State v. Belkner, s. 7643-7645
| Decision Date | 31 May 1977 |
| Docket Number | Nos. 7643-7645,s. 7643-7645 |
| Citation | 374 A.2d 938,117 N.H. 462 |
| Parties | STATE of New Hampshire v. William BELKNER. STATE of New Hampshire v. Jaan LAAMAN. STATE of New Hampshire v. Richard DUNN. |
| Court | New Hampshire Supreme Court |
David H. Souter, Atty. Gen., and James L. Kruse, Asst. Atty. Gen. (Mr. Kruse orally), for the State.
John C. Emery, Manchester, by brief and orally, for defendant Belkner.
William H. Kelley and John Czecuik, Manchester (Mr. Czecuik orally), for defendant Laaman.
J. Gilbert Upton, Concord, by brief and orally, for defendant Dunn.
These appeals arise out of the Christmas Day 1975 riot at the New Hampshire State Prison (hereinafter "prison"). Defendants were all tried by jury and convicted of riot as a class B felony pursuant to RSA 644:1 I(a) and RSA 644:1 IV.
Defendants raise a multitude of issues claiming that they did not receive a fair trial. All questions of law were reserved and transferred by Keller, C. J. For purposes of discussion these issues are grouped in the following categories: (1) motions to quash and sever; (2) admissibility of Belkner's conversation with inmate West; (3) motions for mistrial; (4) argument and instructions; (5) new trial and motions to dismiss.
The following facts could be found from testimony given at trial. On Christmas Day in 1975 there was minimal staffing at the prison, a fact generally known by the inmates. The inmates arrived five minutes earlier than usual for lunch, smoked at lunch contrary to prison rules and normal routine and sat in locations they did not normally sit in. Dunn and Laaman sat near the front of the dining hall near the door leading to the cell block, contrary to their regular practice. The inmates remained in the dining area upon finishing their lunches rather than returning to their cells.
Early in the meal Dunn told inmates surrounding him to be sure the door to the cell block could not be locked. It was generally known by the inmates that when there was trouble the door to the cell block was locked and tear gas was fired into the dining area. Bonin, the officer in charge, did not have access to the cell block as the doorway was blocked by several inmates.
Near the end of the dining period, Dunn rose and spoke to Bonin and the 146 inmates present. Dunn complained that the inmates wanted the prisoners in punitive status to come out and have Christmas dinner. He further stated that he was fed up with the prison rules and that the inmates would not leave the dining room until the warden came down to speak with them. These and other messages were relayed to the warden by Officer Rice, a guard.
Dunn made several more speeches to the crowd conferring on occasion with Laaman. The inmates responded to these speeches with loud roaring and banging. Several inmates made taunting remarks to the guards present. Officer Rice returned with messages from the warden. The warden stated that he had arranged for the prisoners in punitive status to have Christmas dinner, that the inmates were to return to their cells and that the warden would not come to the dining room. Dunn responded that this was not good enough and they wanted the warden down. The warden relayed a message to the effect that he would speak with representatives of the population but that he would not come to the dining area. The warden suggested Dunn and Laaman as representatives as they had been identified to him as the leaders. Laaman hollered to Dunn that if he went up to see the warden he would probably not be coming back. Dunn then turned to the crowd and asked if they wanted him to go up alone to which they responded in the negative with more shouting and banging.
At this point the atmosphere was very excited and Bonin feared for himself and the staff in the kitchen. Various inmates had threatened guards with physical violence. Bonin requested permission from Dunn to leave with the kitchen staff. Dunn said they could go. As Bonin and the staff filed out between lines of inmates, the inmates hummed the death march. Before they reached the doorway, a loud crash was heard in the cell block and inmates surged toward the door. A large construction staging had been pulled down. A guard and the prison steward were hit and injured. Tear gas was then fired into the area and the inmates were eventually evacuated. Extensive property damage was done to the cell block and kitchen from fires that had been started in the officers' cabinets.
Defendant Belkner first contends that the trial court erred in denying his motion to quash the indictment against him. Belkner alleges that the indictment is insufficient in that it charges him with more than one offense and he could not properly assess the charges against him.
The indictment against Belkner precisely tracks the language of RSA 644:1 I(a). In addition it supplies underlying factual allegations so that Belkner was specifically apprised of his alleged offensive conduct. Belkner's confusion apparently arises out of language in the indictment relating to RSA 644:1 IV. RSA 644:1 IV raises the status of riot as defined by RSA 644:1 I from a misdemeanor to a class B felony when personal injury or property damage results from the conduct.
RSA 644:1 IV is not an offense separate from RSA 644:1 I, but rather is an aggravated status of that same offense. The indictment specified sufficient facts so that defendant was apprised that he was being indicted for riot as a class B felony. The indictment informed Belkner with sufficient definiteness to enable him to prepare a defense and therefore the court did not err in denying Belkner's motion to quash. State v. O'Neill, 105 N.H. 15, 191 A.2d 528 (1963); State v. Hoyt, 114 N.H. 256, 319 A.2d 286 (1974). The fact that defendant was charged in the conjunctive while the statute is phrased in the disjunctive does not invalidate the indictment. Only one offense, "riot," was charged and judgment will bar any future trial of the defendant for riot. State v. Harlan, 116 N.H. 598, 364 A.2d 1254 (1976).
Defendants Dunn and Laaman argue that the court erred in denying their motions to sever State v. Belkner from State v. Dunn and Laaman. The thrust of defendants' argument on this point is that Belkner's case involved physical injury to the prison steward while their cases did not involve infliction of physical injury. They allege that introduction of this evidence against Belkner was highly inflammatory to the jury and that their cases were unrelated to that of Belkner.
RSA 644:1 IV reads in pertinent part: "Riot is a class B felony if, in the course of and as a result of the conduct, any person suffers physical injury . . .." This statement taken in conjunction with the language of RSA 644:1 I, the offense with which all three of the defendants were charged, makes it clear that Dunn and Laaman need not have personally engaged in the actual acts of physical violence to be prosecuted for a class B felony under RSA 644:1 IV. Therefore, as Dunn and Laaman correctly admitted at the hearing on their motions to sever, this evidence was also admissible against them as well as against Belkner. We, therefore, cannot see how the mere joinder of the Belkner case with that of Dunn and Laaman was prejudicial to them. Furthermore, all defendants were charged solely with violation of RSA 644:1 I(a) and for the most part the same witnesses were to be called for both cases. The charges all arose out of the same event and in the interest of efficiency it was proper for these cases to be consolidated. The court did not abuse its discretion in denying the motions to sever. State v. Chickering, 97 N.H. 368, 89 A.2d 206 (1952); ABA Project on Minimum Standards for Criminal Justice, Joinder and Severance § 2.3 (Approved Draft, 1968).
Defendants all claim that a conversation which took place between inmate West and defendant Belkner, which was admitted over objection, was so prejudicial that defendants were denied a fair trial. They further claim that the conversation was hearsay and inadmissible as such.
Roland Fleury, a paroled inmate, testified at defendants' trial that he had seen someone holding a pipe over the prison steward's head. When asked who was holding the pipe, Fleury stated that he could not reveal the identity of the person for "personal reasons, very strong reasons." In chambers, Fleury stated that a threat against his life had been conveyed to him by his sister from one Tweedel, a guard at the prison. Tweedel was called in chambers and stated the nature of the conversation to the court. The court decided that the testimony was admissible as conduct indicative of a guilty frame of mind. Tweedel was then allowed to testify in front of the jury, over objection, to the following conversation which he overheard while on duty at the prison on December 28, 1975:
West: They slipped Roland (Fleury) out of prison and he ratted us out.
Belkner: We've got plenty of friends at all the joints and we'll get letters out and find out where he's at.
West: We'll find him and kill the little bastard.
Defendants concede that attempts by an accused to threaten witnesses or prevent them from testifying are admissible against the accused in evidence. 2 J. Wigmore, Evidence §§ 273, 277, 278 (3d ed. 1940); 1 C. Torcia, Wharton's Criminal Evidence § 217 (13th ed. (1972)); Annot., 62 A.L.R. 136 (1929). Defendants claim, however, that in order to be admissible the threats must be linked to Belkner and that there is no evidence to show that Belkner adopted West's threats. We are of the opinion that Belkner's own words could have been found by the court to be threatening to the witness and were admissible as such. See 2 J. Wigmore supra.
At the conclusion of this testimony the court instructed the jury that the conversation was to be considered only in the Belkner case and that it was not evidence against Dunn...
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