State v. Dushame , 136 N.H. 309 ( 1992 )

Per curiam.

The defendant, Peter Dushame, was found guilty after a jury trial in Superior Court (Dalianis, J.) of manslaughter, RSA 630:2; negligent homicide caused by intoxication, RSA 630:3; simple assault, RSA 631:2-a; and driving after revocation, RSA 263:64. He was sentenced to serve fifteen to thirty years in the New Hampshire State Prison. On appeal, the defendant raises three issues: (1) whether the trial court, by substituting an alternate juror for a disqualified juror after jury deliberations had begun in the case, violated RSA 500-A:13; (2) whether the trial court erred by admitting into evidence under New Hampshire Rule of Evidence 404(b) the complaints, records of conviction and notices of revocation resulting from the defendant’s four prior DWI convictions for the purpose of showing that the defendant “recklessly” caused the death of Lacey Packer; and (3) whether the trial court abused its discretion by not allowing a defense expert to testify fully as to the basis of his opinion. We reverse.

Ten-year-old Lacey Packer died on October 3, 1989, as a result of head injuries received when she was struck by a car two days before. She had been a passenger on her father’s motorcycle as they returned home to Massachusetts from a charity motorcycle run in Merrimack, New Hampshire. They were accompanied by two friends, Brian and Denise Rhodes, who were also riding a motorcycle. As they approached the Massachusetts border on the return trip, both motorcycles pulled into the breakdown lane of the Everett Turnpike just south of the Exit 1 southbound on-ramp so that the adults could put on helmets. Lacey was already wearing one.

Shortly afterwards, Brian Rhodes saw a car approaching from the on-ramp traveling in the breakdown lane at high speed. Despite his frantic waving, the car did not reduce its speed or steer onto the roadway. Instead, the driver waved back. Immediately before impact, Brian Rhodes grabbed his wife and leapt to safety over the guardrail; Lacey’s father, unaware of the approaching car, was thrown over the guardrail upon impact and suffered leg injuries; Lacey was hit from behind as she sat on her father’s motorcycle.

The defendant was the driver of the car. Shortly after the accident, the police arrived and the defendant attempted to flee. A police officer ordered the defendant to stop. He complied, and soon after the officer performed a field sobriety test. The defendant failed. He was arrested and taken to the Nashua Police Department, where the police administered a blood alcohol test. The test results showed a .33 blood alcohol content which, according to evidence offered by the State, roughly translates to eighteen alcoholic drinks consumed between the time the defendant was first observed drinking that afternoon and the time the test was administered, nearly eighty minutes after the crash.

Prior to trial, the State moved to be permitted to introduce evidence of the defendant’s five prior DWI convictions for the purpose of showing recklessness. With the exception of the defendant’s earliest DWI arrest in 1981, the trial court granted the State’s motion to admit the evidence. After a subsequent defense motion to suppress, the court limited the admissible evidence to certified copies of the complaints, records of conviction and formal notices of license revocation, thereby excluding from evidence the facts underlying the convictions. On the seventh day of the fourteen-day trial, the State presented the evidence of the DWI convictions to the jury.

I. Substitution of an Alternate Juror

We first consider whether the trial court erred by substituting an alternate juror after deliberations had begun. The evidence shows that the court impanelled fifteen jurors. After trial and at the conclusion of its charge, the court designated three alternates. The trial court instructed them to remain “available” during the course of deliberations and informed the alternates and counsel of its intention to make a substitution in the event that a juror became disabled during the course of deliberations. The defendant did not object to the court’s decision to retain the alternates, but reserved the right to object if the court made a substitution during deliberations. Upon the defendant’s request, the court instructed the alternates to continue adhering to the media rules.

The jury began deliberations at 9:25 a.m. the following morning and recessed for lunch at 12:25 p.m. Shortly after lunch, the forewoman told the judge that the previous weekend she had inadvertently learned that the defendant was incarcerated. The court suspended deliberations and excused the jury for the day in order to give the court and counsel an opportunity to consider the issue of whether the forewoman could be replaced by an alternate.

On the following morning, after a brief voir dire of the forewoman, the court concluded that she was disqualified from continuing, but that she had not tainted the jury by sharing the information. The defendant requested an opportunity to make an independent inquiry to assess the impact of her presence upon the deliberations up until that time. The court denied the request, and over the defendant’s objection, recalled an alternate. After a brief line of questioning, the court found that the alternate had not been exposed to media coverage or outside influence concerning the case and that she was qualified to serve on the jury.

The remaining eleven jurors were called into open court and told that the forewoman had become disabled and that an alternate would be added to the panel. The court randomly selected a new foreperson. Before reconvening deliberations, the court issued instructions to ensure that the deliberations with the alternate started again from “square one.” The instructions admonished the jury to disregard any opinions previously offered by the disabled forewoman, to disregard any direction their deliberation may have taken, and to disregard any preliminary opinions that they may already have formed.

In order to minimize the disruption and to reduce the potential embarrassment of jurors wishing to withdraw from service, the court gave the jurors a period of time to consider individually, without debating as a group, whether they were able to comply with the instructions. The jurors were instructed to give an answer to the court privately through the court bailiff. None expressed doubt concerning their ability to continue serving and the court instructed the jury to reconvene deliberations. After nearly a day and a half of deliberations the jury returned a guilty verdict on the four counts of manslaughter, negligent homicide, simple assault, and driving after revocation.

Whether the trial court erred by substituting the alternate juror during deliberations involves the application of RSA 500-A: 13, which governs the selection, discharge, and impanelling of alternate jurors. The defendant argues that the trial court’s decision to substitute an alternate for the disabled juror after the deliberations had begun violates the statute and should have resulted in a mistrial. The State argues that RSA 500-A:13 should be construed to allow the superior court to substitute alternates for jurors who become disabled during the course of deliberations.

“To determine the meaning of a statute, we first look to see if the language used is clear and unambiguous.” N.E. Brickmaster v. Town of Salem, 133 N.H. 655, 658, 582 A.2d 601, 602 (1990). RSA 500-A:13, IV provides in part:

“If, before the final submission of the case to the jury, one or more jurors becomes incapacitated, is disqualified or dies, his place shall be taken, upon the order of the court, by an alternate juror who shall become one of the jury and serve in all respects as if selected as an original juror.”

(Emphasis added.)

This language is not vague or uncertain. The legislature has clearly stated its intent that courts be allowed to substitute alternate jurors for one or more of the original twelve jurors who might become disabled before the jury begins deliberations. Although acknowledging the clear language permitting pre-submission substitution, the State argues that RSA 500-A:13 does not explicitly prohibit substitution when a juror becomes disabled after submission.

The State's basic premise, that the statute does not consider post-submission substitution, is questionable at best. RSA 500-A:13, III states that, if alternate jurors are not substituted under section IV, they "shall be discharged upon final submission of the case to the jury." (Emphasis added.) We doubt that the legislature implicitly envisioned post-submission substitution while at the same time explicitly mandating courts to dismiss alternate jurors immediately after submission of the case to the jury. See United States v. Hayutin, 398 F.2d 944, 950 (2d Cir.) (no purpose in retaining jurors given legislative failure to provide procedure for substitutions after deliberations), cert. denied, 393 U.S. 961 (1968). Taking liberty with legislative silence by fashioning judicial rules in its stead is contrary to well-settled rules of statutory construction. We have consistently held that "the words in the statute itself are the touchstone of the legislature's intention," Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040, 453 A.2d 1295, 1296 (1982), and that "legislative intent is to be found not in what the legislature might have intended, but rather, in the meaning of what it did say." Psychiatric Institute v. Mediplex, Inc., 130 N.H. 125, 128, 536 A.2d 169, 171 (1987); see also State v. Lehman, 108 Wis.2d 291, 305-06, 321 N.W.2d 212, 219-20 (1982) (refusing to infer from silent statute that legislature approves post-submission substitution). The State essentially asks us to modify RSA 500-A:13 to allow late substitution. But, "[a]s we have previously noted, [w]hen the language used in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction." Slovenski v. State, 132 N.H. 18, 22, 561 A.2d 1072, 1075 (1989) (quotations omitted).

RSA 500-A: 13 clearly mandates that alternate jurors “shall be discharged upon final submission of the case to the jury.” (Emphasis added.) As the final arbiter of legislative intent, Dionne v. City of Manchester, 134 N.H. 225, 227, 589 A.2d 1016, 1017 (1991), we hold that RSA 500-A:13 does not permit the trial court to retain or recall alternate jurors and reconstitute the jury during the course of deliberations. The conclusion, then, is inescapable that the trial court’s decision to substitute an alternate juror for the disqualified foreperson constituted a clear statutory violation.

While it has been stated in other contexts that relief is not afforded a criminal defendant based on a statutory violation absent a showing of prejudice, State v. Reynolds, 131 N.H. 291, 295, 556 A.2d 298, 300 (1988), RSA 500-A:13 touches upon the integrity of the deliberative process of the jury and therefore requires special consideration. The New Hampshire Constitution mandates that a jury of twelve must unanimously reach a verdict of guilty before a defendant’s liberty may be compromised. See State v. Hewitt, 128 N.H. 557, 561, 517 A.2d 820, 822 (1986) (State Constitution affords accused right to jury of twelve, and “twelve means twelve”). As stated, RSA 500-A:13 mandates that upon the submission of the case to the jury the alternates “shall be discharged”; in short, they are no longer alternate members of the jury panel. Once discharged from the jury panel a juror cannot be recalled by the trial court. In this case, a jury of only eleven qualified jurors decided the defendant’s fate. This is in direct violation of our State constitutional mandate. When the forewoman became disqualified, the trial court had just two options available to it: first, to obtain a stipulation by the parties to proceed with fewer than twelve jurors; or second, to declare a mistrial. Because the trial court followed neither of these options, the jury’s verdict cannot stand. See Fed. R. Crim. P. 23 advisory committee’s note (criticizing post-submission substitution); 2 C. WRIGHT, FEDERAL Practice and Procedure § 388, at 393 (2d ed. 1982) (same).

We recognize and commend the trial court in this case for its “extraordinary precautions,” People v. Burnette, 775 P.2d 583, 590 (Colo. 1989), taken in an effort to ensure that the jury had not been corrupted and to restore the jury to twelve members. We do not here consider the constitutional implications of late substitution, and we express no opinion concerning possible future legislative initiatives that may be considered with respect to the use of alternates after deliberations have begun. We nevertheless decline to sanction the trial court’s efforts in the face of contrary legislative direction.

H. Use of Prior Convictions

Since the issue of the submission of the defendant’s prior DWI convictions will likely arise upon a retrial, we next consider the trial court’s decision to admit evidence of the defendant’s four prior DWI convictions for the limited purpose of showing recklessness. New Hampshire Rule of Evidence 404(b) prohibits introduction of evidence of prior bad acts or crimes in order to show “that the [defendant] acted in conformity therewith” and, therefore, was more likely to have perpetrated the crime charged. Such evidence, however, is allowed for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b). Whether to admit evidence under Rule 404(b) involves the consideration of three factors: first, the evidence must be relevant for a purpose other than character or disposition; second, there must be clear proof that the defendant committed the prior offenses; and third, the prejudice to the defendant must not substantially outweigh the probative value of the evidence. State v. Gruber, 132 N.H. 83, 88, 562 A.2d 156, 159 (1989). The third prong incorporates the standards of New Hampshire Rule of Evidence 403 requiring a showing of unfair prejudice. State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988). The second prong, requiring clear evidence of the prior bad acts, is not at issue in this case.

The defendant claims that the evidence of his prior DWI convictions is not relevant to prove that he acted recklessly on the day of the accident. He argues that, without underlying facts showing that his prior experiences of drinking and driving resulted in accidents and injury, any relevance the prior acts may have had to show recklessness was destroyed. The evidence of his prior DWI convictions, according to the defendant, is relevant only to show that he had an awareness that drinking and driving would lead to his arrest, conviction and punishment, or to show his propensity to drink and drive, purposes at odds with Rule 404(b). Moreover, the defendant claims that, even if the evidence were relevant to the crime charged, its probative value is substantially outweighed by its unfair prejudice to his case.

The State responds that the evidence is relevant to show that the defendant had a heightened awareness of the danger associated with DWI and that by disregarding the danger, he acted recklessly, a required element of manslaughter as charged, RSA 630:2, 1(b). The State argues that by allowing only the documentary evidence of the prior convictions for DWI, the court substantially eliminated the prejudicial effect that the underlying details of the earlier DWI’s might have had upon the jury. The State also argues that because recklessness was a central and contested issue, the prior bad act evidence increased in probative value.

Relevant evidence need only have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.H. R. Ev. 401. We agree with the State that evidence of the defendant’s driving record showing his past experience of repeated arrests, convictions and punishment for DWI may be deemed relevant to the question of whether the defendant acted recklessly when he subsequently drove his vehicle in an intoxicated condition.

The issue may then be simply stated: Did the trial court abuse its discretion in admitting the defendant’s previous DWI arrests and convictions? Accepting the relevancy of the driving record evidence to a permitted Rule 404(b) purpose, we must decide whether the probative value of this evidence was substantially outweighed by its prejudice. The established rule is clear: “‘The trial court is accorded considerable deference in its determination of whether the prejudice substantially outweighs the probative value.’” State v. Tarsitano, 134 N.H. 730, 735-36, 599 A.2d 474, 477 (1991) (quoting State v. Gruber, 132 N.H. 83, 90, 562 A.2d 156, 160 (1989)). We have always afforded the trial court “broad discretion in ruling on the admissibility of evidence.” Fenlon v. Thayer, 127 N.H. 702, 705, 506 A.2d 319, 321 (1986). We see no reason to depart from this well-established rule in this case.

We see no abuse of discretion by the trial court in balancing the prejudice against the probative value of the evidence of the defendant’s prior DWI record. Clearly there is prejudice in all prior bad acts evidence. Gruber supra. If we look beyond this fact, to the character of the evidence itself, it does not appear that the prejudice is particularly overwhelming. The concurring opinion reaches a conclusion of serious prejudice only when the evidence is considered in light of the very emotional and sensitive facts of this case. The prior convictions take on a veneer of prejudice not inherent in the evidence itself. But see State v. Allen, 128 N.H. 390, 397, 514 A.2d 1263, 1268 (1986) (holding risk of prejudice resulting from admission of evidence “minimized” by remaining evidence).

On the other hand, the probative value would seem to be considerable. The State bears the burden to prove, beyond a reasonable doubt, that the defendant had a culpable state of mind. In this instance, the State alleged, and thus had to prove, that the defendant’s conduct was “reckless.” Consequently, the State had to prove that the defendant, subjectively, was aware of a known risk, and that he, again subjectively, knew of circumstances, the disregard of which, objectively, would be determined to be a “gross deviation from the conduct that a law-abiding person would observe in the situation.” RSA 626:2,11(c). This is a difficult standard to meet, as well it should be. The unlikelihood of developing direct testimony on the defendant’s state of mind calls for consideration of all proper proof that can be proffered by the prosecution. We hold that the trial court did not abuse its discretion under the facts of this case.

III. Expert testimony

Regarding the final issue, we find that the defendant has failed to establish that the trial court abused its discretion by limiting the testimony of the defendant’s expert witness. See State v. Place, 128 N.H. 75, 78, 513 A.2d 321, 323 (1986) (trial judge has wide discretion in admission and exclusion of opinion evidence).

Reversed and remanded.

Brock, C.J., with whom Batchelder, J., joined, concurred in Parts I and III of the opinion, and dissented from Part II; Thayer, J., concurred in Parts II and III of the opinion, and dissented from Part I; the others concurred.