State v. Brooks

• Decision Date: 17 June 1985
• Docket Number: No. 84-307,84-307
• Citation: 495 A.2d 1258,126 N.H. 618
• Parties: The STATE of New Hampshire v. Gary F. BROOKS.
• Court: New Hampshire Supreme Court

Page 1258

495 A.2d 1258

126 N.H. 618

The STATE of New Hampshire v. Gary F. BROOKS.

No. 84-307.

Supreme Court of New Hampshire.

June 17, 1985.

Stephen E. Merrill, Atty. Gen. (Donald J. Perrault, Asst. Atty. Gen., on the brief, and Gregory Swope, Asst. Atty. Gen., orally), for the State.

Jeffco, May & Smart, Portsmouth (Dennis M. May, Portsmouth, on the brief and orally), for defendant.

KING, Chief Justice.

The defendant, Gary Brooks, was tried in the Superior Court (Nadeau, J.) on charges of arson and witness tampering. At the conclusion of the State's case in chief, the trial court granted the defendant's motion for a directed verdict on the witness tampering charge. After trial, the jury found the defendant guilty of arson, RSA 634:1, and the defendant appeals that conviction. We affirm.

The arson charge arose as a result of a fire at Do's Restaurant, in Rochester, on October 10, 1983, at approximately 2:30 in the morning. During the trial, testimony by Brian Colwell, the defendant's accomplice, related that the defendant and several of the defendant's acquaintances, including Colwell, went to Do's Restaurant on the evening of October 9, 1983. While they were at the restaurant, the defendant told Colwell that he was planning to set fire to the restaurant. Colwell and the defendant then went outside to discuss the plan and to view the sites for starting the fire. Following those conversations, Colwell and the defendant obtained rags, gasoline and gallon bottles. They took these ingredients to a park located in East Rochester where they assembled what are known as "molotov cocktails." Colwell drove the defendant to a point along Salmon Falls Road, approximately one mile from Do's Restaurant, where he left the defendant with the bottles filled with gasoline and corked with rags. Then Colwell drove away.

At approximately 2:30 in the morning on October 10, 1983, the patrons and employees of Do's Restaurant heard a crash in the closed lounge section and discovered that the lounge of the restaurant was engulfed in flames. At that point Leo Bernier, one of the patrons, who had exited through the rear door, observed an additional fire burning outside. He also saw a liquor bottle filled with liquid land at his feet. The bottle was thrown by a person wearing a denim jacket whom Leo Bernier saw fleeing from the scene.

Later that morning, while riding in a police cruiser, Leo Bernier recognized the defendant hitchhiking along the road and identified him as the same man he had seen running from the rear of Do's Restaurant after the fire had started. The defendant was immediately arrested and taken to the Rochester police station. The police officers at the police station smelled an odor of kerosene emanating from the defendant's denim jacket. The jacket was appropriated by the police and held for chemical analysis by the State crime laboratory.

On appeal the defendant questions six of the trial court's evidentiary rulings. Specifically the defendant claims that the following actions were erroneous: (1) the admission of testimony by the police concerning the smell of kerosene on the defendant's denim jacket; (2) the exclusion of Mrs. Colwell's testimony concerning prior inconsistent statements by her son, the defendant's accomplice; (3) permitting the State to recall a police officer as a witness to identify various items of physical evidence; (4) the admission into evidence of a denim jacket and a Wolfshmidt vodka bottle containing a gasoline/kerosene mixture; (5) allowing the State to introduce the defendant's prior conviction on cross-examination; and (6) the exclusion of testimony by the defendant's witnesses concerning prior inconsistent statements by the State's witnesses Leo Bernier and Charles Chamberlain.

The defendant moved for a mistrial following the admission of testimony by several police officers that they had smelled kerosene of some similar accelerant on the defendant's jacket at the time he was arrested and brought to the Rochester police station. The trial court denied the motion for mistrial, and the defendant appeals that ruling. Testimony by a chemist at the State crime laboratory indicated that when the jacket was analyzed there was no kerosene, gasoline or similar accelerant on the jacket.

The defendant claims that the admissibility of the jacket is controlled by our holding in State v. Scarlett, 118 N.H. 904, 395 A.2d 1244 (1978); however, the facts of Scarlett are significantly different from those existing here. In Scarlett, the disputed evidence was a bloody bedspread removed from the defendant's apartment. The defendant was charged with committing a sexual assault. The State had provided no expert witness to analyze the substance on the bedspread, and the jury could therefore infer, without a proper evidentiary foundation, that the bedspread was covered with the victim's blood. Under those circumstances, displaying the bedspread to the jury was highly prejudicial to the defendant. We held in Scarlett that the error of permitting the jury to see the stained bedspread was not harmless beyond a reasonable doubt and therefore remanded for a new trial. Id. at 907, 395 A.2d at 1247.

In this case, an expert witness testified that when the jacket was analyzed no accelerants were found. The expert further testified that if an accelerant had been present on the jacket when it was received by the police, it could have evaporated through the plastic storage bag before the analysis was done. The testimony of the police officers concerning the smell of kerosene or heating oil on the jacket was not precluded by the expert's testimony and was within the scope of lay opinion evidence. Commonwealth v. Theberge, 330 Mass. 520, 524, 115 N.E.2d 719, 722 (1953). Generally, decisions to admit testimony are within the discretion of the trial court and "the jury can determine whether to believe all, part or none of it." State v. Thresher, 122 N.H. 63, 71, 442 A.2d 578, 582 (1982). In this case the jury was free to weigh the evidence presented, and we find no abuse of discretion by the trial judge in his admission of the police officers' testimony or in his denial of the defendant's motion for a mistrial. See State v. Brady, 120 N.H. 899, 901, 424 A.2d 407, 409 (1980).

The second and sixth issues raised by the defendant concern the proffered testimony of witnesses who would have testified that certain State's witnesses had made prior inconsistent statements. These State's witnesses were Leo Bernier, a patron at Do's Restaurant; Charles Chamberlain, the fire marshal who inspected the premises after the fire; and Brian Colwell, the defendant's accomplice. The defendant contends that he had a right to present other third-party witnesses to impeach the credibility of the State's witnesses.

The defendant was prevented from introducing evidence contained in a police report which related Officer Catherine Carberry's recollection of Bernier's description of the person he had seen running away from the restaurant after the fire had started. According to the report, the witness Bernier could only remember "that the subject looked to be between 5'6"' and 6' tall, had a dungaree jacket on and possibly a beard."

At trial Bernier testified that he recognized the defendant as the person he saw fleeing the scene of the fire. On cross-examination, however, Bernier admitted making the statement recorded in Officer Carberry's report. The trial judge sustained the State's objection to the admission of Officer Carberry's statement because it was consistent with Bernier's testimony on cross-examination and because the police report was hearsay. The trial judge also sustained the State's objection to recalling Officer Carberry to the witness stand to testify as to her recollection of the conversation with Bernier.

The Rochester Police Department report also contained remarks allegedly made to the police by fire marshal, Charles Chamberlain, during his inspection of the premises on the morning of the fire. The report contained a statement by Chamberlain that it was unlikely or impossible for a bottle to have broken the window of the restaurant from outside. In a second statement, Chamberlain purportedly speculated that the fire was started from inside the building by spreading a liquid over the tables. These statements were repeated to Chamberlain on cross-examination, and he admitted making the substance of both statements, although he could not recall the specific words he had used. The trial court again refused to admit the police report and refused to recall the police officer to testify about Chamberlain's statements.

Generally New Hampshire adheres to the rule that extrinsic evidence of specific instances of conduct is not admissible to impeach the credibility of witnesses. See N.H.R.Ev. 608(b). Proof of collateral facts by contradictory third-party testimony is excluded in order to avoid "surprise, ... confusion of the jury's attention, and ... time-wasting." C. McCormick, Evidence § 47, at 110 (3rd ed. 1984). It is New Hampshire practice to allow inquiry into collateral issues by cross-examination for impeachment purposes; however, the cross-examiner must take the answer and may not call other witnesses to rebut it. See id.

The defendant cross-examined all three of the State's witnesses concerning their prior statements. During cross-examination both Bernier and Chamberlain admitted making the prior statements which the defendant had proposed to submit through third-party testimony. We have held that a defendant is not guaranteed an absolute right, by either the sixth amendment to the United States Constitution or part I, article 15 of the State Constitution, to introduce testimony which is not relevant. State v. Hunt, 122 N.H. 59, 60, 440 A.2d 1126, 1127 (1982). The additional testimony concerning the prior statements by Bernier and Chamberlain was merely cumulative, and the trial court's refusal to...