these factors, in light of the goals of sentencing, you have shown complete disregard for human life.... In addition, there is a clear escalation of your behavior as evidenced by your motor vehicle and your criminal records. In conclusion, I find that you have learned nothing from those records. You cannot begin to fathom the damage that you have caused because nothing haunts you, and I've also taken into account that you've shown really no remorse, and as point in fact I would put on the record that on the second day of trial, after hours of grueling testimony about the human wreckage at the accident scene, your concern at the end of that day was to dispatch your attorney up to the bench to point out that you want to get back to the House of Corrections in time to be able to take your shower. I watched you today as the victims were reading their statements to the Court and you were looking around the courtroom every time a door opened

969 A.2d 455

as if you were bored with the entire thing. You've shown absolutely no remorse.

The trial court then imposed the PSI recommendation, sentencing the defendant to the state prison for forty-and-one-half to eighty-one years. Sentencing for the negligent homicide convictions was held in abeyance pending appeal.

On appeal, the defendant makes three arguments: (1) that the trial court erred in not dismissing the manslaughter indictment pertaining to D.E.; (2) that the trial court erred in not granting a mistrial because of juror misconduct; and (3) that the trial court erroneously drew the inference that he lacked remorse based upon his request to shower after the second day of trial.

I

We first address the defendant's argument that the trial court erred in not dismissing the manslaughter indictment as to D.E. In New Hampshire, to be guilty of manslaughter or negligent homicide, a person must "cause[] the death of another." RSA 630:2, I,:3, II. Our homicide statutes, however, specifically provide that "the meaning of `another' does not include a foetus." RSA 630:1, IV (2007). This language codifies the common law "born alive" rule. Under that rule, "an infant could not be the subject of homicide at common law unless it had been born alive." Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, 620 (1970).

The defendant argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that D.E. was in fact "born alive," thus necessitating dismissal under RSA 630:1, IV. Specifically, he argues that the born alive standard requires a fetus to show spontaneous signs of life and be capable of independent existence, that D.E. lacked both, and was therefore not "another" for purposes of the statute.

This case does not require us to decide the oft-debated question of whether to adopt the born alive rule because, as the State and the defendant agree, the legislature already explicitly adopted the rule when it enacted RSA 630:1, IV. Rather, we must first interpret RSA 630:1, IV to determine the point at which a fetus becomes "another" for purposes of criminal liability, and then determine whether there was sufficient evidence to prove that D.E. was "another" as defined in the statute.

We review a trial court's interpretation of a statute de novo. State v. Horner, 153 N.H. 306, 309, 893 A.2d 683 (2006). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and ascribe the plain and ordinary meaning to the words used, State v. Langill, 157 N.H. 77, 84, 945 A.2d 1 (2008). We interpret legislative intent from the statute as written and will neither consider what the legislature might have said nor add language that the legislature did not see fit to include. Dansereau, 157 N.H. at 598, 956 A.2d 310. We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. Whittey, 149 N.H. at 467, 821 A.2d 1086. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Id. We construe the Criminal Code provisions "according to the fair import of their terms

969 A.2d 456

and to promote justice." RSA 625:3 (2007); see State v. Foss, 148 N.H. 209, 211, 804 A.2d 462 (2002).

We have recognized that our Criminal Code is largely derived from the Model Penal Code. State v. Donohue, 150 N.H. 180, 183, 834 A.2d 253 (2003). For that reason, we have looked to the Model Penal Code and its commentaries when interpreting analogous New Hampshire statutes. Id. The Model Penal Code also adopted the born alive rule, defining a human being as "a person who has been born and is alive." Model Penal Code § 210.0(1), at 4 (1980). The comments to the Model Penal Code state that "[t]he effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been born alive." Id. § 210.1 cmt. 4(c), at 11. Thus, insofar as RSA 630:1, IV is consistent with pre-existing common law, we interpret it as a continuation thereof as opposed to a new enactment. We must therefore look to the common law origins of the born alive rule and its meaning at the time the Criminal Code was enacted. Cf. State v. Aldrich, 124 N.H. 43, 48, 466 A.2d 938 (1983).

The born alive rule emerged in fourteenth century England as an evidentiary standard requiring observation of the child to prove the corpus delecti in the killing of an infant. See Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L.Rev. 563, 581 (1987). Because of high infant mortality rates during childbirth, courts required some...

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3 practice notes
  • Castro v. Melchor, No. CAAP–12–0000753.
    • United States
    • Court of Appeals of Hawai'i
    • January 29, 2016
    ...2015); Or.Rev.Stat. § 163.005 (Westlaw 2015); State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010) ; State v. Lamy, 158 N.H. 511, 969 A.2d 451 (2009) ; State ex rel. A.W.S., 182 N.J.Super. 278, 440 A.2d 1144 (N.J.Super.Ct.App.Div.1981) ; State v. Willis, 98 N.M. 771, 652 P.2d 1222 (N.M.Ct.......
  • State v. Russell, No. 2008-458.
    • United States
    • Supreme Court of New Hampshire
    • December 16, 2009
    ...Id. We have looked to federal plain error analysis for guidance in applying our plain error rule. See State v. Lamy, 158 N.H. 511, 524, 969 A.2d 451 (2009); State v. Panarello, 157 N.H. 204, 207, 949 A.2d 732 The State concedes that the trial court erred, and that the error was plain. We ag......
  • State v. McDonald, No. 2010–235.
    • United States
    • Supreme Court of New Hampshire
    • December 28, 2011
    ...“what the legislature might have said nor add language that the legislature did not see fit to include.” State v. Lamy, 158 N.H. 511, 515, 969 A.2d 451 (2009). The defendant argues that the phrase “forcible sex offense do[es] not evoke a single, plain meaning” and urges us to look [35 A.3d ......
3 cases
  • Castro v. Melchor, No. CAAP–12–0000753.
    • United States
    • Court of Appeals of Hawai'i
    • January 29, 2016
    ...2015); Or.Rev.Stat. § 163.005 (Westlaw 2015); State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010) ; State v. Lamy, 158 N.H. 511, 969 A.2d 451 (2009) ; State ex rel. A.W.S., 182 N.J.Super. 278, 440 A.2d 1144 (N.J.Super.Ct.App.Div.1981) ; State v. Willis, 98 N.M. 771, 652 P.2d 1222 (N.M.Ct.......
  • State v. Russell, No. 2008-458.
    • United States
    • Supreme Court of New Hampshire
    • December 16, 2009
    ...Id. We have looked to federal plain error analysis for guidance in applying our plain error rule. See State v. Lamy, 158 N.H. 511, 524, 969 A.2d 451 (2009); State v. Panarello, 157 N.H. 204, 207, 949 A.2d 732 The State concedes that the trial court erred, and that the error was plain. We ag......
  • State v. McDonald, No. 2010–235.
    • United States
    • Supreme Court of New Hampshire
    • December 28, 2011
    ...“what the legislature might have said nor add language that the legislature did not see fit to include.” State v. Lamy, 158 N.H. 511, 515, 969 A.2d 451 (2009). The defendant argues that the phrase “forcible sex offense do[es] not evoke a single, plain meaning” and urges us to look [35 A.3d ......

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