State v. Breest

• Decision Date: 31 May 1978
• Docket Number: No. 78-013,78-013
• Citation: 387 A.2d 643,118 N.H. 416
• Parties: The STATE of New Hampshire v. Robert BREEST.
• Court: New Hampshire Supreme Court

Page 643

387 A.2d 643

118 N.H. 416

The STATE of New Hampshire v. Robert BREEST.

No. 78-013.

Supreme Court of New Hampshire.

May 31, 1978.

David H. Souter, Atty. Gen. (Richard B. Michaud, Concord, attorney, orally), for the State.

Holland & Aivalikles, Nashua (Francis G. Holland, Nashua, orally), for defendant.

BOIS, Justice.

Appeal from the denial of a motion for a new trial. After an evidentiary hearing, the defendant excepted to the findings and rulings of the trial court. All questions of law raised were reserved and transferred by Keller, C. J. We affirm.

This court has previously upheld the 1973 jury-trial conviction of the defendant for murder in the first degree. State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976). On October 3, 1976, the defendant filed a motion for a new trial based on the failure of the State, at the trial, to disclose to the defendant the results of a test of paint chips allegedly performed by an expert for the State. On September 19, 1977, the parties agreed that this motion would be held in abeyance and temporarily resolved by permitting the defendant to depose the expert. The court so ordered.

On October 21, 1976, the defendant filed a motion seeking to depose Sheriff Ronald D. Daniels, Jr., about alleged promises made by the State to David Carita, to induce the witness' testimony at the trial. At a hearing held on September 19, 1977, Sheriff Daniels, called as a witness for the defendant, testified about promises or arrangements made to assure Carita's safety. The motion to take his deposition was waived.

Counsel were permitted to file memoranda, and the court found that "(e)ach memorandum pertains primarily to the defendant's claim that he is entitled to a new trial since the State did not disclose, prior to, or during the trial, certain promises the State had made to Carita to give him a new name after the trial, and the defendant's claim that Carita committed perjury at the trial, to the knowledge of the State, with reference to his testimony as to what promises the State had made to him to induce him to testify." Although this claim was never formally expressed in a pleading, the court construed it as an additional claim under the October 3, 1976, motion for a new trial.

The question presented for our review, phrased by the defendant, is as follows: "Whether since the State failed to disclose special promises made to its key witness in order to induce testimony against the defendant, including promises of a fully documented new name and identity in order to protect the witness from death at the hands of organized crime, due process is violated and judgment must be reversed and a new trial ordered."

Defendant Breest's first contention is that the State violated a specific order of the trial court in failing to provide defense counsel with "any and all evidence at all favorable to the defendant." At least one court has held that the suppression of one of an accomplice's several statements, that corroborated a defendant's version of the events surrounding a murder, deprives the defendant of due process. The court so holding noted specifically that the statement had been requested, that it was "material," and that it might have affected the outcome of the trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the present case, however, specific information was not requested by the defendant and withheld by the prosecutor, but rather a request was made for "any and all exculpatory evidence."

The trial court found that the State did not disclose to the defendant that it had promised the witness, as an inducement to elicit his testimony, that it would furnish him a new name after the trial; that the State did not violate the court order which did not specifically require a disclosure of promises made to witnesses, such as Carita, although it did require disclosure of evidence favorable to the defendant; and that essential fairness did not require disclosure of the promise to give a new name. There is no finding of improper motive on the part of either the witness or the State. An examination of the record does not reveal error, and we hold that the record amply supports the findings entered by the court.

A prosecutor will not be held to have violated his constitutional duty of disclosure unless his omission results in the denial of the defendant's right to a fair trial under the due process clause of the fifth amendment to the United States Constitution. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see N.H.Const. pt. 1, art. 15. The Federal Constitution does not demand that everything that might influence a jury be disclosed, or that there be permitted a complete discovery of all investigatory work or an examination of the State's complete file. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400.

Not every nondisclosure is necessarily error, and a conviction need not be set aside unless a nondisclosure had an influence on the jury. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1940); State v. Dukette, 113 N.H. 472, 309 A.2d 886 (1973); State v. Lemire, 115 N.H. 526, 345 A.2d 906 (1975). Materiality therefore is the key to the problem. The test to be applied is expressed in United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-2402, as follows:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the...