State v. Gosselin

• Decision Date: 28 February 1977
• Docket Number: No. 7339,7339
• Citation: 370 A.2d 264,117 N.H. 115
• Parties: STATE of New Hampshire v. William E. GOSSELIN.
• Court: New Hampshire Supreme Court

Page 264

370 A.2d 264

117 N.H. 115

STATE of New Hampshire v. William E. GOSSELIN.

No. 7339.

Supreme Court of New Hampshire.

Feb. 28, 1977.

James E. Duggan, Public Defender, Craig, Wenners, Craig & McDowell, Manchester and Theodore H. Parent, for defendant.

David H. Souter, Atty. Gen., and Gregory H. Smith, Asst. Atty. Gen., for the State.

LAMPRON, Justice.

After trial by jury defendant was found guilty of possession of a gun by a felon, RSA 159:3 (Supp.1975). Subsequently a sentence of nine to thirty years at the state prison was imposed pursuant to the extended term of imprisonment provisions of RSA 651:6.

The issues presented on this appeal are the propriety of the denial by the Trial Court (Flynn, J.) of defendant's pretrial motions to dismiss the indictment on the grounds of double jeopardy and to suppress certain evidence and statements, and the sentencing of defendant under RSA 651:6. We approve these actions of the trial court.

On the morning of January 9, 1975, two Portsmouth detectives came to the Manchester police station with arrest warrants for defendant and for his girlfriend. The warrant for defendant involved a charge of theft of a motor vehicle by unauthorized taking. Manchester police officers then went to the apartment where defendant and his girlfriend were believed to be living. The girlfriend permitted a search of the apartment and an empty box for a 357 Magnum Sentinel revolver was found. She told the police that defendant was out walking around and that she thought he had the gun in his possession. She also told the officers that defendant may have been under the influence of drugs.

A 'pick-up' was then put out for defendant. At about 1:20 p.m., that day defendant walked into the Manchester police station and asked the officer on duty, Officer Holmes, what the detectives wanted to see him about. Holmes walked with defendant towards some stairs heading to the detective room, then informed defendant that he had information defendant was carrying a gun and that he intended to search him. Defendant pushed Holmes' hand away. Detective Denton, who was coming down the stairs, joined Officer Holmes and removed a loaded .357 Magnum Sentinel revolver from the left front waistband of defendant's pants.

Defendant was then questioned by Detective Denton, who first informed him of his rights. At approximately 5:30 p.m., defendant was further questioned by Detective Craig of the Manchester police department. Craig testified that he also advised defendant of his rights once, at the beginning of his questioning. This questioning lasted two to two and one-half hours. Statements made to Detective Craig during this time were used against defendant at trial.

As a result of carrying the loaded revolver concealed on his person, defendant was charged with carrying a gun without a license in violation of RSA 159:4 (Supp.1975), a misdemeanor. He was also charged with being a felon in possession of a revolver in violation of RSA 159:3 (Supp.1975), a felony. On February 26, 1975, defendant pleaded guilty in the Manchester District Court to the charge of carrying a gun without a license. He was sentenced to sixty days in the Hillsborough County House of Corrections. No appeal was taken. Defendant was bound over to the superior court pending grand jury consideration of the felony charge. RSA 502-A:13. The grand jury subsequently entered the indictment against defendant on which he was found guilty and which is the subject of this appeal.

I. Double Jeopardy

The offenses charged under RSA 159:3 (Supp.1975) and RSA 159:4 (Supp.1975) are not identical. Proof of different elements are necessary for convictions under each. Proof that the gun is loaded and concealed is necessary for conviction under the latter but not the former; proof that the individual is a convicted felon is necessary for conviction under the former but not the latter. State v. Hoyt, 114 N.H. 256, 319 A.2d 286 (1974). However, defendant argues that because the two charges concern defendant's possession of the same gun at the same time in the same incident, the indictment and trial on the second charge violated his right not to be twice put in jeopardy for the same offense.

This court has consistently held that the protection afforded by the double jeopardy clauses of the fifth amendment of the United States Constitution and by part I, article 16 of the New Hampshire Constitution does not prevent the threat of twice being punished for the same act, but rather, forbids twice being tried and convicted for the same offense. State v. Gendron, 80 N.H. 394, 118 A. 814 (1922); State v. Smith, 98 N.H. 149, 95 A.2d 789 (1953); State v. Goodwin, 116 N.H. 37, 351 A.2d 59 (1976). This doctrine is effectuated by means of the 'same evidence' test of the identity of offenses. If a difference in evidence is required to sustain the offenses charged, the fact that they relate to and grow out of one transaction does not make them a single offense when two or more are defined by statutes. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States, 357 U.S. 386, 388, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); State v. Harlan, 103 N.H. 31, 164 A.2d 562 (1960).

Defendant maintains, however, that the words 'same crime or offense' (N.H. Const. pt. I, art. 16) and 'same offence' (U.S. Const. amend. V) because of their plain language, as well as sound policy reasons, compel this court to adopt the 'same transaction' test of double jeopardy. This test 'looks to a person's behavior rather than to statutory definitions, and treats the consequences of the same transaction, episode, or conduct as constituting one offense for the purposes of a double jeopardy plea, although such consequences may be in violation of more than one criminal statute.' State v. Ahuna, 52 Haw. 321, 324, 474 P.2d 704, 706 (1970). It requires the prosecution 'to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.' Ashe v. Swenson, 397 U.S. 436, 453-54, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring); Duncan v. Tennessee, 405 U.S. 127, 132, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972) (Brennan, J., dissenting). Such a test is said to promote justice, economy, and convenience, and prevent harassment of a defendant. Ashe v. Swenson, supra, 397 U.S. at 454, 90 S.Ct. 1189; People v. White, 390 Mich. 245, 259, 212 N.W.2d 222, 225 (1973).

We do not find defendant's arguments compelling. Our present criminal court system with its differences in jurisdiction and lack of unified prosecution is ill adapted to compulsory joinder of multiple statutory violations which might arise out of the 'same transaction.' See State v. Brown, 262 Or. 442, 457, 497 P.2d 1191, 1199 (1972). Any abuse by prosecutors in harassing defendants could be remedied by the trial court in any particular case, State v. Lordan, 116 N.H. 479, 363 A.2d 201 (1976); State v. Bergeron, 115 N.H. 70, 333 A.2d 721 (1975), and by the adoption of court rules requiring joinder of criminal charges in cases such as this. See People v. White, 390 Mich. 245, 263, 212 N.W.2d 222, 230 (1973) (dissenting opinion). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 1.3 (Approved Draft, 1968).'

Furthermore a single course of criminal conduct may involve violations of different statutes with differences in acts performed, means of perpetration and intent. It may be just as difficult in some cases to determine whether the wrongful course of conduct constitutes a single criminal transaction as it is to determine whether conduct involving separate statutory violations amounts to the same offense. See Whitton v. State, 479 P.2d 302, 307 (Alas.1970). We see no compelling reason to change from our present 'same evidence' test and hold that defendant's motion to dismiss the indictment on grounds of double jeopardy was properly denied.

II. Denial of Motion to Suppress the Revolver Seized from Defendant.

Defendant argues that the seizure of the revolver from his person was unlawful because the search resulted from his having been placed under arrest without probable cause. Prior to the time defendant walked into the Manchester police station, Detective Denton had been told by defendant's girlfriend that defendant was carrying a revolver. She had also told Detective Denton that she thought defendant might use the gun if approached by a police officer. It was on the basis of this information as well as the arrest warrant of the Portsmouth detectives that Detective Denton had ordered broadcast the 'pick-up' for defendant which included a warning that defendant was probably armed. Officer Holmes did not immediately recognize defendant as the subject of the 'pick-up' which he had broadcast earlier. However when Officer Holmes telephoned upstairs to Detective Denton, he was told by him that defendant was the subject of the 'pick-up', and that he should check defendant for a revolver.

Detective Denton could have had defendant placed under arrest on the charge of theft by unauthorized taking, based on the arrest warrant of the Portsmouth detectives. RSA 594:9. He did not do this, but told Officer Holmes to book defendant 'for investigation.' However, because of the outstanding warrant, Detective Denton could have at least had reason to suspect that defendant had committed a crime, and on that basis could order his detention. RSA 594:2. Detective Denton also had reason to believe that defendant was in possession of a revolver and might use it on a police officer. He could therefore properly order that a limited search for the revolver be conducted of defendant. RSA 594:3; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It was not necessary that Detective Denton be the officer who detained...