State v. Aldrich, 82-211

• Decision Date: 05 October 1983
• Docket Number: No. 82-211,82-211
• Citation: 466 A.2d 938,124 N.H. 43
• Parties: The STATE of New Hampshire v. Wayne ALDRICH.
• Court: New Hampshire Supreme Court

Page 938

466 A.2d 938

124 N.H. 43

The STATE of New Hampshire v. Wayne ALDRICH.

No. 82-211.

Supreme Court of New Hampshire.

Oct. 5, 1983.

Gregory H. Smith, Atty. Gen. (Gregory W. Swope, Atty., Concord, on the brief and orally), for the State.

Law Offices of Robert V. Johnson, II, Concord (Anthony M. Ambriano, Concord, on the brief and orally), for defendant.

DOUGLAS, Justice.

The defendant, Wayne Aldrich, appeals his conviction in Superior Court (Cann, J.) for escape from official custody, RSA 642:6. The issues presented for our review are whether the State may properly charge the defendant with "knowingly" escaping from official custody, when the escape statute itself (RSA 642: 6) does not prescribe a culpable mental state, and whether the admission of certain inadmissible hearsay evidence was harmless error. For the reasons which follow, we affirm the defendant's conviction.

In January 1980, the defendant was sentenced to concurrent terms of two-and-one-half to five years in the State prison for two burglaries. Pursuant to RSA 651:25, I (Supp.1981), he was transferred to the Community Correction Center (half-way house) in Concord in September 1981, in preparation for his release from custody after a minimum of ninety days.

On October 13, 1981, the defendant left the half-way house at approximately 10:30 p.m. to work at the Concord Litho Company, which was located three miles away. He was employed there on the midnight-to-8:00 a.m. shift. According to a logbook maintained at the half-way house, which was admitted into evidence at the defendant's trial over his objection and exception, the defendant failed to report to work and was reported "escaped." The defendant was arrested by Peterborough police officers at an apartment in that town at 8:00 p.m. on October 14, 1981, twelve hours after the defendant's work shift ended and he was due to return to the half-way house. The police officers testified that the defendant appeared to be intoxicated at the time of his arrest.

The defendant was charged with escape, a class B felony, see RSA 642:6, by an indictment which alleged that he

"did knowingly escape from official custody at the Community Correction Center of the New Hampshire State Prison, having been confined at said Prison by Order of the Merrimack County Superior Court on January 28, 1980 in that said Wayne Aldrich did not report for work on said date when granted temporary release for that purpose and did not return to the Community Correction Center at the appointed time ...."

(Emphasis added.) "Knowingly" is defined in our Criminal Code as follows: "A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist." RSA 626:2, II(b) (emphasis added).

The defendant moved before trial to quash the indictment on the ground that the statute defining the offense of escape, RSA 642:6, does not specify a particular culpable mental state, and that in the absence of a statutorily specified mental state the State was obligated to prove that he acted "purposely," the highest culpable mental state. "Purposely" is statutorily defined as follows: "A person acts purposely with respect to a material element of an offense when his conscious object is to cause the result or engage in the conduct that comprises the element." RSA 626:2, II(a) (emphasis added). The court denied the motion.

At his trial in April 1982, the defendant's defense was that he was so intoxicated after he left the half-way house that he could not have "knowingly" escaped from official custody. See RSA 626:4. The jury apparently did not believe the defendant because it found him guilty of escape. He was sentenced to one-and-one-half to three years in the State prison, to be served consecutively to the unexpired terms of the burglary sentences. See RSA 642:6, IV (Supp.1981).

RSA 642:6 defines escape as follows: "A person is guilty of an offense if he escapes from official custody." Even though the statute specifies no culpable mental state, a prosecution for escape, which is either a class A or a class B felony, depending upon whether force is used during the commission of the offense, see RSA 642:6, III (Supp.1981), may not be sustained in the absence of proof of a mens rea. RSA 626:2, I of the Criminal Code provides that "[a] person is guilty of ... a felony ... only if he acts purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense."

We do not read this provision as vesting prosecutors with unfettered discretion to charge any one of the four culpable mental states, depending upon the circumstances of a particular case, wherever a criminal statute fails to prescribe a specific mental state. Such an interpretation, for instance, would leave prosecutors free to charge escape defendants criminally for acting "negligently," a mental state not even requiring awareness of the circumstances of the offense. See RSA 626:2, II(d). This interpretation would be broader than even the standard set forth in section 2.02(3) of the Model Penal Code, which provides: "When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." Model Penal Code § 2.02(3) (1962) (emphasis added).

Absent a more clearly manifested legislative intent, we refuse to construe RSA 626:2 to permit a criminal defendant to be charged with whichever one of the four culpable mental states defined therein that a prosecutor may choose, where a specific mental state is not provided for the offense. Rather, we read RSA 626:2, I as requiring proof of a culpable mental state which is appropriate in light of the nature of the offense and the policy considerations for punishing the conduct in question.

Nor are we willing to accept the defendant's sweeping assertion that the State must prove the culpable mental state of "purposely," the most difficult mental state to establish, for any offense where a mental state is not statutorily specified. We do not believe that such a categorical statutory construction either is constitutionally required or comports with the legislature's intent in enacting the Criminal Code. Instead, pursuant to the legislature's direction, we will construe RSA 642:6 "according to the fair import of [its] terms and to promote justice." RSA 625:3. We emphasize that our analysis here is necessarily confined to the statute before us. Our interpretation of the culpable mental state required for commission of the offense of escape must be guided by the common-law origins of the crime and the policy justifications for imposing a criminal sanction.

The United States Supreme Court recently addressed the precise legal issue presently before this court. In United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), the Court construed the federal escape statute, see 18 U.S.C.A. § 751(a) (Supp.1983), which, like RSA 642:6, sets forth no culpable mental state for the commission of the offense. Rejecting the assertion that the prosecution should be required to prove that a defendant escaped "with an intent to avoid confinement," a standard comparable to the definition of "purposely" contained in RSA 626:2, II(a), the Supreme Court held that "the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission." 444 U.S. at 408, 100 S.Ct. at 634 (emphasis added).

The Court found nothing in the language or legislative history of the federal statute to indicate the culpable mental state required for conviction. Id. at 406, 100 S.Ct. at 632-33. Turning to scholarly discussions of the nature of the elements of intent in the criminal law, the Court noted that the distinction between the mental states of "purposely" and "knowingly" in modern criminal codes is perhaps the "most esoteric" differentiation among any of the four commonly identified mental states. Id. at 404, 100 S.Ct. at 631. The basis for this conclusion was that:

"In the case of most crimes, 'the limited distinction between knowledge and purpose has not been considered important since "there is good reason for imposing liability whether the defendant desired ["purposely"] or merely knew of the practical certainty of the results ["knowingly"]." ' "

Id. (citations omitted). As the Supreme Court noted in a decision two years before Bailey: "In either circumstance, the defendant[ ] [is] consciously behaving in a way the law prohibits, and such conduct is a fitting object of criminal punishment." United States v. United States Gypsum Co., 438 U.S. 422, 445, 98 S.Ct. 2864, 2878, 57 L.Ed.2d 854 (1978).

Although the Bailey Court's construction of the mens rea requirement under the federal escape statute obviously is not binding on this court's construction of our State escape statute, we find the reasoning of that decision to be highly persuasive as to what culpable mental state must be proved in a prosecution for...