State v. Bertrand, 89-102

• Citation: 587 A.2d 1219,133 N.H. 843
• Decision Date: 08 March 1991
• Docket Number: No. 89-102,89-102
• Parties: The STATE of New Hampshire v. William BERTRAND.
• Court: Supreme Court of New Hampshire

Page 1219

587 A.2d 1219

133 N.H. 843

The STATE of New Hampshire v. William BERTRAND.

No. 89-102.

Supreme Court of New Hampshire.

March 8, 1991.

John P. Arnold, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

THAYER, Justice.

In this prosecution for receiving stolen property, the defendant brings an interlocutory appeal from a declaration of mistrial by the Superior Court (Groff, J.) and the court's denial of the defendant's subsequent motion to dismiss a criminal prosecution against him on the ground of double jeopardy. Two questions of law are presented for our consideration:

A. whether manifest necessity required the granting of the mistrial; and

B. whether the court erred in denying the defendant's motion to dismiss on the ground of double jeopardy.

For the reasons set forth below, we hold that the requisite manifest necessity was not present in this case and that double jeopardy bars further prosecution of this defendant on the original indictments.

On September 9, 1986, relying on information supplied by William Sylvester, an acquaintance of the defendant, the Nashua police seized various pieces of construction equipment at 930 West Hollis Street ("930 W. Hollis") in Nashua, including three air compressors, a backhoe, an earthmover, an arc welder, a bulldozer, and some automobile parts. They subsequently charged the defendant under RSA 637:7 with having received as stolen property two of the air compressors, the backhoe, the earthmover, and the automobile parts.

Prior to the defendant's November 1988 trial on these charges, the superior court granted his motion in limine and ordered the suppression of evidence concerning four items seized by the police but not included in the defendant's indictment: the bulldozer, one of the three air compressors, the arc welder, and an additional backhoe. The court also granted the defendant's pretrial motion to sequester witnesses. During the course of the trial, the State violated the in limine order, was accused of witness tampering in violation of the sequestration order, and failed to disclose exculpatory evidence.

The last of these errors occurred at the end of the day on November 2, 1988, the first day of the three-day trial, when Russell Perkins, the owner of 930 W. Hollis and one of the State's principal witnesses, informed counsel for the State that he knew of two men named "Bill Bertrand," one of whom was the defendant but both of whom were allegedly involved in the case. Perkins apparently had never before expressed to either the State or the defense his belief in the existence of two Bill Bertrands, but the State failed to disclose this information to the defense.

The first of several violations of the suppression order took place on the morning of the second day of trial, when a witness testifying on direct examination for the State mentioned having seen at least one of the suppressed items at 930 W. Hollis. Defense counsel objected, and, following an off-the-record bench conference, the court instructed the jury to disregard this testimony.

The second suppression order violation occurred later that morning, when a Nashua police officer testified that he had seen an "arc welder" during his search of 930 W. Hollis. Defense counsel once again objected and, at the ensuing bench conference, insisted that "the only remedy" was a motion to dismiss. The court denied this motion and asked defense counsel to choose between a second curative instruction or silence on the part of the court, telling the defendant that he could choose the latter if he felt that a second instruction would make matters worse for himself. Defense counsel replied that "a motion to strike is not sufficient in this case. I am going to leave it at that." Counsel for the State then interjected that the police officer's testimony had not been prejudicial to the defendant because there was no suggestion by the State that the arc welder had been stolen. The court sustained the defendant's objection, but, in accord with the State's reasoning, denied his motion to dismiss and once again instructed the jury to disregard the testimony at issue. During this bench conference, the court also admonished the State to refrain from introducing any further evidence concerning the suppressed items.

A third suppression order violation followed immediately after the second curative instruction, when the same police officer testified that he had seen three air compressors at 930 W. Hollis. The defendant objected on the ground that only two air compressors had been included in the defendant's indictments, the third having been suppressed by the court's order on the motion in limine. At the subsequent chambers conference, defense counsel argued that, as the jury had previously heard testimony regarding the two air compressors included in the indictments, a further curative instruction would serve only to unfairly prejudice the defendant's case by arousing the jurors' suspicions either that he had received stolen property for which he had not been charged or that he was attempting to hide something from them. Defense counsel concluded that, therefore, a "motion to dismiss would be an appropriate remedy." The State, however, continued to insist that the third suppression order violation had not prejudiced the defendant. The State reasoned that the mere reference to an irrelevant object did not suggest that the defendant stole the object and that, because the State had not brought an indictment, it actually suggested the opposite. The court then noted that if it were to end the trial on the basis of the defendant's objection, a mistrial rather than a dismissal would be the appropriate remedy and asked defense counsel whether he had intended to move for a mistrial as part of his motion to dismiss. Defense counsel did not directly answer the court's query, replying only that "the [cumulative] effect of [the wrongly introduced testimony] has made it unlikely that there will be a fair determination by the jury." The court then ruled that as no prosecutorial misconduct necessitating dismissal had occurred, and as the defendant had not been prejudiced to an extent warranting a mistrial declaration, the trial would resume. The court once again warned counsel for the State not to violate the suppression order.

That same morning, the State called one of its principal witnesses, William Sylvester, in an attempt to link the allegedly stolen items to the defendant. Sylvester testified that he was a friend of the defendant and that he believed certain construction equipment at 930 W. Hollis belonged to the defendant. Some question apparently existed, however, as to Sylvester's credibility, owing to his own admissions at trial that he had previously been convicted for theft and for selling drugs, that he had "memory problems," and that he had lied on past occasions. There is some indication in the record, in fact, that Sylvester's lack of credibility amused the jurors to a point where they had to suppress laughter.

Apparently during the court's afternoon recess, following Sylvester's testimony, defense counsel inadvertently learned for the first time of the information Russell Perkins had provided the State the day before. Defense counsel became aware of this information after one of the State's witnesses, police Lieutenant James D. Brackett, was overheard in the courthouse yelling at Perkins that he would be in "big trouble" if he testified to the existence of two Bill Bertrands. The court subsequently conducted a voir dire of Perkins in chambers, during which Perkins confirmed the threat by Lt. Brackett but also assured the court that he would nonetheless testify to the truth at trial.

Following the voir dire, Perkins testified in open court on direct examination that none of the construction equipment at issue belonged to him, that he had known the defendant for several years, and that he had rented storage space at 930 W. Hollis to several people, including the defendant. He further testified that the defendant had not rented this space on his own but had done so in conjunction with another individual, also named Bill Bertrand, and that it had been the latter Bertrand who had actually paid Perkins to rent the space. On cross-examination, Perkins testified that, prior to taking the stand, he had been threatened by Lt. Brackett not to testify to the existence of two Bill Bertrands and that he had turned over to the police a business card that the second Bill Bertrand had given him. The State, however, did not produce this card at trial and later told the court that the investigating police officers were unaware of its existence.

Also during the course of Perkins' testimony, two more violations of the court's suppression order apparently occurred. On direct examination by the State, Perkins said that there had been a "bulldozer," one of the suppressed items, on his property. Defense counsel discussed the matter with the court in an off-the-record bench conference, but the court took no action at that time in response to this discussion. (The court later ruled that the testimony probably had not been prejudicial to the defense and that a curative instruction was unnecessary as it would do more harm than good to its case.) On cross-examination, Perkins again mentioned the bulldozer, but defense counsel did not object to the admission of this testimony.

At a chambers conference following Perkins' testimony, defense counsel claimed that the State's failure to disclose Perkins' statements constituted improper conduct necessitating dismissal of the charges. In particular, defense counsel pointed out that because he became aware of these statements only after Sylvester had testified, he had lost the opportunity to make use of them in cross-examining this principal State witness. The...