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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2006-584

PETITION OF THE STATE OF NEW HAMPSHIRE (State v. Sven A. Johanson, Jr.)

Argued: May 10, 2007 Opinion Issued: September 5, 2007 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the petitioner. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Peter D. Anderson and Joel T. Emlen on the brief, and Mr. Anderson orally), for the respondent. DUGGAN, J. The State has petitioned for a writ of certiorari challenging the Superior Court's (Barry, J.) dismissal of the indictment against the respondent, Sven A. Johanson, Jr. See Sup. Ct. R. 11. We grant the petition, vacate the dismissal and remand. The parties do not dispute the following: The Cheshire County Grand Jury indicted the respondent on May 17, 2004, on a charge of falsifying physical evidence. See RSA 641:6 (2007). On June 14, 2004, after all judges regularly presiding in Cheshire County had recused themselves from the case, Chief Justice Robert Lynn transferred it to Hillsborough County Superior Court and specially assigned it to Judge James Barry. The respondent waived his

right to a jury trial on September 1, 2005, and was tried before Judge Barry in May 2006. When the State rested, the respondent moved for directed verdict, arguing that the bench trial in Hillsborough County violated his statutory and constitutional right to be tried in the county in which he allegedly committed the crime. See RSA 602:1 (2001); N.H. CONST. pt. I, art. 17. He also argued that the State had failed to prove proper venue beyond a reasonable doubt, which he asserted, was an element of the offense. See RSA 625:10, :11, III(e) (2007). Initially, the trial court denied the motion and completed the trial. The following day, before rendering a verdict, the court granted the motion and dismissed the indictment, ruling that the bench trial had violated Part I, Article 17 of the State Constitution. The State moved for reconsideration, which the court denied, and then sought a writ of certiorari here. Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the discretion of the court. Petition of State of N.H. (State v. San Giovanni), 154 N.H. 671, 674 (2007); see Sup. Ct. R. 11. We exercise our power to grant the writ sparingly and only where to do otherwise would result in substantial injustice. Petition of State of N.H. (State v. San Giovanni), 154 N.H. at 674. Certiorari review is limited to whether the trial court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. Id. Here, we grant review because certiorari is the only avenue by which the State may seek relief from an order dismissing a case after jeopardy has attached. See RSA 606:10 (2001) (specifying the circumstances in which the State may appeal to the supreme court in a criminal case); see also Petition of State of N.H. (State v. Marcoux), 154 N.H. 118, 121 (2006). I The respondent contends that Part I, Article 17 of the State Constitution and RSA 602:1 granted him an absolute right to be tried in the county or judicial district in which the alleged crime was committed, which he could waive only by written motion based upon his inability to obtain a fair trial in that county or judicial district. Because he never moved for a change in venue, he asserts, "the State violated [his] constitutional and statutory rights by not bringing him to trial in Cheshire County." The State counters that the respondent waived his right to proper venue when he failed to object to the change of venue before trial. Thus, the State argues, the trial court erred when it granted the respondent's motion for a directed verdict based upon improper venue.

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Resolving these issues requires that we interpret the relevant constitutional and statutory provisions. We review the trial court's interpretation of statutes and the constitution de novo. Linehan v. Rockingham County Comm'rs, 151 N.H. 276, 278 (2004). We begin by examining RSA 602:1. In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 697 (2007). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. RSA 602:1 states in pertinent part: "Offenders shall be prosecuted and tried in the county or judicial district thereof in which the offense was committed." "The use of the word `shall' is generally regarded as a command; although not controlling, it is significant as indicating the intent that the statute is mandatory. This is especially so where the purpose of the statute is to protect private rights." McCarthy v. Wheeler, 152 N.H. 643, 645 (2005). While on its face RSA 602:1 mandates that a criminal defendant be prosecuted and tried in the county or judicial district in which the offense was committed, it is silent with respect to the circumstances under which this right may or may not be waived. See, e.g., Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605 (2006) (while defendant has statutory right to hearing within forty-five days of arrest, he may waive this right). It is well-settled, however, that "[a] party may waive a . . . statut[ory] provision made for his benefit." State v. Almy, 67 N.H. 274, 280 (1892). We next analyze Part I, Article 17 of the State Constitution. When interpreting a constitutional provision, we examine its purpose and intent. Baines v. N.H. Senate President, 152 N.H. 124, 133 (2005). "By reviewing the history of the constitution and its amendments, the court endeavors to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances." Id. (quotation omitted). "The language used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted." Id. at 133-34 (quotation omitted). When it was originally enacted in 1784, Part I, Article 17 of the State Constitution provided:

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In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed; except in cases of general insurrection in any particular county, when it shall appear to the Judges of the Superior Court, that an impartial trial cannot be had in the county where the offence may be committed, and upon their report, the assembly shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained. The Perpetual Laws of the State of New Hampshire 12 (John Melcher ed. 1789). In 1792, this provision was amended to change the word "assembly" to "legislature." See S. Marshall, The New Hampshire State Constitution: A Reference Guide 77 (2004). In State v. Albee, 61 N.H. 423, 425 (1881), we ruled that the framers intended this provision to be protective of the accused. We held that it was "merely declaratory of the sense of the people that in a criminal prosecution it is the right of the accused to require the charge to be proved in the vicinity or neighborhood where the fact happened." Albee, 61 N.H. at 426. We further ruled that the provision was a privilege "designed for the protection of the accused . . . [to] prevent the possibility of sending him for trial to a remote county, at a distance from friends, among strangers, and perhaps among parties animated by prejudices of a personal or partisan character." Id. at 429. The object of the framers "was to protect the subject against an unfair trial at a distance from the vicinity of the alleged crime and at a place selected by officials who might be hostile to the accused." Id. at 427. By requiring that the trial take place where the crime was alleged to have been committed, the framers intended that the accused "have the benefit on his trial of his good character and standing with his neighbors if he has preserved them, and the benefit of such knowledge as the jury may possess of the witnesses who may give evidence against him" as well as the ability to secure the attendance of his own witnesses more easily. Id. As with other constitutional privileges, see Almy, 67 N.H. at 280, we held in Albee that a criminal defendant could waive his right to proper venue, and that Part I, Article 17 did not set forth the exclusive circumstances under which such waiver could occur. Albee, 61 N.H. at 429. Although Part I, Article 17 appeared on its face to limit venue changes to times of "general insurrection" and to require all venue changes to be directed by the legislature upon receipt of a report from the superior court judges, we ruled that these provisions were not exclusive; the framers did not intend, by enacting the provision, to "destroy [a defendant's] common-law right to a change of venue whenever a fair and impartial trial could not be had in the county where the

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fact happened." Id. Thus, we held that a defendant could waive his commonlaw and constitutional right to be tried in the county where the crime was committed "for the purpose of securing the fair trial which the constitution guarantees." Id. We left unanswered the question of whether the State could obtain a change of venue. Id. Ten years later, in State v. Sawtelle, 66 N.H. 488, 504 (1891), we held that the State could not obtain a change of venue except in the extraordinary case of general insurrection. In 1978, Part I, Article 17 was amended, in effect, to codify our decision in Albee. The amendments to Part I, Article 17 made clear that a criminal defendant could obtain a change of venue even in the absence of a general insurrection and even without a report from the superior court judges and action by the legislature when he showed that a fair trial was impossible in the county or judicial district in which the crime occurred. See Marshall, supra at 77; see also Journal of Constitutional Convention 232 (June 13, 1974). The amendments also made clear that the State no longer had a constitutional right to a change of venue. See Journal of Constitutional Convention 232-33 (June 13, 1974). The amendments therefore deleted the reference to "general insurrection" and the requirement that all venue changes be directed by the legislature upon receipt of a report from the superior court judges. See id.; see also Opinion of the Justices, 126 N.H. 486, 488 (1985). The amendments also "broadened the concept of venue in a criminal case from only the county to also include a legislatively created judicial district." Marshall, supra at 77; see Opinion of the Justices, 126 N.H. at 489. "The 1978 Voters' Guide made the convincing point that changes of venue had already been ordered by state and federal courts, in violation of this provision of the state constitution." Marshall, supra at 77. As amended in 1978, Part I, Article 17 of the State Constitution now provides: In criminal prosecutions, the trial of facts, in the vicinity where they happened, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except in any case in any particular county or judicial district, upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed, the court shall direct the trial to a county or judicial district in which a fair and impartial trial can be obtained.

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We disagree with the respondent that Part I, Article 17 grants him the right to be tried in the county or judicial district in which the crime was allegedly committed that he may waive only upon a written motion for change of venue based upon his inability to obtain a fair trial in the proper county or judicial district. To the contrary, Part I, Article 17 grants a criminal defendant two rights: the right to be tried where the crime was committed and the right to obtain a change of venue upon proof that he cannot obtain a fair trial there. Part I, Article 17 merely makes clear that, upon proof that a fair trial cannot be had in the county or judicial district where the crime occurred, the trial court lacks any discretion to deny a defendant's motion for change of venue. In other words, upon proof that a fair trial cannot be had in the place of proper venue, the defendant has an absolute right to a change of venue. In this way, as amended, Part I, Article 17 provides the same level of protection as the Federal Constitution, for as the United States Supreme Court has ruled, under that Constitution, "a defendant must be given an opportunity to show that a change of venue is required in his case" because of community prejudice. Groppi v. Wisconsin, 400 U.S. 505, 511 (1971) (emphasis added). This provision is silent with respect to other circumstances under which a criminal defendant may waive his or her right to proper venue. The provision contains no language that "precludes or denies to the accused the power or option to waive [proper venue]" under other circumstances. Almy, 67 N.H. at 280. "We will not redraft the constitution in an attempt to make it conform to an intent not fairly expressed in it." New Hampshire Munic. Trust Workers' Comp. Fund v. Flynn, Comm'r, 133 N.H. 17, 21 (1990) (quotation omitted). Nothing in the history of the 1978 amendments to Part I, Article 17 nor in the plain language of those amendments suggest that the people intended that provision to set forth the only method by which and the only reason for which a defendant could waive his constitutional right to proper venue. Importantly, nothing in the history or language of Part I, Article 17 indicates any intent to overrule our decision in Albee. Courts in other jurisdictions have ruled that "[i]n common with almost all other defense rights, a defendant can waive his right to proper venue by an express statement of relinquishment." 4 W. LaFave et al., Criminal Procedure

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