2003-670, STATE OF NH v. LUCILLE SANCHEZ

defendant denied any involvement in h er aunt’s murder and initially denied several interviews by police investigators on July 2, 4 and 11, 1989, the murdered sometime during the evening of July 1, 1989. During the course of Man chester home. The police investigation determined that she had been Lucienne Lemaire, the defendant’s aunt, was found strangled in her The jury could have found the following facts. On July 2, 1989,

(1996); RSA 630:1 - a. We affirm. (1996); RSA 626:8 (1996), and conspiracy to commit murder, RSA 629:3 defendant, Lucille Sanchez, was convicted of first degree murde r, RSA 630:1 - a NADEAU, J. Following a jury trial in Superior Court (Lynn, J.), the

brief and orally), for the defendant. Kenna, Johnston & Sharkey, P.A., of Manchester (Bruce E. Kenna on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (David W. Ruoff, assistant attorney

No. 2003 - 670 Hillsborough - nor thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

instruction. We disagree. unsustainably exercised its discretion by denying the requested jury what [sic] the evidence was.” The defendant argues that the trial court counsel regarding evidence that may not be consistent with their recollection and asked the court to instruct the jury “not to consider any comment by the State’s argument. Following the jury instructions, the defendant o bjected The defendant argues that there was “no evidentiary basis” to support

tenants were not home. 1, 1989, was the perfect opportunity to murder the victim because her upstairs the State’s closing argument, the prosecutor commented that the night of July curative instruction after the State misstated the evidence. Specifically, during The defendant first contends that the trial court should have given a

murder. separate crimes of first degree murder and conspiracy to commit first degree violated her double jeopardy rights by sentencing her on convictions for the in failing to instruct the jury on the legal principle of jury nullification; and (3) give the jury a curative instruction after the State’s closing argument; ( p. 2 2) erred On appeal, the defendant argues that the trial court: (1) erred in failing to

to thirty years on the conspiracy charge. of parole on the first - degree murder charge and a concurrent sentence of fifteen The trial court imposed a sentence of life imprisonment without the possi bility trial court denied the defendant’s motion to dismiss the conspiracy charge. solicitation charge as a violation of her double jeopardy rights. However, the At sentencing, the trial court granted the defendan t’s motion to dismiss the Following a jury trial, the defendant was convicted on all three charges.

agreement with the State and agreed to testify against the defendant. solicitation to commit mur der. Prior to his trial, Salas - Robles reached a plea three charges: (1) first degree murder; ( p. 2 2) conspiracy to commit murder; and (3) March 2002. Following her return to New Hampshire, she was indicted on claim her inheritance. The defendant was arrested at her home in Texas in investigators that the defendant had solicited him to kill her aunt so she coul d extensive questioning, Salas - Robles admitted murdering the victim and told In 2002, police investigators arrested Salas - Robles in Texas. After

police. By this time, Salas - Robles had fled. threatened her family and told her that he would implicate her if she told told investigators that she withheld the information because Salas - Robles had admitted to her on July 1 that he had committed the murder. The defendant boyfriend, later identified as Baltazar Salas - Robles, an illegal alien, had of questioning on July 11, however, the defendant told investigators that her any knowledge of who might have committed the murder. After several hours p. 3 3

element of the offense ch arged beyond a reasonable doubt, you may still find jury instruction: “Even if you find that the State has proven each and every close of the trial, the defendant submitted a request for the following specific lesser o ffense in exchange for his testimony implicating the defendant. At the which Salas - Robles, the admitted murderer of the victim, was charged with a nullification. The defendant bases this argument upo n the plea bargain in its discretion by refusing to instruct the jury on the legal principle of jury The defendant next argues that the trial court unsust ainably exercised

agree with the trial court that no curative instruction was required. evidence nor invited the jury to speculate about facts not in the record, we home on the night of the murder. Because the State neither misstated the State drew a reasonable inference that the victim’s upstairs tenants were not tenants were gone for the weekend. Given the evidence presented at trial, the admitted into evidence, the defendant alluded to the fact that the upstairs canvassing the crime scene. Finally, in a July 4, 1989, interview that wa s tenants that morning and police testified they were not home when they were home. In addition, witnesses testified that they had not seen the upstairs to arrive at the crime scene had to climb up a l adder to gain access into the outside door. All of the entrance doors were locked and one of the first officers way into the home and that the victim’s daily newspaper was still tucked in the they tried knocking on all of the outside doors and windows in order to find a tenants shared a common entrance into the house. Witnesses testified that inferences from the facts elicited during the trial. The victim and her upstairs comment. The record reflects that the comment was based upon reasonable upstairs tenants on the night of the murder did not constitute an improper Here, the prosecutor’s remark concerning the absence of the victim’s

omitted). draw inferences of guilt from the evidence.” Id. (quotation and brackets summarize and discuss the evidence presented to the jury and to urge them to from the facts proven and has great latitude in closing argument to both brackets omitted). However, “a prosecutor may draw reasonable inferences the record. State v. Gl odgett, 148 N.H. 577, 582 (2002) (quotation and The State may not ask the jury to base its decision upon evidence not in

the prejudice of his case. Lambert, 1 p. 4 47 N.H. at 296. defendant must demonstrate that it was clearly untenable or unreasonable to standard). To show that the trial court’s decisi on is not sustainable, the 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard. State v. DeCosta, 146 N.H. 405, 415 (2001); cf. State v. Lambert, declining to give an in struction under an unsustainable exercise of discretion prosecutor’s closing remarks may have had on the jury, we review its decision As the trial court is in the best position to gauge any prejudicial effect the 4

Constitution. State v. Ball, 12 p. 4 4 N.H. 226, 231 (1983). We first examine the defendant’s claim under the New Hampshire

of the two charges requires identical evidence.” We disagree. char ge and the First Degree Murder Charge, as charged, shows [sic] that proof United States Constitution. Specifically, she argues that the “Conspiracy Hampshire Constitution and the Fifth and Fourteenth Amendments to the sentence violated her double jeopardy rights under Part I, Article 16 of the New Finally, the defendant argues that the c onspiracy conviction and

nullification instruction requested was a sustainable exercise of discretion. Accordingly, we find that the trial court’s decision not to give the jury anything in th is case warranted a more specific nullification instruction. (quotation and brackets omitted). The defendant has not demonstrated that still acquit the defendant.” State v. Brown, 132 N.H. 520, 527 (1989) beyond a reasonable doubt all the elements of the offense charged, they could jury nullification instruction that even if the jurors found that the State proved have held that, “the effect of ‘should’ in the charge provide[s] the equivalent of a murder if the State had met its burden. Wentworth, 118 N.H. at 838 - 39. We instructing the jury that it should find the def endant guilty of first - degree Here, the trial court gave the standard Wentworth instruction,

recognized by law. Id. that jury nullification is neither a right of the defendant, nor a defense discretion of the trial court. Hokanso n, 1 p. 4 40 N.H. at 721. It is well established to give a more specific instruction on nullification lies within the sound which provides the equivalent of a jury nullification instruction. The decision Wentworth instr uction, see State v. Wentworth, 118 N.H. 832, 838 - 39 (1978), evidence. Hokanson, 140 N.H. at 721. The trial court ordinarily gives the verdict is contrary to the law as given by the judge and contrary to the Jury nullification is the undisputed power of the jury to acquit, even if its

the prejudice of his case. Lambert, 1 p. 4 47 N. H. at 296. defendant must demonstrate that it was clearly untenable or unreasonable to standard). To show that the trial court’s decision is not sustainable, the Lambert, 147 N.H. at 296 (explaining unsustainable exercise of discretion of discretion. State v. Hokanson, 140 N.H. 719, 721 (1996); cf. State v. of jury nullification will not be reversed unless it was an unsustainable exercise The trial court’s refusal to give a specific jury instruction on the principle

have been given a jury nullification instruct ion. verdict would be a fair result in this case.” We disagree that the jury should the defendant not guilty if you have a conscientious feeling that a not guilty p. 5 5

stated: The indictment for co nspiracy to commit murder, RSA 629:3; RSA 630:1 - a,

Lemaire’s residence after the murder. strangling her; and Sanchez transported Robles away from residence; Sanchez waited while Robles killed Lemaire by him money for killing her; Sanchez transported Robles to Lemaire’s Robles to commit the murder of Lucienne Lemair e by promising murder of Lucienne Lemaire, Sanchez solicited Baltazar Salas - Lemaire, in that, with the purpose of promoting or facilitating the Sanchez purposely caused the death of her aunt, Lucienne

The indictment for first degree murder, RSA 630:1 - a; RSA 626:8, stated:

New Hampshire Constitution were not violated. principles, we conclude that the defendant’s double jeopardy rights under the agree ment to commit or cause the commission of a crime. Id. Applying these stolen property). The act which the crime of conspiracy punishes is an stolen property is a separate and distinct crime from the crime of receiving offenses. State v. Chaisson, 123 N.H. 17, 24 (1983) (conspiracy to receive conspiring to commit a crime and actually commi tting it are two separate transaction. Hull, 149 N.H. at 717. In the context of a conspiracy conviction, reason, it does not matter that the two charges arose out of the same elements and fact ual allegations in the charging documents). For the same kidnapping and criminal threatening in the same transaction despite similar 201 - 02 (2001) (no double jeopardy violation where defendant was convicted of State v. Hull, 149 N.H. 706, 717 (2003); see State v. McKean, 147 N.H. 198, was if a difference in evidence is actually required to prove the crime c harged.” overlapping, reciprocal, or similar the evidence used to sustain the indictments When reviewing two separate indictments, “[i]t does not matter how

omitted). State v. MacLeod, 141 N.H. 427, 429 (1996) (citations, quo tations and brackets

light of the actual allegations contained in the indictments. and compare the statutory elements of the charged offenses in these formulations of the relevant inquiry make clear, we review the second indictment, would, if true, have sustained the fir st. As evidence. The ultimate question is whether the facts charged in of the crimes as charged will in actuality require a difference in mult iple indictments are permissible only if proof of the elements each requires proof of an element that the other does not. Thus, the same offense. Two offenses will be considered the same unless Constitution protects a defendant from multiple punishments for The double jeopardy clause of the New Hampshire p. 6 6

not offend double jeopardy under the New Hampshire Constitution. conclude that the defendant’s convictions for the two offenses as charged do would not have sustained the fir st degree murder charge. Therefore, we Thus, the evidence required to prove the conspiracy to commit murder charge deliberation and premeditation, required for a first degree murder conviction. indictm ent did not require the State to prove the enhanced mental state of sustained the conspiracy to commit murder charge. Likewise, the conspiracy the evidence required to prove the first degree murder charge would not have for the conspiracy conviction, to prove the first degree murder charge. Thus, T he State did not have to prove the existence of an agr eement, required

Lemaire’s death and that she acted with premeditation and deliberation. State was required to prove that the defendant acted purposely in causing the State to prove that the act was “deliberate and premeditated.” Thus, the death of Lemaire. See RSA p. 6 630:1 - a, I(a). In addition, RSA 630:1 - a, II required first degree murder required proof that the defendant purposely caused the overt act in furtherance of the conspiracy. See RSA 629:3, I. The offense of Robles to commit the crime of murder, and that one of them carried out an State was required to prove that the defendant purposely agreed with Salas the defendant and Salas - Robles to commit the murder of Lemaire. Thus, the as set forth in RSA 629:3, I, required the State to p rove an agreement between necessary to the other. The statutory offense of conspiracy to commit murder, As charged, each indictment required the State to prove a fact not

after the murder. 8. Sanchez transported Robles away from Lemaire’s residence 7. Sanchez picked Robles up outside of Lemaire’s residence; or her residence the appearance of having been ransacked; or p. 6 6. Robles pulled items out of drawers in Lemaire’s bedroom to give 5. Ro bles strangled Lemaire; or 4. Sanchez waited while Robles entered Lemaire’s residence; or 3. Sanchez transported Robles to Lemaire’s residence; or insure that Lemaire would admit Robles to her residence; or her residence that evening to bring a gift or food in order to 2. Sanchez called Lemaire to tell her that Robles would come to 1. Sanchez promised Robles money for killing Lemaire; or

acts was committed by at least one of the conspirators: In f urtherance of the conspiracy at least one of the following overt the commission of Lemaire’s murder, a crime defined by statute. committed, Sanchez agreed with Baltazar Salas - Robles to cause In that, with the purpose that the murder of Lucienne Lemaire be p. 7 7

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

do under the State Const itution. 434. Therefore, we reach the same result under the Federal Constitution as we Blockburger v. United States, 284 U.S. 299, 304 (1932); MacLeod, 141 N.H. at t est” disposes of the defendant’s claim under the Federal Constitution. See Our analysis applying the State Constitution’s “difference in evidence