State v. Allen

• Decision Date: 07 August 1986
• Docket Number: No. 84-537,84-537
• Citation: 128 N.H. 390,514 A.2d 1263
• Parties: The STATE of New Hampshire v. Robert ALLEN.
• Court: New Hampshire Supreme Court

Page 1263

514 A.2d 1263

128 N.H. 390

The STATE of New Hampshire v. Robert ALLEN.

No. 84-537.

Supreme Court of New Hampshire.

Aug. 7, 1986.

Stephen E. Merrill, Atty. Gen. (Steven L. Winer, Asst. Atty. Gen., on brief and orally), for State.

James E. Duggan, Appellate Defender, Concord by brief and orally, for defendant.

SOUTER, Justice.

In this appeal from his conviction in the superior court for attempted murder, the defendant argues (1) that Cann, J., erred in denying a pretrial motion to quash the indictment because of its failure to specify the degree of murder attempted; (2) that Nadeau, J., erred at trial in admitting evidence that the defendant had used a gun in an incident four years before the offense alleged; and (3) that the trial judge also erred in adding a disciplinary period to the minimum sentence possible for the offense. Our decision in State v. Wheeler, 127 N.H. 337, 499 A.2d 1005 (1985) disposes of the third issue; after considering the first and second, we affirm.

The defendant and the victim, Peggy Allen, were married in 1977 and divorced in 1980. There was evidence that one day soon after the divorce the victim discovered the defendant in her house, holding a .357 magnum revolver. After telling her that he wanted to talk, he unloaded the gun. The victim then called the police, who took the gun from the defendant.

By late 1981, the defendant and the victim were reconciled, and they lived together until February of 1984, when the defendant accused her of involvement with another man. The defendant indicated to a third person that he would kill the victim, her supposed paramour and himself, if such was necessary to prevent another estrangement.

Thereafter, the victim told the defendant that she wished to leave him. He responded by requesting sexual relations with her. When she refused, the defendant dragged her to their bedroom, where, in the course of a struggle, he took a loaded .38 caliber revolver from the drawer of a nightstand. In the victim's version of the events, the defendant cocked the gun and pointed it at her head. She deflected his arm, and the gun fired. The defendant then fired two further shots, one of which hit her arm. When she tried to flee, the defendant shot her in the back. He then restrained her for an hour before calling the police.

In the defendant's version, he had intended to kill himself, not the victim. He claimed that he had wounded her accidentally, as she attempted to prevent his suicide, and that he had restrained her only to calm her hysteria. He admitted, however, that prior to the incident he had removed the gun from its accustomed place, loaded it with more than one round and placed it in the nightstand drawer.

The defendant was charged with attempted murder. RSA 629:1, I provides that

"[a] person is guilty of an attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime."

Chapter 630 defines three varieties of murder as a completed crime. See RSA 630:1, :1-a; :1-b. Although each shares the common element of causing the death of another, each variety is further defined by reference to the defendant's mental state, see RSA 630:1-a, I(a); :1-b, I(a); :1-b, I(b), or to a mental state in combination with other factual circumstances, see RSA 630:1, I(a) to (c); :1-a, I(b)(1) to (4).

The indictment against the defendant made no explicit reference to any one of these varieties of the underlying completed crime. It simply charged that he

"did, with the purpose to cause the death of Peggy E. Allen, shoot her in the back and arm with a .38 caliber revolver, an act which, under the circumstances as he then believed them to be, was a substantial step towards the commission of the crime of murder."

The defendant moved to quash the indictment on the ground that it failed to allege all of the elements of an offense, see State v. Bussiere, 118 N.H. 659, 661, 392 A.2d 151, 153 (1978), and failed to allege sufficient facts to apprise him of the charge, see State v. Stiles, 123 N.H. 680, 683, 465 A.2d 908, 910 (1983). The court denied the motion. In the subsequent trial, however, both the court and the prosecution treated the indictment as charging an attempt to commit murder in the first degree, and the court so instructed the jury.

In this appeal the defendant concentrates on the claim that the indictment failed to allege all of the necessary elements of attempted murder. He asserts that to provide sufficient notice of the offense he is charged with the indictment must identify the variety of murder allegedly attempted. On his theory, the allegation that a defendant acted with a purpose to cause the death of another merely states the mental element required for an attempt under RSA 629:1, I, together with the result intended; in failing to identify the specific variety of murder attempted it fails to provide him with sufficient notice to prepare his defense.

The defendant thus raises an issue on which this court has previously commented in dictum, see State v. McPhail, 116 N.H. 440, 442, 362 A.2d 199, 201 (1976), but on which it has never directly ruled: whether attempted murder is a single, generic crime, or whether there are varieties of attempted murder corresponding to varieties of murder as a completed crime, one of which must be specifically alleged in an indictment. See also State v. Elbert, 125 N.H. 1, 480 A.2d 854 (1984) (indictment for attempted first degree murder; conviction for attempted second).

The State assumes in its brief, as it did at trial, that the defendant is correct to the extent that he claims that the crime is not generic and that the State must prove an attempt to commit murder of a specific variety. In following out the consequences of that position, however, we find good reasons to reject it.

To understand those consequences, we need to attend to the definitions of the varieties of murder as completed crimes, and to their distinguishing mental states. RSA 630:1, I(a) to (c) defines capital murder as knowingly causing the death of either a law enforcement officer acting on duty or of another in connection with the commission of certain other crimes. RSA 630:1-a provides alternative definitions of first degree murder: purposely causing death, RSA 630:1-a, I(a), or knowingly causing the death either of certain political figures, RSA 630:1-a, I(b)(4) or of another in connection with the commission of certain other crimes, RSA 630:1-a, I(b)(1) to (3). Second degree murder is defined as causing death knowingly, RSA 630:1-b, I(a), or recklessly under circumstances manifesting extreme indifference to human life, RSA 630:1-b, I(b).

As a general rule, acting purposely or with a purpose is defined as acting with the conscious object to cause a given result or to engage in given conduct. RSA 626:2, II(a). When the charge is first degree murder, however, it is insufficient to prove only that the defendant acted with the conscious object to cause the death of another; it is also necessary to prove that he acted with premeditation and deliberation. RSA 630:1-a, II. Acting knowingly is defined as acting with awareness either of the nature or natural tendency of one's conduct, or of material factual circumstances. RSA 626:2, II(b). And finally, acting recklessly is defined as acting with an awareness and a conscious disregard of a substantial and unjustifiable risk that material circumstances exist or that a given result will follow from one's acts. RSA 626:2, II(c).

Bearing these definitions in mind, the most obvious consequence of accepting the defendant's theory would be the requirement to allege and prove two separate mental elements with respect to the same material element of the offense, see RSA 625:11, IV: the purposeful state of mind required under the attempt statute, and a further state of mind required to identify the specific variety of murder attempted. In considering the merits of the defendant's theory we might appropriately stop right here; two simultaneous states of mind with respect to the same material element would be too bizarre for a practical legal system. But lest there be any doubt about this, we will consider some specific problems of pleading and proof that would follow from the defendant's position.

Such problems admittedly would be manageable when the intended variety of murder involved a purposeful state of mind, like the crime of attempt itself. For example, one type of murder in the first degree is "purposeful" killing, although it is necessary to prove not only that a defendant caused death with the purposeful state of mind as defined by RSA 626:2, II(a), but that he acted with deliberation and premeditation as well. RSA 630:1-a, II.

All of these elements could be charged consistently, albeit awkwardly, by an attempted murder indictment alleging that the defendant acted with a purpose to kill another purposely, with premeditation and deliberation. (In an indictment for completed first degree murder, it is not necessary to allege premeditation and deliberation expressly, because the burden to prove those elements arises by operation of RSA 630:1-a, II, see State v. Glidden, 123 N.H. 126, 132, 459 A.2d 1136, 1139 (1983). On the defendant's theory, however, an indictment for an attempt to commit that crime would require explicit allegations of premeditation and deliberation, in order to distinguish the mental element of the murder attempted from the purposeful state of mind required for an attempt.) Elimination of the redundancy, see State v. Chaisson, 123 N.H. 17, 25, 458 A.2d 95, 99 (1983), would leave an indictment charging that a defendant acted with a purpose to cause death with premeditation and deliberation. In the case before us, the court treated the indictment as if it had been written in just this...