State v. Dery

• Decision Date: 03 July 1991
• Docket Number: No. 88-098,88-098
• Citation: 594 A.2d 149,134 N.H. 370
• Parties: The STATE of New Hampshire v. George D. DERY.
• Court: New Hampshire Supreme Court

Page 149

594 A.2d 149

134 N.H. 370

The STATE of New Hampshire v.George D. DERY.

No. 88-098.

Supreme Court of New Hampshire.

July 3, 1991.

John P. Arnold, Atty. Gen. (Tina L. Nadeau, Atty., on the brief, and Peter Beeson, Senior Asst. Atty. Gen., orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

THAYER, Justice.

The defendant was convicted after a jury trial in Superior Court(Hollman, J.) of five counts of negligent homicide in consequence of operating a vehicle under the influence of intoxicating liquor, RSA 630:3, I(b)(currently codified as RSA 630:3, II (Supp.1990)), and five counts of negligent homicide based on negligence in the operation of an unsafe vehicle at an unreasonable speed, RSA 630:3, I(a)(currently codified as RSA 630:3, I (Supp.1990)).He was sentenced only on the latter counts.The defendant appeals, alleging first that he was denied due process of law when the prosecution failed to provide, in discovery, exculpatory evidence consisting of the arrest and conviction record of a witness.The defendant alleges, further, that the trial court's denial of his motion to dismiss the second set of indictments, charging him with negligent homicide based on an unsafe vehicle and unreasonable speed, violated his right to a speedy indictment.We affirm.

The facts elicited at trial were as follows.On October 16, 1983, the defendant was involved in an automobile accident in Epsom in which five people died.The defendant was driving a car he had bought from his friend, David Letourneau, four days earlier.At the time of the purchase, the car needed tires, had a loud exhaust, and was missing a bolt at the front end stabilizer chassis bushing.The defendant was warned by his housemate that it would be dangerous to drive the car in its present condition and was advised to take it to a garage.He obtained a temporary plate by stating that he believed the car met safety requirements.

Letourneau and the defendant met at the defendant's residence around noon on the day of the accident, where they drank some beer together.They then went to a third person's residence, where the defendant did a "shot" of tequila, but vomited immediately.All three people then picked up a case of beer on the way to a fourth person's residence, where they stayed from about 2:00 p.m. until 6:00 p.m., when the four left to go to a store for more beer.The accident occurred while en route to the store.While driving north on Route 28, the defendant allowed his car to drift to the right over the fog line several times.He then accelerated rapidly, swerved across the double yellow line and collided with another car traveling south.Three occupants of the southbound car and two occupants of the defendant's car were killed as a result of the crash.

Minutes after the crash, an emergency medical technician (EMT) arrived on the scene and checked the defendant's respiratory functions.The EMT could detect the smell of alcohol coming from the defendant's mouth.A second EMT transported the defendant to the hospital and, during the twenty-minute ride, detected a strong odor of alcohol on the defendant's breath.After having conversed with the defendant, she concluded that his ability to operate a motor vehicle was "definitely impaired."A lab technician for the hospital trauma team who attended the defendant in the emergency room testified that the defendant appeared heavily influenced by alcohol.The defendant was arrested at the hospital by a State trooper, who spoke with the defendant about the accident and detected alcohol on the defendant's breath.The defendant acknowledged drinking "[j]ust a few beers" and having bald tires.

On October 20, 1983, four days after his arrest, the defendant was indicted by a Merrimack County Grand Jury on five counts of negligent operation of his vehicle while under the influence of intoxicating liquor, consequently causing the deaths of the five victims.A suppression issue was decided on an interlocutory transfer to this court, seeState v. Dery, 126 N.H. 747, 496 A.2d 357(1985), and the defendant was thereafter tried before a jury in December of 1985.Prior to trial, the defendant moved to exclude any expert testimony on whether his car was in poor condition, and his motion was granted.When the jury was unable to reach a unanimous verdict, a mistrial was declared.

Immediately thereafter, the Merrimack County Attorney sought and obtained five additional indictments for negligent homicide, alleging that the defendant caused the deaths by operating his car in an unsafe condition and at an unreasonable speed.The defendant was tried again in January of 1988 on all ten indictments.

Letourneau, who was the only survivor of the collision other than the defendant, testified at trial that the defendant was walking and talking appropriately and was definitely not drunk at the time of the accident.Letourneau was not certain how much the defendant drank that day, but imagined that the defendant"was impaired a little bit because he had been drinking."

At the time of the accident, the defendant's car had two bald tires, and a third one was nearly bald.The right front tire was a steel-belted radial, and the other three were bias-ply tires (non-belted, non-radial).A front-end tie rod/sway bar was in place, but not properly fastened.The caster shims which are necessary to align a front end were missing, and spring spacers had been inserted into the front end suspension to correct for failing springs.

The prosecution's expert in accident reconstruction testified at trial that, from marks left by the defendant's car at the accident scene, he calculated that the defendant was driving the car between 72 mph and 82 mph.The posted speed limit was 55 mph.He further testified that, in his opinion, the accident was caused by excessive speed and alcohol.Assuming alcohol was not a factor, his hypothetical opinion was that the defendant's steering reactions were too slow for the speed of travel, which, compounded by mechanical defects in the car, caused it to pull to the right as he entered a curve in the roadway.

A defense expert testified to his belief that several engine mounts broke when the defendant's car traveled onto the shoulder of the road to avoid an oncoming car, which in turn caused the engine to lunge forward and the car to accelerate, sending it into a skid.This expert agreed that the engine mounts would not have broken had the defendant not "driven at that speed, with that car, on that road at that time."

The defendant was convicted on all ten indictments.He was sentenced only on the five indictments alleging negligent homicide due to the operation of an unsafe vehicle.During the sentencing hearing, the prosecution revealed that Letourneau, one of the key prosecution witnesses at trial, had been arrested and convicted of a DWI offense prior to the first trial.Because the defendant had previously requested discovery of such evidence, he filed a motion to dismiss or for a new trial.The motion was denied, and this appeal followed.

We will first address the defendant's contention that the set of indictments for negligent homicide predicated on the poor condition of the defendant's car, brought after the mistrial in 1985, violated the rule in State v. Hastings, 120 N.H. 454, 417 A.2d 7(1980).Because the second set of indictments was not presented until twenty-six months after the defendant's arrest, he argues that the delay was unreasonable and the indictments should have been dismissed.We disagree that our holding in Hastings is applicable.

In Hastings, this court adopted a rule requiring the State to indict defendants within sixty days of arrest.State v. Hastings, 120 N.H. at 455-56, 417 A.2d at 8.If an indictment is not presented within sixty days, the prosecution is required to show the reasonableness of the delay.Id.The purpose of the rule is to require the State to make a diligent, good faith effort to bring a defendant to trial once he is arrested.Id. at 455, 417 A.2d at 8.A violation of the rule may, therefore, result in the dismissal of pending charges.SeeState v. Wellman, 128 N.H. 340, 348-49, 513 A.2d 944, 950(1986).

However, when a defendant is initially indicted in compliance with Hastings and is subsequently reindicted, we determine the appropriateness of the later indictment in light of the defendant's constitutional right to a speedy trial, rather than our court-created right to a speedy indictment.SeeState v. Adams, 133 N.H. 818, ----, 585 A.2d 853, 855(1991).As we stated in State v. Adams, a challenged delay between original and subsequent indictments will be analyzed under speedy trial principles, in accordance with the approach articulated by the United States Court of Appeals for the First Circuit in United States v. Colombo, 852 F.2d 19, 23-24(1st Cir.1988).Adams, supra at ----, 585 A.2d at 855-56.

The defendant in the case before us does not dispute that the State complied with the Hastings mandate when he was initially indicted four days after his arrest, well within the sixty-day requirement.As far as the second set of indictments is concerned, however, because the defendant neither briefed nor argued a violation of his right to a speedy trial, he has waived that issue on appeal.SeeStewart v. Cunningham, Warden, 131 N.H. 68, 71, 550 A.2d 96, 98(1988)(issues raised in notice of appeal but not briefed are deemed waived).

We next consider the defendant's argument that the due process clause of the fourteenth amendment to the Federal Constitutionandpart I, article 15 of the New Hampshire Constitution require the prosecution to disclose, prior to trial, all exculpatory evidence, including evidence which could be used to impeach a prosecution witness.The defendant contends that the prosecution's failure to produce evidence of the arrest and DWI conviction of David...