State of New Hampshire v. Michael S. Twamley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0347, State of New Hampshire v. Michael
S. Twamley, the court on August 22, 2019, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. In this
interlocutory appeal, see Sup. Ct. R. 8, the defendant, Michael S. Twamley,
challenges an order of the Superior Court (MacLeod, J.) denying his motion to
dismiss following the trial court’s declaration of a mistrial. He argues that the
trial court declared the mistrial in the absence of manifest necessity and,
therefore, a retrial would violate the Double Jeopardy Clauses of the New
Hampshire and United States Constitutions. See N.H. CONST. pt. I, art. 16;
U.S. CONST. amend. V. Because the defendant failed to timely object to the
trial court’s mistrial declaration in order to preserve his challenge, we affirm.

The interlocutory record provides the following facts. The defendant was
indicted on one count of driving after certification as a habitual offender. See
RSA 262:23, I (Supp. 2018). Prior to trial, the defendant filed an offer to
stipulate to his habitual offender status, which constitutes an element of the
indicted offense. See State v. Riendeau, 160 N.H. 288, 294 (2010). The offer of
stipulation stated: “[T]he habitual offender certification would put into evidence
matters that are prejudicial to the defendant. . . . By offering a stipulation . . . ,
those facts would not come before the jury and they would simply be asked to
decide whether the defendant operated on a way . . . .” (Emphasis omitted.)

On the first day of trial, the trial court spoke with both parties about the
stipulation prior to opening statements. The trial court confirmed that there
was a stipulation as to the defendant’s “status as a habitual offender.” The
State explained that it had instructed the only witness it planned to call to
refrain from referencing the defendant’s habitual offender status in his
testimony. However, the trial court noted that, since the defendant was
charged with driving after certification as a habitual offender, “at some point
the jury is going to know that.” The court also noted that the jury would likely
learn of the defendant’s habitual offender status during the reading of the
indictment. The defendant indicated that he understood.

Following this discussion, the clerk swore in and read to the jury the
crime charged in the indictment, including the allegation that the defendant
was knowingly “under an order of the Director of the Division of Motor Vehicles
. . . certifying him as a habitual offender” at the time he drove a motor vehicle
on a way. The defendant did not object. After the State rested, the trial court
gave the parties its proposed jury instructions, which included the element
alleging that the defendant had been certified as a habitual offender.

The following morning, the defendant objected to the trial court’s
proposed instructions prior to the resumption of the trial. He argued that the
proposed instructions did not comply with the agreed-upon stipulation and
asserted that the purpose of the stipulation was to eliminate any reference to
the defendant’s habitual offender status. The defendant added that he did not
object when the court clerk read the entire indictment because he did not want
to draw the jury's attention to it. The trial court reminded the defendant that it
had specifically confirmed with the parties that they had stipulated that the
defendant had been a certified habitual offender on the day of the offense, and
that he was aware of his certification. The trial court then noted that it did not
understand how the defendant could believe that the jury would not “hear the
elements of the crime for which [he] stands accused.”

In response, the defendant expressed a desire to withdraw his
stipulation. The State noted that its understanding of the stipulation was that
it “would not have to prove that particular element and not call those witnesses
in.” The State also explained that if the defendant withdrew his stipulation, the
State would seek to reopen its case. However, noting that the case was
scheduled for a one and a half day trial, the State explained that it had not
contacted any witnesses who could testify to the defendant’s habitual offender
status and questioned whether those witnesses would be able to appear in
court to testify that same day.

The trial court took a recess, after which it sua sponte declared a
mistrial. In so doing, the court informed the parties that it had “come to the
reluctant conclusion that this case cannot proceed further.” The court
explained that there had been no “meeting of the minds” between the State and
the defendant as to the effect of the stipulation. It reiterated that the jury must
be informed of the crime charged, and observed that, if the court allowed the
defendant to withdraw his stipulation, the State would be “greatly prejudiced”
because, in reliance on the stipulation, it had rested without adducing evidence
on at least one element of the crime charged.

The court then gave the defendant an opportunity to respond. The
defendant did not object to the court’s mistrial declaration. Instead, he
challenged the trial court’s reasoning relating to the jury instructions, but
agreed that, if he withdrew his stipulation, the State would be placed in an
“untenable position.” He further stated that, if he elected to object to the
court’s ruling, he would do so in writing. The trial court gave the defendant
five days to object to its ruling. The State noted that it did not object to the
mistrial declaration.

2
 Eleven days later, the court received the defendant’s response, in which
he objected to the court’s mistrial declaration and requested dismissal of the
indictment. The defendant argued that there was not manifest necessity to
declare a mistrial and, therefore, the Double Jeopardy Clauses of the New
Hampshire and United States Constitutions barred retrial. The trial court,
noting that the defendant did not object to the mistrial at the time it was
declared, considered the defendant’s filing “to be in effect a request to
reconsider its oral mistrial order.” The court denied the defendant’s motion.
The defendant filed a motion to reconsider, and, subsequently, a request for an
interlocutory transfer. The trial court denied the defendant’s motion to
reconsider and granted the interlocutory transfer request. This appeal
followed.

The defendant argues that there was not manifest necessity to declare a
mistrial; thus the court erred by denying his motion to dismiss because “retrial
would violate [his] right against double jeopardy.” We first address the
defendant’s double jeopardy claim under the State Constitution and rely upon
federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983);
State v. Perry, 166 N.H. 297, 301 (2014). The Double Jeopardy Clause of the
New Hampshire Constitution prohibits the State from placing a defendant in
jeopardy more than once for the same offense. Perry, 166 N.H. at 301. A
defendant is placed in jeopardy when a jury is empaneled and sworn. Id. After
jeopardy attaches for a particular offense, it ‘terminates’ — thereby prohibiting
retrial for the same offense — upon a judgment of acquittal or conviction, or
upon an unnecessarily declared mistrial preventing either judgment. Id.

A defendant normally has the right to complete a trial before a particular
tribunal: either the same chosen jury, in a jury trial; or the same judge, in a
bench trial. Id. The right to complete a trial before a particular tribunal is not
absolute, however, and must in some instances be subordinated to the public's
interest in fair trials designed to end in just judgments. Id. at 302. One such
instance occurs when a trial court, with the greatest caution, under urgent
circumstances, and for very plain and obvious causes, declares a mistrial over
the objection of the defendant. Id. The Double Jeopardy Clause does not bar
retrial after a mistrial when the defendant consents to the mistrial, or, if he
objects, upon a finding of the trial court that there is manifest necessity for the
act or that the ends of public justice would otherwise be defeated. Id. Under
these circumstances, jeopardy does not terminate but instead continues. Id.

The defendant argues that there was not manifest necessity to declare a
mistrial because the trial court could have: (1) denied his request to withdraw
his stipulation; (2) granted his request to omit from the jury instructions any
reference to the phrase “habitual offender”; or (3) allowed the defendant to
withdraw his stipulation and the State to reopen its case. The State counters
that this argument is not preserved because the defendant failed to raise it at

3
the time the court declared the mistrial. We agree that the defendant’s
argument is not preserved, and decline to address it.

In general, a contemporaneous and specific objection is required to
preserve an issue for appellate review. State v. Kelly, 160 N.H. 190, 194
(2010). The purpose underlying our preservation rule is to afford the trial court
an opportunity to correct any error it may have made before those issues are
presented for appellate review. State v. Mouser, 168 N.H. 19, 26 (2015); see
also State v. Fortier, 146 N.H. 784, 788 (2001) (noting that preservation rule
allows trial court to correct errors “as they occur”). The defendant, as the
appealing party, bears the burden of demonstrating that his appellate
argument is preserved. See State v. Batista-Salva, 171 N.H. 818, 822 (2019).

Here, the argument underlying the defendant’s double jeopardy claim is
that the trial court declared a mistrial without manifest necessity. The
defendant, however, did not contemporaneously object to the trial court’s
mistrial declaration, and, thus, the trial court did not have the opportunity to
correct the error he asserts on appeal. Nevertheless, the defendant contends
that his appellate argument was preserved by his written objection and motion
to dismiss, as well as his subsequent motion to reconsider. We disagree.

Although the defendant argued in his objection and motion to dismiss
that there was not manifest necessity for a mistrial, this pleading was not
received by the court until eleven days after the court declared the mistrial.
Thus, it is beyond dispute that the trial court did not have the opportunity to
correct its alleged error because the defendant did not object to the mistrial
declaration until eleven days after the court issued its ruling. See Transmedia
Restaurant Co. v. Devereaux, 149 N.H. 454, 458-59 (2003) (objection to jury
instruction raised in post-trial motion for reconsideration not timely); see also
United States v. DiPietro, 936 F.2d 6, 11 (1st Cir. 1991) (noting that, had the
defendant objected to mistrial at time it was declared, “the court could have
asked the jury to remain while reconsidering its decision”); United States v.
Crosley, 634 F. Supp. 28, 32 (E.D. Pa. 1985) (objection to mistrial untimely
when made after jury had been discharged). That the trial court addressed and
rejected the defendant’s untimely objection on the merits does not change our
conclusion. See State v. Croft, 142 N.H. 76, 80 (1997).

To the extent that the defendant contended at oral argument that, based
upon our decision in State v. Bertrand, 133 N.H. 843 (1991), he was not
required to object at the time of the trial court’s mistrial declaration in order to
preserve his manifest necessity argument, we decline to address it because the
defendant first raised this substantive argument at oral argument. We
generally decline to address issues raised for the first time during oral
argument. See In the Matter of Gendron & Plaistek, 157 N.H. 314, 319 (2008)
(and cases cited therein). “There is a fundamental unfairness in not adequately
and fully presenting one’s position in the brief and waiting until oral argument

4
to clarify it.” Id. at 320 (quotation omitted). Although we retain the discretion
to consider arguments raised for the first time at oral argument, see State v.
Tucker, 145 N.H. 723, 724 (2001), we decline to exercise that discretion here
when the trial court expressly found that the defendant failed to object to its
mistrial ruling and, accordingly, the application of Bertrand to this case was
clearly before the parties prior to this appeal. Therefore, we affirm the trial
court’s order denying the defendant’s motion to dismiss on double jeopardy
grounds.

The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. Arizona v.
Washington, 434 U.S. 497, 503-08 (1978); Perry, 166 N.H. at 301-02.
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

5