State v. Bailey

• Decision Date: 04 December 1985
• Docket Number: No. 84-397,84-397
• Citation: 127 N.H. 416,503 A.2d 762
• Parties: The STATE of New Hampshire v. Stephen A. BAILEY.
• Court: New Hampshire Supreme Court

Page 762

503 A.2d 762

127 N.H. 416

The STATE of New Hampshire v.Stephen A. BAILEY.

No. 84-397.

Supreme Court of New Hampshire.

Dec. 4, 1985.

Stephen E. Merrill, Atty. Gen. (Gregory W. Swope, Asst. Atty. Gen., on the brief), by brief for State.

Joanne S. Green, Asst. Appellate Defender, Concord, by brief for defendant.

SOUTER, Justice.

A jury found the defendant guilty of second degree assault committed by causing bodily injury to an infant boy recklessly and under circumstances manifesting extreme indifference to the value of human life.RSA 631:2, III.In this appeal the defendant argues that the Superior Court(Dunn, J.) committed four errors: (1) in refusing to enquire on voir dire whether the allegation of assault on a small child would cause emotional reaction or discomfort to a juror; (2) in refusing to make a record, in the presence of counsel, of bench conferences with prospective jurors; (3) in admitting expert testimony on the fatal tendency of the defendant's course of conduct; and (4) in refusing to give a jury instruction indicating that the defendant could not be found guilty unless the acts charged in the indictment had jeopardized the life of the victim.We conclude that there was no reversible error and affirm.

On the evidence, the jury was entitled to find that during part of the fall of 1983the defendant lived in an apartment occupied by the child victim and his mother.When his relationship with the mother deteriorated, the defendant became intolerant of the child's crying.From about the time of Thanksgiving, 1983, when the child was approximately eleven months old, the defendant responded to the child's noise by striking and biting the child's body.

By December 11, 1983, these assaults had left scratches, bruises and scarred marks of the defendant's teeth upon the hands, arms, shoulders, legs, back and stomach of the child.On that date a babysitter reported the child's condition to the police, who took the child to the hospital, from which he was later removed to foster care.A pediatrician, Dr. McGrath, stated that his examination of the child at the hospital revealed the worst case of child abuse the doctor had ever seen, and he expressed the opinion that a few more days of such treatment would have resulted in the child's death.

A few hours after the child had been taken from his mother's apartment, the defendant called the police and shortly thereafter went to the police station to discuss the matter.There, the defendant admitted the assaults and said that he was extremely sorry that he had committed them.The defendant was subsequently indicted for the felony of second degree assault under RSA 631:2, III, (Supp.1983), for having recklessly caused bodily injury under circumstances manifesting extreme indifference to the value of human life.

Two aspects of the jury selection at the defendant's trial concern us in this appeal.The defendant requested the court to ask as part of the voir dire whether "the allegation that the defendant inflicted injury on an 11-month old child causes discomfort or [provokes] an emotional reaction within you?"The trial judge declined to pose this specific question.He did, however, advise the jury that the victim was eleven months old at the time of the assaults charged, and he then asked whether any venire panelist, or a panelist's friend or relative, had been abused as a child, and whether any panelist felt any prejudice that would interfere with his judgment.

Defense counsel had anticipated that in conducting this voir dire the court would follow the common New Hampshire practice, in cases other than capital and first degree murder, of posing a series of questions to the panel, followed by individual discussions at the bench with any panelists who indicated that they had affirmative responses to any of the questions.SeeR. McNamara, 1 New Hampshire Practice, Criminal Practice and Procedure, § 954(1980).Counsel asked that such discussions be on the record with counsel present.The court denied the request, conducted the discussions off the record and then advised counsel of the substance of each panelist's comments.In all but one instance the court later excused each panelist who had come to the bench in response to a question.

During the trial the defendant admitted that he had assaulted the child recklessly; but he maintained that the circumstances did not manifest extreme indifference to the value of human life and, therefore, that he had committed nothing more serious than the misdemeanor of simple assault under RSA 631:2-a, I(b)(Supp.1983).He consequently objected to the State's offer of testimony from Dr. McGrath that several more days of similar abusive treatment would have resulted in the child's death.In response to the objection, the court found that such testimony would be relevant, but excluded it on the ground that its prejudicial effect would outweigh its probative value.On cross-examination by defense counsel, Dr. McGrath conceded that the injuries did not include broken bones, concussion, damage to internal organs, gross external deformities, respiratory difficulties or infections.Thereupon the court advised counsel that the cross-examination had opened the door to the excluded testimony.Although defense counsel asked the court to reconsider this ruling, he took no exception.On redirect, the doctor testified that:

"... unless the child was urgently taken out of this, you know, the family situation at the time that the indications were that perhaps with the continuing abuse, the child could end up dead.He could be killed by, you know, some more serious injury.He was at risk, at a high risk and very high risk situation....Just from what I had seen and realizing that this was again a continuum situation where who knows what would happen next, that the situation was very high risk and that the child was a very high risk, you know, that perhaps the child could be killed.There have been cases like that, certainly, ongoing cases of abuse terminating in the child's death."

The defendant continued to address the issue of extreme indifference both in closing argument and by request for the following jury instructions:

"... you must be convinced beyond a reasonable doubt that Mr. Bailey's conduct was of the most threatening sort and it is largely by chance that a murder was not committed, otherwise you must return a verdict of not quilty.Thus, if you find Mr. Bailey's conduct did not involve a high probability of death, then you must find the defendant not guilty."

The court refused this request, but gave the following charge:

"This requirement, circumstances manifesting extreme indifference to the value of human life, means more than just knowing that there is a substantial risk of injury and disregarding that risk.The circumstances must show a blatant disregard for the risk of [sic] human life."

The jury returned a verdict of guilty, and this appeal followed.

We begin by considering the trial court's refusal to ask the particular voir dire question that the defendant requested, whether the allegation of harm to a small child would cause "discomfort" or "emotional reaction."In State v. Wright, 126 N.H. 643, 496 A.2d 702(1985), we recently had occasion to describe the circumstances in which a trial court is obligated to supplement the standard voir dire when a defendant requests it.A defendant is entitled to supplemental questions "when there is an articulable factual basis, specific to a venire panelist or to the circumstances of the case, for concluding that one or more members of the venire panel may be prejudiced or otherwise incompetent."Id., 496 A.2d at 705.Conversely, there is no abuse of discretion in a court's refusal to expand voir dire because of "mere possibilities" that a panelist may be disqualified.Id.

We believe that the details of the charge of assault in this case were so bizarre and shocking that they did provide an articulable basis to conclude that venire panelists might become disqualified by their reactions to the evidence.We do not, however, find any error in the court's refusal to ask the question requested by the defendant.On the one hand, the enquiry about possible discomfort or emotional reaction was calculated to call for an affirmative response from virtually everyone.It would therefore have had little, if any, utility in identifying an unqualified panelist.On the other hand, the court addressed this issue by disclosing the victim's age before asking if there were panelists who thought that they could not act with impartiality.The court then singled out victims of child abuse, and their friends and relations, before making a further, specific enquiry.We cannot say that these responses to the defendant's request were so inadequate as to have been an abuse of discretion, and accordingly we find no error.We will leave the matter, as we did in Wright, simply by recommending to the trial courts a receptive rather than a grudging response to requests for supplemental voir dire.

Next we take up the defendant's argument that the refusal to conduct discussions with venire panelists on the record in the presence of counsel was a violation of the defendant's rights under part I, article 15 of the Constitution of New Hampshire and the sixth and fourteenth amendments of the Constitution of the United States.As is customary, we first consider the State claim independently, seeState v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350(1983), citing authority from other jurisdictions solely for their help in dealing with the State issue.SeeMichigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201(1983).

Obviously, neither constitution contains any black letter requirements to conduct colloquies with venire panelists in the presence of counsel or on the record.These issues therefore call for judgments about the procedures that are reasonably...