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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2013-058


                        THE STATE OF NEW HAMPSHIRE

                                        v.

                                    JAMIE LOCKE

                            Argued: January 23, 2014
                          Opinion Issued: June 13, 2014

      Joseph A. Foster, attorney general (Stacey P. Coughlin, attorney, on the
brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      DALIANIS, C.J. 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 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
(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 (2009).



                                        2
      The defendant’s alternative argument is based upon dicta in State v.
Heinz, 119 N.H. 717, 723 (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 joinder of criminal charges arising from the
same criminal episode. For the reasons that follow, we accept her invitation.

        In the instant case, we are troubled by the fact that the State brought the
second degree assault charge against the defendant after the trial on the first
set of charges concluded even though all of the charges arose from the same
criminal episode. Although we recognize that the State has “broad discretion
when charging a defendant with multiple offenses arising out of a single event,”
and although there is no charge of prosecutorial misconduct here, we “believe
. . . that it is important to exercise discretion with more circumspection when
charging crimes under these circumstances.” State v. Krueger, 146 N.H. 541,
543 (2001) (quotation omitted). “Forcing the defendant to endure more than
one criminal proceeding . . . at the will of the prosecutor” is harmful to the
criminal defendant and to the justice system as a whole. Poulin, Double
Jeopardy Protection from Successive Prosecution: A Proposed Approach, 92
Geo. L. J. 1183, 1208 (2004). Requiring a defendant to undergo a separate
proceeding on new charges arising from the same criminal episode subjects
that defendant to “embarrassment, expense and ordeal” and compels the
defendant “to live in a continuing state of anxiety and insecurity.” Green v.
United States, 355 U.S. 184, 187 (1957). Moreover, “[m]ultiple prosecutions
. . . give the State an opportunity to rehearse its presentation of proof, thus
increasing the risk of an erroneous conviction for one or more of the offenses
charged.” State v. Feliciano, 115 P.3d 648, 659 (Haw. 2005) (quotation
omitted). “[T]he State with all of its resources and power should not be allowed
to make repeated attempts to convict an individual for an alleged offense.”
Green, 355 U.S. at 187.

       Although in State v. Gosselin, 117 N.H. 115, 118-19 (1977), we declined
to adopt a same criminal episode test to determine whether two offenses are
the same for double jeopardy purposes, we specifically contemplated adopting
that test as a common law rule of joinder. There, we observed that “[a]ny
abuse by prosecutors in harassing defendants could be remedied . . . by the
adoption of court rules requiring joinder of criminal charges.” Gosselin, 117
N.H. at 119 (citations omitted); see Heinz, 119 N.H. at 723. Adopting a same
criminal episode test for compulsory joinder of criminal charges instead of as a
constitutional rule has several benefits:

            First, we can still accomplish the primary aim of . . . requir[ing] the
      defendant to be tried in a single trial on similar offenses or multiple



                                        3
      offenses arising out of the same transaction. Second, the defendant can
      still retain his traditional right to move for a severance because of
      prejudicial joinder . . . .

            Third, adopting a procedural rule permits some flexibility in its
      application, since we will not be bound by the rigidity of a constitutional
      doctrine. . . .

            Fourth, in setting a procedural joinder rule, it can be designed to
      permit a broader right of joinder than was heretofore available. Its scope
      can be broader than the double jeopardy test for the same offense, since
      its purpose is to alleviate the harassment and expense that result to a
      defendant by reason of separate trials for related offenses.

State ex rel. Watson v. Ferguson, 274 S.E.2d 440, 444 (W. Va. 1980),
superseded by court rule as stated in State ex rel. Games-Neely v. Sanders,
565 S.E.2d 419, 425 n.3 (W. Va. 2002).

      Courts in other jurisdictions have adopted such a common law rule, and
we find their reasoning persuasive. See, e.g., id. (adopting under court’s
“inherent rule-making power” a same transaction test for compulsory joinder);
Commonwealth v. Campana, 314 A.2d 854, 855-56 (Pa. 1974) (clarifying that
court in earlier case had adopted a same transaction test for compulsory
joinder under the court’s “supervisory powers” rather than as a constitutional
doctrine); see also State v. Gallegos, 152 P.3d 828, 832-33 (N.M. 2007)
(explaining that “numerous . . . jurisdictions requir[e] prosecutors to charge
together all crimes arising from a defendant’s conduct or series of acts” and
observing that this may be accomplished legislatively “or through a court’s
general supervisory power over rules of criminal procedure”); Vestal & Gilbert,
Preclusion of Duplicative Prosecutions: A Developing Mosaic, 47 Mo. L. Rev. 1,
15-22 (1982); Klein, Double Jeopardy’s Demise, 88 Cal. L. Rev 1001, 1031
n.104 (2000) (book review).

       For instance, in State v. Gregory, 333 A.2d 257 (N.J. 1975), the New
Jersey Supreme Court “adopted [a] compulsory joinder rule barring separate
trials for multiple offenses that are known to the prosecuting attorney, when
the offenses are based essentially on the same conduct or arise from the same
criminal episode.” State v. Williams, 799 A.2d 470, 473 (N.J. 2002). In
adopting that rule, the court “relied on the broad administrative and
procedural powers vested in it by the State Constitution.” Id. The court
explained that the “common law was properly concerned with the protection of
the defendant from governmental harassment and oppression by multiple
prosecution for the same wrongful conduct.” Gregory, 333 A.2d at 258. As the
court acknowledged, the common law “embodied the principle cherished by all
free men that no person may be twice put in jeopardy for the same offense.”



                                        4
Id.; see Crist v. Bretz, 437 U.S. 28, 33 (1978) (discussing common law roots of
the Fifth Amendment guarantee against double jeopardy); Fay v. Parker, 53
N.H. 342, 388-89 (1872) (discussing common law roots of Double Jeopardy
Clause of State Constitution). The court adopted the rule to “satisfy . . .
considerations of fairness and reasonable expectations” and to “promote . . .
considerations of justice, economy, and convenience.” Gregory, 333 A.2d at
263 (quotation omitted).

      Although the court referred the precise wording of the rule to the New
Jersey Criminal Practice Committee, it adopted for immediate implementation
Model Penal Code Sections 1.07(2) and 1.07(3), id., which provide:

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

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

Model Penal Code §§ 1.07(2), (3). The New Mexico Supreme Court similarly
adopted a compulsory joinder rule to “avoid disorderly criminal procedures that
. . . risk prejudice to the accused.” Gallegos, 152 P.3d at 833 (quotation and
ellipsis omitted); see State v. Tanton, 540 P.2d 813, 815-16 (N.M. 1975).

       We recognize that the adoption of a new rule of criminal procedure
should ordinarily be accomplished through rulemaking. See Sup. Ct. R.
51(A)(1)(b); see also State v. Ramos, 149 N.H. 118, 129 (2003) (Dalianis, J.,
dissenting). However, because of the nature of the interests involved, until the
Advisory Committee on Rules has an opportunity to consider the “precise
contours and details” of a mandatory joinder rule, Gregory, 333 A.2d at 263, or
until the legislature has had an opportunity to address the matter, we hold,
following the approach of other courts, that the common law of New Hampshire
incorporates the principles set forth in Model Penal Code Section 1.07(2). See
In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226 (2010); see also
State v. Donohue, 150 N.H. 180, 183 (2003) (recognizing that our Criminal
Code is largely derived from the Model Penal Code). In so holding, we observe
that the result we reach under the common law does not conflict with any



                                        5
existing statute or court rule. In particular, we note that Superior Court
Criminal Rule 97-A and Circuit Court-District Division Rule 2.9-A, by their
terms, address permissive joinder of offenses, not the mandatory joinder
requirements we adopt herein.

       Model Penal Code Section 1.07(2) is “[b]y far the most efficient and
enthusiastically received proposal for preventing successive prosecutions.”
Commonwealth v. Campana, 304 A.2d 432, 438 (Pa.), vacated and remanded,
414 U.S. 808 (1973), affirmed, 314 A.2d 854 (Pa. 1974). As to Section 1.07(3)
of the Model Penal Code, unlike the New Jersey Supreme Court, we have no
need to adopt it because it is substantially the same as Superior Court
Criminal Rule 97-A(II), which provides: “If it appears that a joinder of offenses
is not in the best interests of justice, the judge may upon his or her own
motion or the motion of either party order an election of separate trials or
provide whatever other relief justice may require.”

       Consistent with, and for all of the reasons set forth in our decision in
State v. Tierney, 150 N.H. 339, 342-45 (2003), which addressed whether the
permissive joinder rule we adopted in Ramos applied prospectively or
retroactively, we hold that the requirement for compulsory joinder we
announce today applies to the defendant and to all similar cases pending on
direct review. See Ramos, 149 N.H. at 128 (applying new rule of permissive
joinder to defendant); see also Gregory, 333 A.2d at 264.

       In applying Model Penal Code Section 1.07(2) to the instant case, we find
Gregory to be instructive. In Gregory, as in the instant case, the defendant
engaged in a single criminal episode. In Gregory, the episode concerned the
sale of heroin to an undercover police officer. Gregory, 333 A.2d at 257. On
the night in question, an undercover officer visited a Newark apartment and
purchased a small quantity of heroin from the defendant. Id. The officer saw
the defendant go into the apartment’s bathroom and remove the glassine
envelope containing heroin from a stack of similar envelopes in a medicine
cabinet. Id. The defendant was initially indicted for the single sale to the
undercover officer and was not indicted at that time for possession of heroin or
for possession of heroin with the intent to distribute. Id. at 257-58. The
defendant was tried and convicted on the indictment alleging the sale. Id.
Subsequently, the defendant was indicted for possession with intent to
distribute. Id. at 258. He was tried and convicted on those charges as well.
Id.

      The New Jersey Supreme Court concluded that the charges in Gregory
“were based on the same conduct or arose from the same criminal episode.” Id.
at 263. On the day of the sale, “the defendant had possession of all of the
heroin in the bathroom cabinet when the undercover officer came to his
apartment.” Id. Moreover, the prosecutor “could have sought indictment for



                                        6
(1) the sale or (2) the possession with intent to distribute, or both.” Id. at 263-
64. “He sought and obtained indictment only for the sale and not until after
trial thereon was completed did he seek and obtain indictment for the
possession with intent to distribute.” Id. at 264. The court held that “[t]his
course was patently unfair to the defendant and was in clear conflict with the
goals and terms of [Model Penal Code section] 1.07(2).” Id.

       Similarly, in the instant case, the first degree assault charge and the
second degree assault charge “were based on the same conduct or arose from
the same criminal episode within the contemplation of section 1.07(2).” Id. at
263. Both charges arose from a single event in November 2009, when the
defendant, in concert with two others, threw an incapacitated victim over an
embankment into the Merrimack River and then left him there. Like the
prosecutor in Gregory, the State in this case could have indicted the defendant
on both charges at the same time. See id. at 263-64. Instead, like the
prosecutor in Gregory, the State obtained one indictment first (the first degree
assault charge) and only after the defendant was tried on that charge was the
second indictment obtained (the second degree assault charge). See id. We
agree with the New Jersey Supreme Court that such a course is “patently
unfair” and conflicts with “the goals and terms of [Section] 1.07(2).” Id. at 264.
“Although the Model Penal Code cautiously refrains from any inflexible
definition of the ‘same criminal episode[,]’ it leaves no room for doubt that it
contemplates compulsory joinder” in a case such as this. Id. at 262. “Upon
any fair view of the circumstances,” the defendant’s first degree assault and
second degree assault charges “were based on the same conduct or arose from
the same episode within the contemplation of section 1.07(2).” Id. at 263.
Accordingly, we reverse the defendant’s conviction for second degree assault.

       Because we resolve this case on common law grounds, we do not address
the merits of the parties’ constitutional arguments, although we do offer the
following observations for the benefit of future litigants. Our review of our
double jeopardy jurisprudence under the State Constitution reveals that
although we have consistently articulated our test, we have not consistently
applied it. Our test, which we have referred to as the “same evidence” test,
provides: “Two offenses will be considered the same for double jeopardy
purposes unless each requires proof of an element that the other does not. We
focus upon whether proof of the elements of the crimes as charged will in
actuality require a difference in evidence.” State v. Gingras, 162 N.H. 633, 636
(2011) (quotation and citation omitted). We first articulated that test in Heald
v. Perrin, 123 N.H. 468 (1983), superseded on other grounds by RSA 651:2, II-
g, as stated in State v. Nickles, 144 N.H. 673 (2000). The plaintiff in Heald was
sentenced under both the enhanced sentencing provision of the robbery statute
and the felonious-use-of-a-firearm statute. Heald, 123 N.H. at 470. He argued
that his sentencing violated the Double Jeopardy Clause because armed
robbery and felonious use of a firearm were the same offense. See id. at 470-



                                         7
71. We rejected the State’s assertion that to determine whether the offenses
were the same, we need only examine their statutory definitions. Id. at 471-72.
The State argued that the two offenses were different because “each offense
contains an element which might be proven with evidence different from that
which might be required for proof of an element of the other.” Id. at 472.
Specifically, felonious use of a firearm requires the use of a firearm in the
commission of any felony, not only in the commission of a robbery, and armed
robbery requires the commission of robbery while armed with any deadly
weapon, not necessarily a gun. Id. We decided that the State’s articulation of
our “same evidence” test was wrong. Id. at 472-73. “We therefore affirm[ed] as
the benchmark of the double jeopardy test in this State an inquiry focusing on
whether proof of the elements of the crimes as charged will in actuality require
a difference in evidence.” Id. at 473.

       We concluded that the two offenses were the same for double jeopardy
purposes because “in order to prove the plaintiff guilty of armed robbery, the
State had to prove each and every fact that was also required to prove the
felonious-use charge, and not one single fact more.” Id. Thus, once the State
proved that the plaintiff committed the robbery with a gun, “no additional
evidence was necessary in order to prove the elements of the felonious use of a
firearm” charge. Id. Therefore, because “not a single difference in evidence
was required,” the two offenses were the same for double jeopardy purposes.
Id. at 473-74.

       Although in Heald we focused specifically upon the evidence required to
prove each offense, we have not always done so in subsequent cases. Indeed,
we did not do so in State v. Elbert, 128 N.H. 210 (1986), a case decided soon
after we decided Heald. In that case, the issue was whether the defendant
could be sentenced for both felonious use of a firearm and attempted murder.
Elbert, 128 N.H. at 211. The defendant argued that the two offenses were the
same for double jeopardy purposes “because the same evidence was necessary
to prove the commission of each crime, . . . i.e., once the State proved
attempted murder through the use of a gun, it also proved felonious use of a
firearm.” Id. We stated that this articulation of our double jeopardy test was
“too broad[ ].” Id.

      We held that double jeopardy did not bar sentencing the defendant for
both offenses “even though the underlying offense and the allegations justifying
the penalty enhancement are contained in separate indictments containing
identical allegations.” Id. at 214. We reasoned that because the legislature
“could constitutionally mandate the result here simply by creating a separate
class of attempted murder when perpetrated by an armed defendant[,] [i]t . . .
would be formalistic to read [Part I, Article 16] as forbidding the same result
when effected by simultaneously prosecuted indictments, separately charging a
basic offense and the elements justifying an enhanced penalty.” Id. at 213.



                                       8
Thus, because the defendant’s use of a gun was not used to “enhance” the
attempted murder charge, we concluded that the case was distinguishable from
Heald. Id.

       We also did not focus on the evidence required to prove each offense in
State v. Crate, 141 N.H. 489 (1996), State v. Liakos, 142 N.H. 726 (1998), State
v. Nickles, 144 N.H. 673 (2000), State v. McKean, 147 N.H. 198 (2001), and
Glenn, 160 N.H. 480, although in each of those cases we articulated our test in
the same way that we articulated it in Heald. See Crate, 141 N.H. at 491, 492;
Liakos, 142 N.H. at 730; Nickles, 144 N.H. at 677; McKean, 147 N.H. at 201;
Glenn, 160 N.H. at 486. By contrast, in other cases, we have applied our
double jeopardy test similarly to how we applied it in Heald. See State v.
Hannon, 151 N.H. 708 (2005); State v. Gooden, 133 N.H. 674 (1990). Although
the double jeopardy issues in our cases have arisen in a variety of contexts,
e.g., imposition of multiple punishments, successive prosecutions on new
charges, retrial after mistrial on some but not all charges, etc., we are unable
to discern a consistent approach to double jeopardy analysis in our own cases.
Thus, it is doubtful that our double jeopardy cases can be reconciled. We
invite parties in future cases to ask us to reconsider our double jeopardy
jurisprudence consistent with the principles of stare decisis, see State v. Smith,
165 N.H. __, ___, 86 A.3d 114, 118 (2014), and to suggest a formulation of the
double jeopardy test to be applied under our State Constitution.

                                                  Reversed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




                                        9
