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- courts/supreme

- court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- northern judicial district

No. 2019

- 0503

THE STATE OF NEW HAMPSHI RE

v.

BRA N DON GRIFFIN

A rgued : 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 ( Ander s on , J.), of being a d rug

e nterprise l eader (DEL). See RSA 318

- B:2, XII (2017)

. On appeal, the

defendan t challenges the trial court’s denial of his pre trial motion s 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 (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 no2

identifiable prej udice. 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. F acts

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 g ang and

its members sold . In April 2016, a dispute broke out between the gang and a

rival drug dealer

. B etween 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

. T he 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 a nd ar rested

several of the gang ’s members. That same day, police observed the defendant

in a vehicle driving away from the apartment and arres ted 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 o f 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 whi ch 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 in3

the composition of the grand jury that indicted the defendant on the charges

o n 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 pros s e d the charges on the second docket.

In January 2019, the St ate re indicted the defendant on some of the nolle

prossed charges on the third docket and secured another DEL indict ment

. 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 fi led 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

(1972)

, and conclud ed that the defendant’s speedy trial rights had not been

violated . In a sepa rate motion, the defendant moved to dismiss the DEL

charge , alleging, in part

, a violat ion of his due process rights

. With respect to

his due process claim, t he 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 t he 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.

I I

. Analysis

A. Speedy Trial

The defendant argues that the trial court erred by denying his motion to

dismiss the DEL char ge because he was denied his right to a speedy trial under

the State and Federal Constitutions. Following our standard practice, w e 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

(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

. State v. Brooks

, 162 N.H. 570

, 581 (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 de fer to the trial4

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 analysi s is the length of th e delay. Brooks

, 162 N.H. at 581. 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 whe n t he 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 (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

, 13 0 N.H. 316, 319 (19 88) (“ [ R ] eaching

the nine

- month check point signals enough presumptive prejudice to warrant

review under the remaining criteria.”).

The second Barker factor

— the reaso n 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. Here, the trial

court found that an “ informal agreement ” existed between the parties to resolve

the charges on th e 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 i n the second docket

, the court

determined that, on balance, the parties shared r esponsibility for the majority

of the delay due to their informal agreement.

On appeal, t he defendant argues that trial court erred by concluding that

an informal agreement existed between the parties and by attributing any responsibility for the delay to the defendant

. W e agree with the defendant that

no such agreemen t existed between the parties. N or could any such agreement

exist

, as the court determined that the State had unilateral authority to

determine the scheduling order of the dockets. None theless

, 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, 1875

(1983) (“The defendant cannot have it both ways, insisting on separate trials

and attempting to dismiss the indictments against him for lack

o f speedy trial.”).

Furthermore, the defendant could have asserted his speedy trial right s in

response to the State deciding not to set the DEL charge for trial. Instead, at

multiple hearings over the next ten months, the defendant acquiesced to the

State’s preference. For example

, at a hearing in March

, the defendant informed

the court, “[i]t was agreed that we would proceed on [the third docket] and to

avoid sch eduling six other trials ” and that “we decided that those docket

numbers would tail [the third docket]

, which made perfect sense at the time.”

Moreover

, at a hearing in July, the defendant convinced the c ourt to delay

resolution of pretrial motions pertaining to the other dockets until after trial

was complete d o n the third docket. Ther efore, the record demonstrates that

the defendant’s acquiescence to the State’s decision further contributed to the

delay. See Barker

, 407 U.S. at 535 ( holding that the defendant was not

deprived of this right to a speedy trial, in part

, because “while he hoped to take

advantage of the delay in which he had acquiesced and thereby obtain a

dismissal of the charges, he definitely did not want to be tried”).

We next consider the third and fourth Barker factors, upon which we

place subst antial emphasis. See Brooks

, 162 N.H. at 582. Under the third

factor, we consider the strength of a defendant’s assertion of his right to a

speedy trial. Id

. Here, the trial court found that the defendant asserted his

speedy trial right s by objecting t o the State’s motions to continue in November

2018 and April 2019. However, because the court found that the defendant

did not consistently assert his right, waiting until the eve of trial in both

instances, it determined that this factor did not weigh he avily in his favor.

The defendant challenges this finding, arguing that

, as early as August

2018

, he represented to the court that he did n ot “want to continue this trial, ”

and in October 2018 objected to the State’s motion to continue

. However, the

record indicates that these representations were limited t o the third docket and

did not pertain to the defendant’s DEL charge

. Because the defendant only

alleges a denial of his speedy trial right as it pertains to the DEL charge

, we do

not weigh these assertions of the right in his favor

. Th e defendant waited over

ten months from his indictment in January 2018 to assert his speedy trial

right with respect to the DEL charge

. Therefore, although this factor “weighs in

[the defendant’s] favor, it does not do so heavily.” See State v. Lamarche

, 157

N.H. 337, 343 (2008) ( holding that the third factor of the Barker analysis did

not weigh heavily in the defendant’s favor because “he waited nearly six

months from the time the State entered the nolle prosequi and approximately

ten months from the date of his indictment” to assert his speedy trial right ).

The final Barker factor requi res that we determine whether

, and to what

extent

, the defendant suff ered prejudice, including whether the delay resulted6

in an oppressive pretrial incarceration, anxiety, or an impaired defense.

Brooks

, 162 N.H. at 583. The defendant first relies up on consideration s of

anxiety and oppressive pre trial incarceration. But this argument is unavailing

because the defendant was incarcerated on numerous open criminal dockets

, which, given his stated preference for severed trials, would have required

months to try or otherwise resolve

. See Lamarche

, 157 N.H. at 344.

The defendant also argues that the delay caused by the November 2018

nolle prosequi precluded one of his two original attorneys from representing

him at trial. The defendant maintains that, a s a result, his replacement

counsel had less time to prepare for trial, which ultimately prejudiced him by

impairing his defense. We are unpersuaded because t he record does not

support th is argument. In October 2018, the defendant’s former counsel

moved to withdraw and to substitute new counsel. The following month, with

new counsel appointed, the defendant objected to th e State’s motion to

continue trial on the DEL charge

. According to the defendant, “the defense was fully prepared and ready to proceed” at that time. Based up on this

representation, it follows that the defendant would have been even more

prepared for trial in May 2019, approximately six months after he objected to

the State’s motion to continue

. Ultimately

, the defendant was represented by

the same co

- counsel for the duration of the DEL indictment

, and he identifies

no instances in the record suggesting that this potential prejudice materialized.

Although we typically require a defendant to demonstrate actual

prejudice from a delay to prevail on a speedy trial claim, when a defendant

does not

— or cannot

— articulate the particular harm caused by delay, we

inquire whether the length and reason for the delay weigh so heavily in the

defendant’s favor that prejudice need not be specifically demonstrated. State v.

Locke

, 149 N.H. 1, 8 (2002). Here, a s explained above, these factors do not

weigh heavi ly in the defendant’s favor due, in large part

, to his acquiescence to

the delay. A s noted above, the defendant first asserted his speedy trial right s

with respect to the DEL charge in November 2018

, and the trial occurred in

May 2019. Accordingly, after balancing the Barker factors, we conclude that

the defendant’s right to a speedy trial under the State Constitution was not

violated and thus the trial court did not err by denying the defendant’s motion

to dismiss

. Because the Federal Constitution is no more protective of the

defendant’s speedy trial rights than the State Constitution, see Brooks

, 162

N.H. at 584; Barker

, 407 U.S. at 530, we reach the same conclusion under the

Federal Constitution.

B. Due Process

The defendant also argu es that the trial court erred by denying his

motion to dismiss because prosecution of the DEL charge violated his right to

due process of law under the State and Federal Constitutions. We first address

the defendant’s argument under the State Constitution, and cite federal7

opinions for guidance only. See State v. Ball

, 124 N.H. 226, 231

- 33 (1983).

When determining whether the State’s actions violated the defendant’s due

process rights under Part I, A rticle 15 of the State Constitution, we look to the

dictates of fundamental fairness. State v. Winslow

, 140 N.H. 319, 321 (1995).

A fundamentally unfair adjudicatory procedure is one, for example, that gives a

party a significant advantage or places a pa rty in a position of prejudice. State

v. Symonds

, 131 N.H. 532, 534 (1989). We will uphold a ruling on a due

process claim unless the ruling is “erroneous as a matter of law.” Id

.

In support of his due process argument, the defendant relies solely upo n

State v. Lordan

, 116 N.H. 479 (1976). In Lordan

, the defendant pled guilty to

two counts of attempted murder for shooting a pistol at two individuals and

one count of robbery while armed with a deadly weapon. Id

. at 480

- 81. A t

sentencing, the defendant successfully moved to have his sentences run

concurrent ly

. Id

. at 481. Dissatisfied with this outcome, the State re indicted

the defendant on precisely the same charges and based upon the same set of

operative facts

. Id

. The only difference be tween the original and subsequent

indictment s was the allegation of a new aggravating factor, which would

preclude any future sentences from running concurrent ly

. Id

. at 480

- 81. The

trial court denied the d efendant ’s motion to dismiss the indictments. Id

. at

481.

On appeal, the defendant argued, in part, that proceeding to trial on the

subsequent indictment would violate his due process rights. Id

. at 480. W e

determined that “ [t] he circumstances of the present case indicate that the

defendant reason ably believed that no further charges would be brought in

relation to the episode when he pleaded guilty to the first three indictments.”

Id

. at 482

. T his determination was based

, in part

, up on considerations that

“[n]othing prevented the prosecutor from seeking the present indictments

then

, ” together with the fact that

, by pleading guilty to the former charges, the

defendant “ deprived himself of any meaningful de fense to the present charges

. ”

Id

. at 481. T herefore, we conc luded that the motion to dismiss should have

been granted because “the filing of the present indictments violated the

understanding which was the basis of the defendant’ s earlier pleas.” Id

. at

482. Following this conclusion

, we announced the following r ule:

Where the defendant commits several offenses in a single transaction

and the prosecutor has knowledge of and jurisdict ion over all these

offenses and the defendant disposes of all charges then pending by a guilty plea to one or more of the charges, the prosecutor may not prefer

additional charges arising from the same transaction unless either he

has given notice on the record at the time of the plea o f the possibility

that he may prefer further charges or the defendant otherwise knows or ought reasonably to expect that further charges may be brought

.

Id

. (emphas e s added)

.8

The defendant arg ues that this rule applies here, and, therefore, the

State could not indict him on the DEL charge because it was based, in part, on

facts underlying his plea agreement in November 2016

. We disagree. Our rule

in Lordan limits the State’s action only to the extent that once a defendant

pleads guilty

, “the prosecutor may not prefer additional charges arising from

the same transaction .” Id

. (emphasis added). This same transaction includes

the charges to which the defendant pled guilty

, as well as any other charges

resolved by the plea agreement. Id

. G iven t he facts at issue in Lordan

, we

conclude that its central holding bars a subsequent prosecution only when the

facts underlying the prior plea agreement and those underlying the subsequent

indi ctment arise entirely from the same transaction

. See i d

. at 480.

Here, unlike Lordan

, the defendant’s prior plea agreement and

subsequent indi ctment do not arise entirely from the same transaction

. As

established by the November 2016 plea colloquy, the defendant’s prior common

nuisance conviction w as based upon the defendant

, a cting in concert with

others, to obtain the drugs found during the J une 2016 search of the gang’ s

headquarters

. Further, the prior controlled drug possession conviction was

based upon the discovery of contraband found in a car i n which the defendant

was a passenger at the time of his arrest in June 2016. The other charges

nolle prossed by the State as a result of the defendant’s November 2016 plea

agreement

— falsifying physical evidence and possessio n with intent to

distribute

— are also based upon the same facts underlying his two

convictions

. 1

In contrast

, with respect to the DEL indictment for which the defendant

stood trial, the S tate alleged numerous instances of criminal conduct occurring

from January 20 14 to June 2016

. Although t his time period encompassed

, in

part, facts underlying the d efendant’s prior plea agreement, the DEL

indictment’s t wenty

- five month time period also encompassed other c riminal

conduct on which the defendant was separately indicted, including multiple

shooting incidents aimed at driving competition out of Manchester

, assaults on

his associates who did not follow orders or repay debts, and forcing a nother

associate to sell illicit drugs

. The DEL indictment charges the defendant with

providing t he drugs to be sold by members of the gang and, critically, having

“used and directed violence [in] furtherance of his illegal drug activities.” As

the S tate argued before the trial court, the DEL indictment r equired much of

the same evidence as the other indictments noted above and thus supported

joinder of all the charges. Indeed, on appeal, both parties acknowledge that the

DEL indictment was “incredibly broad” and targeted at “link[ing] together all

the charges” joined against the defendant for trial in May 2019.

1 Any reference to the defendant’s prior plea agreement includes both the convictions and the

charges nolle prossed as a result of the November 2016 plea agreement.9

Therefore, in contrast to Lordan

, the defendant’s DEL indictment was not

based solely up on the facts of his prior plea agreement

, but also the facts

underlying the seventy

- one other indictments

, which, on that basis, were joined with the DEL indictment for trial in May 2019

. Accordingly, the facts

underlying the defendant ’s prior plea agreement and his subsequent DEL

indictment do not arise entirely from the same transaction. On appeal

, the

defendant concedes as much, acknowledg ing “that other subsequently

- charged

offenses, such as the shooting charges, were not part of the same transaction

as the common nuisance and drug possession charge

. . . because they

happened at different times and places.”

We have not identified, and the defendant has not cited, any case in

which we have applied the rule set forth in Lordan to a series of incidents that,

as here, took place over the course of several years. Rather, in our cases applying the rule set forth in Lordan

, the subsequent indictment arose entirely

from the same incident as the defendant’s plea agreement. See

, e.g.

, State v.

Rayes

, 142 N.H. 496, 497

- 98, 500 (1997) (citing Lordan when the prior

conviction and subsequent indictments arose from the same incident of

attempted m urder); State v. Smith

, 127 N.H. 836, 839 (1986) (holding that

because the State already indicted the defendant on two counts of sexual

assault, the State could not indict the defendant for a third act of sexual

assault that occurred the same evening).

Moreover, the defendant has not identified any cases from other

jurisdictions that interpret Lordan so broadly. To the contrary, in each case

relied upon by the defendant that cite s Lordan

, the facts supporting the prior

plea agreement and the subsequent indictment arose entirely from the same

criminal incident. See State v. Harrison

, 912 N.E.2d 1106, 1110 (Ohio 2009)

(holding that prosecutors could not pursue further charges against the

d efendant after he pled guilty to charges arising from “the same general set of

circumstances as the original complaint against him ” ); State v. Zima

, 806

N.E.2d 542, 544

- 45 (Ohio 2004) (citing Lordan when the plea agreeme nt and

subsequent indictment aro se f rom a single motor vehicle incident); State v.

Carpenter

, 623 N.E.2d 66, 67

- 68 (Ohio 1993) (citing Lordan when the

defendant pled guilty to a ssault and the victim later died of injuries from the

same assault); State v. Barr

, 897 N.E.2d 1161, 1166

- 68 (Ohio Ct. App. 2008)

( citing Lordan to prohibit prosecution of drug possession charge under state

law when the defendant had previously pled guilty to possession of the same

drugs in violation of a city ordinance ); State v. King

, 398 P.3d 336, 349 n.4 (Or.

2017) (citing Lordan when the defendant ple d guilty to assault and the State

initiated a felony murder prosecution against him when the victim later died of

injuries from the same assault).

Additionally

, to obtain a DEL conviction

, the State must prove that the

conspirac y in which the defendant participated involved “ a scheme or course of

conduct

. ” RSA 318

- B: 2, XII (2017)

. From this language

, it follows that the10

DEL statute requires the State to establish more than one incident of criminal

conduct. See i d

. Accordingly

, based on t he facts underlying the defendant’s

2016 plea agreement, the State could not establish the necessary “scheme or

course of conduct” to convict the defendant on the DEL charge. RSA 318

- B:2,

XII (2017). Therefore, unlike the defendant in Lordan the defendant here did

not “deprive [] himself of any meaningful defense” to the DEL charge by entering

into the prior plea agreement. Lordan

, 116 N.H. at 481.

We therefore conclude that the defendant’s right to due process under

Part I, Article 15 was not violated

, because t he facts giving rise to the

defendant’s November 2016 plea agreement and the facts supporting the

defendant’s DEL prosecution did not arise fro m “the same transaction

. ” I d

. at

482

. Because the Federal Constitution provides no more protection of the

defendant’s due process rights than the State Constitution, State v. Ball

, 124

N.H. 226, 231

- 33 (1983), we reach the same conclusion under the Feder al

Constitution

. Accordingly, we conclude that the trial court did not err by

denying the defendant’s motion to dismiss on due process grounds.

I II

. Conclusion

For the foregoing reasons, we affirm the defendant’s DEL conviction

. See

RSA 318

- B:2

, XII (2017). Any issues that the defendant raised in his notice of

appeal, but did not brief, are deemed waived. State v. Bazinet

, 170 N.H. 680,

688 (2018).

Affirmed

.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.