Our review of the trial court's legal conclusions, however, is de novo.” State v. Matey, 153 N.H. 263, 268, 891 A.2d 592 (2006) (quotation omitted). The defendant argues on appeal that the trial court erred in denying his motion to suppress.
Under the plain error rule, we may consider errors not raised before the trial court. State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006). " A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court."
Under the plain error rule, we may consider errors not raised before the trial court. State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006). “A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.”
The plain error rule allows us to consider errors not brought to the attention of the trial court. State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006). However, the rule should be used sparingly, and should be limited to those circumstances in which a miscarriage of justice would otherwise result.
To find plain error: "(1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings." State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006) (quotation omitted). The petitioners simply assert that their "omission of this argument at the Superior Court level was a plain error that affects the Petitioners' substantial rights and the fairness, integrity or public reputation of judicial proceedings," without setting forth any analysis establishing that the review they seek satisfies the requirements of plain error.
Further, because the sentence is illegal to the extent that the trial court exceeded its authority under RSA 651:2, the third and fourth elements of the plain error rule have been satisfied. State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006). Accordingly, we reverse that portion of the sentence that imposed the no-contact order.
"For the purpose of double jeopardy analysis, two charged offenses cannot be regarded as the same offense if they do not arise out of the same act or transaction." Fischer, 165 N.H. at 715, 82 A.3d 891 (quotation omitted); see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; cf.State v. Matey, 153 N.H. 263, 270–71, 891 A.2d 592 (2006) (deciding whether two offenses are the "same" for right to counsel purposes). Here, the defendant was charged with witness tampering during two separate telephone conversations.
For the purpose of double jeopardy analysis, two charged offenses cannot be regarded as the same offense if they do not arise out of the "same act or transaction." See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; State v. Matey, 153 N.H. 263, 270, 891 A.2d 592 (2006) ; see also State v. Hull, 149 N.H. 706, 717, 827 A.2d 1001 (2003). Here, the defendant was charged with two separate incidents of assault—the first took place in the living room and, sometime thereafter, the second occurred in the kitchen.
First, the threshold inquiry under Blockburger is whether the alleged statutory violations arise from “the same act or transaction.” See Blockburger, 284 U.S. at 301–04, 52 S.Ct. 180 (considering first whether two sales made to the same person arose from “the same act or transaction” before determining whether “the same act or transaction” constituted “a violation of two distinct statutory provisions”); see also State v. Thompson, 197 Conn. 67, 495 A.2d 1054, 1058 (1985); Schoonover, 133 P.3d at 62; State v. Matey, 153 N.H. 263, 891 A.2d 592, 599 (2006); George C. Thomas III, A Blameworthy Act Approach to the Double Jeopardy Same Offense Problem, 83 Cal. L.Rev. 1027, 1035 n.34 (1995) (noting that the “threshold same-act requirement must be satisfied before it makes sense to compare statutory act-types”). This “inquiry does not determine whether there is a double jeopardy violation; rather it determines only if there could be a violation.”
Under the plain error rule, we may consider errors not raised before the trial court. State v. Matey, 153 N.H. 263, 266, 891 A.2d 592 (2006); see Sup.Ct. R. 16–A. “However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.”