Opinion Issued December 10, 2014
Hillsborough -- northern judicial district.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally, and Peter Hinckley, assistant attorney general, on the supplemental memorandum of law and orally), for the State.
Lothstein Guerriero, PLLC, of Concord ( Theodore M. Lothstein on the brief and memorandum of law and orally), for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
The defendant, Charles Glenn, Jr., appeals his convictions by a jury of second degree murder, see RSA 630:1-b, I(b) (2007), criminal threatening, see RSA 631:4, I(a), II(a)(2) (2007), attempted armed robbery, see RSA 629:1 (2007); RSA 636:1, I(b), III(a) (2007), falsifying physical evidence, see RSA 641:6 (2007), and unlawful possession of a deadly weapon, see RSA 159:3, I(a), (b)(1) (2014). On appeal, he argues that the Superior Court ( Garfunkel, J.) erred by: (1) denying his pretrial motion to dismiss the attempted armed robbery, criminal threatening, and unlawful possession charges on statute of limitations grounds; (2) instructing the jury that, if it found him guilty of attempted armed robbery, it could presume the requisite mens rea for the second degree murder charge, see RSA 630:1-b, I(b); and (3) sentencing him separately for second degree murder and attempted armed robbery. He also argues that the trial court committed plain error when it did not dismiss the attempted armed robbery indictment on collateral estoppel grounds. Finally, he argues that under the doctrine of common law joinder that we applied in State v. Locke, 166 N.H. 344, 348-49, 96 A.3d 962 (2014), all of his non-homicide convictions must be vacated because they arose out of the same criminal episode as the second degree murder charge. We affirm his conviction of second degree murder and vacate his other convictions.
The jury could have found the following facts. In August 2005, the defendant and his girlfriend, Wanda Diaz, lived together in Manchester. [167 N.H. 173] Wanda is the sister of Chad Diaz. The defendant and Chad had known each other for years. Chad frequently
acted as a middleman in illegal drug deals, putting together buyers and sellers in exchange for a commission. He had previously acted in that capacity for the defendant.
On August 30, 2005, Wanda and the defendant needed money to pay a partial security deposit on their apartment. That day, the defendant spoke to Chad about selling Oxycontin pills to Leonard Gosselin, who was Chad's and Wanda's cousin. Chad called Gosselin, who said that he did not want to purchase the pills. Chad then called his friend, Joe Salvatore, who agreed to purchase ten pills for $500. When Chad heard the same music in the background during his call with Salvatore that he had heard during his call with Gosselin, he assumed that Salvatore and Gosselin were together.
Chad and the defendant arranged for the defendant to bring the pills to Chad's apartment. After letting the defendant into his apartment, Chad turned to lock the apartment's front door. When he turned around, he saw the defendant sitting on the arm of a chair, pulling out a long-barrel revolver from a plastic bag he had been carrying inside a folded shirt. The defendant pointed the revolver at Chad and told Chad that there were no pills and that he needed money to pay his drug supplier. Chad begged the defendant not to shoot him.
After a while, Chad and the defendant heard loud music outside, which Chad believed to be coming from Salvatore's vehicle. The defendant motioned with his gun, indicating that Chad was to move toward the door and said, " Let's go." Once in the hallway of the apartment building, Chad stopped and said, " I'm not going outside with you. I'm not doing this." The defendant looked at Chad and walked past him. Chad ran back inside his apartment, out its back door, and across the street to a nearby drug store. A few minutes later, Chad received a call from Salvatore. Salvatore asked Chad where he was. Chad then heard Gosselin say, " What are you doing, kid? Are you f[***]ing serious?" The phone then " went dead." A few minutes later, Salvatore again called Chad and said, " This kid just shot Lenny." Police arrived at the scene shortly thereafter. Gosselin's body was removed by ambulance, and he was pronounced dead shortly after arriving at the hospital.
Later that evening, the defendant called a friend, asking for a ride. The defendant told that friend that " he was supposed to stick this kid for some money and some drugs. It didn't happen. The dude started making a scene and he popped him." The defendant ...