State v. Farrow, s. 7731

• Decision Date: 28 April 1978
• Docket Number: 7821,Nos. 7731,s. 7731
• Citation: 118 N.H. 296,386 A.2d 808
• Parties: The STATE of New Hampshire v. Gary S. FARROW. The STATE of New Hampshire v. James SMITH.
• Court: New Hampshire Supreme Court

Page 808

386 A.2d 808

118 N.H. 296

The STATE of New Hampshire v. Gary S. FARROW.

The STATE of New Hampshire v. James SMITH.

Nos. 7731, 7821.

Supreme Court of New Hampshire.

April 28, 1978.

Russell F. Hilliard and Ernest T. Smith, III, Concord, for Gary S. farrow.

Dunn & Hilliard, Concord (Russell F. Hilliard orally), for James Smith.

David H. Souter, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

DOUGLAS, Justice.

The primary challenge of defendants in these cases is to the power of the legislature to prescribe the penalty of life imprisonment without possibility of parole for first-degree murder. In order to be convicted of first-degree murder a person must have purposely caused the death of another, that is "that the actor's conscious object is the death of another, and that his act or acts in furtherance of that object were deliberate and premeditated." RSA 630:1-a II (Supp.1977). Upon conviction for this crime, the perpetrator "shall be sentenced to life imprisonment and shall not be eligible for parole at any time." RSA 630:1-a III (Supp.1977). Both defendants were found guilty of first-degree murder at separate trials by jury and sentenced by the Court (Johnson, J.) in accordance with the statute.

The decedent, Michael Stitt, was mentally enfeebled from brain damage suffered as a youth. He became acquainted with the defendants while all three were serving terms in Merrimack County and where both defendants had beaten Stitt and were punished. Farrow later threatened Stitt as a result of this incident. After Stitt and Farrow had been released, Stitt borrowed $1.60 from the latter. When Farrow was not promptly repaid, he raised the debt to over $20.

On the night of the murder, the defendants, accompanied by Cheryl Keiler-Frye and her friend, Deborah Pratt, were at a Concord bar. The State alleges in its brief that both women were deeply involved in selling drugs. At about 8:00 p. m., the defendants left the bar and met Stitt, whom they apparently threatened about the money. Stitt then went to a coffee house. In a conversation with the proprietor, Stitt related his fears about someone to whom he owed money. His body was found the next morning near the State liquor warehouse with multiple stab wounds, abrasions and a slit throat.

The remaining facts are in dispute. According to the testimony of Miss Keiler-Frye, which the State obtained by immunizing her from drug charges, she left the bar alone at 9:00 p. m. to search for Farrow. As she approached the State liquor warehouse, she heard Farrow's voice and shrieking from a third person. Coming closer, she observed the defendants kicking a prone body. She testified that she next saw defendants do something that Farrow later told her was tossing a coin to decide who would kill Stitt. Farrow was designated, and Smith handed him the knife with which Farrow murdered Stitt. Defendant Smith claims that Miss Keiler-Frye could not have witnessed these events because she was constantly with Deborah Pratt during the time they supposedly occurred however, the State was not willing to grant immunity to Miss Pratt from the same drug-dealing charges as it had Miss Keiler-Frye. When Miss Pratt was called to testify, she pleaded her fifth amendment right to remain silent to all questions except the one calling for her name.

Smith assigns as error the refusal of the State to immunize from prosecution his alleged exculpatory witness. He also excepts to certain aspects of the jury selection proceeding and testimony concerning his hair type. Both defendants challenge the constitutionality of RSA 630:1-a III (Supp.1977), under which they were sentenced to life imprisonment without possibility of parole. Since the last issue, is common to both defendants, we consider it first.

I

The defendants' challenge to RSA 630:1-a III (Supp.1977) is founded on several prongs. They argue that a right to parole is guaranteed by the substantive aspect of the due process clause of the fourteenth amendment to the United States Constitution. Alternatively, life imprisonment without parole constitutes cruel and unusual punishment prohibited by the eighth amendment, which the due process clause makes applicable to the States, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Defendant Farrow also argues that a mandated sentence is a legislative usurpation of a judicial function and a violation of our State constitution. N.H.Const., pt. I, art. 18.

In meeting the defendants' arguments, the State cites to several cases in which sentences of life imprisonment without parole were upheld for murder, Green v. Teets, 244 F.2d 401 (9th Cir. 1957); State v. Spence, 367 A.2d 983 (Del.Supr.1976), kidnapping, State v. Taylor, 82 Ariz. 289, 312 P.2d 162 (1957); People v. Isitt, 55 Cal.App.3d 23, 127 Cal.Rptr. 279 (1976), and rape, Edwards v. Commonwealth, 500 S.W.2d 396 (Ky.1973). But cf. Workman v. Commonwealth, 429 S.W.2d 374 (Ky.1968) (life without parole cruel and unusual punishment for 14-year-old convicted of rape). The only one of these cases that analyzes the constitutionality of paroleless sentences in detail focuses on only one aspect of the eighth amendment whether life imprisonment without parole is a disproportionate sentence for kidnapping. People v. Isitt supra. Only two cases considered the constitutionality of a statute that imposed mandatory life sentences. State v. Taylor supra; State v. Spence supra. Both cases give only summary consideration to the constitutionality of such statutes and only Spence, of all the State's cases, was decided after the Supreme Court held that mandatory death sentences, lacking discretion, were unconstitutional. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Hence we consider the defendants' arguments against mandatory paroleless life sentence statutes on first impression.

A

The defendants' first contention that a right to parole exists in the substantive aspect of the due process clause is meritless. Since 1937, the due process clause has been used to protect substantive rights which are fundamental to notions of ordered liberty, Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), " 'which belong . . . to the citizens of all free governments . . ..' " Poe v. Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting), quoting Corfield v. Coryell, 6 Fed. Cas. No. 3,230, pp. 546, 551 (C.C.E.D.Pa.1823). Few claims rise to that standard. Indeed, the only previously unarticulated substantive rights judicially protected through the due process clause since 1937 have concerned the particularly intimate area of heterosexual relations, marriage and procreation. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (privacy). See also Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). In the most comprehensive judicial exegesis of the meaning of due process," Justice Harlan suggested guidelines to aid judges in evaluating novel claims:

(The content of 'due process') represent(s) the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . The balance . . . is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. . . . The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria.

Poe v. Ullman, 367 U.S. at 542-44, 81 S.Ct. at 1776-1777 (Harlan, J., dissenting).

Measured against this standard, the defendants' claim must fail. There is nothing in the history of Anglo-American jurisprudence to suggest that parole constitutes a fundamental right. The first parole statute was enacted 101 years ago in New York; the federal parole statute did not follow until forty years later. Note, Parole Revocation in The Federal System, 56 Geo.L.J. 705 (1968). Although the practice of parole is an integral part of American penological systems and has outrun its erstwhile experimental nature, Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U.L.Rev. 702 (1963), its widespread use does not convert a matter of legislative grace into a fundamental right. Cf. Stone v. Perrin, 118 N.H. ---, 382 A.2d 1112 (1978).

Because parole is not an interest that receives enhanced protection under the due process clause, the State need have only a rational purpose in denying parole. We have already characterized the need to protect society against murderers as compelling. The permanent isolation of such persons from the community certainty bears a rational relation to that end. And seeking to avert any miscarriage of justice that occurs when the parole authorities release dangerous felons by restricting the power to release murders to the Governor through his pardoning power also furthers the State's goal. We hold that no right to parole exists in substantive due process.

B

The defendants also claim that life imprisonment without possibility of parole is cruel and unusual punishment. Although the Supreme Court has considered the meaning of "cruel and unusual" on numerous occasions, it has yet to promulgate one all-inclusive test that a majority of the Justices have sanctioned for measuring all penalties....