THE STATE OF NEW HAMPSHIRE SUPREME COURT NO STATE OF NEW HAMPSHIRE DANIEL C. THOMPSON BRIEF FOR THE DEFENDANT

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT NO STATE OF NEW HAMPSHIRE V. DANIEL C. THOMPSON BRIEF FOR THE DEFENDANT Rule 7 Mandatory Appeal 2 nd Circuit District Division - Lebanon Bruce E. Kenna, Esquire Bar No KENNA & SHARKEY, PA 69 Bay Street Manchester, NH (603)

2 TABLE OF CONTENTS TABLE OF CONTENTS.. -i- TABLE OF AUTHORITIES.. -ii- QUESTIONS PRESENTED.. 1 STATEMENT OF THE CASE AND MATERIAL FACTS.. 2 SUMMARY OF ARGUMENT.. 4 ARGUMENT.. 5 A. PURSUANT TO RSA 265-A:18, IV, IN A CASE ALLEGING ANY CHARGE OF DRIVING OR OPERATING UNDER THE INFLUENCE OF DRUGS OR LIQUOR (DWI) (SUBSEQUENT OFFENSE), THE STATE IS REQUIRED TO ALLEGE IN THE COMPLAINT AND PROVE BEYOND A REASONABLE DOUBT ANY PRIOR OFFENSE.. 5 B. WHERE THE STATE FAILED TO SUBMIT ANY EVIDENCE IN ITS CASE-IN-CHIEF TO PROVE THE ALLEGATIONS OF TWO PRIOR CONVICTIONS FOR DWI CONTAINED WITHIN THE COMPLAINT PENDING AGAINST THE DEFENDANT, THE COURT S SENTENCE ON A DWI (THIRD OFFENSE) PURSUANT TO RSA 265-A-18, IV (b) WAS ILLEGAL 9 CONCLUSION REQUEST FOR ORAL ARGUMENT 11 ADDENDUM 12 CERTIFICATE OF SERVICE 22

3 TABLE OF AUTHORITY CASES Apprendi v. New Jersey, 530 US 466 (2000) 4, 6, State v. LeBaron, 148 NH 226 (2002)...4, 6, 7, 8, 10 State v. Gallagher, 157 NH 421, 424 (2008)..5, 6 State v. Doucet, 106 NH 225 (1965)..6, 10 Cedren v. Clarke, 99 NH 421, 423 (1955).6 State v. Lantaigne, 117 NH 266, (1977)..6 State v. Lougee, 137 NH 635, (1993)..6, 10 State v. Marcoux, 154 NH 118, 124 (2006) 6 State v. Cardin, 129 NH 137(1987)...6, 7 Almendarez-Torres v. United States, 523 US 224 (1998)..6 State v. Dixon, 144 NH 273, 283 (1999) 8 State v. Blais, 104 NH 214 (1962)..9 State v. Cogliano, 146 NH 603 (2001)...9 State v. Knapp, 150 NH 36 (2003). 9 STATUTES RSA 265-A:18, IV 1, 3, 4, 5, 7, 8, 9, 10, 11 RSA 265-A:18, IV(b).1, 3, 10 RSA 265-A:2..2, 5 RSA 265-A:2, I..6, 7

4 RSA 265-A:3..6 TABLE OF AUTHORITY (Continued) STATUTES RSA 630:3, II..6 RSA 262:23 6 RSA 265:82-b. 8 RSA b, II 8 RSA 265-A:18, I(a) 11

5 I. QUESTIONS PRESENTED FOR REVIEW 1. At trial of a complaint alleging Driving Under The Influence Of Drugs Or Alcohol Subsequent Offense, i.e. after two (2) prior convictions within the preceding ten (10) years, is the State of New Hampshire required by RSA 265-A:18, IV to submit evidence sufficient to prove those prior convictions beyond a reasonable doubt during its case-in-chief? Is proof of the prior convictions alleged in the complaint simply a matter of sentencing which need not be proven until after a verdict of guilt has been rendered on the issue of whether the defendant was operating under the influence of drugs or alcohol? (Transcript, Vol. II, pp ; Sentencing Transcript, pp. 3-18) In this case, where the State alleged in the complaint filed against the defendant two prior convictions for DWI offenses within the prior ten years, but failed to submit any evidence of either prior conviction in its case-in-chief, was the sentence imposed by the trial court pursuant to RSA 265-A:18, IV (b) for a third offense DWI improper and based upon insufficient evidence? (Sen. Tr., pp. 3-18). 1 The trial in State v. Daniel C. Thompson, #2010-CR-2015, was conducted in the Lebanon District Court on January 11, 2011 and February 7, The transcripts of these two trial dates will be referred to hereafter as Tr., Vol. I and/or Tr., Vol. II with appropriate page numbers thereafter. The Sentencing Hearing, held on April 27, 2011, after memorandums on the issue raised herein were submitted by counsel, will be referred to hereafter as Sent. Tr. with appropriate page numbers thereafter.

6 II. STATEMENT OF THE CASE On October 8, 2010, the Defendant, Daniel C. Thompson, was arrested while seated in his automobile in a Hanover, NH parking lot, and charged with Driving Under The Influence Of Drugs Or Liquor, pursuant to R.S.A. 265-A:2.(Addendum, p. 13) The complaint filed against the Defendant in the Lebanon District Court 2 initially contained only an allegation that the Defendant had been.previously convicted of Driving While Intoxicated on 7/16/2003 in the Lebanon District Court. (Addendum, p. 17 ). Prior to the commencement of the trial on January 11, 2011, the State amended the complaint by adding an allegation of a second prior conviction in Chittendon Co. Sup. Ct. in Vt. On 3/10/08. (Addendum, pg. 17). The trial and a hearing on the Defendant s Motion To Suppress were held together by agreement of counsel and the trial court (Tr., Vol. I, p.8). The trial encompassed two hearing dates January 11, 2011 and the continuation on February 7, During its case-in-chief and, in fact, during the course of the entire trial, the State failed to introduce any evidence whatsoever to establish and prove either of the prior convictions alleged in the complaint. At no time during the course of the trial did the State request the trial court to take judicial notice of the prior conviction allegedly entered against the defendant in the Lebanon District Court. Nor did the Court do so on its own. The State even failed to elicit any admissions or testimony regarding the allegations of prior convictions from the Defendant, himself, during his lengthy testimony and crossexamination. (Tr., Vol. II, pp ).). At the conclusion of all trial testimony and evidence on February 7, 2011, the trial court (Cirone, J.) found the defendant guilty of DWI. (Tr., Vol. II, p. 182). Only then did the State present the trial court with certified copies of the two prior convictions which had been 2 The Lebanon District Court has since been designated as the 2 nd Circuit-District Division-Lebanon according to the district court restructuring plan.

7 alleged in the complaint (Tr., Vol. II, p. 183). Defendant s counsel objected to the late introduction of the certified copies of the prior convictions for purposes of proving the subsequent offenses and sentencing the defendant as a multiple offender (Tr., Vol. II, pp ). Defendant s counsel argued that, based upon the evidence submitted at the trial, the trial court could only find the defendant guilty of a simple Class B Misdemeanor DWI and sentence him within the minimum and maximum sentencing options available by statute for that offense (Tr., Vol. II, pp ). The State argued that the prior convictions were not elements of the offense which had to be proven beyond a reasonable doubt during the trial and could be submitted for sentencing only (Tr., Vol. II, pp ). The trial court ordered counsel to submit memoranda of law for his consideration prior to a final sentencing hearing (Tr., Vol. II, pp ). A Sentencing Hearing was held on the case in the Lebanon District Court on April 27, 2011 (Sent. Tr., p. 3). After consideration of the Memoranda filed by the parties and argument in court, the trial court rejected the defendant s argument regarding the sufficiency of the proof offered at trial by the State, took judicial notice of the prior conviction in Lebanon District Court, accepted certified copies of the prior convictions alleged in the complaint, and sentenced the defendant for a conviction on a third offense DWI pursuant to RSA 265-A:18, IV (b)(sent. Tr., p. 10, 16-17)(Addendum, pp ) It is from this ruling of the court and the sentence imposed as a result thereof that the defendant appeals.

8 III. SUMMARY OF ARGUMENT 1. New Hampshire RSA 265-A:18, IV (Addendum, p. 15) imposes a statutory basis for requiring the State to allege prior convictions in any complaint pursuant to the DWI (subsequent offense) statutes and to submit evidence in their case-in-chief to prove the alleged prior convictions beyond a reasonable doubt. RSA 265-A:18, IV specifically requires that any conviction for a DWI (subsequent offense) be based on a complaint which alleged that the person has had one or more prior convictions for [DWI] within 10 years preceding the date of the second or subsequent offense. The statutory language is plain and unambiguous and clearly expresses the legislature s intent to require notice to the defendant that the State intends to rely upon one or more prior DWI offenses during the course of his or her trial and to submit proof of any alleged prior offense beyond a reasonable doubt. That statutory requirement, which has survived intact over several revisions of the New Hampshire DWI laws by the state legislature, was not affected by the United States Supreme Court s decision in Apprendi v. New Jersey, 530 US 466 (2000) or this Court s decision in State v. LeBaron, 148 NH 226 (2002). 2. As required by RSA 265-A:18, IV, the State did properly allege in the complaint filed against the defendant that he had been previously convicted for DWI offenses in the Lebanon District Court in 2003 and in a Vermont court in However, despite the existence of several available methods of proving those prior convictions, the State failed to submit any proof of those alleged prior convictions. Therefore, based upon the evidence presented at the trial, the trial court had no basis upon which to convict or sentence the defendant upon any violation of the law except upon a simple DWI Class B misdemeanor.

9 IV. ARGUMENT A. PURSUANT TO R.S.A. 265-A:18, IV, IN A CASE ALLEGING ANY CHARGE OF DRIVING OR OPERATING UNDER THE INFLUENCE OF DRUGS OR LIQUOR (DWI) (SUBSEQUENT OFFENSE), THE STATE IS REQUIRED TO ALLEGE IN THE COMPLAINT AND PROVE BEYOND A REASONABLE DOUBT ANY PRIOR OFFENSE In the prosecutions for subsequent violations of this State s DWI statutes, the New Hampshire legislature has long required the State s prosecutors to allege in its charging documents and prove beyond a reasonable doubt in its case in chief any prior offense upon which it intends to rely to apply the enhanced penalties authorized by statute. New Hampshire RSA 265-A:2 and 265-A:18, IV, the present re-codification of our DWI statutes, continues the State s burden to the present day. 3 RSA 265-A:2 (Addendum, p. 13) provides, in relevant part: I. No person shall drive or attempt to drive a vehicle upon any way or or operate or attempt to operate an OHRV: (a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor or controlled drugs; or (b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more. RSA 265-A:18, IV (Addendum, p. 15), the present statute relating to subsequent offenses of DWI, provides, in relevant part, that: 3 The legislature has engaged in continuing review, revision, and amendment of the laws relating to DWI cases over the years. The present statute, RSA Chapter 265-A, became effective on January 1, 2007 and repealed the previous DWI statutes. This most recent version of the DWI statutes was intended to consolidate the former DWI statutes and make them more easily accessible. This Court has recognized that the definition of a DWI violation and the penalties therefore including those relevant to this case are virtually identical to the prior ones. State v. Gallagher, 157 NH 421, 424 (2008).

10 IV. Upon conviction of any offense under RSA 265-A:2, I or RSA 265- A:3, based on a complaint which alleged that the person has had one or more prior convictions under RSA 265-A:2, I or RSA 265-A:3, or RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state jurisdiction, within 10 years preceding the date of the second or subsequent offense 4 the person would be subject to enhanced offense levels and additional penalties. In a long line of decisions regarding the pleading requirements and burden of proof imposed upon the State in cases alleging DWI subsequent offenses, this Court has consistently upheld and enforced the legislature s intent as manifested by its statutes. In State v. Doucet, 106 NH 225 (1965), the Court maintained that the State had to both allege and prove two convictions if the defendant was to be convicted of a DWI, second offense, and that, if there was no evidence of a prior offense, then a conviction could only be found for a first offense. See also Cedergren v. Clarke, 99 NH 421, 423 (1955); State v. Lantaigne, 117 NH 266, (1977) (Habitual Offender proceeding; validity of convictions); State v. Lougee, 137 NH 635, (1993); State v. Marcoux, 154 NH 118, 124 (2006) (State bears burden of proving existence of prior conviction, but declining to rule on applicable standard). In State v. Cardin, 129 NH 137(1987), an appeal to the Hillsborough Superior Court from a district court conviction for driving under the influence, second offense, this Court approved a 4 State v. Gallagher, 157 NH at 423, recognized that the legislature also intended that prior convictions under RSA 265:82, the prior statute, although not specifically referenced in RSA 265-A:18, IV, would also be proper predicate offenses under the current statute. 5 In State v. LeBaron, 148 NH 226, 232 (2002), this Court applied the ruling of the United States Supreme Court decisions in Apprendi v. New Jersey, 530 US 466 (2000) and Almendarez-Torres v. United States, 523 US 224 (1998) to RSA 262:23, New Hampshire s Habitual Offender statute and ruled that the statute did not require the State to allege in an indictment or prove beyond a reasonable doubt in its case-in-chief the existence or validity of the individual convictions upon which the original habitual offender certification relied. The Court s interpretation of the specific statute only required proof that the defendant was operating a vehicle on a public way while he was certified as a habitual offender and that he knew of that certification. The Court considered its prior rulings in Doucet and the other cases cited above and, to the extent these cases may be inconsistent with its holding, overruled those decisions. However, as argued above, the prior rulings were not inconsistent since they involved a different statute in which the legislature s intent and requirements were clearly different. 5

11 procedure now widely used on such appeals allowing a defendant to stipulate to a prior conviction for DWI and, therefore, take that issue away from the jury s consideration. The trial court was clearly instructed in such instances..not to remove the issue (of the existence and validity of the prior offense) from the jury unless the defendant also clearly waives his right to require that the jury find it beyond a reasonable doubt and clearly accepts that, should the jury return a verdict of guilty, the trial judge will use the stipulation to enhance the sentence. Cardin, 129 NH at 139. The statute in effect at the time of the Court s decision in Cardin also specifically required that the complaint allege the prior convictions. Although the Court ruled that proof of the prior conviction was not an element of the charge, Cardin, 129 NH at 138, it did confirm that the statute required proof of the prior conviction alleged.as a predicate condition for enhancement of the sentence. However, the Court did recognize that the statute required the proof of the prior conviction. If the defendant did wish to contest the validity of the prior conviction and refused to stipulate to its existence and validity, then he or she could: submit the issue of the record of the prior conviction to the jury, where it becomes part of the State s case-in-chief. Id. As argued above, in DWI subsequent offense cases the State legislature and this Court have consistently required the State to allege and prove the existence of the prior offenses relied upon to enhance the offense classification and available penalties. The Court is the final arbiter of legislative intent as expressed in the words of a statute as a whole. State v. LeBaron, 148 NH 226, 228 (2002). In its prior rulings, the Court has interpreted RSA 265-A:2, I and 265-A:18, IV and their predecessor statutes based upon the statutory language in accordance with its common

12 usage. Id. The language contained therein is plain and unambiguous, State v. Dixon, 144 NH 273, 283 (1999). Allegation of prior convictions must be contained in the complaint. RSA 265-A:18, IV. If no such allegations are present, then the complaint alleges only a simple DWI pursuant to RSA 265-A:18, I. Each section of the statute defines a new offense with different, defined offense levels and different, defined penalty options for the Court. The very structure of the statutory language makes it obvious that the State is required to provide notice to the defendant of those prior convictions, if any, the State intends to prove. This statutory requirement alone tells the defendant which statute he allegedly violated, whether he has a right to court-appointed counsel, whether he has a right to trial by jury, and what possible penalties he might face if convicted. And once alleged, the statute clearly expects the State to bear the burden of proving the very allegations it is required to include in the complaint. The differences between the New Hampshire statutes governing DWI offenses pursuant to RSA Chapter 265-A and the Habitual Offender statute interpreted by this Court in State v. LeBaron, 148 NH 226 (2002) were obvious to the Court. In recognizing the difference in the statutes, the Court stated: We note that the statute prescribing the penalties for driving while intoxicated now explicitly requires a complaint to allege specified prior convictions for certain enhanced penalties to be imposed. See RSA 265:82-b, II (Supp. 2001). That statute is not affected by this decision. Id. at 232. RSA 265:82-b, II, the DWI statute effective at the time of the LeBaron decision, is essentially identical to RSA 265-A:18, IV, the statutory provision in question here. That statute requires the State to allege and prove the prior convictions necessary for any conviction on a DWI subsequent case.

13 B. WHERE THE STATE FAILED TO SUBMIT ANY EVIDENCE IN ITS CASE-IN-CHIEF TO PROVE THE ALLEGATIONS OF TWO PRIOR CONVICTIONS FOR DWI CONTAINED WITHIN THE COMPLAINT PENDING AGAINST THE DEFENDANT, THE COURT S SENTENCE ON A DWI (THIRD OFFENSE) PURSUANT TO RSA 265-a:18, IV (b) WAS ILLEGAL. On January 11, 2011 and February 7, 2011, the defendant was tried in the Lebanon District Court based upon a complaint alleging that, on October 8, 2010 he did:.drive a vehicle upon a way, LOT 1 in Hanover, New Hampshire while under the influence of intoxicating liquor and/or controlled drugs, having been previously convicted of Driving While Intoxicate on 07/16/2003 in the Lebanon District Court and a conviction in Chittendon Co. Sup. Ct. in Vt. On 3/10/08. The trial in this case consumed portions of two days. The defendant did testify in his own defense. It is undisputed that the State did not submit any evidence to establish the existence or the validity of either of the prior offenses alleged in the complaint. The State could have but did not submitted certified copies of the convictions alleged in the complaint. The State could have but did not question the defendant on cross-examination regarding the existence and validity of prior convictions suffered by him. At least with regard to the alleged prior conviction from the Lebanon District Court, the State could have but did not request the trial court to take judicial notice of its own case. The methods available to the State to prove the prior convictions alleged are several, none of which is particularly burdensome. State v. Blais, 104 NH 214 (1962). Even the alleged out-of-state conviction from Vermont could have been easily proven. State v. Cogliano, 146 NH 603 (2001); State v. Knapp, 150 NH 36 (2003). After the close of all evidence on February 7, 2011, the trial court found the defendant guilty of DWI and asked the parties for their recommendations on the sentence to be imposed. Only then did the State seek to submit any evidence of the prior convictions alleged in the complaint (Tr., Vol. II, p. 183). The defendant s counsel objected and argued that the trial evidence could only sustain a conviction for a simple DWI since no evidence was offered to prove either of the alleged priors at trail. Even then the State failed to request to reopen its case

14 to present the evidence. Instead, the Court deferred sentencing, requested memoranda on the issue presented, and continued the Sentencing Hearing (Tr., Vol. II, pp ). On April 27, 2011, the trial court reconvened the Sentencing Hearing. Based upon this Court s ruling in State v. LeBaron, 148 NH 226, 232 (2002) the trial court ruled that the State was not required to prove the alleged prior convictions in its case-in-chief and could introduce its evidence of the prior convictions at the Sentencing Hearing (Sent. Trl, p. 10). The trial court then sentenced the defendant for a third offense DWI pursuant to RSA 265-A:18, IV (b) (Sent. Tr., pp ). In relying on the LeBaron decision, the trial Court failed to recognize that this Court clearly differentiated between the statute prescribing the penalties for driving while intoxicated which explicitly required the complaint to allege specified prior convictions for enhanced penalties and the Habitual Offender statute which only required that a valid habitual offender certification be proven. Id. at 232. The trial court simply ignored this Court s clear notation that the DWI statutes were not affected by [the LeBaron] decision. Id. Because of the statutory requirement contained in RSA 265-A:18, IV, the State must still allege and prove the existence and validity of prior DWI offenses upon which it intends to rely to request a court to impose enhanced penalties. As applied to the specific statutory requirements of the DWI statutes, this Court s decisions in State v. Doucet, 106 NH 225 (1965), and State v. Lougee, 137 NH 635 (1993) should still control. Therefore, since no evidence of any prior conviction was submitted during the trial of this matter, the trial court could not convict and sentence the defendant on any conviction except for the simple DWI proven at trial. Doucet, 106 NH at 226; Lougee, 137 NH at

15 V. CONCLUSION RSA 265-A:18, IV requires the State to allege in the charging complaint and prove at trial any prior convictions upon which it intends to rely to sustain a conviction for DWI subsequent offenses. Although the State in this case properly alleged two prior offenses, it failed at trial to submit any evidence to prove those allegations. Therefore, the trial court could not have found sufficient evidence to convict and sentence the defendant for a third offense DWI pursuant to RSA 265-A:18, IV (b). This case should be remanded back to the Lebanon District Court for resentencing pursuant to RSA 265-A:18, I (a), a simple DWI, the only conviction sustainable based upon the evidence at trial. VI. REQUEST FOR ORAL ARGUMENT Daniel Thompson, Appellant, hereby requests oral argument to be presented by Bruce E. Kenna, Esquire. Appellant s counsel estimates no more than 15 minutes for said Oral Argument. Respectfully submitted, DANIEL C. THOMPSON, APPELLANT By his attorney, Dated: June 28, 2012 Bruce E. Kenna, Esq. NH Bar No KENNA & SHARKEY, P.A. 69 Bay Street Manchester, NH (603)

16 Certification Pursuant To Rules 16(10) and 26(2) I, Bruce E. Kenna, Esq., attorney for the Defendant Daniel C. Thompson, hereby certify, as required by new Hampshire Supreme Court Rules 16(10) and 26(2) that I have on this same date sent by first class mail, two (2) copies of the Brief For The Defendant to the Attorney General s Office at 33 Capitol Street, Concord, New Hampshire Date: June 28, 2012 Bruce E. Kenna, Esquire NH Bar No.1348 Attorney for the Defendant, Daniel C. Thompson

17 ADDENDUM TABLE OF CONTENTS Page 1. Applicable Statutes RSA 265-A: Applicable Statutes RSA 265-A: District court Complaint District Court Sentencing Sheet 19-21