Following a jury trial in Superior Court (Lynn, J.), the defendant, Lucille Sanchez, was convicted of first degree murder, RSA 630:l-a (1996); RSA 626:8 (1996), and conspiracy to commit murder, RSA 629:3 (1996); RSA 630:l-a. We affirm.
The jury could have found the following facts. On July 2,1989, Lucienne Lemaire, the defendant’s aunt, was found strangled in her Manchester home. The police investigation determined that she had been murdered sometime during the evening of July 1,1989. During the course of several
In 2002, police investigators arrested Salas-Robles in Texas. After extensive questioning, Salas-Robles admitted murdering the victim and told investigators that the defendant had solicited him to kill her aunt so she could claim her inheritance. The defendant was arrested at her home in Texas in March 2002. Following her return to New Hampshire, she was indicted on three charges: (1) first degree murder; (2) conspiracy to commit murder; and (3) solicitation to commit murder. Prior to his trial, Salas-Robles reached a plea agreement with the State and agreed to testify against the defendant.
Following a juiy trial, the defendant was convicted on all three charges. At sentencing, the trial court granted the defendant’s motion to dismiss the solicitation charge as a violation of her double jeopardy rights. However, the trial court denied the defendant’s motion to dismiss the conspiracy charge. The trial court imposed a sentence of life imprisonment without the possibility of parole on the first-degree murder charge and a concurrent sentence of fifteen to thirty years on the conspiracy charge.
On appeal, the defendant argues that the trial court: (1) erred in failing to give the jury a curative instruction after the State’s closing argument; (2) erred in failing to instruct the jury on the legal principle of jury nullification; and (3) violated her double jeopardy rights by sentencing her on convictions for the separate crimes of first degree murder and conspiracy to commit first degree murder.
The defendant first contends that the trial court should have given a curative instruction after the State misstated the evidence. Specifically, during the State’s closing argument, the prosecutor commented that the night of July 1, 1989, was the perfect opportunity to murder the victim because her upstairs tenants were not home.
The defendant argues that there was “no evidentiary basis” to support the State’s argument. Following the jury instructions, the defendant objected and asked the court to instruct the jury “not to consider any comment by counsel regarding evidence that may not be consistent with their recollection what [sic] the evidence was.” The defendant argues that
As the trial court is in the best position to gauge any prejudicial effect the prosecutor’s closing remarks may have had on the jury, we review its decision declining to give an instruction under an unsustainable exercise of discretion standard. State v. DeCosta,
The State may not ask the jury to base its decision upon evidence not in the record. State v. Glodgett,
Here, the prosecutor’s remark concerning the absence of the victim’s upstairs tenants on the night of the murder did not constitute an improper comment. The record reflects that the comment was based upon reasonable inferences from the facts elicited during the trial. The victim and her upstairs tenants shared a common entrance into the house. Witnesses testified that they tried knocking on all of the outside doors and windows in order to find a way into the home and that the victim’s daily newspaper was still tucked in the outside door. All of the entrance doors were locked and one of the first officers to arrive at the crime scene had to climb up a ladder to gain access into the home. In addition, witnesses testified that they had not seen the upstairs tenants that morning and police testified they were not home when they were canvassing the crime scene. Finally, in a July 4,1989, interview that was admitted into evidence, the defendant alluded to the fact that the upstairs tenants were gone for the weekend. Given the evidence presented at trial, the State drew a reasonable inference that the victim’s upstairs tenants were not home on the night of the murder. Because the State neither misstated the evidence nor invited the jury to speculate about facts not in the record, we agree with the trial court that no curative instruction was required.
The defendant next argues that the trial court unsustainably exercised its discretion by refusing to instruct the jury on the legal principle of jury nullification. The defendant bases this argument upon the plea bargain in
The trial court’s refusal to give a specific jury instruction on the principle of jury nullification will not be reversed unless it was an unsustainable exercise of discretion. State v. Hokanson,
Jury nullification is the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. Hokanson,
Here, the trial court gave the standard Wentworth instruction, instructing the jury that it should find the defendant guilty of first-degree murder if the State had met its burden. Wentworth,
Finally, the defendant argues that the conspiracy conviction and sentence violated her double jeopardy rights under Part I, Article 16 of the
We first examine the defendant’s claim under the New Hampshire Constitution. State v. Ball,
The double jeopardy clause of the New Hampshire Constitution protects a defendant from multiple punishments for the same offense. Two offenses will be considered the same unless each requires proof of an element that the other does not. Thus, multiple indictments are permissible only if proof of the elements of the crimes as charged will in actuality require a difference in evidence. The ultimate question is whether the facts charged in the second indictment, would, if true, have sustained the first. As these formulations of the relevant inquiry make clear, we review and compare the statutory elements of the charged offenses in light of the actual allegations contained in the indictments.
State v. MacLeod,
When reviewing two separate indictments, “[i]t does not matter how overlapping, reciprocal, or similar the evidence used to sustain the indictments was if a difference in evidence is actually required to prove the crime charged.” State v. Hull,
The indictment for first degree murder, RSA 630:l-a; RSA 626:8, stated:
*631 Sanchez purposely caused the death of her aunt, Lucienne Lemaire, in that, with the purpose of promoting or facilitating the murder of Lucienne Lemaire, Sanchez solicited Baltazar Salas-Robles to commit the murder of Lucienne Lemaire by promising him money for killing her; Sanchez transported Robles to Lemaire’s residence; Sanchez waited while Robles killed Lemaire by strangling her; and Sanchez transported Robles away from Lemaire’s residence after the murder.
The indictment for conspiracy to commit murder, RSA 629:3; RSA 630:l-a, stated:
In that, with the purpose that the murder of Lucienne Lemaire be committed, Sanchez agreed with Baltazar Salas-Robles to cause the commission of Lemaire’s murder, a crime defined by statute. In furtherance of the conspiracy at least one of the following overt acts was committed by at least one of the conspirators:
1. Sanchez promised Robles money for killing Lemaire; or
2. Sanchez called Lemaire to tell her that Robles would come to her residence that evening to bring a gift or food in order to insure that Lemaire would admit Robles to her residence; or
3. Sanchez transported Robles to Lemaire’s residence; or
4. Sanchez waited while Robles entered Lemaire’s residence; or
5. Robles strangled Lemaire; or
6. Robles pulled items out of drawers in Lemaire’s bedroom to give her residence the appearance of having been ransacked; or
7. Sanchez picked Robles up outside of Lemaire’s residence; or
8. Sanchez transported Robles away from Lemaire’s residence after the murder.
As charged, each indictment required the State to prove a fact not necessary to the other. The statutory offense of conspiracy to commit murder, as set forth in RSA 629:3, I, required the State to prove an agreement between the defendant and Salas-Robles to commit the murder of Lemaire. Thus, the State was required to prove that the defendant purposely agreed with Salas-Robles to commit the crime of murder, and that one of them carried out an overt act in furtherance of the conspiracy. See RSA 629:3, I. The offense of first degree murder required proof that the defendant purposely caused the death of Lemaire. See RSA 630:l-a
The State did not have to prove the existence of an agreement, required for the conspiracy conviction, to prove the first degree murder charge. Thus, the evidence required to prove the first degree murder charge would not have sustained the conspiracy to commit murder charge. Likewise, the conspiracy indictment did not require the State to prove the enhanced mental state of deliberation and premeditation, required for a first degree murder conviction. Thus, the evidence required to prove the conspiracy to commit murder charge would not have sustained the first degree murder charge. Therefore, we conclude that the defendant’s convictions for the two offenses as charged do not offend double jeopardy under the New Hampshire Constitution.
Our analysis applying the State Constitution’s “difference in evidence test” disposes of the defendant’s claim under the Federal Constitution. See Blockburger v. United States,
Affirmed.