THE STATE OF NEW HAMPSHIRE SUPREME COURT. No State of New Hampshire. James Fogg

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No State of New Hampshire v. James Fogg Appeal Pursuant to Rule 7 from Judgment of the Merrimack Superior Court REPLY BRIEF FOR THE DEFENDANT Thomas Barnard Senior Assistant Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH NH Bar # (15 minutes oral argument)

2 TABLE OF CONTENTS Page Table of Authorities... ii Question Presented... 1 Argument I. THE UNIT OF PROSECUTION FOR AGGRAVATED DRIVING WHILE INTOXICATED IS EACH ACT OF DRIVING, NOT EACH PERSON INJURED... 2 Conclusion l

3 TABLE OF AUTHORITIES Page Cases Brooks v. State, 973 So. 2d 380 (Ala. Crim. App. 2007)... 5 Cady v. Town of Deerfield, N.H. (Jan. 18, 2017)... 8 City of Concord v. State of N.H., 164 N.H. 130 (2012)... 6 Commonwealth v. Flanagan, 923 N.E.2d 101 (Mass. App. Ct. 2010)... 7, 8, 9 Kelly v. State, 527 N.E.2d 1148 (Ind. Ct. App. 1988)... 7, 8, 9 Melbourne v. State, 679 So. 2d 759 (Fla. 1996)... 7, 8, 9 Sanabria v. United States, 437 U.S. 54 (1978)...3 State v. Ayotte, 146 N.H. 544 (2001)... 3, 4, 5, 6 State v. Carter, 167 N.H. 161 (2014)... 4 State v. Donovan. 97 N.H. 190 (1951)... 3 State v. Edic, N.H. (Jan. 31, 2017)...2 State v. Gross-Santos, N.H. (Jan. 31, 2017)...2 State v. LaBounty, 892 A.2d 203 (Vt. 2006)... 7, 8, 9 State v. Polk, 155 N.H. 585 (2007)... 7 ii

4 State v. Sias, 17 N.H. 558 (1845)...3 State v. Smith, 98 N.H. 149 (1953)...3 United States v. Dixon, 509 U.S. 688 (1993)...3 Wilkoff v. Superior Court, 696 P.2d 134 (Cal. 1985)... 7, 8, 9 Statutes Fla. Stat RSA 265:79-a... 7 RSA 265-A:3...6, 7, 8, 9 RSA 630: RSA 631: RSA 634: Constitutional Provisions New Hampshire Constitution, Part I, Article , 3, 4 Legislative Material House Corrections and Criminal Justice Committee Hearing Minutes. H.B (Jan. 31, 1996)...6 iii

5 QUESTION PRESENTED Whether the court erred by entering two convictions and imposing two sentences on charges of aggravated driving while intoxicated, where the charges were based on one act of driving but the grade of the offense was elevated because the defendant caused one collision resulting in serious bodily injury to two people. Issue preserved by Fogg s motion to dismiss, DB A3*, the State s objection, DB A8, and the court s order, DB Supp. 1. * Citations to the record are as follows: DB refers to Fogg s opening brief; DB A refers to the separately bound appendix to Fogg s opening brief; DB Supp. refers to the supplement attached to Fogg s opening brief; SB refers to the State s brief; SBA refers to the separately bound appendix to the State s brief. 1

6 I. THE UNIT OF PROSECUTION FOR AGGRAVATED DRIVING WHILE INTOXICATED IS EACH ACT OF DRIVING, NOT EACH PERSON INJURED. Fogg filed a single-issue brief. DB 1. The State, in its brief, quotes seven statements from Fogg s brief, characterizes each as an appellate claim and asserts that five are not preserved. SB While it is certainly true that an appellant should not comb the record to find an alleged error never raised before the trial judge, State v. Gross-Santos, N.H. (Jan. 31, 2017), it is also true that an appellee should not comb the appellant s brief to find any statements that are not merely repetitions of what the appellant said below. The preservation rule does not restrict an appellant to parroting what he or she said in the lower court. Rather, the rule is based on common sense and judicial economy. State v. Edic, N.H. (Jan. 31, 2017). Its purpose is to [e]nsure that trial forums have an opportunity to rule on issues and correct errors before parties seek appellate review. Gross-Santos, N.H. a t. Thus, an issue is preserved when the trial court understood and therefore addressed the substance of an objection. IcL Here, Fogg s motion to dismiss gave the court an opportunity to rule on his double jeopardy challenge and correct its error before this appeal. DB A3-A7. The court s order, moreover, demonstrates that it understood and addressed the substance of Fogg s objection. DB Supp Thus, his double jeopardy challenge is fully preserved. Fogg, in his brief, discussed the development of the same evidence test under the double jeopardy clause of Part I, Article 16 of the New Hampshire 2

7 Constitution. DB The State disagrees with the history Fogg set forth, citing State v. Smith, 98 N.H. 149 (1953), State v. Donovan, 97 N.H. 190 (1951), and State v. Sias, 17 N.H. 558 (1845). SB However, none of those cases involved Part I, Article 16 of the New Hampshire Constitution. Fogg relied on Sanabria v. United States, 437 U.S. 54 (1978) for the propositions that the same evidence test does not apply to charges brought under a single statute, DB 13, and that the unit of prosecution is instead determined by reference to the statute s gravamen or actus reus, DB 17. The State attempts to distinguish Sanabria by noting that it involved prosecution following acquittal rather than multiple convictions and sentences. DB However, the analysis for determining whether two offenses are the same, for double jeopardy purposes, is no different in cases involving successive prosecution than it is in cases involving multiple convictions and sentences. United States v. Dixon, 509 U.S. 688, (1993). Fogg argued that [determining a statute s unit of prosecution by reference to its gravamen or actus reus is... consistent with the results of this Court s prior unit of prosecution cases. DB 17. The State argues that particular language in State v. Ayotte, 146 N.H. 544 (2001), belies this claim. SB An examination of the facts and holding of Ayotte, however, establishes that the case is not only consistent with Fogg s analysis, but undermines the State s argument. In Ayotte, the defendant was convicted of two counts of felony arson. Ich at 545. This Court reversed her convictions for trial error and remanded the 3

8 case for a new trial. IcL at 549. It then addressed her argument that the arson statute does not permit her to be convicted on two counts... [bjecause this issue is likely to arise on remand. IcL Because it was merely a hypothetical possibility that the defendant would, on retrial, be found guilty of both counts, the Court s discussion of the multiple conviction issue stands on the same footing as an advisory opinion. As such, it is not binding precedent. See State v. Carter, 167 N.H. 161, 166 (2014) ( an advisory opinion... does not constitute binding precedent ). Despite being decided over fifteen years ago, Ayotte has never been cited by any court in any published opinion for its discussion of the multiple conviction issue. Placing that problem aside, Ayotte did not involve any constitutional challenge, much less a challenge under double jeopardy, much less a challenge under Part I, Article 16 of the New Hampshire Constitution. Thus, it has minimal relevance to the issue in this appeal. Placing that problem aside, the holding of Ayotte undermines the State s argument. The statute at issue in Ayotte provided that a person commits arson if he knowingly starts a fire or causes an explosion which unlawfully damages the property of another. Ayotte, 146 N.H. at 549 (citing RSA 634:1). It elevated the offense to a class A felony if the property damaged is... [a]n occupied structure and the actor knew it was an occupied structure. IcL The issue presented by the facts of the case was whether a defendant could be convicted of two counts of arson where she set one fire that damaged one structure containing two businesses. IcL at 549. The court rejected the State s 4

9 argument that each loss or each place of business should be the unit of prosecution and thus held that the defendant could only be convicted for one count of arson, bt at The State argues that when a single criminal transaction involves multiple victims, multiple convictions are permitted. SB 26 (quoting Brooks v. State, 973 So. 2d 380, 402 (Ala. Crim. App. 2007)). The holding of Ayotte however, squarely contradicts that proposition. In Ayotte, this Court held that, even though defendant s fire involved two victims, the statute permitted only one conviction. The State notes that the Court in Ayotte did not find that the unit of prosecution was the actus reus of the offense, i.e., starting a fire or causing an explosion. SB 20. That much is true. But the facts of the case demonstrate why the Court did not so find: neither party argued that the unit of prosecution was the actus reus. Although the Court suggested that a person who ignites a single fire or explosion that damages multiple occupied structures can be prosecuted for as many counts as there are occupied structures damaged, icl at 550, that language is dicta because the fire in that case only damaged one structure. Had the Court in Ayotte held that the unit of prosecution in the arson statute was the actus reus, starting a fire or causing an explosion, the result of the case would have been the same because the defendant started only one fire. Thus, as with the cases discussed at pages 17 to 18 of Fogg s opening brief, this Court may hold that a statute s unit or prosecution is determined by 5

10 reference to its gravamen or actus reus without overruling Ayotte. See City of Concord v. State of N.H., 164 N.H. 130, 142 (2012) (acknowledging mistaken methodology of prior case, but reaffirming its result). The State notes that, in 1996, the legislature added the phrase to the person or another to RSA 265-A:3, 1(b) and 11(b). SB 24, 32. It argues that this amendment indicates that the legislature intended that serious bodily injury to more than one person under the circumstances described in the statute could result in multiple charges of aggravated DWI. SB 25; accord SB 32. If that were the legislature s intent, one would expect to see some reference to it in the legislative history of the amendment. There is none. SBA Instead, that history demonstrates that the legislature had an entirely different purpose for adding the phrase to the person or another : to clarif[y] that the bodily injury can be either to the driver him- or herself, or to a passenger. H. Corrs. & Crim. Just. Comm. Hearing Minutes, H.B (Jan. 31, 1996) (reprinted at SBA 249) (statement of Committee Chair Donna Sytek). The State argues that holding that an impaired driver who causes the death of more than one person can be charged with one negligent homicide DWI offense for each victim, but an impaired driver who causes serious bodily injury to more than one person can be charged with only one aggravated DWI offense would be an absurd and unjust result. SB 31. Just as an impaired driver who causes the death of more than one person can be charged with negligent homicide, RSA 630:3, for each victim, an impaired driver who causes serious bodily injury to more than one person can be charged with second 6

11 degree assault, RSA 631:2, or vehicular assault, RSA 265:79-a, for each victim. See DB (explaining that assault convictions for each victim are permissible because causing injury is in most cases the actus reus of assault). Unlike aggravated DWI, which is a strict liability offense, State v. Polk, 155 N.H. 585, 587 (2007), second degree assault requires proof that the defendant acted recklessly, RSA 631:2, 1(a), and vehicular assault requires proof that the defendant acted negligently, RSA 265:79-a. Here, the State chose not to charge Fogg with any assault. The State argues that RSA 265-A:3 is dissimilar to the statutes at issue in Wilkoff v. Superior Court, 696 P.2d 134 (Cal. 1985), Kelly v. State, 527 N.E.2d 1148 (Ind. Ct. App. 1988), and State v. LaBounty, 892 A.2d 203 (Vt. 2006), and similar to the statutes at issue in Commonwealth v. Flanagan, 923 N.E.2d 101 (Mass. App. Ct. 2010), and Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996). SB This Court should not follow Flanagan and Melbourne because the courts in those cases improperly determined the unit of prosecution by reference to statutory language that merely enhanced the sentence for the underlying offense. But even if this Court concludes that it is proper to determine the unit of prosecution by reference to such language, RSA 265-A:3 is similar to the statutes at issue in Wilkoff, Kelly and LaBounty, and dissimilar to those at issue in Flanagan and Melbourne. In Wilkoff, Kelly and LaBounty, injury was not the direct object of any operative verb contained in either the underlying offense or the sentencing enhancement. In Wilkoff, the operative verbs and their direct objects were 7

12 drive a vehicle and... do any act... or neglect any duty. Wilkoff, 696 P.2d at The word injury was a component of the subsequent relative clause, which functioned as an adjective and the limited types of act[s]... or neglect that could trigger the enhanced sentence. IcL ( which act or neglect... causes... injury ). In Kelly and LaBounty, the operative verb and its direct object were operates a... vehicle. Kelly, 527 N.E.2d at 1155; LaBounty, 892 A.2d at 205. In both, injury was a component of a subordinate clause. Kelly, 527 N.E.2d at 1155 ( if the crime results in... injury ); LaBounty, 892 A.2d at 205 ( [i]f... injury... results ). In Flanagan and Melbourne, by contrast, injury was the direct object of an operative verb. In Flanagan, the operative verbs and their corresponding direct objects were operates a motor vehicle... and... causes serious bodily injury. Flanagan, 923 N.E.2d at 106. In Melbourne the operative verbs and their direct objects were operates a vehicle... and... causes or contributes to causing... [s]erious bodily injury. Fla. Stat (3). The State at several points in its brief characterizes the enhancing element of RSA 265-A:3, 1(b) and 11(b) as causing serious bodily injury. SB 22, see also SB 23 ( causes serious bodily injury ); SB 31 ( causing serious bodily injury ); SB 33 ( causing injury ). If the enhancing element were, in fact, causing injury, then injury would be the direct object of the operative verb causing, and the State s analogy to Flanagan and Melbourne would have merit. But 265-A:3 does not contain the phrase causing injury. See Cady v. Town of Deerfield, N.H. (Jan. 18, 2017) (this Court interprets] 8

13 legislative intent from the statute as written and will not consider what the legislature might have said ). Rather, the operative verbs and their corresponding direct objects are drives, operates or attempts to operate an OHRV or... drives or attempts to drive a vehicle... or... operates or attempts to operate a boat... and... [c]auses a... collision. RSA 265-A:3, 1(b), 11(b). The subsequent language, resulting in serious bodily injury... to the person or another, is a participle phrase, which functions as an adjective and limits the types of collision[s] that can trigger an enhanced sentence. IdL [S]erious bodily injury is merely a component of that participle phrase. Because injury is not the direct object of any operative verb, RSA 265-A:3 is similar to the statutes at issue in Wilkoff, Kelly and LaBounty, and dissimilar to those at issue in Flanagan and Melbourne. In summary, the unit of prosecution should be determined by reference to the underlying offense, not any penalty enhancement. Under this approach, the unit of prosecution of RSA 265-A:3 is driving, attempting to drive, operating or attempting to operate an OHRV, vehicle or boat. But even if this Court concludes that the unit of prosecution should also be determined by reference to the penalty enhancement, the unit of prosecution only expands to include causing a... collision. RSA 265-A:3, 1(b), 11(b). Here, Fogg drove once, and caused one collision. Thus, under either approach, he can only be convicted of one count of aggravated DWI. 9

14 CONCLUSION WHEREFORE, James Fogg respectfully requests that this Court vacate the conviction and sentence on Charge ID# C. Undersigned counsel requests 15 minutes oral argument. Respectfully submitted, Thomas Barnard, #16414 Senior Assistant Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief have been mailed, postage prepaid, to: Susan P. McGinnis Senior Assistant Attorney General Criminal Justice Bureau 33 Capitol Street Concord, NH DATED: February 13, 2017 Thomas Barnard 10