2006-584, PETITION OF THE STATE OF NH (STATE v. SVEN JOHANSON, JR.)

Kelly A. Ayotte

No. 2006-584

Hillsborough-northern judicial district

physical evidence. See the Superior Court’s (Barry Jury indicted the respondent on May 17, 2004, on a charge of falsifying DUGGAN, J. The State has petitioned for a writ of certiorari challenging The parties do not dispute the following: The Cheshire County Grand

McLane, Graf, Raulerson & Middleton, P.A. ___________________________

and specially assigned it to Judge James Barry. The respondent waived his Chief Justice Robert Lynn transferred it to Hillsborough County Superior Court regularly presiding in Cheshire County had recused themselves from the case,

vacate the dismissal and remand. respondent, Sven A. Johanson, Jr. See Sup. Ct. R. 11. We grant the petition,

respondent. THE SUPREME COURT OF NEW HAMPSHIRE Anderson and Joel T. Emlen on the brief, and Mr. Anderson orally), for the

general, on the brief and orally), for the petitioner.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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

venue. it granted the respondent’s motion for a directed verdict based upon improper change of venue before trial. Thus, the State argues, the trial court erred when respondent waived his right to proper venue when he failed to object to the the crime. See bringing him to trial in Cheshire County.” The State counters that the constitutional right to be tried in the county in which he allegedly committed attached. See right, but rather at the discretion of the court. Petition of State of N.H. (State v. he asserts, “the State violated [his] constitutional and statutory rights by not arguing that the bench trial in Hillsborough County violated his statutory and State may seek relief from an order dismissing a case after jeopardy has Certiorari is an extraordinary remedy that is not granted as a matter of that county or judicial district. Because he never moved for a change in venue, Here, we grant review because certiorari is the only avenue by which the waive only by written motion based upon his inability to obtain a fair trial in judicial district in which the alleged crime was committed, which he could and RSA 60 p. 2 2:1 granted him an absolute right to be tried in the county or The respondent contends that Part I, Article 17 of the State Constitution

State of N.H. (State v. Marcoux), 154 N.H. 118, 1 p. 2 21 (2006). State may appeal to the supreme court in a criminal case); see also Petition of

RSA 606:10 ( p. 2 2001) (specifying the circumstances in which the

When the State rested, the respondent moved for directed verdict,

capriciously. Id. unsustainably exercised its discretion or acted arbitrarily, unreasonably, or illegally with respect to jurisdiction, authority or observance of the law, or N.H. at 674. Certiorari review is limited to whether the trial court acted in substantial injustice. Petition of State of N.H. (State v. San Giovanni), 154 power to grant the writ sparingly and only where to do otherwise would result San Giovanni), 154 N.H. 671, 674 ( p. 2 2007); see Sup. Ct. R. 11. We exercise our

court denied, and then sought a writ of certiorari here. 17 of the State Constitution. The State moved for reconsideration, which the dismissed the indictment, ruling that the bench trial had violated Part I, Article following day, before rendering a verdict, the court granted the motion and ( p. 2 2007). Initially, the trial court denied the motion and completed the trial. The which he asserted, was an element of the offense. See RSA 625:10, :11, III(e) that the State had failed to prove proper venue beyond a reasonable doubt,

RSA 60 p. 2 2:1 (2001); N.H. CONST. pt. I, art. 17. He also argued

May p. 2 2006. right to a jury trial on September 1, 2005, and was tried before Judge Barry in p. 3 Constitution provided: When it was originally enacted in 1784, Part I, Article 17 of the State

Baines v. N.H. Senate President interpreting a constitutional provision, we examine its purpose and intent. We next analyze Part I, Article 17 of the State Constitution. When and the laws were adopted.” Id. at 133-34 (quotation omitted). explained in that sense in which it was used at the time when the constitution controls the legislature as well as the people, is to be always understood and omitted). “The language used by the people in the great paramount law which used, viewed in the light of the surrounding circumstances.” Id. (quotation instrument was made, that it may gather their intention from the language itself as nearly as possible in the situation of the parties at the time the history of the constitution and its amendments, the court endeavors to place

to protect private rights.” McCarthy v. Wheeler statute is mandatory. This is especially so where the purpose of the statute is in the words of the statute considered as a whole. ElderTrust of Fla. v. Town of although not controlling, it is significant as indicating the intent that the interpretation, we are the final arbiters of the legislature’s intent as expressed Almy committed.” “The use of the word ‘shall’ is generally regarded as a command;, 67 N.H. 274, 280 (1892). party may waive a . . . statut[ory] provision made for his benefit.” State v. tried in the county or judicial district thereof in which the offense was days of arrest, he may waive this right). It is well-settled, however, that “[a] RSA 602:1 states in pertinent part: “Offenders shall be prosecuted and 603, 605 (2006) (while defendant has statutory right to hearing within forty-five may not be waived. See, e.g., Debonis v. Warden, N.H. State Prison, 153 N.H. it is silent with respect to the circumstances under which this right may or and tried in the county or judicial district in which the offense was committed, While on its face RSA 602:1 mandates that a criminal defendant be prosecuted

We begin by examining RSA 602:1. In matters of statutory

interpretation of statutes and the constitution de constitutional and statutory provisions. We review the trial court’s not see fit to include. Id. what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider statute, we ascribe the plain and ordinary meaning to the words used. Id. We Epsom, 154 N.H. 693, 697 (2007). When examining the language of the

Rockingham County Comm’rs, 151 N.H. 276, 278 (2004).

Resolving these issues requires that we interpret the relevant insurrection” and to require all

As with other constitutional privileges, see

whenever a fair and impartial trial could not be had in the county where the provision, to “destroy [a defendant’s] common-law right to a change of venue provisions were not exclusive; the framers did not intend, by enacting the upon receipt of a report from the superior court judges, we ruled that these

17 appeared on its face to limit venue changes to times of “general which such waiver could occur. Albee, 61 N.H. at p. 4 429. Although Part I, Article that Part I, Article 17 did not set forth the exclusive circumstances under in Albee that a criminal defendant could waive his right to proper venue, and

own witnesses more easily. Id The Perpetual Laws of the State of New Hampshire. give evidence against him” as well as the ability to secure the attendance of his benefit of such knowledge as the jury may possess of the witnesses who may can be obtained. character and standing with his neighbors if he has preserved them, and the to direct the trial in the nearest county in which an impartial trial framers intended that the accused “have the benefit on his trial of his good committed, and upon their report, the assembly shall think proper trial take place where the crime was alleged to have been committed, the In State v. Albee officials who might be hostile to the accused.” Id. at p. 4 427. By requiring that the distance from the vicinity of the alleged crime and at a place selected by The object of the framers “was to protect the subject against an unfair trial at a parties animated by prejudices of a personal or partisan character.” Id. at 429. county, at a distance from friends, among strangers, and perhaps among accused . . . [to] prevent the possibility of sending him for trial to a remote ruled that the provision was a privilege “designed for the protection of the neighborhood where the fact happened.” Albee, 61 N.H. at 426. We further is the right of the accused to require the charge to be proved in the vicinity or “merely declaratory of the sense of the people that in a criminal prosecution it intended this provision to be protective of the accused. We held that it was trial cannot be had in the county where the offence may be shall appear to the Judges of the Superior Court, that an impartial, 61 N.H. 423, 425 (1881), we ruled that the framers

Reference Guide 77 (200 p. 4 4). “legislature.” See S. Marshall, The New Hampshire State Constitution: A In 1792, this provision was amended to change the word “assembly” to

cases of general insurrection in any particular county, when it in any other county than that in which it is committed; except in and estate of the citizen, that no crime or offence ought to be tried where they happen, is so essential to the security of the life, liberty In criminal prosecutions, the trial of facts in the vicinity obtained. p. 5 county or judicial district in which a fair and impartial trial can be offense may be committed, the court shall direct the trial to a by the court that a fair and impartial trial cannot be had where the judicial district, upon motion by the defendant, and after a finding it is committed; except in any case in any particular county or be tried in any other county or judicial district than that in which liberty and estate of the citizen, that no crime or offense ought to where they happened, is so essential to the security of the life, In criminal prosecutions, the trial of facts, in the vicinity

provides: As amended in 1978, Part I, Article 17 of the State Constitution now

in Albee In 1978, Part I, Article 17 was amended, in effect, to codify our decision

supra at 77. federal courts, in violation of this provision of the state constitution.” Marshall, convincing point that changes of venue had already been ordered by state and Opinion of the Justices, 126 N.H. at 489. “The 1978 Voters’ Guide made the include a legislatively created judicial district.” Marshall, supra at 77; see “broadened the concept of venue in a criminal case from only the county to also also Opinion of the Justices, 126 N.H. 486, 488 (1985). The amendments also legislature upon receipt of a report from the superior court judges. See id.; see insurrection” and the requirement that all venue changes be directed by the (June 13, 1974). The amendments therefore deleted the reference to “general right to a change of venue. See Journal of Constitutional Convention 232-33 amendments also made clear that the State no longer had a constitutional change of venue. Id 77; see We left unanswered the question of whether the State could obtain a also Journal of Constitutional Convention 232 (June 13, 1974). The p. 5 county or judicial district in which the crime occurred. See Marshall, supra at action by the legislature when he showed that a fair trial was impossible in the insurrection and even without a report from the superior court judges and defendant could obtain a change of venue even in the absence of a general . The amendments to Part I, Article 17 made clear that a criminal

extraordinary case of general insurrection. (1891), we held that the State could not obtain a change of venue except in the

guarantees.” Id. committed “for the purpose of securing the fair trial which the constitution law and constitutional right to be tried in the county where the crime was fact happened.” Id. Thus, we held that a defendant could waive his common- p. 6 6

express statement of relinquishment.” 4 W. LaFave et all other defense rights, a defendant can waive his right to proper venue by an nature of the rights that venue is meant to protect. Proper venue prevents the Courts in other jurisdictions have ruled that “[i]n common with almost by silence or by acquiescence in the trial is supported by an examination of the LaFave, supra at 50 p. 6 6-07. “The conclusion that objections to venue are waived defendant’s ‘silence’, in the form of a failure to make a timely objection.” 4 counsel, venue can be ‘waived’ – or more accurately, ‘forfeited’ – by a contrast to such trial guarantees as trial by jury and representation by addition, in the federal system and a substantial majority of the states, in be waived.” (quotation omitted)), cert. denied, 528 U.S. 827 (1999). “In (“It is settled beyond peradventure that venue is a personal privilege which can § 16.1(h), at 506 (1999); see United States v. LiCausi, 167 F.3d 36, 44 (1st Cir.)

option to waive [proper venue]” under other circumstances. Almy contains no language that “precludes or denies to the accused the power or overrule our decision in Albee a criminal defendant may waive his or her right to proper venue. The provision. nothing in the history or language of Part I, Article 17 indicates any intent to This provision is silent with respect to other circumstances under which defendant could waive his constitutional right to proper venue. Importantly, provision to set forth the only method by which and the only reason for which a plain language of those amendments suggest that the people intended that Nothing in the history of the 1978 amendments to Part I, Article 17 nor in the Comp. Fund v. Flynn, Comm’r, 133 N.H. 17, 21 (1990) (quotation omitted). an intent not fairly expressed in it.” New Hampshire Munic. Trust Workers' 280. “We will not redraft the constitution in an attempt to make it conform to

Wisconsin, 400 U.S. 505, 511 (1971) (emphasis added). of venue is required in his case” because of community prejudice. Groppi v. Constitution, “a defendant must be given an opportunity to show that a change Constitution, for as the United States Supreme Court has ruled, under that amended, Part I, Article 17 provides the same level of protection as the Federal the defendant has an absolute right to a change of venue. In this way, as words, upon proof that a fair trial cannot be had in the place of proper venue, lacks any discretion to deny a defendant’s motion for change of venue. In other had in the county or judicial district where the crime occurred, the trial court Part I, Article 17 merely makes clear that, upon proof that a fair trial cannot be to obtain a change of venue upon proof that he cannot obtain a fair trial there. two rights: the right to be tried where the crime was committed and the right judicial district. To the contrary, Part I, Article 17 grants a criminal defendant of venue based upon his inability to obtain a fair trial in the proper county or allegedly committed that he may waive only upon a written motion for change right to be tried in the county or judicial district in which the crime was We disagree with the respondent that Part I, Article 17 grants him the in any case in which there are doubts over the legitimacy of venue.” Delgado-

p. 7 circumstances would create severe perverse incentives for criminal defendants A holding that the respondent “did not waive his venue claim under these

object to venue in Hillsborough County before trial, the respondent waived any Id.; see also 4 LaFave, supra at 507-08. Accordingly, we hold that by failing to every incentive to forego an improper venue claim until after the trial is over.” defendant] – he was well aware of the potential defect in venue, he would have then challenging venue in the event of a conviction.” Id. “Even if – like [the obtain a free second shot at an acquittal by waiting for his trial to conclude and Nunez, 295 F.3d at 497. “A defendant would be able to game the system and

venue to that county. See venue in Hillsborough County was evident the moment the trial court changed under the circumstances of this case, was untimely. and statutory right to proper venue. Every fact giving rise to his objection to respondent first objected to venue in Hillsborough County. Such objection, In this case, we conclude that the respondent waived his constitutional had been assigned. It was not until the close of the State’s case that the trial and asked to be tried by the Hillsborough County judge to which the case fourteen months after the case was transferred, he waived his right to a jury Cheshire County was improper. Not only did the respondent fail to object but, then that venue in Hillsborough County for a crime allegedly committed in Hillsborough County for trial. The respondent knew or should have known after a Cheshire County Grand Jury indicted him, the case was transferred to

the close of the government’s case.” United States v. Delgado-Nunez Collins venue before trial unless “the impropriety of venue only becomes apparent at, 372 F.3d 629, 633 (4th Cir. 2004). Generally, to avoid waiver, a defendant must raise any objections to deemed a waiver. See Delgado-Nunez, 295 F.3d at 497; United States v. objection to venue before trial, his failure to object to venue before trial is contrast, when a criminal defendant knows all of the facts underlying his made at the close of the evidence is timely. Roberts, 308 F.3d at 1152. By the error in venue until the prosecution presents its case, an objection to venue (3d Cir.), cert. denied, 537 U.S. 859 (2002). When the defendant is unaware of cert. denied, 538 U.S. 1064 (2003); United States v. Perez, 280 F.3d 318, 328 (2003); see United States v. Roberts, 308 F.3d 1147, 1151-52 (11th Cir. 2002), 494, 497 (5th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. 1173

See id. at 484; see also 4 LaFave, supra at 507. proper to place the burden of objecting to venue upon the criminal defendant. occurred from conducting the trial in a remote place cannot be remedied, it is 1994). Because once a trial has taken place, any hardship that may have remote place.” State v. Blooflat, 524 N.W.2d 482, 483-84 (Minn. Ct. App. unfairness and hardship that may occur when an accused is prosecuted in a the inquiry.” Pacheco p. 8 “But the conclusion that jeopardy has attached begins, rather than ends,

whatever its label, actually represents a resolution, correct or not, of some or judge’s action. Rather, we must determine whether the ruling of the judge, “[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the

ask whether jeopardy attached in the original trial court proceeding.” Pacheco “When evaluating a double jeopardy claim, a reviewing court first must

judgment of acquittal. See id. regard because the trial court’s grant of directed verdict was not, in fact, a reprosecution.” Id. We conclude that the respondent’s claim fails in this and ask whether the trial court terminated jeopardy in a way that prevents

attaches in a bench trial when judge begins to hear evidence). (1998) (for purposes of Federal Double Jeopardy Clause, double jeopardy that jeopardy attached. See State v. Courtemanche, 142 N.H. 772, 773-74 434 F.3d at 112 (quotation and brackets omitted). Here, the State concedes

after conviction, and against multiple punishments for the same offense.” protects against successive prosecutions for the same offense after acquittal or (1977). conviction. See offense.” “The double jeopardy clause of the New Hampshire Constitution United States v. Martin Linen Supply Co., 430 U.S. 564, 571 reasonable doubt, and, therefore, was legally insufficient to sustain a subject shall be liable to be tried, after an acquittal, for the same crime or evidence and determined that it failed to establish proper venue, beyond a Part I, Article 16 of the New Hampshire Constitution provides that “no the trial court’s decision is an acquittal because the court reviewed the State’s F.3d 106, 112 (1st Cir.), cert. denied, 126 S. Ct. 2312 (2006). He reasons that we would place him in additional jeopardy. See United States v. Pacheco, 434 were to vacate the trial court’s decision and remand for additional proceedings, trial court’s directed verdict constituted an acquittal and that, therefore, if we

, 140 N.H. 685, 687 (1996). The respondent asserts that the

Gonya v. Comm’r, N.H. Ins. Dep’t, 153 N.H. 521, 524 (2006). we base our decision upon it alone, citing federal cases for guidance only. See I, art. 16. Because the respondent argues only under the State Constitution, Clause of the New Hampshire Constitution bars remand. See N.H. CONST. pt. for further proceedings. The respondent argues that the Double Jeopardy The State requests that we vacate the trial court’s decision and remand

erroneous as a matter of law. claim to improper venue. The trial court’s ruling to the contrary is therefore disagree with the Chief Justice that the trial court’s change of venue placed the p. 9 dissent authored by Chief Justice Broderick, we do not address them here. We Finally, as neither of the parties raised the issues discussed in the

the defendant’s retrial. 5 W. LaFave et which appellate courts rely to decide whether the Double Jeopardy Clause bars that does not go to culpability.” 5 LaFave, supra bears upon a criminal defendant’s guilt or innocence is the “touchstone” upon at 666 (quotation omitted). preclude retrial because venue is an element more procedural than substantive contrary, whether a trial court has dismissed an indictment for a reason that failed to establish venue, though framed as a judgment of acquittal, does not proper venue does not bear upon the respondent’s guilt or innocence. To the U.S. at 98-99. “Thus, a trial court’s ruling that the prosecution’s case-in-chief The dissent authored by Justice Galway implies that it is immaterial that injury cognizable under the Double Jeopardy Clause” by his retrial. Scott, 437 factual guilt or innocence of the offense of which he is accused, [he] suffers no “to seek termination of the proceedings against him on a basis unrelated to U.S. 82 (1978). Where, as here, a criminal defendant has deliberately chosen (2d ed. 1999); see Burks, 437 U.S. at 15; see also United States v. Scott, 437

of the State Constitution does not bar remand in this case. respondent. See id. We conclude, therefore, that the Double Jeopardy Clause erroneous order dismissing the indictment and directing verdict for the these circumstances, double jeopardy is not implicated by the trial court’s distinguishable from a verdict of acquittal. Roybal, 132 P.3d at 605. Under improper venue is not an adjudication on the merits and is thus Hutcherson charge for lack of venue. See, 790 S.W.2d 532, 535 (Tenn. 1990), dismissal of an indictment for has nothing whatever to do with the guilt or innocence of a defendant,” State v. material elements of the falsifying evidence charge and simply dismissed the United States v. Kaytso There is no question that the trial court did not decide any of the, 868 F.2d 1020, 1021 (9th Cir. 1988). Because “[v]enue concerns, and venue in this regard is wholly neutral, a matter of procedure.” (1978). However, “[i]t is the merits of the action that animate jeopardy guilt or innocence of the defendant.” Burks v. United States, 437 U.S. 1, 15 S.E.2d 295, 298 (Va. Ct. App. 1988). “It implies nothing with respect to the with respect to the guilt or innocence of the accused. Sutherland v. Com., 368 Improper venue is not an error that stems from the insufficiency of evidence every criminal offense, it is not a material element. See RSA 625:11, III(e), IV. App.), cert. denied, 132 P.3d 1039 (N.M. 2006). While venue is an element of

defendant cannot be convicted.” Pacheco, 434 F.3d at 112 (emphasis added). necessary factual element of the offense is a definitive determination that the 430 U.S. at 571 (citations omitted). “A resolution in the defendant’s favor of a all of the factual elements of the offense charged.” Martin Linen Supply Co., transferred the case from Cheshire County to a judge sitting in Hillsborough p. 10 [respondent] waived his objection to venue, after the Chief Justice had In its petition, the State has raised but a single issue: “Whether the

not waive” his rights under that provision. Article 17 of the State Constitution; and (2) that the respondent “obviously did changed from Cheshire County to Hillsborough County in violation of Part I, The order dismissing the indictment entailed two rulings: (1) that venue was

dismissed.

and that his right having been violated the indictment is this case was a violation of his right under the state constitution,

change of venue in the absence of the defendant as it occurred in to it at the close of the State’s case, and the court finds that the pursuant to Part 1 Article 17 of the constitution and has objected

the defendant obviously did not waive any right that he had

Petition granted; dismissal vacated; and remanded

fact that the two presiding justices had recused themselves, and of venue, and that no reason therefore was stated other than the defendant or by the court or by the presiding justices for a change A review of the file indicates that no motion was ever filed by 10

Hillsborough County void ab this case was unconstitutional, thus rendering the entire proceeding in BRODERICK, C.J., dissenting. Because I believe the change of venue in

verdict, he explained: When the trial judge granted the respondent’s motion for a directed opinion. court’s decision and remand for further proceedings consistent with this For all of the above reasons, we grant the State’s petition, vacate the trial

J., dissented. DALIANIS and HICKS, JJ., concurred; BRODERICK, C.J., and GALWAY,

Hillsborough County. Justice Lynn’s sua sponte order transferring the case from Cheshire County to argued orally. Specifically, we do not address the constitutionality of Chief Justice addresses in his dissent is before us. They were neither briefed nor Cheshire County. More importantly, however, none of the issues the Chief pending in Hillsborough County from filing a motion to change venue back to respondent during the approximately fourteen-month period that the case was respondent in a “Catch-22” position. To the contrary, nothing prevented the p. 11 11

no cases, nor have I found any, addressing the issue of waiver when venue is after it was unilaterally changed to Hillsborough County. The majority refers to Cheshire County. In this case, venue was not improper at the outset, but only County Superior Court, and alleged a crime that took place, at least in part, in venue; it was brought by a Cheshire County grand jury, in the Cheshire court where venue is not proper. See Here, of course, there was nothing wrong with the indictment as it related to establish venue waives any future challenges by failing to object before trial.” waive his or her objection to venue when a prosecution has been brought in a defendant may, by remaining silent or by participating in court proceedings, defendant indicted by an instrument which lacks sufficient allegations to It is manifest in decisions from other jurisdictions that a criminal (5th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. p. 11 1173 (2003): “A following language from United States v. Delgado-Nunez, 295 F.3d 494, 496 upon which the majority relies. Representative of those decisions is the jurisdiction.” (quotation omitted)). To similar effect are all the federal cases the privilege, and cannot be heard to say that the court trying him was without to trial in another judicial district, without objection on his part, he has waived may be waived by an accused person in a number of ways . . . . [W]hen he goes offense is alleged to have been committed is] a right or privilege . . . which . . . 1294 (N.M. 1973) (“this right to be tried in the county or district [in which the begins to hear evidence.” (quotation omitted)); State v. Lopez, 508 P.2d 1292, time jeopardy attaches. Jeopardy attaches in a . . . bench trial when the court criminal defendant waives any challenge to venue by failing to present it by the 1998)].”); State v. Dent, 869 P.2d 392, 399 (Wash. 1994) (“We hold that a the venue of the proceedings under [Neb. Rev. Stat.] § 60-6,205(6)(a) [(reissue objecting to the hearing location, he waived any objection he might have had to (Neb. 2000) (“By virtue of Muir’s participation in the telephonic hearing without case to object); Muir v. Nebraska Dept. of Motor Vehicles, 618 N.W.2d 444, 450 objection to petition’s failure to set out venue by waiting until close of State’s 628, 632-36 (W. Va. 2006) (holding that subject of delinquency petition waived

before us in this case. believe the constitutionality of the trial court’s order changing venue is properly situation that brought the respondent’s constitutional rights into play. I the issue of waiver without also considering the judicial act that created the to change venue that made venue improper, I cannot see how we can consider challenging that ruling. Moreover, as it was the trial court’s unilateral decision unconstitutionally, it is not unreasonable to read the State’s petition as the State has appealed the trial judge’s ruling that venue was changed that venue was changed in violation of the constitution. However, given that not argued, as a discrete issue in its petition, that the trial judge erred in ruling venue until after the State had rested its case.” In other words, the State has jury trial and requesting a trial by the presiding judge, and failed to object to County, where the [respondent] filed a motion in Hillsborough County waiving p. 12 12

originally been set. fair and impartial trial cannot be had in the county or district where trial has venue upon a defendant’s motion only upon a finding by the trial court that a day reconsideration period, see change venue back to Cheshire County. Part I, Article 17 allows a change of Court, “for all purposes.” Thus, it appears likely that before the end of the ten- Cheshire County was adequately protected by the mechanism of a motion to respondent’s case to the Northern District of Hillsborough County Superior share the majority’s opinion the respondent’s constitutional right to a trial in notice of decision that also announced the transfer of the file in the respondent in a “Catch-22” position with no clear way out. Moreover, I do not venue was issued, the clerk of the Cheshire County Superior Court issued a giving the respondent an opportunity to object beforehand, it placed the of the Cheshire County Superior Court. Two days after the order changing the moment the trial court changed venue, on its own motion and without but practical difficulties abound. Here, the order changing venue was an order to venue in that county by participating in litigation there. My point is that at One option might be a motion to reconsider the order changing venue, County would have presented its own difficulties; namely, appearing to consent motion for reconsideration. Filing an objection of some sort in Hillsborough pending case in Cheshire County in which the respondent could have filed a

to venue can be raised at the close of the evidence.” United States v. Collins venue, but the proof at trial fails to support the venue allegation, an objection provides no guidance regarding what form that action should take. majority relies, the Fourth Circuit held that “if an indictment properly alleges sponte change of venue act more quickly than the respondent did here, it the merits of the respondent’s position. In another of the cases upon which the importantly, while the majority would have a defendant subjected to a sua case in order to avoid waiver. On the practical side, however, it is easy to see was committed in the county where the respondent was tried. More defendants on notice that they must act sooner than the respondent did in this change of venue, the evidence at trial did not establish that the alleged crime through a combination of silence or acquiescence, and it puts future Collins; the indictment properly alleged venue, but, albeit because of the The majority holds that the respondent waived his objection to venue At least on the surface, the facts of this case seem to fit the rule stated in defect but the defendant fails to object.” Id. (brackets and quotation omitted). defendant does not waive venue unless the indictment clearly reveals the venue 372 F.3d 629, 633 (4th Cir. 2004). The Collins court went on to explain that “a

purported waiver of an objection to the trial court’s change of venue. case involves not the waiver of an objection to improper venue, but the directed by the trial court for administrative reasons. And, to be clear, this initially proper but has been rendered improper by a unilateral change of venue which the constitution guarantees,” State v. Albee p. 13 which the alleged crime took place, “for the purpose of securing the fair trial held that a defendant may waive his right to be tried in the county or district in waived his constitutional right to a trial in Cheshire County. While we have when he filed his first pleading in Hillsborough County Superior Court, he respondent failed to object to the order changing venue or, at the very latest, tried in Cheshire County. The petitioner argues, however, that once the Both parties agree that the respondent had a constitutional right to be

N.H. CONST. pt. I, art. 17.

defendant’s] common-law right to a change of venue whenever a fair and obtained. Part I, Article 17, as then in force, was “not intend[ed] to destroy [the county or judicial district in which a fair and impartial trial can be where the offence may be committed.” Id offense may be committed, the court shall direct the trial to a. at 424. As we explained in Albee, it shall appear to [them] that an impartial trial cannot be had in the county by the court that a fair and impartial trial cannot be had where the change venue “in cases of general insurrection in any particular county, when judicial district, upon motion by the defendant, and after a finding venue, but only granted the justices of the superior court the authority to it is committed; except in any case in any particular county or in force today, did not mention the defendant’s right to file a motion to change be tried in any other county or judicial district than that in which because the version of Part I, Article 17 in force at the time, unlike the version liberty and estate of the citizen, that no crime or offense ought to authority to grant a defendant’s motion to change venue was at issue in Albee where they happened, is so essential to the security of the life, venue, id In criminal prosecutions, the trial of facts, in the vicinity., and no such motion was ever filed in this case. The trial court’s the waiver at issue in Albee took the form of the defendant’s motion to change

provides, in pertinent part: p. 13 which the alleged crime took place is granted by the State Constitution, which The right of a criminal defendant to be tried in the county or district in

regarding the procedure for objecting to a sua of guidance in either the law of this state or the decisions of other jurisdictions In light of the position in which the respondent was placed, and the lack

changing venue, an issue ostensibly not raised in the petitioner’s brief. question of waiver without also addressing the constitutionality of the order charging document – I am unconvinced that it is possible to deal with the opposed to merely objecting to a defect in venue apparent on the face of a

do not need to inquire.

rules of court and our decisions is any Conspicuously absent from the State Constitution, the relevant statutes and one county or district to another: to secure a fair and impartial trial. both versions of Article 17 specify a single reason for transferring a case from judges of the superior court to the defendant to move for a change of venue, While the amendment of Part I, Article 17 shifted the initiative from the

be the only occasion on which the state can move for a change, we state, or by the state alone, to obtain a change of venue, and would

venue other than providing a fair and impartial trial. rights would present an occasion which can be improved by the

court upon its own motion. change of venue may be initiated by the State, as prosecutor, or by the trial committed.” Since 1978, we have not had the occasion to decide whether a court that a fair and impartial trial cannot be had where the offense may be may be changed “upon motion by the defendant, and after a finding by the Whether the emergency named in article 17 of the bill of omitted)). Part I, Article 17 was amended in 1978 and now provides that venue p. 14 Id other county than that in which’ the offence was committed.” (citations Unless the defendant asks for a change of venue, he cannot be tried ‘in any a change of venue except in the extraordinary case of a general insurrection. the nearest county in which an impartial trial can be obtained. .; see their report, the legislature shall think proper to direct the trial in also State v. Sawtelle, 66 N.H. 488, 504 (1891) (“The state cannot have had in the county where the offence may be committed, and, upon to the judges of the superior court that an impartial trial cannot be general insurrection in any particular county, when it shall appear other county than that in which it is committed, except in cases of of the citizen, that no crime or offence ought to be tried in any happen is so essential to the security of the life, liberty, and estate In criminal prosecutions the trial of facts in the vicinity where they . (quotation omitted). In Albee we explained:

At the time Albee

provided:

recognized in Albee was established as a constitutional right. 429. When Part I, Article 17 was amended in 1978, the common law right we impartial trial could not be had in the county where the fact happened.” p. 14 Id. at venue changes that existed at common law. p. 15 authorization as having abrogated any authority for sua sponte

trial. Most states, however, view the absence of a statutory recognized as to a change needed to obtain a fair and impartial

several states, an inherent judicial authority to change venue is witness convenience, and such matters as court congestion. In

which encompasses concerns relating to providing a fair trial, pending; and (5) the interest of sound judicial administration, cannot, from any cause, be had in the county in which the case is trial, alike fair and impartial to the accused and to the State, impartial trial cannot be had in the county of prosecution; (4) a community so prejudiced against the defendant that a fair and be impossible to secure a jury to try [the] cause in the county; (3) a exhaustion of so many jury panels as to clearly indicate that it will

against the defendant or disruption of the proceedings; (2) the

recognized in one or more states are: (1) the threat of violence

the grounds they accept for the change. Among the grounds objections of the parties. Those provisions differ dramatically in to grant a change of venue on its own motion, notwithstanding the 15

Roughly a dozen states have provisions authorizing the court

receives a fair trial.” 4 W. LaFave et of venue on a timely defense motion where needed to ensure that the defendant “All fifty-two jurisdictions recognize judicial authority to grant a change

(2d ed. 1999). Change of venue on the court’s own motion is another matter.

any reason other than securing a fair and impartial trial. protect the rights of the defendant, to allow the trial court to change venue for anomalous indeed, given the acknowledged purpose of Part I, Article 17 to even if venue may be changed upon the trial court’s own motion, it would be that the defendant alone has the power to move for a change of venue. But it can change venue upon its own motion. I tend to agree with Justice Galway the defendant, it is silent regarding the finding a trial court must make before out the finding a trial court must make before changing venue upon motion by accommodating judicial convenience. Moreover, while Part I, Article 17 sets Nowhere in our cases is Part I, Article 17 described as a tool for was protected was the defendant’s right to a fair and impartial trial. Id. not the destruction, of individual rights,” id. We further explained that what the accused,” Albee, 61 N.H. at 429, and that its purpose was “the protection, in Albee, we explained that Part I, Article 17 was “designed for the protection of we recognized the defendant’s common-law right to move for a change of venue other than to provide the defendant a fair and impartial trial. However, when venue on its own motion, or whether venue may be changed for any reason We have never decided whether a trial court has the authority to change an opportunity to present their views on the necessity for a change of venue to p. 16 venue upon a trial court’s own motion: “under [such a rule], both parties have Court has aptly explained one good reason for a rule disallowing any change of constitutional rights, such as the right to a speedy trial. The Idaho Supreme fair and impartial trial, protect the safety of the defendant or protect other defendant’s objection, when the purpose of the change of venue is to secure a whether a trial court may change venue, upon its own motion and over a Such a holding would leave undecided a number of questions, including

fair and impartial trial. reasons wholly unrelated to preserving the defendant’s constitutional right to a the defendant, transfer a case from one county or district to another for criminal case may not, upon its own motion and without the express consent of hold that under Part I, Article 17 of the State Constitution, a trial court in a correctly ruled that the change of venue was unconstitutional, and I would impartial trial for the defendant in Cheshire County, I believe the trial judge was not supported by any findings concerning the availability of a fair and single goal: a fair and impartial trial. Because the change of venue in this case motion, I am confident we would limit that authority to the achievement of a the inherent authority to change the venue of criminal trials upon their own jurisdictions, we were to recognize under the common law that trial courts have venue of a criminal trial. If, against the weight of authority from other New Hampshire does not by statute authorize a trial court to change the

its own motion, based upon the inherent power of a trial court to

Manifestly it should be resorted to only in aid of justice and only after a solid foundation of fact has been first established.

Id. at 49 (emphases added). In summary, we affirm the trial court’s change of venue on the court may act on its own motion to assure a fair trial. cannot be obtained, yet there is no motion for a change of venue, 1911)]. When the trial court determines that an impartial jury [Crocker v. Justices of Superior Court,] 94 N.E. [369,] 377 [(Mass.

admonished, this power “should be exercised with great caution However, as the court in Crocker v. Justices of Superior Court provide the defendant with a fair trial by an impartial jury.

motion is the following, from the Colorado Supreme Court: recognizing the trial court’s inherent power to change venue upon its own defendant a fair trial within the speedy trial period”). Typical of those opinions independently sufficient reason for the venue change . . . [i.e.,] to assure the congestion was proper reason for changing venue when trial court had “an People, 750 P.2d 37, 48 (Colo. 1988) (declining to decide whether docket Id. § 16.3(f), at 557-58 (quotations and footnotes omitted). But see Wafai v. must be directed toward the next criminal defendant subjected to a sua p. 17 this particular defendant from successfully gaming the system; our attention jeopardy had attached. However, we have a greater concern than preventing accuse him of trying to “game the system” by attacking venue only after at the close of the State’s case in a one-day trial – it would not be unfair to venue – and the manner in which he requested it – by means of a motion filed the trial court – a judgment of acquittal based upon the State’s failure to prove I readily concede that in light of the relief the respondent requested from

reconsideration period, the defendant, through understandable inaction, could venue for any reason at all, and that ten days later, after the running of the change of venue. I worry that under today’s holding, a trial court could change

the event of a conviction.”). an acquittal by waiting for his trial to conclude and then challenging venue in defendant would be able to game the system and obtain a free second shot at benefit of “gaming the system.” See Delgado-Nunez, 295 F.3d at 497 (“A unconstitutional, the entire proceeding in Hillsborough County was void ab I, Article 17, does not subject him to double jeopardy and denies him any conducted there. In my view, however, given that the change of venue was disposition I advocate honors the respondent’s constitutional rights under Part County for delivery of a verdict based upon the trial that has already been attached there, because the entire proceeding there was a legal nullity. The perfectly clear, it appears that we are remanding the case to Hillsborough majority: jeopardy did not attach in Hillsborough County, nor could it have disagree with the majority’s ultimate disposition of this case. Although it is not concerns for an even more fundamental reason than those stated by the the case based upon the unconstitutionality of the venue change, I also Moreover, trial in Cheshire County would not implicate double jeopardy Because the majority bases its decision upon waiver, and I would decide improper venue, it seems to me, is a trial in a county where venue is proper. Cheshire County, where venue is undeniably proper. The current remedy for remand to the trial court with instructions to transfer the case back to court that lacks constitutional authority to render one. Accordingly, I would initio – a legal nullity. Thus, we are sending this case back for a verdict from a

litigating his case in Hillsborough County, the venue to which he objected. a motion to reconsider in a court where his case was no longer pending, or was afforded no opportunity to present his views or object, other than by filing venue was a fait accompli by the time the respondent learned of it, and so he concerns expressed in Ash were, in fact, realized in this case; the change of should hold a hearing on any such objections.”). As I have already noted, the change venue a court should afford the parties an opportunity to object and (Idaho 1972); cf. Wafai, 750 P.2d at 48 (“Before exercising its inherent power to the court before its decision on the issue. State v. Ash, 493 P.2d 701, 704 p. 18 Petition of Below they must be presumed to have had to the electorate when the vote was cast. intent, bearing in mind that we will give the words in question the meaning conducted after an unlawful sua When interpreting a constitutional provision, we look to its purpose and changed unconstitutionally, and I would further hold that any proceeding To conclude, I would affirm the trial judge’s ruling that venue was

misinterprets the relevant law, and I, therefore, dissent. 18 majority’s opinion holds some appeal as a matter of public policy, I believe it decide the issues I have raised in this dissent. silence or inaction and that double jeopardy does not bar his retrial. While the constitutional rights of criminal defendants and prevent us from having to right to trial in the county where the crime was alleged to have occurred by his is to be always understood and explained in that sense in which it was used at agrees with the State’s arguments that the defendant waived, or forfeited, his in the great paramount law which controls the legislature as well as the people, tried again should this matter be remanded. The majority’s opinion, however, defendant contends that principles of double jeopardy prevent him from being, 151 N.H. 135, 139 (2004). “The language used by the people could not get a fair and impartial trial in that county. Additionally, the only by moving the court to transfer the case and by demonstrating that he in which the alleged crime was committed, and that he could waive that right the New Hampshire Constitution grants him the right to be tried in the county GALWAY, J., dissenting. The defendant argues that Part I, Article 17 of

other of these two suggestions, future trial courts can preserve the by the defendant that he was tried in the wrong venue. By following one or the latter procedure would have foreclosed any subsequent meritorious complaint and a defendant’s rights under Part I, Article 17 of the State Constitution. The embodies what I believe to be the correct balance between judicial convenience former procedure would have resulted in a trial in the proper venue and Cheshire County; or (2) seeking the respondent’s consent beforehand. The by: (1) specially assigning a trial judge and directing that the trial continue in Finally, I note that the trial court could have avoided this appeal entirely to transfer the case back to Cheshire County for a trial in the correct venue. nor a judgment of acquittal, the proper remedy is a remand with instructions proceedings were a legal nullity involving neither the attachment of jeopardy objection to venue was timely, and that because the Hillsborough County that venue was never proper in Hillsborough County, that the respondent’s subsequent failure to object. Accordingly, I would decide this case by holding legal nullity – and for that reason cannot be revived by a defendant’s

fitting way to treat a constitutional right. be found to have “waived” his right to contest venue. This does not seem a p. 19 The Perpetual Laws of the State of New Hampshire

can be obtained. to direct the trial in the nearest county in which an impartial trial committed, and upon their report, the assembly shall think proper

trial cannot be had in the county where the offence may be shall appear to the Judges of the Superior Court, that an impartial Article 17 as presently worded provides procedure for change of

that the delegates paid any heed to the ruling in Albee amended language of Part I, Article 17 was discussed and adopted indicates Nothing in the record of the constitutional convention at which the 19

“counties.” Resolution eliminates provision as to “general venue only in cases of general insurrection and refers only to cases of general insurrection in any particular county, when it any other county than that in which it is committed; except in the to the committee report on the resolution to amend Part I, Article 17: estate of the citizen, that no crime or offence ought to be tried in waive proper venue in any case other than a “general insurrection.” According they happen is so essential to the security of the life, liberty and In criminal prosecutions, the trial of facts in the vicinity where that a defendant could

Albee. I disagree. concludes that in 1978, Part I, Article 17 was amended, in effect, to codify destroyed, could be waived by a defendant’s silence. Id In State v. Albee. at 428. The majority common-law right, which the framers could not be presumed to have allegedly committed. Id. Nevertheless, we also held in Albee, that this fair and impartial trial could not be had in the county where the crime was intend to destroy a defendant’s common-law right to a change of venue when a 427. This was so, we stated, because the framers of the provision did not waive venue in a particular county when a fair trial could not be had. Id. at When Part I, Article 17 was originally enacted it read: We held, however, that despite this single exception, a defendant could also crime was alleged to have occurred was in the case of a “general insurrection.” requirement in Part I, Article 17 that venue be placed in the county where the interpreting this provision, we recognized that the only exception to the

Hampshire State Constitution A Reference Guide 77 (2004). remained unchanged for nearly 200 years. See S. Marshall, The New Other than the minor change from “assembly” to “legislature,” this provision

ellipsis omitted). the time when the constitution and the laws were adopted.” Id. (quotation and motion by the defendant, and p. 20 the express language of the provision that a change in venue may be had “upon cannot obtain a fair trial there. The majority’s formulation, however, excludes was committed and the right to obtain a change of venue upon proof that he grants a criminal defendant two rights: the right to be tried where the crime The majority next concludes that Part I, Article 17, as presently written,

fair trial. To hold otherwise, is to ignore the clear words of the Constitution obtain a change of venue upon his motion and proof that he cannot obtain a right referenced by the majority ought to state that a defendant has the right to defendant’s motion and a finding by the court are required. Thus, the second (emphasis added). The use of the conjunctive signifies that both the impartial trial cannot be had where the offense may be committed . . . .”

intent of the framers in Albee Part I, Article 17, as it currently exists, does that which we said was the

silence can no longer be considered the law of this state. obtaining that change, the conclusion in Albee that venue may be waived by however, Part I, Article 17 now explicitly provides a particular procedure for trial cannot be had, Part I, Article 17 has an effect similar to Albee. Because, extent it protects a defendant’s right to obtain a change in venue when a fair that changes in venue be made “upon motion by the defendant.” Thus, to the may not be had, but also prescribes the procedure for doing so, by requiring specifically provides a defendant the right to change venue when a fair trial I, Article 17. Following the 1978 amendment, Part I, Article 17 not only change venue by silence or inaction. No such infirmity continues to infect Part fair trial could not be obtained and that a defendant could waive the right to this omission that we held both that a defendant could change venue when a permitted changes in the case of a general insurrection. It was in the face of defendant to invoke that right regardless of the fairness of a trial, and only Albee was decided, however, the Constitution did not define any method for the the venue of prosecution when a fair and impartial trial cannot be had. When

could waive his right to venue in a particular county. considers the effect of the amendment on the method by which a defendant amendment, in effect, codified Albee. This is especially true when one particular county, I do not believe there is a basis to conclude that the 1978 be similar to that of Albee, in that it permitted a defendant to waive venue in a of general insurrection.”). Thus, while the effect of the 1978 amendment may had to be tried within the county in which the crime occurred, except in cases (emphasis added); see also Marshall, supra at 77 (“Until 1978, criminal cases Journal of the Convention to Revise the Constitution 232 (June 13, 1974)

fair and impartial trial cannot be had. and provides for a change of venue on motion of defendant when insurrection,” broadens “counties” to include “judicial districts” material element, the majority concludes that dismissing the case for lack of p. 21 Since venue does not bear upon a defendant’s guilt or innocence and is not a material element, and does not bear upon a defendant’s guilt or innocence. majority reasons that although venue is an element of the crime, it is not a material elements of the crime, but dismissed the charge for lack of venue. The According to the majority, the trial court did not decide any of the

barred by principles of double jeopardy. With this conclusion I also disagree. venue, the majority also concludes that reprosecution of the respondent is not After concluding that the respondent had waived his right to contest

dismiss the matter for improper venue was correct. such motion here, I would conclude that the decision of the superior court to be based upon a motion by the defendant and because the defendant made no Because the New Hampshire Constitution requires a change in venue to

unlike other enumerated rights, may be waived by silence. See waived. The federal courts, therefore, have interpreted this right as one that, under what circumstances the right to venue in a particular place may be for prosecutions, does not contain any language explaining how, when, or such conclusion. The Federal Constitution, however, in defining proper venue forfeited by a defendant’s silence and cites the appealing policy reasons for disagreement. majority of the states have held that the right to venue may be waived or ought to be, no matter how appealing the reason, or numerous those in Lastly, the majority notes that courts in the federal system and a inappropriate. We must interpret our Constitution as it is, not as we believe it purpose of interpreting the New Hampshire Constitution in this context is Thus, I believe reliance upon the laws and cases of other jurisdictions for the analyses and conclusions of those jurisdictions ought to be applied here. other jurisdiction bear sufficient similarity to Part I, Article 17 such that the majority does not explain how the rules, statutes, cases, or constitutions of any parallel provisions of the United States Constitution.”). Additionally, the New Hampshire Constitution as more protective of individual rights than the fundamental rights, our court has stated that it has the power to interpret the Constitution is to provide the minimum level of national protection of See State v. Ball, 124 N.H. 226, 231-32 (1983) (“While the role of the Federal to have been committed. Thus, the analysis of the federal courts is inapposite. procedure for waiving the right to venue in the place where the crime is alleged at work here. The New Hampshire Constitution specifically provides the States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984). No such omission is

and not mere silence. that a change in venue is to be based upon an affirmative act by the defendant, element” has any bearing on the outcome. Cf p. 22 is simply not a case where the distinction between “element” and “material acquittal entered when the State fails to prove an element of the offense. This meaningful distinction between this dismissal and any other judgment of because the State did not prove an element of the offense. There is no venue bears upon the respondent’s guilt or innocence, this case was dismissed not proven an element of the offense. Thus, irrespective of whether proper not shown that venue was proper in Hillsborough County, and, therefore, had the superior court dismissed the case because it determined that the State had element of every offense under the statute. Here, at the conclusion of the trial, each element of an offense and, as the majority and I agree, venue is an irrelevant here. In order that the defendant be convicted, the State must prove an offense, the distinction between “element” and “material element” is While I agree with the majority that venue is not a “material element” of

conduct.” the definition of the offense, or (2) any justification or excuse for the prescribed any other matter similarly unrelated to (1) the harm sought to be prevented by does not relate exclusively to the statute of limitations, jurisdiction, venue or to RSA 625:11, IV defines a material element of an offense as “an element that

For these reasons, I respectfully dissent.

(e) Establishes jurisdiction or venue.

. . .

is barred by double jeopardy. a material element). Accordingly, I would conclude that retrial of the defendant 691 (2001) (mens rea need not be proved as to particular element because not

attendant circumstances, or such a result of conduct as:

of an offense unless each element RSA 625:10 (2007) states, in relevant part: “No person may be convicted

III. “Element of an offense” means such conduct, or such

pertinent part: reasonable doubt.” (Emphasis added.) RSA 625:11 (2007) provides, in

implicate principles of double jeopardy. proper venue is distinguishable from a verdict of acquittal, which would