State v. Fichera
| Decision Date | 17 September 2010 |
| Docket Number | No. 2009–357.,2009–357. |
| Citation | 160 N.H. 660,7 A.3d 1151 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Daniel FICHERA. |
Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial, the defendant, Daniel Fichera, was convicted of second degree assault. On appeal, he contends that the Trial Court (Brown, J.) erred in imposing an enhanced sentence pursuant to RSA 651:2, II-g (2007). We affirm.
The record supports the following facts. The defendant separated from the victim, his wife, in 2003. Several months later, the victim agreed to meet the defendant to discuss obtaining a variance to a parcel of property that they owned jointly, which they accessed through a neighbor's driveway. When the victim arrived at the defendant's home, she agreed to drive with him in his recreational vehicle (RV) to the parcel; she thought that she and the defendant were going to meet with the neighbor at the neighbor's house. When they arrived at the neighbor's house, the house was dark. The defendant stated that the neighbor would be along soon and that they should wait at the parcel; he suggested they have a picnic while waiting. As time passed and the neighbor did not arrive, the defendant became more agitated. He asked the victim to write on a piece of paper that she was an adulterous woman. He then retrieved a shotgun from the RV. When the victim attempted to leave, the defendant grabbed her and pushed her into the RV. When she again tried to leave, he blocked her. Subsequently, he pulled a pair of handcuffs and duct tape from a bag and attempted unsuccessfully to handcuff the victim. After some time, as the sun was setting, the victim told him she had to leave. He told her, "Woman, I love you so much ... but you're gonna die." He then shot her in the chest. As she attempted to escape, he caught her and, using the rifle as a club, beat her on the back of her head and the back of her shoulders. When the defendant ran back to the RV, the victim was able to escape to a neighbor's house.
The defendant was subsequently indicted on charges of attempted murder, first degree assault, and kidnapping. The attempted murder indictment alleged that he "did shoot [the victim] in the chest with a shotgun." The first degree assault indictment alleged that he caused bodily injury to the victim by "strik [ing her] in the head with the butt end of a shotgun."
Near the end of trial, the court and counsel discussed jury instructions, including lesser included offense instructions. The defendant argued, inter alia, that as to the attempted murder charge, the evidence was insufficient to support an instruction on first degree assault as a lesser included offense, but was sufficient to support an instruction on second degree assault. The court instructed the jury on second degree assault as a lesser included offense of attempted murder. The defendant was convicted of second degree assault. The trial court, after finding "that the jury could only have found the defendant guilty of the lesser included second-degree assault if they also found that he used a firearm," imposed an enhanced sentence pursuant to RSA 651:2, II-g.
On appeal, the defendant argues that, in order to seek an enhanced sentence, the State was required either to indict him for second degree assault with a firearm or to sufficiently charge the firearm enhancement in the attempted murder indictment. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he contends that because no indictment alleged the firearm enhancement, the trial court had no authority to impose the enhanced sentence. In addition, he cites the trial court's failure to instruct the jury that in order to convict him of second degree assault, it had to find that he used a firearm. The defendant contends that, absent a specific finding by the jury that he used a firearm, the enhancement statute is not applicable. We note that the defendant does not cite a provision of the State Constitution; we therefore confine our constitutional analysis to the requirements of the Federal Constitution. See State v. Lamarche, 157 N.H. 337, 340, 950 A.2d 172 (2008).
We begin with the defendant's argument that Apprendi requires the State to have charged this sentencing enhancement factor in an indictment. We will assume both that Apprendi sets forth requirements for indictments in state prosecutions, compare State v. Ouellette, 145 N.H. 489, 491, 764 A.2d 914 (2000) (), with Williams v. Haviland, 467 F.3d 527, 531–32 (6th Cir.2006) (), and that the indictments failed to adequately allege use of a firearm. We agree with the State, however, that this error is subject to harmless error review under the Federal Constitution. See Washington v. Recuenco, 548 U.S. 212, 218–22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). An Apprendi violation concerning an omission from an indictment may constitute harmless error where the evidence is overwhelming that the grand jury would have found the fact at issue. See United States v. Confredo, 528 F.3d 143, 156 (2d Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1654, 173 L.Ed.2d 1025 (2009).
Here, the grand jury returned an indictment for attempted murder that...
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