Opinion
No. 86-389
Decided July 10, 1987
1. Criminal Law — Defenses — Double Jeopardy A former prosecution as such does not support a defense of double jeopardy, where the defendant's conviction was reversed at his instigation.
2. Constitutional Law — Double Jeopardy — Particular Cases Trial court properly denied defendant's motion to dismiss indictment for first degree assault, where defendant's earlier conviction on a first assault charge had been reversed on appeal, since retrial did not violate the prohibition against double jeopardy. U.S. CONST. amend. V; N.H. CONST. pt. 1, art. 16.
Stephen E. Merrill, attorney general (John S. Davis, attorney, on the brief), by brief for the State.
Joanne Green, assistant appellate defender, of Concord, by brief for the defendant.
MEMORANDUM OPINION
The defendant in this first-degree assault case challenges, on the ground of double jeopardy, the Superior Court's (Goode, J.) denial of the defendant's motion to dismiss his indictment. We affirm.
James Beaupre was previously tried on an indictment which charged that he "purposely cause[d] serious bodily injury to Stephen Chess by stabbing him with a knife in the stomach, chest, face and neck area." See RSA 631:1. RSA 631:1 creates the offense of first degree assault, which may be committed in different ways. See State v. Kiluk, 120 N.H. 1, 5, 410 A.2d 648, 650 (1980). Beaupre was tried under a single indictment interpreted, without objection by counsel, as charging each alternative. A special jury verdict form was utilized under which the defendant was acquitted under paragraph I of RSA 631:1, but convicted under paragraph II. His conviction was subsequently reversed because of the introduction of inadmissible evidence. See State v. Beaupre, 123 N.H. 155, 459 A.2d 233 (1983).
The State now seeks a retrial under RSA 631:1, II, and the defendant claims that this violates the prohibition against double jeopardy. U.S. CONST. amend. V; N.H. CONST. pt. I, art. 16. We disagree.
[1, 2] As originally indicted, the defendant could properly have been convicted under RSA 631:1, II for purposely causing serious bodily injury to another by means of a deadly weapon. There is no doubt that the defendant's former conviction was erroneous, but a former prosecution as such does not support a defense of double jeopardy where the defendant's conviction was reversed at his instigation. Cf. State v. Siel, 122 N.H. 254, 258, 444 A.2d 499, 502 (1982); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308 (1984).
Affirmed.