PETITION OF THE STATE OF NEW HAMPSHIRE (Stаte v. Sven A. Johanson, Jr.)
No. 2006-584
Hillsborough-northern judicial district
September 5, 2007
Argued: May 10, 2007
Finally, I recognize that if my view were adopted, it would be of no slight consequence for the prosecution of certain offenses in this state and for expert witnesses. However, until the United States Supreme Court modifies or clarifies Crawford, or charts a different course, I, like the courts whose opinions are cited above, believe we are compelled to follow Crawford and to apply its reasoning to the hearsay statements currently before us. Thus, I would reverse the defendant‘s conviction and remand for further proceedings.
BRODERICK, C.J., joins in the dissent.
McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Peter D. Anderson and Joel T. Emlen on the brief, and Mr. Anderson orally), for the respondent.
The parties do not dispute the following: The Cheshire County Grand Jury indicted the respondent on May 17, 2004, on a charge of falsifying physical evidence. See
When the State rested, the respondent moved for directed verdict, arguing that the bench trial in Hillsborough County violated his statutory and constitutional right to be tried in the county in which he allegedly committed the crime. See
Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the discretion of the court. Petition of State of N.H. (State v. San Giovanni), 154 N.H. 671, 674 (2007); see
Here, we grant review because certiorari is the only avenue by which the State may seek relief from an order dismissing a case after jeopardy has attached. See
The respondent contends that
Resolving these issues requires that we interpret the relevant constitutional and statutory provisions. We review the trial court‘s interpretation of statutes and the constitution de novo. Linehan v. Rockingham County Comm‘rs, 151 N.H. 276, 278 (2004).
We begin by examining
We next analyze
When it was originally enacted in 1784,
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed; except in cases of general insurrection in any particular county, when it shall appear to the Judges of the Superior Court, that an impartial trial cannot be had in the county where the offence may be committed, and upon their report, the assembly shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.
THE PERPETUAL LAWS OF THE STATE OF NEW HAMPSHIRE 12 (John Melcher ed. 1789). In 1792, this provision was amended to change the word “assembly” to “legislature.” See S. MARSHALL, THE NEW HAMPSHIRE STATE CONSTITUTION: A REFERENCE GUIDE 77 (2004).
In State v. Albee, 61 N.H. 423, 425 (1881), we ruled that the framers intended this provision to be protective of the accused. We held that it was “merely declaratory of the sense of the people that in a criminal prosecution it is the right of the accused to require the charge to be proved in the vicinity or neighborhood where the fact happened.” Albee, 61 N.H. at 426. We further ruled that the provisiоn was a privilege “designed for the protection of the accused... [to] prevent the possibility of sending him for trial to a remote county, at a distance from friends, among strangers, and perhaps among parties animated by prejudices of a personal or partisan character.” Id. at 429. The object of the framers “was to protect the subject against an unfair trial at a distance from the vicinity of the alleged crime and at a place selected by officials who might be hostile to the accused.” Id. at 427. By requiring that the trial take place where the crime was alleged to have been committed, the framers intended that the accused “have the benefit on his trial of his good character and standing
As with other constitutional privileges, see Almy, 67 N.H. at 280, we held in Albee that a criminal defendant could waive his right to proper venue, and that
We left unanswered the question of whether the State could obtain a change of venue. Id. Ten years later, in State v. Sawtelle, 66 N.H. 488, 504 (1891), we held that the State could not obtain a change of venue except in the extraordinary case of general insurrection.
In 1978,
In criminal prosecutions, the trial of facts, in the vicinity where they happened, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except in any case in any particular county or judicial district, upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed, the court shall direct the trial to a county or judicial district in which a fair and impartial trial can be obtained.
We disagree with the respondent that
This provision is silent with respect to other circumstances under which a criminal defendant may waive his or her right to proper venue. The provision contains no language that “precludes or denies to the accused the power or option to waive [proper venue]” under other circumstances. Almy, 67 N.H. at 280. “We will not redraft the constitution in an attempt to make it conform to an intent not fairly expressed in it.” New Hampshire Munic. Trust Workers’ Comp. Fund v. Flynn, Comm‘r, 133 N.H. 17, 21 (1990) (quotation omitted). Nothing in the history of the 1978 amendments to
Courts in other jurisdictions have ruled that “[i]n common with almost all other defense rights, a defendant can waive his right to proper venue by an express statement of relinquishment.” 4 W. LAFAVE ET AL., CRIMINAL PROCEDURE § 16.1(h), at 506 (1999); see United States v. LiCausi, 167 F.3d 36, 44 (1st Cir.) (“It is settled beyond peradventure that venue is a personal privilege which can be waived.” (quotation omitted)), cert. denied, 528 U.S. 827 (1999). “In addition, in the federal system and a substantial majority of the states, in contrast to such trial guarantees as trial by jury and representation by counsel, venue can be ‘waived‘—or more accurately, ‘forfeited‘—by a defendant‘s ‘silence‘, in the form of a failure to make a timely objection.” 4 LAFAVE, supra at 506-07. “The conclusion that objections to venue are waived by silence or by acquiescence in the trial is supported by an examination of the nature of the rights that venue is meant to protect. Proper venue prevents the unfairness and hardship that may occur when an accused is prosecuted in a remote place.” State v. Blooflat, 524 N.W.2d 482, 483-84 (Minn. Ct. App. 1994). Because once a trial has taken place, any hardship that may have occurred from conducting the trial in a remote place cannot be remedied, it is proper to place the burden of objecting to venue upon the criminal defendant. See id. at 484; see also 4 LAFAVE, supra at 507.
Generally, to avoid waiver, a defendant must raise any objections to venue before trial unless “the impropriety of venue only becomes apparent at the close of the government‘s case.” United States v. Delgado-Nunez, 295 F.3d 494, 497 (5th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. 1173 (2003); see United States v. Roberts, 308 F.3d 1147, 1151-52 (11th Cir. 2002), cert. denied, 538 U.S. 1064 (2003); United States v. Perez, 280 F.3d 318, 328 (3d Cir.), cert. denied, 537 U.S. 859 (2002). When the defendant is unaware of the error in venue until the prosecution presents its case, an objection to venue made at the close of the evidence is timely. Roberts, 308 F.3d at 1152. By contrast, when a criminal defendant knows all of the facts underlying his objection to venue before trial, his failure to object to venue before trial is deemed a waiver. See Delgado-Nunez, 295 F.3d at 497; United States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004).
In this case, we conclude that the respondent waived his constitutional and statutory right to proper venue. Every fact giving rise to his objection to venue in Hillsborough County was evident the moment the trial court changed venue to that county. See Collins, 372 F.3d at 633. Approximately
A holding that the respondent “did not waive his venue claim under these circumstances would create severe perverse incentives for criminal defendants in any case in which there are doubts over the legitimacy of venue.” Delgado-Nunez, 295 F.3d at 497. “A defendant would be able to game the system and obtain a free second shot at an acquittal by waiting for his trial to conclude and then challenging venue in the event of a conviction.” Id. “Even if—like [the defendant]—he was well aware of the potential defect in venue, he would have every incentive to forego an improper venue claim until after the trial is over.” Id.; see also 4 LAFAVE, supra at 507-08. Accordingly, we hold that by failing to object to venue in Hillsborough County before trial, the respondent waived any claim to improper venue. The trial court‘s ruling to the contrary is therefore еrroneous as a matter of law.
II
The State requests that we vacate the trial court‘s decision and remand for further proceedings. The respondent argues that the Double Jeopardy Clause of the New Hampshire Constitution bars remand. See
“When evaluating a double jeopardy claim, a reviewing court first must ask whether jeopardy attached in the original trial court proceeding.” Pacheco, 434 F.3d at 112 (quotation and brackets omitted). Here, the State concedes that jeopardy attached. See State v. Courtemanche, 142 N.H. 772, 773-74 (1998) (for purposes of Federal Double Jeopardy Clause, double jeopardy attaches in a bench trial when judge begins to hear evidence).
“But the conclusion that jeopardy has attached begins, rather than ends, the inquiry.” Pacheco, 434 F.3d at 112. “Thus, we must take a further step and ask whether the trial court terminated jeopardy in a way that prevents reprosecution.” Id. We conclude that the respondent‘s claim fails in this regard because the trial court‘s grant of directed verdict was not, in fact, a judgment of acquittal. See id.
“[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the judge‘s action. Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolutiоn, correct or not, of some or all of the factual elements of the offense charged.” Martin Linen Supply Co., 430 U.S. at 571 (citations omitted). “A resolution in the defendant‘s favor of a necessary factual element of the offense is a definitive determination that the defendant cannot be convicted.” Pacheco, 434 F.3d at 112 (emphasis added).
There is no question that the trial court did not decide any of the material elements of the falsifying evidence charge and simply dismissed the charge for lack of venue. See State v. Roybal, 132 P.3d 598, 605 (N.M. Ct. App.), cert. denied, 132 P.3d 1039 (N.M. 2006). While venue is an element of every criminal offense, it is not a material element. See
The dissent authored by Justice Galway implies that it is immaterial that proper venue does not bear upon the respondent‘s guilt or innocence. To the contrary, whether a trial court has dismissed an indictment for a reason that bears upon a criminal defendant‘s guilt or innocence is the “touchstone” upon which appellate courts rely to decide whether the Double Jeopardy Clause bars the defendant‘s retrial. 5 W. LAFAVE ET AL., CRIMINAL PROCEDURE § 25.3(a), at 666 (2d ed. 1999); see Burks, 437 U.S. at 15; see also United States v. Scott, 437 U.S. 82 (1978). Where, as here, a criminal defendant has deliberately chosen “to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, [he] suffers no injury cognizable under the Double Jeopardy Clause” by his retrial. Scott, 437 U.S. at 98-99. “Thus, a trial court‘s ruling that the prosecution‘s case-in-chief failed to establish venue, though framed as a judgment of acquittal, doеs not preclude retrial because venue is an element more procedural than substantive that does not go to culpability.” 5 LAFAVE, supra at 666 (quotation omitted).
Finally, as neither of the parties raised the issues discussed in the dissent authored by Chief Justice Broderick, we do not address them here. We disagree with the Chief Justice that the trial court‘s change of venue placed the respondent in a “Catch-22” position. To the contrary, nothing prevented the respondent during the approximately fourteen-month period that the case was pending in Hillsborough County from filing a motion to change venue back to Cheshire County. More importantly, however, none of the issues the Chief Justice addresses in his dissent is before us. They were neither briefed nor argued orally. Specifically, we do not address the constitutionality of Chief Justice Lynn‘s sua sponte order transferring the case from Cheshire County to Hillsborough County.
For all of the above reasons, we grant the State‘s petition, vacate the trial court‘s decision and remand for further proceedings consistent with this opinion.
Petition granted; dismissal vacated; and remanded.
BRODERICK, C.J., dissenting. Because I believe the change of venue in this cаse was unconstitutional, thus rendering the entire proceeding in Hillsborough County void ab initio, I respectfully dissent.
When the trial judge granted the respondent‘s motion for a directed verdict, he explained:
A review of the file indicates that no motion was ever filed by defendant or by the court or by the presiding justices for a change of venue, and that no reason therefore was stated other than the fact that the two presiding justices had recused themselves, and the defendant obviously did not waive any right that he had pursuant to Part 1 Article 17 of the constitution and has objected to it at the close of the State‘s case, and the court finds that the change of venue in the absence of the defendant as it occurred in this case was a violation of his right under the state constitution, and that his right having been violated the indictment is dismissed.
The order dismissing the indictment entailed two rulings: (1) that venue was changed from Cheshire County to Hillsborough County in violation of
In its petition, the State has raised but a single issue: “Whether the [respondent] waived his objection to venue, after the Chief Justice had transferred the case from Cheshirе County to a judge sitting in Hillsborough County, where the [respondent] filed a motion in Hillsborough County waiving jury trial and requesting a trial by the presiding judge, and failed to object to venue until after the State had rested its case.” In other words, the State has not argued, as a discrete issue in its petition, that the trial judge erred in ruling that venue was changed in violation of the constitution. However, given that the State has appealed the trial judge‘s ruling that venue was changed unconstitutionally, it is not unreasonable to read the State‘s petition as challenging that ruling. Moreover, as it was the trial court‘s unilateral decision to change venue that made venue improper, I cannot see how we can consider the issue of waiver without also considering the judicial act that created the situation that brought the respondent‘s constitutional rights into play. I believe the constitutionality of the trial court‘s order changing venue is properly before us in this case.
It is manifest in decisions from other jurisdictions that a criminal defendant may, by remaining silent or by participating in court proceedings, waive his or her objection to venue when a prosecution hаs been brought in a court where venue is not proper. See, e.g., State v. Tommy Y., Jr., 637 S.E.2d 628, 632-36 (W. Va. 2006) (holding that subject of delinquency petition waived objection to petition‘s failure to set out venue by waiting until close of State‘s case to object); Muir v. Nebraska Dept. of Motor Vehicles, 618 N.W.2d 444, 450 (Neb. 2000) (“By virtue of Muir‘s participation in the telephonic hearing without objecting to the hearing location, he waived any objection he might have had to the venue of the proceedings under [Neb. Rev. Stat.] § 60-6,205(6)(a) [(reissue 1998)].“); State v. Dent, 869 P.2d 392, 399 (Wash. 1994) (“We hold that a criminal defendant waives any challenge to venue by failing to present it by the time jeopardy attaches. Jeopardy attaches in a... bench trial when the court begins to hear evidence.” (quotation omitted)); State v. Lopez, 508 P.2d 1292, 1294 (N.M. 1973) (“this right to be tried in the county or district [in which the offense is alleged to have been committed is] a right or privilege... which... may be waived by an accused person in a number of ways [W]hen he goes to trial in another judicial district, without objection on his part, he has waived the privilege, and cannot be heard to say that the court trying him was without jurisdiction.” (quotation omitted)). To similar effect are all the federal cases upon which the majority relies. Representative of those decisions is the following language from United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. 1173 (2003): “A defendant indicted by an instrument which lacks sufficient allegations to establish venue waives any future challenges by failing to object before trial.” Here, of course, there was nothing wrong with the indictment as it related to venue; it was brought by a Cheshire County grand jury, in the Cheshire County Superior Court, and alleged a crime that took place, at least in part, in Cheshire County. In this case, venue was not improper at the outset, but only after it was unilaterally changed to Hillsborough County. The majority refers to no cases, nor have I found any, addressing the issue of waiver when venue is initially proper but has been rendered improper by a unilateral change of venue directed by the trial court for administrative reasons. And, to be clear, this case involves not the waiver of an objection to improper venue, but the purported waiver of an objection to the trial court‘s change of venue.
The majority holds that the respondent waived his objection to venue through a combination of silence or acquiescence, and it puts future defendants on notice that they must aсt sooner than the respondent did in this case in order to avoid waiver. On the practical side, however, it is easy
One option might be a motion to reconsider the order changing venue, but practical difficulties abound. Here, the order changing venue was an order of the Cheshire County Superior Court. Two days after the order changing venue was issued, the clerk of the Cheshire County Superior Court issued a notice of decision that also announced the transfer of the file in the respondent‘s case to the Northern District of Hillsborough County Superior Court, “for all purposes.” Thus, it appears likely that before the end of the ten-day reconsideration period, see
In light of the position in which the respondent was placed, and the lack of guidance in either the law of this state or the decisions of other jurisdictions regarding the procedure for objecting to a sua sponte change of venue—as opposed to merely objecting to a defect in venue apparent on the face of a charging document—I am unconvinced that it is possible to
The right of a criminal defendant to be tried in the county or district in which the alleged crime took place is granted by the State Constitution, which provides, in рertinent part:
In criminal prosecutions, the trial of facts, in the vicinity where they happened, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except in any case in any particular county or judicial district, upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed, the court shall direct the trial to a county or judicial district in which a fair and impartial trial can be obtained.
Both parties agree that the respondent had a constitutional right to be tried in Cheshire County. The petitioner argues, however, that once the respondent failed to object to the order changing venue or, at the very latest, when he filed his first pleading in Hillsborough County Superior Court, he waived his constitutional right to a trial in Cheshire County. While we have held that a defendant may waive his right to be tried in the county or district in which the alleged crime took place, “for the purpose of securing the fair trial which the constitution guarantees,” State v. Albee, 61 N.H. 423, 429 (1881), the waiver at issue in Albee took the form of the defendant‘s motion to change venue, id., and no such motion was ever filed in this case. The trial court‘s authority to grant a defendant‘s motion to change venue was at issue in AlbeePart I, Article 17 in force at the time, unlike the version in force today, did not mention the defendant‘s right to file a motion to change venue, but only granted the justices of the superior court the authority to change venue “in cases of general insurrection in any particular county, when it shall appear to [them] that an impartial trial cannot be had in the county where the offence may be committed.” Id. at 424. As we explained in Albee,
In criminal prosecutions the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed, except in cases of general insurrection in any particular county, when it shall appear to the judges of the superior court that an impartial trial cannot be had in the county where the offence may be committed, and, upon their report, the legislature shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.
Id. (quotation omitted). In Albee we explained:
Whether the emergency named in article 17 of the bill of rights would present an occasion which can be improved by the state, or by the state alone, to obtain a change of venue, and would be the only occasion on which the state can move for a change, we do not need to inquire.
Id.; see also State v. Sawtelle, 66 N.H. 488, 504 (1891) (“The state cannot have a change of venue except in the extraordinary case of a general insurrection. Unless the defendant asks for a change of venue, he cannot be tried ‘in any other county than that in which’ the offence was committed.” (citations omitted)).
While the amendment of
We have never decided whether a trial court has the authority to change venue on its own motion, or whether venue may be changed for any reason other than to provide the defendant a fair and impartial trial. However, when we recognized the defendant‘s common-law right to move for a change of venue in Albee, we explained that
“All fifty-two jurisdictions recognize judicial authority to grant a change of venue on a timely defense motion where needed to ensure that the defendant receives a fair trial.” 4 W. LAFAVE ET AL., CRIMINAL PROCEDURE § 16.3(b), at 545 (2d ed. 1999). Change of venue on the court‘s own motion is another matter.
Roughly a dozen states have provisions authorizing the court to grant a change of venue on its own motion, notwithstanding the objections of the parties. Those provisions differ dramatically in the grounds they accept for the change. Among the grоunds recognized in one or more states are: (1) the threat of violence against the defendant or disruption of the proceedings; (2) the exhaustion of so many jury panels as to clearly indicate that it will be impossible to secure a jury to try [the] cause in the county; (3) a community so prejudiced against the defendant that a fair and impartial trial cannot be had in the county of prosecution; (4) a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending; and (5) the interest of sound judicial administration, which encompasses concerns relating to providing a fair trial, witness convenience, and such matters as court congestion. In several states, an inherent judicial authority to change venue is recognized as to a change needed to obtain a fair and impartial trial. Most states, however, view the absence of a statutory authorization as having abrogated any authority for sua sponte venue changes that existed at common law.
Id. § 16.3(f), at 557-58 (quotations and footnotes omitted). But see Wafai v. People, 750 P.2d 37, 48 (Colo. 1988) (declining to decide whether docket
In summary, we affirm the trial court‘s change of venue on its own motion, based upon the inherent power of a trial court to provide the defendant with a fair trial by an impartial jury. However, as the court in Crocker v. Justices of Superior Court admonished, this power “should be exercised with great caution and only after a solid foundation of fact has been first established. Manifestly it should be resorted to only in aid of justice ....” [Crocker v. Justices of Superior Court,] 94 N.E. [369,] 377 [(Mass. 1911)]. When the trial court determines that an impartial jury cannot be obtained, yet there is no motion for a change of venue, the court may act on its own motion to assure a fair trial.
Id. at 49 (emphases added).
New Hampshire does not by statute authorize a trial court to change the venue of a criminal trial. If, against the weight of authority from other jurisdictions, we were to recognize under the common law that trial сourts have the inherent authority to change the venue of criminal trials upon their own motion, I am confident we would limit that authority to the achievement of a single goal: a fair and impartial trial. Because the change of venue in this case was not supported by any findings concerning the availability of a fair and impartial trial for the defendant in Cheshire County, I believe the trial judge correctly ruled that the change of venue was unconstitutional, and I would hold that under
Such a holding would leave undecided a number of questions, including whether a trial court may change venue, upon its own motion and over a defendant‘s objection, when the purpose of the change of venue is to secure a fair and impartial trial, protect the safety of the defendant or protect other constitutional rights, such as the right to a speedy trial. The Idaho Supreme Court has aptly explained one good reason for a rule disallowing any change of venue upon a trial court‘s own motion: “under [such a rule], both parties have an opportunity to present their views on the necessity for a change of venue to the court before its decision on the issue.” State v. Ash, 493 P.2d 701, 704 (Idaho 1972); cf. Wafai, 750 P.2d at
Because the majority bases its decision upon waiver, and I would decide the case based upon the unconstitutionality of the venue change, I also disagree with the majority‘s ultimate disposition of this casе. Although it is not perfectly clear, it appears that we are remanding the case to Hillsborough County for delivery of a verdict based upon the trial that has already been conducted there. In my view, however, given that the change of venue was unconstitutional, the entire proceeding in Hillsborough County was void ab initio—a legal nullity. Thus, we are sending this case back for a verdict from a court that lacks constitutional authority to render one. Accordingly, I would remand to the trial court with instructions to transfer the case back to Cheshire County, where venue is undeniably proper. The current remedy for improper venue, it seems to me, is a trial in a county where venue is proper. Moreover, trial in Cheshire County would not implicate double jeopardy concerns for an even more fundamental reason than those stated by the majority: jeopardy did not attach in Hillsborough County, nor could it have attached there, because the entire proceeding there was a legal nullity. The disposition I advocate honors the respondent‘s constitutional rights under
I readily concede that in light of the relief the respondent requested from the trial court—a judgment of acquittal based upon the State‘s failure to prove venue—and the manner in which he requested it—by means of a motion filed at the close of the State‘s case in a one-day trial—it would not be unfair to accuse him of trying to “game the system” by attacking venue only after jeopardy had attached. However, we have a greater concern than preventing this particular defendant from successfully gaming the system; our attention must be directed toward the next criminal defendant subjected to a sua sponte change of venue. I worry that under today‘s holding, a trial court could change venue for any reason at all, and that ten days later, after the running of the
Finally, I note that the trial court could have avoided this appeal entirely by: (1) specially assigning a trial judge and directing that the trial continue in Cheshire County; or (2) seeking the respondent‘s consent beforehand. The former procedure would have resulted in a trial in the proper venue and embodies what I believe to be the correct balance between judicial convenience and a defendant‘s rights under
To conclude, I would affirm the trial judge‘s ruling that venue was changed unconstitutionally, and I would further hold that any proceeding conducted after an unlawful sua sponte change of venue is void ab initio—a legal nullity—and for that reason cannot be revived by a defendant‘s subsequent failure to object. Accordingly, I would decide this case by holding that venue was never proper in Hillsborough County, that the respondent‘s objection to venue was timely, and that because the Hillsborough County proceedings were a legal nullity involving neither the attachment of jeopardy nor a judgment of acquittal, the proper remedy is a remand with instructions to transfer the case back to Cheshire County for a trial in the correct venue.
GALWAY, J., dissenting. The defendant argues that
When interpreting a constitutional provision, we look to its purpose and intent, bearing in mind that we will give the words in question the meaning they must be presumed to have had to the electorate when the vote was
When
In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed; except in the cases of general insurrection in any particular county, when it shall appear to the Judges of the Superior Court, that an impartial trial cannot be had in the county where the offence may be committed, and upon their report, the assembly shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.
THE PERPETUAL LAWS OF THE STATE OF NEW HAMPSHIRE 12 (John Melcher ed. 1789). Other than the minor change from “assembly” to “legislature,” this provision remained unchanged for nearly 200 years. See S. MARSHALL, THE NEW HAMPSHIRE STATE CONSTITUTION A REFERENCE GUIDE 77 (2004).
In State v. Albee, 61 N.H. 423, 425 (1881), one of the few cases directly interpreting this provision, we recognized that the only exception to the requirement in
Nothing in the record of the constitutional convention at which the amended language of
Article 17 as presently worded provides procedure for change of venue only in cases of general insurrection and refers only to “counties.” Resolution eliminates provision as to “general insurrection,” broadens “counties” to include “judicial districts” and provides for a change of venue on motion of defendant when fair and impartial trial cannot be had.
JOURNAL OF THE CONVENTION TO REVISE THE CONSTITUTION 232 (June 13, 1974) (emphasis added); see also MARSHALL, supra at 77 (“Until 1978, criminal cases had to be tried within the county in which the crime occurred, except in cases of general insurrection.“). Thus, while the effect of the 1978 amendment may be similar to that of Albee, in that it permitted a defendant to waive venue in a particular county, I do not believe there is a basis to conclude that the 1978 amendment, in effect, codified Albee. This is especially true when one considers the effect of the amendment on the method by which a defendant could waive his right to venue in a particular county.
The majority next concludes that
Lastly, the majority notes that courts in the federal system and a majority of the states have held that the right to venue may be waived or forfeited by a defendant‘s silence and cites the apрealing policy reasons for such conclusion. The Federal Constitution, however, in defining proper venue for prosecutions, does not contain any language explaining how, when, or under what circumstances the right to venue in a particular place may be waived. The federal courts, therefore, have interpreted this right as one that, unlike other enumerated rights, may be waived by silence. See, e.g., United States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984). No such omission is at work here. The New Hampshire Constitution specifically provides the procedure for waiving the right to venue in the place where the crime is alleged to have been committed. Thus, the analysis of the federal courts is inapposite. See State v. Ball, 124 N.H. 226, 231-32 (1983) (“While the role of the Federal Constitution is to provide the minimum level of national protection of fundamental rights, our court has stated that it has the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution.“). Additionally, the majority does not explain how the rules, statutes, cases, or constitutions of any other jurisdiction bear sufficient similarity to
Because the New Hampshire Constitution requires a change in venue to be based upon a motion by the defendant and because the defendant made no such motion here, I would conclude that the decision of the superior court to dismiss the matter for improper venue was correct.
After concluding that the respondent had waived his right to contest venue, the majority also concludes that reprosecution of the respondent is not barred by principles of double jeopardy. With this conclusion I also disagree.
III. “Element of an offense” means such conduct, or such attendant circumstances, or such a result of conduct as:
...
(e) Establishes jurisdiction or venue.
While I agree with the majority that venue is not a “material element” of an offense, the distinction between “element” and “material element” is irrelevant here. In order that the defendant be convicted, the State must prove each element of an offense and, as the majority and I agree, venue is an element of every offense under the statute. Here, at the conclusion of the trial, the superior court dismissed the case because it determined that the State had not shown that venue was proper in Hillsborough County, and, therefore, had not proven an element of the offense. Thus, irrespective of whether proper venue bears upon the respondent‘s guilt or innocence, this case was dismissed because the State did not prove an element of the offense. There is no meaningful distinction between this dismissal and any other judgment of acquittal entered when the State fails to prove an element of the offense. This is simply not a case where the distinction between “element” and “material element” has any bearing on the outcome. Cf. State v. McCabe, 145 N.H. 686, 691 (2001) (mens rea need not be proved as to particular element because not a material element). Accordingly, I would conclude that retrial of the defendant is barred by double jeopardy.
For these reasons, I respectfully dissent.