State v. Chaisson, 81-429

Decision Date24 January 1983
Docket NumberNo. 81-429,81-429
Citation458 A.2d 95,123 N.H. 17
PartiesThe STATE of New Hampshire v. Carl J. CHAISSON.
CourtNew Hampshire Supreme Court

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on brief and orally), for the State.

James E. Duggan, Appellate Public Defender, Concord, and Carl J. Chaisson, pro se, by brief, and Duggan orally, for defendant.

KING, Chief Justice.

The defendant, Carl J. Chaisson, appeals his convictions of theft by unauthorized taking, RSA 637:3, burglary, RSA 635:1, and conspiracy to receive stolen property, RSA 629:3, RSA 637:7.

On March 27, 1981, while G. Jackson Jones was at work, his house was burglarized and a large quantity of silver, a number of candelabras, and two guns were taken. Jones notified the Keene police of the crime.

On March 28, 1981, Harold Andrews, a retired coin dealer who had been working with Corporal Eugene O'Brien of the New Hampshire State Police on an unsolved burglary in Dublin, New Hampshire, went to an apartment at 49 Franklin Street in Keene. Andrews had been told by an informant sometime prior to this that "a gentleman that was serving time up at [the Cheshire County House of Correction] had some items that he would be interested in selling when he got out." Andrews met the defendant at the Keene apartment. The defendant showed Andrews silverware, candelabras, a television set and two guns which were in the basement of the apartment. The defendant stated that the items were "hot." Andrews told the defendant that he could not handle the articles but would contact a friend in Massachusetts. Instead, Andrews notified Corporal O'Brien of the New Hampshire State Police.

Corporal O'Brien contacted Sergeant Hardy of the Keene Police. Hardy called Jones and prepared an affidavit to support a search warrant for the apartment at 49 Franklin Street. Hardy also prepared a warrant for the arrest of the defendant and a complaint. As a result of the execution of the search warrant, the police recovered most of the property stolen from Jones' home.

At the time of the search of the apartment, the defendant was not present. He arrived at his apartment later that evening and was arrested. At the time of his arrest, the defendant was advised of his Miranda rights and taken to the Keene Police Station. There he was again advised of his rights and admitted that he understood them. The defendant offered to give the police information on the burglary if the police agreed to release him on personal recognizance, but the police refused this proposal. The defendant at that time gave a statement to the police implicating Joey Lee Taylor and John Settle, Jr., (see State v. Settle, 123 N.H. 34, 455 A.2d 1031 (decided this date)), and eventually made a full confession. The defendant was indicted for theft by unauthorized taking, burglary, and conspiracy to receive stolen property.

Prior to trial, the defendant filed a motion to quash either the indictment for theft by unauthorized taking or the indictment for conspiracy to receive stolen property on the ground that they were multiplicitous. The Trial Court (Pappagianis, J.) denied the motion. The defendant also moved to quash the indictments for burglary and conspiracy to receive stolen property on the grounds that they failed to allege facts necessary to establish all of the elements of the offenses, and failed to allege that the defendant acted with the required mental state. These motions also were denied.

The defendant argued that the evidence discovered during the search of his apartment should be suppressed because the affidavit supporting the search warrant contained intentional misrepresentations, rendering the search warrant invalid. He contended that his confession should be suppressed as the fruit of an illegal search. Additionally, he argued that his confession should be suppressed because it was obtained in violation of his sixth amendment right to counsel. The trial court denied the motion to suppress the confession and the evidence obtained as a result of the search.

During the defendant's trial, the trial court refused to permit any witness to be impeached with evidence of a prior criminal conviction. Specifically, the trial court denied the defendant's motion to impeach the credibility of Harold Andrews, a State's witness, with a prior criminal conviction.

After a police officer, testifying on behalf of the State, said that the defendant in his confession had confided that he had met Settle and Taylor while they were in jail serving time, the defendant moved for a mistrial. The court instructed the jury to disregard this testimony and denied the defendant's motion for a mistrial.

The jury convicted the defendant of the three offenses. He appeals the denial of his motions to quash as well as his motion to suppress. He contends that the court erred in refusing to grant a mistrial and in refusing to permit the defendant to cross-examine the State's witness about prior criminal convictions. We affirm in part, reverse in part, and remand for a new trial.

The defendant appeals the denial of his motion to quash either the indictment for conspiracy to receive stolen property or the indictment for theft by unauthorized taking. He contends that because both the crime of theft by unauthorized taking and the crime of receiving stolen property are termed "theft" by the statutes, RSA 637:3, RSA 637:7, the trial court was required to dismiss one of the indictments prior to trial. He further contends that the fact that he was actually indicted for conspiracy to receive stolen property, RSA 629:3, RSA 637:7, rather than for receiving stolen property does not vitiate his argument.

It is true that a defendant cannot be charged with theft and receiving the same stolen property from himself, State v. Larkin, 49 N.H. 39, 43 (1869). But cf. State v. McNally, 122 N.H. 892, ---, 451 A.2d 1305, 1307 (decided October 14, 1982) (defendant may be convicted of larceny and retention of stolen property). However, conspiracy to receive stolen property is a separate and distinct crime from the crime of receiving stolen property. See State v. Sias, 17 N.H. 558, 559 (1845). The act which the crime of conspiracy punishes is an agreement to commit or cause the commission of a crime. RSA 629:3. In the present case the defendant was charged with conspiracy to receive stolen property, not with the actual receipt of stolen property. Therefore, Larkin is not directly applicable to this situation.

The defendant submits that the trial court erred when it refused to quash the burglary indictment. He states that the indictment was defective because it failed to enumerate any facts of the crime of theft. The indictment charged that the defendant "did enter the occupied structure ... with the purpose to commit the crime of theft therein...." Relying on State v. Bussiere, 118 N.H. 659, 392 A.2d 151 (1978), the defendant argues that when one crime is defined in terms of another crime, the necessary elements of the second crime must be included in the indictment. In Bussiere, we held that an indictment which stated that on a specified date and at a specified place the defendant "did purposely engage in sexual penetration in the form of sexual intercourse with [a named victim], not his spouse, when the victim ... did submit to such sexual penetration by ... [the defendant] under circumstances involving kidnapping," was insufficient because it failed to enumerate the facts establishing the necessary elements of the offense of kidnapping. Id. at 660-61, 392 A.2d at 153.

The present case is distinguishable from Bussiere. A person commits the crime of burglary "if he enters a building or occupied structure ... with purpose to commit a crime therein ...." RSA 635:1. In Bussiere, the crime of kidnapping was an element of the crime of aggravated felonious sexual assault. See RSA 632-A:2 V (Supp.1981). Here the crime of theft was not an element of the crime of burglary. All that the State was required to allege and prove was a purpose to commit theft. Because only the purpose to commit theft was an element of the crime of burglary, the State was not required to allege facts establishing the crime of theft. For the same reasons, the State was not required to allege the value of the property taken in the burglary.

The defendant further attacks the sufficiency of both the burglary and conspiracy-to-receive-stolen-property indictments on the ground that neither indictment alleged that the acts specified in the indictments were committed with the required mental state. He contends that the State was required to allege that each action specified in the indictments was done purposely. The defendant's indictment for burglary stated that the defendant:

"did enter the occupied structure belonging to [the victim] located on the Graves Road, Keene, with the purpose to commit the crime of theft therein ... and that the ... [defendant] did enter and carry away various items of silver and firearms and other property therefrom, said property belonging to the ... [victim]."

The defendant contends that the State was required to allege that the defendant "purposely did enter the occupied structure ... with the purpose to commit the crime of theft ... and that the defendant purposely did enter and carry away various items ...."

This court rejected a similar argument in Bussiere. There, the defendant argued that the indictment was insufficient because it failed to allege that the defendant acted purposely when he acted "with the purpose of promoting or facilitating the commission of the offense ...." 118 N.H. at 662, 392 A.2d at 154. As stated in Bussiere, while RSA 626:2 I provides that a defendant must act with the required mental state with respect to each material element of the offense, it does not require an indictment to charge redundantly. Id. at 663, 392 A.2d at 154. In the present case, we hold that the State was not required to allege...

To continue reading

Request your trial
55 cases
  • State v. Smart
    • United States
    • New Hampshire Supreme Court
    • February 26, 1993
    ...trial judge to completely bar cross-examination in a proper area of inquiry violates the right of confrontation. State v. Chaisson, 123 N.H. 17, 32-33, 458 A.2d 95, 104 (1983). Once a defendant has been permitted a threshold level of inquiry, however, the constitutional standard is satisfie......
  • State v. Bergin
    • United States
    • Connecticut Supreme Court
    • April 24, 1990
    ...of whether an affiant intentionally misrepresents facts in an affidavit is a question of fact for the trial court. State v. Chaisson, 123 N.H. 17, 458 A.2d 95 (1983). The majority, without any discussion of several of these facts that were found material, however, does discuss the defendant......
  • State v. Papillon
    • United States
    • New Hampshire Supreme Court
    • February 13, 2020
    ...of the conspiracy. RSA 629:3, I. Conspiracy punishes the agreement to commit or cause the commission of a crime. State v. Chaisson, 123 N.H. 17, 24, 458 A.2d 95 (1983). "[A] tacit understanding between the parties to cooperate in an illegal course of conduct will warrant a conviction for co......
  • State v. Cosby
    • United States
    • Connecticut Court of Appeals
    • February 11, 1986
    ...is some authority for a more expansive reading of Davis v. Alaska, supra, than that of Justice Stewart. See, e.g., State v. Chaisson, 123 N.H. 17, 458 A.2d 95 (1983); State v. Conroy, 131 Ariz. 528, 642 P.2d 873 (1982); State v. Hillard, 398 So.2d 1057 (La.1981). The weight of authority, ho......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT