State v. Comtois

• Decision Date: 30 December 1982
• Docket Number: No. 82-151,82-151
• Citation: 453 A.2d 1324,122 N.H. 1173
• Parties: The STATE of New Hampshire v. Freddy E. COMTOIS.
• Court: New Hampshire Supreme Court

Page 1324

453 A.2d 1324

122 N.H. 1173

The STATE of New Hampshire v. Freddy E. COMTOIS.

No. 82-151.

Supreme Court of New Hampshire.

Dec. 30, 1982.

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

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

PER CURIAM.

The issues presented in this first-degree murder case are whether the trial court committed reversible error by allowing the State to reopen its case without a showing of good cause, and whether the trial of the defendant in his absence after he escaped from custody violated his right to confront the evidence against him. We affirm the defendant's conviction.

The defendant, Freddy E. Comtois, was indicted for first-degree murder, RSA 630:1-a, for shooting Steven Mitchell five times with a handgun. After he was apprehended in Florida and returned to New Hampshire, proceedings began in Superior Court (Pappagianis, J.) on January 18, 1982. The trial judge met with counsel for both sides in chambers and disposed of several preliminary motions. The State nol-prossed an indictment against the defendant for felonious use of a firearm.

The trial judge then presided in the courtroom over the examination of a witness pursuant to a motion to compel certain answers on deposition. Thereafter, with the defendant present, the court gave preliminary instructions to forty-three veniremen about the trial of the defendant for murder, including the name of the case, the identity of the lawyers, the indictment, the burden of proof, and the list of possible witnesses for both sides. The trial judge then conducted a preliminary voir dire by asking the statutory questions, see RSA 500-A:22 (Supp.1979), and excused nine prospective jurors for cause. The remaining prospective jurors were requested to return the next day for individual voir dire. That night, however, the defendant escaped from jail, and he was not apprehended until after the trial was completed.

Upon learning of the defendant's escape, the court instructed the prospective jurors not to report until January 20. On that day, a hearing was held on the question whether the defendant had waived his right to be present at his trial, and whether the trial should proceed in his absence. The court took notice that the defendant was present on January 18 and that he was being held in lieu of bail. After hearing witnesses and arguments, the court, over objection and exception, found that the trial had begun on January 18, 1982, that the defendant was present during the proceedings that day, and that he had voluntarily absented himself from the trial, thereby waiving his right to be present during the remainder of the trial.

The trial proceeded, and at the end of the prosecution's case the defendant moved to dismiss on the ground that the State had failed to identify the defendant as the person referred to by the witnesses. The court, over objection and exception, allowed the State to reopen its case, and two witnesses identified the defendant by a photograph. The defendant was convicted of first-degree murder and sentenced to life in prison without parole. See RSA 630:1-a III.

The defendant argues on appeal, as he did at trial, that the prosecution failed to offer any evidence of "good cause" to reopen its case as required by Superior Court Rules 70 and 115. In dealing with this argument, we point out that, although the discovery of truth in the context of a criminal trial is quite properly limited by certain constitutional safeguards and privileges, it should not suffer by an overly technical application of rules of court. Rules 70 and 115 are designed to govern the orderly presentation of evidence, but they are not intended to be a roadblock to justice for either side. "Good cause" exists when it is "fair and just" to allow a party to reopen. See Jaques v. Chandler, 73 N.H. 376, 381, 62 A. 713, 714 (1905).

In the case before us, there was no need for the State to introduce evidence on the issue of good cause. In view of the testimony of various witnesses, it was reasonable for the prosecution to believe it had supporting evidence that the person to whom the witnesses referred as Freddy Comtois was the same person apprehended in Florida with Raymond Glidden, whom witnesses had described as an associate of the defendant, and was the same Freddy Comtois who appeared as the defendant at the opening of the trial. Rather than take the risk that this court might find the identification evidence insufficient, however, the trial judge properly allowed the State to reopen its case. That it was "fair and just" to do so was evident from the circumstances, and no specific evidence on that issue was required. It was a decision within the sound discretion of the trial court, which we uphold because it was not clearly untenable or unreasonable. State v. Comparone, 110 N.H. 398, 399, 269 A.2d 131, 132 (1970); see State v. Booton, 114 N.H. 750, 761, 329 A.2d 376, 384 (1974), cert. denied, 421 U.S. 919, 95 S.Ct. 1584, 43 L.Ed.2d 787 (1975); see also State v. Randall, 122 N.H. 19, 19-20, 440 A.2d 11, 11 (1982).

The defendant also argues that it was a violation of his rights under both the sixth amendment to the United States Constitution and part one, article fifteen of the New Hampshire Constitution for the court to conduct his trial in his absence. Contrary to his contention, however, we uphold the findings of the trial court that the trial had commenced and that the defendant voluntarily absented himself from the proceedings, thus waiving his right to be present at his trial.

In State v....