State of New Hampshire v. Adam Mueller ( 2014 )


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    THE SUPREME COURT OF NEW HAMPSHIRE
    ___________________________
    Hillsborough - northern judicial district
    No. 2012-644
    THE STATE OF NEW HAMPSHIRE
    v.
    ADAM MUELLER
    Argued: November 13, 2013
    Opinion Issued: February 11, 2014
    Joseph A. Foster, attorney general (Lisa L. Wolford, attorney, on the brief
    and orally), for the State.
    Law Office of Brandon D. Ross, PLLC, of Manchester (Brandon D. Ross
    on the brief and orally), for the defendant.
    LYNN, J. Following a jury trial, the defendant, Adam Mueller, was
    convicted of three counts of felony wiretapping. See RSA 570-A:2, I(a) (Supp.
    2012). On appeal, he argues that the Superior Court (Brown, J.) committed
    plain error by instructing the jury that a violation of the felony wiretapping
    statute requires a mental state of “purposely,” when the statute specifically
    identifies “wilfully” as the applicable mental state.1 The State agrees that the
    trial court’s instruction as to the requisite mens rea was erroneous, but asserts
    that reversal of the defendant’s convictions is not warranted because the
    prerequisites for application of the plain error doctrine have not been met. We
    reverse and remand.
    The limited record reflects the following facts. The defendant is the
    founder of Copblock.org (Copblock), a self-described police accountability
    website. On October 4, 2011, the defendant called three individuals seeking
    comment on an incident that occurred at West High School in Manchester
    involving a student and a police officer. The individuals contacted by the
    defendant were Captain Jonathan Hopkins of the Manchester Police
    Department; Mary Ellen McGorry, Principal of West High School; and Denise
    Michael, assistant to Principal McGorry. The defendant videotaped himself
    making the telephone calls, recorded the calls, and posted the recordings on
    Copblock. The defendant did not ask any of the individuals for their
    permission to record the conversations, nor did he advise them that he was
    doing so. A few months later, while speaking on a local radio show, the
    defendant commented that he did not tell Captain Hopkins, Principal McGorry,
    or Ms. Michael that he recorded their conversations, prompting the Manchester
    Police Department to investigate the matter further.
    The defendant was charged with three counts of felony wiretapping, with
    each count alleging that he had “purposely” recorded a telephone conversation
    without the consent of all the participants. After a one-day trial, at which the
    defendant represented himself and did not testify, the jury found the defendant
    guilty of each charge.
    The defendant argues that the trial court erred by instructing the jury
    that a violation of the felony wiretapping statute requires a mental state of
    “purposely,” when the statute specifically states: “A person is guilty of a class
    B felony if . . . without the consent of all parties to the communication, the
    person . . . [w]ilfully intercepts . . . any telecommunication or oral
    communication.” RSA 570-A:2, I(a) (emphasis added). Because the defendant
    did not object at trial to the court’s definition of the crimes as requiring a
    purposeful mens rea, he raises the issue on appeal as plain error. “The plain
    error rule allows us to exercise our discretion to correct errors not raised before
    the trial court.” State v. Moussa, 
    164 N.H. 108
    , 118 (2012) (quotation omitted);
    Sup. Ct. R. 16-A (“A plain error that affects substantial rights may be
    considered even though it was not brought to the attention of the trial court or
    the supreme court.”).
    1 In his brief, the defendant also argued that, because he was a party to the conversations which
    formed the basis of the charges against him, his conduct constituted, at most, misdemeanor level
    offenses proscribed by RSA 570-A:2, I-a (Supp. 2013). However, at oral argument, the defendant
    explicitly abandoned this argument. We therefore do not address it.
    2
    For us to find plain error: (1) there must be error; (2) the error
    must be plain; and (3) the error must affect substantial rights. . . .
    If all three of these conditions are met, we may then exercise our
    discretion to correct a forfeited error only if the error meets a
    fourth criterion: the error must seriously affect the fairness,
    integrity or public reputation of judicial proceedings. This rule is
    used sparingly, however, and is limited to those circumstances in
    which a miscarriage of justice would otherwise result.
    
    Moussa, 164 N.H. at 118
    (quotation omitted).
    The State concedes that the first two prongs of the plain error test are
    met in this case, i.e., that the trial court erred, and that the error was plain.
    We agree. “The purpose of the trial court’s charge is to state and explain to the
    jury, in clear and intelligible language, the rules of law applicable to the case.”
    State v. O’Leary, 
    153 N.H. 710
    , 712 (2006). When reviewing jury instructions,
    “we evaluate allegations of error by interpreting the disputed instructions in
    their entirety, as a reasonable juror would have understood them, and in light
    of all the evidence in the case.” State v. Prudent, 
    161 N.H. 320
    , 324 (2010)
    (citation omitted).
    Although under RSA 626:2, IV (2007) a requirement that an offense be
    committed “wilfully” is generally satisfied if the defendant “acts knowingly with
    respect to the material elements of the offense,” this statute merely establishes
    a default rule that is subject to exceptions where “a purpose to impose further
    requirements appears” in the statute defining the crime. See Fischer v.
    Hooper, 
    143 N.H. 585
    , 588 (1999). Our decision in Fischer clearly established
    that the default definition of wilfully — that it is the equivalent of knowingly —
    is not the mens rea that applies to violations of RSA 570-A:2, I. 
    Id. at 588-89.
    In Fischer, we were required to determine what the legislature meant when it
    specified “wilfully” as the mental state for the felony wiretapping offense, see
    RSA 570-A:2, I, given that the legislature had imposed a “knowing” mental
    state for the misdemeanor wiretapping offense, see RSA 570-A:2, I-a. 
    Fischer, 143 N.H. at 588
    . Because it had “used two different words to describe the
    mens rea for felony and misdemeanor conduct,” we concluded that the
    legislature could not have intended the same mental state to apply to both
    offenses. 
    Id. Accordingly, we
    held “that the legislature did not intend to
    impose a mens rea of ‘knowingly’ in RSA 570-A:2, I.” 
    Id. Instead, noting
    that
    RSA chapter 570-A closely tracks the pre-1986 version of the federal wiretap
    statute, 18 U.S.C.§ 2511(1), we followed Citron v. Citron, 
    722 F.2d 14
    (2d Cir.
    1983), the leading federal case, in concluding that:
    “wilfully” in RSA 570-A:2, I, means that the defendant must act
    with an intentional or reckless disregard for the lawfulness of his
    3
    conduct. In other words, the defendant has not violated RSA 570-
    A:2, I, if he has “a ‘good faith’ belief that [his] conduct was lawful.”
    
    Fischer, 143 N.H. at 589
    (alteration in original) (citation omitted); see
    also Karch v. Baybank FSB, 
    147 N.H. 525
    , 532 (2002).
    Here, the erroneous mental state of purposely merely required the State
    to show that the defendant had the “conscious object” to record the
    conversations without the consent of all the parties. See RSA 626:2, II(a)
    (2007). However, it did not require the State to prove that the defendant was
    either aware of or recklessly ignorant of the fact that recording the
    conversations without consent was against the law, the very proof that was
    required in order to establish that he acted wilfully.2 In light of the applicable
    definition of wilfully, then, the trial court erred by instructing the jury that
    “purposely,” rather than “wilfully,” was the proper mental state required to
    establish a violation of RSA 570-A:2, I(a). The error also was plain, as it was
    “clear” and “obvious” that the trial court instructed the jury on the incorrect
    mental state. See State v. Guay, 
    162 N.H. 375
    , 384 (2011) (“Plain is
    synonymous with clear or, equivalently, obvious.” (quotation omitted)).
    We next consider whether, under the third prong of the plain error test,
    the trial court’s error affected the defendant’s substantial rights. “Generally, to
    satisfy the burden of demonstrating that an error affected substantial rights,
    the defendant must demonstrate that the error was prejudicial, i.e., that it
    affected the outcome of the proceeding.” State v. Lopez, 
    156 N.H. 416
    , 425
    (2007). The third prong of the plain error test is similar to the harmless error
    analysis we use to evaluate preserved claims of error, with one important
    distinction: whereas the State bears the burden under harmless error analysis,
    the defendant bears the burden under the plain error test. See United States v.
    Gamory, 
    635 F.3d 480
    , 494 (11th Cir. 2011). We will find prejudice under the
    third prong when we cannot confidently state that the jury would have
    returned the same verdict in the absence of the error. See 
    id. (finding that
    the
    defendant did not show prejudice under the third prong when the court was
    “able to conclude with fair assurance . . . that the judgment was not
    substantially swayed by the error” (quotation omitted)).
    The defendant argues that the error was prejudicial because the
    improper jury instruction lessened the State’s burden of proof regarding the
    applicable mental state, thus allowing the jury to convict him based simply
    upon its finding that he specifically intended to record the conversations
    2 Significantly, our construction of wilfully as requiring an intentional or reckless disregard for the
    lawfulness of one’s conduct represents a departure from the usual rule that ignorance of the law
    is not an excuse for criminal conduct. See State v. Stratton, 
    132 N.H. 451
    , 457 (1989) (“It is
    elementary, as well as indispensable to the orderly administration of justice, that every man is
    presumed to know the laws of the country in which he dwells.” (quotation omitted)).
    4
    without consent, without properly considering whether he knew or was
    recklessly ignorant of the fact that his actions were unlawful. The State
    responds that the evidence would have permitted the jury to infer that the
    defendant did know that the recordings were unlawful and, therefore, that the
    erroneous instruction as to the required mens rea did not affect the outcome of
    the trial. We find the State’s argument unconvincing.
    To support its position, the State primarily relies upon statements made
    by the defendant during his opening and closing remarks to the jury and on
    the testimony of Captain Hopkins. In his opening statement, the defendant
    encouraged the jury to determine its verdict based not upon the trial court’s
    instructions, but rather upon what it thought was “right.” In his closing
    argument, the defendant told the jury, “I haven’t denied the fact that I did not
    tell these people that I was filming them. I’ll say that again: I did not tell them
    that I was filming them.” The defendant went on to state:
    I know [the prosecutor] would like you to believe that I’m asking
    you to allow me to break the law, but that’s just not true. I’m
    asking you to decide if this law applies to public officials or to use
    jury nullification . . . . We should not have to tell public officials
    we’re recording them, because everything a public official does is
    public information, plain and simple. And that’s why I feel I’m not
    guilty of these charges.
    Even if we put aside the fact that opening and closing remarks are not
    evidence — a point which the trial court made clear to the jury in its final
    instructions — we do not believe that these statements were tantamount to a
    confession by the defendant that he knew that his conduct was illegal. The
    State generally claims that the defendant’s reference to jury nullification in
    both statements showed that he knew that his conduct violated the law and,
    thus, that he acted wilfully. However, the State takes the jury nullification
    argument out of context. During its opening statement, the State specifically
    told the jury that the mental state for the felony wiretapping statute was
    “purposely.” When the defendant then urged the jury not to follow the law and
    instead to consider jury nullification — because public officials should not have
    to be told they are being recorded — he was not necessarily saying that he
    knew it was against the law to record conversations with such officials without
    their consent. Rather, he might well have been saying that even though it was
    his conscious object to record the conversations without consent, the jury
    should find that this conduct was not unlawful because the law should not
    apply to conversations with public officials. Simply put, when considered in
    context, the defendant’s jury nullification argument is not singularly
    susceptible to the inference that he admitted to knowing that his conduct was
    unlawful, and therefore that he acted wilfully.
    5
    The State’s reliance upon Hopkins’s testimony also is unavailing. During
    cross-examination by the defendant, Hopkins testified that he had been
    recorded by Copblock members in the past, and had been told that he was
    being recorded. The State argues that the jury could have inferred from this
    testimony that the defendant knew it was unlawful to record conversations
    without consent, as other members of Copblock had sometimes notified
    Hopkins that they were recording him. However, the State did not further
    develop Hopkins’s statement on redirect examination, nor did it present any
    other evidence to link Hopkins’s past experience with Copblock members to the
    defendant. For example, there was no evidence about how many times
    Hopkins had been recorded by Copblock members, whether he was always told
    by other Copblock members when he was being recorded, or what the
    defendant’s relationship was with other Copblock members. We think it
    doubtful that the jury reasonably could have inferred the defendant’s willful
    mental state based upon Hopkins’s limited testimony regarding his past
    experience with other Copblock members.
    The State also argues more generally that, based upon the defendant’s
    status as a founder of Copblock and his work with that organization, the jury
    could have inferred that he was familiar with wiretap law and thus knew that it
    was unlawful to record conversations without consent. However, because the
    State did not consider the defendant’s knowledge regarding the lawfulness of
    his conduct to be at issue during the trial, the record contains minimal
    evidence detailing the defendant’s activities or experience with Copblock.
    Finally, the State points to the fact that the defendant did not defend
    against the charges based upon the claim that he acted with the good faith
    belief that his conduct was lawful. The State argues, in essence, that the
    absence of such a defense would have permitted the jury to infer that the
    defendant was aware that his conduct was unlawful. We are aware of no
    authority supporting the proposition that a jury may properly infer guilt based
    upon a defendant’s failure to present a defense that would have been
    immaterial to the question of guilt or innocence under the theory on which the
    State proceeded — here, that it need only show the defendant acted purposely.
    To summarize, although the evidence was overwhelming that it was the
    defendant’s conscious object to record the conversations without the consent of
    all parties, there was minimal evidence concerning whether the defendant
    knew or was recklessly ignorant of the fact that his conduct was unlawful. In
    this regard, this case is distinguishable from State v. Ortiz, 
    162 N.H. 585
    (2011). In that case, the defendant argued that the trial court committed plain
    error by instructing the jury that the mens rea for the FSA charge was
    “knowingly” instead of “purposely.” 
    Id. at 591.
    We held that the plain error
    test was not satisfied, despite the instruction on the incorrect mental state, as
    “the evidence that the defendant acted purposely was overwhelming and
    6
    essentially uncontroverted.” 
    Id. at 592.
    Here, unlike in Ortiz, the evidence of
    the correct wilful mental state was not overwhelming and essentially
    uncontroverted. Thus, we cannot state with confidence that the jury would
    have found the defendant guilty if it had been properly instructed to decide
    whether the defendant “wilfully” recorded the conversations without consent.
    Accordingly, we find the third prong of the plain error test satisfied, as the
    erroneous instruction likely affected the outcome of the proceedings.
    We next consider whether the fourth prong has been satisfied. Under the
    fourth prong, we must decide whether the trial court’s error “seriously affect[s]
    the fairness, integrity, or public reputation of judicial proceedings.” 
    Moussa, 164 N.H. at 118
    . We limit our exercise of discretion under the fourth prong to
    “those circumstances in which a miscarriage of justice would otherwise result.”
    
    Id. In State
    v. Russell, we declined to exercise our discretion under the fourth
    prong of the plain error rule because there was “overwhelming and essentially
    uncontroverted evidence” of the defendant’s guilt. State v. Russell, 
    159 N.H. 475
    , 492 (2009). As demonstrated above, the evidence of the defendant’s wilful
    mental state at the time he recorded the conversations was far from
    overwhelming. Thus, there is the very real prospect that the jury would have
    returned different verdicts had it been properly instructed. Cf. United States v.
    Paul, 
    37 F.3d 496
    , 500 (9th Cir. 1994) (finding the plain error test satisfied
    where the district court improperly instructed the jury on the different mental
    state requirements of voluntary and involuntary manslaughter, for in doing so
    the district court “created a substantial risk that [the defendant] was convicted
    of voluntary manslaughter, even though the jury may have believed the killing
    was neither intentional nor extremely reckless”). To allow the convictions to
    stand under these circumstances “would seriously affect the fairness and
    integrity of judicial proceedings.” 
    Guay, 162 N.H. at 384
    . Accordingly, we
    reverse the convictions and remand for a new trial.
    Reversed and remanded.
    DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.
    7
    

Document Info

Docket Number: 2012-644

Judges: Lynn, Dalianis, Hicks, Conboy, Bassett

Filed Date: 2/11/2014

Precedential Status: Precedential

Modified Date: 3/2/2024