2008-912, State of New Hampshire v. Charles Glenn, Jr. (modified by order dated Sept. 14, 2010)

In this interlocutory appeal, see

remand. and (3) motion in limine to exclude evidence of robbery. We affirm and double jeopardy; (2) motion to dismiss based upon prosecutorial misconduct; denying his: (1) motion to dismiss all pending indictments on the basis of Charles Glenn, Jr., challenges the rulings of the Superior Court (Barry, J.)

Marayati orally), for the defendant. Melrose, Massachusetts (Bruce E. Kenna on the brief, and Ghazi D. Al-

THE SUPREME COURT OF NEW HAMPSHIRE orally), for the State. attorney general, on the brief, and Peter Hinckley, assistant attorney general,

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 22 as trial was held from July 11-31, 2006. p. 2 Salvatore’s testimony. The trial court denied both parties’ motions and a jury defendant argued that the State should be precluded from presenting that this perjury produced the indictments against him. Alternatively, the indictments, arguing that Salvatore perjured himself before the grand jury, and surrounding the shooting. Concurrently, the defendant moved to dismiss the the defendant based upon Salvatore’s newest account of the circumstances version of events and moved for a continuance of the trial in order to re-indict The State informed the defendant and the trial court of Salvatore’s new

the handgun as a concealed weapon after the shooting. stated that he purchased a 9-mm handgun and applied for a permit to carry and that the victim may have reached for a gun before being shot. He also shooting. Most notably, he stated that the shooting occurred inside his car Salvatore spoke with the police again and provided a different version of the On July 10, 2006, before the start of trial but after jury selection,

account to the one he gave on September 4, 2005. In January 2006, Salvatore testified before the grand jury, providing a similar 2 black male meeting the defendant’s description approached and then shot him. when they arrived at the complex, the victim climbed out of the vehicle and a complex to conduct a pre-arranged drug purchase. He informed police that 2005, he admitted that he and the victim had driven together to a housing grab the victim’s gold chain and shoot him. Five days later, on September 4, between the victim and an unknown black male, and watched the black male after the shooting, Salvatore told police that he came upon an argument during the investigation, “Salvatore repeatedly lied to the State.” Immediately depended heavily upon the testimony of Salvatore. The trial court found that At trial, the State’s proof that the defendant shot and killed Gosselin

Salvatore. upon the perjured grand jury testimony of a critical eyewitness, Joseph in the back with a gun.” Both indictments had been obtained based, in part, manifesting an extreme indifference to the value of human life by shooting him

recklessly cause the death of Leonard Gosselin under circumstances The second degree murder indictment alleged that the defendant “did a gun, by shooting Leonard Gosselin in the back with that deadly weapon.” while attempting to commit robbery while armed with a deadly weapon, to wit, death of Leonard Gosselin before, after, while engaged in the commission of, or degree murder indictment alleged that the defendant “did knowingly cause the 630:1-a (2007), and second degree murder, see RSA 630:1-b (2007). The first indicted the defendant on alternative counts of first degree murder, see RSA the trial court’s orders, or are undisputed. On January 20, 2006, a grand jury The following facts are taken from the interlocutory appeal statement and p. 3 (3) a motion in the prior trial; (2) a motion to dismiss based on prosecutorial misconduct; and indictments alleged the same offense of which the jury acquitted him during defendant filed: (1) a motion to dismiss all pending indictments because the shooting Leonard Gosselin in the back with a gun.” Subsequently, the 630:1-b) in that [he] did knowingly cause the death of Leonard Gosselin by that the defendant “did commit the crime of Second Degree Murder (RSA The second indictment alleged knowing second degree murder; specifically, degree murder, identical to the charge upon which the first jury deadlocked. alternative charges of second degree murder. The first alleged reckless second On October 23, 2006, the grand jury returned an indictment on two

shooting. lied at trial when he said that he did not apply for a permit until after the half weeks before the victim’s death. The defendant contends that Salvatore indicated that Salvatore applied for the permit on August 5, 2005, three-and-aof the United States and the New Hampshire Constitutions, see handgun permit application, which the State then produced. The application On appeal, the defendant first argues that the Double Jeopardy Clauses Subsequently, the defendant requested a copy of Salvatore’s concealed

I. Double Jeopardy 3

degree murder constitute the same offense of which the jury acquitted him alternative indictments for reckless second degree murder and knowing second and acquitted of first degree murder in July 2006. He contends that the amend. V; N.H. CONST. pt. I, art. 16, prohibit his retrial because he was tried

charge. The defendant moved for a mistrial, which the court granted. of first degree murder, but deadlocked on the reckless second degree murder three motions and the defendant filed this interlocutory appeal. instructions. After five days of deliberations, the jury acquitted the defendant murder and manslaughter. The defendant assented to these lesser-included limine to exclude evidence of robbery. The trial court denied all and to then consider the lesser-included offenses of knowing second degree

indicted charges of first degree murder and reckless second degree murder, At the close of trial, the court instructed the jury to first consider the

also stated that he did not own a gun prior to the shooting. permit to carry a concealed weapon because he feared for his life. Salvatore from Salvatore that he purchased his gun after the shooting and applied for a statements, and his perjured grand jury testimony. Defense counsel elicited different versions of the circumstances surrounding the shooting, his police During cross-examination, defense counsel questioned Salvatore about the July 10, 2006. The defendant’s trial theory was that Salvatore shot the victim. At trial, Salvatore testified consistently with the statement he gave on required different evidence. p. 4 murder charge did not include this element. Accordingly, the two charges robbery while armed with a deadly weapon.” The reckless second degree after, while engaged in the commission of, or while attempting to commit State had to prove that the defendant caused the death of Gosselin “before, Additionally, to convict the defendant of first degree felony murder, the

conduct will cause a prohibited result.” State v. Bergen person acts knowingly when “he is aware that it is practically certain that his focusing upon the elements of each offense charged. See that the defendant “knowingly cause[d] the death of Leonard Gosselin.” A second degree murder after being acquitted of first degree felony murder, conviction on the first degree murder indictment, the State had to establish extreme indifference to the value of human life.” In comparison, to obtain a cause[d] the death of Leonard Gosselin under circumstances manifesting an

indictment as charged requires proof of a different mens

(1996) (quotation omitted).

We first address whether the defendant can be retried for reckless

degree reckless murder charge, the State has to prove that he “recklessly first degree felony murder indictment. To convict the defendant of the second

terminating on that charge”). Here, the second degree reckless murder the deadlocked charge because jury deadlock prevents original jeopardy from due to jury deadlock, an acquittal on the other does not, in itself, bar retrial for N.H. 673, 677-78 (2000) (noting that “when a mistrial is granted on one charge

and against multiple punishments for the same offense.” Petition of State of “successive prosecutions for the same offense after acquittal or after conviction, allegations contained in the indictments.” Id Part I, Article 16 of the New Hampshire Constitution protects against. (quotation omitted). compare “the statutory elements of the charged offenses in light of the actual Hannon, 151 N.H. 708, 713 (2005) (quotation omitted). We analyze and crimes as charged will in actuality require a difference in evidence.” State v. double jeopardy test, our focus is upon “whether proof of the elements of the N.H. 765, 773 (2008) (quotation and brackets omitted). When applying this requires proof of an element that the other does not.” State v. McGurk, 157 offenses will be considered the same for double jeopardy purposes unless each N.H. (State v. Johanson), 156 N.H. 148, 156 (2007) (quotation omitted). “Two

for guidance only, id. at 232-33. Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions (2009). We first address the defendant’s claim under the New Hampshire of constitutional law, our review is de novo. State v. Flood, 159 N.H. 353, 355 during the prior trial. Because the defendant’s argument presents a question because jeopardy on the latter charge has not terminated. See p. 5 bar retrial on the lesser included offense of knowing second degree murder that the defendant’s acquittal on the first degree felony murder charge does not murder charge but made no finding on the lesser included offense. We hold in the original indictment. The jury acquitted the defendant of the first degree lesser included offense of knowing second degree murder that was not specified Similarly, here, in the first trial, the court instructed the jury on the

The defendant further contends that Yeager v. United States 5

counts, the government obtained a new indictment for some of the insider counts. Id. at 2364. After a mistrial was declared as to the insider-trading acquitted the defendant of the fraud counts but hung on the insider-trading insider trading and fraud. Yeager, 129 S .Ct. at 2363-64. At trial, the jury related to his employment as an officer of Enron Broadband Services, including Jeopardy Clause. In Yeager For example, in Gooday, the defendant was tried on a variety of offenses second degree knowing murder indictments against him under the Double 2360 (2009), requires the dismissal of the second degree reckless murder and

F.2d at 83; Grabowski, 644 A.2d at 1286.

murder and manslaughter upon which the jury deadlocked). murder barred his retrial for the lesser included offenses of second degree (rejecting defendant’s argument that his acquittal on a charge of first degree on them. Gooday, 714 F.2d at 82-83; see Grabowski, 644 A.2d at 1286 offenses at the defendant’s request but the jury simply did not reach a verdict because the trial court had instructed the jury on these lesser included second degree murder, voluntary manslaughter or involuntary manslaughter defendant’s acquittal for first degree murder did not preclude his retrial on

1995). charge”); see Andrade v. Superior Court, 901 P.2d 4 p. 6 61, 464 (Ariz. Ct. App. necessarily implies an acquittal on all lesser offenses included within that lesser included offense, “an acquittal on the crime explicitly charged in the indictment. Gooday, 714 F.2d at 82 (if no instructions are given on instruction on a lesser-included offense effectively operates as a separate count 1247 (2000); State v. Grabowski, 644 A.2d 1282, 1286 (R.I. 1994). An (1984); Griffin v. State, 717 N.E.2d 73, 82 (Ind. 1999), cert. denied, 530 U.S. States v. Gooday, 714 F.2d 80, 83 (9th Cir. 1983), cert. denied, 468 U.S. 1217 deadlocked or failed to address the lesser-included offense. See, e.g., United the jury was instructed on the lesser-included offense; and (2) the jury a lesser-included offense, despite being acquitted of the greater offense, if: (1) murder is not dispositive. Most courts find that a defendant may be retried for knowing second degree murder is a lesser-included charge of first degree felony degree murder indictment violates the double jeopardy doctrine. The fact that Next, we address whether the defendant’s retrial on the knowing second 6 Federal Constitution under these circumstances. See The State Constitution provides at least as much protection as the

lie. . . . And that lie did crumble, didn’t it.” Therefore, we hold that Yeager in a parking lot, grabbed for his chain and shot him and ran away. And that is a the victim’s shooting, asserting, “The accusation . . . is that he went up to a guy under the State Constitution. argument, the defendant denied that he was involved in a robbery at the time of Accordingly, we reach the same result under the Federal Constitution as we do defendant contested all elements of the crime throughout his trial. In his closing “same elements” test in federal double jeopardy); Gooday, 714 F.2d at 82-83. rob the victim at the time of the shooting. Indeed, the record reveals that the 509 U.S. p. 6 688, 696-704 (1993) (overruling “same conduct” test and retaining degree felony murder on other grounds, such as the defendant did not attempt to United States v. Dixon, matters, we believe that the jury could have based its acquittal for the firstweapon.” Based on our review of the record, evidence, charge, and other relevant neither of which requires proof of robbery for conviction. deadly weapon, to wit, a gun by shooting [the victim] in the back with that deadly not bar the defendant’s retrial for second degree knowing or reckless murder, in the commission of, or while attempting to commit robbery while armed with a “did knowingly cause the death of Leonard Gosselin before, after, while engaged does disagree. The first degree felony murder indictment alleged that the defendant defendant asserts that this was the sole issue contested at the original trial. We therefore, his reprosecution is barred by the Double Jeopardy Clause. The felony murder, necessarily found that he did not shoot and kill the victim, and, Here, the defendant argues that the jury, by acquitting him of first-degree Extending its holding in Ashe v. Swenson

not be considered in this determination. Id. at 23 p. 6 67-68. from consideration.” Id. at 2367 (quotations omitted). A hung jury count should its verdict upon an issue other that that which the defendant seeks to foreclose other relevant matter, and conclude whether a rational jury could have grounded of a prior proceeding taking into account the pleadings, evidence, charge, and decipher what a jury has necessarily decided,” courts should “examine the record same trial. Yeager, 129 S. Ct. at 2366-67. The Supreme Court directed that “to trial” even if the acquittal and the failure to reach a verdict occurred during the from relitigating an issue that was necessarily decided by an acquittal in a prior Supreme Court held that “the Double Jeopardy Clause precludes the government

indictments violated the Double Jeopardy Clause. trading counts on which the jury had hung. Id. The defendant claimed these the defendant into moving for a mistrial and the defendant does so.” State v. p. 7 . . . where a prosecutor engages in misconduct with the intention of provoking court to determine. Murray Clause of the New Hampshire Constitution. “Double jeopardy will bar retrial 7 the protections of the Double Jeopardy Clause is a question of fact for the trial Whether the State engaged in misconduct or had the intent to undermine We first address the defendant’s arguments under the Double Jeopardy

uphold it. omitted.) Because there is evidence in the record to support this finding, we the time was likely to occur in the absence of his misconduct.” (Quotation misconduct undertaken to prevent an acquittal that the prosecutor believed at trial court “d[id] not find any misconduct on the part of the State, let alone supports them and they are not unlawful. Murray, 153 N.H. at 679. Here, the We will uphold the trial court’s factual findings provided that the evidence

State v. Murray Under either exception, the State must have engaged in misconduct. negligence, is required to bar retrial”); see also Kennedy, 456 U.S. at 675-76. at 681 (stating that “an additional showing, beyond prosecutorial gross intent” standard is consistent with the federal standard. See Murray, 153 N.H. defendant into seeking a mistrial and did not bar retrial). This “deliberate defendant’s inadmissible criminal record was not intended to provoke the (2004) (holding that prosecutor’s question which elicited reference to 147 N.H. at 172 (quotation omitted); see State v. Zwicker, 151 N.H. 179, 188 “to subvert the protections afforded by the Double Jeopardy Clause.” Marti, Carrasquillo, 70 F.3d 706, 714-15 (1st Cir. 1995). The State also must intend

, 153 N.H. 674, 681 (2006); see United States v. Cartagena-

dismissal with prejudice is neither warranted nor required. any misconduct during the first trial, and that even if there were misconduct, Marti, 147 N.H. at 171 (quotation omitted). future trial . . . should be barred.” The State counters that it did not engage in believed at the time was likely to occur in the absence of his misconduct.” defendant asserts, “full acquittal was a sound possibility,” and, therefore, “[a]ny prosecutor is undertaken . . . to prevent an acquittal that the prosecutor exculpatory evidence. Had the State not engaged in this misconduct, the (1982). Double jeopardy also bars retrial where “the misconduct of the only eyewitness to commit perjury at trial, and failed to disclose material Marti, 147 N.H. 168, 170 (2001); see Oregon v. Kennedy, 456 U.S. 667, 679 alleges that the State proceeded to trial on tainted indictments, permitted its State intentionally engaged in prosecutorial misconduct. Specifically, he Clauses of the State and Federal Constitutions prohibit his retrial because the The defendant next contends that the Double Jeopardy and Due Process

II. Prosecutorial Misconduct the trial court to make. See p. 8 of that application until after the trial. This credibility determination was for handgun permit until the day before trial and that it did not know the contents assertion that it did not know that Salvatore had applied for a concealed or significantly impaired its ability to exercise independent judgment.” State v. subsequently lied about it. Nevertheless, the trial court credited the State’s flagrant misconduct on the part of the prosecutor that deceived the grand jury handgun permit on August 5, 2005, one month before the victim’s murder, and prevail upon this claim, the defendant must produce “evidence of irregularity or application to carry a concealed handgun. Salvatore applied for a concealed For similar reasons, we reject the defendant’s due process claim. To intentionally withheld material exculpatory evidence; namely, Salvatore’s 8

misconduct, it also supports a finding that the prosecutor did not engage in supports a finding that the prosecutor did not intentionally engage in Dayutis, 127 N.H. 101, 104 (1985) (quotation omitted). Just as the record determined that there are no double jeopardy concerns. See When the State does not intentionally present false testimony, courts have is no evidence that the State intentionally sought Salvatore’s false testimony. committed perjury on cross-examination. As the trial court aptly noted, there it called Salvatore to testify at trial; the defendant asserts that Salvatore The last incident of misconduct allegedly occurred when the State The defendant also contends that the State engaged in misconduct when the State did not intentionally engage in misconduct, we uphold it. Because there is evidence in the record to support the trial court’s finding that

statements), cert. denied, 508 U.S. 939 (1993). prosecutor acted intentionally or at least with willful disregard to elicit false misconduct bars retrial after conviction overturned for perjury only where States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (holding that prosecutorial Gary, 74 F.3d 304, 314 (1st Cir.), cert. denied, 518 U.S. 1026 (1996); United

examination. statements, which permitted the defendant to impeach Salvatore on cross- (2004); and (3) the State provided the defendant with all of Salvatore’s prior Soto-Beniquez, 356 F.3d 1, 24 (1st Cir. 2003), cert. denied, 541 U.S. 1074 purge the taint of the perjury from the two indictments, see United States v. (2) the State moved for a continuance to re-indict the defendant and, thereby, informed the trial court and the defendant about Salvatore’s untruthfulness; trial court that this was not misconduct because: (1) the State immediately testimony of Salvatore, the only eyewitness to the crime. We agree with the went to trial on two indictments that were tainted by the perjured grand jury The defendant argues that the State first engaged in misconduct when it p. 9 Hutchins other than that which the defendant seeks to foreclose from consideration.” whether a rational finder of fact could have grounded its verdict upon an issue determined,” we “examine the record of the prior proceeding . . . and conclude In Yeager v. United States

To determine what issues of ultimate fact the jury “necessarily

2360, 2367-68 (2009). The Court reasoned that “[b]ecause a jury speaks only “nonevent[s]” for purposes of this analysis. Yeager v. United States, 129 S. Ct. preclusion [or collateral estoppel] analysis,” determining that hung counts are held that “the consideration of hung counts has no place in the issue-

court honored this request. a charge; the defendant urged below, as well as here, that it did. The trial at 671. We have never stated whether this review includes a jury’s deadlock on pleadings, evidence, charge and other relevant matter[s].” p. 9 Hutchins, 144 N.H. have stated that our review of the record must take into account “the a future prosecution.” State v. Hutchins been fully tried and determined cannot again be litigated between the parties in, 144 N.H. at 671 (quotations omitted); see Ashe, 397 U.S. at 444. We “[C]ollateral estoppel mandates that an issue of ultimate fact that has

U.S. 342, 345-46 (1990). in an earlier trial that resulted in an acquittal. Dowling v. United States, 493 encompass the doctrine of collateral estoppel. State v. Fielders operate as a per se bar against the admission in a second trial of evidence used his death.” The Double Jeopardy Clauses of the State and Federal Constitution v. Swenson, 397 U.S. 436, 443 (1970). Collateral estoppel, however, does not to allege that the [d]efendant was attempting to rob [the victim] at the time of, 144 N.H. 669, 671 (2000); see Ashe issue preclusion bars the State “from producing evidence or argument intended Finally, the defendant asserts that the doctrine of collateral estoppel or

our analysis. See Ball, 124 N.H. at 231-33. defendant’s state constitutional argument, citing federal law only as an aid to we review it de novo. See Flood, 159 N.H. at 355. We first address the Because the defendant’s argument presents a question of constitutional law, 312 (1983); see the State Constitution in these two contexts, see also U.S. CONST. amend. V; N.H. CONST. pt. I, art. 16. Because the Federal Constitution affords no greater protection than does, 124 N.H. 310,

same result under the Federal Constitution. Murray, 153 N.H. at 679; Dayutis, 127 N.H. at 104, we necessarily reach the

Cir. 2008), cert. denied, 130 S. Ct. 243 (2009). any flagrant misconduct. See Sechrest v. Ignacio, 549 F.3d 789, 810-11 (9th not an ultimate fact that must be proved beyond a reasonable doubt. See p. 10 indictments, the alleged attempted robbery is merely an evidentiary fact; it is [the victim] in the back with a gun” respectively. Therefore, under these manifesting an extreme indifference to the value of human life” “by shooting victim]” or “recklessly cause[d] the death of [the victim] under circumstances They require proof that the defendant “knowingly cause[d] the death of [the that the defendant was attempting to rob the victim at the time of the murder. defendant’s motion in indictments as charged require the State to prove beyond a reasonable doubt Accordingly, we hold that the trial court did not err in denying the

we need not undertake a separate federal analysis. United States v. Brackett, Because the Federal Constitution affords the defendant no greater protection, “[d]efendant was attempting to rob [the victim] at the time of his death.”

Sefton, 125 N.H. at 535-36; Fielders, 124 N.H. at 313.

Id of ultimate fact to be proven beyond a reasonable doubt in a prior trial.” State. defendant’s motive for leaving the scene of the accident without reporting it. as one of evidentiary fact, even [if] the State ha[s] lost on the same issue as one properly used the evidence of the defendant’s intoxication to show the The rule of collateral estoppel does “not forbid the relitigation of an issue guilty of driving while intoxicated on a related charge. Id. at 536. The State after an accident even though a jury previously had found the defendant not decision.” State v. Wamala when it introduced evidence of a defendant’s intoxication at a trial for conduct mistaken grounds, we will affirm if valid alternative grounds support the where we held that the State did not violate the doctrine of collateral estoppel reversal is not necessary. “Where the trial court reaches the correct result on under a different criminal charge.” Id time [the victim] was shot.” Regardless of the trial court’s ruling on this issue,. at 535. We applied this rule in Sefton, . . . from a merely evidentiary fact that is relevant but not required to be proven issue of ultimate fact that the “[d]efendant was not engaged in a robbery at the beyond a reasonable doubt under one criminal charge is to be distinguished, finding that the jury in the first trial did not “necessarily determine” as an v. Sefton Here, we will assume without deciding that the trial court erred in, 125 N.H. 533, 535-36 (1984). “An ultimate fact that must be proven

considered the jury’s deadlock in its collateral estoppel determination. puzzle.” Id. at 2367. We agree. Therefore, the trial court should not have implication — yield a piece of information that helps put together the trial through its verdict, its failure to reach a verdict cannot — by negative p. 11 11

Affirmed and remanded

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

125 N.H. at 535-36. p. 11 113 F.3d 1396, 1399-1400 (5th Cir.), cert. denied, 522 U.S. 934 (1997); Sefton,