State v. Fernald, 82-201

Decision Date17 June 1983
Docket NumberNo. 82-201,82-201
Citation462 A.2d 122,123 N.H. 442
PartiesThe STATE of New Hampshire v. Paul FERNALD.
CourtNew Hampshire Supreme Court

Gregory H. Smith, Atty. Gen. (John A. Malmberg, Asst. Atty. Gen., on brief), for the State.

James E. Duggan, Appellate Defender, Concord, by brief for defendant.

DOUGLAS, Justice.

The defendant was convicted in Superior Court (Souter, J.) of kidnapping, RSA 633:1, I(c), robbery, RSA 636:1, and felonious use of a firearm, RSA 650-A:1 (Supp.1981). The only issue raised on appeal is whether the trial judge improperly admitted certain testimonial and physical evidence. We affirm.

Shortly after midnight on December 12, 1981, the defendant, Paul Fernald, accompanied James Chase to the home of Robert Leighton in Franklin to ask if they could spend the night. Leighton, a long-time friend of Chase, had left for work earlier that evening. Chase had often stayed there previously; on one such occasion two weeks earlier, however, Leighton had asked Chase to leave his home.

When Chase and the defendant arrived at the Leighton home, Leighton's son Michael, Michael's wife Kathryn, their infant daughter, and Allan Kennett, a neighborhood youth who stayed at the Leighton home on weekends, were the only persons in the house. Chase and the defendant were permitted to stay at the house after promising to leave before Robert Leighton returned home from work early in the morning.

During the night, Chase and the defendant succeeded in tying up and gagging Michael Leighton and Kennett in the basement of the house. Chase and the defendant then went upstairs and led Kathryn, who was carrying the baby, at gunpoint downstairs into the basement and tied her up. During this incident, the defendant pointed a handgun at the baby. In addition to the weapons already in their possession, Chase and the defendant brought a rifle and a shotgun which belonged to the Leightons into the basement with them. The rifle and the shotgun were handled during the night but were never aimed at anyone. At one point during the night, ten dollars was taken from Michael Leighton's wallet.

At approximately 6:00 a.m., Chase and the defendant took the guns upstairs and returned them to their storage places. The Leightons and Kennett were then untied and allowed to return upstairs. When Robert Leighton returned home from work, he found the victims and Chase and the defendant sitting quietly in the living room. No one mentioned to him the incidents that had occurred in the preceding early morning hours, and everyone, including Chase and the defendant, went to sleep. Upon awakening early in the afternoon, Michael Leighton agreed to drive Chase and the defendant to a friend's house. Later that day, Kathryn and Robert Leighton reported the previous night's occurrences to the police.

The defendant was indicted for kidnapping, robbery, and felonious use of a firearm and was found guilty of all three offenses. He was given a State prison sentence of three-and-one-half to seven years on the kidnapping offense and a consecutive sentence of three to six years for the felonious use of a firearm. In addition, the defendant was sentenced to six months in the house of correction, consecutive to the other sentences, for the robbery.

The defendant appeals a number of the trial court's evidentiary rulings. The first ruling challenged by the defendant is the court's admission of Kathryn Leighton's testimony that he had pointed a gun at the baby. The defendant argues that the trial judge abused his discretion in admitting this testimony, because the prejudicial effect of the testimony outweighed its probative value. He claims that because the kidnapping indictment alleged only that he had confined Michael and Kathryn Leighton and Allan Kennett "with a purpose to terrorize them," see RSA 633:1, I(c), and did not allege that he had confined the baby with the purpose of terrorizing the infant, the evidence was highly prejudicial. The State responds that...

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7 cases
  • State v. Brooks, 84-307
    • United States
    • New Hampshire Supreme Court
    • June 17, 1985
    ...unless we find an abuse of discretion. State v. Hamel, 123 N.H. 670, 677, 466 A.2d 555, 559 (1983) (citing State v. Fernald, 123 N.H. 442, 444, 462 A.2d 122, 124 (1983) ). When evidence has been destroyed by the State, we apply the test set out in State v. Miskolczi, 123 N.H. 626, 629, 465 ......
  • State v. Hood, 84-561
    • United States
    • New Hampshire Supreme Court
    • December 5, 1985
    ...question of prejudice is not properly before us. State v. Sefton, 125 N.H. 533, 536, 485 A.2d 284, 286 (1984); State v. Fernald, 123 N.H. 442, 445, 462 A.2d 122, 124 (1983); State v. Ellard, 95 N.H. 217, 222, 60 A.2d 461, 464 (1948), cert. denied, 335 U.S. 904, 69 S.Ct. 400, 93 L.Ed. 438 (1......
  • State v. Hamel, 82-091
    • United States
    • New Hampshire Supreme Court
    • August 31, 1983
    ...the trial court must balance the potential prejudicial effect of the evidence against its probative value. State v. Fernald, 123 N.H. 442, ---, 462 A.2d 122, 124 (1983); State v. Donovan, 123 N.H. 446, ---, 462 A.2d 125, 126 (1983). His decision to admit evidence will be upheld unless he is......
  • State v. Judkins
    • United States
    • New Hampshire Supreme Court
    • July 9, 1986
    ...failed to preserve the issue for appeal because he objected on the ground of relevance rather than prejudice. See State v. Fernald, 123 N.H. 442, 462 A.2d 122 (1983). This contention is not supported by the record. Although defense counsel did not clearly articulate the reason for his objec......
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