State v. Brown

• Decision Date: 03 October 1986
• Docket Number: No. 85-120,85-120
• Citation: 128 N.H. 606,517 A.2d 831
• Parties: The STATE of New Hampshire v. Russell BROWN.
• Court: New Hampshire Supreme Court

Page 831

517 A.2d 831

128 N.H. 606

The STATE of New Hampshire v. Russell BROWN.

No. 85-120.

Supreme Court of New Hampshire.

Oct. 3, 1986.

Stephen E. Merrill, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on brief, and T. David Plourde, Asst. Atty. Gen., orally), for the State.

Schapira and Green P.A., Manchester (Andru H. Volinsky, on brief and orally), for defendant.

SOUTER, Justice.

The defendant was convicted in the Superior Court (O'Neil, J.) under indictments charging him with attempted murder and first degree assault, against each of which he defended on the theory of accident. In this appeal he claims three grounds for reversal: (1) a violation of his due process rights by the admission of evidence indicating that in the period after receipt of Miranda warnings he failed to apologize to the victim for injuring him; (2) erroneous instructions on the requisite state of mind for attempted murder and on the significance of certain evidence offered to prove the mental state; and (3) error in denying a motion to dismiss the attempted murder indictment for insufficient evidence. We affirm.

From the evidence it could be found that the defendant had been romantically involved with one Alicia Kirk until March, 1984, after which she transferred her attentions to the victim, James Barrett. Soon thereafter, the defendant observed that Barrett was enjoying all the "fringe benefits" and said "I'd like to blow his balls off." In a later conversation about Barrett, the defendant said "[t]he bastard ought to be shot."

On the evening of May 9, 1984, the defendant went to the house in Belmont where Barrett was then living with Kirk. The defendant was armed with a sawed-off shotgun, which he said he had cut down so that he could use it to kill himself. He testified that he took the gun with him when he went to the house in order to convince Kirk that he intended to commit suicide, hoping that Kirk would dissuade him from doing so.

At the kitchen door of the house he encountered Barrett, along with Kirk and James Vappi. The circumstantial evidence bearing on the defendant's intentions at that moment was conflicting. There was testimony indicating that his immediate object was to get past Barrett and into the house. The defendant himself testified that when Barrett stepped towards him he backed up, causing the gun to fall accidentally from his shoulder and go off. This testimony was consistent with evidence that after the gun discharged, causing a large wound in one side of Barrett's groin, the defendant exclaimed that he thought the safety was on. The victim, however, testified that the defendant appeared to be a determined man, and Vappi testified that he intentionally brought the gun up to fire it. This was consistent with testimony that, after shooting Barrett, the defendant pumped another shell into the chamber of the gun and inspected Barrett's bleeding wound before leaving at Barrett's request.

After stopping in a local restaurant, the defendant returned to his own house in Tilton, where the police were waiting. He fled in his car, leading the police on a chase to New Hampton, where they arrested him. The defendant testified that he attempted suicide in the car just before the moment of arrest, but failed when the gun did not fire.

Barrett was hospitalized, and the defendant was jailed. In July, while Barrett was still in the hospital, the defendant was freed on bail subject to the condition that he not contact either the victim or Kirk.

At trial, defense counsel's opening statement indicated that the theory of defense was accident. The prosecutor attempted to discredit this theory by addressing the following questions to the victim:

"Q How long were you in the hospital?

A Two months.

Q How long were you in the Intensive Care?

A Ten or eleven days.

Q While you were in the hospital, did the defendant ever visit you?

A No.

Q Ever call?

A No.

Q Ever write?

A No.

Q Did you ever receive any indication from him that--

[Defense Counsel] Your Honor, at this point I'm going to object, and I'd like to approach the bench, if I can. I think these questions are unfair. I'll say it right here. These questions are unfair.

[Prosecutor] Your Honor, I believe this is improper procedure. If he has a statement to make, it's made to the Judge.

[Court] Wait a minute. Hold it just a second. I'm not too sure I agree with that procedure. Whatever you have got to say, say it in front of the jury. If it's something that's highly inflammatory, then we will come to the bench, otherwise the jury has the same right to [hear] it as everybody else in this public court.

[Defense Counsel] I object to that line of questioning. My Brother knows fully well that my client had been arrested that night, that he was in jail, and that they had him under indictment; that while Mr. Barrett was in the hospital and he was represented by counsel, they charged him with this crime. I think that's wrong to allow him to make any comment concerning my client making any statement to this man at all.

....

[Prosecutor] This man is not law enforcement. There is nothing incriminating if this is an accident, as my Brother has represented to the jury, about saying I'm sorry. And that never happened.

[Objection overruled, exception noted.]

Q Did you hear anything from the defendant referring to what he had done to you at all?

A No.

Q To this day has he expressed to you any regret for what happened to you?

A No."

The defendant's claim that this testimony was inadmissible presents the first issue on appeal.

The relevance of a person's silence arises from its context. When an individual unintentionally injures another, and there is an opportunity to communicate, it is reasonable to expect some expression of regret. Silence in such circumstances, on the other hand, has some tendency to indicate that there is no regret because the injury was intended.

This theory of relevance was the basis of defense counsel's objection to the testimony about the defendant's failure to apologize. By stressing that the victim was in the hospital and the defendant was in jail charged with a crime, defense counsel argued in effect that the defendant had no opportunity to make an apology. We think it is a proper response, however, that an apology need not have been made in person and opportunity was therefore not entirely lacking. Although the points raised in the defendant's argument certainly affect the weight to be given to the evidence of his silence, the silence was still relevant to the defense theory of accident and a proper subject of testimony at trial.

Because defense counsel urged no other reasons to support his exception at trial, we might properly end our consideration of the first issue here. See N.H.R.Ev. 103(b)(1) (grounds for objection to evidence are waived unless explicitly stated). This is a pre-Rule 103(b)(1) case, however, and because appellate counsel's further arguments in support of the defendant's exception concern the relevance of the testimony, we will go on to consider the further grounds now raised before us.

First, the defendant points out that the July 1984 bail order forbad him from communicating with the victim and thus deprived him of a legal opportunity to apologize. Though a sound argument as to the period after the bail order, it has no application to the period from the date of the shooting in early May to the imposition of the bail order in mid-July. This objection would at most have required the State to confine its final two questions to the pre-bail period. We are satisfied in any case that the over-breadth of those questions was at most harmless error, because defense counsel adequately brought both the terms and the date of the bail order to the jury's attention, through testimony later in the trial. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981).

The second new ground raised on appeal, and going to relevance, has a constitutional dimension and is said to rest on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A defendant's silence is seldom subject to only one interpretation; one source of its ambiguity may be the privilege against compelled self-incrimination, guaranteed to a defendant as against the government by the fifth and fourteenth amendments of the National Constitution and by part I, article 15 of the Constitution of New Hampshire. See Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 1231, 14 L.Ed.2d 106 (1965); State v. Cormier, 127 N.H. 253, 255, 499 A.2d 986, 988 (1985); State v. Arsenault, 115 N.H. 109, 112, 336 A.2d 244, 246 (1975). When directed towards the police, therefore, a defendant's silence may be probative on a material issue, or it may instead reflect a decision to invoke his constitutional privilege to maintain just such silence. The Supreme Court of the United States has held that such silence passes from being ambiguous to "insolubly ambiguous" once the defendant receives the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (explaining the privilege to remain silent, and to have a lawyer present during any questioning). Doyle, supra 426 U.S. at 617, 96 S.Ct. at 2244. The Court reasoned that evidentiary use of post-Miranda silence would violate a representation implicit in the warnings, that a defendant will not be penalized for invoking the privilege. Doyle, supra at 618, 96 S.Ct. at 2245. Use in such circumstances would be so fundamentally unfair as to violate due process. Doyle, supra at 618, 96 S.Ct. at 2245. We might add that it would also violate an equally implicit representation that the defendant will not be required to waive his right to silence at trial in order to explain his constitutionally protected silence before trial.

The Court clarified the scope of Doyle in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d...