State v. Conklin

• Decision Date: 30 June 1975
• Docket Number: No. 6552,6552
• Citation: 115 N.H. 331,341 A.2d 770
• Parties: STATE v. Lawrence D. CONKLIN.
• Court: New Hampshire Supreme Court

Page 770

341 A.2d 770

115 N.H. 331

STATE v. Lawrence D. CONKLIN.

No. 6552.

Supreme Court of New Hampshire.

June 30, 1975.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.

Alvin E. Taylor, Portsmouth, and Seth M. Junkins, Hampton, by brief and orally for defendant.

DUNCAN, Justice.

Defendant was indicted for murder in the first degree (RSA 585:1 (1955), Laws 1937, 20:1), for the stabbing of a security guard at the Rockingham County jail, in Brentwood, on September 12, 1971. The defendant was then an inmate of the jail awaiting disposition of an unrelated offense. After arraignment bur prior to trial, the State elected to forego a first-degree prosecution and to try the defendant only for the lesser included offense of murder in the second degree. RSA 585:1 (1955). By order of the Trial Court (Perkins, J.) the defendant was then arraigned on the reduced charge. Trial by jury resulted in a verdict of guilty of second-degree murder. Sentence was imposed for a term of not less than forth-five years and not more than life.

During the course of the proceedings, the defendant excepted to the arraignment on the second-degree charge without a new indictment, to rulings on certain pretrial motions, and the admission and exclusion of certain evidence, to certain instructions to the jury and to the denial of motions to set aside the verdict and to modify the sentence. These exceptions and the questions of law arising therefrom were reserved and transferred by Perkins, J.

Evidence to the following effect was introduced at trial. While awaiting grand jury action on another offense, the defendant was being retained in the 'bound-over' section of the Rockingham County jail. On September 12, 1971, the defendant requested cleaning supplies of the sole inside guard, Robert Prescott. Prescott, an experienced police officer, had been working at the jail for less than a month. Before passing a mop and bucket into defendant's cell row, Prescott secured the inmates in their individual cells, which were at times left open to permit communication among prisoners within a locked tier. However, when he later reopened the tier to furnish a broom, he neglected to lock the interior cells. The defendant slipped out of the tier onto an open landing and refused to reenter. Prescott withdrew, but returned shortly with his privately owned German Shepherd police dog, which he kept at the jail during work hours. The dog apparently was to be used to coerce the defendant back into the tier. A struggle ensued; the dog was slashed about the throat, and Prescott was stabbed repeatedly in the chest and upper body. With keys removed from the guard, the defendant released inmates from other tiers. Medical help was sought for Prescott, who was carried into the visitors' cage of the jail. He had, however, died within five or ten minutes of the infliction of the wounds. The defendant was later apprehended while still within the confines of the jail.

The challenged indictment charged that the defendant 'with force and arms, did commit a murder in the first degree, in that he deliberately and with premeditation, without justifiable cause, kill (sic) Robert Prescott . . . by stabbing him in the chest with a knife.'

Defendant contends that the preliminary procedure followed by the trial court was defective in three principal respects: the indictment contained no allegation of malice to apply to the reduced charge; neither the State nor the court possessed the authority to try the defendant for a crime on which no indictment had been returned; that even were such a procedure authorized, the defendant was prejudiced by having the indictment for the greater charge read to the jury.

It is established law that malice aforethought is an essential element of the crime of murder, and that an allegation to that effect must appear in the indictment. RSA 601:6; State v. Millette, 112 N.H. 458, 460-61, 299 A.2d 150, 152 (1972); State v. Nelson, 103 N.H. 478, 489, 175 A.2d 814, 822, cert. denied, 369 U.S. 879, 82 S.Ct. 1153, 8 L.Ed.2d 282 (1961). The defendant concedes that the words 'deliberately and with premeditation' satisfied that requirement for the indictment for first-degree murder. He argues however that the State's decision not to try him on the first-degree charge in effect amended the indictment by obviating those essential words, which under the statute in effect at that time were elements of first, but not of second-degree, murder. RSA 585:1 (Repealed; Laws 1974, 34:12 eff. April 15, 1974). So amended, the argument continues, the indictment alleged no malice which would support a charge of second-degree murder.

This 'constructive amendment' theory misses the mark. RSA 585:1 defined murder in the first degree as 'deliberate and premeditated killing', and second-degree murder as 'all murder not of the first degree.' Thus, in a prosecution for first-degree murder, even upon a failure to establish premeditation and deliberation, the evidence could suffice for a jury to find murder of the second degree. In this respect, second-degree murder as defined by RSA 585:1, like manslaughter, constituted a lesser included offense of the crime of first-degree murder. Nichols v. Vitek, 114 N.H. 453, 321 A.2d 570 (1974); In re Murray, 131 Vt. 4, 8, 298 A.2d 835, 837-38 (1972); Commonwealth v. Penn, 444 Pa. 526, 282 A.2d 233 (1971). Where such a relationship exists, a defendant may properly be convicted of the lesser charge, on the basis of an indictment for the greater. See A.L.I. Model Penal Code § 1.07(4) (1962); Federal Rules of Criminal Procedure, 18 U.S.C.A. Rule 31(c) (1969); Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis for Practitioners, 5 Conn.L.Rev. 255 (1972). Since the defendant concedes the adequacy of the indictment on the greater offense, he cannot now complain of insufficiency as to the included offense. State v. Doucet, 106 N.H. 225, 208 A.2d 456 (1965). The indictment for the greater charge was legally sufficient to notify the defendant that he might be called upon to defend the lesser-included charge. Walker v. United States, 135 U.S.App.D.C. 280, 418 F.2d 1116, 1119 (1969); People v. Ostrand, 35 Ill.2d 520, 530, 221 N.E.2d 499, 505 (1966).

Nor could the defendant suffer prejudice by the State's election to proceed only on the lesser offense of second-degree murder. The State's election benefited the defendant, by removing any possibility of a death sentence. Under such circumstances, it is held that the State may of its own accord abandon the charge of the greater crime and proceed with the prosecution of the lesser, and that no formal amendment of the indictment is required. State v. Edwards, 287 So.2d 518, 525 (La.1973); Cox v. State, 205 Kan. 867, 875, 473 P.2d 106, 113 (1970); 42 C.J.S. Indictments and Informations § 278 (1944). Twice arraigned, and fully aware of the State's decision in advance of trial, the defendant was not in doubt as to the offense with which he was charged and was sufficiently apprised of the factual basis for the indictment to prepare a competent defense. State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 696 (1973); State v. Story, 97 N.H. 141, 146, 83 A.2d 142, 147 (1951).

While the indictment for first-degree murder, including the words 'deliberately and with premeditation', was read to the jury, the court expressly made it clear at that time that the jury was to consider only whether the defendant was guilty of second-degree murder. This was again emphasized in the charge to the jury, which was instructed only on the elements of second-degree murder and the lesser-included offense of manslaughter. A review of the trial record suggests no prejudice which could have resulted from the reading of the indictment.

The defendant alleges error in the admission in evidence of his statements made under the following circumstances. During the general securing of the jail after the stabbing, the defendant was approached by an armed State police trooper and told to enter a nearby cell. Without any questioning by the officer, he blurted out, 'I had to do it. He was going to put the dog on me. I had to kill him.' Subsequently, the defendant requested to speak to the deputy sheriff who was acting superintendent of the jail. As the defendant was being escorted to a separate room for that purpose, without any conversation from the deputy, he said, 'Joe, I don't know why I killed him. Why did I?' Once inside the room, the defendant was for the first time advised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He then proceeded to give a complete statement of the incident, without questioning or interruption, which was recorded in a police notebook and read at trial.

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is clear that the prosecution may not use statements stemming from custodial interrogation unless safeguards to secure the privilege against self-incrimination were provided. However, since '(t)he fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated', a statement given freely and without any compelling influence is admissible in evidence. Miranda v. Arizona, supra at 478, 86 S.Ct. at 1630; State v. Mitchell, 113 N.H. 542, 543, 311 A.2d 134, 135 (1973). While there is little doubt that the defendant was at all times in custody, his statements were not the product of police interrogation. State v. Collins, 112 N.H. 449, 453, 298 A.2d 742, 745 (1972); cert. denied, 415 U.S. 982, 94 S.Ct. 1575, 39 L.Ed.2d 880 (1974).

The defendant urges that nevertheless they were not voluntarily made, but were induced by fear and the threat of harm, inherent in the charged situation. Although police custody may generate subjective anxiety...