State v. Bailey

• Decision Date: 11 April 1986
• Docket Number: No. 85-079,85-079
• Citation: 127 N.H. 811,508 A.2d 1066
• Parties: The STATE of New Hampshire v. Ralph BAILEY.
• Court: New Hampshire Supreme Court

Page 1066

508 A.2d 1066

127 N.H. 811

The STATE of New Hampshire v.Ralph BAILEY.

No. 85-079.

Supreme Court of New Hampshire.

April 11, 1986.

Stephen E. Merrill, Atty. Gen. (Bradford W. Kuster, attorney, on brief and orally), for the State.

New Hampshire Public Defender, Concord (Sheldon Mirkin on brief and orally), for defendant.

BROCK, Justice.

The defendant, Ralph Bailey, was charged with two counts of manslaughter, RSA 630:2, I(b)(Supp.1983), and convicted of negligent homicide, RSA 630:3(1974)(current version at Supp.1985), on both counts.He was sentenced by the Trial Judge (Dalianis, J.) to two consecutive terms of imprisonment.He appeals both from the convictions and from the imposition of consecutive sentences.For the reasons stated below, we affirm.

On July 30, 1982, the defendant, while driving drunk, struck a vehicle driven by Susan Beaulieu.As a result, her children Kathryn and Nathan, passengers in the car, were killed.The defendant was indicted for and tried on two counts of manslaughter.The jury convicted him of two counts of negligent homicide.He was thereafter sentenced to two consecutive terms of three and one-half to seven years.

The defendant raises three issues on appeal.First, he maintains that prosecution or conviction on two counts of manslaughter or negligent homicide arising from only one act violates the double jeopardy clause of the New Hampshire Constitution.N.H. CONST. pt. I, art. 16.Second, the defendant asserts that consecutive sentencing in this case violates the federal double jeopardy clause, U.S. CONST. amends. V, XIV, because it exceeds the maximum punishment intended by the legislature.Finally, he argues that consecutive sentencing in the absence of clear legislative intent violates "applicable principles of statutory construction."

The defendant first argues that since he committed only one negligent act, that of driving an automobile while intoxicated, he may be prosecuted on and convicted of only one count of manslaughter or negligent homicide in spite of the fact that his negligent act caused more than one death.He grounds this argument solely on our State Constitution's double jeopardy clause.We thus consider only the State Constitution and cases interpreting it, though we may employ decisions from other jurisdictions as aids in our analysis.

In prior cases, we have enunciated two formulae for determining whether a defendant was twice tried and convicted for the same offense, to wit: the same evidence test, seeState v. Gosselin, 117 N.H. 115, 118, 370 A.2d 264, 267(1977) and the same in law and fact test, seeState v. Heinz, 119 N.H. 717, 720, 407 A.2d 814, 816(1979).

In Heald v. Perrin, 123 N.H. 468, 464 A.2d 275(1983), we stated that "the 'same evidence' and 'same in law and fact' tests have been virtually identical as applied in this State."Id. at 472, 464 A.2d at 277.We went on in that case to note that: "it is clear ... that whether the 'same evidence' or 'same in law and fact' tests have been employed, inquiry in each case has centered on what evidence will be required at trial to prove the elements of the crimes[,]"id. at 473, 464 A.2d at 278, and held that "the benchmark of the double jeopardy test in this State [is] an inquiry focusing on whether proof of the elements of the crimes as charged will in actuality require a difference in evidence."Id.(Emphasis in original.)Thus, the question for decision becomes whether the deaths of two individuals resulting from one episode of drunken driving give rise to one offense or two offenses requiring a difference in proof under the statute.

Other jurisdictions are divided on this issue, some holding that a defendant may be convicted on only one count of negligent homicide under these circumstances, see, e.g., People v. Holtz, 19 Ill.App.3d 781, 313 N.E.2d 234(1974)(involuntary manslaughter), and others holding that a defendant may be tried and convicted on as many counts as there are victims, see, e.g., State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809(1980).The weight of authority, however, seems to support the latter position.Id. at 74-76, 291 N.W.2d at 821-22.

We believe that the essential question is whether "the facts charged in the second indictment would, if true, have sustained the first."State v. Sias, 17 N.H. 558, 559-60(1845).See alsoState v. Smith, 98 N.H. 149, 150, 95 A.2d 789, 791(1953).An indictment charging the defendant with causing the death of Nathan Beaulieu obviously could not have been used to convict him of causing the death of Kathryn Beaulieu, and vice versa.The common-sense notion that two deaths should support two convictions is reinforced by the plain language of the statute: "A person is guilty of a class B felony when he causes the death of another: ... [n]egligently; or [i]n consequence of his being under the influence of intoxicating liquor or controlled drug while operating a propelled vehicle, as defined in RSA 637:9, III ..."RSA 630:3(1974)(current version at Supp.1985)(emphasis added).We note in passing that the statute has been amended in a manner irrelevant to the questions at issue in this case.The phrase "death of another" indicates to us that the legislature intended that the death of more than one person under the circumstances described in the statute could result in multiple charges of negligent homicide.Were this not so, we believe that the legislature would have indicated its intention by phrasing the statute differently, e.g., "causes the death of one or more persons," or the like.Given that each count requires proof of a fact not necessary to the other, we hold that the defendant has not been placed in jeopardy twice for the same offense.

Defendant next argues that imposition of multiple consecutive sentences on two counts of negligent homicide exceeds the maximum punishment intended by the legislature, thereby violating the double jeopardy clause of the Fifth Amendment to the United States Constitution.

The federal double jeopardy clause protects a defendant's rights in three ways: "First, it protects against a second prosecution for the same offense after an acquittal.Second, it protects against a second prosecution for the same offense after a conviction.Third, it protects against multiple punishments for the same offense."Whalen v. United States, 445 U.S. 684, 700, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715(1980)(Rehnquist, J., dissenting)(citations omitted).It is the third of these categories of protection which is involved here.More specifically, we seek to discover what the legislature intended the correct scope and level of prosecution to be under RSA 630:3(1974)(current version at Supp.1985) in a case of this sort.SeeBell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905(1955).

Determination of the proper unit of prosecution is a function of the legislature's intent.SeeBell, supra at 82, 75 S.Ct. at 621.Thus, the touchstone of whether the double jeopardy clause is violated in this context is the legislature's articulated intent, seeAlbernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275(1981), and the so-called rule...