State v. Crooker

• Decision Date: 19 December 1994
• Docket Number: No. 93-504,93-504
• Citation: 651 A.2d 470,139 N.H. 226
• Parties: The STATE of New Hampshire, v. Jay CROOKER.
• Court: New Hampshire Supreme Court

Page 470

651 A.2d 470

139 N.H. 226

The STATE of New Hampshire, v.Jay CROOKER.

No. 93-504.

Supreme Court of New Hampshire.

Dec. 19, 1994.

Jeffrey R. Howard, Atty. Gen. (John C. Kissinger, Asst. Atty. Gen., on the brief and orally), for State.

Judith M. Kasper and David M. Rothstein, Asst. Appellate Defenders, Concord (Ms. Kasper on the brief, and Mr. Rothstein orally), for defendant.

HORTON, Justice.

The defendant, Jay Crooker, was convicted on two counts of aggravated felonious sexual assault, RSA 632-A:2 (Supp.1993), following a jury trial in Superior Court(Hollman, J.).On appeal, the defendant argues that the trial court erred by permitting the State to amend its bill of particulars four days before the trial in violation of his right to due process under the State and Federal Constitutions.We affirm.

The defendant was indicted on two counts of aggravated felonious sexual assault in November 1990.The first count alleged that the defendant committed fellatio on the minor victim between July and October 1990.The second count alleged that the defendant committed digital anal penetration on the minor victim between July and September 1990.

In December 1990, the defendant filed a motion for bill of particulars which sought specification of the date, time and location of the offenses.The court granted the defendant's motion to the extent that the complainant was able to recall with more particularity the date or occasion of the alleged assault.In May 1991, the State submitted a bill of particulars which stated that the incident of fellatio occurred on October 19, 1990.On April 14, 1993, approximately two years after filing the bill of particulars and only four days before trial, the State moved to amend the bill of particulars.The Court(Hollman, J.) granted the motion, which expanded the time period for the alleged incident of fellatio from a single day, October 19, 1990, to a period of nineteen days, October 1 through 19, 1990.The defendant objected to the State's motion but did not seek a continuance of the trial.

The defendant argues that he was denied his right to due process under the State and Federal Constitutions when the trial court permitted the State to amend the bill of particulars only four days before trial.In deciding this case, we first look to our own State Constitution, and then if necessary to the Federal Constitution to determine whether it provides the defendant greater protection, State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351(1983), citing decisions of federal courts and courts of other jurisdictions when helpful in analyzing and deciding the State issue.State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143(1985).Because federal law is not more favorable to the defendant in this case, seeIn re Tracy M., 137 N.H. 119, 122, 624 A.2d 963, 965(1993);see alsoUnited States v. Johnson, 575 F.2d 1347, 1357(5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454(1979), we make no separate federal analysis.Maya, 126 N.H. at 594, 493 A.2d at 1143.

A bill of particulars may be amended at any time, seeState v. Allison, 134 N.H. 550, 554, 595 A.2d 1089, 1091(1991), and the amendment may expand the scope of the issues for trial.Id. at 555, 595 A.2d at 1092.The determinative factor in allowing the State to amend the bill of particulars is whether the amendment will prejudice the defendant.Taylor v. State, 444 So.2d 931, 935(Fla.1983);see alsoState v. Voorhees, 137 N.H. 650, 652, 632 A.2d 825, 826(1993)(denial of motion for bill of particulars reversed only if clearly untenable or unreasonable to the prejudice of defendant's case).Because one purpose of the bill of...