## Facts

- Yvonne Fine was found dead in her Concord, New Hampshire home on September 7, 1981.
- The autopsy attributed death to strangulation and noted bruising consistent with possible sexual assault.
- Police interviewed Joseph Whittey shortly after the homicide; he denied killing Fine.
- In 1993, a serologist determined a usable semen sample remained on Fine’s pajama pants, which were preserved.
- In 1999, the State submitted evidence for forensic testing, including the pajama pants and a slipper.
- A forensic laboratory performed PCR-based short tandem repeat (STR) DNA profiling and concluded that DNA in semen stains on the pajama pants and slipper matched Whittey’s DNA profile.

## Issues

1. Whether the trial judge was required to recuse because she previously worked in the Attorney General’s Office during the homicide investigation.
2. Whether an indictment for first-degree murder “in the course of rape” was invalid because the separate statutory provisions defining “rape” had been repealed before the 1981 homicide.
3. Whether PCR-based STR DNA testing was admissible as scientific evidence under a general-acceptance standard.

## Decision

- The Supreme Court of New Hampshire affirmed the conviction for first-degree murder in the course of rape.
- The court held the trial judge did not err in declining to recuse because prior employment, without personal participation or knowledge of disputed facts, did not show actual bias or a reasonable appearance of bias.
- The court upheld the indictment, concluding the legislature’s failure to revise the murder statute’s use of the word “rape” after recodification of sexual-offense statutes was a drafting oversight that did not nullify the predicate felony provision.
- The court upheld admission of PCR-based STR DNA evidence, concluding the methods and techniques were generally accepted in the relevant scientific community and the trial court did not abuse its discretion after a multi-day evidentiary hearing.

## Legal Principles

- Judicial disqualification requires a showing of actual bias or an objectively reasonable appearance of bias; prior employment in a prosecutorial office, without direct involvement in the case, is insufficient.
- When statutory terminology is not updated after recodification, courts may treat the omission as a legislative drafting error and construe the statute to preserve the intended substantive coverage where the conduct remains criminal under the revised statutory scheme.
- Scientific evidence is admissible under a general-acceptance approach when the proponent shows the relevant methodology is generally accepted in the pertinent scientific community, including through expert testimony and scientific literature; the trial court’s reliability determination is reviewed for abuse of discretion.

## Conclusion

The court affirmed Whittey’s conviction, rejecting claims that the judge was disqualified, that the “rape” predicate in the murder statute was unenforceable due to statutory repeal and recodification, and that PCR-STR DNA profiling lacked general acceptance for admissibility.


State v. Whittey, 149 N.H. 463, 821 A.2d 1086 (N.H. 2003)