State v. Griffin

174 N.H. 711

274 A.3d 558

The STATE of New Hampshire

v.Brandon GRIFFIN

No. 2019-0503

Supreme Court of New Hampshire.

Argued: November 16, 2021

Opinion Issued: January 11, 2022

John M. Formella, attorney general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

DONOVAN, J.

The defendant, Brandon Griffin, appeals his conviction, following a jury trial in the Superior Court (Anderson, J.), of being a drug enterprise leader (DEL). See RSA 318-B:2, XII (2017). On appeal, the defendant challenges the trial court's denial of his pretrial motions to dismiss the DEL charge for: (1) lack of a speedy trial; and (2) violating his right to due process of law as set forth in State v. Lordan, 116 N.H. 479, 363 A.2d 201 (1976). We conclude that the defendant's right to a speedy trial was not violated because the defendant acquiesced to the majority of the delay and suffered no identifiable prejudice. We further conclude that the defendant's due process rights were not violated because our holding in Lordan is inapplicable to the State's DEL prosecution of the defendant. We affirm.

I. Facts

The following facts are supported by the record or are otherwise undisputed. The defendant was the leader of a gang and drug-dealing entity based in Manchester. The defendant supplied the drugs, which the gang and its members sold. In April 2016, a dispute broke out between the gang and a rival drug dealer. Between May 2016 and June 2016, the defendant ordered two of his associates to carry out multiple shootings at various locations in Manchester. Several of these shootings targeted the rival drug dealer with the intent of forcing him out of the area. The defendant provided the weapon and compensated the shooters for each of the shootings.

On June 9, 2016, police executed a warrant to search an apartment that served as the gang's headquarters. Police found illegal drugs and arrested several of the gang's members. That same day, police observed the defendant in a vehicle driving away from the apartment and arrested him after a search of the vehicle revealed contraband. The defendant was subsequently charged with possession of a controlled drug, possession with intent to distribute, and falsifying physical evidence. In November 2016, the defendant entered into a plea agreement by which he pled guilty to one count of possession of a controlled drug and one count of common nuisance. He was sentenced to a twelve-month house of correction term and released in February 2017.

In June 2017, the defendant was again arrested, this time after the police found drugs in another apartment in which he was present. The State then brought numerous charges against the defendant. Between September 2017 and January 2018, the defendant was indicted on numerous offenses under separate dockets: the first docket included drug offenses based upon the contraband found during the June 2017 search; the second docket included assault, human trafficking, and witness tampering charges; the third docket related to the shooting incidents, among other things; and the fourth docket included a DEL charge. In April 2018, the State amended the DEL charge and reindicted the defendant under the fourth docket. Subsequently, in June 2018, the State again amended the DEL indictment and expanded the time frame for the charge. For reasons not clear from the record, the State brought the amended indictment on the second docket.

Prior to trial, both parties stated their preference to sever the dockets and schedule separate trials. The court indicated that "the State has the prerogative to decide which case it decides to go first on," and the State responded that it preferred the third docket, which included the charges related to the shootings. In October 2018, the State discovered irregularities in the composition of the grand jury that indicted the defendant on the charges on the third docket. Ultimately, the State opted to nolle prosse all of the charges on the third docket. At the next hearing in November 2018, the court instructed the State to choose one of the remaining dockets to schedule for trial in place of the third docket. The State chose the second docket, which included the DEL charge, but later moved to continue the trial date. The defendant objected and the court denied the State's motion to continue. In response, the State nolle prossed the charges on the second docket.

In January 2019, the State reindicted the defendant on some of the nolle prossed charges on the third docket and secured another DEL indictment. Ultimately, seventy-two indictments, including the most recent DEL indictment, were joined on one docket and scheduled for trial in May 2019. In April 2019, approximately two weeks before trial, the defendant filed a motion to dismiss the DEL charge, citing a violation of his speedy trial rights. The trial court applied the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and concluded that the defendant's speedy trial rights had not been violated. In a separate motion, the defendant moved to dismiss the DEL charge, alleging, in part, a violation of his due process rights. With respect to his due process claim, the defendant argued that the facts underlying his November 2016 plea agreement and the pending DEL indictment arose out of the same transaction and thus our decision in Lordan barred the DEL indictment. The court rejected this argument, reasoning that Lordan applies to a single criminal episode and a discrete set of facts, not broad-ranging conspiracy charges such as the DEL indictment. Accordingly, the court denied the motion to dismiss. The jury found the defendant guilty on fifty-three of the charges, including the DEL indictment. This appeal followed.

II. Analysis

A. Speedy Trial

The defendant argues that the trial court erred by denying his motion to dismiss the DEL charge because he was denied his right to a speedy trial under the State and Federal Constitutions. Following our standard practice, we first address the defendant's argument under the State Constitution, and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

When determining whether a defendant's right to a speedy trial has been violated under the State Constitution, we apply the four-part test articulated in Barker, 407 U.S. at 530, 92 S.Ct. 2182. State v. Brooks, 162 N.H. 570, 581, 34 A.3d 643 (2011). This test requires that we balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay. Id. We defer to the trial court's factual findings unless those findings are clearly erroneous, and we review the court's conclusions of law with respect to those factual findings de novo. Id.

The threshold inquiry in the speedy trial analysis is the length of the delay. Brooks, 162 N.H. at 581, 34 A.3d 643. We do not consider the remaining factors unless the delay is presumptively prejudicial. Id. Here, we adopt the approach of the trial court, and assume, without deciding, that the State entered the nolle prosequi on the DEL charge in bad faith. Accordingly, we calculate a delay of sixteen months from when the defendant was indicted on the initial DEL charge in January 2018 to the trial in May 2019. See State v. Allen, 150 N.H. 290, 293, 837 A.2d 324 (2003) ("Where there is a finding of bad faith on the State's part in nolle prossing a case, then the time counted for speedy trial analysis will continue to run."). A sixteen-month delay presumptively triggers review of the remaining factors. See State v. Colbath, 130 N.H. 316, 319, 540 A.2d 1212 (1988) ("[R]eaching the nine-month check point signals enough presumptive prejudice to warrant review under the remaining criteria.").

The second Barker factor — the reason for the delay — requires that we assess why the trial was delayed, to which party the delay is attributable, and how much weight to give the delay. Brooks, 162 N.H. at 582, 34 A.3d 643. Here, the trial court found that an "informal agreement" existed between the parties to resolve the charges on the third docket, before proceeding with the DEL charge. Therefore, although the State was responsible for five months of the delay due to the nolle prosequi of the DEL charge in the second docket, the court determined that, on balance, the parties shared responsibility for the majority of the delay due to their informal agreement.

On appeal, the defendant argues that the trial court erred by concluding that an informal agreement existed between the parties and by attributing any responsibility for the delay to the defendant. We agree with the defendant that no such agreement existed between the parties. Nor could any such agreement exist, as the court determined that the State had unilateral authority to determine the scheduling order of the dockets. Nonetheless, contrary to the defendant's argument, the defendant still bears some responsibility for the delay. During a hearing in February 2018, the court informed the parties that it had consolidated all of the open dockets and scheduled them for trial in April 2018. The defendant stated his preference, to which the State later assented, to sever the dockets and schedule separate trials. After this exchange, the court declared that the State "ha[d] the prerogative to decide" the order in which the dockets were to be tried. Therefore, the defendant's preference to sever the dockets and schedule separate trials contributed to both the State determining the order of the dockets, and, by extension, the ten-month delay in scheduling the DEL charge for trial. See State v. McDuffee, 123 N.H. 184, 187, 459 A.2d 251 (1983) ("The defendant cannot have it both ways,...