State v. Chase, 5849

• Decision Date: 31 January 1969
• Docket Number: No. 5849,5849
• Citation: 109 N.H. 296,249 A.2d 677
• Parties: STATE v. Mattie Mae CHASE.
• Court: New Hampshire Supreme Court

Page 677

249 A.2d 677

109 N.H. 296

STATE v. Mattie Mae CHASE.

No. 5849.

Supreme Court of New Hampshire.

Argued Jan. 7, 1969.

Decided Jan. 31, 1969.

George S. Pappagianis, Atty. Gen., and Henry F. Spaloss, Asst. Atty. Gen., (Mr. Spaloss, orally), for the State.

Arthur J. Reinhart, Portsmouth (by brief and orally), for defendant.

KENISON, Chief Justice.

The defendant was indicted for aggravated assault (RSA 585:22 (supp); 1965, 95:1) committed on May 16, 1967 and was found guilty thereof by a jury on December 7, 1967. After verdict, her counsel filed a motion for a new trial alleging violation of her constitutional rights. The motion is based on the fact that the State on cross-examination inquired of the defendant, on the issue of credibility, whether she had been convicted previously of aggravated assault and the defendant alleges that it now appears that she was not represented by counsel at the preliminary hearing on this prior offense of aggravated assault. The question and answer were as follows: Q. 'Are you not the same Mattie Mae Chase that was convicted in 1957 of aggravated armed assault in the State of New Hampshire?' A. 'Yes.' The record discloses that the defendant appeared without counsel in the Portsmouth Municipal Court in 1957, pleaded not guilty and waived the preliminary hearing. The defendant was represented by counsel in the Superior Court in 1957 when she was convicted of aggravated assault. The motion for a new trial was denied by the Court (Grant, J.) and the defendant's exception was reserved and transferred to this Court.

The defendant's right to have counsel in criminal proceedings is guaranteed by both the State and Federal Constitutions. State v. Herbert, 108 N.H. 332, 235 A.2d 524; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. The right to the assistance of counsel is not confined to trial (Gideon v. Wainwright, supra) and to an appeal (Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811) but includes certain arraignments (Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Walton v. Arkansas, 371 U.S. 28, 83 S.Ct. 9, 9 L.Ed.2d 9) and some preliminary hearings if they constitute a critical stage of the criminal proceedings. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. In this state the preliminary hearing is not a judicial trial of the issue of guilt or innocence of the accused but rather is a judicial inquiry to determine whether probable cause exists for the accused to be bound over to a grand jury. State ex rel. McLetchie v. Laconia District Court, 106 N.H. 48, 205 A.2d 534. Unlike Hamilton v. Alabama, supra, no rights are forfeited and no defenses are waived in this state by failure to assert them in the district or municipal courts.

In this jurisdiction both by practice and statutory directive the defendant at a preliminary hearing in a district or municipal court is not called upon to plead if the offense is beyond the jurisdiction of the court to decide and may waive the preliminary examination. RSA 596-A:4, 596-A:7 (supp). A preliminary hearing may be a critical stage of the criminal proceedings as a matter of law because of a state's procedural rules (which is not true in this state) or because of the events that occurred at the hearing which are likely to prejudice the trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. This case is unlike the situation in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 and Arsenault v. Commonwealth of Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) reversing Arsenault v. Commonwealth (Mass.), 233 N.E.2d 730, where there was a plea of guilty at the preliminary hearing which was introduced in evidence at the trial.

Many jurisdictions provide for the appointment of counsel at or before the preliminary hearing and this is the generally recommended procedure. Silverstein, Defense of...