Reply Brief — Gray v. Mississippi

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SPH F. SPANION IRe

u OLERK

No. 85-5454

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

DavID RANDOLPH GRAY,

Petitioner,

Vv.

STATE OF MISSISSIPPI,

Respondent.

On Writ Of Certiorari

To The Mississippi Supreme Court

REPLY BRIEF FOR PETITIONER

ANDRU H. VoLINSKY

SCHAPIRA AND VOLINSKY, P.A.

108 Bay Street

Manchester, NH 03104

(603) 669-7603

Counsel for Petitioner

EL

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

i

TABLE OF CONTENTS

Tap LE OF ALITHORITIEG. .....cccccccccccccccccccccs

ARGUMENT

A. THE TRIAL Court ERRED IN EXCUSING JUROR

BouNnpDs FoR CAUSE BECAUSE, AS FOUND BY THE

MississipP1 SUPREME COURT, THE JUROR COULD

Have ACTED IMPARTIALLY IN DETERMINING SEN-

TENCE AND, THUS, WAS QUALIFIED UNDER WITT

SE ca aks Kd dadeuthddedbeeo be neees

B. THe Recorp HERE Does Not Support

RESPONDENT'S CONTENTION THAT THE TRIAL

CourRT WAS INTENT UPON VIOLATING THE LAW BY

REFUSING ALL CHALLENGES FOR CAUSE MADE

OS eeu es

C. THe Amici CurRIAE Have ARGUED THAT THE

PROCEDURES APPLICABLE TO THE PRESERVATION

oF JuRY ERROR IN Non-CaPITAL CASES SHOULD

) BE APPLIED HERE. THE PREMISE UPON WHICH

THE Amici CURIAE’S ARGUMENT IS BASED IS

FALLACIOUS AS THE FACTFINDING AND LIMITED

SENTENCING FUNCTIONS OF NON-CAPITAL

JURIES ARE VASTLY DIFFERENT FROM THE Dis-

CRETIONARY FUNCTIONING OF A JURY IN A CapP-

ITAL SENTENCING PROCEEDING ............---

D. Capital SENTENCING OCCURS IN A SPECIAL Con-

TEXT WHERE A JuRY’s DECISION IS A REFLEC-

TION OF A COMMUNITY’S MORALITY AND IS

HiGHLY DiIscRETIONARY. AS SUCH, AN APPEL-

LATE Court CANNOT CONFIDENTLY FIND THAT

AN ERROR COMMITTED IN THE EXCUSAL OF A

JUROR FOR CAUSE WAS HARMLESS BEYOND A

REASONABLE DOUBT .......ccccccccccccccces

en ccensoenceos

ii

TABLE OF AUTHORITIES

Page

CASEs:

Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d

Pa cicnebssennandéawdsananmanaaad 4, 8, 10, 11

Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55

5 RR CRE Lae 28H 11

Caldwell v. Mississippi, 472 U.S. ___, 105 S.Ct. 2633, 86

: , —_ RRs RA ea 12

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

A CLs ctudicviiadedveebibevasdbees 12

Coleman v. State, 378 So.2d 640 (Miss. 1979).......... 8

Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d

339 (1976) Ninbeds dbednudeancksasaecoent 1, 9, 10, 12

Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94

ls SD 6 5s ccbve cibadhitinisethieeds 6

Gray v. Mississippi, 472 So.2d 409 (Miss. 1985)........ 5

LaValle v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35

i tina dius encubiadehiictinieete 6

Lockhart v. McCree, 476 U.S. ___, 106 S.Ct. 1758, 90

id 6 okucbcukedeenauinndinienes 9, 10

Marshall v. er, 459 U.S. 422, 103 S.Ct. 843, 74

Pi. octindcontcoanidentoluw a. 6

Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244

GE chvdintedecunshievesbdddaliinesiees. 3

Rose v. Clark, 54 USLW 5023 (Decided July 2, 1986)... 10

State v. McMillian, 28 N.C. App. 308, 220 SE.2d 825

EE dceneseevecenceéusénnscneete x

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d

We nt Fi dcsunscecciesbecees dba 6

Turner v. <p gg U.S. ——, 106 U.S. 683, 90

PGC ile = 8, 12

Wainwright v. Witt, 469 U.S. ___, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985). ................. 1, 2, 5, 6, 10, 11

eae KY v. Illinois, 391 U.S. 510, 88 S.Ct. 1779, 20

s | , apr Rr Aero = 9, 10, 11

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978,

Me ae 9

Table of Authorities Continued

OTHER AUTHORITIES

Mississippi Constitution, Article 6, §155.............. 5

Cowan, Thompson and Ellsworth, The Effect of Death

Qualification on Jurors’ Predisposition to Convict and

on the Quality of Deliberation, 8 Law and Human

PE vs cecccnetecesucastiuceece 11

I. ARGUMENT

A. THE TRIAL COURT ERRED IN EXCUSING JUROR

BOUNDS FOR CAUSE BECAUSE, AS FOUND BY THE

MISSISSIPPI SUPREME COURT, THE JUROR

COULD HAVE ACTED IMPARTIALLY IN DETER-

MINING SENTENCE AND, THUS, WAS QUALIFIED

UNDER WITT AND ADAMS.

The Respondent has argued that the harmless error

issue before the Court should not be reached because the

trial court’s decision to excuse the questioned juror, Mrs.

Bounds, was not error. Adoption of this alternative

ground renders the Mississippi Supreme Court's avoid-

ance of Davis v. Georgia, 429 U.S.122, 97 S.Ct. 399, 450

L. Ed.2d 339 (1976), superfluous. Analysis of the question-

ing of Mrs. Bounds and of the Mississippi Supreme

Court’s application of Wainwright v. Witt, 469 U.S. __,

105 S.Ct. 844, 83 L.Ed.2d 841 (1985), reveals that the

excusal for cause of Mrs. Bounds was error.

The questioning of prospective jurors prior to Mrs.

Bounds was convoluted and confusing. (Se, e.g., J.A. 5

and 10.) The questioning of Mrs. Bounds continued this

trend. Mrs. Bounds’ responses reflected her confusion. At

times, she gave responses that qualified her as a juror. At

other times, her responses were more equivocal.

Fortunately, the trial court, through its running com-

mentary, has provided this Court with an assessment of

Mrs. Bounds’ ability to be seated as a juror. The trial

judge’s comments reveal that Mrs. Bounds was

improperly excused for cause.

At the outset, the prosecutor questioned Mrs. Bounds

in his search “to find twelve people who tells (sic) [him]

that they have no conscientious scruples against Capital

Punishment when imposed by law.” (J.A. 16). While this

2

search may have suited the prosecutor's purpose, it was

_ hot consistent with the parameters set out in Witt.

Witt does not require the exclusion of all prospective

jurors who have conscientious scruples against the death

penalty. A juror may only be excluded if he maintains

principles that would “prevent or substantially impair the

performance of his duties as . . . a juror in accordance

with his instructions and oath.” Witt, 105 S.Ct. at 852. A

scrupled juror may agree to set aside his or her scruples in

deference to the law. He would then be qualified to sit as a

juror.

a

The trial court interceded and asked Mrs. Bounds,

“Would you automatically vote against the imposition of

the Death Penalty without regard to any evidence that

' might be developed in the trial in this case?” Mrs. Bounds

responded appropriately, “I would try to listen to the

case.” (J.A. 17).

Mrs. Bounds was directed to respond, yes or no. She

responded appropriately again, “No, sir.” (J.A. 17).

The prosecutor was allowed to question Mrs. Bounds

again. This time she équivocated and did not think she

could impose the death penalty. The prosecution then

moved to strike Mrs. Bounds for cause. (J.A. 19-20).

In response, the trial judge stated his assessment of

Mrs. Bounds’ ability to be seated as a juror. The trial

judge here stated, “Well, I don’t know whether she could

or couldn’t [impose the death penalty]. She told me she

could, a while ago.” (J.A. 20).

It is clear, to this jpoint, that the prosecutor, the party

that requested Mrs; Bounds’ excusal, had not carried its

burden. See, Witt, 05 S.Ct. at 852 (“As with any other

trial situation wheye an adversary wishes to exclude a

3

juror because of bias, then, it is the adversary seeking

exclusion who must demonstrate, through questioning,

that the potential juror lacks impartiality. See Reynolds

v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1879).”).

The remainder of Mrs. Bounds’ questioning did not

provide a proper basis for her excusal.

The trial judge again took up the questioning of Mrs.

Bounds. He began by indicating that her honesty and

sincerity were not in question. (J.A. 20). Mrs. Bounds

then indicated that she would neither automatically vote

for the death penalty (J.A. 21) or automatically vote

against it. (J.A. 21-22).

The prosecutor now realized that Mrs. Bounds could

not properly be struck for cause and moved the court to

reverse its prior rulings (J.A. 23) so that a peremptory

challenge would be returned to the State for use against

Mrs. Bounds. !

The trial court directed the prosecutor to question Mrs.

Bounds further. The final set of questions put to Mrs.

Bounds follows.

BY MR. NECAISE: Mrs. Bounds, do you feel

like this is a case, and I don’t, I certainly don’t want

you to think that I’m picking on you. But, uh, what

we are trying to do here is that we are trying to pick

twelve people, uh, who we feel that, uh, would be fair

and impartial persons, what we are looking for is

ple who could be fair and impartial and who could,

if the evidence warranted it, could impose the Death

Penalty because we feel that this a case that warrants

the imposition of the Death Penalty. We know that

1 By this point, the prosecutor had used his entire allotment of

twelve (12) peremptory challenges. Five peremptory challenges were

involved in the prosecutor's request.

4

the law allows it. And could you tell me, do you feel

like you could reach a verdict in this case, either

guilty or not guilty in this case?

BY MRS. BOUNDS: Could I reach a verdict?

BY MR. NECAISE: A verdict.

BY MRS. BOUNDS: A verdict?

BY MR. NECAISE: Yes, ma’am.

BY MRS. BOUNDS: Either way?

BY MR. NECAISE: Yes, ma’am.

BY MRS. BOUNDS: Yes.

BY MR. N ECAISE: You could reach a verdict of

guilty or not guilty. Now, if that verdict was guilty

and ee that from the evidence that you used to

find hi guilty, that evidence which you had used to

find him guilty, if you felt that that evidence was of

such a heinous, atrocious and crue! manner, do you

feel that you could vote for imposing the Death

Penalty on this twenty-eight year old Defendant?

BY MRS. BOUNDS: Yes.

BY MR. NECAISE: Ma’am?

BY MRS. BOUNDS: Yes.

BY MR. NECAISE: Judge, the lad

but we would challenge her for cause. aay Says yes,

. (J.A. 23-24)

The trial judge then, over objection, excused Mrs.

Bounds for cause because she was “indecisive.” (J.A. 26).

The prosecution failed to carry its burden of proof. Mrs.

Bounds was excused for an improper reason. “[SJhe was

clearly qualified to be seated as a juror under the Adams

5

and Witt criteria.” Gray v. Mississippi, 472 So.2d 409, 422

(Miss. 1985). The trial court’s decision constituted error.

B. THE RECORD HERE DOES NOT SUPPORT

RESPONDENT'S CONTENTION THAT THE TRIAL

COURT WAS INTENT UPON VIOLATING THE LAW

BY REFUSING ALL CHALLENGES FOR CAUSE

MADE BY THE STATE.

Next, Respondent has argued that the Mississippi

Supreme Court has misconstrued the actions and intent of

the trial court when the trial court refused to excuse

certain jurors for cause. The Mississippi Supreme Court

considered the rulings to have been based upon the trial

court’s assessment of the credibility of the prospective

jurors. Gray, 472 So.2d at 421. Respondent argues that

the trial court was simply intent upon denying all cause

challenges made by the State.

In Mississippi, as in other states, trial judges take an

oath to uphold the law.2 The Respondent has asked this

Court to presume that the trial judge in this case inten-

tionally violated his oath of office.

In its brief, the Respondent has argued that references

by the trial judge to “cheating” the State (Resp. Brief at

18), clearly establish that the trial judge, from the outset,

was intent upon violating the law by purposely refusing to

excuse any jurors for cause, no matter the clarity of the

juror’s bias. The record before this Court is simply insuffi-

cient to support the Respondent's contention.

At the time of the trial judge’s reference to “cheating”

the State, the trial court was clearly given the oppor-

2 Mississippi Constitution, Article 6, § 155.

3 Indeed, the trial court granted a challenge for cause made by the

State against prospective juror Schleh (T. 504-506).

6

tunity to reverse its previous rulings if the court felt that

the prior rulings were erroneous. The correction could

have been accomplished by granting the State’s motion to

reverse one of the earlier rulings that denied the State's

challenges for causé. (J.A. 23). The judge refused to alter

his earlier rulings. (J.A. 26). Thus, it cannot be stated

mm a the judge considered the jurors in

question unqualified and nonetheless i

refused to excuse them for cause. asi reacenabeme

If a presumption is to be entertained, it -

sumed that the tolel cunt exted in emantenen one

law. Witt, 105 S.Ct. at 856; Marshall v. Lonberger, 459

U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983):

LaValle v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203. 35

L.Ed.2d 637 (1973); and Townsend v. Sain, 372 U.S. 293

83 S.Ct. 745, 9 L.Ed.2d 770 (1963). This better explains

the court’s actions and establishes that the court acted

consistent with its duty to err, if at all, on the si

| ; e side of the

The trial judge may have cheated the State by deciding

questionable issues in the Petitioner's favor. This, how-

ever seemingly unfair, was precisely the court’s duty.

Witt, 105 S.Ct. at 855 (“We reiterate what this Court

stressed in Dennis v. United States, 339 U.S. 162, 168, 70

S.Ct. 519, 521, 94 L.Ed. 734 (1950): [T)he trial court has a

serious duty to determine the question of actual bias, and

a broad discretion in its rulings on challenges there-

for. . . . In exercising its discretion, the trial court must

be zealous to protect the rights of an accused.’”),

The Mississippi Supreme Court cognizan

, presumab]l t

of the trial court's oath of office and prior sadiiion found

that the jurors in question were retained because their

7

attestations were considered insincere by the trial court.‘

On the state of this record, this Court should not disturb

that finding.

C. THE AMICI CURIAE HAVE ARGUED THAT THE

PROCEDURES APPLICABLE TO THE PRESERVA-

TION OF JURY ERROR IN NON-CAPITAL CASES

SHOULD BE APPLIED HERE. THE PREMISE UPON

WHICH THE AMICI CURIAE’S ARGUMENT IS

BASED IS FALLACIOUS AS THE FACTFINDING AND

LIMITED SENTENCING FUNCTIONS OF NON-CAP-

ITAL JURIES ARE VASTLY DIFFERENT FROM THE

DISCRETIONARY FUNCTIONING OF A JURY IN A

CAPITAL SENTENCING PROCEEDING.

The Amici Curiae have argued that the nature of a

jury’s role in a capiial trial and sentencing proceeding is

similar to the role of a jury in a non-capital case. (Amici

Curiae, hereafter, A.C., Brief at 4). In non-capital trials,

the argument continues, “most states, by statute, court

rule, or case decision, require a defendant seeking rever-

sal of his conviction or vacation of his sentence based upon

the erroneous grant or denial of a challenge to a ven-

ireman to demonstrate some prejudice to the defense by

the trial court’s erroneous action.” (A.C. Brief at 5). As

the roles of the capital and non-capital juries are similar,

capital defendants should also be required to establish

prejudice.

4It is interesting to note that Respondent made this argument

before the Mississippi Supreme Court and asked that court to

officially condemn the practice of trial courts refusing to grant mer-

itorious cause challenges. (Appellee Brief filed by Respondent before

the Mississippi Supreme Court at 15). The Mississippi Supreme

Court declined comment on the issue.

8

Although apparently logical on its face, analysi

argument put forth by the Amici Curiae stan oe “a

basic assumptions upon which the argument is based are

inaccurate. The vast majority of states that require a

showing of prejudice (See, A.C. Brief at 6, fn. 1) do not

allow juries to determine felony sentences. See, e g

State v. McMillian, 28 N.C. App. 308, 220 SE.2d 325

meh ae in the few states that still have jury

lencing, the proceedings there inv

equivalent of capital auatite, aor

The factfinding function of a jury in determining guilt i

vastly different from the discretionary function ee

in determining an appropriate sentence that accurately

represents the conscience and morals of the community

See, e.g., Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521. 65

L. Ed.2d 581 (1980). The treatment of state appeals involv-

ing Juries that engage solely in factfinding is irrelevant to

the instant capital sentencing issue.

The few states that permit juries in non-capi

determine sentences, do so under tem amp

different from capital cases. For example, the concept of

mercy plays a much more important role in death penalty

cases than in non-capita! cases. In Mississippi, as in other

states, a capital jury is free to impose a sentence of life

even if the aggravating factors outweigh the mitigating

factors. Coleman v. State, 378 So.2d 640 (Miss. 1979).

Capital jury sentencing is i

/ t generally accomplished in a

oe proceeding. This is not true in non-capital sen-

. ony a the — evidence admissible in mitiga-

much greater t tha

por ce t generally seen in non-

Finally, in the capital sentencin

é , capit g area, a defendant i

entitled to have his trial subjected to a greater aoe of

scrutiny than in non-capital cases. Turner v. M urray, 476

9

U.S. ___, 106 S.Ct. 683, 90 L. Ed.2d 77 (19886), Sentences

of death must meet an enhanced standard of reliability.

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978,

49 L.Ed.2d 944 (1976) (Plurality opinion).

Capital sentencing occurs in a special context. Nowhere

is it more important that the actuality and appearance of

fairness be protected. Conclusions about appropriate pro-

cedures in non-capital cases are neither relevant or con-

trolling in capital sentencing and should not be adopted

here.

D. CAPITAL SENTENCING OCCURS IN A SPECIAL

CONTEXT WHERE A JURY’S DECISION IS A

REFLECTION OF A COMMUNITY’S MORALITY

AND IS HIGHLY DISCRETIONARY. AS SUCH, AN

APPELLATE COURT CANNOT CONFIDENTLY FIND

THAT AN ERROR COMMITTED IN THE EXCUSAL

OF AJUROR FOR CAUSE WAS HARMLESS BEYOND

A REASONABLE DOUBT.

The Respondent here argues tha‘ “the exclusion of

Juror Bounds did not violate fair cross section standards

as Witherspoon excludables do no constitute a distinctive

group. Lockhart v. McCree, 476 U.S. —__, 106S.Ct. 1758,

90 L. Ed.2d 137 (1986).” (Resp. Brief at 31-32).5 The Amici

5In part, Respondent hax also argued that the instant case is

distinguishable from Davis v. Georgia because the Mississippi

Supreme Court did not engage in a harmless error analysis. Rather,

the Mississippi Supreme Court merely allowed the trial judge to

correct his previous error. (Resp. Brief at 23). Had the trial court

acted as Respondent argues, Petitioner would probably not have

sought certorari on this issue. The trial court had the opportunity to

clearly acknowledge that its earlier rulings were erroneous and to

reverse those rulings. (J.A. 23). The court refused to do so. (J.A. 26).

Rather, it improperly excused Mrs. Bounds for cause. Assuming

arguendo, that the prior rulings were erroneous, capita! sentencing

cases are hardly an appropriate vehicle for this Court to adopt the

concept of “off-setting penalties” as apparently sought by Respond-

ent.

10

Curiae have argued similar!

- y. (A.C. Brief at 9-10). B

the Amici Curiae and the Res —

Court's bore : ‘une have confused the

In Lockhart v. McCree, this Co

v. McCree, urt continued t -

nize ty Vital distinction between the factfinding role of. a

= Jury in determining guilt or innocence and the

wy ea a function involved in capital sentencing. The

ee ctions are separate and distinct and require dif-

ee analyses.® As to factfinding, Witherspoon excluda-

es do not form a cognizable group. However, as to

“ee yp the improper exclusion of scrupled jurors can

ead to a constitutionally cognizable imbalance of view :

Rather than foreclosing Petitioner’s

Fe opinions of last term as well es mg vem ae

evelopment of Witherspoon-Adams-Witt, argue strong!

for Petitioner's position.? That is, the rule of Panny 4

Georgia, supra, should be preserved. %

- Witherspoon,® did not create a :

ground fo

Jurors. Rather, it created a boundary that + om a

” For example, Rose v. Clark, 54 USLW

: ’ : , 5023, 5025

ely ret ting too» i

pcan error analysis presumably applies to all alleged

prod a acca . unsel and was tried by an impartial

selection of hy impartial woe Nom sy dealt with errors during the

factfinding. adjudicator and related to sentencing, not

391 U.S. 510, 88 S.Ct. 1779, 20 L.Ed.2d 776 (1968).

ll

not transgress in their efforts to obtain impartial juries.

Adams v. Texas, 448 U.S. at 48-49, 100 S.Ct. at 2528.

The progression from Witherspoon to Witt has served to

soften the initial dictates of Witherspoon. As to sentenc-

ing, under Witherspoon, only those persons who would

automatically vote against the death penalty could prop-

erly be excluded. Today, under Witt, it is only necessary to

show that a juror’s beliefs would substantially impair his

performance.

The impact of Witt is to make more jurors subject to

exclusion. Conversely, applying Witt, fewer errors are

likely to occur. The errors that do result, however, are

likely to be more egregious. The reason for this is twofold.

First, because the Witt standard is easier to apply and

allows for broader exclusions, a trial judge is given much

greater latitude before his error is recognized. The trans-

gression must be greater than that recognized under

Witherspoon.

Second, with the broader exclusions permissible under

Witt, fewer attitudes and beliefs are actually represented

on a particular jury. No longer are merely the outer most

fringes excluded. Now, juries are apt to be more homoge-

neous and, as a consequence, less representative of the

full spectrum of community attitudes. This detracts from

the quality of deliberations and undercuts the ability of a

particular jury to represent the conscience of the com-

munity from which it was drawn.°

9 See, Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d

234 (1978) and Cowan, Thompson and Ellsworth, The Effect of Death

ification on Juror’s Predisposition to Convict and on the Quality

of Deliberation, 8 Law and Human Behavior 53-79 (1984).

12

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967) this Court recognized that trials

need not be perfect. Constitutional errors may occur and

may be proven harmless beyond a reasonable doubt. Con-

victions entered after trials that contained harmless

errors may stand.

This Court, as recently as last term, recognized that in

determining the propriety of a sentence of death, a jury

exercises a unique, individualized discretionary function.

Turner v. Murray, supra. See also, Caldwell v. Mis-

sissippi, 472 U.S. —__, 105 S.Ct. 2633, 86 L.Ed.2d 231

(1985). This function is not readily subject to harmless

error review.

The Respondent and Amici Curiae have argued that the

error in excusing Mrs. Bounds for cause was harmless.

However, nothing in either the Respondent’s brief or in

the brief submitted by the Amici Curiae establishes that

the error did not affect jury deliberations, the appearance

of fairness or the actual outcome. If such arguments had

been proposed, discussion could then move to the ques-

tion of whether the error was harmless beyond a reason-

able doubt.

The nature of the jury’s sentencing decision precludes

discussion of the impact of errors. Individualized, highly

discretionary jury sentencing decisions are, almost by

definition, insulated from the meticulous analysis

required to determine that constitutional errors are

harmless.

The per se rule announced in Davis v. Georgia is consis-

tent with the capital sentencing jurisprudence that has

developed since 1976. Davis v. Georgia should be pre-

served.

s 13

II. CONCLUSION

For the foregoing reasons, this Court should remand

the instant matter for a new sentencing proceeding.

Respectfully submitted,

ANDRU H. VOLINSKY

SCHAPIRA AND VOLINSKY, P.A.

108 Bay Street

Manchester, NH 03104

(603) 669-7603