State v. ElbertState v. Elbert
- Reporters:
- , ,
- Before:
- Johnson
This is the third appeal in the course of the prosecution and sentencing of the defendant for attempted murder,
*211The trial court ruled that the defendant’s motion was untimely, because he failed tо raise the double jeopardy claim prior to the second appeal. The State, however, has expressly declined to rely upon this issue. For that reason, and because of the general nеed to resolve the substantive issue, we will express no opinion on timeliness and will proceed to consider the applicability of article 16.
The defendant contends that imposition of a sentence for felonious use of a firearm, in addition to a sentence for attempted murder, would violate the guarantee against double jeopardy contained in part I, article 16 of the State Constitution, subjecting him to multiple punishments for the same offense. He argues that the offenses actually charged under the two statutes are the same, because the same evidence was necessary to prove the commission of each crime, with no additional facts needed to prove either; i.e., once the State proved attempted murder through the use of a gun, it also proved felonious use of a firearm. Thе defendant summarizes his position with a quotation from Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983) that “‘as the offenses were charged and proven in this case, not a single difference in evidence was required.’” The defendant would apply Heald and the New Hampshire double jeopardy test too broadly, however.
The habeas petitioner in Heald had been sentenced consecutively under two separate statutes:
Two significant features of the statutes applied in Heald focussed and limited the issues in that case. The first was that each statute provided an enhanced penalty for the commission of what would otherwise havе been a less serious crime.
This second feature was the use in one enhanсement statute of a specific term to describe the element enhancing the penalty, in contrast to the use in the other statute of a generic term, broad enough to encompass the speсific term used in the first.
The State submitted in Heald that the difference between the specific and the general was signifiсant for purposes of article 16. The State need not prove possession of a firearm in order to prove armed robbery; it therefore argued that the enhancement elements were not the same. The State thus raised a fundamental issue of double jeopardy analysis: whether elements of two statutes are different if one statute states a specific example that would fall within a general category employed by the other. Depending on the resolution of that issue, double jeopardy protection may be significantly broader or narrower. See Illinois v. Vitale, 447 U.S. 410 (1980).
If, for example, the court in Heald had held that article 16 would always recognize а distinction between those specific and general elements, the petitioner would have lost. The terms of one statute did not require proof of a firearm; the terms of the other did not require proof оf a robbery. On that analysis, each statute would have been seen to require proof of an element that the other did not, the offenses would not have been the same under article 16, and there would have been no bar to multiple enhanced penalties. See Heald, 123 N.H. at 472, 464 A.2d at 277; see also State v. Gosselin, 117 N.H. 115, 117-18, 370 A.2d 264, 267 (1977) (under State “same-evidence” test for double jeopardy, two offenses not the same when proof of different elements necessary for cоnviction under each); State v. Smith, 98 N.H. 149, 150, 95 A.2d 789, 791 (1953) (under State “same-in-law-and-in-fact” test for double jeopardy, two offenses not the same when each requires proof of an element that the other does not).
The court’s actual answer in Heald was that elemеnts of two statutes are not necessarily different for purposes of article 16 simply *213because one statute states the element in general terms and the other does so more specifically. Heald, 123 N.H. at 473, 464 A.2d at 278. The case held, in the context of multiple penalty enhancement statutes, that in order to determine whether a specific and a general element are the same, a court must look to the evidentiary facts actually alleged to prove each element. If the evidentiary facts are the same, then the elements are the same. Id.
Thus, the petitioner prevailed in Heald because “as the offenses were charged and provеn . .. not a single difference in evidence was required.” Heald, supra at 473, 464 A.2d at 278. Heald thus solved a problem in construing the scope of State double jeopardy protection, but it did not announce a new, general double jeopardy test. And it is clear in any case that Heald was not intended to answer the question now before us, whether article 16 permits the application of a single penalty enhancement provision through the mechanism of a separate indictment.
The basic argument for a negative answer is that to allow conviction for a basic offense plus a separate conviction under a penalty enhancement stаtute is similar to allowing conviction both for a lesser-included and a superior offense. See Missouri v. Hunter, 459 U.S. 359, 369 (1983) (Marshall, J., dissenting, citing Brown v. Ohio, 432 U.S. 161 (1977), inter alia). The answer, however, rests on the recognition that accepting this argument would prefer form over substance in limiting legislаtive power to determine appropriate penalties, without any practical justification for the formalism.
There is no question that the legislature can constitutionally define separate, and more severely punishable, classes of an offense by reference to enhancement elements. As the court recognized in Heald, the legislature is perfectly free to provide that robbery committed by an armed defendant is more serious than unarmed robbery. Heald, 123 N.H. at 474, 464 A.2d at 279. Thus the legislature could constitutionally mandate the result intended here simply by creating a separate class of attempted murder when perpеtrated by an armed defendant. It therefore would be formalistic to read article 16 as forbidding the same result when effected by simultaneously prosecuted indictments, separately charging a basic offensе and the elements justifying an enhanced penalty.
A charge of formalism is admittedly not a dispositive objection in every case, because formalism can sometimes serve valuable objectives. In Heald itself, for example, the court conceded that the legislature could constitutionally provide the equivalent of a double penalty enhancement by creating a third and most heavily penalized catеgory of robbery committed by a defendant with a firearm. Heald, supra at 475, 464 A.2d at 279. Although this was a concession *214to formalism, it served the end of ensuring that the unusual result of double penalty enhancement would not occur without a legislative choice expressing exаctly that intent.
A comparably formalistic result in the present circumstances would have no such justification, however. Provision for a single penalty enhancement presents neither novelty nor the vexatiоusness that may be thought to arise from a multiplicity of enhancement provisions. Nothing would be gained by employing the general rules of construction upon which double jeopardy analysis rests so as to require the legislature to enact a separate enhanced penalty provision for every felony. See Missouri v. Hunter, supra at 368-69.
Heald anticipated this analysis. On the one hand, the court observed that where “use of a gun is used to trigger . . . enhancement provisions, it will generally follow that the felonious use of a firearm cannot also be charged . . . .” Heald, 123 N.H. at 474, 464 A.2d at 278 (emphasis in original). The court also stated, however, that “felonies which themselves are not enhanced becausе of the defendant’s use of a gun are ... not likely to run afoul of the double jeopardy provision [when prosecuted in tandem with a charge under
We so hold today. Article 16 does not forbid the imposition of a singlе enhanced penalty for an underlying offense, even though the underlying offense and the allegations justifying the penalty enhancement are contained in separate indictments containing identical allegations.
Affirmed.
Johnson, J., did not sit.