State v. Coolidge

• Decision Date: 30 July 1969
• Docket Number: No. 5514,5514
• Citation: 109 N.H. 403,260 A.2d 547
• Parties: STATE v. Edward H. COOLIDGE, Jr.
• Court: New Hampshire Supreme Court

Page 547

260 A.2d 547

109 N.H. 403

STATE v. Edward H. COOLIDGE, Jr.

No. 5514.

Supreme Court of New Hampshire.

Argued Dec. 20, 1968.

Supplemental Argument June 3, 1969.

Decided June 30, 1969.

As Modified on Denial of Rehearing July 30, 1969.

Alexander J. Kalinski, Special Counsel, Manchester (by brief and orally), for the State.

Matthias J. Reynolds, John A. Graf, Robert L. Chiesa, and Stephen J. Spielman, Manchester, (by brief and orally), for defendant.

DUNCAN, Justice.

In January 1964, Pamela Mason resided with her parents and younger brother at 51 Donald Street in Manchester. She was a student at West High School, and upon occasion hired out after school hours as a baby sitter. On the afternoon of January 13, 1964 her mother received a telephone call from a man who sought a baby sitter for that evening. Mrs. Mason suggested that he call again after school hours. Pamela arrived home from school at about 4:15 P.M. and at 4:30 P.M. Mrs. Mason left for work at the Holiday Inn. A severe snow storm was then in progress. Before leaving, Mrs. Mason told Pamela of the expected phone call, and cautioned her against leaving the house to baby sit unless a woman should call for her. Shortly thereafter Pamela received a telephone call which her brother answered, but did not overhear. The caller was a man. Pamela then prepared supper for herself and her brother. She left the house at some time between 5:45 and 6:00 P.M. while her brother was assisting the landlord in installing an electrical fuse in the basement. No one saw Pamela leave the driveway. Because of the storm her mother did not return until about 3:00 A.M. on January 14, 1964. Pamela's family and the authorities had no further information concerning her whereabouts until January 21, 1964, when a passing truck driver discovered her lifeless body lying west of the southbound side of interstate highway 93, in Manchester, about six-tenths of a mile north of the Manchester-Londonderry line.

The storm of January 13 continued until midnight. It was a major storm with blizzard conditions and a fall of eleven inches, temperatures between seven and fifteen degrees, and heavy drifting. Temperatures remained below freezing through January 16, 1964 and on the night of January 20, 1964, a rain storm commenced.

An autopsy performed on the evening of January 21, 1964 showed that death resulted from several gunshot and knife wounds, including severance of the jugular vein. There was expert testimony that death had occurred on January 13, 1964 some two to four hours after the victim's last meal.

The evidence connecting the defendant with the crime was wholly circumstantial. He was employed by Cote Brothers Bakery as a route man. Evidence that he was absent from his home at 312 Seames Drive in Manchester between 5:30 P.M. and 11:15 P.M. on January 13, 1964 was not disputed. The defendant took the stand in his own behalf and denied all knowledge of the crimes charged. He admitted that he had attempted following January 13 to establish an alibi for his whereabouts that night, but asserted that in fact he had driven his Pontiac to Haverhill, Massachusetts to look for a gift for his wife for their wedding anniversary on January 15, 1964.

Various issues arising out of pretrial proceedings in these cases were considered by this court in State v. Coolidge, 106 N.H. 186, 208 A.2d 322, and State v. Superior Court, 106 N.H. 228, 229, 208 A.2d 832, 7 A.L.R.3d 1. In support of the exceptions transferred following the trial the defendant relies both upon the broad proposition that there was insufficient evidence to warrant his conviction, and upon numerous alleged violations of his rights under the State Constitution and the Fourth, Fifth, and Sixth Amendments to the Constitution of the United States, alleged errors relating to the admissibility and exclusion of evidence, and in the denial of various motions made during and after the trial.

The defendant's exception to denial of his motion for directed verdicts of acquittal upon the ground that the evidence did not warrant a finding of guilty beyond a reasonable doubt cuts across other exceptions, and its consideration requires a survey of the evidence. That there was evidence to warrant a finding that the victim was murdered is not a debatable question. It could also reasonably be inferred that kidnapping accompanied the offense.

As previously stated, evidence which pointed to the defendant as the perpetrator of the crime was circumstantial. The State produced evidence that the fatal bullets were fired from the defendant's gun. It was established that he owned more than one knife which could have inflicted the knife wounds, and that one of his knives was lost on the day that the victim disappeared, and found on the following morning near a laundromat which the defendant testified he had visited before going home the night of the 13th. The defendant conceded that on the night of January 13, 1964 he had been stationed in his Pontiac at the northbound side of Route 93 nearly across from where the victim's body was later found. There was other evidence that his Pontiac was then seen at 9:30 or 9:45 P.M., headed north, approximately across from where the body was found west of the southbound lanes.

There was evidence that comparison of a variety of particles of material found upon the defendant's clothing and in his Pontiac with particles found upon the victim's clothing showed similarities in such a number of instances as to indicate by the law of probabilities that there had been contact between the victim, and the accused or his vehicle. There was evidence that the telephone call which Mrs. Mason received on the afternoon of January 13, 1964 was that of a man whose voice Mrs. Mason later identified as 'very similar' to that of the defendant, and that Pamela disappeared shortly after she received another call from a man.

There was evidence that on the day after the disappearance and as late as January 24, the defendant engaged in elaborate attempts to establish an alibi for the night of January 13; and that on January 21, when thawing conditions prevailed and the body was found, but before its actual discovery, he had said that 'now' he 'really needed an alibi.' His explanations of his activities on January 13 and of his presence, stopped on the highway that night, could be found incredible. His acknowledged activities in the week which followed January 13 warranted an inference of guilt. State v. Thorp, 86 N.H. 501, 507, 171 A. 633, 172 A. 879.

There was evidence that the victim died within two to four hours of her last meal, and expert testimony to warrant a finding that death occurred on January 13. In the absence of evidence suggesting that death occurred outside of Hillsborough County, the discovery of the body within the Manchester limits warranted a finding that the crimes were committed there.

The proof, however, was not wholly free from weaknesses. No one witnessed Pamela's departure from her home, or could say under what circumstances it actually occurred. The time lapse between her departure at 5:45 or 6:00 P.M. and the discovery of the defendant in his automobile near the scene where the Frozen body was later found was approximately three and one-half hours. The evidence showed that when found the body was without undergarments, the blouse had been removed, but was frozen to the victim's back. A jacket, ski pants, socks, and boots were in normal position, but the pants were torn or cut at the crotch, and the zipper was jammed. The victim's books, pocketbook, and scarf were scattered over the area. The body was exsanguinated, but there was no evidence of blood discovered in the defendant's car or upon his clothing and there was little blood on the victim's clothing. There was expert testimony that no anatomical evidence demonstrated that she was killed at the place where she was found.

The limitations of time served to cast doubt upon the likelihood that the State was correct in its theory that the crimes had been committed in a space of three and one-half hours of extremely stormy weather. Further doubts were cast by evidence that the defendant was seen at a Manchester club at about 5:30 P.M. and that between 6:30 and 7:00 P.M. he saw an acquaintance at the Sears-Roebuck store on Elm Street, who was in fact there at that hour.

In the field of ballistics, the credibility of the State's evidence was strained by events which transpired at the trial. Certain of its experts testified that the murder weapon received in evidence had also fired the bullets which had killed Sandra Valade, another minor, in February, 1960. Evidence later produced by the defendant established that he had not acquired the weapon until December 1961 when it was sent to him by mail direct from the manufacturer. Additionally, two experts who had examined both the Valade and Mason bullets testified that the Valade bullets had not been fired from the defendant's Mossberg rifle. One of them called by the defendant testified that the Mason bullets were not so fired. The other declined to give an opinion as to whether the Mason bullets were or were not so fired, for lack of sufficient opportunity to reach a final conclusion.

The evidence concerning matching particles was arguably inconclusive on the issue of probability. Twenty-seven particles from sources connected with the victim were said to match twenty-seven particles from sources related to the defendant; but evidence that each set of matching particles was independently different from other matching sets so that no duplication existed, was less positive. Tested by neutron activation analysis, only four of fourteen particles from both sources were claimed to have a common origin.

Considering the evidence as a whole, and the inferences which could reasonably be drawn, both favorable and unfavorable to the defendant, and granting that a finding of guilt was not compelled, yet we...