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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Cheshire
No. 2013-426


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  RICHARD PAUL

                             Argued: June 18, 2014
                        Opinion Issued: October 24, 2014

      Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.


      Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for the defendant.

      LYNN, J. Following a jury trial in Superior Court (Kissinger, J.), the
defendant, Richard Paul, was convicted on three counts of the sale of an ounce
or more of marijuana, one count of possession with intent to distribute an
ounce or more of marijuana, and one count of the sale of a substance
represented to be LSD. See RSA 318-B:2,:26 (2011) (amended 2013). The
defendant appeals, asserting that the trial court failed to comply with RSA
519:23-a (Supp. 2013) by declining to give the jury nullification instruction he
requested and by giving other jury instructions that effectively contravened his
“jury nullification defense.” We affirm.
       The following facts are derived from the record. On April 17, April 27,
and May 16, 2012, the Attorney General’s Drug Task Force, using a
confidential informant, conducted controlled buys of marijuana from the
defendant, with a final controlled buy arranged for May 30, 2012. On April 27,
the defendant also sold the confidential informant a substance that he
represented to be LSD. During the May 30 meeting, the defendant was
arrested. The defendant was tried before a jury in April 2013 and found guilty
on all charges.

       Before trial, the defendant, who characterizes himself as a “marijuana
activist,” requested the following jury instruction:

      You are not required to convict the defendant. If you feel that a
      conviction would not be a fair or just result in this case, it is within
      your power to acquit even if you find the state has met its burden
      of proof. You must however keep in mind that we are a nation
      governed by laws. Unless finding the defendant guilty is
      repugnant to your sense of justice you should follow the
      instruction on the law as I gave it to you. You must also keep in
      mind that you may not find the defendant guilty unless the State
      has established guilt beyond a reasonable doubt.

The State responded by objecting only to the wording of the instruction, and
proposed the following alternative language:

      We are a nation governed by laws. You should follow the
      instruction on the law as I give it to you, including the instruction
      that you should find the defendant guilty if the state has
      established guilt beyond a reasonable doubt. However, if finding
      the defendant guilty is repugnant to your sense of justice, and you
      feel that a conviction would not be a fair or just result in this case,
      it is within your power to acquit even if you find the state has met
      its burden of proof.

       At a hearing to review jury instructions held just before closing
arguments, the defendant informed the court that he did not object to the
State’s proposed instruction. In support of his argument that the court should
give the proposed instruction, the defendant contended that although RSA
519:23-a afforded him the right to argue nullification to the jury, two
provisions of the standard instructions given to jurors in criminal cases tended
to negate such an argument. The first is the instruction which states, “You
must follow the law as I explain it regardless of any opinion you may have as to
what the law ought to be.” The second is the so-called Wentworth instruction,
which states:




                                         2
        If you have a reasonable doubt as to whether the State has proved
        any one or more of the elements of the crime charged, you must
        find the defendant not guilty. However, if you find that the State
        has proved all of the elements of the offense charged beyond a
        reasonable doubt, you should find the defendant guilty.

State v. Wentworth, 118 N.H. 832, 839 (1978) (emphasis added). The
defendant argued that the distinction between “must” and “should” within the
Wentworth instruction is too subtle and does not adequately apprise the jury of
its ability to nullify. The State did not object to giving a nullification
instruction using the language it had proposed, but observed that RSA 519:23-
a does not compel the court to give such an instruction.

       Following the hearing, the trial court announced that it would not give a
jury nullification instruction. The defendant then reiterated his objection to
the instruction that the jury “must” follow the law as stated by the court. In
response, the State suggested that the defendant’s objection could be resolved
if the word “must” in the instruction were changed to “should.” The court
agreed to make this change to the instruction, and the defendant made no
further objection.

       During closing arguments, defense counsel informed the jurors that they
could acquit the defendant even if they thought the State had proven its case
beyond a reasonable doubt, and she urged the jury to do so, arguing, “with this
man, in these circumstances, the fair and just verdict is not guilty.” In its
closing, the State acknowledged that the defendant’s description of jury
nullification was correct, but argued that based on the evidence the jury
should find the defendant guilty. After closing arguments, the trial court
instructed the jury that, “You should follow the law as I explain it regardless of
any opinion you may have as to what the law ought to be.”1 The court also
gave the standard Wentworth instruction. Following the convictions, the
defendant moved for judgment notwithstanding the verdict, which the trial
court denied. This appeal followed.

      The defendant asserts that the trial court’s jury instructions contradicted
and undermined the defendant’s explanation of the jury’s nullification right as
laid out in RSA 519:23-a. The defendant contends that RSA 519:23-a should
be construed broadly and that compliance with it requires that: (1) the trial
court allow the defendant to make a jury nullification argument; (2) the trial
court’s jury instructions neither contravene nor undermine the defendant’s
argument; and (3) the trial court give a more rigorous nullification instruction
than the standard Wentworth instruction to insure that the jury is adequately

1 The court also instructed that, “If the lawyers state the law differently from the law as I explain it
to you, then you must follow my instructions and ignore the statements of the lawyers.” The
defendant did not object to this portion of the instructions.


                                                   3
informed about nullification. The State asserts that RSA 519:23-a merely
codifies pre-existing law. We agree with the State.

       The construction of RSA 519:23-a presents an issue of law, which we
review de novo. See State v. Addison, 160 N.H. 732, 754 (2010). We are the
final arbiters of the legislature’s intent as expressed in the words of the statute
considered as a whole. Id. When interpreting statutes, we look to the plain
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning. Id. We interpret legislative intent from the
statute as written and will neither consider what the legislature might have
said nor add language it did not see fit to include. Id. Additionally, we
interpret a statute in the context of the overall statutory scheme and not in
isolation. Id.

      In 2012, the New Hampshire legislature enacted RSA 519:23-a, which
took effect on January 1, 2013.2 It states: “In all criminal proceedings the
court shall permit the defense to inform the jury of its right to judge the facts
and the application of the law in relation to the facts in controversy.” RSA
519:23-a (Supp. 2013) (emphasis added). In the session law enacting this
statute, the legislature included the following preamble:

       Findings and Intent of the General Court. Under the decisions of
       both the New Hampshire supreme court and the United States
       Supreme Court, the jury has the right to judge the facts and the
       application of the law in relationship to the facts in controversy.
       The jury system functions at its best when it is fully informed of
       the jury’s prerogatives. The general court wishes to perpetuate
       and reiterate the rights of the jury, as ordained under common law
       and recognized in the American jurisprudence, while preserving
       the rights of a criminal defendant, as enumerated in part 1,
       articles 15 and 20, New Hampshire Bill of Rights.

Laws 2012, 243:1 (emphasis added).

       Two features of both the statute and the preamble stand out in regard to
the arguments advanced by the defendant. First, neither contains language
that purports to impose upon the trial court any obligation to instruct the jury
as to jury nullification. Second, and more importantly, the highlighted
language in both the statute and the preamble, which speaks of informing the
jury of its right to judge the application of the law in relation to the facts, is
decidedly not a direction that the jury is to have the right to sit in judgment of
the law – the prerogative which, the defendant claims, lies at the heart of jury

2The State does not contest the applicability of this statute to the offenses at issue. Thus, we
have no occasion to consider the question of whether the statute applies to offenses committed
prior to the date it took effect.


                                                 4
nullification. Cf. United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C.
Cir. 1972). Instead, the statute merely delineates the jury’s traditional function
of determining how the law applies to the facts as it has found them, which it
must necessarily perform in every case in order to reach a verdict. See N.H.
Bar Assoc., Criminal Jury Instructions 1.01 (1985) (“You must apply the law
given to you in these instructions to the facts and in this way reach a fair and
just verdict.”); see also Pierce v. The State, 13 N.H. 536, 549 (1843) (Gilchrist,
J.) (criticizing some courts and lawyers for “a failure to discriminate between
the application of the law to the fact, and the decision of the law by the jury”).

       Although we do not find RSA 519:23-a to be ambiguous, the legislative
history of the statute is particularly instructive in this case. That history
makes plain the limited intent of the legislature to codify existing law. The
legislation that ultimately became RSA 519:23-a was introduced in the 2011
session of the legislature as House Bill (HB) 146. See Laws 2012, ch. 243. As
originally drafted, HB 146 contained language that would have given the jury
the right to judge both the facts and the law. It stated:

      In all court proceedings the court shall instruct the jury of its
      inherent right to judge the law as well as the facts and to nullify
      any and all actions they find to be unjust. The court is mandated
      to permit the defendant or counsel for the defendant to explain this
      right of jury nullification to the jury.

Following public hearing, the House Judiciary Committee voted 15-0 to
recommend that the bill was “inexpedient to legislate” (ITL). See N.H.H.R. Jour.
281 (2011). “The committee concluded that, as drafted, this bill would
incorrectly instruct the jury to put the law on trial rather than the application
of the law in the case actually before it. The committee further concluded that
the so-called ‘Wentworth’ instruction . . . adequately informs the jury of its
unquestioned right of nullification without misleading it.” Id. When the
committee’s recommendation came before the full House, the bill was
recommitted to the committee, where it was amended to remove the language
granting the jury the right to “judge the law” and to “nullify any and all actions
[the jurors] find to be unjust.” See id. at 341. Substituted was language
requiring the court to instruct the jury of its right to judge the facts and the
application of the law to the facts, and requiring the court to permit the
defendant to explain this right to the jury. See id. Thereafter, the bill was
further amended to make it applicable only to criminal cases and to eliminate
the requirement that the court instruct the jury of its right to judge the facts
and the application of the law to the facts in controversy, and, as ultimately
enacted in 2012, contained only the requirement that the court permit the
defendant to inform the jury of this right. See Laws 2012, ch. 243.

      Finally, construing RSA 519:23-a as merely codifying existing law, rather
than conferring on the jury a right to judge or nullify the law, is consistent with


                                        5
the doctrine of constitutional avoidance. This well-established doctrine
requires us, whenever reasonably possible, to construe a statute so as to avoid
bringing it into conflict with the constitution. See State v. Ploof, 162 N.H. 609,
620 (2011). Were RSA 519:23-a interpreted to grant juries the right to judge or
nullify the law, there would be a significant question as to its constitutionality.
See Pierce, 13 N.H. at 554 (“[I]t is the opinion of the court, that it is
inconsistent with the spirit of the constitution that questions of law, and still
less, questions of constitutional law, should be decided by the verdict of the
jury, contrary to the instructions of the court.”) (Gilchrist, J.); id. at 571 (“If it
were true that the legal power to do an act, without legal accountability for it,
established a right to do that act, the jury might rightfully acquit the accused
in all cases, without regard to the law or the evidence, for their power so to do
is undoubted, and their exemption from accountability equally clear.”) (Parker,
C.J.); see also State v. Hodge, 50 N.H. 510, 523 (1869) (noting that, in Pierce,
the common law of New Hampshire, which prior to that decision had permitted
the jury to judge the law, “was held to be illegal and unconstitutional, and the
new doctrine was announced that the jury are not the judges of the law in
criminal cases”).

       Having concluded that RSA 519:23-a represents simply a codification of
pre-existing law regarding the function of the jury in criminal cases, we briefly
summarize that law. It is well established that jury nullification is neither a
right of the defendant nor a defense recognized by law. State v. Sanchez, 152
N.H. 625, 629 (2005). Rather, jury nullification is the undisputed power of the
jury to acquit, even if its verdict is contrary to the law as given by the judge
and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203
(1984) (recognizing jury nullification to be “an historical prerogative of the jury”
(quotation omitted)). The trial court ordinarily gives the Wentworth instruction,
which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at
629. The defendant is not entitled to a more specific jury nullification
instruction, and the decision to give such an instruction, when requested, lies
within the sound discretion of the trial court depending on the facts of a
particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown,
132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction,
and, as discussed above, nothing in RSA 519:23-a required the court to do
anything more.

       In her closing, the defendant’s counsel did not argue that the provisions
of RSA chapter 318-B that he was charged with violating did not apply to the
facts proved by the State at trial. Rather, as pertinent to the nullification
issue, counsel contended that the jury should find the defendant not guilty
notwithstanding the law, arguing: “But ask yourself whether this law makes
sense to you, that on one hand something has no medical application, yet, on
the other hand there are several governments who are allowing it to be
medically applied.” Nothing in RSA 519:23-a required the trial court to permit
the defendant to make such an argument asking the jury to judge the law


                                          6
itself. Nor did the statute require the court to instruct the jury that it “should”
rather than “must” follow the court’s instructions. Thus, the trial court gave
the defendant the benefit of an argument and an instruction to which he was
not entitled. He therefore is in no position to complain. See State v. Wells, 166
N.H. ___, ___, 89 A.3d 156, 160 (2014) (holding that where trial court
improperly struck evidence that was properly admissible, “the defendant
achieved more than he was entitled to secure and consequently cannot
complain of the trial justice’s failure to declare a mistrial for the attempted
introduction of such evidence” (quotation and brackets omitted)); State v.
Dorsey, 118 N.H. 844, 847 (1978) (noting that “by allowing the defendant this
backdoor use of the competing harms statute, the court gave him the benefit of
a defense to which he was not entitled”).

       In conclusion, although RSA 519:23-a requires the trial court to allow
the defendant “to inform the jury of its right to judge the facts and the
application of the law in relation to the facts in controversy,” it does not require
the court to allow the defendant to inform the jury that it has the right to judge
the law or the right to ignore the law. In other words, it is not a jury
nullification statute. Further, it is of no moment that the court’s instructions
may have contravened or undermined the defendant’s jury nullification
argument because the statute gave the defendant no right to make such an
argument.

                                                   Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.




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