State v. Booton, 6863

• Decision Date: 29 November 1974
• Docket Number: No. 6863,6863
• Citation: 329 A.2d 376,114 N.H. 750
• Parties: The STATE of New Hampshire v. Frances BOOTON.
• Court: New Hampshire Supreme Court

Page 376

329 A.2d 376

114 N.H. 750

The STATE of New Hampshire v. Frances BOOTON.

No. 6863.

Supreme Court of New Hampshire.

Nov. 29, 1974.

Warren B. Rudman, Atty. Gen., and Thomas D. Rath, Asst. Atty. Gen., for the State.

Barrett & MacNeill, Durham, and Leppo & Paris, Boston, Mass., and Robert J. Ciolek, Salem, Mass. (Mr. John T. Barrett, Durham, orally), for defendant.

KENISON, Chief Justice.

Frances Booton was tried upon an indictment for murder in the second degree of the husband. Trial by jury with a view of the scene of the crime resulted in a verdict of guilty of the lesser-included offense of manslaughter in the first degree (Nichols v. Vitek, 114 N.H. --, 321 A.2d 570 (1974)) and she was sentenced to a term of not more than twenty nor less than eight years imprisonment. RSA 585:8. In a prior proceeding this court sustained the trial court's denial of defendant's motion for a stay of sentence and for bail after convicion pending appeal. State v. Booton, 114 N.H. 152, 347 A.2d 18 (1974).

The defendant excepted to the denial of several motions for discovery. During the course of trial, she excepted to the granting of a view, to the denial of her motions for mistrial and directed verdict, and to certain parts of the court's charge to the jury. Dunfey, J. reserved and transferred these and other exceptions.

The following facts were established at trial. On November 23, 1972 Candia Police Chief Robert Baker responded to defendant's request for assistance by going to the Booton residence. Upon arrival he was admitted to the house by Mrs. Booton who directed him to the living room where her husband was lying dead on the floor. After being advised of her right to remain silent and to counsel, the defendant related to Chief Baker that she and her husband had been 'fooling aound' with a gun. Each had shot holes in various portions of the house. Deputy Sheriff Robert Farrar of Rockingham County also questioned defendant after once again informing her of his rights. In response to the question as to who had been holding the weapon when Mr. Booton was shot, she replied that 'I must have been holding the gun.'

I. Pretrial Discovery

Of defendant's seventeen motions for pretrial discovery only six were denied by the trial court. Defendant maintains that the denial violated her constitutional rights under the fifth, sixth and fourteenth amendments of the Federal Constitution and article 15 of the State constitution.

Discovery in criminal cases has been increasingly expanded to afford the accused some means of tapping the investigative resources of the state. ABA Project on Stadards for Criminal Justice, Discovery and Procedure Before Trial § 1.2, § 2.1 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-1185 (1960); see Fed.R.Crim.P. 16. But despite the recognition of the relatively disadvantageous position of the criminal defendant, unlimited discovery has never been ensconced as a constitutional right. What is discoverable remains within the discretion of the trial court except where the prosecution has information favorable to the accused's innocence and where a defendant is compelled to divulge information to the State pursuant to a particular statute such as a notice-of-alibi rule. 2 L. Orfield, Criminal Procedure Under the Federal Rules § 16:12 (Supp. 1974); Nakell, The Effect of Due Process on Criminal Defense Discovery, 62 Ky.L.J. 58, 59 (1974); Wardius v. Oregon, 412 U.S. 470, 475-476, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

In accordance with the increasingly expansive view of discovery, the rule in this State is a flexible one allowing the trial court to determine what matters are discoverable. State v. Superior Court, 106 N.H. 228, 230, 208 A.2d 832, 833-834 (1965); Annot., 7 A.L.R.3d 8 (1966). In exercising its discretion the trial court considers defendant's need for the information and the effect disclosure will have on the prosecution. State v. Healy, 106 N.H. 308, 309, 210 A.2d 486, 488 (1965). Under this approach the defendant in this case was afforded a great amount of information. In granting most of her motions for discovery, the trial court afforded defendant access to the scientific and medical reports, allowed her to depose experts and law enforcement officers involved, and permitted her to inspect the physical evidence.

Nevertheless, defendant maintains that it was error for the trial court to deny her motions for a list of witnesses, for grand jury minutes, for a list of witnesses that testified before the grand jury, for particulars, and for exculpatory evidence. There was no error in the denial of these motions. Defendant sought a list of witnesses who would testify at trial six months in advance in order to obtain potentially exculpatory information. Undoubtedly, providing defendant with a list of witnesses prior to trial promotes fairness, adequate preparation and courtroom efficiency. ABA Project on Standards for Criminal Justice; Discovery and Procedure Before Trial § 2.1(a)(i) (Approved Draft 1970). RSA 604:1 (Supp.1973) recognizes the advantages of disclosure by requiring that one who is indicted for a felony 'the punishment of which may be death' is entitled to a list of witnesses twenty-four hours prior to trial. No constitutional mandate necessitating earlier disclosure exists. Nakell, The Effect of Due Process on Criminal Defense Discovery, 62 Ky.L.J. 58, 59 (1974).

Defendant contends that in denying her motions for discovery of grand jury minutes and for a list of witnesses who testified before the grand jury the trial court deprived her of due process. In conformity with the practice in most States the proceedings of the grand jury in this State are secret. Opinion of the Justices, 96 N.H. 530, 73 A.2d 433 (1950). This traditional secrecy has been questioned on the grounds that it would be useful for a defendant to have the minutes and a list of witnesses in preparing his defense. ABA Standards, supra § 2.1(a)(iii); Calkins, Grand Jury Secrecy, 63 Mich.L.Rev. 455 (1955); Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va.L.Rev. Rev. 668 (1962); see Fed.R.Crim. P. 6(e), 16(a)(3). However, whether the grand jury's secrecy will be invaded remains a matter within the trial court's discretion in the federal as well as State courts. 2 L. Orfield, Criminal Rocedure Under the Federal Rules § 16:20 (Supp.1974); Annot., 20 A.L.R.3d 7 (1968). Most State courts do not permit discovery to impinge upon the shroud of secrecy. Id. at 19. In this State the statute permits but does not require that grand jury minutes be transcribed. RSA 600:5. The complete absence of minutes in this case makes the granting of defendant's requests impossible. McKay v. State, 489 P.2d 145, 147-148 (Alaska 1971). Failure to require transcription is not a denial of due process. State v. Levesque, 281 A.2d 570, 572 (Me. 1971).

Defendant also argues that the trial court erred in denying its motions for paticulars since the indictment as not sufficiently specific to enable her to present an adequate defense. And indictment must inform a defendant of the factual basis of the alleged offense with enough specificity so that he can prepare for trial. State v. Hoyt, 114 N.H. 256, 257, 319 A.2d 286, 287 (1974); State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 696 (1973); State v. Strescino, 106 N.H. H. 554, 557, 215 A.2d 706, 708 (1965). In this case, the indictment met this standard by alleging that on a specified date in her home, defendant killed her husband with malice and forethought by shooting him with a .25 caliber semi-automatic pistol.

Defendant made two pretrial motions pertaining to the disclosure of exculpatory evidence by the prosecution. Her motion for evidence favorable to the accused was denied since the county attorney had already furnished the information. Defendant's second motion was granted as to exculpatory evidence but denied as to impeaching evidence. Defendant contends that these two motions should have been allowed in all respects as to all potential witnesses so that she could defend the charge adequately. Although the prosecutor has a constitutional duty to produce evidence favorable to the accused, he need not provide her with all the evidence which she requests. State v. Dukette, 113 N.H. 472, 477, 309 A.2d 886, 889 (1973); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The test where evidence favorable to the defense has been withheld is whether the evidence has a reasonable likelihood of affecting the judgment of the jury. Id. In this case the prosecution carried its burden by giving the defendant exculpatory information available to it. There was no showing that additional favorable information was withheld, but rather a mere allegation that the prosecution might have information potentially useful for impeachment. Since defendant's request went beyond the Dukette standard, the trial court correctly denied it.

Defendant's final contention pertaining to discovery is that the prosecutor engaged in an unfair and deceptive practice by failing to comply with the court's orders that defendant be furnished with copies of statements made by her and that she be allowed to inspect the statements of witnesses. In particular she objected to the fact that she had not been given statements obtained by the Candia Chief of Police concerning the nature of her marital relationship with the deceased. The prosecutor claimed that these statements were a product of the continuing course of investigation and, thus, came to his attention only three or four days prior to their introduction at trial. As a result he failed to comply with the court's ealier order. The trial court, however, found no deceit in the prosecutor's failure to comply and according to the statement of defendant's counsel at trial, the motions sought vital statements of the defendant and of the...