State v. Glanville, 98-450
| Decision Date | 28 December 2000 |
| Docket Number | 98-450 |
| Citation | 765 A.2d 173 |
| Parties | THE STATE OF NEW HAMPSHIRE v. CHARLES GLANVILLETHE SUPREME COURT OF NEW HAMPSHIRE |
| Court | New Hampshire Supreme Court |
Grafton
Philip T. McLaughlin, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State.
Risa Evans, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Charles Glanville, was convicted after a jury trial in Superior Court (Lynn, J.) of attempted armed robbery. See RSA 629:1 (1996) (amended 1999); RSA 636:1 (1996). On appeal, he argues that the trial court erred by improperly amending his indictment, and by denying his motion to suppress evidence. We reverse and remand.
The defendant was charged with attempted armed robbery. The indictment alleged that the defendant [p]urposely, in the course of attempting to commit a theft, entered the Bank of New Hampshire building on Main Street, Littleton, New Hampshire armed with a "BB gun, [sic] which reasonably appeared to be a deadly weapon, as well as a note saying, "Give me all your money or I'll shoot", while wearing a mask which obscured his face, which note was intended to threaten another with the imminent use of physical force, all of which, under the circumstances as the defendant believed them to be, was an act or omission constituting a substantial step toward the commission of the crime of robbery.
Prior to trial, the defendant moved to strike from the indictment the language, "armed with a BB gun, which reasonably appeared to be a deadly weapon," arguing that under RSA 636:1, III, the State was required to prove that the defendant was actually armed with a deadly weapon. The State moved to amend that language to read, "armed with a BB gun, so that he would reasonably appear to the victim to be armed with a deadly weapon." The superior court denied the motion to amend, reasoning that it "could be argued [that the amendment was] more than a matter of form." The court ruled that as originally drafted, the indictment sufficiently charged the defendant with the class A felony of attempted armed robbery. The court concluded that to prevail at trial, the State would be required to prove: (1) that the defendant had the specific intent or conscious object to (a) commit a theft from the bank, (b) by threatening another person with fear of immediate physical force, (c) through use of a BB gun that the other person would reasonably believe was a deadly weapon, and (2) that the defendant engaged in conduct which constituted a substantial step toward the effectuation of this plan.
The trial court's jury charge accorded with this instruction. The defendant was convicted of attempted armed robbery, and this appeal followed.
The defendant argues that the trial court constructively amended the indictment. Although the trial court denied the State's motion to amend, the defendant argues that by subsequently instructing the jury that the State must show the defendant specifically intended to use a BB gun that another person would believe to be a deadly weapon, the court added an element that was absent from the indictment as originally drafted. Thus, the defendant argues that the trial court effectively permitted an amendment of substance in violation of Part I, Article 15 of the New Hampshire Constitution. The State counters that the trial court did not amend the indictment, but rather clarified its allegations.
Part I, Article 15 protects a defendant from being convicted of a crime not charged in an indictment. See State v. Elliot, 133 N.H. 759, 764, 585 A.2d 304, 307 (1990). Thus, "a trial judge cannot freely amend indictments brought on the oath of a grand jury." State v. Prevost, 141 N.H. 559, 560, 689 A.2d 121, 122 (1997).
An impermissible amendment would be one that effects a change in the offense charged, or adds an offense. Because an element of the offense charged is automatically considered part of the substance of an indictment, instructing the jury on an element not charged by the grand jury substantively changes the offense and therefore is grounds for automatic reversal.
Id. (). A trial judge may, however, amend the form of an indictment as "such amendments do not jeopardize the right to be tried only on charges that have been passed on by a grand jury." Elliot, 133 N.H. at 764, 585 A.2d at 307 (quotation omitted); see RSA 601:8 (1986).
The defendant's argument requires that we determine what the grand jury charged, and whether the trial court's instruction "supplied what was otherwise a legal insufficiency or changed what the grand jury had returned under oath." State v. Settle, 132 N.H. 626, 631, 570 A.2d 895, 898 (1990).
The true test [of an indictment's sufficiency] is not whether the indictment could possibly be made more definite and certain but rather whether it alleges every element of the offense charged in language sufficiently definite to apprise the [defendant] of what [he or she] must be prepared to meet for trial.
Id. (quotation omitted).
The indictment in this case charged the defendant with attempted armed robbery, a class A felony. Robbery is elevated from a class B to a class A felony where the defendant: "(a) Was actually armed with a deadly weapon; or (b)...
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