State v. Terry Adams, Jr.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2015-0338
THE STATE OF NEW HAMPSHIRE
v.
TERRY ADAMS, JR.
Argued: May 5, 2016
Opinion Issued: August 23, 2016
Joseph A. Foster, attorney general (Sean R. Locke, attorney, on the brief
and orally), for the State.
Gleason Law Offices, P.C., of Haverhill, Massachusetts (Thomas J.
Gleason on the brief and orally), for the defendant.
DALIANIS, C.J. The defendant, Terry Adams, Jr., appeals from his
convictions of reckless conduct, RSA 631:3 (2007) (amended 2014), and simple
assault, RSA 631:2-a (2007), following a jury trial in Superior Court
(Schulman, J.). The defendant argues that the trial court erred by: (1)
recalling the jury to correct an error in the verdict on the reckless conduct
charge; (2) denying his motion to introduce exculpatory evidence at trial; and
(3) prohibiting him from introducing evidence of alleged prosecutorial
misconduct. We affirm.
The relevant facts follow. Based upon an incident that occurred on
November 9, 2013, the defendant was charged with reckless conduct “by
operating a motor vehicle, accelerating from a stopped position while the
[victim] . . . was not completely inside said vehicle, and the passenger door was
open, thereby causing [the victim] to fall from the vehicle onto the roadway,
said vehicle being a deadly weapon.” He was also charged with simple assault
in that he “knowingly caused unprivileged physical contact to [the victim] by
grabbing her around her neck and throat area.”
At the close of a two-day trial, the jury received its instructions from the
trial court and began its deliberations at approximately 11:21 a.m. The jury
returned to the courtroom with its verdict at 3:41 p.m. When the jury
foreperson announced the verdict on the reckless conduct charge, he cleared
his throat or stumbled over his words. The clerk heard the words “not guilty”
and recorded the verdict as such. The defendant and defense counsel heard
“not guilty.” The trial court “was not sure whether the foreperson said ‘not
guilty,’ until [it] observed the Clerk write down the words ‘not guilty.’” The trial
court told the jury they were “free to go,” but invited the jurors to return to the
deliberation room so that the court could “thank them” for their service. After
the jury left the courtroom at 3:43 p.m., the court conducted a bail hearing
with trial counsel as to the jury’s verdict on the simple assault charge, and the
court recessed at 3:48 p.m.
The trial court then met with the jury in the deliberation room and the
foreperson “almost immediately” asked whether the court heard him say
“guilty” on the reckless conduct charge as he said he intended. The court
immediately ended its discussion with the jurors and reconvened the parties in
the courtroom at 3:52 p.m. The court explained what the foreperson had
asked, and announced that it was going to “bring the jury back, take the
verdict again on the reckless conduct charge, [and] poll the jury.”
The jury returned to the courtroom at 3:56 p.m. The court explained to
the jury that “[w]hen we took the verdict, the Clerk wrote down what she
believed she heard. We’re going to take the verdict again, and to the extent
that there’s any discrepancy, we will poll the jury to make sure that we have
the right verdict from each juror, so there’s no misunderstanding.” The clerk
then asked the foreperson “is the Defendant guilty or not guilty of the charge of
reckless conduct,” to which the foreperson answered, “Guilty.” The clerk asked
the jury, “So say you all, ladies and gentlemen of the jury,” to which the jurors
collectively replied, “Yes.” The clerk then asked each individual juror to state
his or her verdict with respect to the charge of reckless conduct, to which each
juror individually responded, “Guilty.” The trial court then dismissed the jury.
The defendant subsequently moved to enforce the original verdict
rendered by the jury on the reckless conduct charge and to set aside the
second verdict. Following a hearing, the trial court denied the motion. The
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court noted that it had “since listened to the audio tape of the verdict at least a
dozen times” and had “concluded that the foreperson did not say ‘not guilty’
with respect to the Reckless Conduct charge.” The court stated that although
the foreperson “certainly made some sort of noise prior to saying ‘guilty[,]’ . . .
he neither said, nor meant to say[,] that the defendant was not guilty of the
offense.”
The trial court acknowledged that “the jurors were told they were
discharged after they first announced their verdict.” Nonetheless, the court
concluded that “(a) the jury did not have the opportunity to re-deliberate the
case, (b) the jury did not reconsider or alter its actual verdict, and (c) the jury
was not exposed to any improper influences.” The court “also conclude[d] that
the jury recognized that its foreperson failed to properly annunciate the actual
verdict.” Thus, the court reasoned, “it was proper to recall the jury for the
purpose of clarifying its verdict.”
On appeal, the defendant argues that the jury’s “not guilty” verdict on
the reckless conduct charge “was final and irrevocable after it was announced
by the Foreman, collectively endorsed by the jurors, recorded by the Clerk and
the jury was formally discharged.” He asserts that “[u]nder these
circumstances,” the trial court erred by “allow[ing] the jury to alter its verdict of
not guilty.” The State argues that “because the jury in this case had not left
the protective shield of the court and re-entered the public it had not been
discharged and the trial court sustainably exercised its discretion by recalling
the jury so that it could correct an error that arose when the jury read the
verdict the first time.”
We reject the defendant’s assertion that because “[a] verdict is valid and
final when deliberations are over, the result is announced in open court, and
no juror registers dissent,” the trial court may not seek “clarification . . . after
the jury has been discharged.” Such a bright-line rule is not the law in New
Hampshire. See Dearborn v. Newhall, 63 N.H. 301, 302-03 (1884) (“In some
jurisdictions a recorded verdict cannot be amended by the jury after their
separation; but in this state a different practice prevails.”). This court has
recognized that “[t]he recording of an erroneous verdict . . . does not necessarily
render all [the verdict’s] errors incurable; and the separation of jurors . . . does
not necessarily disable them to undo the injustice of such a mistake.” Id. at
303; see Caldwell v. Yeatman, 91 N.H. 150, 155 (1940) (explaining that the
power to recall the jury is “one of the general supervisory powers of the court”).
Rather, “[t]he power of the trial court to reconvene and interrogate a jury may
be exercised whenever [the court] is of the opinion the jury may have made
some mistake which produced their verdict.” Bothwick v. LaBelle, 115 N.H.
279, 281 (1975) (quotation and ellipses omitted).
“The discretion of the trial court in this respect is broad.” Id.; see State
v. Santiago, 159 N.H. 753, 758 (2010) (ruling that trial court did not
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unsustainably exercise its discretion by declining to reconvene the jury); Drop
Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 674, 683 (1985)
(explaining that, in a civil case, whether to reconvene the jury five days after
the close of trial was “within the sound discretion of the trial court”); State v.
Low, 138 N.H. 86, 88 (1993) (holding that the defendant failed to demonstrate
that the trial court unsustainably exercised its discretion by denying his
motion to reconvene the jury to determine whether the jury members ignored
the court’s instructions). “We review the trial court’s decision under an
unsustainable exercise of discretion standard, and reverse only if the ruling is
clearly untenable or unreasonable to the prejudice of a party’s case.” Santiago,
159 N.H. at 757.
In considering whether to reconvene a jury, the trial court should
consider such factors as “the lapse of time since the close of trial” and the
exposure of jurors to “improper influences.” Drop Anchor, 126 N.H. at 683-84.
Here, the trial court found that
only a few minutes elapsed between the time of their “discharge”
and the time they were recalled to clarify their verdict. During that
time, they had no access to, or communication with the outside
world. They went from the courtroom to the jury room and had no
exposure to anybody other than the bailiff. They were then joined
by the alternate, but even if she wished to dispute the verdict (and
there is no evidence that she did), there was clearly insufficient
time for even the briefest re-deliberation.
The record supports these findings, and we are not persuaded that the trial
court unsustainably exercised its discretion to reconvene the jury to correct an
error in the verdict. To the extent the defendant argues that, as a matter of
law, the presence of the alternate juror in the jury room after the trial had
ended subjected the jury to “outside influences,” he does not sufficiently
develop that argument for our review. See State v. Blackmer, 149 N.H. 47, 49
(2003). Likewise, although the defendant asserts that reconvening the jury
constituted a violation of his “rights to due process of law and a fair trial and
his double jeopardy rights, under both the Federal and State Constitutions,” he
fails to adequately develop his legal argument, and, therefore, we decline to
address it. See State v. Chick, 141 N.H. 503, 504 (1996).
The defendant next argues that the trial court erred when it denied his
motion to introduce evidence that the victim had burglarized the defendant’s
home approximately three weeks after the incident on November 9, 2013,
giving rise to the charges in this case. Although the trial court allowed the
defense to introduce evidence that the victim had been charged with and
convicted of burglary, it did not allow the defense to introduce evidence of the
specifics of the event, including that it was the defendant who was the victim of
that crime. The defendant asserts that such evidence was admissible under
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New Hampshire Rule of Evidence 404(b) “to show the alleged victim’s motive
and/or bias.” The State asserts that the defendant “failed to demonstrate a
common motive that would make revealing the defendant as the victim of the
burglary relevant under Rule 404(b).” We review the trial court’s ruling for an
unsustainable exercise of discretion, and will reverse only if it was clearly
untenable or unreasonable to the prejudice of the defendant’s case. State v.
Kim, 153 N.H. 322, 327 (2006).
The trial court permitted the defense to conduct a voir dire of the victim
outside the presence of the jury. Following that voir dire, the trial court
concluded that it “[didn’t] see how what happened on the 28th of November, or
at least the burglary of his house, beating him up, and so on and so forth,
provides a motive for making a false report on November 9th.” As the trial
court explained, the burglary incident on November 28 “shows that [the victim]
dislikes the Defendant. But that doesn’t go to motive to fabricate on the 9th of
November. That goes to bias.” The court reasoned that it did not “see proof
that a jury could reasonably find that this witness told an untrue tale on
November 9th so that the Defendant would go to jail or get prosecuted. And
when that didn’t happen to her satisfaction, she burglarized his house,
because first of all, burglarizing his house doesn’t get him in jail. . . . I just
don’t see a common motive between the report on November 9th and the
burglary . . . on November 28th.”
We have reviewed the record and conclude that it supports the trial
court’s finding that the victim’s testimony did not show a common motive that
connected her decision to report the November 9, 2013 incident underlying the
charges in this case to her decision to burglarize the defendant’s home on
November 28, 2013, approximately three weeks later. We note that the
defendant never suggested to the trial court that the court had misunderstood
or misinterpreted his argument regarding the notice issue. Because the
defendant has failed to persuade us that the trial court unsustainably
exercised its discretion when it precluded him from presenting such evidence,
we affirm.
Furthermore, we agree with the State that at trial the defense did not rely
upon bias as a ground for admitting evidence that it was the defendant’s home
that the victim subsequently burglarized. When asked by the trial court
whether the defense had any grounds, other than motive, defense counsel
answered, “No. No, Judge. Just motive.” As the trial court explained to
defense counsel, “if one witness commits a felony against another witness,
that’s evidence of their relationship, it’s evidence of bias . . . . You’re not
making a bias argument.” The court observed that if defense counsel did seek
to admit the evidence on grounds of bias, “the jury needs to see the full
relationship of these parties,” and then “Pandora’s box gets open.” In response,
defense counsel acknowledged: “[I]f I open the bias issue, I have a lot of
trouble associated with that and so I’m trying to maintain the motive side of
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the ledger because I think it applies[ ] [and] [b]ecause . . . bias just becomes
entirely . . . uncontrolled.” Based upon the record before us, we conclude that,
to the extent that the defendant argues that the evidence was admissible to
show bias, that issue is not preserved for our appellate review. See State v.
Dodds, 159 N.H. 239, 244 (2009) (preservation requires a “contemporaneous
and specific objection” and any objection not raised at trial is deemed waived
(quotation omitted); see also State v. Young, 144 N.H. 477, 484-85 (1999).
The third issue raised by the defendant is whether the trial court erred
by not allowing the defense to introduce evidence regarding alleged
“prosecutorial overreaching.” Although he asserts that “[t]he defense . . .
wanted to introduce” evidence of alleged prosecutorial overreaching, and that
“[t]he defense believes that the simultaneous prosecution of the defendant and
the alleged victim . . . constitutes prosecutorial overreaching and/or selective
prosecution,” the defendant has failed to demonstrate that this issue was
presented to, or addressed by, the trial court. As the appealing party, the
defendant has the burden of providing this court with a record sufficient to
demonstrate that he raised all of his appeal issues before the trial court. See
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Accordingly, we
decline to address this issue for the first time on appeal.
Affirmed.
CONBOY, LYNN, and BASSETT, JJ., concurred.
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