State v. Cote

• Decision Date: 24 May 1985
• Docket Number: No. 83-334,83-334
• Citation: State v. Cote, 126 N.H. 514, 493 A.2d 1170 (N.H. 1985)
• Parties: The STATE of New Hampshire v. Richard J. COTE.
• Court: New Hampshire Supreme Court

Page 1170

493 A.2d 1170

126 N.H. 514

The STATE of New Hampshire v.Richard J. COTE.

No. 83-334.

Supreme Court of New Hampshire.

May 24, 1985.

Peter W. Mosseau, Acting Atty. Gen. (Robert B. Muh, Concord, on the brief and orally), for the State.

Holland & Aivalikles, Nashua (Francis G. Holland on the brief and orally), for defendant.

SOUTER, Justice.

The defendant was convicted of receipt of stolen property (RSA 637:7), possession of more than a pound of marijuana (RSA 318-B:26, I(c)), possession of marijuana with intent to sell the same (RSA 318-B:26, I(a)(2)), and possession of cocaine (RSA 318-B:26, I(b)(1)).In this appeal the defendant presses multifarious claims that the Superior Court(Flynn, J.) committed error in rulings relating to the sufficiency of pleadings, the admissibility of evidence and the conduct of the trial.We affirm.

On December 16, 1981, Nashua police arrested Edward Brinkman for burglaries of several apartments, from which five guns, a wrist watch, and a radio had been taken.After admitting the burglaries, Brinkman told the police that in an earlier conversation the defendant had suggested that if Brinkman could obtain some guns he might be able to sell them for as much as $50 apiece.Brinkman said that he had left the stolen property at Rosie's Rusty Nail Restaurant, run by the defendant.Based on this information the police obtained a warrant to search for the stolen property.The warrant described the place to be searched as "72 1/2 West Hollis Street, Nashua, New Hampshire doing business as Rosie's Rusty Nail situated on the first floor of a three story building...."

Early the same evening the police served a copy of the warrant on the defendant at the restaurant.When he learned that the police were searching for stolen guns, the defendant agreed to produce them.He opened a padlocked door to the cellar and led the police downstairs, where he retrieved the stolen guns from a crawl space.The police then noticed and seized a suitcase matching the description of one that Brinkman said he had used to carry the weapons.Before returning upstairs one officer noticed a pair of open boxes.They contained clear plastic bags filled with what appeared to the officer, and later proved, to be marijuana, weighing eight pounds.The police seized the bags, arrested the defendant and gave him Miranda warnings.They then took the defendant upstairs, where he dropped a plastic bag containing packets of white powder, which was found to be cocaine.

In the meantime, police upstairs found a briefcase containing the stolen watch.They never found the radio, however.By the end of the search, the police had found and seized another twelve pounds of marijuana and a triple beam scale, which one officer recognized as a device commonly used to measure quantities of marijuana for sale.

In the aftermath of the search, the police charged the defendant with receipt of stolen property, possession of more than a pound of marijuana, possession of marijuana with intent to sell it and possession of cocaine with like intent.After trial, a jury convicted the defendant of all charges except the last, finding the defendant guilty of simple possession of cocaine.The defendant appealed.

We first consider the defendant's challenge to the sufficiency of the indictment charging him with theft by receipt of stolen property.The body of that indictment charged that on December 16, 1981, in Nashua, the defendant

"[d]id, with a purpose to deprive Kurt Peterson thereof, retain property belonging to Kurt Peterson, believing the said property probably had been stolen, the said property being five (5) firearms in violation of RSA 637:7."

Before trial the defendant moved to dismiss the indictment on the ground that its allegation of intent to deprive was insufficiently detailed.

To understand his position it is necessary to consider two related statutory provisions.The first is RSA 637:7, I which creates the offense of receipt of stolen property by providing that

"[a] person commits theft if he ... retains ... the property of another ... believing that it has probably been stolen, with a purpose to deprive the owner thereof."

The second is RSA 637:2, III, which amplifies the foregoing statute by providing that

" '[p]urpose to deprive' means to have the conscious object:

(a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or

(b) To restore the property only upon payment of a reward or other compensation; or

(c) To dispose of the property under circumstances that make it unlikely that the owner will recover it."

Cf. R. Perkins, Criminal Law 266 (2d ed. 1969)(at common law intent to steal required intent to deprive permanently);State v. O'Brien, 114 N.H. 233, 235, 317 A.2d 783, 784(1974)(grand larceny but not "joy riding" requires intent to deprive permanently).

The defendant moved to dismiss the indictment on the ground that it failed to charge him with one of these specific variant forms of "purpose to deprive."This challenge to the indictment implicitly rests on the requirement of part I, article 15, of the State Constitution, which we have interpreted as requiring that a complaint or indictment "inform the defendant of the offense for which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy once again for the same offense."State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459(1974)(citations omitted).We have established a threshold for meeting that standard, by requiring an indictment to set forth "all of the necessary elements constituting the offense."State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778(1981).SeeRSA 625:11, III.

We find no indication in the record that the defendant's preparation for trial was actually prejudiced in any way by the failure of the indictment to allege one of the RSA 637:2, III variants specifically.In the present posture of the case, therefore, the appeal from the denial of the motion to dismiss raises only the question whether as a general rule of pleading we should classify the RSA 627:2, III variants as elements, one of which must always be alleged.For the following reasons we hold that alleging one of the variants is not necessary.

Starting at the most obvious point, it is not necessary to allege one of the variants in order to allege the mental element that is necessary for the commission of a crime, seeRSA 626:2, since an allegation of intent to deprive states a mental element.Nor would the allegation of one or another of the variants affect the degree of culpability or the severity of the offense charged.Compare, e.g., RSA 630:1-b, I(a) and RSA 630:2, I(b)(certain forms of second degree murder and manslaughter distinguished by difference between knowing and reckless state of mind).See generallyState v. Bussiere, 118 N.H. 659, 664, 392 A.2d 151, 155(1978).This is consistent with the fact that all of the variants have a common characteristic: they are states of mind that create, at the least, a "substantial risk of loss to the owner" of the stolen property.SeeReport of Commission to Recommend Codification of the Criminal Laws§ 582:2 comment at 62(1969).Therefore, a defendant charged with intent to deprive knows that he is charged with having had a conscious mental state that created such a risk of loss, and he knows this without any further specification of one of the RSA 637:2, III variants.

It is fair to say, then, that the specific allegation of one of the statutory variants has no bearing on culpability, and the allegation of intent to deprive, without more, indicates the basic harm that is threatened by any one of the variant forms of deprivation.The utility to the defendant of classifying the variants as elements so that one of them must be particularly alleged would therefore be limited at the very least.

In fact there probably would be no utility at all in such a requirement.This becomes apparent as soon as one identifies the cases in which specification of one of the variants would appear to be most helpful to a defendant.These would be cases in which the facts pleaded in the indictment and the circumstantial evidence bearing on intent are consistent with more than one of the RSA 637:2, III variants.At first glance, it would seem that in these cases the specific allegation of one variant would narrow the potential scope of the charge making it easier for the defendant to prepare for trial.

In practice, however, the result would be otherwise.Any such advantage to the defendant would, of course, create a corresponding risk to the prosecution, a risk of making a wrong prediction about which variant the jury would ultimately find consistent with the circumstantial evidence of intent.To guard against that risk, prosecutors would inevitably seek multiple indictments, or indictments with multiple counts, each alleging a different variant.SeeState v. Allison, 126 N.H. 111, 489 A.2d 620(1985).

Once the prosecution had resorted to multiple charges, however, the apparent utility to the defendant of specific pleading would simply disappear.A defendant faced with several counts, each specifically charging one of the statutory variants, would know nothing more than RSA 637:2, III would otherwise inform him about the possible arguments that a prosecutor could make to the jury.The result, in short, would be a useless proliferation of pleadings.We therefore conclude that there is no substantial, practical consideration that would support a requirement to allege one of the statutory variants.

Nor does protection against double jeopardy require any different result.Part I, article 16 of the Constitution of New Hampshire forbids double jeopardy for the "same crime or offense," and the...