By Tom Jarvis
In a historic jury verdict, William Kelly became the first person in New Hampshire to be convicted under the state’s 2018 fetal homicide law.
A Carroll County Superior Court jury convicted Kelly, 40, on July 9 of two counts of second-degree murder for the December 17, 2023, deaths of his girlfriend, Christine Falzone, 33, and her fetus. The evidence showed that Falzone was between 35 and 37 weeks pregnant at the time of her death.
On August 10, Judge Mark Attorri sentenced Kelly to two consecutive terms of 40 years to life, leaving him with an aggregate minimum sentence of 80 years.
The conviction marked the first successful application of a change to New Hampshire’s homicide statutes that took effect in 2018. The amendment expanded the meaning of “another” under RSA 630:1-b, which prohibits causing the death of another either knowingly or recklessly, to include a fetus beginning at the end of the 20th week after conception.
The law applies to first- and second-degree murder, manslaughter, negligent homicide, and causing or aiding suicide. It also contains exemptions for conduct by the pregnant woman, conduct undertaken at her direction or for her benefit, and certain medical procedures and treatment.
Michael Garrity, director of communications and external affairs for the New Hampshire Attorney General’s Office, says the case involved separate charges for two victims.
“Evidence needed to be presented at trial establishing the cause and manner of death for each individual victim, as well as how the defendant caused each of those deaths,” Garrity says. “The medical evidence introduced at trial established that the fetal cause of death was maternal death.”
Although the same act ultimately caused both deaths, Garrity says the case was “more akin to a double homicide prosecution.”
Both charges alleged reckless second-degree murder. Under RSA 630:1-b, the State was required to prove that Kelly recklessly caused the death of another under circumstances manifesting an extreme indifference to the value of human life.
For the charge involving Falzone’s fetus, the State also had to establish gestational age.
“This definition required us to prove the additional element of gestational age for the charge related to Christine’s unborn child,” Garrity says, noting that the deputy chief medical examiner conducted a fetal autopsy and determined the gestational age to be between 35 and 37 weeks.
The case also presented a question about what Kelly was required to know.
Before trial, the State requested an instruction informing jurors that they did not have to find that Kelly knew of the existence of Falzone’s fetus in order to find that he recklessly caused the death. The defense objected, but the court ruled in the State’s favor and gave the instruction.
From Lamy to the Legislature
The statutory change followed a 2009 New Hampshire Supreme Court decision that identified a gap in the state’s homicide laws.
In State v. Lamy, 158 N.H. 511 (2009), Joshua Lamy had been convicted after driving while intoxicated and crashing into a taxi carrying a pregnant woman. Her child was delivered by emergency cesarean section following the crash, placed on life support, and died approximately two weeks later.
At the time, New Hampshire’s homicide statutes expressly excluded a fetus from the definition of “another.” The Supreme Court concluded there was insufficient evidence that the child had displayed spontaneous signs of life following delivery and reversed Lamy’s manslaughter and negligent homicide convictions related to the child.
The Court acknowledged that the “born alive” doctrine could produce difficult results, but said changing the law was a matter for lawmakers.
“Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus,” the Court wrote.
Efforts to enact a fetal homicide statute continued for years. The Legislature ultimately passed Senate Bill 66 in 2017, sponsored by then-Senator Regina Birdsell (R), with the new provisions taking effect January 1, 2018.
Birdsell told the New Hampshire Bulletin in 2024 that repeated versions of the legislation had been negotiated over the years before one finally passed.
“All the stars aligned,” Birdsell said. “With each iteration, we massaged it a little and finally got something through.”
Opponents of SB 66 expressed concern during the legislative debate about the potential implications of recognizing a fetus as a victim under homicide law. The American Civil Liberties Union of New Hampshire (ACLU-NH) instead supported enhanced penalties for conduct causing a miscarriage or stillbirth without changing the definition within the homicide statutes.
“Every time a court rules under a fetal homicide law, there is the potential to create legal precedent recognizing that a fetus has the same rights as a born person,” ACLU-NH Executive Director Devon Chaffee said in a 2024 interview with the New Hampshire Bulletin.
Birdsell, however, said after Kelly’s July conviction that the prosecution represented the circumstances she intended the legislation to address.
“Unfortunately, situations like this happen, and this is precisely why I put the bill in,” Birdsell told NH Journal.
A Second Trial
Kelly’s July conviction came after an earlier attempt to try the case ended in a mistrial.
His first trial began in November 2025 but ended in a mistrial after testimony raised concerns involving Kelly’s constitutional right to remain silent. The State subsequently retried the case.
Garrity says retrials present considerations beyond those encountered when witnesses are testifying for the first time.
“Witnesses at the first trial have already given sworn testimony under oath, and both parties need to be acutely aware of consistencies and/or inconsistencies as testimony from those same witnesses is introduced at the retrial,” he says.
At the second trial, prosecutors argued that Kelly inflicted the injuries that killed Falzone and, as a result, her unborn child. New Hampshire Public Defender attorney Katherine Canny challenged the State’s theory during opening statements.
“This case is about a rush to judgment,” Canny said, according to the Conway Daily Sun.
The jury returned guilty verdicts on both second-degree murder counts.
The Public Defender declined to comment while the case remains pending on appeal.
At sentencing, Judge Attorri imposed separate consecutive sentences for the two convictions. Falzone’s aunt, Tiffany Marcos, spoke about the effect of the deaths on the family and the significance she believed the case would have for future victims.
Falzone and her unborn child “are going to be the storms that clear the path in the state of New Hampshire for every victim’s case coming forward,” Marcos said during the hearing, according to WMUR.
Marcie Hornick of the Grafton County Attorney’s Office says her office generally supports the fetal homicide statute, including its exemptions.
“This case shows that the state of New Hampshire takes domestic violence cases seriously and that consideration for victims reaches beyond those who may seem the most obvious – here the unborn child,” Hornick says.
Garrity points to the Legislature’s stated purpose in changing the law after Lamy.
“The legislature’s statement of intent in passing the 2018 amendment made clear that they wished to provide an avenue to protect pregnant women and their unborn children and to serve justice for families who have lost an unborn child due to the criminal acts of a third party,” he says.