State v. Kousounadis

DALIANIS, J.,

concurring in part and dissenting in part. I join the majority opinion with respect to parts I, II, III and IV, but respectfully dissent with respect to parts V and VI. The majority concludes that the trial court’s failure to instruct the jury on the definition of a deadly weapon, see RSA 625:11, V (2007), is an error that defies harmless error analysis *430 pursuant to our interpretation of the New Hampshire Constitution in State v. Williams, 133 N.H. 631, 634-35 (1990). I agree that this case is like Williams , but I disagree that Williams is still good law. Instead, I would follow the approach taken by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 8-15 (1999), apply harmless error analysis, and conclude that the State has met its burden in proving any error was harmless beyond a reasonable doubt.

I do not lightly recommend overruling Williams . “The doctrine of stare decisis demands respect in a society governed by the rule of law because, when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.” State v. Holmes, 154 N.H. 723, 724 (2007) (quotations omitted). When asked to reconsider a previous holding, the question is not whether we would decide the issue differently de novo, but whether the ruling has come to be seen so clearly as error that its enforcement was for that very reason doomed. Id. Several factors inform our judgment, including whether: (1) the rule has proven to be intolerable simply by defying practical workability; (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Id. at 724-25 . I believe the third factor compels us to overrule Williams . Related principles of both federal and State law with respect to harmless error review of constitutional errors have so far developed as to have left the old rule from Williams no more than a remnant of abandoned doctrine.

In Williams , the defendant was charged with securities fraud resulting from false and misleading statements he made while selling interests in limited partnerships. Williams, 133 N.H. at 632 . The trial judge instructed the jury that the limited partnership interests the defendant sold were securities. Id. at 633 . Both the State and the defendant agreed this should have been a determination of fact made by the jury as an element of the crime, but the State argued that the harmless error doctrine applied. Id. at 633-34 . We held that harmless error did not apply because the trial judge’s error was “akin to the direction of a verdict for the prosecution on an element of the offense charged,” and therefore “a constitutional error requiring reversal without regard to the weight of the evidence.” Id. at 634 .

In Williams , we relied upon federal opinions for guidance that have since been clarified by subsequent decisions of the United States Supreme Court. See, e.g., Neder, 527 U.S. at 15 (holding that an instruction that omits an element of the offense is subject to harmless error analysis). In Neder , the *431 defendant was convicted by a jury in Federal District Court of several fraud and tax offenses as a result of engaging in real estate transactions financed by fraudulently obtained bank loans. Id. at 4, 6 . At trial, the District Court erroneously instructed the jury that it need not consider the issue of materiality of any false statements to convict on the tax offenses and bank fraud. Id. at 6 . It similarly failed to include materiality as an element of mail fraud and wire fraud in instructing the jury on those charges. Id. Nonetheless, the United States Court of Appeals for the Eleventh Circuit affirmed the conviction, holding that although the District Court’s instructions were error, the error was subject to harmless error analysis, and that the error was harmless because “materiality was not in dispute” and, therefore, the error “did not contribute to the verdict.” Id. at 7 (quotations omitted).

The United States Supreme Court granted certiorari to decide “whether, and under what circumstances, the omission of an element from the judge’s charge to the jury can be harmless error.” Id. Relying upon some of the cases we looked to for guidance in deciding the same issue in Williams , the Court held that a jury instruction that omits an element of the offense is an error that “differs markedly from the constitutional violations we have found to defy harmless-error review.” Id. at 9. The Court further reasoned: “We have often applied harmless-error analysis to cases involving improper instructions in a single element of the offense.” Id. at 9. To support this assertion, the Court cited Rose v. Clark, 478 U.S. 570 (1986), which we also cited in Williams .

At issue in Clark was the trial court’s erroneous instruction charging the jury to presume malice “in the absence of evidence which would rebut the implied presumption” for a second degree murder charge where malice was one of the elements of the crime. Clark, 478 U.S. at 574 (quotation omitted). Although the Clark Court held that the error in that case was subject to harmless error analysis, id. at 580 , it also said: “harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury.” Id. at 578 . When we decided Williams , we understood this phrase to mean that if a court “direct[s] a verdict for the prosecution” on a single element of the offense, this type of error could never be subject to harmless error review. Williams, 133 N.H. at 634 . At the time, some federal courts of appeals had drawn similar conclusions. See Hoover v. Garfield Heights Mun. Court, 802 F.2d 168, 177 (6th Cir. 1986), cert. denied, 480 U.S. 949 (1987); United States v. White Horse, 807 F.2d 1426, 1429 (8th Cir. 1986). While our interpretation of Clark in Williams may have been an accurate statement of federal law at the time, Neder represents a development in the law such that this interpretation is no *432 longer good federal law. Indeed, the Neder Court relied upon Clark to reach the exact opposite of the conclusion we reached in Williams .

Related principles of New Hampshire law with respect to what types of constitutional error are subject to harmless error analysis have also developed post-Williams. For example, we expressly adopted the federal distinction between a “structural defect” and a “trial error.” See State v. Ayer, 150 N.H. 14, 24-25 (2003), cert. denied, 541 U.S. 942 (2004). As we explained in Ayer , “[a] structural defect affects the very framework in which a trial proceeds” and arises “from errors that deprive a criminal defendant of the constitutional safeguards providing a fair trial.” Id. at 24 . A “trial error,” by contrast, “occurs during the presentation of a case to a jury and can be quantitatively assessed in the context of other evidence in order to determine whether the error was harmless beyond a reasonable doubt.” Id. (quotation and brackets omitted). While the harmless error doctrine applies to trial errors, it does not apply to structural errors. See id.

Unlike the majority, which apparently, though not explicitly, believes the error to be a structural error, I believe that a jury instruction that omits an element of the offense is a trial error. Neder, 527 U.S. at 15 . It can be quantitatively assessed in the context of other evidence to determine whether the error was harmless beyond a reasonable doubt. The case before us provides a fitting example because there was no evidence to suggest that the defendant used the shotgun in such a way that it was not a deadly weapon, nor does he suggest that he would offer any upon remand. Accordingly, when assessed in context, we can easily determine that the result would be the same and that the error was harmless beyond a reasonable doubt.

Williams , I believe, is also out of step with basic tenets we have recently reaffirmed concerning the applicability of harmless error analysis under the New Hampshire Constitution. Specifically, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” State v. O’Leary, 153 N.H. 710, 714 (2006) (quotation omitted). Here, the defendant had counsel at all stages of the proceedings, and he does not contend that the judge was biased. Thus, there was a presumption that the instructional error was subject to harmless error analysis.

In light of these subsequent developments of related principles of both state and federal harmless error law since we decided Williams , I would conclude that related principles of law have so far developed as to have left the old rule from Williams no more than a remnant of abandoned doctrine. I would, therefore, overrule Williams , holding that an instruction that omits an element of the offense can be subject to harmless error analysis. *433 Such a holding, moreover, is consistent with more recent decisions of other jurisdictions. See, e.g., Com. v. McCombs, No. 2007-SC-000127-DG, 2009 WL 735794, at *4 (Ky. Mar. 19, 2009); State v. Daniels, 91 P.3d 1147, 1156 (Kan.) cert. denied, 543 U.S. 982 (2004); State v. Flanagan, 680 N.W.2d 241, 244-45 (N.D. 2004).

I would then examine whether the error at issue was, in fact, harmless. An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error. State v. Connor, 156 N.H. 544, 549 (2007). The State bears the burden of proving the error was harmless. Id.

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

State v. Dupont, 149 N.H. 70, 74 (2003) (quotation omitted).

I would hold that the State met its burden of proving harmless error in this ease. By his own admission, the defendant brandished a shotgun in response to his wife’s refusal to speak to him, with the purpose of scaring her. The third element in the instructions required the jury to find that “it was the defendant’s conscious object or specific intent to withdraw the shotgun from his car and fire it in the vicinity of Aspasia Kousounadis.” Firing a shotgun in the vicinity of the victim is using it in a manner “known to be capable of producing death or serious bodily injury.” RSA 625:11, V. Accordingly, the instructions taken as a whole required the jury to find, independent of the erroneous instruction, that the defendant used the shotgun as a “deadly weapon,” despite the trial court’s failure to inform the jury of the statutory definition of that term. Thus, the verdict was unaffected by the error.

Other considerations regarding whether an error is subject to harmless error analysis are also satisfied here, as discussed above. Therefore, I would hold that the trial court’s failure to instruct the jury on the statutory definition of a deadly weapon was harmless error.

I would apply similar reasoning to reject the defendant’s argument that the trial court erred in denying his motion to bar imposition of an enhanced sentence. His argument is based upon the erroneous jury instruction regarding the definition of a deadly weapon and Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi , any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a *434 reasonable doubt. Apprendi, 530 U.S. at 490 . The defendant advances his argument only under the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632-33 (1986) (holding that when a defendant fails to cite a New Hampshire constitutional provision, we will not perform a state constitutional analysis). The United States Supreme Court has held that Apprendi claims are subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 218-22 (2006). Accordingly, I would apply harmless error analysis and reject this argument for the same reasons as above.

HICKS, J., joins in the dissent.