State v. Nickles
| Decision Date | 16 March 2000 |
| Docket Number | No. 96–185.,96–185. |
| Citation | 749 A.2d 290,144 N.H. 673 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. William NICKLES. |
Philip T. McLaughlin, attorney general (Malinda R. Lawrence, assistant attorney general, on the brief and orally), for the State.
Twomey & Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant.
In this interlocutory appeal, the defendant, William Nickles, argues that the Superior Court (Gray , J.) erred in ruling that he may be tried a second time on an aggravated felonious sexual assault charge, allegedly accomplished by actual application of physical force, physical violence, or superior physical strength, see RSA 632–A:2, I(a) (1996), after the jury deadlocked on that charge and the court declared a mistrial. The defendant asserts that double jeopardy bars retrial because the same jury acquitted him of an alternative charge of aggravated felonious sexual assault under circumstances involving false imprisonment, see RSA 632–A:2, I(e) (1996), based on the identical underlying charged act. We affirm and remand.
The defendant, a police officer, was charged with two alternative counts of aggravated felonious sexual assault after he allegedly forced an individual to perform fellatio on him. At trial, the State introduced evidence that while on duty and in uniform, the defendant picked up the complainant in the defendant's marked cruiser and transported him to a cul-de-sac. The complainant was not in custody. The complainant testified that after the two exited the vehicle, the defendant exposed his genitals, grabbed the complainant's shoulders and "pushed [him] down." After the complainant allegedly performed fellatio on the defendant, the defendant drove him home.
After a jury trial, the defendant was acquitted on the false imprisonment charge. The same jury was unable to reach a verdict on the physical force charge, and the Superior Court (McHugh, J.) declared a mistrial. The defendant filed a motion to dismiss the physical force indictment, arguing that retrial would violate his double jeopardy protections provided under the State Constitution. The Superior Court (Gray, J.) denied the motion and transferred the ruling for our review on an interlocutory basis. See Sup.Ct. R. 8.
This court's initial decision was withdrawn when we granted a motion for reconsideration. The parties filed supplemental briefs and the case was reargued.
On appeal, the defendant argues that the false imprisonment and physical force indictments as charged comprise the same offense for double jeopardy purposes. He asserts that the double jeopardy protection from multiple prosecutions for the same offense precludes retrial on the physical force indictment. The State contends that double jeopardy analysis is inapplicable when it pursues multiple theories of committing one statutory offense in a single prosecution and the jury acquits the defendant on one theory and deadlocks on the remainder. In essence, the State argues that the original jeopardy for the physical force charge has not terminated. We confine our analysis to the State Constitution because the defendant did not rely on the Federal Constitution below, see State v. Field, 132 N.H. 760, 765, 571 A.2d 1276, 1278 (1990), and we rely on federal case law for guidance only, see State v. Paquin, 140 N.H. 525, 527, 668 A.2d 47, 49 (1995).
" Part I, Article 16 of the State Constitution protects an accused against multiple prosecutions and multiple punishments for the same offense." State v. Liakos, 142 N.H. 726, 729, 709 A.2d 187, 188–89 (1998) (quotation omitted). Double jeopardy concerns may arise in a variety of circumstances. The most common include: (1) the simultaneous prosecution of multiple charges, see, e.g ., State v. Lucius , 140 N.H. 60, 663 A.2d 605 (1995) ; and (2) the subsequent prosecution of a charge involving the same underlying conduct previously prosecuted by the State, see, e.g ., State v. Brooks , 137 N.H. 541, 629 A.2d 1347 (1993).
With respect to the first scenario, double jeopardy precludes the State from pursuing multiple charges in a single prosecution when the charges comprise the same offense and the State seeks multiple convictions and thus multiple punishments. Lucius , 140 N.H. at 65, 663 A.2d at 609. The State may, however, simultaneously prosecute multiple charges which constitute the same offense based on a single act or transaction provided it seeks a single conviction and each charge alleges a distinct, alternative method of committing the offense. Id. ; State v. Allison , 126 N.H. 111, 113, 489 A.2d 620, 621 (1985). The State cannot simultaneously pursue multiple charges that are "entirely identical in fact as well as in law." Allison , 126 N.H. at 114, 489 A.2d at 621. In addition, the trial court may require the State to elect between alternative charges or, if the State refuses, quash some of the charges, when "trial upon multiple counts or indictments would prejudice either the defendant's ability to prepare to meet the charges or the jury's ability to deal with them intelligently and dispassionately." Id . at 114, 489 A.2d at 622.
With respect to the second scenario, double jeopardy precludes the State from pursuing a second prosecution stemming from the same conduct or events charged in a previous prosecution provided the charges constitute the same offense. See State v. Anderson , 142 N.H. 918, 920, 714 A.2d 227, 229 (1998). In some circumstances, however, the State may pursue a second prosecution if the defendant was acquitted of the greater offense in the first prosecution and the charge in the second prosecution constitutes a lesser-included offense of the first charge. State v. Pugliese , 120 N.H. 728, 730, 422 A.2d 1319, 1321 (1980). Further, double jeopardy protections incorporate the doctrine of collateral estoppel, which may bar a second prosecution even if the two charges are not the same offense or the second is a lesser-included of the first. See State v. Crate , 141 N.H. 489, 493, 686 A.2d 318, 320 (1996) ; 5 W. LaFave et al., Criminal Procedure § 25.1(f), at 647 (2d ed.1999).
The standard for determining whether multiple charges constitute the "same offense" for double jeopardy purposes is identical regardless of the particular scenario in which a double jeopardy challenge is raised. "[T]wo offenses will be considered the same unless each requires proof of an element that the other does not." Liakos , 142 N.H. at 730, 709 A.2d at 189 (quotation omitted). "The essential inquiry on this point is whether proof of the elements of the crimes as charged will in actuality require a difference in evidence." Id . (quotation omitted). "In making this inquiry, we review and compare the statutory elements of the charged offenses in light of the actual allegations contained in the indictments." Id . (quotation omitted). When the State is pursuing a second prosecution, we particularly examine "whether the facts charged in the second indictment would, if true, have sustained the first." Brooks , 137 N.H. at 542, 629 A.2d at 1348 (quotation omitted).
The case before us is a hybrid of these two common scenarios in which double jeopardy is raised because the State simultaneously pursued alternative charges arising from the same event or transaction and seeks retrial on one indictment because the jury failed to reach a verdict on that charge. As earlier noted, simultaneous prosecution of alternative charges of the same statutory offense is proper as long as the charges are neither identical in fact and law nor prejudicial. See Lucius , 140 N.H. at 65, 663 A.2d at 609; Allison, 126 N.H. at 113–14, 489 A.2d at 621. In such a case, 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. Liakos , 142 N.H. at 730, 709 A.2d at 189; see also Richardson v. United States , 468 U.S. 317, 325–26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) ; United States v. DeVincent , 632 F.2d 155, 158 (1st Cir.1980), cert. denied , 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981) ; State v. Hartford , 132 N.H. 580, 583, 567 A.2d 577, 580 (1989) (); 21 Am.Jur.2d Criminal Law § 325 (1998). While collateral estoppel may bar retrial, see Crate , 141 N.H. at 493, 686 A.2d at 320, the defendant did not raise it in this case, and therefore we do not address it.
The defendant contends that the instant matter is "about two...
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