State v. Leavitt
165 N.H. 32
N.H.2013Background
- Defendant Todd Leavitt called 9-1-1 claiming he was suicidal; police were sent instead of an ambulance.
- He became agitated when police arrived; he refused ambulance and walked toward the hospital, leading to protective custody.
- During the subsequent struggle, Leavitt kicked Officer Nicholas Alden in the leg, and kicked him again at the hospital.
- Leavitt was indicted on two counts of simple assault; indictments were identical except for the charge ID numbers and count designations.
- Defendant moved to dismiss one count on double jeopardy grounds; the trial court denied the motion; the jury convicted on both counts.
- On appeal, the court held the two convictions did not violate federal double jeopardy; indictments and instructions supported separate offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Two identical indictments violate Double Jeopardy? | State argues two offenses proven; separate acts shown. | Leavitt argues identical indictments risk merging acts. | No federal Double Jeopardy violation; two separate assaults proven. |
| Adequacy of indictments to distinguish acts | State contends bill of particulars not required. | Leavitt contends indistinguishable acts in indictments. | Not a due process issue; bill of particulars could have been sought. |
| Effect of jury instructions on double jeopardy | State argues proper instruction that each indictment is separate. | Leavitt contends instructions may have increased double jeopardy risk. | Not preserved for review; no reversible error. |
Key Cases Cited
- State v. Gingras, 162 N.H. 633 (N.H. 2011) (de novo review of constitutional questions; double jeopardy considerations)
- State v. Lamarche, 157 N.H. 337 (N.H. 2008) (federal double jeopardy framework and state analysis)
- State v. Smith, 149 N.H. 693 (N.H. 2003) (jury instructed each indictment constitutes a separate offense)
- Nicholson v. State, 757 So. 2d 1227 (Fla. Dist. Ct. App. 2000) (identically worded indictments may still involve separate offenses when evidence distinguishes acts)
- Agri Processor Co., Inc. v. N.L.R.B., 514 F.3d 1 (D.C. Cir. 2008) (differing evidence can support multiple offenses despite similar indictments)