State v. Cobb, 82-392

• Decision Date: 19 July 1983
• Docket Number: No. 82-392,82-392
• Citation: 123 N.H. 536,465 A.2d 1203
• Parties: The STATE of New Hampshire v. Charles COBB.
• Court: New Hampshire Supreme Court

Page 1203

465 A.2d 1203

123 N.H. 536

The STATE of New Hampshire v. Charles COBB.

No. 82-392.

Supreme Court of New Hampshire.

July 19, 1983.

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

Casassa, Mulherrin & Ryan, Hampton (H. Alfred Casassa, Hampton, on the brief and orally), for defendant.

BOIS, Justice.

The defendant was convicted by a jury for leaving the scene of an accident. See RSA 264:25. On appeal, he challenges the Trial Court's (Contas, J.) rulings concerning the admissibility of his prior convictions and the sufficiency of the evidence. We affirm.

The evidence at trial revealed the following facts. On May 14, 1981, fourteen-year-old Terry Williams and fifteen-year-old Shawn Olivier were riding their bicycles along Route 1 in Rye. Shortly after 8:00 p.m., a large brown Buick with Massachusetts license plates, which was proceeding in a northerly direction along Route 1, struck and injured Williams. The driver of the vehicle failed to stop.

Olivier reported the vehicle's license plate number to the police, who learned through subsequent investigation that the automobile was registered to the defendant's deceased father. Mrs. Gertrude Cobb, the defendant's mother, testified that the defendant was driving the vehicle on May 14, 1981, that he had stopped to visit her that afternoon at her home in Newburyport, Massachusetts, and that he had left Newburyport for New Hampshire some time in the early evening. A police officer who had interviewed Mrs. Cobb after the accident testified that she had told him that the defendant left Newburyport, which was approximately fourteen and one-half miles from the accident scene, between 7:30 and 7:45 p.m. An acquaintance of the defendant testified that he had seen the defendant at a residence in Portsmouth between 8:30 and 9:30 p.m. on the night of the accident, and that he had also observed the defendant's car, a dark brown Buick with Massachusetts plates, parked nearby. In addition to the foregoing testimony regarding the defendant's activities on the date in question, an eyewitness to the accident described the driver as having "bushy hair," which was consistent with the defendant's physical appearance.

On May 15, 1981, the defendant reported to the police that the suspect vehicle had been stolen from a motel in Hampton on the previous day. According to the testimony of the police, the defendant stated that he had last seen the car at 5:00 p.m. on the day of the accident, that someone else had driven it to Hampton earlier that day, and that he was using the car only as a place to store clothes. He further stated that he was in possession of the only set of keys to the car. The police later located the vehicle abandoned in Stratham, 1.3 miles from the Portsmouth residence where the defendant had been seen on the night of the accident. The steering wheel of the vehicle was locked and the ignition switch was undamaged. An analysis conducted by the State Police Forensic Laboratory revealed that the vehicle had in fact been involved in the hit-and-run accident in question.

The defendant was indicted for leaving the scene of an accident. See Laws 1977, 460:1 (current version at RSA 264:25). At trial, the State filed notice of its intent to introduce evidence of the defendant's prior convictions for impeachment purposes. The defendant objected to the admission of this evidence, and the trial court held an in camera hearing to resolve the issue. The court excluded from evidence the defendant's 1974 conviction for driving while intoxicated. However, it ruled that ten convictions obtained in 1979, and two obtained in 1981, were admissible to impeach the defendant. These convictions included three for driving while intoxicated, two for driving an unregistered vehicle, two for driving an uninsured vehicle, and one each for giving false information to a police officer, failing to stop for a police officer, operating an uninspected vehicle, failing to stop for a red light, and driving after revocation of license. Because the defendant chose not to testify in his defense, the convictions were never introduced at trial.

At the close of the State's case, the defendant filed a motion to dismiss for insufficient evidence. The trial court denied the motion, and the jury later returned a verdict of guilty.

In this appeal, the defendant first challenges the general validity of the rule permitting impeachment through prior convictions which do not directly involve veracity. He argues that application of this rule by the trial court discouraged him from testifying and therefore denied him a fair trial. We need not dwell upon this argument because today we have addressed and rejected a similar claim in State v. Robinson, 123 N.H. 532, ---, 465 A.2d 1201, 1202 (decided this date), and we see no reason to depart from the rationale underlying that decision.

The defendant argues alternatively that the trial court abused its discretion in ruling that the State could introduce evidence of his prior convictions for impeachment purposes. See id. at ---, 465 A.2d at 1203; State v. Staples, 120 N.H. 278, 283, 415 A.2d 320, 323 (1980). He claims that the court perfunctorily ruled the evidence admissible and did not balance the probative value of his convictions against their inherent prejudice. See id., 415 A.2d at 323; State v. Cote, 108 N.H. 290, 297, 235 A.2d 111, 116 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). We disagree.

The record shows that the trial judge heard arguments by counsel on the admissibility of the prior convictions and was aware of the nature of the convictions and the proper legal standard to be applied in resolving the matter. He specifically found that the probative value of twelve of the convictions outweighed their prejudicial effect. Moreover, the fact...