Sitting on death row, Addison wants earlier robbery conviction thrown outBy DALE VINCENT
New Hampshire Union Leader
November 26. 2012 8:28PM
MANCHESTER - While the New Hampshire Supreme Court considers the appeal of his conviction for murdering Manchester Police Officer Michael Briggs, Michael Addison is trying another way to void his death sentence.
Addison is trying to get his conviction overturned in the Hudson 7-Eleven armed robbery five days before Briggs was shot on Oct. 16, 2006. Addison's convictions in the Hudson case, in which Judge Kathleen McGuire separately found him guilty of felon in possession of a weapon, were among the aggravating factors cited by prosecutors in seeking the death penalty for Briggs' murder.
In an evidentiary and scheduling hearing on a petition for habeas corpus before Hillsborough County Superior Court North Judge Kenneth C. Brown, with Addison present at the defense table, defense attorney Andru Volinsky said there is a basic disagreement between prosecutors and defense.
"The state thinks we're limited to the record," said Volinsky, who argued there are a number of issues that should be examined.
Among them: how and why Judge Kathleen McGuire was chosen to handle the three Addison trials preceding the murder trial over which she presided; whether some of her rulings were biased; that Addison had ineffective counsel; that two prosecution witnesses, Teresia Shipley and Angela Swist, were not truthful; jury questioning; jury composition; that the jury was tainted, and that Juror eight, who was questioned about not paying attention during the "rather dry" DNA evidence presentation, shouldn't have been on the jury.
Volinsky wants to depose judges involved in the case to find out who made the decision to have McGuire hear all the cases involving Addison. He said Judge William J. Groff, who was the senior justice at Hillsborough County Superior Court South, was originally the judge on the 7-Eleven case. Judge Robert Lynn was the chief justice of the Superior Court at the time.
Volinsky said the issue was raised with the Attorney General's Office, but its representatives said they didn't know.
"We need some basic discovery on how that came about," said Volinsky. "There's no paper trail." He said the defendant "is entitled to an impartial judge."
Assistant Attorney General Elizabeth Woodcock said the defense, aka petitioner, is suggesting that somehow the justices acted improperly. "They simply haven't made out a prima facie case for deposing (the judges)," she told Brown.
Brown said he wants examples of rulings in which McGuire appears biased. He said he isn't going to allow judges to be deposed unless he is shown evidence of bias.
Volinsky said he needs to depose Shipley and Swist, who testified they accompanied Addison and Antoine Bell Rogers to the 7-Eleven and waited outside in the car during the robbery, and Juror eight. None of them would talk voluntarily, he said.
Brown told Volinsky to depose the defense attorneys in the 7-Eleven trial first, and then Shipley and Swist, whose testimony was key, as well as Juror eight and "any number of jurors."
Senior Assistant Attorney General Jeffery Strelzin said the state is seeking summary judgment on a motion to have the petition dismissed.
But Brown said he wants to see the trial transcript before making any decisions regarding the petition and the motions that have been filed. He said he expects to be able to make some rulings based on the transcripts, but wouldn't make any Monday.
"I haven't seen the transcript," he said, prompting Woodcock to say that the Supreme Court has the paper transcripts, but her office will provide copies to Brown.
Brown told both sides to work out a discovery schedule and come up with a mutually agreeable date for another court session, suggesting it could be about 45 days out.
Volinsky, who has experience representing death row inmates in the South, said his firm had volunteered to handle the petition, but would like some funding for the work involved. Brown told him to put it in a motion and he would be inclined to approve it.