State v. SmithState v. Smith
- Reporters:
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- Before:
- Horton
The defendant, Dennis A. Smith, was convicted of four misdemeanors and sentenced to extended prison terms under
While on patrol the morning of August 26, 1995, Northfield Police Officer William Whitcher observed the defendant’s automobile parked outside the residence of Valerie Morin. Officer Whitcher believed that a restraining order prohibited the defendant’s presence there. Whitcher attempted to call Morin to determine whether the order remained in effect. The defendant answered and hung up on the officer. When Whitcher called back, Morin answered and confirmed that the restraining order was still in effect.
Whitcher and Tilton Police Officer Owen Wellington met at the Morin residence to arrest the defendant. The officers found the defendant hiding behind a neighbor’s cellar door. Whitcher asked the defendant to step out from the cellar. When the defendant emerged, Whitcher told him that he was under arrest for violating a court order.
The defendant responded that the officers would not be arresting him. Whitcher grabbed the defendant’s shirt, but the defendant pushed him back. Wellington attempted, without success, to subdue the defendant with pepper spray, and the defendant retreated into the cellar. After repeated requests to emerge from the cellar, the defendant finally surrendered to Wellington.
The defendant was subsequently charged by information with the following misdemeanors: (1) violation of a restraining order, see
1. Dennis Smith knowingly interfered with Northfield Police Officer William Whitcher, who was seeking to effect thearrest of Dennis Smith; 2. Dennis Smith interfered with Officer Whitcher by running away when ordered to stop by Officer Whitcher; 3. Dennis Smith recognized Officer Whitcher as a law enforcement official; 4. Dennis Smith committed the above act knowingly.
The State notified the defendant of its intention to seek extended prison sentences under
The defendant first argues that the trial court erred in sentencing him to prison terms exceeding one year for crimes charged by information.
“On questions of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” State v. Woods, 139 N.H. 399, 400, 654 A.2d 960, 961 (1995) (quotation omitted). “[W]e turn first to the plain meaning of the words used.” Larose v. Superintendent, Hillsborough County Correction Admin., 142 N.H. 364, 366, 702 A.2d 326, 328 (1997). Because it is unclear whether
We have held that
In the case of misdemeanors, the requirement of an information filed by a sworn public officer, learned in the law, who has no motive other than to protect and promote the public interest, and whose duty it is as much to secure the innocent from persecution as to prosecute the guilty, affords a protection against unfounded and malignant charges at least equal to that afforded by the grand jury in the case of felonies.
State v. Gerry, 68 N.H. 495, 499, 38 A. 272, 274 (1896) (quotation and citation omitted). Consistent with the New Hampshire Constitution, the State may charge a misdemeanor through an information. See id.; State v. Dover, 9 N.H. 468, 471 (1838).
It appears that
As noted, Part I, Article 15 incorporates the common law governing the initiation of prosecutions. The Fifth Amendment to the United States Constitution, which provides that capital or infamous crimes must be charged by indictment, was also based on the common law. See Mackin v. United States, 117 U.S. 348, 350-51 (1886). We examine precedent interpreting the common law and the Fifth Amendment for guidance.
The function of the grand jury at common law was to protect citizens from improper charging decisions when the consequence might be an infamous punishment. See Gerry, 68 N.H. at 498-99, 38 A. at 273-74; Ex parte Wilson, 114 U.S. 417, 423-24, 426 (1885). At common law, therefore, the nature of a crime’s punishment determined whether it was a felony, or “infamous” crime, and as a consequence chargeable only by indictment. Mackin, 117 U.S. at 350-51. Incarceration in a state prison was traditionally recognized as an infamous punishment. See In re Claasen, 140 U.S. 200, 204-05 (1891); Ex parte Wilson, 114 U.S. at 428. However, “the question is[] whether [the crime] is one for which the statute authorizes the court to award an infamous punishment, and not whether the punishment ultimately awarded is an infamous one.” Fitzpatrick v. United States, 178 U.S. 304, 307 (1900) (quotation omitted). “The punishment . . . which determines the question of infamy is that which is related to the offense itself . . . .” Harvin v. United States, 445 F.2d 675, 678 (D.C. Cir.) (en banc) (per curiam), cert. denied, 404 U.S. 943 (1971).
A potential sentence enhancement based on prior convictions, see
Finally, we disagree with the defendant’s position that Kiluk v. Potter, Administrator, 133 N.H. 67, 572 A.2d 1157 (1990), compels a contrary holding. We did not address in Kiluk the question whether
The defendant next argues there was insufficient evidence to convict him of resisting arrest. We view the trial evidence, “and all reasonable inferences drawn therefrom, in the light most favorable to the State, and uphold the jury’s verdict unless no rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Graham, 142 N.H. 357, 360, 702 A.2d 322, 324 (1997) (citation omitted). The defendant bears the burden of establishing that the evidence was insufficient to prove his guilt. State v. Smith, 127 N.H. 433, 436, 503 A.2d 774, 776 (1985).
The defendant contends that because the State did not demonstrate that he ran when ordered to stop by Officer Whitcher, as is alleged in the information, his guilt was not proven. While the State is required to plead all the elements of an alleged crime in an information, see State v. LeClair, 126 N.H. 479, 480, 493 A.2d 498, 499 (1985), it is not obligated to plead facts beyond those necessary to identify the specific offense charged, see State v. Therrien, 129 N.H. 765, 770, 533 A.2d 346, 349 (1987). An information need only ensure that a defendant can prepare for trial and avoid being subjected to double jeopardy. See id. at 770, 533 A.2d at 348. Once these goals are accomplished, “there is no further and independent requirement to identify the acts by which a defendant may have committed [the] offense, or to limit proof of guilt to acts specifically pleaded.” Id. at 770, 533 A.2d at 349. The defendant does not argue
Resisting arrest requires knowing or purposeful physical interference with a person recognized as a law enforcement officer who is seeking to make an arrest or detention. See
A jury could rationally conclude from this evidence that the defendant resisted arrest in a manner consistent with the identifying facts set forth in the information. The “gravamen of the offense charged,” State v. Miner, 122 N.H. 86, 88, 441 A.2d 1150, 1151 (1982), was that the defendant fled when Officer Whitcher attempted to arrest him. Although Whitcher never told the defendant to stop, the officer told the defendant he was under arrest and physically attempted to stop him by grabbing his shirt. The defendant then quickly retreated into the cellar, an action reasonably consistent with running away. Indeed, defense counsel conceded below that the defendant’s retreat into the cellar constituted fleeing or running away. The variance between the information and the evidence is minimal. We long ago repudiated the argument that an immaterial variance between the proof and the facts alleged in a charging document is fatal to the prosecution. See State v. Rousten, 84 N.H. 140, 142-43, 146 A. 870, 871-72 (1929). Accordingly, we reject the defendant’s sufficiency of the evidence argument.
Lastly, the defendant argues that the trial court’s failure to instruct the jury on the factual predicate alleged in the resisting arrest information denied the defendant his right to a unanimous jury verdict. The defendant contends that the nature of the evidence and variance between the proof and the information permitted the jury to reach a guilty verdict on different factual predicates, and thus the trial court’s refusal to give a specific unanimity instruction was error. The defendant asserts that
some of the jurors may have believed that [he] resisted arrest by hanging up the phone when the officer called and told him he was under arrest. Some may have believed theresisting took place when [he] left through the cellar door. Some may have believed the culpable act was the pushing of the officer, or the retreating into the cellar. Others may have believed that the resisting was a result of [his] refusing to be handcuffed and being sprayed with pepper spray. Still others may have believed that the culpable act was not exiting the cellar when the officers repeatedly requested that he do so.
A general unanimity instruction is usually sufficient to ensure a unanimous jury verdict. State v. Greene, 137 N.H. 126, 130, 623 A.2d 1342, 1345 (1995). The trial court must provide a specific unanimity instruction where a genuine possibility of juror confusion exists. See United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.), cert. denied, 493 U.S. 969 (1989). For instance, “the nature of the evidence, questions from the jury, some variance between the proof and the indictment, or ambiguous supplementary instructions from the court” may require the court to instruct the jury that substantial agreement is required on a certain set of facts. Greene, 137 N.H. at 130-31, 623 A.2d at 1345 (quotation omitted). We consider, in the context of the charging document, the whole trial, and the entire jury instruction, whether a conscientious juror would have understood the prerequisite of agreement on the essential facts. Cf. United States v. Washington, 106 F.3d 983, 1013 (D.C. Cir.), cert. denied, 118 S. Ct. 446 (1997); Anguiano, 873 F.2d at 1320-21 & n.4.
The trial court instructed the jury on the elements of resisting arrest and the requirement of a unanimous verdict. Prior to the opening statements, the clerk read the resisting arrest information to the jury. The information alleged and identified a single offense. See United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir.), cert. denied, 479 U.S. 839, 844 (1986). The prosecutor, in both her opening and closing arguments, asserted that the defendant resisted arrest by retreating into a cellar while Officer Whitcher was attempting to arrest him. The evidence supported the prosecutor’s argument and was not at material variance with the identifying facts alleged in the information. See id. The obvious essential culpable act of resisting arrest, as charged, demonstrated, and argued by the State, occurred when the defendant fled from Officer Whitcher while the officer actually attempted to arrest him.
Even if the jury could have broken down the defendant’s course of conduct into multiple incidents of resisting arrest, but cf. State v. Giwosky, 326 N.W.2d 232, 237-38 (Wis. 1982) (continuous course of assaultive conduct over short period constitutes single
We deem waived arguments the defendant raised in his notice of appeal but did not brief. Brown v. Bonnin, 132 N.H. 488, 491, 566 A.2d 1149, 1151 (1989).
Affirmed.
BRODERICK, J., did not sit; the others concurred.