State v. Pugliese, 81-224

• Decision Date: 30 December 1982
• Docket Number: No. 81-224,81-224
• Citation: 122 N.H. 1141,455 A.2d 1018
• Parties: The STATE of New Hampshire v. Edward PUGLIESE.
• Court: New Hampshire Supreme Court

Page 1018

455 A.2d 1018

122 N.H. 1141

The STATE of New Hampshire v. Edward PUGLIESE.

No. 81-224.

Supreme Court of New Hampshire.

Dec. 30, 1982.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on brief and orally), for the State.

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

BROCK, Justice.

The defendant appeals from his conviction of negligent homicide, RSA 630:3 I. He was previously acquitted of manslaughter. The issues on appeal are whether the defendant's negligent homicide conviction must be reversed because the trial court instructed the jury that negligence could be proven by evidence of purposeful, knowing, or reckless behavior, and whether the trial court's refusal to poll the jury during the trial, after some allegedly prejudicial newspaper articles had been brought to the court's attention, constituted reversible error. Finding no merit to the defendant's appeal, we affirm.

This is the third time that the defendant has been tried on charges arising out of the 1977 death of Denis Champagne. The first trial on the charge of manslaughter or the lesser-included offense of negligent homicide resulted in a hung jury and the trial court's declaration of a mistrial. The second trial on the same charges resulted in his conviction for negligent homicide. On appeal, however, this court reversed the conviction on the ground that the mistrial declared in the first trial had not been based on "manifest necessity," and thus his retrial on the charge of manslaughter constituted double jeopardy. State v. Pugliese, 120 N.H. 728, 730, 422 A.2d 1319, 1321 (1980). We remanded for a new trial on the charge of negligent homicide only. Id. at 732, 422 A.2d at 1322.

The conviction resulting from his third trial is the subject of this appeal. At the request of the State, and over the defendant's objection and exception, the Superior Court (Contas, J.) instructed the jury, pursuant to RSA 626:2 III, that "negligence," the mental state required in the crime of negligent homicide, RSA 630:3 I, is established even if the jury finds that the defendant acted purposely, knowingly, or recklessly.

The defendant contends that, because the jury in the second trial must have determined that he had not acted "recklessly" when it acquitted him of manslaughter (RSA 630:2 I), the State was barred, in the subsequent prosecution for negligent homicide, from relitigating the issue of intent underlying the purposeful, knowing, or reckless mental states discussed in RSA 626:2 III. The defendant maintains that while RSA 626:2 III may be an otherwise proper legal directive, the doctrine of collateral estoppel barred its use in his case.

"Collateral estoppel, which is an extension of the doctrine of res judicata, bars relitigation of factual issues which have already been determined ...." State v. Proulx, 110 N.H. 187, 189, 263 A.2d 673, 675 (1970); see State v. Hastings, 121 N.H. 465, 467, 430 A.2d 1131, 1132 (1981); see also Scheele v. Village District of Eidelweiss, 122 N.H. 1015, ---, 453 A.2d 1281, 1284 (1982). Like the doctrine of res judicata, it "has the dual purpose of protecting litigants from the burden of relitigating an identical issue ... and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979); see In re Robert C., 120 N.H. 221, 224, 412 A.2d 1037, 1039 (1980).

"Collateral estoppel applies equally in civil and criminal proceedings." State v. Kowal, 116 N.H. 699, 700, 366 A.2d 877, 878 (1976). Its application in criminal cases is constitutionally required as part of the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195-1196, 25 L.Ed.2d 469 (1970). The reasoning behind this constitutionally based application of collateral estoppel is that it is fundamentally unfair to force a defendant a second time "to defend ... against charges or factual allegations which he overcame in the earlier trial." United States v. Keller, 624 F.2d 1154, 1159 (3d Cir.1980) (quoting Wingate v. Wainwright, 464 F.2d 209, 214 (5th Cir.1972)).

We must therefore determine whether the court's instruction to the jury raised a previously litigated question of fact, thereby unfairly forcing the defendant to relitigate an issue which had already been decided in his favor. The challenged jury instruction is as follows:

"As I have stated, the third element the State must prove beyond a reasonable doubt is that the defendant acted negligently. A person acts negligently when he fails to become aware of a substantial, which is important, or essential and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature or degree that his failure to become aware of it constitutes a gross deviation, which is a marked departure from the norms of behavior, from the conduct that a reasonable person would observe in the situation.

... Further, when the law provides that negligence suffices to establish an element of an offense such element is also established if the State proves beyond a reasonable doubt that a person acted purposely, knowingly, or recklessly."

The defendant alleges that this jury instruction allowed the jury to convict him either on the basis of mere negligent behavior or on the basis of conduct involving a purposeful, knowing, or reckless state of mind, for which he had already been acquitted. He argues that this unfairly forced him to litigate issues previously determined in his favor.

We note that the questioned jury instruction did not alter the fact that the defendant was subject only to a jury finding of negligence. The instruction stated that the element of negligence could be satisfied by evidence of higher culpable mental states. The instruction did not make the existence of these mental states a prerequisite to a finding of negligence, and the jury may have reached its decision without having considered the issue of his intent.

Nevertheless, we decline to dispose of the defendant's claim on this purely formalistic level. The heart of the protection afforded criminal defendants by the doctrine of collateral estoppel is that they not be forced to relitigate decided issues. If we view the challenged jury instruction standing alone, it is clear that it may in fact have permitted the jury to convict the defendant of negligent homicide on the basis of higher culpable mental states whose absence had been impliedly determined at his previous trial for manslaughter. Viewed in this context, it must be conceded that the trial judge's instruction to the jury was improper under the strictures of the collateral estoppel doctrine.

Since the instruction was improper, we must proceed to determine whether the defendant was prejudiced thereby and unfairly forced to relitigate a previously decided fact. For the defendant's conviction to stand, any error of constitutional dimension must be shown to be harmless beyond a reasonable doubt. State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); see Wingate v. Wainwright, 464 F.2d at 214.

The defendant maintains he was prejudiced because the jury instruction forced him to relitigate issues raised by the higher, intentional mental states underlying purposeful, knowing, or reckless behavior. The fact that the jury instruction was given at the close of all the evidence aside, a review of the trial transcript reveals that the defendant himself first raised the issue of intent, see State v. Perron, 122 N.H. 941, ---, 454 A.2d 422, 427 (1982), when he raised the justification defense of self-defense in his trial for negligent homicide. See RSA 627:4 II(a) (Supp.1981). At the outset of the trial, defense counsel...