State v. BaileyState v. Bailey
- Reporters:
- , ,
- Before:
- Brock
The defendant, Ralph Bailey, was charged with two counts of manslaughter,
On July 30, 1982, the defendаnt, while driving drunk, struck a vehicle driven by Susan Beaulieu. As a result, her children Kathryn and Nathan, passengers in the car, were killed. The defendant was indicted for and tried on two counts of manslaughter. The jury convicted him of two counts of negligent homicide. He was thereafter sentenced to two consecutive terms of three and one-half to seven years.
Thе defendant raises three issues on appeal. First, he maintains that prosecution or conviction on two counts of manslaughter or negligent homicide arising from only onе act violates the double jeopardy clause of the New Hampshire Constitution. N.H. Const, pt. I, art. 16. Second, the defendant asserts that consecutive sentencing in this casе violates the federal double jeopardy clause, U.S. Const. amends. V, XIV, because it exceeds the maximum punishment intended by the legislature. Finally, he argues that consecutive sentencing in the absence of clear legislative intent violates “applicable principles of statutory construction.”
The defendant first argues that since he committed only one negligent act, that of driving an automobile while intoxicated, he may be prosecuted on and convicted of only one count of manslaughter or nеgligent homicide in spite of the fact that his negligent act caused more than one death. He grounds this argument solely on our State Constitution’s double jeopardy clause. Wе thus consider only the State Constitution and cases interpreting it, though we may employ decisions from other jurisdictions as aids in our analysis.
In Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), we stated that “the ‘same evidence’ and ‘same in law and fact’ tests have been virtually identical as applied in this State.” Id. at 472, 464 A.2d at 277. We went on in that case to note that: “it is clear .. . that whether the ‘same evidеnce’ or ‘same in law and fact’ tests have been employed, inquiry in each case has centered on what evidence will be required at trial to prove the elеments of the crimes[,]” id. at 473, 464 A.2d at 278, and held that “the benchmark of the double jeopardy test in this State [is] an inquiry focusing on whether proof of the elements of the crimes as charged will in actuality require a difference in evidence.” Id. (Emphasis in original.) Thus, the question for decision becomes whether the deaths of two individuals resulting from one episode of drunken driving give rise to one offense or two offenses requiring a difference in рroof under the statute.
Other jurisdictions are divided on this issue, some holding that a defendant may be convicted on only one count of negligent homicide under these circumstanсes, see, e.g., People v. Holtz, 19 Ill. App. 3d 781, 313 N.E.2d 234 (1974) (involuntary manslaughter), and others holding that a defendant may be tried and convicted on as many counts as there are victims, see, e.g., State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980). The weight of authority, however, seems to support the latter position. Id. at 74-76, 291 N.W.2d at 821-22.
We believe that the essential question is whether “the facts charged in the second indictment would, if true, have sustained the first.” State v. Sias, 17 N.H. 558, 559-60 (1845). See also State v. Smith, 98 N.H. 149, 150, 95 A.2d 789, 791 (1953). An indictment charging the defendаnt with causing the death of Nathan Beaulieu obviously could not have been used to convict him of causing the death of Kathryn Beaulieu, and vice versa. The common-sensе notion that two deaths should support two convictions is reinforced by the plain language of the statute: “A person is guilty of a class B felony when he causes the death of another:... [negligently; or [i]n consеquence of his being under the influence of intoxicating liquor or controlled drug while operating a propelled vehicle, as defined in
Defendant next argues that imposition of multiple consecutive sentences on two counts of negligent homicide exceeds the maximum punishment intended by thе legislature, thereby violating the double jeopardy clause of the fifth amendment to the United States Constitution.
The federal double jeopardy clause protects а defendant’s rights in three ways: “First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense.” Whalen v. United States, 445 U.S. 684, 700 (1980) (Rehnquist, J., dissenting) (citations omitted). It is the third of these categories of protection which is involved here. More specifically, we seek to discover what the legislature intended the correct scope and level of prosecution to be under
Determination of the proper unit of prosecution is a function of the legislаture’s intent. See Bell, supra at 82. Thus, the touchstone of whether the double jeopardy clause is violated in this context is the legislature’s articulated intent, see Albernaz v. United States, 450 U.S. 333, 344 (1981); and the so-called rule of lenity, which forbids interpretation of a federal criminal statute so as to increase the statutory penalty where Congress’ intent is unclear, is applicable only where statutory аmbiguity has been found. See id. at 342. “Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one.” Id. Since we have found that the statute on its face involves no ambiguity, the rule оf lenity is irrelevant. Legislative intent to permit multiple charges having been found above, and see Blockburger v. United States, 289 U.S. 299, 304 (1932), the constitutional issue is thereby resolved. See Albernaz, supra at 344. We reject defendant’s argument in view of our finding that the plain meaning of
Defendant’s final argument, that a construction of the statute such as we have described violates principles of statutory construction, is without merit.
The presence in our criminal statutes of rules governing both driving while intoxicated,
Affirmed.
All concurred.