2012-0560, State of New Hampshire v. Osahenrumwen Ojo

The defendant, Osahenrumwen Ojo, appeals his conviction of

and orally, for the defendant. Thomas Barnard, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State.

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 p. 2 Allstate check, respectively). The State then nolle prossed the original alleging theft by deception for a single invalid check (the LEAR check and the On April 20, 2012, the State obtained two substitute indictments, each

court declared a mistrial over the defendant’s objection. both the LEAR check and the Allstate check.” The jury deadlocked, and the you must unanimously decide that he acted to defraud the bank by his use of

was unlawful.” Rather, the court instructed, “[t]o find the Defendant guilty,

reasonable doubt that the Defendant’s use of one or the other of the checks

instructed the jury that “it’s not enough that the State has proven beyond a the burden of proving fraud with regard to both checks. Thus, the trial court conference involving proposed jury instructions, the State conceded that it had

over the defendant’s objection.” See N.H. CONST. pt. I, art. 16. The issue of

the LEAR check, which the trial court denied. At a subsequent bench

(b) the evidence was legally insufficient, and (c) the court declared a mistrial

moved to dismiss the indictment based upon insufficient evidence regarding The defendant stood trial in February 2012. After the State rested, he

defendant moved to dismiss the charge based on insufficiency of the evidence, Hampshire Constitution “should be construed to bar retrial where (a) the On appeal, the defendant argues that Part I, Article 16 of the New

check).

The second check, issued by Allstate Insurance, was for $1,989.96 (the Allstate the checks, issued by the LEAR Corporation, was for $3,975 (the LEAR check). following day, cashing his own check for $6,000 drawn on the account. One of

check, resulting in his conviction of theft by deception. This appeal followed. June 2012, the defendant stood trial on the indictment based upon the Allstate produce any evidence beyond that which it introduced during the first trial. In Because the defendant argues only under the State Constitution, we base our novo. State v. Fischer, 165 N.H. ___, ___ (decided November 26, 2013). Trial Court (Abramson, J.) dismissed the indictment based upon the LEAR double jeopardy presents a question of constitutional law, which we review de

Citizens Bank checking account two checks on April 8, 2009, and, the

check after the State informed the court that, as to that check, it could not

jeopardy rights. Nonetheless, at a pretrial motions hearing that same day, the the evidence at the first trial was insufficient, retrial would violate his double defendant’s motion to dismiss both charges, in which he argued that, because indictment. On June 4, 2012, the Trial Court (Brown, J.) denied the deception and with a purpose to deprive him thereof” by depositing in his defendant “obtained or exercised control over the property of another by with a single count of theft by deception. The indictment alleged that the

Hillsborough County grand jury returned an indictment charging the defendant The record supports the following facts. On September 17, 2009, a the possibility that even though innocent he may be found guilty.

p. 3 same offense. State v. Howell, 158 N.H. 717, 719 (2009). A defendant is

a continuing state of anxiety and insecurity, as well as enhancing

prohibits the State from placing a defendant in jeopardy more than once for the

judge, in a bench trial. Solomon, 157 N.H. at 50. 3 “particular tribunal”: either the same chosen jury, in a jury trial; or the same

embarrassment, expense and ordeal and compelling him to live in an individual for an alleged offense, thereby subjecting him to power should not be allowed to make repeated attempts to convict The Double Jeopardy Clause of the New Hampshire Constitution

A defendant normally has the right to complete a trial before a

of the evidence at [the defendant’s] first trial.” Richardson, 468 U.S. at 326 &

an acquittal — and, thus, termination of jeopardy — on that charge. See

Such a right exists because the State with all its resources and

declared a mistrial over the defendant’s objection. charge because of actual insufficiency of the evidence, and the trial court has

hear evidence, State v. Solomon, 157 N.H. 47, 50 (2008). After jeopardy rule is not applicable to de novo trials). (1978); see also State v. Chaisson, 126 N.H. 323, 325 (1985) (noting that this is barred under these circumstances must fail, “[r]egardless of the sufficiency Richardson, 468 U.S. at 325 & n.5; Burks v. United States, 437 U.S. 1, 10-11

has presented insufficient evidence on a given charge necessarily amounts to federal law). A determination, either at trial or on appeal, that the prosecution omitted). See People v. Carbajal, 298 P.3d 835, 846 (Cal. 2013) (discussing mistrial preventing either judgment, Solomon, 157 N.H. at 50 (quotation Johanson, 156 N.H. at 156-57, or upon an “unnecessarily . . . declared” defendant has a valid double jeopardy claim if he has moved to dismiss a for the same offense — upon a judgment of acquittal or conviction, cf. attaches for a particular offense, it “terminates” — thereby prohibiting retrial

N.H. 525, 528 (1995), or, in the case of a bench trial, when the judge begins to placed in jeopardy when a jury is empaneled and sworn, State v. Paquin, 140 deadlocks resulting in a mistrial, and thus a double jeopardy claim that retrial

Richardson v. United States, 468 U.S. 317 (1984), held that the original

the State Constitution,” and that, instead, we should recognize that a n.6. The defendant argues that we should “decline to adopt Richardson under decision upon it alone, citing federal cases for guidance only. Petition of State

jeopardy to which a defendant is subjected does not terminate when a jury

amend. V, bars retrial in this case. The United States Supreme Court, in Jeopardy Clause contained in the Federal Constitution, see U.S. CONST. At the outset, we note that the defendant does not argue that the Double

of N.H. (State v. Johanson), 156 N.H. 148, 156 (2007). found wanting before declaration of a mistrial over the defendant’s objection is

p. 4 that “[a]ll possible alternatives to a mistrial must be considered, employed and

not exist where the deadlock is based on legally insufficient evidence.” Noting The defendant, however, asks us to hold that manifest necessity “does

(quotation and citation omitted)); see also Hartford, 132 N.H. at 585 (holding

deadlock, “the jury deadlock itself create[s] a manifest necessity.” State v.

exercise of discretion to find manifest necessity to discharge”).

Howell, 158 N.H. at 721, we have noted that “a hung or deadlocked jury has necessity, which prevents original jeopardy from terminating on that charge” Although manifest necessity “is not susceptible to precise categorization,”

based upon a genuinely deadlocked jury). When there has been a genuine

satisfied both the procedural and substantive predicates of a reasonable

declaration of a mistrial based upon jury deadlock, and, thus, by manifest

of the Federal Constitution, that manifest necessity existed to declare a mistrial deadlocked charge (citation omitted)); see also Johanson, 156 N.H. at 157 opportunity to try the defendant.” State v. Hartford, 132 N.H. 580, 584 (1989) that the trial court had before it evidence of genuine deadlock and “thus

Clauses of the State and Federal Constitutions, that “the record supports a citation omitted)). Kornbrekke, 156 N.H. 821, 830 (2008) (holding, under the Double Jeopardy terminated jeopardy in a way that prevents reprosecution.” (quotations and inquiry. Thus, we must take a further step and ask whether the trial court

(quotation and citations omitted) (holding, under the Double Jeopardy Clause did not terminate jeopardy, but rather results in continuing jeopardy” on understood as a high degree of need to allow the public one full and fair does not terminate but instead continues. See State v. Liakos, 142 N.H. 726, been understood to present a classic occasion of [manifest] necessity,

act, or that the ends of public justice would otherwise be defeated.” Howell, objects, upon a finding of the trial court that there is manifest necessity for the retrial after a mistrial when the defendant “consents to the mistrial, or, if he

(“[T]he conclusion that jeopardy has attached begins, rather than ends, the

in fair trials designed to end in just judgments.” Howell, 158 N.H. at 720 730 (1998) (holding that “in this case . . . the failure of a jury to reach a verdict

158 N.H. at 720 (quotation omitted). Under these circumstances, jeopardy Id. (quotation omitted).

N.H. at 50-51 (quotation omitted). The Double Jeopardy Clause does not bar causes,” declares a mistrial over the objection of the defendant. Solomon, 157 greatest caution, under urgent circumstances, and for very plain and obvious (quotation omitted). One such instance occurs when a trial court, “with the

however, and “must in some instances be subordinated to the public’s interest The right to complete a trial before a particular tribunal is not absolute, second trial. Cf. Burks, 437 U.S. at 10-11; Chaisson, 126 N.H. at 325. p. 5 regard to the Allstate check. Thus, jeopardy did not terminate prior to the

in Richardson, and our own opinions — as to why we should adopt either it did not determine that the State had produced insufficient evidence with

considerations, holdings in two other jurisdictions, a partial concurrence filed Although the trial court dismissed the indictment based upon the LEAR check, based upon the Allstate check prior to the defendant’s retrial on that charge. Accordingly, we conclude that jeopardy did not terminate on the charge necessity, see Kornbrekke, 156 N.H. at 830; see also Hartford, 132 N.H. at 585, upon a genuinely deadlocked jury, which we have held constitutes manifest

The defendant makes a number of arguments — based upon policy sufficiency of the evidence at [the defendant’s] first trial,” Richardson, 468 U.S. this case, therefore barring retrial. the jury, see Kornbrekke, 156 N.H. at 830; see also Hartford, 132 N.H. at 585, genuinely deadlocked jury, and thus there was manifest necessity to discharge Absent a determination of insufficiency, a declaration of a mistrial based genuinely deadlocked. Because the trial court declared a mistrial based upon a

jeopardy did not terminate upon the court’s declaration, “[r]egardless of the defendant argues that jeopardy terminated upon the declaration of a mistrial in added) (quotation and brackets omitted)).

Finally, the defendant does not dispute on appeal that his jury was

and fair opportunity to try the defendant.” Hartford, 132 N.H. at 584

“constitutes the equivalent of an acquittal.” Under either proposed rule, the deadlocked in a case in which the State put on insufficient evidence, complete opportunity to convict those who have violated its laws.” (emphasis declaration of mistrial over the defendant’s objection, after a jury has rule accords recognition to society’s interest in giving the prosecution one not persuaded to adopt either rule. deadlocked jury and require the defendant to submit to a second trial. This exception, the courts have held that the trial judge may discharge a genuinely (quotation and citation omitted); see Richardson, 468 U.S. at 324 (“Without

(2000). This rule addresses the “high degree of need to allow the public one full 326; see also Liakos, 142 N.H. at 730; State v. Nickles, 144 N.H. 673, 677-78 “is not an event that terminates the original jeopardy,” Richardson, 468 U.S. at

“legal requirement.” Alternatively, the defendant asks us to hold that a proposed double jeopardy rule. Having considered these arguments, we are

justified,” State v. Pugliese, 120 N.H. 728, 730 (1980); see also Howell, 158

these circumstances was not only a “possible alternative” to mistrial but also a declaring a mistrial.”), the defendant argues that dismissing the case under should allow counsel to comment as well as consider alternatives before N.H. at 720 (“A trial court must . . . take all circumstances into account, and p. 6 6

at 32 p. 6 6. Therefore, we hold that double jeopardy did not bar retrial. See id.;

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

Affirmed.

Kornbrekke, 15 p. 6 6 N.H. at 830.