State v. Bergeron, 6914
| Decision Date | 28 February 1975 |
| Docket Number | No. 6914,6914 |
| Citation | 115 N.H. 70,333 A.2d 721 |
| Parties | STATE of New Hampshire v. Richard J. BERGERON. |
| Court | New Hampshire Supreme Court |
Warren B. Rudman, Atty. Gen., and Wilfred John Funk, Concord, for the state.
Spaloss & Rosson, Nashua (Loren H. Rosson, Jr., Nashua, orally) for defendant.
Defendant appeals from a jury conviction in superior court of obstructing a police officer and disorderly conduct. RSA 587:8 (repealed November 1, 1973; see RSA 642:2); RSA 570:1 (superseded by RSA 644, November 1, 1973). Keller, C.J., reserved and transferred defendant's exceptions to the denial of his motions to dismiss the charges and to set aside the verdict, and to the overruling of his objections to parts of the court's charge to the jury.
The convictions originate from an incident that occurred September 29, 1972, at Holman Stadium in Nashua. In the course of maintaining order at a rock concert, two police officers arrested a young man for drunk and disorderly conduct. There was evidence that the young man resisted arrest, compelling the officers to subdue him. A hostile crowd of young people including defendant congregated at the scene of the arrest.
Defendant criticized the amount of force employed by the officers in effecting the arrest. When repeatedly ordered by the officers to move from their path, defendant refused to do so with the result that the officers had to brush by him in order to carry the arrested man to a waiting police car. After defendant replied to the fourth request to move, one of the officers arrested him for disorderly conduct. Although the testimony conflicts as to the extent of the scuffle, a struggle ensued between the defendant and the two officers before defendant's arrest was completed.
In district court, defendant was found guilty as charged of disorderly conduct (RSA 570:1), drunkenness (RSA 570:14), assaulting each of the police officers (RSA 587:5) and obstructing a police officer (RSA 587:8). On appeal to superior court the two charges for assault were dismissed on defendant's motion at the close of the evidence; the charge of drunkenness was not prosecuted.
The first two issues in this case are whether the multiplicity of the State's charges prejudiced the defense and whether there was sufficient evidence to support the verdict under RSA 587:8. In addition, defendant questions whether the trial court erred in charging the jury that either assault or obstruction was sufficient for conviction under RSA 587:8 and in failing to instruct the jury as to the lesser included offense of assault.
Defendant contends that the multiple charges of the complaints were so 'duplicitous, confusing and harassing' that he was not informed of the accusations against him with sufficient definiteness to prepare adequately for trial. To support his contention he relies on the facts that five complaints were filed as the result of one incident and that the superior court dismissed two complaints for assault under RSA 587:5 because they 'charged essentially the same thing' as the one for obstruction under RSA 587:8.
The proliferation of statutory offenses in recent years has increased the possibility that a single act may violate more than one statutory provision. Note, 50 Minn.L.Rev. 1102, 1105 (1966); Remington and Joseph, Charging, Convicting and Sentencing the Multiple Criminal Defendant, 1961 Wis.L.Rev. 528, 529. Whether multiple complaints will be drawn under more than one statutory provision for a single act lies within the sound exercise of prosecutorial discretion. ABA Standards Relating to Criminal Justice, The Prosecution Function and The Defense Function § 3.9(e) (Approved Draft, 1971); Remington and Joseph, supra at 530. 'When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.' ALI Model Penal Code § 1.07(1) (Proposed Official Draft, 1962); see 1 L. Orfield, Criminal Procedure Under the Federal Rules § 8.41, at 796 (1966); ABA Standards Relating to Criminal Justice, Joinder and Severance, §§ 1.3 and 3.1 (Approved Draft, 1968); cf. Fed.R.Crim.P. 8(a). Due to the necessarily fragmentary nature of the evidence before him at the charging stage, the prosecutor must have broad discretion in drawing the charges. The trial court has the power to correct any errors that might be made in the exercise of that discretion. ABA Standards Relating to Criminal Justice, The Prosecution Function and The Defense Function, Comment to § 3.9(e) at 98 (Approved Draft, 1971).
On the basis of the record we do not find that the filing of five complaints constituted an abuse of the prosecutor's discretion which prejudiced the defendant. Each of the five complaints was sufficiently specific to inform the defendant of what he had to be prepared to meet at trial. State v. Inselburg, 114 N.H. --, 330 A.2d 457, 459 (1974); State v. Hoyt, 114 N.H. 256, 258, 319 A.2d 286, 287 (1974); State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 696 (1973). The fact that the charges for assault under RSA 587:5 were essentially the same as the one for obstruction under RSA 587:8 was recognized at an early stage by both the defendant and the trial court. That defendant was not confused by the charges is shown by his success in having two of them dismissed. Although 'overcharging' by the prosecutor poses dangers of confusion and harassment, under the circumstances of this case any danger was eliminated in the course of trial in accordance with accepted standards. ABA Standards Relating to Criminal Justice, The Prosecution Function and The Defense Function, Comment to § 3.9(e) at 97-98 (Approved Draft, 1971).
In its instructions to the jury relative to RSA 587:8 (Obstructing an Officer), the trial court charged that the State had to prove 'that the particular defendant assaulted one of the two police officers or that the defendant obstructed one of the two officers.' (Emphasis added.) This charge was in accord with the specific statutory language of RSA 587:8 which provided '(i)f any person shall wilfully assault or obstruct any officer . . . he shall be imprisoned not more than six months, or fined not more than one hundred dollars.' However, since the complaint states that defendant 'did make an assault and...
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