Facts
- An undercover New Hampshire State Police detective arranged multiple crack-cocaine purchases from Bounleuth “Pheng” Sinbandith in Laconia in July 1996.
- On four occasions, the detective gave Sinbandith money and Sinbandith drove to another location, usually accompanied by either Elizabeth Begin or Velvet Weeks.
- After Sinbandith returned, Weeks delivered crack cocaine to the undercover officer on the completed transactions.
- On one occasion Sinbandith was unable to obtain cocaine and returned the money.
- A grand jury indicted Sinbandith for: three counts of sale of a controlled drug (crack cocaine), three counts of conspiracy to sell a controlled drug, and one count of attempted sale.
- The sale indictments alleged Sinbandith “did, in concert with and aided by another, knowingly sell or dispense” crack cocaine, and included captions and citations referencing the accomplice-liability statute.
Issues
- Whether the defendant’s right to a unanimous verdict was violated by jury instructions allowing conviction under either principal or accomplice liability without a specific unanimity instruction.
- Whether the sale indictments were constitutionally insufficient for alleging “knowingly” (principal mens rea) while referencing accomplice liability, which requires acting “purposely” regarding another’s conduct.
Decision
- The Supreme Court of New Hampshire affirmed all convictions.
- The court held the jury-instruction/unanimity claim was waived because the defendant did not request a specific unanimity instruction or object to the instructions given.
- The court further held that, in the circumstances, the general unanimity instruction was sufficient and no reversible error was shown.
- The court held the sale indictments were constitutionally sufficient because they charged the substantive offense as a principal using the mens rea required by the drug-sale statute, and accomplice references did not require pleading a separate purposeful mens rea.
Legal Principles
- A challenge to jury instructions is not preserved for appellate review absent a timely request for specific instructions or an objection to the instructions given.
- A general unanimity instruction typically satisfies the unanimity requirement unless there is a genuine risk of juror confusion or disagreement about the factual basis for conviction.
- An indictment is constitutionally adequate if it states the offense with sufficient definiteness to allow the defendant to prepare a defense and to plead the judgment as a bar to later prosecution for the same offense.
- Accomplice liability is a theory of responsibility for the substantive offense, not a separate offense requiring an indictment to plead every alternative theory or an additional mens rea when the substantive offense is properly charged.
Conclusion
The court upheld Sinbandith’s drug-sale-related convictions, ruling that his unanimity challenge was waived and that the sale indictments provided adequate notice and properly charged principal liability even though they referenced accomplice liability.