State v. Colby

• Decision Date: 30 December 1976
• Docket Number: No. 7422,7422
• Citation: 116 N.H. 790,368 A.2d 587
• Parties: STATE of New Hampshire v. John R. COLBY.
• Court: New Hampshire Supreme Court

Page 587

368 A.2d 587

116 N.H. 790

STATE of New Hampshire v.John R. COLBY.

No. 7422.

Supreme Court of New Hampshire.

Dec. 30, 1976.

David H. Souter, Atty. Gen., and Richard B. McNamara, Concord, Atty., for the State of New Hampshire.

Kfoury & Williams, Manchester (Joseph Williams, Manchester, orally), for defendant.

GRIFFITH, Justice.

The defendant was found guilty of conspiracy to murder (RSA 629:3) after a trial by jury.He was sentenced to not more than thirty years nor less than ten years at New Hampshire State Prison.The defendant seasonably excepted during the trial to the refusal of the trial court to ask certain questions in the court's voir dire of the jury; to the trial court's admission of certain evidence; to the denial of certain requested instructions, and, after trial, to the denial of his motions to set aside the sentence and to amend it.All questions of law raised by the defendant's exceptions were reserved and transferred by the Trial Court(Perkins, J.).

The present case has its genesis in the arrest of the defendant Colby and his codefendant Raymond G. Martineau on a charge of rape based upon the complaint of Wanda Graham.Miss Graham testified at a probable cause hearing and the defendants were held for the grand jury which subsequently indicted them.The bullet-riddled body of Wanda Graham was discovered shortly before the scheduled trial of the two defendants on the rape indictments.

There was evidence of the following sequence of events.On December 30, 1973, Wanda Graham appealed for help to the Manchester police.Brought to the police station in a cruiser because she feared to travel there alone, she informed the police that she had been raped and abused by Martineau and defendant Colby, both members of a motorcycle club called the Die Hards.The police officer who interviewed Miss Graham on this date testified that she appeared frightened and told of being threatened by her assailants with a beating.

As a result of Miss Graham's complaint, Martineau and Colby were arrested and held at the Hillsborough County jail.On January 5, 1974, Joseph Baranski, a member of the Die Hards, spoke with Martineau at the jail in the presence of Colby.Martineau stated to Baranski 'I want that bitch (Wanda Graham) dead.'The defendant Colby was not more than a foot away from Martineau when this statement was made.

On February 7, 1974, after the probable cause hearing on the rape charge, Martineau was heard to state to a group of fellow club members and friends that he had nothing to worry about because Wanda Graham would not be alive to testify at the trial.Leonard Tierney, a Die Hard member, testified that after Martineau made this statement, the defendant said 'Yuh, you got to get it done.'Joseph Baranski, who was present, thought the defendant laughed but said nothing.

On the afternoon of February 23, 1974, Die Hard member William Manning visited Martineau and Colby in jail.Colby told Manning that 'the State was trying to hang him because of Wanda Graham.'Upon leaving, Manning received two letters, one addressed to the Die Hard club and the other to John Tanguay, the Die Hard president.He left the jail with Larry Simmons, the 'sergeant-of-arms' of the Die Hards and one Donna Mailman.Manning heard Simmons ask Mailman to help him find Wanda Graham so he could shoot her.

Manning then drove with Simmons to Tanguay's apartment to deliver the letters.Tanguay took the letters into another room and conferred with Simmons.Later Manning drove Simmons to a store to buy beer and on the way asked him if he was really going to kill Wanda Graham.Simmons replied, 'Yes, it's got to be done, it's for the brothers.'He told Manning there were 'two guys in jail that didn't belong there.'

Initially, that evening Manning, on instructions from Simmons, drove Tanguay, Simmons and Donna Mailman to a Manchester night-club where Donna Mailman was left off to find Wanda Graham.After Manning refused Tanguay's order to 'go with Larry Simmons' because 'he knew something was going to happen,'he drove them back to Tanguay's home and was told to leave.Leonard Tierney, who lived in Tanguay's home then drove back to the Manchester night-club with Simmons.

Donna Mailman found Wanda Graham in the night-club and persuaded her to leave.They were met by Simmons who forced Wanda Graham at gunpoint into the waiting car.The four then drove to a construction site in Bedford where Simmons and Wanda Graham left the car.About half an hour later, the waiting Tierney and Donna Mailman heard five shots and Simmons then returned alone.When asked what had happened, Simmons said he had shot Wanda Graham because he had promised Martineau and Colby that he would do it.Shortly thereafter, he repeated to Tierney that he did it for Martineau and Colby because they were 'his brothers.'

Tierney, Tanguay and Simmons were arrested for the murder the next day and sent to the Hillsborough County jail.When Martineau and Colby first encountered them there, Martineau said, 'You finally got the job done.We thank you a lot.'We'll try to do the same for you and get you off.'There was testimony that the defendant was 'agreeing' with this statement.In the defendant's presence, Martineau asked Simmons, 'How come (you) didn't do it the way we planned it?'Defendant Colby reacted to these comments by agreeing and saying, 'Yuh.'Martineau then said that he would be off in a couple of weeks because 'he didn't think they could get him for conspiracy' and defendant Colby said nothing.

I. Voir Dire of the Jury.

The defendant requested the trial court to ask seven questions in the voir dire conducted by the trial court.Voir dire of a jury in this State, except in capital cases, has always been conducted by the trial court rather than counsel.Patterson v. Corliss, 112 N.H. 480, 486, 298 A.2d 586, 590(1972).Subject to the requirements of RSA 500-A:22 (Supp.1975) which lists certain statutory questions designed to insure the impartiality of the jurors, the decision of what questions should be propounded to jurors is a matter wholly within the discretion of the trial court.State v. Conklin, 115 N.H. 331, 337, 341 A.2d 770, 775(1975);Mathews v. Jean's Pastry Shop, Inc., 113 N.H. 546, 549, 311 A.2d 127, 130(1973).In this casethe trial court in addition to the statutory questions used three of the defendant's requested questions which fully explored the possibilities of bias.The court's refusal to ask the remaining four questions covering the same ground was an entirely proper exercise of its discretion.State v. Laaman, 114 N.H. 794, 800, 331 A.2d 354, 359(1974).

II.Admission of Coconspirators' Out-of-Court Statements.

The defendant excepted to the admission in evidence against him of various statements of coconspirators on the grounds that they did not meet the requirements of the coconspirators' exception to the hearsay rule.The rule admits such statements when made during the pendency of the criminal enterprise and in furtherance of the criminal object, as long as the existence of the conspiracy is sufficiently proved by independent evidence.State v. Clapp, 94 N.H. 62, 63-64, 46 A.2d 119, 120(1946);State v. Larkin, 49 N.H. 39, 44(1869);4 J. Wigmore, Evidence§ 1079(Chadbourne rev. 1972); Annot., 46 A.L.R.3d 1148, § 2(a)(1972).

The defendant objects to three statements on the ground that they fail to meet these requirements: (1) Martineau's statement to Baranski on January 5, 1974, in the Hillsborough County jail after his arrest for rape of Wanda Graham, that 'I want that bitch dead'; (2) Martineau's statement on leaving the probable cause hearing that 'he didn't have nothing to worry about because (Wanda Graham) wouldn't be around to testify at trial'; and (3)Larry Simmons' statement to Donna Mailman of February 23, 1974, telling her of his plan to kill Wanda Graham that evening.

The record indicates that the foregoing statements were all made during the pendency of the conspiracy and there can be no doubt that the first and third statements were made in furtherance of the criminal object.We also reject the contention of the defendant that the second statement fails to meet the 'furtherance' standard.A declaration of intention to accomplish the criminal purpose, made under circumstances wherein it constitutes both a threat to the victim and a spur to the actual perpetrators of the act, is sufficiently 'in furtherance' of the conspiracy to satisfy that requirement.SeeC. McCormick, Evidence§ 267, at 645 (2d ed. 1972);Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1167-76(1954).Furthermore, this statement was admissible as an adoptive admission in view of the defendant's response, 'Yuh, you got to get it done.'SeeC. McCormick, Evidence§ 269 (2d ed. 1972);2 B. Jones, Evidence§ 13:28 (6th ed. S. Gard 1972).

It is generally held that a prima facie case of conspiracy must be established to render coconspirators' declarations admissible.Annot.,46 A.L.R.3d 1148, § 5(1972);Levie, Hearsay and Conspiracy52 Mich.L.Rev. 1159, 1176(1954).There was ample evidence in this case to meet this standard.The defendant's 'Yuh, you got to get it done' evidences a tacit understanding between the parties and a demand for completion of the murder.Larry Simmons'...