Novosel v. Helgemoe

• Decision Date: 10 March 1978
• Docket Number: No. 7840,7840
• Citation: 118 N.H. 115,384 A.2d 124
• Parties: Viktor NOVOSEL v. Raymond HELGEMOE, Warden.
• Court: New Hampshire Supreme Court

Page 124

384 A.2d 124

118 N.H. 115

Viktor NOVOSEL v. Raymond HELGEMOE, Warden.

No. 7840.

Supreme Court of New Hampshire.

March 10, 1978.

McSwiney, Jones & Semple, Concord (Carroll F. Jones and Nina Kraut (Law Student), orally), for plaintiff.

David H. Souter, Atty. Gen. (Richard B. McNamara, Asst. Atty. Gen., orally), for the State.

DOUGLAS, Justice.

This is an appeal from the denial of plaintiff's petition for a writ of habeas corpus seeking his release from the forensic unit of the New Hampshire Hospital. The plaintiff's exceptions to this order were transferred to this court by Keller, C. J. This court reverses the order below and outlines the procedures to be used by the superior court in criminal cases when insanity is, or might be, an issue.

On December 24, 1974, plaintiff was arrested and charged with the murder in the first degree of Helen Morrison. In January of 1975, the plaintiff was indicted by the Merrimack County Grand Jury for the crime of second degree murder. In response to the lower court's granting of the State's motion for a pretrial psychiatric examination, the defense filed a notice of its intent to rely on the defense of insanity. This notice, however, was not signed by the defendant and was later withdrawn.

After the defense withdrew its notice, the State, believing the plaintiff to be insane, requested that the grand jury be reconvened pursuant to RSA 651:8. Under this statutory provision, the grand jury has the power to decline to indict if it is convinced that the accused is insane. The trial court's duty, pursuant to RSA 651:9 (Supp.1975), is then to make the discretionary determination whether the accused should be released or committed to the State's prison or hospital.

The defendant objected to this procedure, alleging that RSA 651:8 and RSA 651:9 (Supp.1975) violated the due process and equal protection clauses of the Federal Constitution. These issues were reserved and transferred to this court by Keller, C. J. This court held that the trial court had the discretionary authority to reconvene the grand jury, and that the statutes challenged were constitutional. State v. Novosel, 115 N.H. 302, 339 A.2d 16 (1975).

Following that decision on June 9, 1975, the grand jury was recalled. Under the provisions of RSA 651:8 it omitted to return an indictment against the plaintiff and certified him to the court as insane. The plaintiff was refused the privilege of presenting evidence to the grand jury and objected to the proceeding.

On June 12, 1975, after a hearing in the Merrimack County Superior Court conducted under the provisions of RSA 651:9 (Supp.1975) and 135:30-a (Supp.1975), the plaintiff was committed to the New Hampshire State Prison and Hospital for life until or unless earlier discharged, released or transferred by due course of law. The court directed that the order be reviewed at the expiration of two years. See RSA 651:11-a (Supp.1975).

The instant petition was filed on December 3, 1976. A hearing was held before Keller, C. J. on February 18, 1977, resulting in the February 22 order denying plaintiff's petition.

Throughout the proceedings from the day of his arrest, the plaintiff has contended first, that he is sane and second, that he is not guilty of any crime. He further contends that the action of the grand jury in June 1975, denied him, in one broad sweep, all the due process guarantees afforded to one accused of the commission of a crime. He argues that the procedure followed by the State denied him the opportunity to ever contest the allegations lodged against him or to present rebuttal evidence on the question of his sanity. He was "whisked away into the twilight world of the insane and subjected to a committal hearing where the only issue was his dangerousness to be at large, protesting in vain that he did not commit the original crime with which he was charged." Kanteles v. Wheelock, 439 F.Supp. 505 (D.N.H.1977).

The factual setting of the instant case bears a marked similarity to the facts of State v. Ray, 63 N.H. 406 (1885). In that case, two minors accused of burglary had been committed to the industrial school without a trial under a statutory provision effective at that time. The State defended this procedure on the ground that

the industrial school is not a prison, that the order of commitment was not a sentence, and that their detention is not punishment. The contention is, that the industrial school is a part of the school system of the state, and that the state as parens patriae may detain in the school such scholars as may need its discipline. Id. at 408.

The factual analogy to the plaintiff's case is clear. The plaintiff was not convicted of any crime, was not tried and had no opportunity to defend. The forensic unit in which he is currently confined is comparable to the industrial school in that it is restricted to those accused of criminal behavior and the detention is "involuntary and constrained." State v. Ray, supra at 409. The legislature clearly has in mind a separate class when criminal commitment is concerned.

This court in Ray analyzed an Ohio statute that authorized a grand jury to omit returning an indictment against a minor and instead make a return to the court that the minor was a suitable person to be committed to the house of refuge. Although such procedure had been held constitutional under Ohio law at the time, this court was "not convinced of the soundness of its reasoning or conclusion:"

The proceedings by which the accused was adjudged a suitable person to be committed to the house of refuge were conducted in secret, without his knowledge or consent, or that of his parent or guardian, with no opportunity to be represented by counsel, to be confronted with and cross-examine the witnesses for the prosecution, or to produce witnesses in his own behalf. . . . A judgment rendered upon such an ex parte hearing is as little calculated to command the respect of the community as the proceedings of the ancient court of star chamber. State v. Ray, supra at 411.

It is therefore clear that this court is suspect of procedures that purport to aid and benefit the accused at the expense of constitutional safeguards. The plaintiff argues that the grand jury is not an appropriate body for a determination of insanity, given the ex parte nature of its proceedings, and its historical nature as an accusatory body whose standard of review is probable cause.

A grand jury does not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. United States v. Knowles, 147 F.Supp. 19-21 (D.D.C.1957).

In the instant case, no court has ever passed upon the guilt or innocence of the plaintiff. He has never admitted committing the crime charged; he has been denied the opportunity to confront and cross-examine witnesses, to present evidence in his own behalf and to have a determination of his culpability.

In Kanteles v. Wheelock, supra, the federal district court determined that if the due process clause becomes involved "only at the (committal) hearing during which the Superior Court Judge inquires as to (the petitioner's) dangerousness (pursuant to 651:9 (Supp.1975) and 135:30-a (Supp.1975)), then petitioner has suffered no harm." The court found, however, that at this stage in the proceedings the procedural safeguards came too late.

The critical question of sanity has already been determined.

It is the grand jury's determination of insanity certified to the Superior Court which is both the first step in the process which ultimately leads to committal and the last step at which any evidence on the underlying alleged incident is considered. . . . Once the grand jury finds him insane, the petitioner stands to suffer loss of liberty and the stigma of criminal commitment without being convicted of a crime. It is, therefore, at this stage where due process safeguards should attach. Kanteles v. Wheelock, supra at 510 (footnote omitted).

The court concluded that the provisions challenged in Kanteles, and in the instant case, were unconstitutional because due process is required at this critical stage. Relying on In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962), the court in Kanteles found a host of due process violations operative and inherent in the grand jury provision of 651:8: the grand jury proceedings are secret and without adversaries; cross-examination of witnesses does not take place; a written record from which an appeal may be taken is not required; the accused may be compelled to appear without benefit of counsel present; hearsay evidence is considered; and probable cause rather than proof beyond a reasonable doubt is the standard by which determinations are made. Kanteles v. Wheelock, supra at 511.

We agree with the Kanteles court and conclude that the State due process clause, N.H.Const. pt. 1, art. 15, mandates the unconstitutionality of that part of RSA 651:8 relating to the grand jury. State v. Novosel,115 N.H. 302, 339 A.2d 16 (1975), is overruled. Accordingly, the relief requested by the plaintiff is granted. However, because there is no pending indictment outstanding, the murder indictment having been nol prossed by the State, the State will have the full thirty days before this order takes effect in order to go before the grand jury should it wish to do so. RSA 490:16.

The growth in the use of the insanity plea and the RSA 651:8 procedure has been dramatic. In 1938-40, the report of the attorney general revealed a dozen homicides, all of which ended in prison sentences. By 1975, however, the attorney general, in a year end report dated January 6, 1978, revealed that six of fifteen homicide cases went the way of forensic unit commitments.

The State may no longer utilize RSA 651:8 to unilaterally present evidence to a grand jury so as to avoid litigating the issue of criminal...