State v. Hutchinson

• Decision Date: 07 March 2008
• Docket Number: No. 2007–403.,2007–403.
• Citation: 156 N.H. 790,942 A.2d 1289
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Walter HUTCHINSON.

156 N.H. 790

942 A.2d 1289

The STATE of New Hampshire

v.Walter HUTCHINSON.

No. 2007–403.

Supreme Court of New Hampshire.

Argued: Jan. 31, 2008.

Opinion Issued: March 7, 2008.

Kelly A. Ayotte, attorney general (Elizabeth J. Baker, assistant attorney general, on the brief and orally), for the State.

Patrick W. Fleming, of Portsmouth, on the brief and orally, for the defendant.

GALWAY, J.

This is an interlocutory appeal from an order of the Superior Court (Nadeau, J. ) denying a motion to dismiss the indictments against the defendant, Walter Hutchinson. See Sup.Ct. R. 8. We affirm and remand.

We take the facts as presented in the interlocutory transfer statement. State v. MacElman, 154 N.H. 304, 306, 910 A.2d 1267 (2006). On October 8, 1991, the defendant was convicted following a jury trial of the attempted murder of Kimberly Earnest. We upheld this conviction on appeal. See State v. Hutchinson, 137 N.H. 591, 596, 631 A.2d 523 (1993). On November 6, 2005, Kimberly Earnest died. The State alleges that Earnest's death was the result of injuries caused by the defendant, the same injuries alleged in the attempted murder conviction. The State has now indicted the defendant with three alternative counts of murder. The defendant filed a motion to dismiss, arguing that the pending indictments are barred by both the Federal and State Double Jeopardy Clauses. The trial court denied the motion.

The sole issue before us is whether the protection against double jeopardy, as guaranteed by the Fifth Amendment to the United States Constitution and Part I, Article 16 of the New Hampshire Constitution, prevents the State from prosecuting the defendant for murder after previously convicting the defendant for the attempted murder of the same victim. Because this presents a question of constitutional law, our review is de novo. State v. DeCato, 156 N.H. 570, ––––, 938 A.2d 898 (2007). We first address the defendant's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only, id. at 232–33, 471 A.2d 347.

The Double Jeopardy Clauses of both the United States Constitution and the New Hampshire Constitution protect an accused from twice being tried and convicted for the same offense. State v. Hannon, 151 N.H. 708, 713, 867 A.2d 426 (2005) ; see U.S. CONST. amend. V ; N.H. CONST. pt. I, art. 16. Two offenses will be considered the same unless each requires proof of an element that the other does not. State v. Constant, 135 N.H. 254, 255, 605 A.2d 206 (1992) ; see also United States v. Dixon, 509 U.S. 688, 712, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) "same-conduct" test and relying upon Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) "same-elements" test). In New Hampshire, "[w]hen considering the issue of double jeopardy, a subsequent prosecution is permissible only if proof of the elements of the crimes as charged will in actuality require a difference in evidence." Constant, 135 N.H. at 256, 605 A.2d 206 (quotations and citations omitted).

However, the protection against double jeopardy is not absolute and will yield under certain circumstances. See Brown v. Ohio, 432 U.S. 161, 169 n. 7, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion); Diaz v. United States, 223 U.S. 442, 448–49, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In Diaz, the United States Supreme Court addressed the question of double jeopardy where a homicide charge followed a defendant's initial conviction for assault and battery after the same victim died from injuries sustained during the assault. Diaz, 223 U.S. at 448–49, 32 S.Ct. 250. The Diaz Court rejected that defendant's double jeopardy claim, stating:

The homicide charged against the accused ... and the assault and battery ... although identical in some of their elements, were distinct offenses both in law and in fact.... At the time of the trial for the [assault and battery] the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.

Id. Thus, the United States Supreme Court acknowledged that double jeopardy was not a bar to a subsequent prosecution for a greater offense where all of the necessary elements of that offense did not exist at the time of the first trial. See also Garrett v. United States, 471 U.S. 773, 791, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) ; Brown, 432 U.S. at 169 n. 7, 97 S.Ct. 2221; Jeffers, 432 U.S. at 151, 97 S.Ct. 2207. Here, the trial court relied upon this exception in denying the defendant's motion to dismiss, noting that Earnest was still alive at the defendant's first trial, making it impossible for the State to prosecute him for murder at that time.

The defendant urges us to reject the Diaz rule for several reasons. First, he argues that the development of double jeopardy since Diaz, in particular the rejection of the Grady "same-conduct" test and reliance upon the Blockburger "same-elements" test in Dixon, eliminates the need for the Diaz rule and compels the conclusion that it is no longer good law. In further support of his position, the defendant asserts that the Diaz rule has not been "specifically adopted as good law" by the United States Supreme Court, and argues that cases applying the rule are not binding. We disagree.

Upon our review of Diaz, we find no indication, either in its plain text or by inference, that the United States Supreme Court intended the Diaz rule to be limited to any one particular double jeopardy test. Although the method of evaluating a double jeopardy claim has evolved through recent times, its essential purpose has remained unchanged. See Brown, 432 U.S. at 168, 97 S.Ct. 2221 (noting the Court's understanding of double jeopardy unchanged at least since 1889). We see no reason to conclude that a change in the prevailing test would undermine the Diaz Court's articulation of this general exception to double jeopardy protection. We also note that the United States Supreme Court has never restricted the applicability of the Diaz rule to a particular double jeopardy standard, although acknowledging the rule on several occasions and in several contexts. Indeed, the defendant has not cited, nor are we able to find, any case in which a court has limited the Diaz rule in the manner suggested by the defendant.

To the extent the defendant attempts to lessen the precedential value of Diaz and distinguish his case from United States Supreme Court and other pertinent case law, we remain unpersuaded. As we noted above, the United States Supreme Court has acknowledged the Diaz rule on several occasions, even characterizing its underlying principle as a "commonly recognized exception" to the Double Jeopardy Clause. Jeffers, 432 U.S. at 151, 97 S.Ct. 2207. Most notably, in a 1985 decision, the United States Supreme Court applied the Diaz rule to permit a subsequent prosecution for a greater criminal offense where the facts comprising the second crime, a continuing criminal enterprise, had not occurred at the time of the first indictment for importation of marijuana. Garrett, 471 U.S. at 791–93, 105 S.Ct. 2407.

The defendant argues that Garrett is distinguishable because, although mentioning the Diaz rule, the decision was based primarily upon its determination that the offenses were not the same. While we agree that a substantial portion of the Garrett decision is devoted to the Court's "same-offense" analysis, we cannot ignore its alternative analysis under Diaz. Indeed, Garrett specifically recognizes the limited value of its "same-offense" analysis, noting, "we may assume, for purposes of decision here, that the [importation of marijuana] offense was a lesser included offense, because in our view Garrett's claim of double jeopardy would still not be sustainable" under Diaz . Garrett, 471 U.S. at 790, 105 S.Ct. 2407. Thus, we cannot conclude that the Court's Diaz analysis was merely an inconsequential, passing reference without precedential value.

The defendant urges us to adopt the limited application of the Diaz rule proffered in Justice O'Connor's concurrence in Garrett, 471 U.S. at 795–99, 105 S.Ct. 2407 (O'Connor, J., concurring). In her concurrence, Justice O'Connor noted that "successive prosecution on a greater offense may be permitted where justified by the public interest in law enforcement and the absence of prosecutorial overreaching." Id. at 796, 105 S.Ct. 2407 (O'Connor, J., concurring). However, she suggested that "the defendant's interest in finality would be more compelling where there is no indication of continuing wrongdoing after the first prosecution." Id. at 799, 105 S.Ct. 2407 (O'Connor, J., concurring). The defendant asserts that the State's legitimate interest in prosecuting the defendant for his criminal behavior is adequately addressed under Justice O'Connor's rationale because,

the severity of [his] acts will by necessity be established in the attempted murder trial.... In short, once convicted of attempted murder, the seriousness of [his] culpability is fully established. [His] moral culpability is no greater or less dependent upon whether the victim actually dies as a result.

The defendant thus argues that additional criminal acts should be required in applying the Diaz rule. We disagree.

While Garrett relied upon that defendant's criminal acts subsequent to the first indictment as a basis for applying Diaz, there is no support for the proposition that the Court intended all applications of the Diaz rule to be contingent upon such additional acts. Rather, Garrett focused upon the incomplete nature of the subsequent crime at the time of the first indictment. Id. at 790, 105 S.Ct. 2407. Much like the circumstances of this case, the facts supporting Garrett's second...