State v. Booton

• Decision Date: 28 February 1974
• Docket Number: No. 6819,O,6819
• Citation: 317 A.2d 18,114 N.H. 152
• Parties: STATE of New Hampshire v. Frances BOOTON. riginal.
• Court: New Hampshire Supreme Court

Page 18

317 A.2d 18

114 N.H. 152

STATE of New Hampshire v. Frances BOOTON.

No. 6819, Original.

Supreme Court of New Hampshire.

Feb. 28, 1974.

Warren B. Rudman, Atty. Gen., and Thomas D. Rath, Concord (Mr. Rath, orally), for the State.

Barrett & McNeill, John T. Barrett, Durham, for defendant.

PER CURIAM.

The sole issue in this case is whether the trial court abused its discretion in denying the defendant's motion for stay of sentence and for bail after conviction pending appeal. After a trial by jury on an indictment of second-degree murder, the defendant was convicted of the lesser included offense of first-degree manslaughter for killing her husband with a deadly weapon. RSA 585:8. The Trial Court, Dunfey, J., sentenced the defendant to eight to twenty years in State prison and, on the grounds that she had been convicted by jury of a serious crime, denied her motion for stay of sentence and for bail pending appeal. It also indicated that its denial was motivated by a concern for protecting the defendant from previously demonstrated suicidal tendencies. The defendant's exception thereto was reserved and transferred by the court.

Although there is no statutory right to bail after conviction pending appeal in this State, we have recognized that such matters are within the discretion of the trial court. Petition of Streeter, 112 N.H. 305, 306, 294 A.2d 385 (1972); see RSA 597:1 (Supp.1973). Its exercise of discretion will be overturned by this court only on evidence of a compelling nature. State v. Hutton, 107 N.H. 426, 428, 223 A.2d 416, 417 (1966). In determining whether this discretion has been abused, we have referred to the American Bar Association's Standards for Criminal Justice for general guidance. Petition of Streeter, 112 N.H. 305, 306-307, 294 A.2d 385, 386 (1972); see 18 U.S.C.A. § 3148 (Supp.1973); Note: Preventive Detention: An Empirical Analysis, 6 Harv.Civ.Rights L.Rev. 289 (1971). The Standards Relating to Criminal Appeals § 2.5 (Approved Draft, 1970) represents a laudable effort to set forth an analytical structure to assess whether bail should be granted in the post-conviction context. See K. Davis, Discretionary Justice 133-41 (1972). The primary purpose of this section is to encourage the release of a defendant pending completion of the appeal where there is an assurance that he will appear to answer judgment. See D. Freed & P. Wald, Bail in the United States 8 (1964). If a trial court has such assurance, it should grant bail unless there is clear and substantial evidence that the defendant is likely to engage in serious misconduct. Standards Relating to Criminal Appeals § 2.5, Comment b. (Approved Draft, 1970); see Harris v. United States, 404 U.S. 1232, 1235-1236, 92 S.Ct. 10, 13-14, 30 L.Ed.2d 25, 28-29 (1971); Banks v. United States, 134 App.D.C. 254, 414 F.2d 1150 (1969); Annot., 30 L.Ed. 952 §§ 7, 9, 10 (1973); cf. In re Underwood, 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721 (1973).

The defendant contends that the trial court abused its discretion in failing to base its denial of the motion for stay of sentence and for bail pending appeal on the standards expressed in § 2.5. First, the defendant draws attention to the fact that there is no substantial risk that the appellant will not appear to answer judgment because she appeared on all previous occasions while on bail. She also points to employment and residence ties in this State which would increase the probability of her staying. Second, the defendant argues that it is unlikely that she will commit a serious crime or interfere with the administration of justice because she had been convicted...