LYNN, J.
In 1973, the defendant, Robert Breest, was convicted of murdering Susan Randall. Although we affirmed his conviction on direct appeal,
The pertinent facts are as follows. On March 2, 1971, a state highway employee found Randall's body, clothed from the waist up, on the frozen Merrimack River near Interstate Route 93 in Concord. Randall had been reported missing since February 27 of that year. The body, located 20 to 25 feet away from a bridge, was placed in a rescue basket by two officers from the Concord Police Department and taken to the Concord Hospital morgue. There, Dr. George C. Katsas, a board certified forensic pathologist, performed an autopsy. According to Katsas, Randall's body was heavily bruised as a result of multiple traumas. Her facial and neck area were covered with lacerations and contusions. An internal examination of Randall's body revealed massive injury to the vital organs: her lungs had been severely bruised, her liver was almost split in half, and there were multiple ruptures of her duodenum. Also, Randall's skull had been fractured. Although Katsas conceded that some of the injuries may have been caused by a fall from the nearby bridge onto the frozen river, he asserted that the injuries to the liver and duodenum were rare and were most often caused by kicking the abdominal area. Based upon the autopsy, Katsas concluded that Randall's death had occurred as a result of multiple blunt injuries. He estimated that Randall was killed within a few hours of her last meal, which she ate late in the evening of February 27. Furthermore, in light of her appearance at the time she was found, Katsas believed that Randall had been sexually assaulted. The medical examiner clipped Randall's fingernails, and the police retained the clippings as evidence.
On the night of her death, Randall invited her friend, Judy Jenkins, to visit Randall's apartment on Manchester Street in Manchester. Around 11:45 p.m., Jenkins left Randall in the vicinity of Granite Square in Manchester. At that time, Randall was wearing blue jeans, a sweater, a hip-length brown fur coat, and a brown floppy hat.
One witness testified that while driving through Granite Square shortly after midnight, she saw a young woman hitchhiking in an easterly direction in front of the Chicken House Restaurant. The witness claimed that the woman was wearing a floppy hat, a dark coat, and slacks. When the witness drove by the same area around 12:30 a.m., the woman was gone.
Four individuals sitting in the Chicken House Restaurant also saw a woman hitchhiking. One of the four individuals described her as wearing a floppy brown hat, a fur coat, and dark pants. All four witnesses testified that they saw her enter a white, four-door car with blue interior upholstery. One witness stated that the car was driven by a "big man, I'd say around six feet tall, very broad shoulders, a big head for a man his size." At trial, one individual stated that the driver had a build consistent with the defendant's.
On the night Randall died, several witnesses placed the defendant in Manchester.
Upon arriving in Lowell at 10:30 p.m., the defendant asked Dolor Morel to help him take the furniture out of the car. Morel noticed that the back seat of the car was missing. The defendant told Morel that he was returning to Manchester to get more furniture; Morel saw the defendant leave after 11:00 p.m. and did not see him come back. The following day, Morel noticed the defendant's vehicle parked in the street with the back seat in place.
There also was evidence that the defendant went to Jennie Haggett's residence in Manchester around 11:45 p.m. on February 27. After the defendant spoke with Haggett's son, Haggett told the defendant to leave. Haggett testified that the defendant retrieved an object from the porch and placed it in his car before driving away around 12:10 a.m. on February 28 in the direction of Granite Square. On the morning of March 1, before Randall's body had been found, Haggett went to the Manchester Police Department and reported that a man named "Robert" had come to her Manchester home on the night of February 27th and disturbed her family. She claimed that the man weighed over 200 pounds and was over six feet tall. This description was consistent with the defendant's build.
The day that Randall's body was found, the defendant went to the Manchester Police Department and told an officer that he had heard that a body had been found. The defendant then stated that he thought the police would want to speak with him because he had been "questioned before on things."
On March 15, 1971, Colonel Paul Doyon of the New Hampshire State Police met with the defendant at the defendant's home in Lowell. Doyon explained that he was investigating Randall's homicide and was interested in learning the defendant's whereabouts on February 27, 1971. The defendant provided an account of his activities on February 27 that was consistent with the testimony at trial, with one exception. The defendant told Doyon that, after he unloaded furniture in Lowell, he stayed at home for the rest of the night of February 27. During their conversation, Doyon asked to look at the defendant's vehicle. The defendant consented. Doyon did not see anything incriminating in the vehicle at that time.
However, Doyon observed scratches between the defendant's knuckles, and inquired about them. The defendant stated that the scratches had been caused by a cat. Doyon noted the scratches in his report and stated that the scratches appeared to be consistent with the defendant's explanation because they were not injuries that one would receive from using one's hands in a fight. At trial, Doyon qualified his answer and explained that the injuries were not consistent with injuries that one would receive in a fight insofar as the scratches did not appear to be "offensive injuries." However, the scratches could have been "defensive injuries."
On April 2, 1971, pursuant to a warrant, the police searched the defendant's vehicle for fingerprints, blood, and trace evidence. They removed fibers and paint chips from the vehicle. Roger Beaudoin of the New Hampshire State Police Crime Laboratory microscopically examined the particles and compared them to samples taken from Randall's clothing. As a result of the examination, Beaudoin concluded that there was a "high degree of probability" that there was contact between Randall's clothing
In 1973, the defendant was tried for Randall's murder. At trial, the defendant asserted that he was not in New Hampshire when Randall was killed. The State presented testimony from David Carita, who had been incarcerated with the defendant while the defendant was contesting extradition from Massachusetts to New Hampshire after his arrest. Carita testified that when he asked the defendant if he had murdered "Susan," the defendant confessed that he had. Carita also stated that the defendant told him that he had committed the murder when "[t]here was nobody around."
In its closing argument, the State asserted that the scientific evidence and eyewitness testimony supported its theory that the defendant had picked up Randall, struggled with her, and then beat her to death. The jury returned a guilty verdict, and the defendant was sentenced to life in prison.
Between 2000 and 2008, three rounds of DNA testing were conducted on Randall's fingernail clippings. None of these tests excluded the defendant as the contributor of the DNA. In 2012, with the State's consent, the defendant obtained another round of DNA testing. Because of the analyst's use of new technology, the DNA test indicated that the fingernail clippings contained DNA from
Based upon the 2012 test results, the defendant moved for a new trial, pursuant to RSA 651-D:2. If several prerequisites are met, RSA 651-D:2, which governs post-conviction DNA testing, allows prisoners to "at any time after conviction ... petition the court for forensic DNA testing of any biological material." RSA 651-D:2, I. Paragraph VI(b) states that if the results of the DNA test conducted under the statute "are favorable to the petitioner," the court "shall order a hearing."
Prior to a hearing on the defendant's motion, the State moved to exclude three evidentiary items that it argued were unrelated to the 2012 DNA test results: (1) an affidavit from John J. Kelleher, who was imprisoned with the defendant and Carita in 1972-1973, and whose averments tend to undermine Carita's testimony that the defendant confessed to the murder; (2) an affidavit from Dr. Jeffrey Neuschatz, who would have opined on the effect of Carita's testimony on the jury at the 1973 trial; and (3) testimony from Professor Stephen J. Morris discrediting the neutron activation analysis used in the 1973 trial. The trial court granted the State's motion, concluding that the scope of the hearing contemplated by RSA 651-D:2, VI(b) extended to a consideration of the likely impact of only the newly discovered DNA
During the hearing, the defendant called Huma Nasir, a DNA laboratory analyst, to present expert testimony on the 2012 test results. Nasir provided an overview of the scientific underpinnings of DNA testing, and also reviewed the previous DNA tests conducted on behalf of the defendant. Furthermore, Nasir discussed the methods used to obtain a DNA sample from a crime scene.
The State called Dr. Charlotte Word, an expert in forensic DNA. Word testified about the limitations of DNA testing and the particular complications and advantages associated with testing DNA located on fingernails. Word also commented on the possibility that contamination occurred through Nasir's manipulation of the DNA test sample, as well as industry methods used to reduce the chances of contamination.
Following the evidentiary hearing, the trial court denied the defendant's motion for a new trial. To determine whether the defendant was entitled to relief under RSA 651-D:2, the trial court applied the three-pronged standard set out in
On appeal, the defendant contends that the trial court's decision denying him a new trial should be vacated because the trial court erred by: (1) concluding that, to obtain a new trial under RSA 651-D:2, the defendant was required to show that a new trial would result in an acquittal rather than merely a hung jury; (2) not finding a hung jury to be a "different result" under the
The defendant first contends that, to obtain a new trial, he must show only that there would be "at least a hung jury" rather than an acquittal, were he to be retried. This standard, he asserts, is "consistent with the text of RSA 651-D:2," the statute governing post-conviction DNA testing, because a hung jury would be "favorable" under the terms of the statute.
RSA 651-D:2 states, in relevant part:
RSA 651-D:2, VI(b).
Resolution of this issue requires us to engage in statutory interpretation. "The interpretation of a statute is a question of law, which we review
The defendant argues that an acquittal standard is inconsistent with the text of RSA 651-D:2, VI(b) because the text contemplates relief when the new DNA test results are "favorable," and a hung jury would be a "favorable" outcome.
A plain reading of the statute shows that the word "favorable" refers to the results of the DNA testing, not the ultimate disposition of the court case for which the testing is conducted.
We next consider the defendant's assertion that the trial court erroneously concluded that evidence leading to a probable mistrial would be insufficient to grant a retrial under the
To procure a new trial based upon newly discovered evidence, a defendant must prove "(1) that he was not at fault for failing to discover the evidence at the former trial; (2) that the evidence is admissible, material to the merits and not cumulative; and (3) that the evidence is of such a character that a different result will probably be reached upon another trial."
Here, the defendant disputes only the third prong of the standard, and argues that a hung jury qualifies as a "different result." Such an interpretation is unsupported by our case law. More than 150 years ago, we first elucidated the standard that would apply to new trial requests based upon newly discovered evidence. In
Given our established law on this issue, we find it unnecessary to address the decisions of courts in other states interpreting their particular statutes. We find that the trial court did not err in ruling that a showing of the probability of a hung jury on retrial was insufficient to meet the defendant's burden for obtaining a new trial.
The defendant next argues that the trial court erred by excluding from the hearing non-DNA evidence that he asserts would be available at a new trial and would undermine the State's case against him. The specific evidence that the court excluded was the affidavits of Kelleher, Neuschatz, and Morris. The defendant argues that the exclusion of this evidence was inconsistent with the language of the new trial standard, the policy and legislative history of RSA 651-D:2, and the applicable case law from other jurisdictions.
"We review challenges to a trial court's evidentiary rulings under our unsustainable exercise of discretion standard and reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party's case."
The defendant's assertion that the new trial standard generally considers the import of new evidence in terms of its bearing on the likely outcome of another trial is correct. Yet, as applied to this case, his argument overlooks a critical step: the procedure outlined by RSA 651-D:2. Because RSA 651-D:2, VI(b) creates a mechanism for a defendant to obtain relief based upon new DNA evidence in circumstances
Here, the trial court's exclusion of the non-DNA evidence is in accord with the terms of RSA 651-D:2. Under the statutory scheme, the petitioner must first request new DNA testing.
We are concerned by the potential for abuse that could arise under the defendant's interpretation of the statute. RSA 651-D:2 creates a unique mechanism for overturning a criminal conviction based upon DNA evidence. Absent that mechanism, an individual's motion for a new trial is barred by the statute of limitations after three years.
Finally, the defendant argues that the trial court's ruling that the new DNA test results did not warrant a new trial was against the weight of the evidence. Specifically, the defendant contends that the presence of a second male DNA profile inevitably leads to the conclusion that Randall was attacked by a second assailant, which, in turn, upends the State's theory of the case at the original trial that the defendant acted alone in murdering Randall. To the extent that the trial court considered other explanations for the second male DNA profile, like contamination and casual contact, the defendant claims the court "credited speculation." We disagree.
"Whether newly discovered evidence requires a new trial is a question of fact for the trial court."
The State's expert, Dr. Word, opined that casual contact, which included handshakes, eating at a restaurant, and even "passing people," could have deposited foreign DNA under Randall's fingernails.
To support his argument that the trial court credited "speculation" when considering the possibility of contamination, the defendant points to Nasir's testimony regarding the measures she took in preparing the DNA samples for the 2012 test. These measures included using isopropanol and a Bunsen burner to sterilize the lab equipment. Word, however, noted that she knew of no studies indicating that Nasir's methods were effective in removing casual-contact-based or contamination-based DNA.
More importantly, all four of the DNA tests conducted since 2000 have failed to exclude the defendant as the source of some of the male DNA under Randall's fingernails, thus further contradicting his position at trial that he had never interacted with Randall and was not in the State when she was killed. This is especially consequential in light of the relatively low prevalence of the alleles (the variational forms of a gene appearing on a chromosome) tested on the fingernail clippings, according to evidence presented to the trial court. The alleles, which are consistent with the defendant's alleles, statistically appear in the Caucasian population only "roughly one time out of 140,000 individuals[,] in the African American population roughly once in 26,000 individuals and in the Hispanic population approximately once in 32,000 individuals." Viewed together with the evidence presented at the defendant's original trial, we agree with the trial court that, even considering the 2012 test results, the DNA evidence is "more inculpatory than exculpatory."
The defendant relies upon what he asserts is an analogous case, an unreported Illinois trial court order,
We find that
Furthermore, the new DNA evidence must be considered in light of the original trial evidence.
However, the State presented evidence that the defendant left Haggett's Manchester residence around 12:10 a.m. heading in the direction of Granite Square. Multiple witnesses testified to seeing a woman matching Randall's description hitchhiking near Granite Square shortly after midnight. Other witnesses testified that the woman got into a car that matched the appearance of the defendant's car. Furthermore, one witness gave a description of the driver that was consistent with the defendant. The same day that Randall's body was found, the defendant went to the police station and stated that he heard a body had been found and thought the police would want to speak with him.
Doyon interviewed the defendant two weeks after Randall's body was found and noticed scratches between the defendant's knuckles. At trial, Doyon testified that those scratches were consistent with "defensive" wounds received in a fight. During the trial, the State presented forensic evidence linking the defendant's car to Randall's clothing, as well as testimony from Carita, who claimed that the defendant had confessed to murdering Randall.
We cannot conclude that a fact finder, having heard: (1) all of the evidence offered against the defendant at his original trial; (2) evidence unavailable at that trial that the defendant could not be excluded as the contributor of at least some of the
DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.
Based on our interpretation of RSA 651-D:2, the defendant's argument that the State would not retry him after a mistrial, thus rendering a hung jury equivalent to an acquittal, is immaterial because "favorable" as used in the statute does not pertain to court outcomes.
As to the second ancillary argument, it seems apparent that the legislature specified the different types of relief that a court may grant,
With respect to the defendant's final ancillary argument, although we acknowledge the legislature's use of different terms in the sections of the statute dealing with prerequisites to testing and available remedies after testing has occurred, such difference cannot sensibly be construed to mean that when the legislature used the word "exonerate" in the former sections it intended that a defendant must make a greater showing just to obtain testing than he needs to make to obtain relief based on the "favorable" outcome of the testing.
The defendant argues that we should instead rely upon
However, there is no indication that the State in