State v. Blake

• Citation: 305 A.2d 300,113 N.H. 115
• Decision Date: 29 March 1973
• Docket Number: No. 6411,6411
• Parties: STATE v. Clyde BLAKE, Sr.
• Court: New Hampshire Supreme Court

Page 300

305 A.2d 300

113 N.H. 115

STATE v. Clyde BLAKE, Sr.

No. 6411.

Supreme Court of New Hampshire.

March 29, 1973.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for defendant.

GRIMES, Justice.

After a trial by jury, the defendant was found guilty of attempted statutory rape and of attempted incest with his eleven-year-old granddaughter. The cases were tried with similar indictments involving another grandchild which were withdrawn before submission to the jury. The trial court sentenced the defendant to State prison for not more than ten years nor less than six years on his conviction of attempted statutory rape. The conviction for attempted incest was continued for sentence. During the course of a habeas corpus hearing and at the trial, defendant seasonably excepted to the denial of numerous motions. All exceptions of record were reserved and transferred by Johnson, J.

The defendant raises eleven separate issues in this appeal. We leave the discussion of the relevant facts to our resolution of these issues.

Defendant first contends that the trial court violated his right to a public trial by excluding the defendant's witnesses from the courtroom during the alleged victims' testimony. The prosecution moved for the exclusion of the general public and the sequestration of all witnesses from the trial except for the mothers of the alleged victims during the alleged victims' testimony. The defendant agreed to the exclusion of the general public and made no objection to the presence of the alleged victims' mothers, but objected to the sequestration of four defense witnesses, all of whom were defendant's relatives. The prosecution presented three reasons for the sequestration of the defendant's witnesses: (1) Defendant's witnesses' testimony could be colored by the alleged victims' testimony; (2) The embarrassing subject matter of the testimony; (3) Since other members of the defendant's family had pressured the victims not to testify, the presence of these members of the family could potentially intimidate the victims. The defendant objected to the sequestration of his four witnessrelatives and now argues that since all the defendant's friendly relatives were thereby excluded from the trial, the defendant was denied a public trial in violation of the sixth amendment to the United States Constitution.

Although it has been said that New Hampshire's constitution, statutes, and case law fail to guarantee the right to a public trial (see In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948)), the United States Supreme Court has held the right to a public trial applicable to the states. Duncan v. Louisiana, 391 U.S. 145 148, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491, 495 (1968); see Annot., 23 L.Ed.2d 985, 989 (1970). The right to public trial ordinarily entitles the defendant to have his friends and relatives present during trial. In re Oliver, supra; see Annot., 48 A.L.R.2d 1436 (1956). But counsel for the defendant agreed to the exclusion of all people with the exception of his four witness-relatives, and thereby voluntarily waived defendant's right to a full public trial with regard to all people except his witnesses. United States v. Sorrentino, 175 F.2d 721, (3d Cir. 1949); Annot., 48 A.L.R.2d 1436 (1956).

Federal standards govern the effective waiver of a federal constitutional right in a state criminal proceeding. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although the defendant did not personally waive his right to public trial, we believe that the circumstances of this partial waiver by counsel for the defendant are not exceptional enough to prevent counsel from waiving defendant's constitutional rights. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); see Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).

Since the only people excluded over defendant's objections were defendant's witnesses, the trial court's discretionary power to sequester witnesses weighs against the remainder of the right to public trial not already waived by defendant. The trial court may within its discretion exclude witnesses from the courtroom while testimony is given. Cf. State v. Peters, 90 N.H. 438, 10 A.2d 242 (1939); 53 Am.Jur. Trial Section 31 (1945); 3 Wharton, Criminal Evidence § 840 (12th ed. R. A. Anderson 1955). The trial court's discretion controls the demand of any party to exempt any specific witness from exclusion. 6 Wigmore, Evidence § 1841 (3d ed. 1940).

We rule that the record shows the trial court had sufficient discretionary grounds to exclude defendant's witnesses in that there was both a possibility of intimidating a child witness and of a subsequent coloring of the sequestered witnesses' testimony. See 6 Wigmore, supra § 1838. A voluntary partial waiver does not deprive the trial court of its discretionary power to sequester witnesses.

The second issue raised by defendant is that the grand jury indictments should have been dismissed because they were based solely on hearsay evidence consisting of a police report, four written statements by the complainants and their mothers, and the testimony of one police officer.

The United States Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), held that an indictment cannot be challenged on the ground that only hearsay evidence was presented to the grand jury. The Supreme Court has gone even further to indicate that evidence presented to a grand jury that was obtained in derogation of defendants' fifth amendment rights would not provide a basis to vitiate an indictment. United States v. Blue, 384 U.S. 251, 255 n. 3, 86 S.Ct. 1416, 1419 n. 3, 16 L.Ed.2d 510, 514 n. 3 (1966). Nor would the use of the testimony of an incompetent witness. State v. Walsh, 76 N.H. 581, 84 A. 42 (1912).

Under the common law, the workings of grand juries were not hampered by evidentiary rules. Costello v. United States supra. In New Hampshire, the grand jury's 'common law powers are not restricted'. Powell v. Pappagianis, 108 N.H. 523, 524, 238 A.2d 733, 734 (1968). We see no reason to question this policy of our law.

Defendant's third contention is that the trial court either failed to exercise or abused its discretion by admitting into evidence, on the issue of credibility, the prior criminal records of the defendant and his witness. We recently analyzed and upheld such use of a defendant's prior convictions more remote in time than any of the convictions mentioned in this case. State v. Cote, 108 N.H. 290, 235 A.2d 111 (1967). The record here shows that defense counsel drew the teeth of the defendant's prior conviction by bringing it out himself and that the trial court gave proper limiting instructions. We find nothing in the record to indicate an abuse of discretion or to change our view enunciated in State v. Cote, supra.

Defendant's fourth argument relates to the denial of a motion for a mistrial on the grounds that witnesses testified to either similar prior crimes or similar improper acts of the defendant, contrary to the instruction of the trial court. The record shows defendant waived this issue by failing to make a timely objection to the State's leading questions and by failing seasonably to move to strike witnesses' answers. 5 Wharton, Criminal Law and Procedure 2046-49 (R. A. Anderson ed. 1957); see State v. Roach, 82 N.H. 189, 131 A. 606 (1926).

Defendant next argued that our attempt statute, RSA 590:5, is unconstitutionally vague. We recently discussed the intention element and the overt act element of attempt in rape cases. State v. Davis, 108 N.H. 158, 229 A.2d 842 (1967). By construing the statute, the court fixed its meaning 'as definitely as if it had been so amended by the legislature'. Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840, 849 (1948). Furthermore, the word attempt has been used with common-law criminal offenses long enough to apprise potential offenders of forbidden conduct. See State v. Thurston, 112 N.H. 288, 293 A.2d 770 (1972). We hold RSA 590:5 not to be unconstitutionally vague for it gives reasonable notice of the prohibited conduct (United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Parker, 109 N.H. 491, 256 A.2d 159 (1969)), sets up an ascertainable standard of guilt (Chronicle & etc., Pub. Co. v. Attorney-General, 94 N.H. 148, 48 A.2d 478 (1946)), and there is no showing that it encourages erratic and arbitrary police action. See Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) and cases cited therein.

The defendant next argues that there can be no conviction on the charge of the attempted offense if the State alleged and offered evidence that defendant actually consummated the offense. We see no good reason to overturn our holding in the rape case of State v. Archer, 54 N.H. 465 (1874), that the prosecution can charge and convict the defendant of the lesser of the two felonies despite evidence of guilt on the greater. Perkins, Criminal Law 552-57 (2d ed. 1969).

Defendant's seventh contention states that the indictments should have been dismissed because the State did not bring the defendant to trial until eight and one-half months from the time of the original charge, thereby denying him his right to a speedy trial.

The record shows that defendant was arrested on March 16, 1971. The next day, defendant had a preliminary examination wherein he waived his right to probable cause hearing and bail was set. He was incarcerated, and on April 16 the court denied his counsel's motion to reduce bail. In May 1971, defendant's counsel submitted a petition for writ of habeas corpus in which he first anticipated the denial of his right to a speedy trial by stating that the Belknap County grand...