State v. Haines

• Decision Date: 26 March 1998
• Docket Number: No. 96–265.,96–265.
• Citation: 709 A.2d 762,142 N.H. 692
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Robert E. HAINES.

142 N.H. 692

709 A.2d 762

The STATE of New Hampshire

v.Robert E. HAINES.

No. 96–265.

Supreme Court of New Hampshire.

March 26, 1998.

Rehearing Denied April 23, 1998.

Steven M. Houran, Acting Attorney General (Ann M. Rice, Senior Assistant Attorney General, on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

Robert E. Haines, by brief, pro se.

THAYER, Justice.

The defendant, Robert E. Haines, appeals his convictions of felonious reckless conduct, RSA 631:3, II (1996), and felonious use of body armor, RSA 650–B:2 (1996) (amended 1996). The defendant also appeals the Trial Court's (Conboy , J.) finding that RSA 651:2, II–g (1996) (amended 1996) requires the imposition of a mandatory prison sentence of three to six years. We affirm.

The defendant campaigned for president in February 1995. He traveled by truck with his wife and infant son from Washington, D.C. to Manchester that same month. During the evening of February 18, the defendant entered the Salty Dog restaurant and bar to continue his campaigning. While handing out political leaflets, the defendant encountered Kevin Lavigne, a patron of the Salty Dog. Following a brief conversation, Lavigne ripped one of the defendant's political leaflets and scattered the pieces to the floor. At this point, the defendant left the bar. From the sidewalk, the defendant motioned for Lavigne to step outside. Lavigne accepted. After some pushing between the two men, an employee of the bar separated them. The defendant, however, sought out a nearby police officer. The defendant told the officer, Robert Oxley, that he had been assaulted. After investigating the incident, Officer Oxley informed the defendant that he did not believe an assault had occurred. The defendant then became upset with Officer Oxley and reported his failure to take action in a "911" telephone call.

A short time later, two other patrons of the bar, Christian Busch and Jeffrey Meyer, exited the Salty Dog looking for a friend who was supposed to meet them. Busch crossed the street and walked toward an individual he thought was his friend. The defendant, observing Busch, simultaneously went to his truck and retrieved a rifle. The defendant chambered a round into the rifle by pumping the barrel once. He approached Busch, aimed the gun at him, and put his hands in a position ready to fire. Busch saw the rifle and ran away. The rifle was operational and loaded with four bullets at the time the defendant approached Busch. Officer Oxley, who, still in the area, witnessed the defendant's actions, ordered the defendant to disarm and assume a prone position. Officer Oxley then placed the defendant under arrest. During a pat-down search of the defendant, the police discovered that he was wearing body armor, specifically, a bullet-proof vest.

At trial, the defendant contended that he wore the body armor because he was a candidate for president. He further argued that he had drawn his weapon in self-defense after Busch allegedly charged at him in the street. The jury convicted the defendant of reckless conduct and felonious use of body armor. See RSA 631:3 ; RSA 650–B:2.

The trial court denied both the defendant's motion to set aside the verdict and request for a mistrial based on the State's closing argument. He appeals his conviction and sentence on numerous grounds. We address his arguments in turn.

I. Application of the Minimum Mandatory Sentence

The defendant first asserts that the legislature did not intend RSA 651:2, II–g, requiring a minimum mandatory sentence, to apply to reckless conduct. We disagree.

When interpreting a statute, we first look to the language of the statute itself. State v. Hart , 130 N.H. 325, 326, 540 A.2d 859, 859 (1988). The legislature added RSA 651:2, II–g to the sentencing guidelines in 1990. The statute states:

If a person is convicted of a felony, an element of which is the possession, use or attempted use of a deadly weapon, and the deadly weapon is a firearm ... [h]e shall be given a minimum mandatory sentence of not less than 3 years' imprisonment for a first offense....

RSA 651:2, II–g. Here, the jury found the defendant guilty of a felony—reckless conduct. RSA 631:3, II provides: "Reckless conduct is a class B felony if the person uses a deadly weapon as defined in RSA 625:11, V. All other reckless conduct is a misdemeanor." Thus, an element of the felony was the use of a deadly weapon, and the deadly weapon used by the defendant was a firearm. We fail to see any ambiguity in RSA 651:2, II–g. In fact, a clearer version of this statute is hard to imagine. Its meaning is not subject to judicial construction or revision. See Appeal of Hickey, 139 N.H. 586, 587, 660 A.2d 1098, 1099 (1995) ; State v. Dushame, 136 N.H. 309, 314, 616 A.2d 469, 471–72 (1992).

The defendant insists that because the legislature amended seven other statutes to reference RSA 651:2, II–g at the time that statute was passed, the legislature did not intend RSA 631:3 to incorporate RSA 651:2, II–g. We disagree.

While the principle of expressio unius est exclusio alteris (the expression of one thing is the exclusion of another) at first blush might seem to support the defendant's position, a more reasonable rationale exists for why RSA 631:3 does not specifically reference RSA 651:2, II–g. When the legislature enacted RSA 651:2, II–g, reckless conduct was a misdemeanor. RSA 651:2, II–g applies only to felonies.

The legislature enacted RSA 631:3, II, making reckless conduct with a deadly weapon a felony, in 1994, four years after enacting the minimum mandatory sentencing statute for felonies committed with a firearm. Laws 1994, 187:1. Once the minimum mandatory sentencing statute was in place, the legislature was free to enact subsequent legislation subject to its parameters. Felony reckless conduct became subject to those parameters in 1994. We assume the legislature was aware, by creating a class of reckless conduct constituting a felony, that such activity would be punishable by whatever preexisting scheme governed, including RSA 651:2, II–g.

II. Double Jeopardy

The defendant next argues that the sentence enhancement under RSA 651:2, II–g (minimum mandatory sentence for firearms) combined with the enhancement from a misdemeanor to a Class B felony under RSA 631:3, II for use of a deadly weapon, violates the double jeopardy provisions of the State and Federal Constitutions. We disagree.

We confine our analysis to the State Constitution, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983), because the Federal Constitution affords the defendant no greater protection, see Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983).

"The double jeopardy prohibition protects a defendant from multiple punishments for the same offense." State v. Gooden, 133 N.H. 674, 679, 582 A.2d 607, 610 (1990). In analyzing claims of multiple punishments, "we have only recognized a double jeopardy violation in cases in which the defendant has been at least twice convicted and at least twice sentenced for separate charges that amounted to the same offense." State v. Ringuette, 142 N.H. 163, 165, 697 A.2d 507, 509 (1997). In this case, the defendant has been charged with but one offense, reckless conduct, and has received but one punishment, a minimum mandatory sentence of three years. The fact that use of a firearm made the reckless conduct a felony and, thus, subject to a minimum mandatory sentence is of no moment.

We have examined this concept previously. For example, in Ringuette the defendant committed the crime of stalking, a violation of RSA 633:3–a (1996) (amended 1997), while out on bail for an underlying assault charge. Ringuette, 142 N.H. at 164–65, 697 A.2d at 508–09. He was sentenced to twelve months for stalking and an additional twelve months for being convicted of an offense while out on bail. Id. The fact that the offense occurred while the defendant was released on bail served to enhance the sentence for stalking. Put another way, the bail violation was an aggravating factor the court was statutorily bound to consider. We recognized only one offense. We refused to extend double jeopardy protections to situations involving "only one charged offense and one enhanced sentence." Id. at 166, 697 A.2d at 510; see also State v. Hennessey , 142 N.H. 149, 162, 697 A.2d 930, 939 (1997).

Similarly, in Hennessey we noted that no violation of double jeopardy occurred where the trial court enhanced the defendant's sentence for sexual assault due to the age of the victim. Hennessey, 142 N.H. at 162, 697 A.2d at 939. We stated:

[T]he defendant has been convicted once under RSA 632–A:2, I(l ) [aggravated felonious sexual assault on a victim under age 13] and sentenced once under RSA 651:6, I(f) [extended sentences for aggravating factors]. The critical distinction is that RSA 651:6 merely provides an alternative extended sentence for certain offenses which the trial court may impose provided certain criteria are met, and not an additional offense and sentence based on circumstances already used to elevate another offense.

Id. (emphasis omitted). Like the defendant in Ringuette , the defendant in Hennessey committed one crime for which he received one sentence. The consideration of an enhancement factor amounts not to a second punishment, but rather to a more severe punishment. "[T]he legislature may attach a more severe sentence to a crime based on the presence of certain identified enhancers." Ringuette, 142 N.H. at 167, 697 A.2d at 510.

Accordingly, we reject the defendant's argument and again refuse to extend double jeopardy tenets to include, beyond multiple punishments, multiple enhancement factors.

Before proceeding, we note that the legislature developed the sentencing scheme at issue in direct response to our decisions in Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), and State v. Houtenbrink , 130 N.H. 385, 539 A.2d 714 (...