State v. Beede

• Decision Date: 17 August 1979
• Docket Number: No. 79-054,79-054
• Citation: 119 N.H. 620,406 A.2d 125
• Parties: The STATE of New Hampshire v. William R. BEEDE.
• Court: New Hampshire Supreme Court

Page 125

406 A.2d 125

119 N.H. 620

The STATE of New Hampshire v. William R. BEEDE.

No. 79-054.

Supreme Court of New Hampshire.

Aug. 17, 1979.

Thomas D. Rath, Atty. Gen. (Anne E. Cagwin, Asst. Atty. Gen., orally), for the State.

Stebbins & Bradley, Hanover (John S. Stebbins, Hanover, orally), for defendant.

GRIMES, Justice.

The defendant was convicted of second-degree murder, RSA 630:1-b(I)(a), on December 15, 1978. The case comes to this court on issues of suppression of evidence of the victim's body and other evidence, and impeachment of the defendant's credibility by evidence of prior convictions. We hold that the trial court correctly refused to suppress the physical and testimonial evidence complained of, and properly ruled that a defendant who chooses to take the witness stand may, within the bounds of judicial discretion, be cross-examined as to prior valid convictions bearing upon his credibility.

Miss Lemay had been reported missing by her family on Monday, June 5, at approximately 11:30 p. m. Starting an immediate search in the area of High Street, Officer Roberts of the Lebanon Police Department questioned two women, Rose Coleman and Noella LaJoie, and learned that they had seen Miss Lemay at approximately 5:30 p. m., walking with the defendant towards the defendant's apartment on Hanover Street. Roberts then went to the defendant's apartment and, identifying himself as a police officer, knocked several times on the door. Although he heard a noise inside "like somebody stumbl(ing) over something," no one responded. Roberts inquired of several of the neighbors in the building and one Irene Williams told him that she too "had heard someone in the apartment." Roberts' repeated requests for the defendant to answer the door proved unfruitful.

The following day, June 6, 1978, Detective Jerry Whitney took over the search. After reading the report of the previous night's events, he went to the defendant's apartment, knocked on his door several times without success, and talked with the neighbors. Whitney learned from Miss Lemay's mother that Miss Lemay was fifty-six years old and retarded, that she was not competent to live by herself, and that she had a seizure-type disease but could not take care of herself should a seizure strike because her medication was with the mother. He was also told that Miss Lemay would sometimes hide from her mother at the onset of a seizure, that she had a drinking problem, and that she had never before stayed away from home overnight.

On Wednesday, June 7, 1978, Detective Whitney resumed the investigation. Between 4 and 5 p. m., he went to the defendant's apartment and knocked on the door several times. He then decided to contact the defendant's landlord and succeeded in doing so at 9:30 that evening. Shortly thereafter, the building custodian arrived with the key to the apartment. Before using the key, Detective Whitney attempted once again to secure admittance to the apartment by knocking on the door. He also spoke once more with tenant Irene Williams to determine if the defendant had returned or if any noises had been heard coming from the defendant's apartment. She had not seen or heard anything. Whitney then had the custodian open defendant's door with the passkey. The door, however, opened only some three to four inches before being stopped by a night chain. They then decided to try an alternative means of entrance to the apartment by way of an adjoining building and across defendant's back porch. Detective Whitney contacted Officer Robbins and asked him to proceed to the apartment to assist in the investigation.

While awaiting Officer Robbins' arrival, Detective Whitney opened the defendant's kitchen window and called out defendant's name several times, but he heard no response. He flashed the beam of his flashlight inside the darkened room, but saw no sign of the defendant or Miss Lemay. The custodian then informed Detective Whitney that when the defendant's door had initially been opened, he thought he had smelled "an odor," and that when the kitchen window had been opened, he was sure he smelled an odor. Officer Robbins arrived and, without having obtained a search warrant, the three men entered the apartment through the kitchen window.

In a cursory search of the apartment, they found Miss Lemay's body lying naked on a bed in the defendant's bedroom. The officers left the apartment to secure a search warrant.

A full homicide investigation was instituted upon the issuance of a search warrant. The forensic team collected photographic evidence and dusted the apartment for fingerprints. From Leland Cargill, a neighbor residing in an apartment adjacent to the defendant's back porch, the police learned that the defendant had spent the night of Monday, June 5, 1978, on a couch in the Cargill apartment and that when the defendant had arrived at around 12:30 a. m., June 6, he had told Cargill that there was a woman in his apartment who was bleeding at the mouth and was black and blue about the throat. Cargill had not telephoned the police, however, because he "didn't really believe (the defendant) done (sic) anything." Defendant was arrested in Boston, Massachusetts on July 1, 1978.

After being advised of his rights, defendant gave two different accounts of the events of Monday, June 5, 1978. In one of the statements, the defendant stated that he had been with the victim in the apartment, that he had lain down on the bed with her, that she had taken her clothes off, and that at some point, he put his hand on her neck and choked her. The voluntariness of the statements is not an issue before this court.

An autopsy revealed that the victim died from strangulation. The pathologist's report reveals that the victim's neck was severely bruised, that her hyoid bone was both broken and dislocated, and that the actual cause of death was lack of oxygen to the brain.

The defendant was indicted by the Grafton County Grand Jury for second-degree murder, RSA 630:1-b(I)(a), and entered a plea of not guilty at arraignment. On December 6, 1978, a hearing was held on the defendant's motion to suppress the physical and testimonial evidence against him. The court denied the motion, and on December 11, 1978, empanelled a jury and began the trial.

Prior to the close of the State's case-in-chief, the court conducted a hearing on the admissibility of the defendant's prior conviction for impeachment purposes. The court ruled over exception that two convictions, one a 1973 New Hampshire conviction for obtaining property by false pretenses, the other a 1972 New Hampshire conviction for cashing a check with intent to defraud a bank, could be used to impeach the defendant's credibility. The defendant took the stand during the presentation of his case and the prior convictions were brought to the jury's attention during his direct examination. The court properly gave a limiting instruction to the jury both at that time and again during the final charge. The jury's verdict of guilty was entered and Johnson, J., transferred defendant's exceptions.

The first issue presented is whether the defendant is entitled to a new trial because of the court's ruling regarding the introduction of the prior convictions. The essence of defendant's position is that by permitting cross-examination regarding prior offenses the court imposed an unconstitutional restraint on his right to testify. See State of Hawaii v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971). The law in this State, however, is decidedly to the contrary. Subject to the exercise of judicial discretion, "evidence of a defendant's prior convictions is admissible . . . 'when the defendant has raised the issue of his character . . . or when the defendant has testified and the State seeks to impeach his credibility.' " State v. Lavallee, 119 N.H. ---, ---, 400 A.2d 480, 483 (1979), Quoting State v. Cote, 108 N.H. 290, 294, 235 A.2d 111, 114, Cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1967).

The prior convictions introduced with a limiting instruction in the present case directly pertained to defendant's veracity. We hold that the trial court acted well within its discretion in admitting, for the limited purpose of impeachment, two of defendant's prior convictions.

The second issue presented is whether the trial court erred in ruling adversely on defendant's motion to suppress the bulk of the evidence against him. Defendant contends that the warrantless search of his apartment was illegal under both the Federal and New Hampshire Constitutions, U.S.Const. amend. IV; N.H.Const. pt. I, art. 19, and that consequently, any evidence seized directly or derivatively from that search should not have been admitted against him at trial.

The initial entry into the apartment was made without a warrant. Defendant correctly asserts that warrantless searches "are Per se unreasonable" under both the fourth amendment and N.H.Const. pt. I, art. 19, and that to justify such a search, the State has the burden of showing that it comes within one of the exceptions to the warrant requirement. State v. Theodosopoulos (decided this date); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); State v. Slade, 116 N.H. 436, 437-38, 362 A.2d 194, 195 (1976). It is also true that the warrant requirement applies to both criminal and noncriminal searches. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The fourth amendment requirements and those of N.H.Const. pt. I, art. 19 apply whether the officer conducting the search is looking for a missing person or for evidence of a crime. See Camara v. Municipal Court,387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); State v. Sladesupra.

The landlord, of course, had no authority to consent to the warrantless search of defendant's apartment. Chapman v. United...