THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 20 15-0358 State of New Hampshire V. Kevin Lynch Appeal to Rule 7 and Cross-Appeal to RSA 606:10 from of the Rockingham County Superior Court Pursuant Pursuant Judgment DEFENDANT S ANSWERING BRIEF Stephanie Hausman Deputy Chief Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH 03301 NH Bar # 15337 603-224-1236 (15 Minutes Oral Argument)
Question Presented 1 Page Table of Authorities ii Conclusion 13 Argument Summary of the Argument 3 Statement of the Case and the Facts 2 TABLE OF CONTENTS III. THE TRIAL COURT CORRECTLY RULED THAT THE UNIT OF PROSECUTION FOR ASSAULT CHARGES IS THE ACT THAT CAUSED INJURY, NOT EACH IDENTIFIABLE INJURY 4
Cases Page State v. Ramsey, State v. Locke, State v. Kardonsky, State v. Jennings, State v. Gosselin, State v. Fischer, State v. Farr, State v. Cobb, State v. Baich, State v. Bailey, State v. Ayotte, Heald v. Perrin, Commonwealth v. Traylor, 432 U.S. 161 (1977) 7 Brown v. Ohio, TABLE OF AUTHORITIES 34 N.E.3d 276 (Mass. 2015) 10,11,12 123 N.H. 468 (1983) 7 146 N.H. 544 (2001) 8 127 N.H. 811 (1986) 8,9 167 N.H. 329 (2015) 6, 7 143 N.H. 638 (1999) 6, 8 160 N.H. 803 (2010) 7 165 N.H. 706 (2013) passim 117 N.H. 115 (1977) 7 155 N.H. 768 (2007) 6, 7, 9 N.H. (decidedjune 13, 2016) 6 166 N.H. 344 (2014) 7 166 N.H. 45(2014) 6,7 II
State v. Ravell, 155 N.H. 280 (2007) 7,9 State v. Stratton, 132 N.H. 451 (1989) 8, 9 Statutes RSA631;1 8 R5A631:2 8 RSA631:2-a 8 Constitutional Provisions New Hampshire Constitution Part I, Article 16 5 United States Constitution, Fifth Amendment 5, 10 United States Constitution, Fourteenth Amendment 5 Rules New Hampshire Court Rules Annotated, Supreme Court Rule 16(8) 2 111
dismissed two of the charges. assault charges were the same offense for double jeopardy purposes and QUESTION PRESENTED 3. Whether the trial court erred when it ruled that the three simple 1
rulings that the three assault charges were the same offense for double jeopardy purposes. Pursuant to Supreme Court Rule 16(8), Lynch now The State appealed the trial courts (Wageling, J. and Schulman, J.) 2 Lynch relies on the Statement of the Facts in his opening brief. responds to the State s cross-appeal of the trial courts double jeopardy rulings. STATEMENT OF THE CASE AND OF THE FACTS
SUMMARY OF THE ARGUMENT 3. The trial court properly ruled that the three simple assault charges were the same offense for double jeopardy purposes. The State never maintained, or sought ajun finding, that the three injuries alleged in the indictments were caused by more than one act. Rather, the medical evidence revealed that the injuries were caused by the same mechanism. The Court should not accept the State s novel argument that the legislature intended that each identifiable injury serve as the unit of prosecution for assault charges. 3
111. THE TRIAL COURT CORRECTLY RULED THAT THE UNIT OF PROSECUTION FOR ASSAULT CHARGES IS THE ACT THAT CAUSED INJURY, NOT EACH IDENTIFIABLE INJURY. Lynch was charged with three counts of second degree assault for causing hemorrhaging in K.B. s eyes, face, and chest. DBA 16-18. Prior to trial, Lynch argued that the three assault charges were one offense for double jeopardy purposes, because they differed only in the identified injury which, he argued, had all been caused by the same act. SBA 1-6. The State objected but did not assert that ft would prove the three identified injuries had been caused by separate acts. SBA 7-14. The court (Wageling, J.) denied the pretrial motion without prejudice. SBA 22-27. It noted that, if the State s evidence established that only one act caused all three injuries, double jeopardy would bar three convictions. SBA 22-26. At trial, the State s medical evidence established that the injuries were caused by suffocation, choking, or pressure on K.B. s chest, which momentarily prevented her from breathing. Ti 74-75, 79-80, 99, 121; T2 237-39, 245-52. This act would have caused blood to collect in ICR s head, creating pressure that ruptured capillaries in her eyes and under her skin. TI 79-80, 99; T2 195, 237, 248-50. The ruptured capillaries manifested as petechial hemorrhages on the skin of her face, scalp, neck, and upper chest and as bleeding in the whites of her eyes. Ti 66, 74-77, 79-80, 86, 99, 121; T2 192-93, 195, 237-3g, 245-52. I Citations to the record are as follows: DBA refers to the separately-bound Appendix of Lynch s opening brief; SBA refers to the Appendix to the State s brief; Ti T3 refers to the transcripts of the three day July trial held on February 1113,2015. 4
Id. Nor did it request a jury instruction requiring the jury to find that each never maintained that the evidence established more than one assaultive act. pretrial double jeopardy ruling. Ti 137; T2 370-71; T3 412-15, 501. The State 5 First, there are the so-called double-description Multiple punishment cases come in two varieties. 706, 715 (2013). from being punished twice for the same offense. State v. Fischer, 165 N.H. Fourteenth Amendments to the United States Constitution protect a defendant Part I, Article 16 of the New Hampshire Constitution and the Fifth and injury. Id. The State has appealed this ruling. the defendant s assaultive act as the unit of prosecution, not each identifiable simple assault charges. SEA 28-29. It concluded that the legislature intended court affirmed the pretrial double jeopardy ruling and dismissed two of the SBA 15-2 1. It did not maintain that it had proven more than one act. The After trial, the State again objected to the court s double jeopardy ruling. 90, 496-98. simple assault and it was of those offenses that Lynch was convicted. T3 487-414. The court permitted the jury to consider the lesser-included offense of an example, every capillary burst as a result of a defendant s single act. T3 court reasoned that the legislature never intended multiple convictions for, as asked for a further opportunity to be heard on the issue. T3 4 14-15. The appeared to agree with the court s double jeopardy ruling, T2 370-71, but later injury was caused by a separate act. T3 4 18-38, 487-90. Initially, the State During trial, the court (Schulman, J.) affirmed the legal premise of the
cases, in which the issue is whether two statutes describe two separate offenses or are merely different descriptions of the same offense. Second, there are unit of prosecution cases in which the problem is not that the same course of conduct is proscribed by more than one statute but that a defendant s continuing course of conduct is fragmented into more than one violation of a single statutory provision. State v. Ramsey, 166 N.H. 45, 51(2014) (quotations, ellipsis, citations, and brackets omitted). The issue of double jeopardy presents a question of law which the Court reviews de novo. Fischer, 165 N.H. at 715. The Court is the final arbiterjj of the legislature s intent as expressed in the words of the statute considered as a whole. State v. Baich, 167 N.H. 329, 332 (2015). In interpreting a statute, the Court: first examine[s] statutory language, and, where possible, [it] ascribe[sj the plain and ordinary meanings to the words used. LThe Court] interpret[sj legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. State v. Kardonsky, omitted). N.H.- (slip op. at 3) (decided June 13, 2016) (citation In terms of the United States Constitution s Double Jeopardy Clause, determination of the proper unit of prosecution is a function of the legislature s intent. State v. Cobb, 143 N.H. 638, 647 (1999) (quotation omitted). When a statutory provision is ambiguous, the rule of lenity demands that all doubt be resolved against turning a single transaction into multiple offenses and thereby expanding the statutory penalty. State v. JenninRs, 155 N.H. 768, 777 (2007). 6
ITihe Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. State v. Farr, 160 N.H. 803, 811(2010); Brown v. Ohio, 432 U.S. 161, 169 (1977). The State s argument focuses on the difference in evidence test under the State Constitution. SB 29-32. However, this Court has recently expressed doubt that its jurisprudence addressing this test can be reconciled. State v. Locke, 166 N.H. 344, 351-53 (2014). The Court has most often employed this test when faced with double-description cases involving two different statutes applied to the same criminal transaction. See, çg, Ramsey, 166 N.H. at 49-52 (comparing elements of second degree assault and reckless conduct with a deadly weapon); State v. Qosselin, 117 N.H. 115, 117-19 (1977) (comparing elements of carrying a firearm without a license and felon in possession); Heald v. Perrin, 123 N.H. 468, 470-75 (1983) (comparing elements of armed robbery and felonious use of a firearm). However, when considering a unit of prosecution question, involving multiple charges under a single statute, this Court has most frequently applied a statutory interpretation analysis to determine the legislature s intent., g, Balch, 167 N.H. at 332-33 (unit of prosecution for multiple charges of armed career criminal); Fischer, 165 N.H. at 715 (unit of prosecution for multiple charges of second degree assault); Jennings, 155 N.H. at 776-78 (unit of prosecution for multiple charges of pattern sexual assault); State v. Ravell, 155 N.H. 280, 282-84 (2007) (unit of prosecution for multiple charges of 7
possession of child pornography); State v. Ayotte, 146 N.H. 544, 549-50 (2001) (unit of prosecution for multiple charges of arson); Cobb, 143 N.H. at 647-48 (unit of prosecution for multiple charges of possession of child pornography); State v. Stratton, 132 N.H. 451, 454-55 (1989) (unit of prosecution for multiple charges of felon in possession); State v. Bailey, 127 N.H. 811, 813-14 (1986) (unit of prosecution for multiple charges of negligent homicide). In such cases, the Court has considered the legislature s intended unit of prosecution under the federal constitution even when the charges passed the difference in evidence test under the state constitution. Cobb, 143 N.H. at 647-48; Stratton, 132 N.H. at 454-55; Bailey, 127 N.H. at 8 13-14. Thus, the State cannot prevail in a unit of prosecution case by showing only that different evidence is required to prove the elements of the charged offenses. The Court must also, under the federal constitution, consider the intended unit of prosecution. A person is guilty of simple assault, under RSA 631:2-a, if he [r]ecklessly causes bodily injury to another. Thus, the State must prove that the defendant committed an act, which caused a bodily injury, and that he did so recklessly. This structure is similar to more serious levels of assault under RSA 631:1 (first degree assault) and RSA 631:2 (second degree assault). The State has pointed to no case in which the Court has determined the unit of prosecution to be an identified injury instead of a defendant s act. Rather, the Fischer Court held that a defendant may be convicted of two counts of second degree assault when he committed two separate assaults that both caused 8
injuries to the victim s head and neck. Fischer, 165 N.H. at 715; see Jennings, 155 N.H. at 776-78 (permitting multiple pattern sexual assault charges when each charge represents different acts in distinct time periods). Nor has the State pointed to this Court s methods of statutory analysis in unit of prosecution cases to support its argument. Rather, this Court has found multiple charges possible when the legislature has phrased the crime in terms of possessing any or a prohibited item. For example, in Ravell, the Court held that by using the word any, a term of great breadth which, read naturally has an expansive meaning, the legislature gives this statute great reach, consistent with its stated intent. Ravell, 155 N.H. at 283 (quotation, brackets, ellipsis, and citation omitted). See also Stratton, 132 N.H. at 455 (Court relied on the use of the word a before the list of prohibited weapons in finding multiple charges permissible); Bailey, 127 N.H. at 8 13-14 (Court found that prohibited result, death of another, supported multiple charges for each person killed). Here, the legislature has criminalized caus[ingj bodily injury. If it intended the unit of prosecution to be each identifiable injury, the legislature could have criminalized causing any bodily injury or causing a bodily injury. See, Ravell, 155 N.H. at 283-84 (considering alternate phrasing which would have supported rejected interpretation); Stratton, 132 N.H. at 455 (same). As the trial court found, there may be a policy reason why the legislature did not intend to subdivide one criminal act into every identifiable injury. For example, one strike may cause a cut to the skin, bruising to the 9
tissue around it, and a fracture to the bone underneath. There is no indication that the legislature intended multiple convictions and sentences in such a case, To the extent that the statute is ambiguous as to whether the criminal act or the identifiable injuries were the intended unit of prosecution, the rule of lenity requires the Court to choose the interpretation that does not divide a single act into multiple crimes. The Supreme Judicial Court of Massachusetts has recently addressed the same issue. In Commonwealth v. Traylor, 34 N.E.3d 276 (Mass. 2015), the defendant was charged with seven counts under a statute that criminalized having care and custody of a child, wantonly or recklessly permits bodily injury or substantial bodily injury to such child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes bodily injury or substantial bodily injury. Id. at 277-78 (quotation and brackets omitted). The seven charges alleged different distinct injur[ies] or set[s] of injuries to the victim, but did not allege different instances in which the defendant permitted injury. Id. at 278. The court held that, under the Fifth Amendment, the statute requires proof either that the defendant engaged in separate and distinct instances of criminal conduct, or that multiple victims were harmed as a result of the defendant s criminal conduct. The Commonwealth may not establish multiple convictions solely by showing multiple injuries to a single child. Id. at 278, 282. The Massachusetts court explicitly uses a different analysis in double description cases from unit of prosecution cases: 10
In evaluating claims of double jeopardy violations, we also distinguish between two situations. Where a claimed double jeopardy violation arises from multiple prosecutions for different crimes, under different statutes, arising out of the same criminal episode, we are required to determine whether either crime charged is a lesser-included offense of the other. A different set of issues arises where, as here, a single statute is involved and the issue of whether two or more discrete offenses were proved under that statute rather than a single continuing offense. Then our inquiry requires statutory interpretation. We ask what unit of prosecution was intended by the Legislature as the punishable act. To determine the appropriate unit of prosecution, we look to the language and purpose of the statute, to see whether it speaks directly to the issue of the appropriate unit of prosecution. Id. at 282-83 (quotations, brackets, ellipsis, and citations omitted, emphasis in Traylor). The court then looks to whether multiple victims suffer harm from the defendant s criminal act and contrasted it to single-victim cases. [Wjhere multiple convictions and sentences are not based on distinct criminal acts, the convictions are permissible only where the Legislature has explicitly authorized cumulative punishments. That rule accords with the rule of lenity, which demands that we construe criminal statutes strictly against the Commonwealth, and that any ambiguity concerning the statute s ambit is resolved in favor of lenity. Id. at 284 (quotations, citation, brackets, and ellipsis omitted). The court found that the statute was directed at a particular form of criminal conduct. Id. Nothing in the language of the statute indicates a legislative intent to make the resulting injuries, rather than distinct instances of proscribed conduct or distinct victims, the unit of prosecution. jj The court considered that, for this statute, the consequences of defining the 11
particular injury as the unit of prosecution would he especially severe, because multiple minor bodily injuries such as bruises could be charged. jj at 286. The court concluded: Id. Absent any textual support to indicate that the Legislature has adopted each discrete injury as the unit of prosecution, however, and in light of the extreme novelty of that theory and the severity of its consequences for defendants, we reject that theory. Instead, we hold that, to sustain multiple convictions under the statute, the Commonwealth must establish either separate and discrete instances in which a defendant engaged in the proscribed conduct, or that multiple victims were harmed as a result of a defendant s conduct. Similarly here, there is no indication that the legislature intended to make each identifiable injury to a single victim that results from one criminal act to be subject to separate convictions and punishments. This Court must reject the State s argument and affirm the trial courts double jeopardy rulings. 12
CONCLUSION WHEREFORE, Mr. Lynch respectfully requests that this Honorable Court affirm the trial court s double jeopardy ruling, reverse his conviction, and remand his case for a new trial. Undersigned counsel has requested fifteen minutes of oral argument. Respectfully submitted, Stephanie Hausman, #15337 Deputy Chief Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH 03301 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief have been mailed, postage prepaid, to: Sean R. Locke Assistant Attorney General Criminal Justice Bureau New Hampshire Department of Justice 33 Capitol Street Concord, NH 03301 DATED: June 27, 2016 ç(. Stephanie Hausman 13