State v. Dukette

• Decision Date: 06 January 1986
• Docket Number: No. 84-381,84-381
• Citation: 127 N.H. 540,506 A.2d 699
• Parties: The STATE of New Hampshire v. Wilfred DUKETTE.
• Court: New Hampshire Supreme Court

Page 699

506 A.2d 699

127 N.H. 540

The STATE of New Hampshire v. Wilfred DUKETTE.

No. 84-381.

Supreme Court of New Hampshire.

Jan. 6, 1986.

Stephen E. Merrill, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on brief and orally), for the State.

Bertram D. Astles, of Derry, by brief and orally, for defendant.

SOUTER, Justice.

In State v. Dukette, 122 N.H. 336, 444 A.2d 547 (1982), this court affirmed the defendant's conviction for aggravated felonious sexual assault perpetrated by means of physical force. RSA 632-A:2, I (Supp.1983). After we had denied the defendant's subsequent petition for writ of habeas corpus, Dukette v. Perrin, No. 82-531, the United States District Court for the District of New Hampshire vacated the conviction in the exercise of its own habeas corpus jurisdiction, based on the trial court's failure to instruct the jury on a lesser-included offense. See Dukette v. Perrin, 564 F.Supp. 1530 (D.N.H.1983). After retrial in the superior court under the original indictment, the defendant was again convicted, and he again appeals.

He raises four issues: (a) that Dunn, J., erred in refusing to remove the public defender as trial counsel, despite the defendant's dissatisfaction; and that Nadeau, J., erred (b) in refusing to dismiss the indictment due to the State's destruction of evidence; (c) in refusing to order discovery into the circumstances of what the victim had described as an earlier, unreported rape; and (d) in denying a motion to set aside the guilty verdict for insufficiency of evidence. We affirm.

Because the defendant challenges the sufficiency of the evidence, we will begin by supplementing the statement of facts contained in the report of the first appeal. At each trial, the State's principal witness was the victim, who testified that the defendant grabbed her by the neck and forced her to walk to an area behind her apartment building, where he pushed her down an incline. There he maintained his grip on her throat as he removed her trousers and forcibly committed an act of penetration. The victim claimed that in the course of these acts the defendant pulled her hair, slapped her face, bit her breasts and genitalia, and spoke obscenities. She testified that she was eventually able to strike the defendant in the groin and then to escape by running away naked from the waist.

Her roommate testified that the victim's lower body was naked on her return to the apartment, and both the roommate and a police officer who soon came to investigate testified that the victim was agitated and frightened. The physician who later examined the victim noted, nevertheless, that she then appeared "quite calm." While he found "very little evidence of any trauma," he did observe an abrasion of the vulva that could have resulted from forceable intercourse, and he reported that the victim described her breasts and jaw as tender. The defendant and the State stipulated that medical tests revealed no sperm or seminal fluid on the victim.

The defendant testified on his own behalf. He stated that the victim had taken the keys to his motorcycle and that he had reacted by pushing her against a wall, but he denied any other forceable act or sexual assault.

Turning to the assignments of error, we take up first the defendant's claim that his conviction is tainted by the trial court's abuse of discretion in declining to allow the public defender to withdraw as counsel. When the case was returned to the superior court, the defendant was still represented by counsel who had appeared for him at the first trial. When the defendant moved to appear pro se, the court permitted counsel to withdraw and granted a trial continuance. On the day next set for retrial, however, after the prosecution's witnesses had been brought in from outside the State, the defendant requested the appointment of new counsel and moved for a further continuance. The court then appointed the public defender.

While the defendant did not object to that appointment, he later insisted that the public defender allow one John Settle to participate in the preparation of the case. See State v. Settle, 123 N.H. 34, 455 A.2d 1031 (1983). Settle has been the subject of an inquiry by the Attorney General into the unauthorized practice of law, see generally State v. Settle, 124 N.H. 832, 480 A.2d 6 (1984); and he is presently appealing an order of the superior court enjoining him from engaging in unauthorized practice. See State v. Settle (No. 85-154).

The public defender refused to be associated with Settle. Because Settle had possession of the discovery material earlier provided to the defendant, however, the public defender was unable to prepare the case in time for the scheduled trial date. Faced with this dilemma, the public defender informed the court that the defendant wished the defender to withdraw for failure to cooperate with Settle. The defendant made no claim that the public defender did not represent him competently.

The court refused to allow the public defender to withdraw, agreed to continue the trial for a third time, and stated that the court would "get out an order with regard to Mr. Settle [that] will resolve that problem." The order referred to is not before us, and the only issue is whether the court should have allowed the defender to withdraw.

The court's action was proper under the general rule, which is no less applicable when the public defender is involved, that "a court can compel a defendant to go to trial with present counsel if the court determines, within its sound discretion, that the objections to counsel are dilatory tactics or otherwise unwarranted." State v. Linsky, 117 N.H. 866, 880, 379 A.2d 813, 822 (1977) (citing Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976); Lofton v. Procunier, 487 F.2d 434 (9th Cir.1973)). The public defender was clearly warranted in refusing to be associated with Settle, and the defendant's consequent dissatisfaction was just as clearly unwarranted.

Indeed, in this appeal the defendant's only argument in support of his contention that the court abused its discretion rests on a basis quite unrelated to the foregoing facts. The defendant now argues that he should have had an opportunity to retain private counsel of his choice, because he could be compelled to reimburse the State for the expense of his appointed counsel. See RSA 604-A:9 (Supp.1983). The obvious response to this is that a right to counsel is not a right to endless engagement in dilatory tactics. Moreover, since the defendant did not present his current argument to the trial court at the pretrial hearing to which we have referred, he may not raise it for the first time here. State v. Shannon, 125 N.H. 653, 657, 484 A.2d 1164, 1168 (1984).

Next, we take up the defendant's claim that he was entitled to dismissal of the indictment because of the loss or destruction of evidence between the first and second trials. After this court's decision on the first appeal, on April 7, 1982, the evidence was returned to the State on June 15. At some time thereafter, but before the filing of the federal petition for habeas corpus, the State disposed of or destroyed some evidence. That evidence included the trousers that the victim was wearing on the night in question, which are the subject of the defendant's concern here.

The defendant claims that his retrial without the trousers as evidence denied him rights guaranteed by the sixth amendment of the Constitution of the United States, which we take to be a mistaken reference to the fifth and fourteenth amendments, and by part I, article 15 of the Constitution of New Hampshire. We assume that the defendant relies upon the due process guarantee in article 15 of the right to "produce all proofs that may be favorable to himself." As is our practice, we first consider the State claims independently, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983); see also Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201 (1983).

As an issue of State constitutional law, the claim that retrial without the lost evidence was a denial of due process presents a question of first impression. Cf. State v. Woodman, 125 N.H. 381, 480 A.2d 169 (1984) and State v. Berry, 124 N.H. 203, 470 A.2d 881 (1983) (right to due process is implicated when evidence in a criminal trial is destroyed). We do have the benefit, however, of extensive federal case law dealing with post-conviction requests for relief on the ground that the defendant had been deprived of relevant evidence at trial. In considering this body of law for its guidance in dealing with the State issue, we will observe the distinction between cases dealing with evidence that was withheld, but is still in the government's control, and cases dealing with evidence that was lost or destroyed. Compare Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (evidence withheld), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (evidence withheld), with United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) (evidence lost); United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971) (evidence lost); United States v. Picariello, 568 F.2d 222 (1st Cir.1978) (evidence destroyed); State v. Miskolczi, 123 N.H. 626, 465 A.2d 919 (1983) (federal law applied where evidence destroyed).

All post-conviction access to evidence cases have dealt with, or alluded to, the need to assess the due process significance of such a deprivation by reference to the importance or materiality of the evidence as helpful or exculpatory to the defense, and by reference to the prejudice to the defendant resulting from the deprivation. See, e.g., United States v. Agurs, supra, 427 U.S. at 112-13, 96 S.Ct. at 2401-02; United States v. Picariello, supra at 227. In deriving an appropriate standard of importance or materiality, however, the federal case law dealing with lost or destroyed...