State v. Elliott, 89-479

• Citation: 585 A.2d 304,133 N.H. 759
• Decision Date: 31 December 1990
• Docket Number: No. 89-479,89-479
• Parties: The STATE of New Hampshire v. Elmer ELLIOTT.
• Court: Supreme Court of New Hampshire

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585 A.2d 304 133 N.H. 759 The STATE of New Hampshire
v.
Elmer ELLIOTT. No. 89-479. Supreme Court of New Hampshire. Dec. 31, 1990.
Rehearing Denied Feb. 8, 1991.

[133 N.H. 760] John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief and orally), for the State.

Stephen T. Jeffco P.A., Portsmouth (Stephen T. Jeffco, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, Elmer Elliott, was convicted of manslaughter after a jury trial in Superior Court (Nadeau, J.) and was sentenced to ten to twenty years of imprisonment. Elliott appeals the conviction, arguing that the court (1) impermissibly amended the grand jury's indictment in its jury instructions; (2) erroneously defined causation in its instruction to the jury; (3) erroneously instructed the jury on the issue of intervening cause; and (4) erroneously considered victim impact statements in sentencing him. For the reasons given below, we reverse and remand for a new trial.

This case arose out of a shooting incident which occurred in the early morning hours of July 3, 1988, at the Silver Bell Mobile Home Park in Rochester. The four main participants were the victim, Joseph Lavertue; the defendant, Elmer "Sonny" Elliott; his wife, Beverly Elliott; and James Tibbetts.

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All four were residents of the mobile home park at the time of the victim's death.

At about 10:00 p.m. on July 2, 1988, the defendant and the victim began arguing with each other outside the defendant's mobile home. Witnesses testified that the defendant became loud and abusive during the argument, while the victim remained calm. Soon the confrontation ended, however, and the two men, joined by Tibbetts, began talking and drinking amiably together. Around midnight they went inside the defendant's mobile home, where the three men and the defendant's wife talked, and the men continued to drink.

After a few moments, the defendant told the victim to leave, but he refused. When the victim again ignored his demand, the defendant left the room and returned with a rifle. Aiming it at the ceiling, the defendant yelled to the victim, "Get the f--- out of my house." The defendant's wife and Tibbetts told the defendant to put the rifle [133 N.H. 761] away. The defendant walked out of the room and into his bedroom, carrying the rifle with him. The victim still did not leave, but instead followed the defendant into the bedroom. At this point, the victim's blood alcohol content was 0.26%, while the defendant's was estimated to be between 0.24% and .32%.

Five to ten minutes later, Beverly Elliott and Tibbetts heard a noise coming from the bedroom. They walked to the bedroom door and entered the room. Tibbetts testified:

"I saw Mr. Lavertue standing over Mr. Elliott. And Mr. Elliott was on his back on the bed, and Mr. Lavertue was like over him, like, and he had his arm out, out the full extent like that, pushed out, down to the mid-section of Mr. Elliott's chest.... [A]nd I kind of looked, and Mr. Elliott had like kind of a strain on his face."

Beverly Elliott testified,

"When I came in, I saw that Joe [Lavertue] had a hold of my husband's neck, and they were laying across the bed.... Joe was strangling Sonny [Elliott].... He looked kind of grayish.... I said something like, 'what's going on? Give me the rifle before someone gets hurt.' Joe had--was over someplace--I don't even know. All I know is that Sonny started sitting up on the bed, and he was handing--handing me the rifle.... Next thing I know, I had it in my hands, and then Joe from on the right hand side of me pushed it up against my head, and then--I don't know if I heard it go off, or I just imagined it or what, but all I can think of was to myself, 'I'm going to get shot.' "

The defendant's gun discharged, and the bullet struck the victim's head, killing him instantly. When the police arrived, the defendant told them, "I shot him. He's in the bedroom. I shot him."

On August 11, 1988, the Strafford County Grand Jury indicted the defendant for manslaughter. The indictment states that the defendant "did commit the crime of manslaughter in that he recklessly caused the death of Joseph Lavertue by shooting him in the head with a rifle...." On the first day of trial, before the opening statements were made, the defendant made a motion in limine. He had seen the State's proposed jury instructions and noted that the causation instruction (instruction number two) did not state that it was the State's burden to prove beyond a reasonable doubt that he had shot Joseph Lavertue. The defendant asked the court to forbid the State, [133 N.H. 762] in its opening statement, from telling the jury that it could convict him of manslaughter even if it found that he did not "shoot" Lavertue. The court did not grant the defendant's motion, but instead stated:

"I am planning to give instruction number two.... I'll give it as it is written, not as anyone may have interpreted it by the statements they have made here today. My suggestion is that everyone read their instructions and make their arguments and openings in accordance with the instruction. I think it's an accurate instruction on the law of causation."

Defendant's counsel told the jury in his opening statement that it was the State's burden to prove that he had shot Lavertue;

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the State, on the other hand, told the jury neither that it had to find that the defendant shot Lavertue, nor that it did not have to.

The defendant introduced no witnesses during trial, but presented his defense through his cross-examination of the State's witnesses. In addition to arguing justification, the defendant appeared to proceed on the theory that he could not be convicted of manslaughter because he did not pull the trigger of the gun, and therefore, did not "recklessly cause the death of Joseph Lavertue by shooting him in the head with a rifle." This theory of defense is evident in the defendant's objections and in his questioning of several witnesses. On the fifth day of the six-day trial, the court indicated that it would consider a causation instruction proposed by the defense. The defense had alluded to a proposed instruction which it would offer that would require the jury to find that the defendant "had to shoot" Lavertue. Defendant did not submit such a proposed instruction, however, but instead submitted the following causation instruction: "The State must prove [t]hat the defendant caused the death of another person. This means that the death of another person was the direct result of the defendant's actions...."

On the sixth day of trial, the defendant submitted a written objection to the State's proposed causation instruction, alleging that the instruction would impermissibly amend the grand jury's indictment. "In the case at bar, your Defendant is clearly prejudiced in his ability to prepare his defense where the Grand Jury charged him with, and he prepared his defense upon the premise that, he [shot] Joseph Lavertue." (Brackets in the original.) The trial court orally denied the defendant's objection, stating:

"I do not view as an element of this offense the requirement that the defendant is the one who pulled the trigger. To the [133 N.H. 763] extent that the indictment alleges that as a fact, I don't believe that it's--that it limits the manslaughter charge or the prospect for conviction to the circumstances under which the State would have to prove that the defendant fired the weapon."

The court then charged the jury, giving the following causation instruction:

"Now, the parties have stipulated that Mr. Lavertue's death resulted from a projectile to the head discharged from a 30/30 rifle belonging to the defendant. In order to convict the defendant, the State must prove beyond a reasonable doubt that the acts of the defendant caused the rifle to discharge. This does not mean, however, that the State must show that the defendant's acts were the sole cause of the rifle discharging.

Actions are the legal cause of an event if they are a direct and substantial factor in bringing the event about. In other words, stated in another way, a legal cause is the cause without which the event would not have occurred and the predominating cause, a substantial factor from which the event follows as a natural, direct and immediate consequence. To be the legal cause, the defendant's acts do not have to be the last acts of cause or the acts in point of time nearest to the discharge. Rather, the State must prove beyond a reasonable doubt only that the defendant's conduct substantially and materially contributed in a natural and continuous sequence, unbroken by an efficient intervening cause, causing the discharge of the rifle."

We will first address defendant's argument that the trial court's jury instruction impermissibly amended the grand jury's indictment, thereby prejudicing him in the preparation and presentation of his defense. We note that the defendant did not raise a State constitutional issue below. Normally, we would not address a State constitutional issue on appeal unless it was specifically raised below. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986). However, in arguing that the trial court impermissibly amended the grand jury's indictment, the defendant is alleging a violation of RSA 601:1. That statute guarantees individuals the right to an indictment by a grand jury before they may be tried for any offense punishable by

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imprisonment for more than one year. State v. [133 N.H. 764] Erickson, 129 N.H. 515, 518, 533 A.2d 23, 24 (1987). "In State v. Bean, 117 N.H. 185, 188, 371 A.2d 1152, 1153-54 (1977), this court held that this provision should be considered in conjunction with part I, article 15 of the New Hampshire Constitution, which provides that '[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to...