2012-0701, State of New Hampshire v. Charles Glenn, Jr.

erred by: (1) denying his pretrial motion to dismiss the attempted armed I(a), (b)(1) (2014). On appeal, he argues that the Superior Court (Garfunkel, J.) RSA 641:6 (2007), and unlawful possession of a deadly weapon, see RSA 159:3, RSA 629:1 (2007); RSA 636:1, I(b), III(a) (2007), falsifying physical evidence, see threatening, see RSA 631:4, I(a), II(a)(2) (2007), attempted armed robbery, see a jury of second degree murder, see RSA 630:1 - b, I(b) (2007), criminal HICKS, J. The defendant, Charles Glenn, Jr., appeals his convictions by

and memorandum of law an d orally), for the defendant. Lothstein Guerriero, PLLC of Concord (Theodore M. Lothstein on the brief

on the supplemental memorandum of law and orally), for the State. general, on the brief and orally, and Peter Hinckley, assistant attorney general, Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 701 Hillsborough – northern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. 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, Concor d, 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

said, “I’m not going outside with you. I’m not doing this.” The defendant “Let’s go.” Once in the hallway of the apartment building, Chad sto pped and with his gun, indicating that Chad was to move toward the door and said, Chad believed to be coming from Salvatore’s vehicle. The defendant motioned After a while, Chad and the defe ndant heard loud music outside, which

money to pay his drug supplier. Chad begged the defendant not to shoot him. the revolver at Chad and told Chad that there were no pills and that he needed a plastic bag he had been carrying inside a folded shirt. The defendant pointed defendant sitting on the arm of a chair, pulling out a long - barrel revolver from to lock the apartment’s front door. When he turned around, he saw the Chad’s apartment. After letting the defendant into his apartment, Chad turned Chad and the defendant arranged for the defendant to bring the p ills to

with Gosselin, he assumed that Salvatore and Gosselin were together. background during his call with Salvatore that he had heard during his call purchase ten pills for $5 00. When Chad heard the same music in the purchase the pills. Chad then called his friend, Joe Salvatore, who agreed to Wanda’s cousin. Chad called Gosselin, who said that he did not want to Chad about selling Oxycontin pills to Leonard Gosselin, who was Chad’s and partial security deposit on their apartment. That day, the defendant spok e to On August 30, p. 2 2005, Wanda and the defendant needed money to pay a

previously acted in that capacity for the defendant. putting togethe r buyers and sellers in exchange for a commission. He had other for years. Chad frequently acted as a middleman in illegal drug deals, Wanda is the sister of Chad Diaz. The defendant and Chad ha d known each defendant and his girlfriend, Wanda Diaz, lived together in Manchester. The jury could have found the following facts. In August p. 2 2005, the

A. Crimes

I. Background

second degree murder and vacate his other convictions. episode as the second degree murder charge. We affirm his conviction of convictions must be vacated b ecause they arose out of the same criminal State v. Locke, 166 N.H. p. 3 344, 348 - 49 ( p. 2 2014), all of his non - homicide he argues that under the doctrine of common law joinder that we a pplied in attempted armed robbery indictment on collateral estoppel grounds. Finally, argues that the trial court committed plain error when it did not dismis s the separately for second degree murder and attempted armed robbery. He also second degree murder charge, see RSA 630:1 - b, I(b); and (3) sentencing him attempted armed robbery, it could pres ume the requisite mens rea for the limitations grounds; (2) instructing the jury that, if it found him guilty of robbery, criminal threatening, and unlawful possession charges on statute of 3

decisions, holding that double jeopardy did not bar the defendant’s retria l on the defendant filed an interlocutory appeal. Id. We upheld the trial court’s second degree murder charges. Id. The trial court denied both motions, and also filed a motion in limine to exclude evidence of robb ery from his trial on the first degree murder charge of which he had been acquitted. Id. The defendant on the ground that, for double jeopardy purposes, they were the same as the defendant subsequently moved t o dismiss both second degree murder charges deadlocked. Id. The other alleged knowing second degree murder. Id. The the reckless second degree murder charge on which the first jury had alternative charges of second degree murder. Id. One charge was identical to On October 2 p. 3 3, 2006, the grand jury returned an indictment on tw o

C. Second Indictments

that charge. Id. and the trial court granted the defendant’s subsequent motion for mistrial on at 485. However, the jury deadlocked on the second degree murder charge, Following a jury trial, the defendant was acquitted of first degree murder. Id. of human life by shooting him in the back with a gun.” Id. (quotation omitted). Gosselin under circumstances manifesting an extreme indifference to the value indictment alleged that the defendant “did recklessly cause the death of . . . deadly weapon.” Id. at 484 (quotation omitted). The second degree murder deadly weapon, to wit, a gun, by shooting . . . Gosselin in the back with that commission of, or while attempting to commit robbery while armed with a knowingly cause the death of . . . Gosselin before, after, while engaged in the The first degree felony murder indictment alleged that the defendant “did degree murder, see RSA 6 p. 3 30:1 - b. State v. Glenn, 160 N.H. 480, 483 - 84 (2010). counts of first degree felony murder, see RSA 630:1 - a (2007), and second On January 20, 2006, a grand jury indicted the defendant on alternative

B. First Indictments

September 2005. and he popped him.” The defendant fled to Colorado, where he was arrested in money and some drugs. It didn’t happen. The dude started making a scene defendant t old that friend that “he was supposed to stick this kid for some Later that evening, the defendant called a friend, asking for a ride. The

pronounced dead shortly after arriving at the hospital. shortly thereafter. Gosselin’s body was removed by ambulance, and he was called Chad and said, “This kid just shot Lenny.” Police arrived at the scene serious?” The phone then “went dead.” A few minutes later, Salvatore again Chad then heard Gosselin say, “What are you doing, kid? Are you f [***] ing later, Chad receiv ed a call from Salvatore. Salvatore asked Chad where he was. its back door, and across the street to a nearby drug store. A few minutes looked at Chad and walked past him. Chad ran back inside his apartment, out p. 4 4

would give the presumption instruction proposed by the State. double jeopardy. On the next day of trial, the court informed the parties that it that the presumption instruction violated his constitutional right aga inst committing or attempting to commit any class A felony.” The defendant argued commission of, or in an attempt to commit, or in immediate flight after presumed if the actor causes the death b y the use of a deadly weapon in the required to convict a defendant of reckless second degree murder “are which provides, in pertinent part, that the “recklessness and indifference” crime of robbery.” The State’s instruction was based upon RSA 630:1 - b, I(b), “that the Defendant used a deadly weapon while attempting to commit the indifference required for the crime of second degree murder” if the jury found the court instruct the jury that it could “presume the reckless and extreme and the parties discussed potential jury instructions. The State proposed that In a chambers conference on the fourth day of the jury trial, the court

(2007). limitations period for all three charges was tolled pursuant to RSA 625:8, VI (b) 625:8, I (2007). The trial court denied the motio n, deciding that the statute of the six - year limitations period, which expired on August 30, 2011. See RSA threatening charges on the ground that those charges were brought outside of dismiss the attemp ted armed robbery, unlawful possession, and criminal Before trial on the December 2011 charges, the defendant moved to

injury by pointing a de adly weapon, to wit, a revolver, at Chad Diaz.” “purposely placed or attempted to place Chad Diaz in fear of imminent bodily a revolver.” The criminal threatening charge allege s that the defendant “knowingly had in his possession or under his control a deadly weapon, to wit, of robbery.” The unlawful possession charge allege s that the defendant them to be, constituted a su bstantial step toward the commission of the crime committing a theft, which, under the circumstances as [the defendant] believed force while armed with a deadly weapon, to wit, a revolver, in the course of another with physical force or put another in fear of immediate use of physical “with a purpose that the crime of robbery be committed, purposely threatened with a gun.” The attempted armed robber y charge alleges that the defendant indifference to the value of human life by shooting . . . Gosselin in the back the death of . . . Gosselin under circumstances manifes ting an extreme second degree murder charges. It allege s that the defendant “recklessly caused The second degree murder charge is substantially the same as the prior

the defendant, which all concern the day on which he shot and killed Gosselin. In December 2011, the State obtained the current indictments against

D. Current Indictments

robbery evidence. Id. at p. 4 486 - 89, 491 - 93. the second degree murder charges and that collateral estoppel did not bar the p. 5 5

trials when it is in the interests of justice to do so. Locke, 166 N.H. at 349. 2.9 - A already authorize the trial courts to sever charges and order separate 1.07(3) because Superior Court Criminal Rule 97 - A an d District Division Rule Model Penal Code § 1.07(3) (198 p. 5 5). We did not adopt Model Penal Code Section

requires. such charge to be tried separately, if it is satisfied that justice so of the prosecuting attorney or of the defendant, may order any arising from the same criminal episode, the Court, on application charged with two or more offenses based on the same conduct or Authority of Court to Order Separate Trials. When a defendant is

Model Pena l Code Section 1.07(3), which provides: Model Penal Code § 1.07(2) (198 p. 5 5). Model Penal Code Section 1.07(2) refers to

jurisdiction of a single court. the time of the commencement of the first trial and are within the such offenses are known to the appropriate prosecuting officer at on the same conduct or arising from the same criminal episode, if shall not be subject to separate trials for multiple offenses based Except as provided in Subsection (3) of this Section, a defendant

1.07(2): Penal Code Section 1.07(2).” Id. at 349. Under Model Penal Code Section common law of New Hampshire incorporates the principles set forth in Model ordinarily should be accomplished through rulemaking, we held that “the Although we recognized that the adoption of a new rule of criminal procedure rule of compulsory joinder of criminal offenses. Locke, 166 N.H. at 34 p. 5 5. we adopted a “same criminal episode” test for the purposes of a common law While the instant appeal was pending, we decided Locke. In that case,

II. State v. Locke and Defendant’s Non - Homicide Charg es

sentences for attempted armed robbery and criminal threatening). years on the unlawful possession charge (to run concurrently with the concurrentl y with the sentence for attempted armed robbery), and fi ve to ten murder), ten to twenty years on the criminal threatening charge (to run robbery charge (to run consecutively to the sentence for second degree the second degree murder charge, ten to twenty years on the attempted armed The trial court disagreed, and sentence d the defendant t o thirty years to life on sentences for the second degree murder and attempted armed robbery charges. violate his constitutional right against double jeopardy to receive separate the defendant argued that, bec ause of the presumption instruction, it would The jury convicted the defendant o n all of the charges. At sentencing, p. 6 6

Moreover, even if we were inclined to accept the State’s inv itation, we find its the State’s argument on this point proceeds from a mistaken premise. opportunity to consider the mandatory joinder issue. See id. a t 348 - 50. Thus, least until the Advisory Committee on Rules and/or the legislature ha s had an reveals that we did adopt the language of Model Penal Code Section 1.07(2) at standards instead. To the contrary, a close reading of our decision in Locke Model Penal Code Section 1.07(2) in Locke, we are free to adopt the ABA Standards. The State contends that because we did not adopt the language of joinder adopted by the American Bar Association (ABA) Criminal Justice In making these arguments, the State relies upon the standards for

facts of this particular case.” joi nder . . . are inapplicable” to the attempted armed robbery charge “under the recognized by this Court as a principal rationale for its rule of mandatory the State reasons, “weighty considerations of finality and associated interests murder charge after the jury in his first trial deadlocked on that charge. Thus, State observes, the defendant was going to be retried on the second degree trial would have occurred regardless of any new charges brought.” Here, the The State argues that “good cause” exists in this case “because a subsequent a limited “good cause” exception to o ur common law rule of mandatory joinder. as the second degree murder charge. Rather, the State asks that we recognize homicide charges, arises from the same conduct or the same criminal episode not dis pute that the attempted armed robbery charge, like the other non bringing [that] . . . charge prior to the defendant’s first trial.” The State does attempted armed robbery, however, because it had “good reason for not The State argues that we should not vacate the defendant’s conviction of

evidence, and unlawful posses sion of a firearm. vacate the defendant’s convictions of criminal threatening, falsifying physical [-]homicide charges at that earlier time.” In light of the State’s concessions, we initial trial], and that [it] had no good reason for not joining [those] non “could have brought those [non - homicide] charges prior to [the defendant’s been declared in the defendant’s initial trial.” The State also concedes that it criminal episode as the second degree murder charge on which a mistrial had those charges “either were based on the same conduct or arose from the same possession of a firearm must be vacated under Locke. The State concedes that convictions of criminal threatening, falsifying physical evidence, and u nlawful In its supplemental memorandum, the Sta te agrees that the defendant’s

briefing and reargument. defendant to add compulsory joinder as an issue and ordered supplemental notice of appeal and allow for rebriefing and reargument. We allowed the decided Locke, the defendant moved to add the compulsory joinder issue to his it applie s to the defendant in the instant appeal. Id. at 350. Thus, after we defendant and to all similar cases pending on direct review,” which means that We held that our common law rule of compulsory joinder “applie[d] t o the p. 7 7

to foreclose from consi deration.” Id. (quotation and brackets omitted). grounded its verdict upon an issue other than that which the defendant seeks other relevant matter, and conclude whether a rational finder of fact could have the prior proceeding, taking into account the pleadings, evidence, charge, and (quotation and ellipsis omitted). Accordingly, we mu st “examine the record of de termine how the fact finder in the first trial decided any particular issue.” Id. When the jury returns a general verdict of acquittal, “it is difficult to

(quotation omitted). defendant to establish that such an issue was decided in his favor.” Id. prosecution is barred. Id. (quotation omitted). “The burden is on the necessar ily determined in the defendant’s favor at the first trial,” the second 6 p. 7 71 (2000). Thus, “if an essential element of [a] seco nd prosecution was between the p arties in a future prosecution.” State v. Hutchins, 144 N.H. 669, ultimate fact that has been fully tried and determined cannot again be litigated “In the criminal context, collat eral estoppel mandates that an issue of

226, 231 – 33 (198 3). and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. address the defendant’ s double jeopardy claim under the State Constitution which we review de novo. State v. F ischer, 165 N.H. p. 7 706, 715 (2013). We first The issue of double jeopardy presents a question of constitutional law,

CONST. amends. V, XIV; RSA 630:1 - b, I(b); see also Glenn, 160 N.H. at 491. was guil ty of attempted armed robbery. See N.H. CONST. pt. I, art. 16; U.S. presume the requisite mens rea for second degree murder if it found that he Federal Double Jeopardy Clauses when it instructed the jury that it could violated the collateral estoppel doctrine as encompassed within the State and litigated and decided in his favor in his first trial. He argues t hat the trial court asserts that the issue of whether he attempted to rob Gosselin was necessarily Only one of the defendant’s appellate arguments remains. The defendant

III. Second Degree Murder C onviction

charge, we also vacate the defendant’s conviction of attempted armed robbery. conduct or arose from the same criminal episode as the second degree murder dispute that the attempted armed robbery charge was based upon the same Having rejected the State’s argument, and in light of the State’s failure to

threatening, falsifying evidence, and unlawful possession of a firearm. charge, but w o uld extend to the def endant’s con victions for criminal originally, this rationale would not be l i mited to the attempted armed robbery ju stifies it in brin g ing new charges that could have been, but were not, brought argument that the mere fact that there will be a r etrial on some cha r ges proffer of “good cause” unpersuasive. Indeed, were we to accept the State’s p. 8 8

DALIANIS, C.J.