State v. Berger, 82-141

• Decision Date: 22 June 1984
• Docket Number: No. 82-141,82-141
• Citation: 480 A.2d 27,125 N.H. 83
• Parties: The STATE of New Hampshire v. Bruce BERGER.
• Court: New Hampshire Supreme Court

Page 27

480 A.2d 27

125 N.H. 83

The STATE of New Hampshire v. Bruce BERGER.

No. 82-141.

Supreme Court of New Hampshire.

June 22, 1984.

Gregory H. Smith, Atty. Gen. (Peter W. Mosseau, Asst. Atty. Gen., on the brief, and Edna M. Conway, Concord, attorney, orally), for the State.

James E. Duggan, Appellate Defender, and Joanne S. Green, Asst. Appellate Defender, orally, Concord, for defendant.

KING, Chief Justice.

The defendant Bruce Berger appeals his conviction by a jury in Superior Court (Flynn, J.) of selling marijuana. RSA 318-B:2, I (Supp.1981). Issues concerning the following matters are presented: (1) construction of the term "sale" in the New Hampshire Controlled Drug Act, RSA chapter 318-B; (2) request for mistrial resulting from possible prosecutorial error; (3) violation of the rule of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980), and of the right to speedy trial; and (4) disclosure of the confidential informant's identity. For the reasons that follow, we affirm.

Gary Bashaw, an undercover agent for the State Police, testified that on December 2, 1980, the defendant entered the Nashua apartment of Wayne Morrow carrying a box. Bashaw said that the defendant then proceeded directly to a couch where Bashaw and Morrow sat and placed the box between them. According to Bashaw, the defendant instructed Morrow to open the box. Morrow opened the box and told Bashaw to take four one-ounce plastic bags of marijuana out of the box. Bashaw selected the bags, gave Morrow $100 for the alleged marijuana, placed the bags into a paper bag and left the apartment.

Bashaw further testified that on the same day he purchased the alleged marijuana, he brought the plastic bags to the New Hampshire State Police Crime Laboratory for a chemical analysis. Nine days later, on December 11, 1980, one of the four bags was analyzed by the State Police and determined to contain marijuana.

On March 27, 1981, the defendant was arrested for selling marijuana to Bashaw. Thereafter, on June 2, 1981, the defendant was indicted for purposely selling marijuana in violation of RSA chapter 318-B, the Controlled Drug Act. The trial on this indictment commenced in the superior court on January 21, 1982.

We turn to the first issue raised by the defendant. The defendant argues that his act of delivering marijuana to a "seller" does not constitute a "sale" as that term is used in RSA chapter 318-B. Accordingly, he maintains that since the State's evidence that he engaged in a sale of drugs was insufficient as a matter of law, his motion for a directed verdict of acquittal should have been granted by the trial court. We disagree.

RSA 318-B:2, I (Supp.1981) states, in pertinent part, that "[i]t shall be unlawful for any person to ... sell ... or possess with intent to sell ... any controlled drug ...." RSA 318-B:26, I (a) (Supp.1981) provides, in part, that any unauthorized person who "sells" a "(2) [c]ontrolled drug other than a narcotic drug shall be guilty of a class A felony if a natural person ...." The term "sale" is defined as a "barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee." RSA 318-B:1, XXX (Supp.1981).

In view of the legislative intent of the Controlled Drug Act "to cope with the drug problem existing today," N.H.S.Jour. 1210 (1969), we have interpreted the meaning of the word "sale," as defined by the act, to be much broader in scope than that given to it in other commercial transactions: i.e., "the passing of title from a seller to a buyer for a price." RSA 382-A:2-106(1); see State v. Stone, 114 N.H. 114, 116, 316 A.2d 196, 197 (1974). This court has construed the act to reach the "transfer or distribution" of drugs. Id. We have specifically defined sale to include a "gift or offer," id. at 116-17, 316 A.2d at 197, and applied the definition to "any agent involved with no restriction that he must be acting for the seller and not the buyer." Id. at 117, 316 A.2d at 197; see State v. Pelillo, 117 N.H. 674, 675, 377 A.2d 615, 616 (1977) (RSA chapter 318-B "makes the transfer [of a controlled drug] in any capacity illegal").

For purposes of the case at bar, we must interpret the words "sell" or "sale" to "carry out, not defeat, the manifest objective sought by the statute, the regulation of controlled drugs in all its aspects." State v. Stone, supra 114 N.H. at 117, 316 A.2d at 197; see State v. Dunphy, 114 N.H. 740, 743, 328 A.2d 787, 789 (1974) ("in interpreting RSA 318-B:26 it must be approached as part of a totality and viewed in terms of what it was enacted to accomplish"). Consonant with this approach to statutory construction, we will not confine the scope of our analysis to a strictly literal interpretation of the terms "sell" or "sale" if such a construction would thwart enforcement of the broad purpose of the act. See id.

Here, the defendant personally delivered the marijuana to the buyer and the seller. The defendant then instructed the seller to open the box containing the marijuana. Indeed, the defendant's conduct as deliveryman was such an essential part of the illegal transaction that the sale would not have occurred but for his participation. Trooper Bashaw testified that: "Bruce Berger delivered the drugs, without which the deal could never have been consummated." Moreover, according to Bashaw's testimony, the entire illegal drug transaction was accomplished in the presence of the defendant.

It is our opinion that the Controlled Drug Act in view of its broad legislative purpose indicates that the actions of a defendant who delivers a controlled drug to the seller and purchaser, instructs the seller to open the box containing the illegal drug, and then remains to view the entire illegal drug transaction, constitute a sale within the scope of RSA chapter 318-B. Accordingly, we hold, based upon the circumstances of this case, that the evidence was sufficient to establish that the defendant purposely sold marijuana as proscribed by RSA 318-B:2, I (Supp.1981).

Second, the defendant argues that the trial court incorrectly denied his motion for a mistrial. The defendant's motion was predicated on his claim that he was irreparably prejudiced by the prosecutor's display to the jury of four one-ounce plastic bags purporting to contain marijuana, and by the prosecutor's attempt to introduce the bags into evidence. The defendant alleges that the prosecutor moved the bags into evidence, over the defendant's objection, with the knowledge that the necessary foundation had only been laid for admission of one of the bags. The record indicates that the New Hampshire State Police Crime Laboratory had performed a chemical analysis of the contents of only one of the bags. The analysis determined that the bag contained marijuana.

The State's expert witness, Trooper John Ellsworth of the State Police crime laboratory, displayed the three bags which were not chemically analyzed during his testimony describing his examination of the one bag identified as containing marijuana. The transcript reads:

"[T]hese are the other bags that were submitted with this exhibit by Trooper Bashaw and each one of these bags also has Trooper Bashaw's initials on the bag to show--right here to show that these are the bags that were submitted with this particular drug case."

A colloquy between the county attorney and Trooper Ellsworth followed:

"Q: And you subjected the contents of bag number one to the test that you described?

A: Yes, sir, this one here.

Q: And did not subject the other three bags?

A: No, I didn't."

The State then moved, over the objection of the defendant, that the paper bag containing all four one-ounce plastic bags be marked as an exhibit. The paper bag was marked for identification by the trial court. The three plastic bags in question were never admitted into evidence.

In response to the defendant's motion for a mistrial, the trial court conducted a general voir dire of the jury to determine whether the members of the jury could "completely disregard" the three bags which were not proven to contain marijuana. The trial court ascertained that the jury would not be prejudiced by the display of the three bags in question and, accordingly, denied the defendant's motion. The defendant's exception was noted.

In his jury charge, the trial judge instructed the jury to disregard the three bags at issue:

"... I spoke to you about the testimony of the State regarding these four plastic bags of marijuana and indicated that the State has only proven through the laboratory tests that were made that only one bag contained marijuana. You are not to speculate as to what is in the other three bags, and if the State's testimony implied that the other bags contained marijuana you must disregard any such implication and not draw any inference from that."

We are not convinced, as a matter of law, that the three bags in question, together with the one bag proven to contain marijuana, could not have been admitted into evidence on the basis of Bashaw's testimony that he indeed purchased four one-ounce plastic bags of vegetative matter from Morrow. Thus, we are unwilling to concede the defendant's position that prosecutorial error was committed by the State's display of relevant evidence to the jury, the probative value of which may well have outweighed the danger of unfair prejudice. However, even assuming, arguendo, the existence of prosecutorial error, for the reasons that follow we believe that the trial court's remedial efforts relieved the error of its prejudicial impact.

The trial court's general voir dire of the jury in this case, together with the court's curative jury instructions, were designed to remedy possible prosecutorial error which might have prejudiced the defendant, State v. Radziewicz, 122 N.H. 205, 213, 443 A.2d 142, 147 (1982), and have led ultimately to an unjust verdict. State v. Booton, 114 N.H. 750,...