State v. Sanborn, 2013–0882

• Decision Date: 18 December 2015
• Docket Number: No. 2013–0882,2013–0882
• Parties: The STATE of New Hampshire v. Craig Michael SANBORN
• Court: New Hampshire Supreme Court

168 N.H. 400

130 A.3d 563

The STATE of New Hampshire

v.Craig Michael SANBORN

No. 2013–0882

Supreme Court of New Hampshire.

Argued: June 18, 2015

Opinion Issued: December 18, 2015

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

Sisti Law Offices, of Chichester (Mark L. Sisti and Jared Bedrick on the brief, and Mr. Sisti orally), for the defendant.

LYNN, J.

Following a jury trial in the Superior Court (Bornstein , J.), the defendant, Craig Michael Sanborn, was convicted on two counts each of manslaughter, RSA 630:2, I(b) (2007), and negligent homicide, RSA 630:3, I (2007), as the result of an explosion that killed two employees at his gunpowder factory. The court sentenced him to consecutive terms in the state prison on the manslaughter convictions only. On appeal, the defendant challenges, among other things, the manner in which the jury was selected, the sufficiency of the evidence, the verdict, and the sentences. Finding no error, we affirm.

I

The following evidence was presented at trial. The defendant, who was experienced in machine and tool design, engineering, and bullet manufacturing, approached Magkor Industries (Magkor) in 2005 or 2006 about manufacturing its patented gunpowder, Black Mag. His company, Black Mag LLC, in which the defendant owned a majority interest, contracted to manufacture the gunpowder. The defendant originally planned to produce the powder at a facility that he operated in Maine. However, Magkor officials visited that site and expressed concerns that the facility was too small and too close to other buildings. They discussed with the defendant the possibility of placing the machines used in the gunpowder manufacturing process outside, each in a separate "shipping container."¹

Instead, the defendant rented a facility in Colebrook. The building in which the facility was located also housed a church and other businesses and was close to homes, offices, and an apartment complex.

The defendant procured the necessary machinery for the gunpowder manufacturing facility, and was "in charge of production in the facility." He also had "full responsibility" for manufacturing.

Magkor's president, Giovanni Brus, testified that, in the pre-production phase, he gave the defendant safety specifications written by Magkor's explosives safety authority, Jerry Hall. These safety specifications included a diagram showing the proper layout for a facility producing the gunpowder. It also called for minimum distances between the machines, bunkering or barricading between the machines, and remote operation of the machines from a distance of 150 feet. Brus testified that the purpose of providing these safety specifications was "to make sure that whoever is subcontracted to produce the powder would realize the possible danger if they don't follow certain guidelines as far as the facility and production."

Peter Keddy, the defendant's electrician, installed electrical wiring at the facility in 2009. He testified that in an area that is dusty or where there are explosive vapors, an electrician would normally install wiring resistant to dust or explosive vapors. However, the defendant—himself a master electrician—told Keddy that, because of the type of ventilation system used, there would not be any hazardous debris or dust in the facility. Based upon these representations, Keddy used standard wiring. He also noticed that standard wiring, installed by someone else, existed throughout the facility and that there was a ceiling-mounted gas heater with an open flame in the area of the machines.

Magkor officials visited the Colebrook facility in the spring of 2009 and again in 2010, and each time expressed numerous safety concerns. At trial, Gregory Dixon, a Magkor stockholder with thirty years of experience in fireworks and explosives manufacturing, testified that he told the defendant "that the machines were too close together and [that] they needed to have barricades between them to separate them." He stated that the Magkor board of directors had discussed the safety issues and suggested, given the defendant's budgetary constraints, that he could at least place sandbag walls between the machines. That would be inexpensive and would provide "the minimal amount of safety." Dixon said that the defendant told him that he would obtain concrete blocks to form large barriers between the machines. Dixon also stated that he assumed "that everything would be remotely operated" by the time full production started.

Also in 2010, a chemist who had helped develop Black Mag gunpowder met with the defendant, pre-production, and discussed "separation, distance, barricading and remote operation." The chemist testified that as he discussed these requirements, the defendant "seemed to shrug it off," stating that the powder would merely "flash" in an ignition. The chemist stated that he warned the defendant that a small quantity might "flash," but that with a large quantity of powder, "you can't imagine how serious and how intense an explosion can be on a large scale." The defendant acknowledged that the recommended safety measures were necessary. The chemist followed up by sending the defendant a United States government report detailing Black Mag gunpowder's explosive properties.

In February 2010, the defendant's company received a large purchase order for Black Mag gunpowder that required delivery by May 17, 2010. Gearing up for production, the defendant applied for a license to store 1,000 pounds of powder at the facility. A bomb technician with the New Hampshire State Police, who inspected the facility as part of the application, testified that he informed the defendant that, by state statute, he could store only 50 pounds of powder. The technician thus denied the defendant's application. An officer in charge of reviewing application decisions testified that he contacted the defendant, at the technician's request, and the defendant urged him to grant the license. The officer told the defendant that he essentially was asking permission to store a "thousand-pound bomb." When the defendant insisted that the powder was not explosive but would merely flash, the officer disagreed and informed him that "a thousand pounds of flash powder would burn a person's shadow into the opposing wall." The defendant chuckled and replied, "Well, yeah, it would do that." The officer said there was "no way" he would grant the defendant a license, and he did not do so.

The defendant started production without a state license to store powder. He hired the victims, Donald Kendall and Jesse Kennett, as well as Mark Porter, to assist with manufacturing. Porter testified that the defendant did not provide the employees with safety training or implement safety procedures. There were no written or oral safety policies or instructions about what to do in the event of an emergency, even though a fire marshal told the defendant that "employees should receive training in hazards, extinguishers, [and] emergency operations." Stephen Rook, an investigator with the United States Department of Labor, testified that, when he spoke with the defendant about safety procedures, the defendant told him that the facility did not have a safety compliance officer or a safety department. Employees did not wear protective clothing in hazardous areas, nor were there any warning signs posted. David Oldham, a supervisor at the defendant's facility, testified that the defendant told him and both victims that the powder "could ignite, [but] that it would not explode."

Porter testified that all of the production machines were located together in an area only 25 to 30 feet long, and that there were no materials positioned between the machines as barricades. Employees operated the machines without any formal training or manuals. Porter said he would "[j]ust follow the other guys." Employees used scoops to manually load the machines with powder while the machines were running. They also changed the speed and pressure dials during production. When compressed powder became stuck in the output chute, the defendant told Oldham to "[j]ust bang on it." Accordingly, employees would hit the chute with wooden dowels to make the compressed powder drop down. They also used a mallet to close the hatch door of a grinder. They stored "precursor" components and mixed powders in buckets and trash barrels in the same area as the machines. The employees did not remotely operate the machines; instead, they stood next to the machines to adjust speed. At best, employees could start the equipment from 12 feet away. If it was raining, employees smoked cigarettes inside the facility. Porter testified that he quit after just five-and-a-half days because, as he told the defendant, he thought it was dangerous to work there.

On May 14, 2010, the defendant was away at a trade show. He left Kendall, Kennett, and Oldham to produce gunpowder for the May 17 deadline. They had already made at least 800 pounds of gunpowder, which was stored in the grinding room, and Oldham testified that there was additional powder "all over the place, stored everywhere." One of the machines had short-circuited from a burnt wire, but Oldham rewired it and kept it operating after the defendant told him to do whatever was necessary to fix it. Oldham testified that, during that afternoon, Kendall and Kennett were both running powder through one of the machines. Kendall loaded the powder while Kennett tapped on the chute.

Oldham walked to a separate office to do work on a computer. Suddenly, Oldham heard a "rush of air" and the ceiling tiles "rippled, like a big wave." He looked out a window to the production area and could see nothing but a "really bright orange glow." He saw a flash and "felt a huge explosion" that knocked him to the floor against a wall. He fled the building to the parking lot and watched as explosions continued. He stated that debris rained down ...