State v. Pugliese

• Decision Date: 13 November 1980
• Docket Number: No. 79-383,79-383
• Citation: 120 N.H. 728,422 A.2d 1319
• Parties: The STATE of New Hampshire v. Edward PUGLIESE.
• Court: New Hampshire Supreme Court

Page 1319

422 A.2d 1319

120 N.H. 728

The STATE of New Hampshire v. Edward PUGLIESE.

No. 79-383.

Supreme Court of New Hampshire.

Nov. 13, 1980.

Gregory H. Smith, Acting Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

Upton, Sanders & Smith, Concord, John Gilbert Upton, orally), Russell F. Hilliard, Concord, for defendant.

PER CURIAM.

This homicide case involving both a greater and a lesser-included offense presents two issues. The first question is whether the defendant's right not to be twice put in jeopardy was violated when the court declared a mistrial because of a hung jury without first asking the jury if they had reached a verdict on the greater offense. The second question is whether the court erred in failing to charge the jury that the defendant could use deadly force in self-defense without retreating while outside his dwelling house but upon its grounds. We reverse.

The right not to be twice put in jeopardy is guaranteed under both the New Hampshire and United States Constitutions. N.H.Const. pt. I, art. 16; U.S.Const. Amend. V. Although we draw upon decisions of the Supreme Court of the United States, we decide this case under the constitution of New Hampshire.

The defendant was charged with manslaughter. At his first trial, the Judge (Mullavey, J.) twice charged the jurors that if they found the defendant not guilty of manslaughter, then they should consider whether he was guilty of the lesser-included offense of negligent homicide. By these instructions, given without objection, the trial judge made it clear that the jury was not to consider the lesser offense unless it first considered the greater offense of manslaughter and found the defendant not guilty. We presume that the jury followed the court's instructions. The trial judge said nothing to the jurors about bringing in a verdict of not guilty on the greater charge even if they were unable to reach a verdict on the lesser charge. We cannot assume that they knew that they could so do. In fact, the court's charge could have led the jurors to believe that they could not.

After the jurors had deliberated for a time, they asked a question concerning manslaughter which the court answered. The next day the jury asked a question concerning negligent homicide which the court also answered. At the end of the second day of deliberation, the jurors informed the court that they could not reach a verdict. When the court indicated an intention to declare a mistrial, the defendant's attorney indicated opposition unless the court first asked the jury whether they had reached a verdict on the manslaughter charge. Counsel reasoned from the jury's questions and the court's instructions that it was possible that the jurors had reached a not guilty verdict on the greater charge and were unable to agree only on the lesser offense.

Whether the jurors had agreed, with finality, to acquit on the greater offense is not the question here. The questions on the double jeopardy issue are whether, without first inquiring what the jury had in fact done, there was a "manifest necessity" to declare a mistrial or whether the ends of public justice would otherwise be defeated if the trial court failed to discharge the jury. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

It is fundamental that under the double jeopardy clauses of the New Hampshire and United States Constitutions the defendant has a "valued right to have his trial completed by a particular tribunal." Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The law is clear that to preserve this "valued right," a judge may declare a mistrial without the defendant's consent only if there is a "manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, supra.

In Arizona v. Washington, the United States Supreme Court concluded that there are degrees of necessity and held that a "high degree" of necessity is required to justify a mistrial without the consent of the defendant. 434 U.S. at 506, 98 S.Ct. at 830. In the present case, it is clear that the defendant did not consent to the mistrial on the manslaughter charge without the inquiry he requested.

Not only did the trial court fail to expressly find a manifest necessity, but no such necessity could have been found. Nor would the ends of public justice have been defeated by simply asking the jury if they had reached a verdict on the manslaughter charge. If the answer had been in the negative, there would then have been a basis for the mistrial. If the answer had been that the jury had agreed on acquittal, then the defendant's "valued right" would have been upheld. There was no necessity at all, much less a high degree of necessity, to declare a mistrial before making the inquiry requested. All possible alternatives to a mistrial must be considered, employed and found wanting before declaration of a mistrial over the defendant's objection is justified. See United States v. Jorn, 400 U.S. at 486-87, 91 S.Ct. at 557-558; United States v. Kin Ping Cheung, 485 F.2d 689, 691 (5th Cir. 1973). That was not done in this case. Consequently, the declaration of the mistrial on the manslaughter charge under the circumstances violated the defendant's double jeopardy rights and barred a retrial on that greater offense.

The defendant was retried on the manslaughter charge in violation of his right not to be put twice in jeopardy. At the second trial, the jury found him guilty of the lesser-included offense of negligent homicide. This verdict constituted an acquittal on the manslaughter charge. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957). The fact that the jury did not convict the defendant of the greater offense, however, does not mean that the verdict on the lesser may stand. That conviction is invalid and must be vacated. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Although the defendant may now be retried on the negligent homicide charge, he cannot be retried for manslaughter.

Because the issue is likely to arise again on retrial, we also address the defendant's argument concerning self-defense. See Hayes v. State, 109 N.H. 353, 356, 252 A.2d 431, 433-34 (1969). The defendant asserts that he was entitled to an instruction that he could properly employ deadly force in the defense of his person while in his home, or upon his immediately adjacent grounds. The State, on the other hand, argues that the defendant was not...