State v. Jimenez

Decision Date23 July 1993
Docket NumberNo. 92-054,92-054
Citation629 A.2d 785,137 N.H. 450
PartiesThe STATE of New Hampshire v. Manuel JIMENEZ, a/k/a Luis Ortiz.
CourtNew Hampshire Supreme Court

Jeffrey R. Howard, Atty. Gen. (Brian R. Graf, Asst. Atty. Gen., on the brief and orally), for the State.

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

BROCK, Chief Justice.

The defendant, Manuel Jimenez, a/k/a Luis Ortiz, was convicted after a jury trial in Superior Court (Murphy, J.) of two counts of selling cocaine and one count of possession of cocaine with intent to distribute. He appeals only the conviction of possession, RSA 318-B:2 (Supp.1992), arguing only that the conviction was barred by the double jeopardy clause of the fifth amendment of the United States Constitution. In light of the United States Supreme Court's recent decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), we affirm.

The conviction at issue arose out of an incident that occurred on October 29, 1990. The police had information that on that date the defendant would be returning to Manchester from Massachusetts with cocaine. Within the previous month the defendant had made sales of cocaine to a Manchester police officer acting undercover. On October 29, Officer Robert Moore, in an unmarked vehicle, was following the defendant in the area of Hanover Street in Manchester. He requested a marked patrol car to stop the defendant's car. Officer Gregory Murphy saw the defendant's car and followed it, activating his blue lights and alternating headlights. The defendant's car pulled over and appeared to be stopping. When Officer Murphy pulled behind it and began to stop, the defendant's car sped away. Officer Murphy then turned on his siren and tried to cut in front of the defendant. The defendant turned right onto Kenney Street and two marked police cruisers pulled into the street behind him. Officer Moore, who was behind the cruisers, saw the defendant's car slow down on the left side of the street and observed the driver "fling something out the window" that was dark in color. The defendant's car accelerated again but was quickly stopped by the police. Officer Moore searched the area where the object was thrown and at first found nothing. He was joined by Officer Dennis Glennon, who found a large green plastic bag containing a number of small packets of cocaine. The defendant was immediately arrested for refusing to stop for police officers.

The defendant was charged with and convicted of the misdemeanor of disobeying a police officer, in that he purposely refused to stop for a police officer when signaled to do so. RSA 265:4I(c) (1982). Prior to his subsequent trial on the drug charges, the defendant moved to dismiss the possession indictment on double jeopardy grounds, arguing that the State would attempt to prove that charge with conduct for which he had previously been convicted. See Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. The trial court denied the motion "without prejudice to the issue being raised by a Motion in Limine for consideration by the trial judge."

The defendant filed a motion in limine on the same ground, requesting the trial court to exclude from his trial the "chase information" that had constituted the disobeying charge of which he had already been convicted. In opposition to the motion, the State argued that it ought to be permitted to use the evidence of flight to prove guilt. The court denied the motion, and the evidence as set forth above was introduced at trial.

At the outset we address the State's contention that the issue before us is not preserved. The State correctly observes that the issue presented in the defendant's notice of appeal involves the use at trial of the already-prosecuted conduct, thereby challenging the denial of the motion in limine. The defendant's brief, however, challenges the conviction itself, ostensibly appealing the denial of the motion to dismiss.

Supreme Court Rule 16(3)(b) provides: "The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein." Question 2 in the notice of appeal asks, "Whether the defendant's double jeopardy rights were violated when the trial court allowed the State to utilize evidence of conduct for which the defendant had already been prosecuted to establish elements of the possession with the intent to distribute indictment." We understand the gravamen of this question to be the constitutional propriety of the State's proving an already-prosecuted offense in establishing an essential element of the offense charged in a second prosecution. Subsumed within this question is the issue of the proper remedy should this court determine that a constitutional violation occurred. It is undisputed that the issue on appeal was presented to the trial court. We conclude that the issue argued in the brief is a subsidiary question within the meaning of Rule 16(3)(b), and therefore is properly before this court.

The fifth amendment double jeopardy clause protects a defendant in three ways: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it...

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3 cases
  • State v. Beauchesne
    • United States
    • New Hampshire Supreme Court
    • 4 Marzo 2005
    ...stop. Thus, the issue briefed is subsidiary to the issue in the notice of appeal and is properly before us. See State v. Jimenez, 137 N.H. 450, 452, 629 A.2d 785 (1993). II. SeizureTurning to the merits of this appeal, the defendant argues that he was subject to an unlawful seizure because ......
  • Plourde Sand & Gravel Co. v. JGI E., Inc.
    • United States
    • New Hampshire Supreme Court
    • 16 Febrero 2007
    ...is an exception to the economic loss doctrine, we hold that this issue may be considered a subsidiary question. See State v. Jimenez, 137 N.H. 450, 452, 629 A.2d 785 (1993). Accordingly, the plaintiff's negligent misrepresentation argument is properly before us. Negligent misrepresentation ......
  • State v. Brooks
    • United States
    • New Hampshire Supreme Court
    • 19 Agosto 1993
    ...U.S. 688, ----, 113 S.Ct. 2849, 2859-2861, 125 L.Ed.2d 556 (1993), after the filing of briefs in this case. See State v. Jimenez, 137 N.H. 450, ----, 629 A.2d 785, 786 (1993). Therefore, we will analyze the defendant's double jeopardy claim under Blockburger v. United States, 284 U.S. 299, ......

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