Argued: January 23, 2014.
Joseph A. Foster, attorney general ( Stacey P. Coughlin,
attorney, on the brief and orally), for the State. [166 N.H. 345]
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
DALIANIS, C.J. HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
The defendant, Jamie Locke, appeals her conviction for second degree assault following a jury trial in Superior Court ( Smukler, J.). She argues that because in her first trial the jury acquitted her of first degree assault, retrying her for second degree assault violated her State and Federal constitutional guarantees against double jeopardy. See N.H. Const. pt. I, art. 16; U.S. Const. amend. V; RSA 631:1 (2007), :2 (Supp. 2013). Alternatively, she argues that the State should have been required to join in one trial all charges arising from the same criminal episode. We take this opportunity to adopt such a rule of compulsory joinder of criminal charges and reverse.
Both charges arise from events in November 2009, when the defendant, in concert with two others, caused the victim to sustain bodily injuries by throwing him over an embankment into the Merrimack River, and then leaving him there, when he was incapacitated as a result of consuming alcohol. In January 2011, a grand jury indicted the defendant on several charges based upon this incident: (1) conspiracy to commit murder; (2) two counts of accomplice to attempted murder; (3) attempted murder; and (4) first degree assault, both as principal and accomplice. Before the defendant's first jury trial, the trial court dismissed one of the accomplice to attempted murder charges. The jury in the first trial acquitted her of conspiracy to commit murder, attempted murder, and first degree assault but convicted her of
the remaining accomplice to attempted murder charge. In August 2011, the trial court granted the defendant's motion to set aside the guilty verdict on the ground that the accomplice to attempted murder indictment failed to allege a crime. The State later moved for a mistrial on the ground that the jury foreperson had announced the wrong verdict for the conspiracy to commit murder charge after becoming confused by the indictments. The trial court denied the State's motion, finding that it had waived any objection to the accuracy of the jury's verdict by failing to move to poll the jury.
Before the trial court ruled on the State's motion for mistrial, a grand jury returned an indictment against the defendant for second degree assault, both as principal and accomplice. The record does not disclose why the State did not seek this indictment originally. Before her second trial commenced, the defendant moved to dismiss this charge " on the basis that it alleges an offense for which [she] has already stood trial and been acquitted" and that to allow the State to prosecute her for this offense would violate her state and federal constitutional guarantees against double jeopardy. The trial court denied the defendant's motion. After the jury [166 N.H. 346] convicted the defendant of the second degree assault charge, she moved to set aside the verdict, again arguing that the second degree assault charge was the " same" as the first degree assault charge for double jeopardy purposes. The trial court denied this motion, and this appeal followed.
The defendant argues that for double jeopardy purposes, the second degree assault charge constitutes the same offense as the first degree assault charge of which she was acquitted. See State v. Glenn, 160 N.H. 480, 485-86, 9 A.3d 161 (2010). Alternatively, she argues that even if the first degree assault and second degree assault charges are not the " same" for double jeopardy purposes, " the absence of any good reason not to [have brought] the second degree assault charge in the first trial should deprive the State of the opportunity to bring it after [she] was acquitted at that trial." Consistent with our policy of deciding cases on constitutional grounds only when necessary, we address the defendant's alternative argument first. See State v. Hernandez, 159 N.H. 394, 401, 986 A.2d 480 (2009).
The defendant's alternative argument is based upon dicta in State v. Heinz, 119 N.H. 717, 723, 407 A.2d 814 (1979), in which we stated: " Where the multiple offenses could have been addressed in the first trial, it may be appropriate to require the prosecuting authorities to join all charges growing out of the same acts or transaction so that the defendant will not be harassed by the necessity of repeated trials." The defendant invites us to extend that dicta by adopting a common law rule of compulsory ...