explaining that the legislature has determined that defenses set forth in RSA chapter 627 constitute “pure defenses, and, thus, negating such a defense becomes an element of the offense that the State must prove beyond a reasonable doubt”
How later courts described this case
- explaining that the legislature has determined that defenses set forth in RSA chapter 627 constitute “pure defenses, and, thus, negating such a defense becomes an element of the offense that the State must prove beyond a reasonable doubt”
- holding that, in the context of deadly force, the use of force must be reasonably necessary in order to be justifiable
- applying common law principles of proportionality to require “reasonable necessity to justify the use of deadly force” absent explicit statutory language to that effect
- Favorable evidence is evidence that is “admissible . . . or otherwise relevant to the preparation or presentation of the defense . . . . Favorable evidence may include impeachment evidence.” (quotations and citations omitted)
Written by the judges who cited it.
The opinion
DALIANIS, C.J.,
concurring in part and dissenting in part. Because I believe that the trial court erred in instructing the jury regarding the amount of force the defendant was permitted to use in self-defense or defense of others, I respectfully dissent from Part 11(A) of the majority’s thoughtful opinion. I concur, however, in the remainder of the opinion.
The trial court instructed the jury, in pertinent part, as follows:
The defendant must reasonably believe that the amount of force he used was necessary for self-defense or defense of others. A person is not permitted to use excessive force in self-defense, only a reasonable amount of force. The defendant can use the amount of force which he believed was necessary under the circumstances as long as, at the time, there were reasonable grounds for his belief.
The circumstances, relevant to this case, under which deadly force may be used are set forth in RSA 627:4, II (2007):
A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person ....
At the time of the events at issue in this case, RSA 627:4, III (2007) (amended 2011) set forth the following limitations upon the use of deadly force:
A person is not justified in using deadly force on another to defend himself or a third person from deadly force by the other if he knows that he and the third person can, with complete safety:
(a) Retreat from the encounter, except that he is not required to retreat if he is within his dwelling or its curtilage and was not the initial aggressor; or
(b) Surrender property to a person asserting a claim of right thereto; or
(c) Comply with a demand that he abstain from performing an act which he is not obliged to perform; nor is the use of deadly force justifiable when, with the purpose of causing death or *102 serious bodily harm, the actor has provoked the use of force against himself in the same encounter.
(d) If he is a law enforcement officer or a private person assisting him at his direction and was acting pursuant to RSA 627:5, he need not retreat.
In contrast, with regard to non-deadly force, RSA 627:4,1 (2007) provides, in pertinent part:
A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose.
Deciding whether the trial court’s instructions were erroneous requires us to construe RSA 627:4. The interpretation of a statute is a question of law, which we decide de novo. State v. McKeown, 159 N.H. 434, 435 (2009). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Id. We construe the Criminal Code according to the fair import of its terms and to promote justice. RSA 625:3 (2007). In doing so, we must first look to the plain language of the statute to determine legislative intent. McKeown, 159 N.H. at 435 . Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent. Id. 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. Accordingly, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id. at 436 .
The language of the statute, I believe, is plain and unambiguous. The use of the word “necessity” in the non-deadly force provision shows that the legislature knows how to include a “necessity” requirement when it intends to do so. See Correia v. Town of Alton, 157 N.H. 716, 719 (2008). By not including a “necessity” requirement in the deadly force provisions, the legislature unambiguously provided that such a requirement does not apply when a person is faced with the use of deadly force against him. We should not impose such a requirement, for to do so would be to add words that the legislature did not see fit to include. See State v. Villeneuve, 160 N.H. 342, 347 (2010) (court will not add words that the lawmakers did not see fit to include). Furthermore, we can be confident that the legislature considered the issue of limitations upon the use of defensive deadly force because it specifically listed the limitations it intended to apply in RSA 627:4, III. Its *103 failure to include a necessity limitation further demonstrates its intent that no such limitation apply, for “[n]ormally the expression of one thing in a statute implies the exclusion of another.” Appeal of Campaign for Ratepayers’ Rights, 162 N.H. 245, 251 (2011) (quotation omitted). The force of this familiar canon of statutory construction is strengthened when, as here, the limitation at issue was included in one part of the statute but omitted in another. City of Manchester v. Sec’y of State, 161 N.H. 127, 133 (2010).
The majority contends that the statute is susceptible of at least two reasonable interpretations, but fails to identify any ambiguous language in the statute that would support its position. Rather, it relies upon canons of statutory construction, legislative history, and public policy grounds to impose an additional limitation upon the defensive use of deadly force that appears nowhere in the statutory language. This is contrary to our well-established rule that absent an ambiguity, we will not look beyond the language of the statute to discern legislative intent. See, e.g., McKeown, 159 N.H. at 435 .
Moreover, even if I agreed that we should look beyond the statute’s plain language, in my opinion, the legislative history does not support the majority’s analysis. Although the majority notes that the Model Penal Code commentary supports the State’s interpretation in this case, it fails to address the fact that the legislature specifically declined to adopt the very language of the Model Penal Code that does so.
RSA 627:4 (2007 & Supp. 2010) (amended 2011) was adopted in 1971 as part of the revision of the Criminal Code, Laws 1971, 518:1.
The revised Criminal Code was recommended by the Commission to Recommend Codification of Criminal Laws (Commission), which was created by legislative directive in 1967. Laws 1967, ch. 451. In April 1969, the Commission, chaired by Chief Justice Frank R. Kenison, issued the Report of Commission to Recommend Codification of Criminal Laws (Report) providing a comprehensive draft revised Criminal Code, see Report at iv, and included comments that detail the source of the recommended language for each draft section, see, e.g., id. at iii.
In the Report, the Commission identified its “basic aim” as “producing] a more concise and simplified criminal law than now applies in this state.” Id. at iv; see also N.H.S. JOUR. 1641-42 (1971). In performing this task, the Commission reviewed draft laws and comments from a wide variety of sources, but “found especially useful the Model Penal Code, the Michigan Revised Criminal Code, Final Draft — September 1967, and the New York Penal Law, 1967.” Report, supra at iii.
*104 State v. Kousounadis, 159 N.H. 413, 424-25 (2009).
Thus, the Commission had before it MODEL PENAL CODE § 3.04, which provides in relevant part:
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of Force.
(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat....
Model Penal Code § 3.04 (1985) (emphasis added). As the emphasized language makes clear, the Model Penal Code requires that the amount of force used in response to both non-deadly force and deadly force must be “necessary.” The Commission did not adopt the Model Penal Code language, however. Instead, it recommended the following, in pertinent part:
572:4 Physical Force in Defense of a Person.
I. A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose. . . .
II. A person is justified in using deadly force upon another person when he reasonably believes that such other person is about to use unlawful, deadly force against the actor or a third person, or is likely to use any unlawful force against the occupant of a dwelling while committing or attempting to commit a burglary of such dwelling, or is committing or about to commit kidnapping or a forcible sex offense. . . .
Report, supra at 20. This language reflects the distinction seen in the statute before us today — the actor must believe that the degree of *105 defensive non-deadly force employed is “necessary” to defend himself or a third person from the use of unlawful non-deadly force, while the use of defensive deadly force against the use of unlawful, deadly force is not so limited. The comments of the Commission reveal that it chose not to adopt the Model Penal Code’s language, that it intentionally made distinctions between the use of deadly force and non-deadly force, and that it was fully aware that the explicit “necessity” limitation on the amount of force applied only to the use of non-deadly force:
This section is a modification of § 615 of the Michigan Revised Criminal Code, Final Draft, and undertakes to clarify and articulate the law relating to self-defense as well as the circumstances in which force may be used against another even in the absence of some aggression against the actor. Distinctions are made between the use of deadly and non-deadly force, terms which are defined in section 572:9.
Both sorts of force may be used in defense of a third person as well as in defense of the actor. Paragraph I provides the general rule that in order to repel unlawful and non-deadly force an amount of force necessary for the purpose may be used. The provisions of I(a)-(c) deal with situations where it would generally be agreed that the general rule ought not to apply.
The use of deadly force is governed by broader criteria than preservation of the actor or a third person. Paragraph II sanctions its use to prevent kidnapping or a forcible sex offense and against burglars who are likely to use any personal violence. Paragraph II(a)-(d) deals with rules concerning limitations on the defensive use of deadly force. . . .
REPORT, supra at 20-21 (first emphasis added). Accordingly, the legislative history demonstrates that language that would have imposed a “necessity” requirement upon the use of deadly force to defend against deadly force was considered and rejected by the Commission. Instead the Commission, and the legislature thereafter, adopted language imposing such a limitation only upon the use of non-deadly force to defend against non-deadly force. Thus, the legislative history demonstrates that the plain language of the statute accords with the legislature’s intent.
The majority looks to the common law to support its position, noting that we have often stated that we will not interpret a statute to abrogate the common law “unless the statute clearly expresses that intent.” State v. Elementis Chem., 152 N.H. 794, 803 (2005) (quotation omitted). For the *106 reasons set forth above, even if I were to apply this canon of statutory construction, I would conclude that the statute “clearly expresses that intent.” Furthermore, it is axiomatic that the purpose of canons of statutory construction is to divine legislative intent. Where, as here, the legislative history clearly reveals the legislature’s intent, I see no need to consider this canon.
The majority also contends that when there is doubt about the meaning or intent of a statute, effect should be given that makes the least change to the common law. See 3 N. Singer & J.D. Singer, Statutes and Statutory Construction § 61.1, at 314 (7th ed. 2008). I agree that we have looked to the common law in the past to construe an ambiguous statutory term, see, e.g., State v. Pugliese, 120 N.H. 728, 731 (1980) (court looked to common law in deciding whether the term “dwelling” in the self-defense statute includes curtilage), as well as when a literal reading of the self-defense statute led to an absurd result, requiring us by necessity to construe the statute other than in accord with its plain language, see State v. Warren, 147 N.H. 567, 569 (2002). In my view, however, neither these cases nor the canons of statutory construction relied upon by the majority support engrafting onto the statute a limitation from the common law that the legislature chose not to include. Such action could be justified only if the plain language of the statute led to an absurd result — but it does not, and the majority does not contend otherwise. As the defendant argues in his brief:
RSA 627:4, 11(a) permits the use of deadly force in defense of self or another only when the actor reasonably believes that an attacker “is about to use unlawful, deadly force.” To require in addition that the actor use non-deadly force unless deadly force is necessary to avoid the danger would demand a complicated mental calculation under highly stressful and urgent conditions. Under such a rule, the actor not only must reasonably ascertain whether the attacker is about to use deadly force, but also must contemplate the range of possible responses and select an effective, non-deadly option. The legislature could reasonably choose not to require that second calculation.
Because the plain language of the statute does not lead to an absurd result, I believe that we should not stray from the plain meaning of the words used by the legislature. See Warren, 147 N.H. at 568 .
Next, the majority relies upon the legislature’s actions in the wake of Warren , stating that it has amended RSA 627:4 twice “and the amendments did not vitiate our holding that the deadly force provision implicitly required reasonable necessity.” The holding of Warren , however, as stated *107 in the opinion itself, was simply that “RSA 627:4,11(d) does not justify the use of deadly force against an assailant when the assailant is a cohabitant of the home.” Id. at 572 . At issue in Warren was the use of deadly force against an assailant using only “unlawful force” in the defendant’s dwelling. Id. at 568 . We concluded “that a person is not entitled to use deadly force to repel a non-deadly attack in the person’s home where the assailant is a cohabitant.” Id. at 571 . Thus, the legislature’s failure to “vitiate” the holding of Warren at most supports the conclusion that the legislature agrees that deadly force may not be used to repel a non-deadly attack by a cohabitant in the person’s dwelling. This tells us nothing about the legislature’s view on the issue presented by this case, which involves the use of deadly force to repel a deadly attack.
Finally, I note that it is “the province of the legislature to enact laws defining crimes.” State v. Rix, 150 N.H. 131, 134 (2003) (quotation omitted). The legislature has determined that “[n]o conduct or omission constitutes an offense unless it is a crime or violation under [the Criminal Code] or under another statute.” RSA 625:6 (2007) (emphasis added). When self-defense or defense of others is raised as a justification, it becomes a material element of the charged offense. RSA 625:11, IV (2007). By creating a necessity requirement that does not appear in the statute, the majority has taken conduct that would not constitute an offense under the Criminal Code as written, and made it criminal. While it may be necessary for this court to construe Criminal Code provisions contrary to their plain meaning when the literal language of the statute leads to an absurd result, see Warren, 147 N.H. at 568 , the majority admits that interpreting the statute in this case in accordance with its plain language is “reasonable.” Accordingly, I would hold that the trial court erred in its instructions to the jury regarding the amount of force the defendant was permitted to use in defense of self or others.