THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. Seth Skillin, the court on July 30, 2015, issued the following order: The defendant, Seth Skillin, appeals his conviction, following a jury trial in Superior Court (Mangones, J.), on charges of robbery and conspiracy to commit robbery. See RSA 636:1 (2007); RSA 629:3 (2007). He argues that the trial court erred by denying a motion to dismiss in which he argued that the State s earlier entry of nolle prosequi on the day that his trial was to begin, and subsequent reindictment of him for the same conduct, deprived him of due process and a speedy trial under the State and Federal Constitutions. We affirm. The power to enter nolle prosequi resides solely with the prosecuting officer; the trial court has no right to interfere with its exercise. State v. Allen, 150 N.H. 290, 293 (2003). Trial courts are empowered, however, to remedy an exercise of prosecutorial discretion that is used to inflict confusion, harassment, or other unfair prejudice upon a defendant. Id. For instance, due process protects a defendant from charging decisions that are unfairly prejudicial to the defense. See State v. Marti, 143 N.H. 608, (1999); State v. Adams, 133 N.H. 818, 824 (1991). Similarly, if a prosecutor s decision to enter nolle prosequi is grounded in bad faith, we have held that the time period during which the defendant is not under indictment after the entry of nolle prosequi will be counted against the State for purposes of a speedy trial analysis. Allen, 150 N.H. at 293. In this case, the defendant argues that the State s charging decisions amounted to a fundamentally unfair adjudicatory procedure in violation of his state and federal constitutional rights to due process, and that they violated his state and federal constitutional rights to a speedy trial. We address the defendant s arguments first under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, (1983). The record contains evidence from which the jury reasonably could have found that at approximately 12:45 a.m. on March 4, 2013, the defendant demanded that a cashier at a pharmacy in Manchester give him all of the money in a cash register and locked security box. The defendant was holding an object that the cashier believed, but was not sure, was a knife. A customer who had walked into the store during the robbery likewise testified that he saw the defendant holding a knife, but that it was partially obstructed from his view. Although the defendant was apprehended by police shortly after the robbery with a large sum of cash in his possession, no knife was ever recovered.

2 On May 17, 2013, a grand jury returned two indictments: one alleged that the defendant committed armed robbery by being actually armed with a deadly weapon when he brandished a knife, and demanded all the money from the register, see RSA 636:1, III(a); the other alleged that he conspired to commit armed robbery when he agreed with other persons to commit armed robbery, brandished a knife, and demanded all the money from the register. On October 28, 2013, the day that trial was scheduled to begin, the State, over the defendant s objection, moved to continue, asserting that it had discovered a serious defect in the indictments. Specifically, the State argued that, because it had charged the defendant with being actually armed with a knife, and did not also allege that he [r]easonably appeared to be so armed, see RSA 636:I, III(b), it could not secure a conviction unless the jury found that the object the defendant had held during the robbery was in fact a knife. See State v. Prevost, 141 N.H. 559, (1997) (holding that State was not entitled to instruction on reasonably-appearing-to-be-armed variant of armed robbery when it charged the defendant only with being actually armed). Following a hearing, the Superior Court (Garfunkel, J.) denied the State s motion to continue, and the State immediately entered nolle prosequi. On November 15, 2013, a grand jury returned four indictments against the defendant alleging that he engaged in armed robbery, conspiracy to commit armed robbery, robbery, and conspiracy to commit robbery. The armed robbery and conspiracy to commit armed robbery charges alleged that he held an object that appeared to be a knife or cutting instrument, a deadly weapon. The Superior Court (Garfunkel, J.) denied the defendant s motion to dismiss the new indictments, and on February 14, 2014, following a four-day trial, the jury convicted him of robbery and conspiracy to commit robbery, but acquitted him of armed robbery and conspiracy to commit armed robbery. This appeal followed. We first address whether the trial court erred by denying the defendant s motion to dismiss on due process grounds. To establish that the State s actions in entering nolle prosequi and reindicting him violated his right to due process under the State Constitution, the defendant must demonstrate that the delay caused by the State s actions resulted in actual prejudice to his defense. See Adams, 133 N.H. at 824. To the extent the defendant suggests that it was enough for him to establish that the State engaged in an unfair adjudicatory procedure without having to show prejudice, he is incorrect. See State v. Goodale, 144 N.H. 224, (1999) (affirming the defendant s conviction, despite finding that the defendant had been subjected to an unfair adjudicatory procedure, because he failed to demonstrate that he was prejudiced by the procedure). Even if we were to assume, without deciding, that the State s actions in entering nolle prosequi and reindicting the defendant constituted an adjudicatory procedure, we agree with the State that the defendant has not established actual prejudice to his defense. The mere fact that the State was able 2

3 to enter nolle prosequi under circumstances in which a defendant would not have been able to obtain a continuance does not establish that the defendant was prejudiced. Indeed, as the State correctly observes, the entry of nolle prosequi is not the equivalent of a continuance, but rather is the functional equivalent of a dismissal, Allen, 150 N.H. at 292, effectively removing the restraints on liberty associated with the prior charge, see id. at Nor does the fact that the new indictments may have reduced [the State s] burden at trial establish actual prejudice. See Adams, 133 N.H. at (noting that the defendant s argument that he was prejudiced because the State, in obtaining a subsequent indictment upon a lesser charge, deprived him of defenses available to him on the earlier indictment... does not warrant discussion ). Moreover, the defendant was ultimately acquitted of armed robbery and conspiracy to commit armed robbery. The defendant cites no authority for his assertion that the subsequent acquittals have no relevance to the question of whether the court erred in denying [his] motion to dismiss on due process grounds ; nor are we aware of any such authority. We note that the indictments charging the defendant with robbery and conspiracy to commit robbery asserted lesser included offenses of the crimes charged in the original indictments. Thus, had trial gone forward on the original indictments with the evidence submitted in this case, the State would have been entitled to lesser-included-offense instructions. See State v. Howland, 119 N.H. 413, 416 (1979). The Federal Due Process Clause offers the defendant no greater protection than does Part I, Article 15 of the State Constitution under these circumstances. See United States v. Marion, 404 U.S. 307, (1971); Adams, 133 N.H. at 824. Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution. We next address whether the trial court erred by denying the motion to dismiss on speedy trial grounds. In determining whether a defendant s right to a speedy trial has been violated under the State Constitution, we apply Barker v. Wingo, 407 U.S. 514, 530 (1972), which requires that we balance the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant s assertion of his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay. State v. Brooks, 162 N.H. 570, 581 (2011). We defer to the trial court s findings of fact unless they are clearly erroneous, and consider its conclusions of law with respect to those findings de novo. Id. The threshold inquiry in the speedy trial analysis is the length of the period of delay. Adams, 133 N.H. at 823. The period of delay begins to run when the defendant is arrested or charged, whichever event occurs first. Brooks, 162 N.H. at 581. In the absence of bad faith on the part of the State in entering nolle prosequi, we have held that the period of time between the entry of nolle prosequi and the institution of new criminal charges is excluded in calculating the length of the delay. See Allen, 150 N.H. at 293. We have held that delay of more than 3

4 nine months in a felony prosecution is presumptively prejudicial, triggering the analysis of the remaining three Barker factors. Brooks, 162 N.H. at 581. Moreover, we note that because the defendant here was incarcerated prior to trial, he was entitled, under the superior court s speedy trial policy, to a show cause hearing after 4 months from date of entry or indictment... to [determine] whether, under the principles of [Barker], the case should be dismissed for lack of a speedy trial. Super. Ct. Crim. R. App. In this case, the defendant was arrested on March 4, 2013, and his trial on the new indictments commenced eleven months later, on February 11, The trial court found, however, that the State entered nolle prosequi in good faith. The State asserted that it had entered nolle prosequi because it had discovered shortly before the original trial date that it might not be able to secure a conviction for armed robbery because the indictments, as charged, would not allow the jury to consider whether the defendant reasonably appeared to be armed. Under these circumstances, the trial court s finding that the State acted in good faith was not clearly erroneous, see Allen, 150 N.H. at 293 (observing that it is permissible to nolle prosse a case where the evidence will not sustain the charge as alleged ), and we reject the defendant s argument that the record compelled a contrary finding. Accordingly, the trial court properly excluded the eighteen-day period between October 28 and November 15, 2013, in calculating the length of the delay. See id. Nevertheless, because the delay, even with the eighteen days excluded, exceeded nine months, it was presumptively prejudicial, requiring an examination of the remaining Barker factors. Brooks, 162 N.H. at 582. The second Barker factor requires that we assess why the delay occurred, which party was responsible for it, and how much weight to give the delay. Id. Here, the trial court found, and the defendant does not contest on appeal, that from the time of his arrest until October 28, 2013, the case progressed through the court in ordinary fashion; no continuances were granted for either party, nor were any dilatory tactics employed by either party. See State v. Lamarche, 157 N.H. 337, 343 (2008) (noting that if there are valid reasons for a delay, the delay does not count against the State). Although the remaining delay was attributable to the entry of nolle prosequi, because the record supports the trial court s finding that the State acted in good faith, we conclude that the record supports the trial court s determination that the remaining delay weighed only slightly against the State. We put substantial emphasis on the final two Barker factors. Brooks, 162 N.H. at 582. The third factor the strength of the defendant s assertion of his right to a speedy trial is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Id. (quoting Barker, 407 U.S. at ). 4

5 In this case, the trial court found that the defendant did not assert his right to a speedy trial until October 28, 2013, when he objected to the State s motion to continue, and that [t]he fact that he did not assert his right until the eve of the first trial suggests the delay in getting to trial was not especially significant. The defendant contends that the trial court erred by not finding that he had asserted his speedy trial right sooner, arguing that his statement, in a September 26, 2013 motion to dismiss for alleged discovery violations, that a denial of the motion would force him to choose between his right to a speedy trial and his right to [e]ffective assistance of counsel constituted an assertion of his right to a speedy trial. Even if we were to assume that the statement was an assertion of his right to a speedy trial, it was not a strong assertion, and it occurred nearly seven months following his arrest. Although he was incarcerated, the record does not show that the defendant requested that the trial court hold a hearing, under the speedy trial policy, after four months had passed. See Super. Ct. Crim. R. App. We conclude that while this factor weighs in [the defendant s] favor, it does not do so heavily. Lamarche, 157 N.H. at 343. The final Barker factor requires us to determine whether and to what extent the defendant suffered prejudice, including whether the delay resulted in an oppressive pretrial incarceration, anxiety, or an impaired defense. Brooks, 162 N.H. at 583. As discussed above, the defendant has not demonstrated that the delay in bringing this case to trial prejudiced his defense. Nor does he assert that the delay resulted in oppressive pretrial incarceration or anxiety. See State v. Cotell, 143 N.H. 275, 283 (1998) (finding that neither an eight-month period of pretrial incarceration nor the defendant s anxiety and inconvenience was sufficient to establish actual prejudice). We conclude that the defendant was not denied his right to a speedy trial under Part I, Article 14 of the State Constitution. Because the Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances, see Brooks, 162 N.H. at 581; Barker, 407 U.S. at 530, we reach the same result under the Federal Constitution. Affirmed. HICKS, CONBOY, and BASSETT, JJ., concurred. Eileen Fox, Clerk 5