State v. Glenn

• Decision Date: 20 July 2010
• Docket Number: No. 2008–912.,2008–912.
• Citation: 160 N.H. 480,9 A.3d 161
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Charles GLENN, Jr.

160 N.H. 480

9 A.3d 161

The STATE of New Hampshire

v.Charles GLENN, Jr.

No. 2008–912.

Supreme Court of New Hampshire.

Argued: Feb. 17, 2010.

Opinion Issued: July 20, 2010.

Michael A. Delaney, attorney general(Karen E. Huntress, assistant attorney general, on the brief, and Peter Hinckley, assistant attorney general, orally), for the State.

Kenna & Sharkey, P.A., of Manchester, and Bookman & Al–Marayati of Melrose, Massachusetts (Bruce E. Kenna on the brief, and Ghazi D. Al–Marayati orally), for the defendant.

HICKS, J.

In this interlocutory appeal, seeSup.Ct. R. 8,the defendant, Charles Glenn, Jr., challenges the rulings of the Superior Court(Barry, J.) denying his: (1)motion to dismiss all pending indictments on the basis of double jeopardy; (2)motion to dismiss based upon prosecutorial misconduct; and (3)motion in limine to exclude evidence of robbery.We affirm and remand.

The following facts are taken from the interlocutory appeal statement and the trial court's orders, or are undisputed.On January 20, 2006, a grand jury indicted the defendant on alternative counts of first degree murder, seeRSA 630:1–a (2007), and second degree murder, seeRSA 630:1–b (2007).The first degree murder indictment alleged that the defendant"did knowingly cause the death of Leonard Gosselin before, after, while engaged in the commission of, or while attempting to commit robbery while armed with a deadly weapon, to wit, a gun, by shooting Leonard Gosselin in the back with that deadly weapon."The second degree murder indictment alleged that the defendant"did recklessly cause the death of Leonard Gosselin under circumstances manifesting an extreme indifference to the value of human life by shooting him in the back with a gun."Both indictments had been obtained based, in part, upon the perjured grand jury testimony of a critical eyewitness, Joseph Salvatore.

At trial, the State's proof that the defendant shot and killed Gosselin depended heavily upon the testimony of Salvatore.The trial court found that during the investigation, "Salvatore repeatedly lied to the State."Immediately after the shooting, Salvatore told police that he came upon an argument between the victim and an unknown black male, and watched the black male grab the victim's gold chain and shoot him.Five days later, on September 4, 2005, he admitted that he and the victim had driven together to a housing complex to conduct a pre-arranged drug purchase.He informed police that when they arrived at the complex, the victim climbed out of the vehicle and a black male meeting the defendant's description approached and then shot him.In January 2006, Salvatore testified before the grand jury, providing a similar account to the one he gave on September 4, 2005.

On July 10, 2006, before the start of trial but after jury selection, Salvatore spoke with the police again and provided a different version of the shooting.Most notably, he stated that the shooting occurred inside his car and that the victim may have reached for a gun before being shot.He also stated that he purchased a 9–mm handgun and applied for a permit to carry the handgun as a concealed weapon after the shooting.

The State informed the defendant and the trial court of Salvatore's new version of events and moved for a continuance of the trial in order to re-indict the defendant based upon Salvatore's newest account of the circumstances surrounding the shooting.Concurrently, the defendant moved to dismiss the indictments, arguing that Salvatore perjured himself before the grand jury, and that this perjury produced the indictments against him.Alternatively, the defendant argued that the State should be precluded from presenting Salvatore's testimony.The trial court denied both parties' motions and a jury trial was held from July 11–31, 2006.

At trial, Salvatore testified consistently with the statement he gave on July 10, 2006.The defendant's trial theory was that Salvatore shot the victim.During cross-examination, defense counsel questioned Salvatore about the different versions of the circumstances surrounding the shooting, his police statements, and his perjured grand jury testimony.Defense counsel elicited from Salvatore that he purchased his gun after the shooting and applied for a permit to carry a concealed weapon because he feared for his life.Salvatore also stated that he did not own a gun prior to the shooting.

At the close of trial, the court instructed the jury to first consider the indicted charges of first degree murder and reckless second degree murder, and to then consider the lesser-included offenses of knowing second degree murder and manslaughter.The defendant assented to these lesser-included instructions.After five days of deliberations, the jury acquitted the defendant of first degree murder, but deadlocked on the reckless second degree murder charge.The defendant moved for a mistrial, which the court granted.

Subsequently, the defendant requested a copy of Salvatore's concealed handgun permit application, which the State then produced.The application indicated that Salvatore applied for the permit on August 5, 2005, three-and-a-half weeks before the victim's death.The defendant contends that Salvatore lied at trial when he said that he did not apply for a permit until after the shooting.

On October 23, 2006, the grand jury returned an indictment on two alternative charges of second degree murder.The first alleged reckless second degree murder, identical to the charge upon which the first jury deadlocked.The second indictment alleged knowing second degree murder; specifically, that the defendant"did commit the crime of Second Degree Murder ( RSA 630:1–b ) in that [he] did knowingly cause the death of Leonard Gosselin by shooting Leonard Gosselin in the back with a gun."Subsequently, the defendant filed: (1) a motion to dismiss all pending indictments because the indictments alleged the same offense of which the jury acquitted him during the prior trial; (2) a motion to dismiss based on prosecutorial misconduct; and (3) a motion in limine to exclude evidence of robbery.The trial court denied all three motions and the defendant filed this interlocutory appeal.

I.Double Jeopardy

On appeal, the defendant first argues that the Double Jeopardy Clauses of the United States and the New Hampshire Constitutions, seeU.S. CONST. amend. V;N.H. CONST. pt. I, art. 16, prohibit his retrial because he was tried and acquitted of first degree murder in July 2006.He contends that the alternative indictments for reckless second degree murder and knowing second degree murder constitute the same offense of which the jury acquitted him during the prior trial.Because the defendant's argument presents a question of constitutional law, our review is de novo.State v. Flood,159 N.H. 353, 355, 986 A.2d 626(2009).We first address the defendant's claim under the New Hampshire Constitution, State v. Ball124 N.H. 226, 231, 471 A.2d 347(1983), and cite federal opinions for guidance only, id. at 232–33, 471 A.2d 347.

Part I, Article 16 of the New Hampshire Constitution protects against "successive prosecutions for the same offense after acquittal or after conviction, and against multiple punishments for the same offense."Petition of State of N.H.(State v. Johanson),156 N.H. 148, 156, 932 A.2d 848(2007)(quotation omitted)."Two offenses will be considered the same for double jeopardy purposes unless each requires proof of an element that the other does not."State v. McGurk,157 N.H. 765, 773, 958 A.2d 1005(2008)(quotation and brackets omitted).When applying this double jeopardy test, our focus is upon "whether proof of the elements of the crimes as charged will in actuality require a difference in evidence."State v. Hannon,151 N.H. 708, 713, 867 A.2d 426(2005)(quotation omitted).We analyze and compare "the statutory elements of the charged offenses in light of the actual allegations contained in the indictments."Id.(quotation omitted).

We first address whether the defendant can be retried for reckless second degree murder after being acquitted of first degree felony murder, focusing upon the elements of each offense charged.SeeState v. Nickles,144 N.H. 673, 677–78, 749 A.2d 290(2000)(noting that "when a mistrial is granted on one charge due to jury deadlock, an acquittal on the other does not, in itself, bar retrial for the deadlocked charge because jury deadlock prevents original jeopardy from terminating on that charge").Here, the second degree reckless murder indictment as charged requires proof of a different mens rea from that of the first degree felony murder indictment.To convict the defendant of the second degree reckless murder charge, the State has to prove that he"recklessly cause[d] the death of Leonard Gosselin under circumstances manifesting an extreme indifference to the value of human life."In comparison, to obtain a conviction on the first degree murder indictment, the State had to establish that the defendant"knowingly cause[d] the death of Leonard Gosselin."A person acts knowingly when "he is aware that it is practically certain that his conduct will cause a prohibited result."State v. Bergen,141 N.H. 61, 63, 677 A.2d 145(1996)(quotation omitted).

Additionally, to convict the defendant of first degree felony murder, the State had to prove that the defendant caused the death of Gosselin "before, after, while engaged in the commission of, or while attempting to commit robbery while armed with a deadly weapon."The reckless second degree murder charge did not include this element.Accordingly, the two charges required different evidence.

Next, we address whether the defendant's retrial on the knowing second degree murder indictment violates the double jeopardy doctrine.The fact that knowing second degree murder is a lesser-included charge of first degree felony murder is not dispositive.Most courts find that a defendant may be retried...