State v. Breest, 6783

Citation367 A.2d 1320,116 N.H. 734
Decision Date17 December 1976
Docket NumberNo. 6783,6783
PartiesSTATE of New Hampshire v. Robert G. BREEST.
CourtSupreme Court of New Hampshire

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

Richard W. Leonard, Nashua, Jon A. Asgeirsson, Boston, Mass. and Paul C. Semple, Concord (Mr. Semple orally), for defendant.

Robert G. Breest, pro se.

LAMPRON, Justice.

Indictment under RSA 585:1 (now RSA 630:1-a) for murder in the first degree of Susan Randall on February 28, 1971, at Concord. Trial by jury before Keller, C. J., resulted in a verdict of guilty. Defendant's exceptions to rulings of the court before, during and after the trial were reserved and transferred. The constitutionality of RSA 607:41-b to d (Laws 1972, 22:2), now RSA 651:45-b to d has been transferred without a ruling.

I. MOTIONS FOR DISMISSAL AND FOR DIRECTED VERDICT

The State presented the following evidence. During the afternoon of March 2, 1971, an employee of the State highway department while repairing a bridge over the Merrimack River on Interstate Route 93 just north of Concord saw a body lying on the ice below. It was resting face down, clothed from the waist up only. A coat was also observed on the ice in the general area of the body. A State trooper who recovered the body testified that the deceased was 20 to 25 feet away from the bridge. The body was identified as that of 19-year-old Susan Randall of Manchester who had been reported missing since the previous Saturday night, February 27, 1971. Items recovered from the scene were identified by her mother as belonging to Susan.

An autopsy was performed in the evening of March 2 by Doctor George C. Katsas, a board certified forensic pathologist. He described the exterior of the body as a virtual sea of bruises which had been received as a result of multiple trauma. The facial and neck area was covered with abrasions, contusions and lacerations. There were two distinct lacerations above and below the left eye, constriction of the neck, a severe wound inside the lip, and multiple bruises about the chest and back.

The internal examination by Dr. Katsas revealed that the body had suffered massive injuries to the vital organs. There was injury to the surface of the brain, compression of the chest with fracture of the sternum, severe bruising of the lungs the liver was almost split in two, and there were also multiple ruptures of the duodenum. Dr. Katsas also testified that the abdominal injuries to the liver and duodenum were relatively 'rare' and are most often caused by kicking in the abdominal area. In his opinion, death was caused 'as a result of multiple, blunt injuries with ruptures of the liver and fracture of the skull.' While some of the injuries could have been caused by falling from a bridge onto the ice below, Dr. Katsas testified that in light of the extensive covering of the body with injuries and the injuries to the abdomen it was his opinion that they were inflicted on the victim by a terrible beating.

The doctor testified that Susan had been killed 'within a few hours after her last meal'. There was evidence that this took place in the late evening of February 27. What turned out to be Susan's body had been observed on the ice where it was found by a witness riding in a bus at about 7:30 A.M., February 28, 1971. The doctor gave as his opinion at the end of the autopsy 'that the appearance of the clothing, the partially undressed body thrown over the bridge, or found on the ice beneath the bridge together with multiple injuries indicated in multiple parts . . . on the body, . . . indicate a sexual angle.'

Susan Randall who graduated from West High School in Manchester in 1970, had two jobs at this time hoping to save enough money to attend a fashion design school. On the Saturday evening of February 27, 1971, Susan had invited a friend, Judy Jenkins, to visit her new apartment on Manchester Street in Manchester. Judy arrived at about 9:30 P.M. The two visited for a time and then decided to walk to a nearby pizza restaurant for a snack and made plans to attend an auction the next day. Susan was dressed in blue jeans, a sweater, and a hip-length brown fur coat and wore a brown floppy hat. They left the restaurant between 11:30 and 11:45 P.M. and walked south on Elm Street to Granite Street, then westerly, toward Granite Square. Having gone through the Square, the two girls headed south on Main Street to the Squog Fruit Store where Judy was to meet her father for a ride home. They arrived there at about the time of the store's midnight closing. Judy remained at the store and Susan walked back north on Main Street toward Granite Street.

A witness testified that shortly after midnight that evening she drove through Granite Square and observed a young girl hitchhiking in an easterly direction in front of the Chicken House Restaurant. The girl was wearing 'a floppy hat . . . and dark coat and slacks.' This restaurant is located in the Granite Square area just around the corner from the Squog Fruit Store. On her way back home at approximately 12:30 A.M. this witness drove past the same location and the girl who had been hitchhiking was gone.

At about that time four people were sitting in the Chicken House Restaurant and saw a girl hitchhiking a ride east on Granite Street. One of them described the girl as wearing 'a floppy hat, brown hat, and a fur coat down to her knees. And I don't remember if she had blue jeans or dungarees or black slacks or blue. But she had a pair of dark pants on.' While watching the girl these people saw a white car with blue interior upholstery come by, stop, and this girl enter the vehicle. This car was driven by a 'big man, I'd say around six feet tall, very broad shoulders, a big head for a man his size.' At the trial one of these witnesses described the driver as having a 'build consistent with that of the defendant.'

Several witnesses placed the defendant Breest in the Granite Square area on the night of February 27 and the early morning hours of February 28. At about 5:30 or 6:00 P.M. on the 27th at the Haggett (Longval) residence located near Granite Square he enlisted the help of two young men to assist him move furniture from his former apartment in Manchester to his residence in Lowell, Massachusetts. It could be found that he left the back seat of his white 1964 Ford with blue upholstery at the Haggett house. After loading the car the defendant dropped off his helpers and headed out of Manchester. Breest arrived at his Lowell residence at about 10:30 P.M. He asked one Morel, an occupant of the building, to help take in the larger pieces of furniture. Morel noticed that the back seat in Breest's car was missing. The defendant told him he was returning to Manchester to get more furniture. Morel saw Breest leave again after 11:00 P.M. driving toward the road to New Hampshire but did not see him come back. Morel saw the Breest car parked in the street the next day and noticed that the back seat was in the car.

There was evidence that Breest returned to the Haggett residence at approximately 11:45 P.M. that same evening of February 27. After he talked to her son, Mrs. Haggett asked Breest to leave. She watched his departure from a window in her apartment overlooking her driveway where Breest's white car was parked. She observed him retrieve something from her porch and throw it in the back of his car. Mrs. Haggett testified that she saw the defendant drive away at about 12:10 A.M. February 28 in the direction of Granite Square.

A search warrant was obtained on April 2, 1971, and certain fibers and paint chips were removed from defendant's car. These were examined under a microscope by Roger Beaudoin of the New Hampshire State Police Crime Laboratory and he submitted certain samples to Charles Michael Hoffman of the laboratory of the Alcohol, Tobacco and Firearms Bureau of the United States Treasury Department for neutron activation analysis. Mr. Hoffman, a forensic chemist, after so analyzing these samples gave as his expert opinion that Susan Randall's coat had been in contact with the Breest automobile in the area from where debris was removed from the defendant's car which produced these samples. Roger Beaudoin as an expert in criminalistics gave as his opinion that there was a 'high degree of probability' that 'we have had a contact between this (Susan's) clothing and that (Breest's) car.'

David Carita who had been incarcerated with the defendant while Breest was contesting extradition to New Hampshire testified that to Carita's inquiry as to whether Breest had killed 'Susan' he responded 'Yes I did.' They also discussed other details about this matter according to Carita's testimony. Captain Doyon, now colonel, of the State police testified that in an interview with the defendant on March 15, 1971, Breest admitted having been in Manchester in the early evening of February 27 but denied returning later.

The defense presented two expert witnesses who disputed the conclusions of Hoffman as well as his methods of analysis. It also presented a series of witnesses who testified they saw automobiles stopped off the highway in the area of the Merrimack River bridge in question on the night and morning of February 27 and 28, 1971.

On motions for dismissal and for a directed verdict for the defendant, the evidence must be construed most favorably to the State. State v. Booton, 114 N.H. 750, 762, 329 A.2d 376, 385 (1974), cert. denied,421 U.S. 919, 95 S.Ct. 1584, 43 L.Ed.2d 787 (1975). We hold that on the evidence before it, viewed in its entirety, the jury could find that the defendant was guilty beyond a reasonable doubt of the crime with which he was charged. State v. Reed, 114 N.H. 377, 379-80, 321 A.2d 581, 583 (1974); State v. Gilbert, 115 N.H. 665, 668, 348 A.2d 713, 717 (1975).

II. DENIAL OF DEFENDANT'S MOTION TO...

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