"This all happened in a matter of not even a second, I think," the petite, 22-year-old would recall. "I remember seeing him and the candlestick and the pillow."

Pam shrieked, "Help! My husband! My husband!" She ran to nearby condo unit 4D, and then to 4C, pounding on the doors and ringing the doorbells, screaming hysterically. One of the neighbors, wary from all the commotion, literally pulled Pamela in through her front door in case somebody was behind her.

"My husband's hurt! He's on the floor!" shouted Pam. "I don't know what's wrong with him!" During the confusion, at some point Pamela also uttered, "Why do they keep doing this?"

By now a half-dozen neighbors had come out onto their stoops to find out what was happening. At least two of the neighbors had dialed 911, dispatching units to the condo. A few of them stepped forward to see if they could help.

One neighbor, Art Hughes, had been watching thirtysomething on television when he heard a woman's screams. Stephen Sawicki, in Teach Me To Kill, relates what happened next: Art felt certain that her husband had been beating her.

"What's wrong?" Hughes yelled. "What's the problem?"

"My husband's on the floor!"

"What's wrong with him?" Hughes shouted back. "Where is he?"

Pam pointed toward her unit and Hughes, in his bedtime T-shirt and sweatpants, frantically ran out in front of unit 4E, looking into parked cars and all over the parking lot and lawn.

"Where the f*** is he?" He shouted in despair.

"Inside!" Pam yelled from the [neighbor's] stoop. "He's inside!"

Hughes bolted up the steps and went to open the storm door when he heard Pam again.

"Don't go in there!" She said. "There may still be somebody in there!"

Hughes crouched slightly, pulled back the storm door, and pushed open the front door. He didn't realize that another neighbor was right behind.

The foyer light was on, but the rest of the place was in darkness. As the door opened the first thing they saw, ten feet away, was a brass candlestick, the light playing off it. Then a foot. The door fully opened, and the two men surged forward—over the floor mat depicting two cartoon ducks and past a maroon portfolio left carelessly near the entrance—and beheld the facedown body of a man.

"Red Flags"

Gregory Smart was dead. Nothing could change that, not the ambulance attendants that swiftly came to his aid, nor the Derry police that came with it. At 11:19 an investigator for the New Hampshire Medical Examiner's office would make it official. The yellow tape was quickly secured around the small townhouse to protect the integrity of the crime scene.

The Summerhill Condominiums was only a mile from the town's police headquarters so it was only a short while later that Capt. Loring Jackson, dark haired and heavyset, drove up in his unmarked maroon LTD Crown Victoria to assemble his detectives. Detectives Daniel Pelletier and Barry Charewicz were assigned to the case.

Murders were rare in Derry, New Hampshire, a quiet, peaceful town, population 32,000. In fact, this was the only homicide in Derry that year. Burglaries too were relatively rare. On the surface, the crime scene looked like a bungled burglary, but Capt. Jackson was used to looking below the surface. A police officer since 1966, at 48-years-old he had the sharp eye for detail, first developed when he had once trained as a commercial artist. This skill transferred over into his work at crime scenes, where he could identify the shapes and shadows that appeared to fit and those that did not. It did not take long for Jackson to notice a series of "red flags".

Much did not fit in his viewing of the crime scene at unit 4E, leaving many unanswered questions. "The scene stunk to high heaven," Capt. Jackson recalled 10 years later. "Not much was making sense. No sign of forced entry? A nighttime burglary in a densely populated area? An execution-style killing?"

Jackson did not think that it was a burglary, "No signs of a struggle. Burglars don't usually fight. They don't pack guns. There were red flags all over the place." Even if it was a burglary, the police know that burglars don't usually go armed. Crime statistics show that burglars rarely commit homicide, and when they do kill, it is not execution-style the way Gregory Smart was murdered.

The crime scene also appeared to be staged. Staging is a way for someone to alter the crime scene before the police arrive, but this is harder to do than it sounds. An article in the FBI Law Enforcement Bulletin mentions staging: "Offenders who stage crime scenes usually make mistakes because they arrange the scene to resemble what they believe it should look like. In so doing, offenders experience a great deal of stress and do not have the time to fit all the pieces together logically. As a result, inconsistencies in forensic findings and in the overall 'big picture' of the crime scene will begin to appear. These inconsistencies can serve as the 'red flags' of staging, which serve to prevent investigations from becoming misguided."

In cases involving a domestic homicide, the first suspects to be ruled out are those closest to them, family members, such as the spouse. In this case, Pamela Smart, Greg's young bride, had an airtight alibi. She had been at a school meeting in coastal Hampton some 35 miles southeast of Derry.

Picture Perfect

Newlyweds Gregory and Pamela Smart appeared to be the model American couple. Pam at one time described her life with Greg as "picture perfect," epitomizing the promise of a wonderful future. A great catch, free-spirited and fun loving, Greg was devoted to his perky 23-year-old bride Pamela Ann Smart, nee Wojas. They even had a cute little quirky thing in common, spelling their nicknames in a unique nonsensical way: Pamela signed her nickname "Pame," pronounced Pammy, and Gregory wrote his as "Gregg", playfully adding the extra "g" as a child.

They settled in their quiet, peaceful hometown of Derry. Starting off their new life together, they moved into an upscale residential area, a ring of two-story condominiums on Misty Morning Drive. They rented a squeaky clean, new condo complete with contemporary furniture, including a white leather couch and attractive decor, two vehicles, and a small dog, Halen, named after the rock band Van Halen. Greg, one of three sons, lived only a block away from his parents.

Although not sentimental, Greg was a good man, looking forward to having children. He proudly bragged to his parents about how Pam would be a wonderful mother for their future children, if the way she treated their little Shih-Tzu was any indicator. How she fussed over the little creature, cooking him scrumptious tidbits for dinner, taking him for numerous walks around their complex, and protecting him from any sort of disturbances.

In reality, however, Pamela Smart looked after her own best interests. Born in Miami, Florida on August 16th, 1967, Pamela readily admits her egocentricity: "I'm definitely the typical Leo," she said. "You know, walk in, have to be the center of everything. Everywhere I go, I'm always attracting attention for some reason or another. I'm loud, very outgoing, and stuff." The second of three children, with a sister six years older and a brother three years younger, Pam was close to her mother. She had a strained relationship with her father. Her father worked as a commercial airline pilot and her mother as a stenographer. A great organizer, Pam had been working since she was 13, and with her enthusiasm and sense of humour she was very popular, even cheerleading for both basketball and football teams while in school.

Above all, Pamela liked to maintain control of herself and of her surroundings. She compulsively organized her clothing in color-coordinated groupings, even neatly folding her dirty laundry into separate hampers for darks and whites. She also organized her life that way, becoming upset when her tight schedule was disrupted.

Approaching their twenties, Pam and Greg hit it off immediately at a New Year's Eve party at the end of 1986, dating exclusively about a month later. They both shared a passion for heavy metal music. Greg even strummed on a guitar. That was part of what drew Pam to Greg. His 5-foot 10-inch, 170-pound frame, toned from hiking, skiing and fishing, with his baby face was very appealing. But it was his long curly shoulder-length locks that Pam adored. In contrast, Pam's petite frame, china-doll face and vivacious personality attracted Greg.

But the trouble started soon after their wedding. Greg began to grow up. He became more conservative, having decided to work with the same company as his father did as an insurance salesman, and his ambition paid off. He created a whole new image. Even his dedication to rock music had declined, although he still enjoyed good equipment, like the expensive speakers in his Toyota pickup truck, and he still enjoyed heavy metal music. There was no longer such an intense interest anymore. Instead he was becoming an accomplished saleman, spending his recreational time with his friends.

The shocker for Pam came when Greg cut his shoulder-length hair. Her initial attraction to him was his long hair, looking like the rock star Jon Bon Jovi. Pam now thought Gregg looked more like a New England yuppie.

Their picture perfect marriage was only a fa�ade and a mere seven months into the marriage Pam and Greg began having serious problems in their relationship. Nearing their first anniversary, Greg confessed to Pam that he was having an affair. But then Greg had confided in his parents his plans for a party to celebrate their first anniversary, just a week later, and then planned to fly to Florida. "If there's anything Pam really loves, it's lying on the beach," said Greg. "She's a real sun bunny."

From then on, however, every time they got into an argument, Pam brought up the affair. "I didn't feel as important anymore," Pam would later testify. "Obviously it affected my trust."

Unbeknownst to Greg, having more passion for her career, Pamela wanted out of the marriage.

Metal Madness

"My skin crawled, I killed him. I'd do it again, if I thought that I could spend the rest of my life with her. She says we'll be together now, sitting alone in my empty cell."

Lyrics from Empty Cell Toronto rock band Rusty, 1997 album Sophomoric.

Pamela was pursuing a broadcast career, doing everything she could think of to attain that goal. She worked three jobs and still found time to organize a benefit promoting safe sex, even talking several bands into giving free performances. An academic leader as well, she received her BA in communications in 1988 in a little more than three years, with an accomplished 3.85 grade point average.

During her college radio days, Pam combined her passion for heavy metal music with her career aspirations. She hosted a one-night-a-week radio show at Florida State University that she called "Metal Madness," billing herself as the "Maiden of Metal." At least one listener was surprised to actually see the small-framed, fine-featured woman, the face behind the microphone, expecting a more outlandish looking woman.

Having set her sights on broadcasting, Pam was hired as media services director with the school board in the town of Hampton, near the coast south of Portsmouth. Although not exactly what she wanted, she believed that it was a stepping-stone to better things. Her responsibilities included distributing and producing educational videos for use in the school district, complete with her own secretary and student intern.

She also volunteered as adult facilitator with a local drug awareness program called Project Self-Esteem. All freshmen at Winnacunnet High School were expected to participate in the program. She was able to impress them with her interest in heavy metal music. "The kids never got much closer to one another as a result of the project," Sawicki explains, "but everyone looked up to Pam. Unlike most adults, she never appeared to be patronizing them. She spoke their language and enjoyed the same music they did. Rather than lecture them or run on about her glory days at Pinkerton, Pam instead spoke of meeting Eddie Van Halen and of getting backstage passes for heavy metal concerts."

Billy Flynn, one of the teenagers working on the project, became smitten with Pam, going out of his way to be helpful during the sessions. He also visited her every day at her office.

"The first time Pamela Smart blipped across Billy Flynn's radar screen," writes Sawicki, "was at Winnacunnet High School during a meeting for Project Self-Esteem discussion leaders. One of the guidance counselors introduced the petite SAU 21 media center director to the group and the 15-year-old's hormones kicked into gear. He turned to [his friend] Lattime and said softly, "I'm in love."

Beguiled

Fall, 1989

Pamela Smart met William "Bill" Flynn in the fall of 1989 through Project Self-Esteem and then continued their relationship while working on an orange juice video competition. It was around the same time that Greg confessed his affair to Pam, encouraging her to spend more time with the young people she had befriended. Only a few years older than the students at Winnacunnet High School, Pamela looked somewhat younger than her 22 years. An attractive woman, with her shoulder-length, blonde-streaked hair fluffed out in front, her dark-ringed raccoon eyes made up to perfection and her perky disposition, she fit right in with the students. She had just begun working in the SAU 21 building adjacent to the high school where 15-year-old Billy was beginning his sophomore year.

Billy Flynn's 150 pound, 5-foot 11-inch frame was still growing. Shy-looking with his big, round eyes and dark shoulder-length hair, sporting an earring and black-leather jacket, playing the guitar, he resembled a young Paul McCartney. He too was dedicated to rock music, especially heavy metal, his favorite being Motley Crue. He was a dead ringer for what Pam was looking for in a potential mate.

Attracted to him from the very beginning, "I thought he was a good kid," she said. "He was easy to talk to, friendly. He liked some of the same music I liked. He played the guitar."

She also became overly friendly, overstepping her bounds with the student intern that came with the job, teenager Cecelia Pierce. They quickly became best friends. Pam was aware that Cecelia, wanting to be a journalist, was very interested in her job as an alternative. Cecelia quickly became Pam's sounding board for virtually everything that was going on in her life.

"Brookies"

Billy Flynn ran with a tough crowd that included Pete and J.R. But the three "Brookies" William "Bill" Flynn, Patrick "Pete" Randall and Vance "J.R." Lattime Jr. were so close and helpful in the neighborhood that some people even referred to them as the Three Musketeers. They ran errands, shoveled snow, or handled odd jobs. They even gave the elderly residents free services or large discounts. The three boys lived in South Seabrook.

"Seabrook is primarily a blue-collar town," writes Ken Englade in Deadly Lessons, "and its residents are known to those from other areas of the state as "Brookies," a derisive term loosely translated to mean people of low class or people from the wrong side of the track. Brookies generally are regarded by other New Hampshirites with the same disdain that Bostonians reserve for the rest of the world." Al Capp, the late "Li'l Abner" cartoonist, joked about using the town as his model for the fictional town of Dogpatch.

Bill

William Patrick Flynn was born March 12th, 1974, a day after an explosive incident between his parents, Bill and Elaine Flynn. Their marriage was tumultuous, and unfortunately little Billy seemed to be caught in the middle, hearing their incessant arguments, witnessing his father's overbearing treatment of his mother, eventually experiencing his father's anger first-hand. Even after two more sons were born, Billy's father was still hard on him.

Mr. Flynn loved Billy but his demanding disposition pushed Billy too hard. "If things were going my husband's way, he was a great guy to be around," said Elaine Flynn. "But as soon as he had to deal with any inconvenience, forget it. We used to go down into the canyons on dirt bikes and spend the day. There's always problems with them. Well, once Billy had a problem with his bike. It was something as trivial as a spark plug. His dad told him how to fix it and it didn't go. It was blow-up time. His father would start yelling, 'You couldn't have done what I said!'"

It was just a matter of time before the Flynns' marriage was over, but that did not stop the acrimony between them, or between father and son, although Bill Sr. did have a quiet spell, an unusual sort of reprieve, the Christmas before he died.

Events converged in Billy's life in 1986, causing him many difficulties. His mother decided to leave his father after she found out that he had been cheating on her for years, spurring a move from California to New Hampshire. Only twelve at the time and entering junior high, Billy did not want to move. "He was an angry little guy coming back with me," his mother recalled. She enrolled him in seventh grade at Seabrook Elementary School. It was here that Bill would meet his best friends, J.R. and Pete.

J.R.

Vance Lattime Jr. got his nickname "J.R." because he was a junior. The 15-year-old's dark curly hair, long thin face, and thick glasses, gave him a studious look. His book collection, complete with his prized anthology of Edgar Allan Poe, and the old Camaro he was refurbishing took up a lot of his time. His ambition was to become a marine. When he had any free time, he visited his grandmother in Haverhill, Massachusetts and even helped at holiday dinners for the unfortunate at his church.

Pete

Patrick Randall was short but looked very athletic. His mother described him as a loving son, always hugging both his parents when he was going out, no matter who was there. Of the three, he flirted the most with the other side of the law, having a history of truancy at Winnacunnet High school. There was even a rumor that his goal in life was to be a hitman.

At least one of Pete's teachers claimed that he and his two friendsBill and J.R.were "impressive" young men: "Billy was a genuinely likable and caring kid, and the other two were intelligent beyond their years."

And then there was the intern.

The Intern

Cecelia Pierce from South Seabrook became Pam's student intern in the media services office. The blond-haired, blue eyed, large-framed 15-year-old enjoyed all the attention she was getting from Pam. It probably gave her a heady feeling to be treated like an intimate associate.

"In spite of the large discrepancy in their ages," writes Sawicki, "they were best friends and Cecelia was very proud of that. Cecelia had never had a friend like Pam, someone who was pretty and intelligent and self-assured. She made Cecelia feel important just being with her. Pam paid for everything when they went out, be it lunch or whatever incidentals came up. And when Cecelia began to learn to drive, Pam would always let the teenager take the wheel of her Honda CRX."

But her friendship with Pam, unequal from the start, soon began to interfere in every facet of her life: with her friends, in her schoolwork, and in her home life, particularly with her mother who had nicknamed her "Critters." "As this relationship went on and on," said her mother, Cecelia Eaton, "I liked it less and less. I was actually getting angry. I even said to Crit: 'You'd think Pam was your mother. Well, I'm your mother, not Pam.'"

Soon after meeting Pam, Cecelia's grades began to slip. Mrs. Eaton even spoke to school officials about the inordinate amount of time that Cecelia was at the school board's media center. The assistant principal agreed, "I noticed it, too." Apparently, that is as far as it went.

Pam, Bill, and Cecelia hung out together. They frequented teenager hang-outs such as shopping malls, restaurants, beachfront arcades, and clubs.

Pam was ecstatic to be managing a video project with a few teens, most from South Seabrook. She would invite them to her condo to work on the project. While her husband Greg was spending more and more time with his friends, Pam too was exclusive with her newfound friends. Pamela set her sights on 15-year-old Billy Flynn.

Hooked

"That's one of the tragedies of this case. You've got three very young kids, and they're still in their formative years, and their lives are ruined because she manipulated one of them and the other two went along out of loyalty."

Capt. Loring Jackson

"Do you ever think about me when I'm not around?" Pam asked Bill one gray afternoon while in her office across from Winnacunnet High School. It was early February, 1990, and their relationship had reached a turning point.

"Sure," he admitted.

"Well, I think about you all the time," said Pam.

Billy was hooked. "Billy Flynn could not quite believe what he was hearing," writes Sawicki. "Two minutes earlier, life was normal. He was putting in his time in high school, goofing around with his roughneck friends, and mooning over the pretty media center director. Now his fantasy was coming to life. Here was a womana woman to whom he had been attracted from the moment he first saw her, with whom he had been flirting without hope, revealing that she was attracted to him. Pam said she did not know what to do about her feelings because she was married, but that Billy was constantly on her mind." About three weeks later Pam kissed Billy while on his bed, listening to Motley Crue's Starry Eyes playing over and over.

The excitement he was getting with Pam probably felt like a sort of reprieve for him having just been through a rough couple of years. Two months before Billy's 13th birthday, just entering the turbulent teenage years, his father died. It was a freak accident, when a car pulled in front of him and he veered into the rear of a gasoline tanker carrying some nine thousand gallons of fuel, blowing up and burning until all that was left to identify him were his teeth. Billy got very quiet after that, spending a lot of time alone.

Billy was acting out at home. "It was not that Billy was violent," said his mother. She believed that he had a lot of self-restraint but he could become angry over the smallest difficulty, making it hard to communicate with him. "Outside of the family, people saw a kid that was polite and charming," she said. "That was one side of Billy that he projected to people that he wanted to impress. He wanted to be liked. Inside the family is where he took out his anger. He has an attitude when something's bothering him...It's like a volcano waiting to erupt."

Another youth, Ralph Welch, came to live with the Lattimes. The Lattime family had generously taken him in due to his unfortunate circumstances, encouraging him to go back to school. He was about the same age as their son J.R., but he was closer to Bill and Pete, but did not have the same circle of friends.

On the peripheries of these relationships was a fourth teenager, Raymond "Rayme" Fowler. An admitted petty thief, Fowler ultimately played a minor role.

As for Pam, organization was her strong suit, and she set her sights on controlling and manipulating Billy.

Late in March, Pam took the opportunity to have some fun while Greg was out of state for an insurance meeting. She invited Bill and Cecelia over to the condo to watch movies, one was the steamy 9 1/2 Weeks starring Kim Basinger and Mickey Rourke engaging in sexual acrobatics. Shortly after, leaving Cecelia downstairs to walk the dog, Pam enticed Billy upstairs to the bedroom that she shared with Greg, slipped into a turquoise negligee bought especially for the occasion, then engaged in sex for the first time with Billy, while the CD player blasted out songs by Van Halen and Sammy Hagar.

After their first sexual encounter, they repeatedly met over the next few weeks to have sex, while Pam began and then continued her lament: "You have to get rid of Greg," she said. "Otherwise we can't keep on seeing each other." When Bill questioned her about getting a divorce, she told him that Greg would follow her everywhere so that she would not even be able to have a boyfriend and that she would probably lose the condo, furniture and all and that she could not bear the thought of losing Halen. She falsely claimed that he beat her and the only way was to kill him. It all began like a surrealistic movie.

Following Bill's sexual initiation, the next morning as Pam drove them both to the school, she said, "Last night was great, but we can't keep on like that."

"Why not?" asked Bill.

"Because of Greg. If you want to keep seeing me, you'll have to get rid of my husband."

To Die For

Pam's message couldn't be simpler. Love me, kill my husband. Reluctantly, Billy agreed to kill Greg, all the while believing that this would keep her near. Twice, Billy aborted attempts to kill Greg. Pam was furious, berating him and threatening to break-up.

"If you loved me, you'd do this!" she screamed at him, he later told the jury.

"I told her I did love her."

"That's when I started getting serious about it," Billy would testify, "because I thought that if I do something like not go up or anything again, she's gonna leave me and that's gonna be it. So this is the time that I really started talking to J.R. and Pete about it."

She told him that May 1st would be his last chance, what with Greg's late appointments that night and her busy with a school board meeting. Pam even agreed to pay them from the insurance money that she would collect.

Meanwhile, Pam and Greg's so-called "picture perfect" marriage continued disintegrating. Complete strangers began to witness the strain in their relationship, although their family and closest friends did not know yet. The couple was spending more and more time apart and the tension in their marriage began to show. Cecelia Pierce later testified about a telephone conversation that she overheard: "She was saying something about getting a divorce and then they started fighting over who was gonna take the dog and the furniture and everything. And then she said, 'Fine, take the dog' and hung up."

By April, Greg was coming home more often to an empty house, eating alone. "Around the time of an attempt on his life, he told a long-time friend," writes Sawicki, "he had felt a god-awful chill of danger as he walked into the empty condominium. Something unexplainable was just wrong. He turned around and left."

The plan to kill Greg was simple enough. Although numerous discussions took place between Billy, J.R., and Pete, in time, they settled with Pam's basic plan. That plan included the boys wearing dark clothes, Billy tying his long hair back, parking by the shopping plaza and Pam leaving the cellar door open, as well as the rear doors for Bill and Pete to enter the condominium and to ransack it, staging it to look like a burglary and to take anything, including electronic equipment and jewelry. Englade lists the three prohibitions that Bill instructed his friends to follow:

• Don't turn on any lights. "Pam says Gregg is a real wimpif he sees a light on, he won't come inside," said Bill.

• Don't hurt the dog. Put him in the basement so he doesn't have to witness the murder. "She doesn't want Halen to be traumatized."

• Use a gun rather than a knife because a knife is too messy. She doesn't want blood all over the white leather couch."

At some point Pam asked the teens how she should act when she "discovered" Greg's body that night, whether she should scream, or call for help.

One of the boys told her, "Just act natural."

Ambush

May 1st, 1990

The last day of Gregory Smart's life began like any other workday. It was a foggy morning at 4E Misty Morning Drive with the promise of rain in the air. Up early, Greg and Pam took care of their routine of showers, hot coffees, and exchange of pleasantries. Their puppy, Halen, also had to be tended to before they went to work. While Greg would have gone about his business like any other workday, nothing really pressing on his mind, Pam was fully aware that the murderous plan would unfold that evening.

Pam usually headed out the door first, but that Tuesday morning Greg was the first to leave for work. Later than usual, at about 9:45 a.m., Pam drove her Honda CRX with a New Hampshire vanity plate HALEN, another tribute to her favorite rock band, her dog, and to her job in coastal Hampton. She had planned on coming home later than usual that evening, well after dark. The meeting with the school board would go late because they were having a salary review and a discussion regarding a media class that she was interested in teaching in the fall. She would not arrive home until well after Greg was dead.

Pam dropped by Billy Flynn's high school locker that day to let him know that the bulkhead doors were left open. All was set, ready to go. That day she even wore all her gold chains and a ring on every finger, so that she would not lose her favorite pieces of jewelry that evening.

By about 2:30 p.m., Bill called Pam to let her know that there was a snag in the plan, that they needed a ride to go pick up the getaway car, J.R.'s grandmother's 1978 Chevrolet yellow Impala. Pam agreed to go over in a little while.

Before 8:30 p.m.

According to plan, while Lattime and Fowler were killing time at the plaza, Flynn and Randall entered the condominium. Sawicki pieced together what happened next: "Number one on their list was the dog. The boys went upstairs, but when Billy stooped to pick up Halen, the Shih-Tzu began to bark and growl and scampered away. Flynn chased the dog around the couch before he finally got his hands on it. The boys would later laugh that they threw the animal into the basement and heard the thump-thump-thump as it tumbled down the stairs."

They ransacked the house, busying themselves taking jewelry and other items, including dissembling equipment on the entertainment center. They left a small pair of stereo speakers by the door, intending to take them when they left.

Then the two lanky teenagers waited in the dark for Greg Smart to come home. Bill had tried to kill Greg Smart before and Pamela had made it very clear that this time it better go down without a hitch.

�"Where the hell is he?" Pete whispered.

"I don't know," Bill muttered, "but I wish to hell he'd hurry up."

He did a quick little jig, rearranging the unfamiliar and uncomfortable object he had stuck in his waistband: a snub-nosed revolver that another friend, J.R., had sneaked out of his father's gun collection.

"Tell me again how we're going to handle this," demanded Pete.

"You're going to get behind the door and I'm going to get on the stairs where he can't see me. Then when he opens the door you're going to pull him inside and we'll both jump him. Then you're going to cut his throat."

"Right," Pete replied, changing his grip on the long-handled knife he had picked up as they'd walked through the kitchen a few minutes earlier. At some point they discussed using a brass candlestick to hit Greg; that was then discarded on the foyer floor.

Everything was ready: a ransacked house, dark shapes on the floor near the back door and a black pillowcase that contained CDs and costume jewelry. As if on cue, powerful headlights lit up the kitchen window as an engine pulled up to the condo. In their excitement of the moment, they reversed their agreed upon places: Bill ended up behind the door while Pete stood on the stairs.

It was only a few moments before silence enveloped the condo as the Toyota's rumbling stopped. Then, all was dark as the pickup's lights were extinguished. Several minutes later, Greg turned the key in the lock. The door opened. Greg flipped on the light while calling out to the puppy, "Halen!"

Billy leaped out, ambushing Greg as he came in the door, grabbing the shoulders of his coat. In the next few minutes, Greg was overpowered by the two youths. At some point Greg handed over his billfold and when Pete told Greg to give them the wedding band on his left hand, Greg said, "No! I can't do that. My wife would kill me!"

The final words were Billy saying, "God forgive me!" as he squeezed the trigger only inches from Greg's head. The shot rang out and Greg toppled over.

Flynn and Randall ran out of the condo, back to the getaway car where Lattime and Fowler waited, eventually making their way back home. Pam would later tell Billy that while driving to Hampton, she had actually seen their car on the road and had flicked her lights at them in greeting.

More "Red Flags"

After the murder

It was Pam Smart's demeanor as the grieving widow that just did not ring true for Detective Daniel Pelletier. At 28 years of age, he had already seen many people in the aftermath of tragedies. The Smart murder case was Pelletier's third investigation in his three years as a Derry detective, having spent the previous six years as a police officer. He felt very uncomfortable with Pam's reaction after the murder. It set off another series of red flags.

"From day one," he said, "she wasn't acting the grieving widow."

"She insisted on an immediate interview," Pelletier said, "so Charewicz and I took her to the PD [police department]. She said: 'This looks like a botched burglary. The first thing I saw was the speakers off the stand.'

"I remember looking at Barry, thinking:" the first thing she saw was the speakers? What about her husband on the floor?

"She said,'When I walked over to the body...'" Another red flag, but he still gave her the benefit of the doubt.

Pelletier cocked an eyebrow as he spoke her words. "Not 'my husband,' but 'the body.' Kind of strange, I thought, but maybe she's in shock."

Working with people in the aftermath of a crime, he would have seen many reactions. Everyone has their own style of grieving, with some crying and wailing, some stoic and silent, others simply throwing themselves into keeping busy. But in this case, Pam never lost her composure, seemingly in total control. It was even her idea to give an interview just one day after finding her husband's dead body.

Pamela also set off another alarm bell with her misplaced anxiety over the family pet. While the Derry police were processing the crime scene with the New Hampshire State Police Major Crimes Unit, she expressed over and over, to friends, to neighbors, to anyone who would listen, her concern for Halen. Even after it was obvious that Halen was safe, she kept saying," I wish they would tell me about my dog. I just want to know if he's all right."

But the last straw, the one that really set off Pelletier's alarm bells was two or three days later when he accompanied her to her condo to pick up some items, seeing that it was still a secured crime scene. The grieving widow nonchalantly walked on the blood soaked area of the carpet where Greg's head had lain. And not just one time, but repeatedly.

He recalled, "Finally, her mother covered it with a towel." But this did not deter Pam, as she continually stepped on the towel, while everyone else at the crime scene made a point of stepping around it.

The callousness that Pam showed was the biggest red flag of all. On May 2, just one day after the murder, several detectives met to discuss their initial findings. One detective commented, "You know, I think she did it."

An Anonymous Tip

It was two weeks into the investigation of Gregory Smart's death, with only random leads for Pelletier's squad to follow-up, when he fielded an anonymous tip. A female caller told him that a teen named Cecelia Pierce of Seabrook knew that Pam Smart planned Greg's death with three teenage boys.

Then, at noon on Sunday, June 10th, more evidence was revealed when Vance Lattime Sr. brought a snub-nosed .38-caliber revolver to the Seabrook police headquarters, believing that the pistol might have been a murder weapon. It wasn't long before the murder case with the Seabrook angle connected Pam Smart. Mr. and Mrs. Lattime recognized her name as one that their son and his pals had mentioned.

Derry's detectives went to Seabrook. Lattime told Charewicz that Ralph Welch overheard J.R. and Pete discussing their involvement in a homicide, mentioning Raymond Fowler and Billy Flynn. Welch then told his surrogate father, Lattime Sr., early Sunday morning. "I'd grown up with them," Welch told the jury later. "I couldn't believe my best buddies could do something like this."

On Monday, June 11, they spoke to Cecelia Eaton but it wasn't until Thursday that Cecelia told all. The boys were still not talking. The detectives only had Fowler's affidavit and Pierce's account. They needed more.

Caught On Tape

Pam was losing control of Cecelia. Unconcerned, Pam figured that she would be believable. Ironically, Pam's intuition of Cecelia catching her on tape was exactly what happened. The police set up two brief telephone intercepts, and fixed Cecelia up with two body wire sessions. Unbeknownst to Pam, the tapes would tell another tale.

"Seeing what happened, wouldn't you rather have just divorced Greg?" asked Cecelia while surreptitiously taping their conversation for the police.

"Well, I don't know, you know. Nothing was going wrong until they fucking told Ralph [Welch]."

"No shit!" said Cecelia. Apparently, Ralph Welch was talking to the police. He was interviewed by the press and told others as well.

"It's their stupid-ass faults ... that they told Ralph, you know," Pam said.

"I can't even believe they told him," agreed Cecelia. "Now they're in jail and like every time I hear Motley Crew I think of Bill."

"Yeah, So do I. Tell me about it. ... That's the thing. I never fucking paid 'em. Somebody told me I gave J.R. a stereo and stuff. ...You know, if they get certified as juveniles, then nobody will ever know anything, and they'll all be out in a year, you know, when they turn 18. ... but I'm just like, what the hell, I've already got the best friggin' lawyers anywhere."

"You do?"

"Yeah. But they're fucking wicked expensive, but what could I do?"

"Obviously you can afford it."

"No goddamn fucking [way]," said Pam. "Didn't I need them? But right now they don't have to do anything unless I'm arrested, and if I get arrested, then they have to do shit. ... So they can't convict me 'cause of fucking J.R.'s-sixteen-year-old-word-in-the-slammer- facing-the-rest-of-his-life."

"Well, first of all," said Cecelia, "you didn't offer to pay him, right?"

"No."

"So he's not gonna say that you offered to pay him," continued Cecelia. "He's going to say that you knew about it before it happened, which is the truth."

"Right," she agreed. "Well, so then I'll have to say, "No, I didn't" and then they're either gonna believe me or they are gonna believe J.R.-sixteen-years-old-in-the-slammer. And then who [will they believe]? Me, with a professional reputation, and of course that I teach. You know, that's the thing. They are going to believe me.

"All right," said Cecelia. "Well, I'll call you."

Pam then invited Cecelia over later so that they could go out together. "You'd better be there," Pam said jokingly, "or I'll come after you with my Rambo knife."

First Degree Murder

Wednesday, August 1st, 1990

At 1:05 p.m. Pelletier entered Smart's office unannounced. Pam recognized him, having spoken to him on at least six other occasions.

"Hi!" said Pamela.

"Hi!" he replied, as Captain Jackson and another detective stepped into the room.

Taken by surprise she asks, "What's up?"

"Well, Pam," Pelletier said. "I have some good news and I have some bad news. The good news is that we've solved the murder of your husband. The bad news is, you're under arrest."

"What for?" she asks.

"First-degree murder. Stand up and face the wall."

Pamela was then arraigned in Derry District Court and jailed. She has been behind bars ever since.

"She thought she was smart, but she had no street smarts. Nine-year-olds have more street smarts than she had," Jackson said. "That was the problem. She thought she was smarter than the whole world. But she made many mistakes, right and left."

The Hanging Judge

"I never would have killed Greg if it wasn't for Pame," testified Billy Flynn

Judge Douglas Gray of the Rockingham County Superior Court, assigned the Smart case, was seated at the bench in front of the American and New Hampshire flags. Mounted on the wall behind him was a gold American eagle, wings spread, carved by his own hands. An imposing six foot five, at fifty-seven, Judge Gray also had an imperious nature to go along with it. Dubbed the "Hanging Judge," in the New Hampshire State Prison in Concord, his intimidating reputation behind the bench preceded him.

Pamela entered the courtroom wearing a dark blue suit, thinner than she was when first arrested. She had lost so much weight that her mother had to pin her skirt to fit before court started. Her hair had been recently highlighted and she wore it longer.

Prosecutor Diane Nicolosi began her opening statement: "On May 1st, 1990, Gregory Smart came home from a late business meeting. ...He opened his front door, he turned on his lights, and he called for his dog. But his dog didn't respond that night."

For the first time the public would hear firsthand about what happened that evening. In Billy's riveting testimony as he knelt before the jury, showing them the way that it happened with Greg that night, he said, "I cocked the hammer back and pointed the gun at his head," he said, nearly whispering, his head bowed. "I just stood there...for a hundred years, it seemed like."

"I said, 'God, forgive me.'...I pulled the trigger."

The Smart murder trial was all about control. The question was whether Pam manipulated and controlled Billy Flynn, and, in turn, his friends, to kill her husband. While Pam acknowledged having a sexual liaison with Billy, she denied any foreknowledge of the murder. She said that she was only pretending to know about it in her taped conversation with Cecelia Pierce, so that she could further the investigation. Near the end of her testimony she spoke out to prosecutor Paul Maggiotto: "If I was guilty, I would have pled guilty and plea-bargained like the rest of them."

"Ladies and gentlemen," Nicolosi concluded, "we are sure that when you hear the testimony of William Flynn, Patrick Randall, Vance Lattime Jr., Cecelia Pierce, and all of the other witnesses that we'll present to you at this trial, that you will come to the only possible verdicts in this case. At the close of the trial, Paul Maggiotto will stand before you and he will ask that you return three verdicts of guilty."

After the jury deliberated for 13 hours, on March 22nd, they did just that, bringing back a guilty verdict. Judge Gray immediately sentenced Smart to life without parole on the count of accomplice to first-degree murder. Another hearing would see her sentenced on two other counts, conspiracy to commit first-degree murder and witness tampering.

Fowler, just out of jail and probably wanting the money, was also involved in an early attempt to ambush Greg Smart and was waiting in the car with J.R. the night Greg was killed. Although in his affidavit he claims that he was not aware of any murder and had just gone along for the ride, his failure to report the attempt and of his cleaning the murder weapon cost him 30 years in a separate prosecution.

Flynn and Randall, certified as adults, turned state's evidence in January, received 40 years; Lattime got 30 years. It was their testimony, along with Welch's statements, and Pierce's tapes that ended up being the most incriminating.

The Black Widow "Smart"

Black Widow: a poisonous spider of the genus Latrodectus, especially the female, which devours its mate.
Webster's New Universal Unabridged Dictionary

The notorious human "black widow" husband-killer is named after the deadly female spider that will kill and eat the males after mating; her venom is fifteen times more potent than an equal weight of rattlesnake venom.

Pamela Smart's case brought to the forefront a phenomenon that is increasingly gaining attention: females who kill. Compared to men, women commit very little crime. It is so rare, little is known about the female offender. Women offenders differ considerably from their male counterparts, in that, women do not commit criminal acts as often and their patterns of offending as well as their motivations are different. When a woman commits a crime it is usually a minor property offense, predominantly shoplifting and welfare fraud. Rarely do women commit violent offenses; however, when they do, murder and assault are common. Those women who have committed homicide fall into two groups: the younger offenders usually kill their children, while those middle-aged kill their abusive spouses.

Pam Smart is a typical female murderer in that she perpetrated violence in her home, murdering her husband. However, unlike most other women who kill, she did not kill an abusive spouse. Pam's motive was very different. What little is known about this rare sort of murderess is that she typically kills for money or for convenience. "Black widows" defy systematic investigation yet illicit an inordinate amount of media and public attention. Pam was only seen briefly by a psychiatrist in 1990, but never had a thorough psychological evaluation.

In reality, the case was not unique, but the media coverage managed to propel the case into history, with some 150 reporters from all over the world. It was the first time that a court case had been filmed live, with Channel 9 interrupting daily programming and rebroadcasting the highlights after midnight. A few months after the trial, the TV movie Murder in New Hampshire: The Pamela Smart Story starring Helen Hunt was broadcast. And in 1995, To Die For, scripted as a comedy, had Nicole Kidman playing the lead role, from the loosely based novel of Joyce Maynard.

Former Derry Police Capt. Loring Jackson, the supervisor of the investigation had this to say about the media hype: "I think the case was blown way out of proportion by the news media. They seized on sex, drugs and rock 'n' roll. ...To me, the press was nothing but a royal pain in the ass, and you can quote me on that."

Pam has received thousands of letters from all over the U.S. Her only regrets are any past actions that had some effect on the outcome of her case. "Of course, I regret ever being involved with Bill Flynn," Smart said. "That was a horrible mistake that I am paying a terrible price for, as I am innocent of any involvement in the plot to murder Greg.

"Yes, I made the mistake of having an affair with Bill Flynn, but I wish the public would stop defining me by that one mistake," Smart said. "There is more to me than my worst error in judgment." She fulfills herself in prison through her educational goals. "I am very different from the media's portrayal of me," she said. "I am not a cold, uncaring individual."

10 years after

Pamela Smart spoke in a rare interview to the Portsmouth Herald from the Bedford Hills Correctional Facility for Women in Bedford Hills, N.Y., where she is currently serving her sentence. Ten years after the murder she seeks a new trial, claiming that her life is "stressful, sad, painful and tragic." She continues to proclaim her innocence: "I have spent 10 years in prison for a crime I had no involvement in," Smart said. "I have been horribly punished for having an affair. The sentence I received is, in effect, a sentence of death in that I will never be eligible for parole."

Her appeal in 1991 was denied. In 1997 she sought a new trial, which was also denied yet she continues in her efforts to get a new trial underway. While incarcerated, two women assaulted Pam and she brought them to court, the judge deciding in her favor.

Flynn, Lattime and Randall, in their mid-20s, are all housed in the Thomaston State Prison in Maine. They all earned their GEDs: Flynn joined a prison ministry group; Lattime works in the print shop while Randall learned carpentry. Lattime's sentence was reduced by three years making him eligible for parole in 2005. Randall and Flynn are eligible for parole in 2018, when they will be in their forties.

Cecelia Pierce signed up for $100,000 option for the screen rights to her story.

Reflecting 10 years later, Detective Pelletier said that the most important lesson he took away from the Smart case was "the importance of teamwork, of calling on the talents of all co-workers."

CrimeLibrary.com

SUPREME COURT OF NEW HAMPSHIRE

THE STATE OF NEW HAMPSHIRE
v.
PAMELA SMART

February 26, 1993

The opinion of the court was delivered by: Batchelder

The defendant, Pamela Smart, upon entering her Derry home on the night of May 1, 1990, observed the body of her husband, apparently the victim of a homicide. The police arrived on the scene shortly thereafter and immediately commenced a murder investigation, culminating in the defendant's arrest.

After a jury trial in Superior Court (Gray, J.), the defendant was convicted of accomplice to first degree murder, conspiracy to commit murder, and tampering with a witness. On appeal, she raises the following issues: whether the pretrial publicity surrounding her case deprived her of an impartial jury; whether, in view of the publicity, the trial court failed to adequately safeguard the trial proceedings; whether the defendant should have been permitted post-verdict voir dire of the jury for alleged juror misconduct; whether the trial court erred in its supplemental instruction to the jury; whether the court erred in denying the defendant's motion to suppress tape recordings of her intercepted conversations; whether the court erred in submitting transcripts of the taped conversations to the jury; and whether the court erred in refusing to allow the defendant to recall two witnesses for renewed cross-examination. For the reasons set forth below, we affirm.

Viewing the evidence presented at trial in the light most favorable to the State, the jury was warranted in finding the facts as set forth in this opinion. In the fall of 1989, the twenty-two-year-old married defendant was the director of media services for the school district that included Winnacunnet High School in Hampton. She met and befriended William Flynn and Cecelia Pierce, two fifteen-year-old high school students from Seabrook, and they and other students worked together after school hours to produce an orange juice commercial for a contest. Eventually, in February or March of 1990, the defendant and Flynn became sexually involved.

Shortly after their affair began, the defendant told Flynn that in order for them to continue their relationship they would have to kill her husband, Gregory, a twenty-four-year-old insurance salesman to whom the defendant had been married less than a year. Eventually the defendant and Flynn together planned that Flynn would commit the murder with the help of his friends, and would stage the killing as if committed in the course of a burglary of the defendant's home. According to the plan devised by the defendant, she would leave open the bulkhead door to the basement of her home to provide entry for Flynn and the others before Gregory returned home. The perpetrators were to park their car in a shopping center behind the residence and change into dark clothes before approaching the apartment. The defendant advised Flynn that he and his accomplices should wear gloves to avoid leaving fingerprints and should ransack the apartment, taking away whatever they wanted as compensation. Pursuant to the defendant's plan, her husband was to be killed with a gun upon entering his home as if he had surprised burglars.

Flynn discussed the plan with his friends Pete Randall and Vance Lattime, Jr., also teenagers from Seabrook. With the aid of another boy, Raymond Fowler, Flynn set out from Hampton to commit the murder one night in April, using the defendant's car. When the two arrived at the defendant's apartment complex, however, they saw her husband's truck and abandoned the plan. After this unsuccessful attempt, Flynn recruited Randall and Lattime to help execute the plan. He told them that the defendant had agreed to pay them five hundred dollars each for committing the murder. Lattime provided his father's.38 caliber revolver and his grandmother's car to transport the boys from Seabrook to the defendant's Derry apartment.

After school ended on May 1, 1990, the defendant drove Flynn, Randall and Lattime to pick up Lattime's grandmother's car in Massachusetts. The defendant discussed with them the various details of the murder plan, seeking advice on how to react when she returned home and discovered her husband murdered. Lattime and Randall returned to Seabrook in Lattime's grandmother's car. The defendant drove Flynn back to Seabrook to meet them and then went to Winnacunnet High School to attend a meeting scheduled for that evening.

Flynn, Randall and Lattime picked up Fowler and drove to the defendant's residence. While Lattime and Fowler waited with the car at the shopping center, Flynn and Randall entered the defendant's apartment through the unlocked bulkhead into the basement. After ransacking both the upstairs and downstairs of the apartment, they waited for Gregory to return home, with Flynn carrying the gun and Randall holding a knife he had taken from the kitchen. When Gregory came home, the boys forced him to his knees. While Randall with one hand held Gregory's head down and with the other hand held a knife in front of his face, Flynn shot him once in the head. Taking a pillowcase they had filled with jewelry, the boys fled to meet Fowler and Lattime, and the four drove back to Seabrook. The next day, Lattime replaced the gun among the rest of his father's collection.

On June 10, Ralph Welch, a friend of Lattime, told Lattime's parents that Randall and Lattime had admitted to him their participation in the murder. Lattime's parents took the gun to the Seabrook Police Department, accompanied by Welch, and subsequent ballistics tests confirmed that the gun had been used in the murder.

Worried because of Welch's intentions to go to the police, Randall and Lattime went to see Flynn and the defendant at the latter's new condominium in Hampton. After discussing the matter, the defendant drove them to Seabrook in an unsuccessful attempt to retrieve the gun. The next night, June 11, Lattime, Randall and Flynn were arrested.

Virtually daily before May 1, the defendant spoke with Cecelia Pierce, her student intern, about the plan to have Flynn murder her husband. The night before the boys were arrested, the defendant told Pierce of Welch's intention to report the boys to the police, and said that if Lattime and Randall were smart they would blame Welch and Fowler for the murder.

Pierce was questioned several times about the murder by the Derry police and denied any knowledge of it. On June 14, after hearing rumors of the impending arrest of an unidentified girl alleged to be involved, Pierce again met with the Derry police and told them of the defendant's involvement in the murder. She agreed to a phone tap of a conversation with the defendant and to wearing a recording device, or body wire, to record face-to-face conversations with the defendant. On July 12 and 13, with Pierce surreptitiously recording their conversation, the defendant warned Pierce that if Pierce told the truth to the police, Pierce would be an accessory to murder, and urged her to continue to lie. The defendant acknowledged that the boys had carried out the murder to look like a burglary as she had planned, and stated that "nothing was going wrong" until the boys told Welch about it. She stated that, if arrested, she would admit to the affair with Flynn but deny any involvement in the murder plot. She expressed concern that Lattime, who merely waited in the car during the murder, would eventually confess and implicate the others. Nevertheless, the defendant told Pierce she was confidentthat, as between a sixteen-year-old "in the slammer facing the rest of his life" and herself, "with a professional reputation and a course that I teach," her denial would be believed. The defendant reminded Pierce that, by telling the truth, Pierce would be sending the defendant to prison for the rest of her life.

On August 1, 1990, the defendant was arrested in connection with the murder of her husband. In January 1991, Flynn, Randall and Lattime agreed to plead guilty to reduced charges and subsequently testified for the State at the defendant's trial. Another witness, Cindy Butt, a co-worker of Pierce, testified that a month prior to the murder, Pierce told her that she had a "friend named Pam who wanted to find somebody to kill her husband." George Moses, a high school student, testified that he knew the defendant at Winnacunnet High School and met her again while visiting his mother in prison. According to Moses, the defendant asked him to lie for her by claiming that he had overheard Pierce admit to lying to the police about the defendant's involvement.

The jury found the defendant guilty of all charges.

I. Pretrial Publicity

[1] The defendant's arrest and the events leading up to her trial engendered extraordinarily heavy and widespread media coverage. Numerous articles appeared in the newspapers of the southern tier of New Hampshire, along with coverage in Lawrence and Boston, Massachusetts. By the time of the defendant's trial in March 1991, national media outlets, such as Time magazine, contained reports of the case. The defendant argues that this publicity was so pervasive and prejudicial that we must presume that it was impossible to select an impartial jury in Rockingham County in February 1991. She therefore contends that the trial court erred in not granting her motion for a change of venue and in not sua sponte ordering a continuance. Although the defendant bases her claim on both the State and Federal Constitutions, she relies primarily on federal law, and does not argue for a higher standard under the New Hampshire Constitution. Because we believe the principles are the same in any event, we address her argument under both constitutions, by reference to federal decisions. See State v. Scarborough, 124 N.H. 363, 368, 470 A.2d 909, 913 (1983).

[2] Both the sixth amendment of the United States Constitution and part I, article 15 of the New Hampshire Constitution guarantee the right of a defendant to a trial by a fair and impartial jury. State v. Vandebogart, 136 N.H. 107, 110, 612 A.2d 906, 908 (1992). This, however, does not require that

"the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case."

Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Dobbert v. Florida, 432 U.S. 282, 303 (1977) ("One who is reasonably suspected of murdering [her husband] cannot expect to remain anonymous."); State v. Nelson, 103 N.H. 478, 484, 175 A.2d 814, 818 (1961) ("The very nature of the charges... could not fail to create general public interest with attendant widespread publicity through the various news channels."), cert. denied, 369 U.S. 879 and 369 U.S. 881 (1962).

[3] Pretrial publicity, as we stated in State v. Laaman, 114 N.H. 794, 331 A.2d 354 (1974), cert. denied, 423 U.S. 854 (1975), can cause inherent prejudice or actual prejudice. "nherent prejudice... exists when the publicity by its nature has so tainted the trial atmosphere that it will necessarily result in lack of due process." Id. at 798, 331 A.2d at 357. Unlike a claim of actual prejudice, "which exists when the publicity has infected the jurors to such an extent that the defendant cannot or has not received a fair and impartial jury trial," id., a claim of inherent prejudice does not require the defendant to show "actual identifiable prejudice," id. It is inherent, or presumptive, prejudice that the defendant argues resulted from the extensive press coverage of her case, and she suggests that we ignore her jurors' professions of impartiality.

As Laaman indicates, inherent, or presumptive, prejudice will only be found in cases where the publicity is of a certain nature. The United States Supreme Court has held that " adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." Patton v. Yount, 467 U.S. 1025, 1031 (1984) (emphasis added). The Court has also held, however, that the trial court's finding that a jury was impartial should only be overturned for manifest error. Id. at 1031-32.

In only one case, Rideau v. Louisiana, 373 U.S. 723 (1963), has the Supreme Court reversed a conviction based solely on presumptive prejudice resulting from pretrial publicity without regard to the jurors' own voir dire testimony concerning their impartiality. There, film of the defendant's uncounseled custodial confession was broadcast three times on the local television station prior to jury selection. Id. at 724. Because "ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality," id. at 726, the Court held that denial of the defendant's motion for a change of venue violated due process, id., "without pausing to examine... the voir dire examination of the members of the jury," id. at 727.

Other than Rideau, the Supreme Court has reviewed claims of presumptive prejudice resulting from hostile pretrial publicity with reference to the jury voir dire. See, e.g., Patton v. Yount, 467 U.S. 1025; Dobbert v. Florida, 432 U.S. 282; Murphy v. Florida, 421 U.S. 794 (1975); Irvin v. Dowd, 366 U.S. 717. In Irvin, the pretrial news accounts included the defendant's confessions to six murders, his unaccepted offer to plead guilty in exchange for a ninety-nine-year prison sentence, and numerous opinions as to his guilt. Irvin, 366 U.S. at 725-26. As a result of a barrage of "continued adverse publicity," id. at 726, the Court found prejudice notwithstanding the jurors' professed ability to be impartial. Reviewing the jury voir dire, the Court found that eight out of the twelve members of the defendant's jury had already formed an opinion that the defendant was guilty and acknowledged a familiarity with the material facts of the case, "some going so far as to say that it would take evidence to overcome their belief." Id. at 728.

The defendant, unable to point to any identifiable, actual prejudice on the part of the jurors who decided her case, seeks to characterize the pretrial publicity surrounding her as equivalent to that in Irvin. She would thus have us similarly disregard the jurors' voir dire statements of impartiality. The first problem with her argument is seen in a comparison of the voir dire examinations. In Irvin, as noted above, two-thirds of the defendant's jury admitted to having formed an opinion about his guilt; they were seated despite the fact that the defendant, "having no more peremptory challenges, insisted [that they] should be excused for cause," Irvin, 366 U.S. at 724. Here, by contrast, no member of the defendant's jury expressed an opinion on voir dire that she was guilty. And, importantly, none sat on her jury over her objection. It is difficult to conclude in such circumstances that the trial court's finding that the jury was impartial constituted manifest error.

[4] The second problem with the defendant's effort to equate her case with Irvin and Rideau, where the Court presumed the existence of prejudice, is in the kind of publicity involved. She refers us to the "avalanche of media attention" she received, primarily without focusing on the nature of the attention. As Irvin and Rideau make clear, however, it is the adverse nature of the publicity, not merely its quantity, that is critical in finding presumptive prejudice. See Rideau, 373 U.S. at 727 (community had seen and heard "not once but three times, a `trial' of Rideau in a jail, presided over by a sheriff, where there was no lawyer to advise Rideau of his right to stand mute"); Irvin, 366 U.S. at 726 (community subjected to "continued adverse publicity").

We have carefully reviewed the massive amount of pretrial media material submitted by the defendant, comprising a several-inch- thick volume of newspaper accounts and videotaped television news stories. Several of these items, appearing immediately after the murder, were generated by the defendant herself, who granted extended interviews with the press. We agree that the publicity surrounding the defendant's case was enormous and, as claimed by some, unprecedented in this State. This "avalanche," however, is not enough. While "some of the pieces... are hostile in tone and accusatory in content[,] he overwhelming bulk of the material submitted... consists of straightforward, unemotional factual accounts of events and of the progress of... investigations." United States v. Haldeman, 559 F.2d 31, 61 (D.C. Cir. 1976) (no presumed prejudice created by publicity about "Watergate" defendants), cert. denied, 431 U.S. 933 (1977). Distinguishing between straightforward factual publicity about a celebrated case and inflammatory, adverse press is crucial. "To ignore these real differences in the potential for prejudice would not advance the cause of fundamental fairness, but only make impossible the timely prosecution of persons who are well known in the community, whether they be notorious or merely prominent." Murphy v. Florida, 421 U.S. at 801 n. 4.

[5] The defendant points with specificity to only one item as potentially prejudicing the jury venire because of its content and proximity to jury selection. Several nights before jury selection was to begin, a local television station, WMUR-TV, aired a special program entitled "Anatomy of a Murder," devoted to the defendant's case. Consisting of footage from earlier news broadcasts that included film of pre-arrest interviews with the defendant, of her arrest and that of the teenage boys, along with commentary by a station reporter, the program also mentioned three new indictments against the defendant. One of these indictments charged her with attempting to murder a prospective witness. Suggesting a prejudicial influence on prospective jurors, the defendant points out that the evidence of the new indictments was not introduced at trial. Exposure to inadmissible evidence, however, is not sufficient to presume jury prejudice. Cf. Patton v. Yount, 467 U.S. at 1027 (no presumption of prejudice despite press reports of defendant's written confessions, inadmissible at trial). Moreover, the voir dire examination of the one prospective juror who stated he had seen the program belies any claim of prejudice. The venireman was vague in his recollection of the contents of the program and was questioned in depth about it by defense counsel. At the close of his examination of the man, defense counsel did not challenge him for cause. Ultimately, it was the State that exercised a peremptory challenge to strike him from the jury.

Not only was the bulk of the publicity merely factual reporting, analysis of the material submitted by the defendant for our review indicates that most of the items appeared after the jury had been selected and had been continually instructed by the trial court not to read or watch anything connected to the case. "Our system of Justice is premised upon the belief that jurors will follow the court's instructions." State v. Novosel, 120 N.H. 176, 186, 412 A.2d 739, 746 (1980) (no abuse of discretion to refuse to poll jury regarding prejudicial publicity, where jury repeatedly admonished not to read or listen to news accounts).

[6] The defendant has shown at most that the community from which her jury was drawn was exposed to extensive pretrial publicity that resulted in familiarity with her case. Mere familiarity, however, is not sufficient to presume prejudice. Irvin v. Dowd, 366 U.S. at 722; State v. Laaman, 114 N.H. at 800, 331 A.2d at 358. We have examined the voir dire of the jury and have found no evidence to support a claim of presumptive prejudice. Fifteen jurors were selected in five days, after thorough and intensive questioning by the court and counsel for both sides. Of the sixty-five prospective jurors individually examined, one was excused for cause because of "mixed feelings" about the defendant's guilt, another was excused for cause in part due to a negative preconception based on pretrial publicity, one was excused for cause after admitting a prejudice against the defendant, and another, challenged by the defendant due to publicity, was struck by the defendant peremptorily. All of the others excused for cause were excused for reasons other than publicity, such as an inability to understand the burden of proof. After eleven prospective jurors had been questioned, the Judge remarked, "I'm surprised at the number of people who have not read too many articles about this." On the third day of voir dire, after yet another prospective juror admitted to knowing little about the case, the Judge stated, "I don't think the press is as effective as the press thinks the press is." Later the same day, in response to a juror who said the court would "probably find it hard to believe" that she knew very little about the case, the Judge said, "Becoming increasingly easier to believe." One reason may be found in the responses of several prospective jurors who stated that they were preoccupied with news stories about the war: American troops were fighting in the Persian Gulf in late February 1991.

Another reason many of the prospective jurors were largely ignorant of the specifics of the defendant's case may have been the notice sent to them to report for service. The notice specifically advised the venire that they would be serving on the jury of "the State vs. Pamela Smart case." The defendant argues that the notices focused the venire's attention on the media accounts of the case. The record reveals, however, that fourteen of those individually examined stated that, upon receiving notification from the court about jury service, they deliberately avoided reading about the case, some stating that to do otherwise would not be "fair." The only prospective juror to state that he had read about the case after receiving jury notification was struck peremptorily by the State. The jury voir dire thus demonstrates that specific reference to the defendant's case in the notice to prospective jurors was not prejudicial and may even have had a salutary effect.

[7] The trial court and counsel for both sides conducted thorough and searching voir dire. When, on the afternoon of the third day, it was learned from a prospective juror that other prospective jurors were discussing the media while waiting in the jury room, the court summarily excused the remainder of the day's venire. This is evidence of the care taken by the trial court to ensure the selection of an impartial jury. See Nelson, 103 N.H. at 484, 175 A.2d at 819 (requiring three weeks to pick jury in widely publicized case not evidence of prejudice but rather shows court's "extreme care" in obtaining impartial jury). Moreover, the defendant's satisfaction with her jury at the time of selection may be reflected in the fact that she did not employ all of the peremptory challenges available to her, a fact relevant to a claimed lack of an impartial jury, State v. Anaya, 131 N.H. 330, 331 , 553 A.2d 297, 298 (1988).

The defendant seeks to support her claim of jury prejudice with affidavits, appended to her motion for a new trial, of several potential jurors who had been discharged. According to these affidavits, certain members of the pool discussed the case on the first day they reported for jury service, expressing the opinion that the defendant was guilty. There is no evidence that any such member of the jury pool was selected. Additionally, the record shows that no one who sat on the defendant's jury possessed a preconceived opinion of her guilt.

[8] We now turn specifically to the defendant's claims that the trial court should have ordered a change of venue and a continuance. The trial court denied the defendant's motion for a change of venue prior to the jury voir dire, ruling that the defendant could renew the motion after voir dire. The defendant never availed herself of this invitation. See Johnson v. Nash, 135 N.H. 534, 536, 608 A.2d 200, 201 (1992) (issue not preserved where court granted leave to file further pleading and defendants failed to do so). We can only conclude from the defendant's failure to renew her motion, combined with her failure to make additional challenges for cause and to exhaust her peremptory challenges, that at the time of jury selection she believed she had obtained an impartial jury. Moreover, the trial Judge, in his order denying the motion for a new trial, stated that his finding at the time of jury selection that the jury chosen "was absolutely and completely impartial... was, at the time, shared by both the defendant and counsel. There were no objections to the jury which was selected and each juror was specifically approved by counsel and the defendant individually." The defendant on appeal does not challenge this specific finding of fact by the trial court, and we find no error in the failure to change venue.

[9] With respect to a continuance, the record indicates that one two-week continuance was requested by the defendant and granted by the trial court. According to the trial court, it "did not receive any additional motions to continue, and indeed proceeded after the short continuance on the insistence by defendant of her right to speedy trial." Although the defendant cites United States v. Perez-Casillas, 593 F. Supp. 794 (D.P.R. 1984), as support for her claim that the right to a continuance amidst pervasive publicity takes precedence over the interest in a speedy trial, she omits the significant fact that the defendants in that case affirmatively moved for a continuance until the publicity subsided. Id. at 796. In light of the defendant's apparent desire to proceed with her trial, our Conclusion that the pretrial publicity was not so inflammatory as to preclude selection of an impartial jury, and the evidence that an impartial jury was in fact selected, we will not fault the trial court for failing to act sua sponte to continue the trial.

[10, 11] The trial court's determination of the impartiality of the jurors selected, essentially a question of demeanor and credibility, "is entitled... to special deference." Patton v. Yount, 467 U.S. at 1038 (quotations omitted). As the Supreme Court recently noted:

"Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The Judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim [of prejudice] his own perception of the depth and extent of news stories that might influence a juror."

Mu'Min v. Virginia, -- U.S. --, --, 111 S. Ct. 1899, 1906 (1991). We hold that, notwithstanding extensive pretrial publicity, there was no manifest error in the trial court's determination that an impartial jury had been selected for the defendant's trial.

II. Trial Atmosphere

The defendant contends that the trial Judge did not adequately safeguard the trial proceedings from what she claims was a "circus- like atmosphere" created by "media frenzy." Relying primarily on Sheppard v. Maxwell, 384 U.S. 333 (1966), where the Supreme Court reversed a conviction on a finding of presumed prejudice, she seeks to compare the Sheppard trial, with its "bedlam... and disruption," id. at 355, to her own. After review of Sheppard and of the record in this case, however, including thirty hours of videotape of the trial, this court is convinced that any comparison with Sheppard is illusory, and that the trial court here adequately protected the defendant's right to a fair trial. Because of the defendant's heavy reliance on Sheppard, we begin with an examination of that case.

The Supreme Court held in Sheppard that in "the totality of the circumstances," id. at 352, the defendant was "deprived of that judicial serenity and calm to which was entitled." Id. at 355 (quotation omitted). These circumstances included a background of pretrial publicity described by the court as "virulent." Id. at 354. Headlines had "repeatedly stressed Sheppard's lack of cooperation with the police," id. at 338, and "disclosed that had `again... refused to take a lie detector test,'" id. at 339; television and radio broadcast a three-day coroner's inquest held in a high school gymnasium, to which Sheppard had been subpoenaed and at which his counsel were not allowed to participate, id. at 339; front-page editorials appeared, including one charging that Sheppard was "`getting away with murder,'" id.; and the names and addresses of all of the prospective jurors were published, leading to the receipt by all of them of "anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution," id. at 342.

At Sheppard's trial, according to the Supreme Court, "bedlam reigned... and newsmen took over practically the entire courtroom... " Id. at 355. A table accommodating twenty members of the press had been set up inside the bar within a few feet of counsel table, id. at 355, making "confidential talk among Sheppard and his counsel almost impossible," id. at 344, and causing "constant commotion within the bar," id. at 355; virtually all of the seats in the courtroom had been assigned by the court to the press, whose "movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard," id. at 344; reporters clamored for access to chambers Discussions between the court and counsel, "and often these matters later appeared in newspapers accessible to the jury," id.; and newspapers throughout the trial featured photographs of the jurors, who "were thrust into the role of celebrities by the Judge's failure to insulate them from reporters and photographers," id. at 353. While inflammatory newspaper articles and television and radio broadcasts appeared during the trial, containing information not introduced at trial, the Judge merely made "suggestions" and "requests" to the jurors that they not expose themselves to extrajudicial comment on the case. Id. at 353. Blaming the trial Judge for succumbing to the press by not controlling the "carnival atmosphere at trial" and by failing "to reduce the appearance of prejudicial material and to protect the jury from outside influence," id. at 358, the Supreme Court concluded that Sheppard had been denied due process, id. at 335.

Nothing in the conduct of the defendant's trial remotely resembled these conditions, despite the media presence. From the outset, even before commencement of the jury voir dire, the trial Judge made emphatically clear that he, and not the press, was in control of his courtroom. In his opening instructions to the panel, the Judge explained that the press, including television cameras, would be present during the trial, stating:

"The press during the trial cannot photograph jurors. The press during the trial and jury voir dire cannot mention your names, cannot interview you, cannot publish your names, and cannot photograph you at any time during the trial. But there will be cameras in here, and I'll tell you right up front as well, this is not the first time that has been done in New Hampshire where there has been press coverage and cameras in the courtroom. You'll find if there are--the jury, the final jury is among you here, that within a half an hour you pay no attention to the fact that cameras are there or that the press is in the courtroom. It's just they're there."

The trial Judge specifically instructed the media regarding what it could and could not do inside and outside the courtroom. "After consultation with counsel both for the Defendant and the State," the Judge assigned the media three rows of seats outside of the bar and outside of the direct view of the jury. He permitted only two video cameras in the courtroom, and instructed the press that the jurors "under no circumstances were... to be photographed at any time either in or out of the courtroom and were never to be approached by any media representatives." Except for one instance, when the jury was inadvertently photographed while on the view, there is no evidence that the press did not follow the court's instructions.

Although the defendant characterizes her trial as a "Roman circus" based on the conduct of the press, the only evidence to support this claim is the occasionally audible snapping of shutters of still cameras. This occurred once during Pierce's testimony and twice while the defendant testified. Each time the court admonished the photographers, and no real disruption occurred. The defendant presses a claim that "photographers would often times stand in order to get their pictures... ,... caus a commotion," an allegation that the trial court in its order on her motion for a new trial specifically found to be false. Her further allegation that the media, permitted to review exhibits on a table inside the bar during one recess, were free to "scrutinize notes and papers left out by defense counsel" is similarly not borne out by the record. Nothing indicates that the media came near the separate table at which defense counsel sat.

[12] That the trial Judge exerted and maintained control over the proceedings is further illustrated by his numerous and forceful instructions to the jurors not to expose themselves to any press accounts of the case. Upon selection for service, each juror was instructed individually not to read or listen to anything in connection with the case and about the importance of that admonition. The judge also told them to report immediately to the court or sheriff any attempts made by anyone to contact them about the case. After the first day and then daily throughout the trial, the Judge continually reminded the jurors that they were not to discuss the case or in any way come into contact with press accounts. The defendant complains that at the end of the first day of trial, the Judge only instructed the jury not to discuss the case, omitting the admonition about media exposure. She makes no specific claim of prejudice arising from this one lapse, however, and we are convinced that on this record there was none.

Some of what the defendant contends was circus-like in the conduct of the press is alleged to have occurred outside of the courtroom, where, for example, the defendant was allegedly mobbed by photographers. The trial court, however, had kept the jury in a secured section of the courthouse away from the media, and when the jurors entered the courtroom it was through a separate, locked hallway, secured from media access. The defendant does not allege that the jury was aware of or in any way prejudiced by this spectacle.

To support her claim that the media's impact on the jury was "overwhelming," the defendant submitted an audiotape recording contemporaneously made by one of the jurors, in which the juror chronicled her daily impressions of the trial in lieu of discussing the case. Although several negative comments about the press appear in the tapes, they essentially amount to observations by the juror of the media's mere presence. Notably, when the juror spoke of the press, it was distinct from and as an aside to the essence of the tapes, which was a recapitulation of each day's testimony. The tapes make clear that the juror took her task seriously, as she recounted: "We're all listening to every single word, every word, taking notes, paying attention, concentrating, and we will all through the trial"; "I, for one, have every intention of keeping an open mind"; and, "Right now I'm still presuming her to be innocent, and I'll continue to do so all the way through until all the evidence is in." Rather than lending strength to the defendant's claim, the tapes show a thoughtful, conscientious juror determined to fulfill her obligations to be impartial and to follow the court's instructions, uninfluenced by the presence of the media.

[13] We also take note of a comment made by the Judge to the jury at the close of his final charge. As he concluded, the Judge gave the standard instruction with respect to the importance of the case to the defendant, to the State and to the jury, and cautioned that the presence of the press did not make the case "any more important than any other criminal case." In the course of this instruction, he remarked parenthetically, "Because the press is here, however, and has been through this trial, and you've been, I must say, magnificent in your ability to ignore the fact that there are many press and many people in this courtroom ... " (emphasis added). Such a spontaneous observation by the trial court, who was in the best position to perceive the impact of the media on the jury throughout the three- week trial, is entitled to considerable weight upon review. Cf. State v. Mills, 136 N.H. 46, 50, 611 A.2d 1104, 1106 (1992) (great deference owed trial Judge's decision on witness competency because of his "overall firsthand impressions" and "ecause so much depends upon his observation of the witness") (quotations omitted); Maguire v. Merrimack Mut. Ins. Co., 133 N.H. 51, 55, 573 A.2d 451, 454 (1990) (trial Judge witnesses proceedings firsthand and "`may have insights not conveyed by the record'").

Finally with respect to the defendant's claim that her trial was conducted in a circus-like atmosphere, the court has carefully reviewed the videotapes of thirty hours of the trial, recorded by the local television station and furnished as an exhibit. They vividly demonstrate what cannot be captured from the cold transcription of proceedings, namely, that the trial was conducted not in a carnival-like manner, but in the calm, dignified manner to which the defendant was entitled. Witnesses and counsel were plainly audible, no media representatives were inside the bar, and there was no commotion. We might add that the videotapes have given us an unusual near-firsthand glimpse of the trial Judge at work. His commanding presence throughout, shown by his demeanor with counsel and with the jury, was apparent. The defendant's trial took place in a courtroom dominated not by the media but by the presiding Judge.

[14] The defendant also argues that the trial court should have granted her motion to sequester the jurors throughout the trial in order to protect them from exposure to press accounts of the trial. Sequestration is "an extreme measure, one of the most burdensome tools of the many available to assure a fair trial." United States v. Porcaro, 648 F.2d 753, 755 (1st Cir. 1981) (quotation omitted). Furthermore, the decision to grant a motion to sequester the jury is within the sound discretion of the trial court, see State v. Breest, 116 N.H. 734, 751, 367 A.2d 1320, 1333 (1976), and is not required simply because of media attention, United States v. Peters, 791 F.2d 1270, 1298 (7th Cir.), cert. denied, 479 U.S. 847 (1986).

[15] As with any claim of abuse of the trial court's discretion, the defendant must show that the court's ruling was unreasonable and prejudicial to her. We held in State v. Pugliese, 122 N.H. 1141, 455 A.2d 1018 (1982), that there was no abuse of discretion in the trial court's refusal to poll the jury regarding prejudicial newspaper articles, published during trial, where there was no evidence "that any member of the jury had read the articles and that this had resulted in deprivation of the defendant's right to a fair trial." Id. at 1147, 455 A.2d at 1022. We hold that a defendant challenging a trial court's denial of a motion to sequester the jury during trial must meet the same test. See Burke v. State, 484 A.2d 490, 500 (Del. 1984) (absent showing of actual prejudice, refusal of trial Judge to sequester jury prior to deliberations not abuse of discretion).

Failing to point to any specific prejudicial news items observed by any juror, the defendant claims merely that "the publicity problem was obvious." We agree. The trial court handled the problem as outlined above, i.e., by shielding the jury from reporters and photographers, instructing the media to keep its distance from the jury, and regularly instructing the jurors to avoid press accounts. As stated above, we will not assume that the jurors disobeyed the admonitions not to read or listen to any media accounts of the case, as "ur system of Justice is premised upon the belief that jurors will follow the court's instructions." Novosel, 120 N.H. at 186 , 412 A.2d at 746. In lieu of imposing on the jury the hardship of sequestration for the more than two weeks of trial, the steps taken by the trial court were adequate.

[16] At the Conclusion of the trial, at the end of the first day's deliberations, the Judge, on the defendant's motion, ordered the jury sequestered for the duration of its deliberations. Defense counsel had argued that "he flavor of this thing's changed a little bit with regard to the media" in that, while the media that had been present all along "seem know the rules," there was at that time "a completely different crew out there... " Although the Judge ordered that sequestration would not begin until the end of the following day, the record shows that this decision was made in order to accommodate the jurors, who had not come to the courthouse prepared to be sequestered that evening. Defense counsel did not object to this procedure, and in fact had suggested to the court that it should be "very careful with regard to instituting sequestration at this point in time so that it would at least be somewhat reasonable to these folks," because defense counsel did not "know if this jury has been properly placed on notice that sequestration could have been a possibility." We conclude that, by handling the media and the jury as he did throughout the trial and by sequestering the jury when a change in circumstances appeared to warrant that action, the trial Judge acted reasonably to protect the defendant's rights. Absent a specific showing that the jury had been tainted by exposure to publicity, we hold that the court did not abuse its discretion in not ordering sequestration from the outset of the trial.

III. Alleged Juror Misconduct

After the trial, the defendant filed a motion for individually sequestered voir dire of the jury on the basis of a specific allegation of misconduct by one juror. The defendant does not pursue that claim on appeal. Subsequently, she moved for a new trial on the ground of juror misconduct, and in her prayer for relief requested the trial court to "summons all deliberating jurors before the Court in order to conduct an evidentiary hearing to determine the extent and prejudicial effect of juror misconduct." In that motion the defendant alleged that the juror who had created the audiotapes of her trial recollections did so for financial gain, and that jurors were permitted to consume alcoholic beverages after deliberations while they were sequestered. On appeal, she presses her request for individual examination of the jurors only with respect to the alleged consumption of alcohol during deliberations. With respect to the juror's audiotapes, the defendant does not seek examination of the individual jurors, but rather relies upon the tapes as an independent ground for reversal.

[17] The decision to voir dire or poll the jury after its verdict is within the discretion of the trial court. State v. Pinardville Athletic Club, 134 N.H. 462, 468, 594 A.2d 1284, 1288 (1991). While a trial court exercising its discretion must investigate colorable claims of improper influence on the deliberative process, it "must not allow jurors to be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct." Neron v. Tierney, 841 F.2d 1197, 1204 (1st Cir.) (quotations omitted), cert. denied, 488 U.S. 832 (1988).

The defendant's argument concerning the alleged consumption of alcohol by the sequestered jury stems from a newspaper article written by a juror after the trial, in which he stated that, at the motel after the second day's deliberations had ended, the jurors were told "that the Judge had OK'd two drinks per juror, though the state wouldn't pick up the tab for alcohol." Citing State v. Bullard, 16 N.H. 139 (1844), and Leighton v. Sargent, 31 N.H. 119 (1855), which prohibit the use of alcohol by a deliberating jury, the defendant contends that the trial court's permitting the jurors to have two drinks at the motel entitled her to voir dire them "as to if, when and where any of them had accepted the trial court's invitation."

[18] The trial court held a hearing on the defendant's motion for a new trial alleging juror misconduct. At the hearing, counsel for the defendant conceded that he had no evidence, "none whatsoever," that the jury had deliberated under the influence of alcohol. He admitted that the suggestion that the jurors were deliberating in their separate motel rooms on the night they were sequestered, or that they had even had alcoholic beverages that evening, was "pure speculation." Unsupported speculation does not entitle a defendant to have the trial court interrogate the jurors about alleged impropriety in deliberations. State v. Donovan, 120 N.H. 603, 607 , 419 A.2d 1102, 1104-05 (1980). The trial court did not abuse its discretion in refusing to poll the jury based on the defendant's sheer conjecture.

[19] The defendant next contends that the existence of the tape- recorded recollections of a juror is evidence of juror misconduct requiring a new trial. In her motion she alleged that the recordings had been made for the purpose of profiting from their sale after the trial. At the hearing on the motion the State introduced affidavits, rebutting the material submitted by the defendant, supporting its claim that the recordings became the subject of possible sale only after offers by the defendant's attorneys to buy them. Defense counsel did not call the juror as a witness at the hearing, although the trial court afforded him the opportunity to do so. The evidence supports the trial court's finding that the recordings were made for the purpose stated by the juror on the tapes themselves, namely, for her own personal use. Conceding that he had no evidence that the juror formed an intent to sell the tapes at any time during her service as a juror, defense counsel argued the existence of the appearance of impropriety. On this record, however, we agree with the trial court's finding that the defendant failed to produce any evidence whatsoever of juror misconduct, and that the trial court properly denied the motion for a new trial on this ground.

IV. Supplemental Jury Instruction

During deliberations the jury sent out a question to the Judge. After a request to clarify, the following question was then transmitted: "In your charges, Element 1 under accomplice states `the State alleges that the defendant aided William F. in the planning or commission of the murder of Gregory Smart by taking certain actions, including... ' Are all other actions excluded?" The trial court sent the jury the following answer: "Madame Forelady and Members, the burden is on the State to prove the elements of the charge. You may consider all the evidence before you whether the act was specifically alleged or not. The answer to your specific question is no."

[20, 21] The defendant objected, arguing that the State was bound by the acts alleged in the indictment. On appeal, however, she argues that the supplemental instruction was misleading, failed to dispel alleged jury confusion, and erroneously lacked reference to the necessity for proof beyond a reasonable doubt. As none of these grounds for objecting to the instruction was raised below, they will not be considered on appeal. State v. Wood, 132 N.H. 162, 165, 562 A.2d 1312, 1314 (1989). Moreover, the only ground raised below not having been briefed, it is deemed waived. State v. Field, 132 N.H. 760, 765, 571 A.2d 1276, 1279 (1990). We note, however, that the issue waived was without merit. See State v. Therrien, 129 N.H. 765, 769 , 533 A.2d 346, 348 (1987) (accomplice may be convicted on proof of acts not specified in indictment).

V. Admissibility of Recorded Conversations

The defendant argues that her taped conversations with Pierce, recorded pursuant to RSA 570-A:2, II(d) , should have been suppressed, contending that Pierce's consent was invalid under part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution, and that the purported statutory authorization was therefore invalid; that the interceptions violated her State and federal constitutional rights to counsel; that failure to seek judicial authorization for the intercepts violated the separation of powers clause, part I, article 37, of the New Hampshire Constitution ; and that the interceptions violated Rule 4.2 of the New Hampshire Rules of Professional Conduct.

In her motion to suppress the recordings, the defendant argued that the alleged invalidity of Pierce's consent made the recordings unlawful under RSA 570-A:2, II(d). Her argument on appeal that Pierce's lack of consent resulted in a violation of the defendant's article 19 and fourth amendment rights is therefore not properly preserved. See State v. Wisowaty, 133 N.H. 604, 607, 580 A.2d 1079, 1080 (1990) (issues not raised in trial court not considered on appeal).

The defendant bases her statutory claim of invalid consent on the fact that Pierce, sixteen years old at the time, was a minor and on the allegation that Pierce was coerced. The motion to suppress, however, asserted as a ground for finding lack of consent only Pierce's lack of capacity due to her minority. The State argues that any argument that Pierce was coerced is therefore not preserved. The record of the suppression hearing shows, however, that the defense tied its allegation of invalid consent to the facts surrounding this particular minor's decision to participate in the intercepts, including alleged pressure by police officers, rather than relying on a claim of per se incapacity due to minority. Moreover, in ruling on the motion the trial court expressly found no undue pressure on Pierce by the police. The issue is therefore properly before us.

At the hearing on the motion to suppress, Pierce testified about the events leading up to her decision to agree to the intercepts. She stated that when she lied to the Derry police during an interview on June 11, 1990, about her knowledge of the murder, Derry police Captain Jackson became angry with her. She inferred that the police knew of the defendant's involvement and that if they discovered Pierce was lying, she would be charged with "hindering an investigation." After another interview with the police on June 14, Pierce agreed to record telephone conversations with the defendant and to wear a body wire for face-to-face conversations. Pierce's mother, present at both police interviews, discussed with Pierce the advisability of participating in the intercepts prior to each one. Her signature appears with Pierce's on the consent form for the first intercept. According to Pierce, the police explained to her, before she signed the consent forms for each intercept, her right to refuse and that she "wasn't in any trouble at all." She stated that she did not consent to the intercepts out of fear of being arrested. Detective Pelletier of the Derry Police Department also testified that he witnessed her signatures on the consent forms after explaining to her each time that the decision was hers and that she could refuse.

[22] We conclude that the evidence supports the finding that Pierce's consent was voluntary. The trial court found, "after viewing her on the stand," that Pierce was "of sufficient maturity" to consent, and we will defer to that finding in light of the trial Judge's unique vantage point in assessing the witnesses before him. See State v. Mills, 136 N.H. at 50, 611 A.2d at 1106 (because, in determining witness competency, so much depends on trial Judge's observation of witness, great deference given to Judge's determination). We also agree with the trial court that on this record there is nothing to suggest undue pressure by the police. Pierce acknowledged that she had originally lied to the police and that they apparently knew it. Their warnings to her that she could be prosecuted for hindering an investigation if they discovered she was not being truthful were not threats of illegitimate police action, see United States v. Kolodziej, 706 F.2d 590, 594 (5th Cir. 1983) (where threat of police action not illegitimate, consent to intercept valid) (citation omitted); "a decision to consent is not rendered involuntary merely because it is induced by a desire to avoid the possibility of a well-founded prosecution." Com. v. Clark, 533 A.2d 1376, 1379 (Pa. 1987); cf. State v. Valenzuela, 130 N.H. 175, 184 , 536 A.2d 1252, 1258-59 (1987) ("What is crucial... is the defendant's voluntary disclosure of evidence to the agent-informer, not the agent-informer's interest or motivation when he informs the government."), cert. denied, 485 U.S. 1008 (1988). Pierce's consent to the intercepts was valid under the statute.

The defendant's claim that her sixth amendment right to counsel was violated by the recorded intercepts is based on the fact that, prior to the July body wire intercepts, although neither arrested nor charged with any offense, she had retained counsel and made that fact known to an assistant attorney general. This claim is foreclosed by our decision in State v. Kilgus, 128 N.H. 577, 519 A.2d 231 (1986), where we held that the federal constitutional right to counsel was not infringed by recording the defendant's conversations prior to the institution of criminal charges. Id. at 593-94, 519 A.2d at 242; see Hoffa v. United States, 385 U.S. 293, 308-09 (1966).

She next argues that her part I, article 15 right to counsel had attached prior to the body wire recordings when she and her attorney notified the attorney general's office of her desire to deal with the State only through an attorney. Contending that her right to counsel under the State Constitution is greater than under the sixth amendment, she asserts in her brief that State v. Tapply, 124 N.H. 318, 470 A.2d 900 (1984), held that part I, article 15 "affords to all persons suspected of criminal activity the right to counsel." This is an exaggerated view of our holding in Tapply, where the defendant was subjected to custodial interrogation, attempted to invoke his right to have counsel present for questioning, and was discouraged from doing so by the police, id. at 324, 470 A.2d at 904. Tapply did not purport to announce so broad a rule as the defendant contends.

[23] At the time of the intercepted conversations, the defendant had not been arrested and had no charges pending. We have never held that the State constitutional right to counsel, outside of custodial questioning, attaches prior to the commencement of adversarial proceedings. See State v. Roberts, 131 N.H. 512, 517, 556 A.2d 302, 305 (1989); State v. Scarborough, 124 N.H. at 370, 470 A.2d at 914 (1983). The defendant urges us to adopt the New York rule, first articulated in People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501 (1980), that once an individual is represented by counsel on the matter on which the State seeks to question her, no waiver of counsel is valid unless made in the presence of counsel. We have previously considered and rejected the reasoning behind the strict New York rule on which the defendant relies, see Scarborough, supra at 370, 470 A.2d at 914 (expressly declining to follow Skinner), and we again find the argument unpersuasive. See also State v. Lamb, 125 N.H. 495, 496, 484 A.2d 1074, 1075 (1984) (reaffirming Scarborough's rejection of the New York rule).

[24] Basing her final constitutional challenge to the intercepts on the separation of powers clause, the defendant contends that the recordings were improperly authorized by the assistant attorney general because he was not a "neutral and detached magistrate." This argument is without merit. It falls as a consequence of our holding in Kilgus, 128 N.H. 577, 519 A.2d 231, that the fourth amendment and part I, article 19 do not apply to such consensual intercepts. See id. at 591-92, 519 A.2d at 240-41. Because no warrant was required, neither was the neutrality and detachment of a judicial officer.

Finally, the defendant argues that the intercepted recordings should have been suppressed because they were obtained in violation of Rule 4.2 of the New Hampshire Rules of Professional Conduct. The State counters that the rule does not apply to the investigatory stage of criminal proceedings, and that even if it were to apply, suppression is not the appropriate remedy for a violation.

Rule 4.2 of the Rules of Professional Conduct provides:

"In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

We have not previously had occasion to decide whether the Rules of Professional Conduct bar a prosecutorial agent from contacting a suspect whom the State knows is represented by counsel. Several federal courts have considered the issue pursuant to the nearly identical Disciplinary Rule 7-104 (A)(1) of the Code of Professional Responsibility. While there is agreement that the rule applies to criminal prosecutions as well as to civil litigation, see United States v. Ryans, 903 F.2d 731, 735 (10th Cir.), cert. denied, -- U.S. --, 111 S. Ct. 152 (1990), the courts that have considered the question do not agree on whether the rule applies in the investigatory stage of criminal prosecutions, id. Compare United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (applying ethical rule to government's non-custodial, pre-indictment use of "sham" grand jury subpoena), cert. denied, -- U.S. --, 111 S. Ct. 192 (1990) with United States v. Fitterer, 710 F.2d 1328 (8th Cir.) (refusing to apply rule prior to indictment), cert. denied, 464 U.S. 852 (1983), and United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973) (same), cert. denied, 415 U.S. 989 (1974).

We find persuasive the reasoning in Ryans that leads to the Conclusion that the rule "was not intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel," Ryans, 903 F.2d at 739:

"In contrast to [N.H. Rule of Professional Responsibility 4.3, concerning a lawyer's dealings with] a `person' who is not represented by counsel, [ Rule 4.2 ] prohibits communications with a `party.' Black's Law Dictionary defines party as `a litigant, or a person directly interested in the subject matter of a case.' Moreover, the rule concerns a lawyer's conduct [`n representing a client'], and is limited to communication [`about the subject matter of the representation'] with a party represented by counsel [`in the matter']. Although the not define these terms, the rule appears to contemplate an adversarial relationship between litigants, whether in a criminal or a civil setting.

...

The rule requires that the lawyer respect an adverse party's choice to be represented by skilled counsel. The rule appears to be intended `to protect a defendant from the danger of being "tricked" into giving his case away by opposing counsel's artfully crafted questions.' [ United States v. ] Jamil, 707 F.2d [638,] 646 [(2d Cir. 1983)]. Logically, these concerns are implicated after the parties are in an adversarial relationship."

Id.

[25] While we do not suggest that a prosecutor or prosecutorial agent may never be in violation of the rule prior to indictment, on the facts presented here, where the defendant was not in custody and had not been criminally charged, we find no ethical violation in the interception of her conversations.

VI. Transcripts of Recordings of Intercepted Conversations

The defendant argues on appeal that the trial court erred in submitting to the jury transcripts of her tape recorded conversations with Pierce, claiming that the transcripts were neither accurate nor authenticated. At trial, when the tapes were about to be played and the transcripts handed out for the jurors to read along, defense counsel expressed concern that the transcripts were "misleading" because they allegedly failed to account for the "doubling" of voices that occurs when two parties speak at once. No objection was made that the transcripts were not authenticated, and thus none is preserved for review. See State v. Wisowaty, 133 N.H. at 607, 580 A.2d at 1080.

The court overruled the defendant's objection to the use of the transcripts, and instructed the jury before the first tape was played as follows:

"To the extent, if any exists, that the tape itself differs from what you are reading along in the transcript, you will use the tape in your consideration of the evidence in this case and not the transcript."

The court instructed the jury again, after the second tape was played, to "use what you hear and not what you read" if there was any discrepancy, and several times during its final charge the court again told the jury that the tapes must govern over any inconsistency that might appear in the transcripts.

[26, 27] Evidentiary rulings are within the trial court's discretion, and "n appellant claiming trial court error in abusing discretion has the burden to demonstrate that the discretionary ruling is clearly untenable or unreasonable to the prejudice of his [or her] case... " State v. Cochran, 132 N.H. 670, 672, 569 A.2d 756, 757 (1990). Neither at trial nor in her brief did the defendant make any particularized showing of inaccuracies in the transcripts relative to the recordings or how she may have been prejudiced thereby. The trial court's instructions to the jury adequately addressed the defendant's objection, and we find no abuse of discretion.

VII. Re-opening Cross-examination of Prosecution Witnesses

The defendant's final argument concerns the trial court's refusal to allow her to recall Flynn and Lattime for further cross-examination or as witnesses in her case-in-chief. She challenges the trial court's rulings as violative of her rights of confrontation under the sixth amendment and part I, article 15 , her rights under the federal due process clause and part I, article 15 to produce all proofs favorable to her, and as an abuse of discretion.

The issue arose as a result of the discovery of letters that Flynn and Lattime wrote from jail during the trial to an inmate at the New Hampshire State Prison. The letters came into the possession of the defendant's attorneys after they had completed cross-examination of the two witnesses. The defendant asked to be permitted to recall the witnesses for further cross-examination to impeach their credibility on the basis of the contents of the letters. While not claiming that the letters contained any inconsistencies with the substance of the boys' testimony, defense counsel pointed to specific items as warranting further examination. He noted that the letters contained references to the witnesses' decisions to plead guilty and testify against the defendant, to possessing photographs of the defendant, to their interest in the media attention, to Flynn's threat of violence against a prison inmate, and a profane reference to the defendant's jury.

The trial court, after reviewing the letters, denied the motion to recall the witnesses, finding nothing in the letters that could not have been inquired into on cross-examination. During her case-in-chief, the defendant moved for an order to transport Flynn and Lattime to court as witnesses for the defense. The trial court denied the motion, characterizing it as an attempt by the defense to gain by direct examination what had been denied previously, after having had a "fully utilized" opportunity for cross-examination. The court stated it had "reviewed all the letters in question and has found that none of them contain any relevant material which would be of aid to the jury. The letters contain no information which in any way contradicts the testimony of the two individuals while on the witness stand but at best show their attempts at jailhouse bravado."

[28] A defendant's State and federal constitutional rights to confront the witnesses against her include the right to inquire on cross- examination into a witness's motives for testifying in order to attack his credibility. State v. Brown, 132 N.H. 520, 524 , 567 A.2d 544, 546 (1990); see State v. Benoit, 126 N.H. 6, 21, 490 A.2d 295, 306 (1985); see also Davis v. Alaska, 415 U.S. 308, 316 (1974). For a trial Judge to completely bar cross-examination in a proper area of inquiry violates the right of confrontation. State v. Chaisson, 123 N.H. 17, 32-33, 458 A.2d 95, 104 (1983). Once a defendant has been permitted a threshold level of inquiry, however, the constitutional standard is satisfied, and the Judge's limiting of cross-examination is measured against an abuse of discretion standard. Brown, 132 N.H. at 524, 567 A.2d at 547.

[29] Furthermore, once a witness has left the stand, "he cannot be recalled without the permission of the Court." Super. Ct. R. 69. "Our case law supports the discretion of the trial court in this matter." State v. Duff, 129 N.H. 731, 736, 532 A.2d 1381, 1384 (1987). To constitute an abuse, the court's discretion must have been exercised for reasons "clearly untenable or unreasonable to the prejudice of [the defendant's] case." State v. Gooden, 133 N.H. 674, 677, 582 A.2d 607, 609 (1990); see Duff, supra at 737, 532 A.2d at 1385 (no abuse of discretion where defense counsel had "ample opportunity to cross- examine the witness").

The record here shows that the defendant was not prohibited from cross-examining Flynn and Lattime in areas relevant to impeach their credibility through exposing their motives for testifying. Defense counsel conceded as much at trial. Although he argued that the letters contained "new information," he acknowledged, "Are there new issues that we want to talk about with these gentlemen? I think not. It goes to issues they talked about." According to the defendant, the letters imply that the boys had the opportunity to talk with each other in jail, supporting her theory that they collaborated to fabricate their testimony against her. They also show, according to the defendant, Flynn's obsession with her and lack of remorse, and portray a colder individual than Flynn displayed on the stand. A review of the extensive cross-examination of Flynn, Lattime and Randall reveals that all of these areas had been explored. All testified that they had talked about the case and admitted that part of their motivation in cooperating with the State was out of loyalty to each other. Flynn admitted his obsession with the defendant, and also admitted that within days of the murder he participated in an unrelated burglary and committed theft. Lattime testified about laughter in the car on their way home to Seabrook after the murder and about how he and Flynn had laughed on their way to the youth detention center after being arraigned for first degree murder.

[30, 31] We hold that the trial Judge acted within his discretion in refusing to allow the witnesses to be recalled for further cross-examination on this thoroughly trodden ground. The defendant's additional argument for the right to recall the witnesses in her case-in- chief raises no basis, distinct from the cross-examination claim, to rule otherwise. The right to produce favorable proofs under part I, article 15 does not grant the right to present cumulative testimony, State v. Adams, 133 N.H. 818, 826, 585 A.2d 853, 857 (1991), nor does the federal guarantee of due process afford such a right, see Washington v. Texas, 388 U.S. 14, 16, 23 (1967) (right to compulsory process denied when State "arbitrarily denied" right to put on stand witness "vital to the defense").

VIII. Conclusion

[32] Finally, the defendant urges us to reverse on the theory that, although the errors complained of may not standing alone require reversal, their cumulative effect was sufficiently prejudicial to warrant a new trial. This argument is predicated, however, on the existence of error in the first instance. As we have found none, the argument fails.