State v. Hutton, 5537
| Citation | 108 N.H. 279,235 A.2d 117 |
| Decision Date | 31 October 1967 |
| Docket Number | No. 5537,5537 |
| Parties | STATE v. Thomas E. HUTTON et al. |
| Court | Supreme Court of New Hampshire |
George S. Pappagianis, Atty. Gen., and Norman E. D'Amours, Asst. Atty. Gen., Manchester, for the State.
Sullivan, Gregg & Horton and Charles F. Kazlauskas, Jr., James L. Sullivan, Nashua, for defendant, Thomas E. Hutton.
Louis P. Faustini, Gaffstown, for defendant, Roy H. King.
At about 7:45 P.M. on October 25, 1965, Lionel Gagne and his wife, June, returned by automobile to their home on Montgomery Street in Manchester. As they approached their driveway, June observed a 'very light green car with an odd back' parked across the street from their house. Alighting from the passenger side of the car, June heard the horn of that parked car 'blowing frantically' and also heard a noise indicating to her that the front door of their house was being either closed or opened. She then proceeded toward the street where she observed one person in the parked car. While so doing she heard 'a very loud whistle' coming from the direction of the Kehas house located directly south of the Gagne home. She turned in that direction and saw two men standing by a hedge at the further end of the Kehas residence. 'All I could see was that they had light short coats on, and immediately I started to run from our driveway to Mr. Kehas' driveway to get him, and he had already come out of his house and I met him right there as I crossed.'
While standing at that point with Kehas, who is deputy chief of the Manchester police department, June observed the same car, which she had previously seen parked across the street heading in a northerly direction, now proceeding south on the side of the street where she and Kehas were standing. It was 'gaining speed rapidly.' She noticed the car had a Massachusetts registration plate in the rear. Upon entering her home thereafter, she found the kitchen door open and saw part of its lock on the breezeway floor. 'In the bedroom many of the drawers were opened and ransacked, and on the bed was an empty gallon jar that had held quarters and dimes.'
Lionel Gagne testified that because of the statement of his wife that somebody was trying to get out of their house, he went to the breezeway door to investigate. As he did he heard a noise.
Deputy Kehas testified that upon hearing a whistle he went outside to investigate and met Mrs. Gagne who told him about the parked car she had observed and the two people standing by a hedge south of his home. As they were talking Mrs. Gagne said 'that car is coming now.' He saw one male occupant in this light green car, which he identified as a Thunderbird manufactured before 1963 because of its body style, accelerating to a speed of about 40 or 50 miles an hour. It was about 7:50 P.M. He telephoned the police station and reported that 'The Gagne home had been broken in; that a Thunderbird, light green, early 1960's was going south on Montgomery Street at a fast rate of speed, Massachusetts registration plate and one male occupant in the car, and that Mrs. Gagne reported there were two people standing at the hedge south of my house.'
About that time a police officer assigned to a cruiser patroling the West Side of Manchester, where the Gagne home is located, received a radio message, addressed to all cars with special attention to cruisers assigned to the West Side, to be on the lookout for a light green Massachusetts car, possibly a Thunderbird, operated by a male occupant. Approximately 5 minutes later, he observed a vehicle answering this description and proceeded up to it as it was stopped at a red traffic light. As his police car with the blue dome light on approached, he observed the driver in front of him look up in his rear view mirror, accelerate his car and proceed through the red light. A chase ensued during which this car went through another red traffic light and numerous stop signs, and hit another police cruiser. The car finally came to a stop in the driveway of a florist establishment where the driver ran out of the car and was not apprehended. Mrs. Gagne and deputy Kehas later identified the car as the one they had observed near their homes earlier that evening.
The police examined the car and found that the Massachusetts registration plates in the front and in the back did not have the same number. They also noticed that it bore a Massachusetts sticker on the windshield. As a result the police department notified taxi stands and bus stations to be on the lookout for any two persons who might be trying to get back to Massachusetts.
A driver for 'LeBlond's Taxi' testified he had received a request from the police department to notify his dispatcher if 'we picked up two or three men going to leave town' and to give their destination. At about 10:30 or 10:40 P.M. he was dispatched to a street corner where two men were waiting. He identified them at the trial as the two defendants. Upon boarding the taxi, they asked to be driven to a hotel in Manchester. En route, they inquired about the fare to Salem and asked to be driven there instead. The driver called his dispatcher and informed him of this fact in accordance with the previous police request. While proceeding south on Route 28, the cab was stopped by a Derry police cruiser driven by officer Thompson. After conversing with the officer some distance from his cab, the driver drove his two passengers to the Derry police station. On arrival the defendants were frisked, asked to come into the station, informed they were being picked up for questioning by the Manchester police, asked their names, and for their belongings which they produced. Hutton who refused to give his name was placed in a cell. King who gave the name Payson was allowed to remain in the main room of the station. Two Manchester police officers arrived about 15 minutes later and the defendants and their belongings were turned over to them and taken to Manchester.
At a preliminary hearing on motions to suppress evidence obtained by the Derry police, the Trial Court found and ruled that 'the detention by the Derry Police up to the point that the Manchester Police arrived was an illegal detention, and that the items seized in the search may not be admitted in evidence.' As a result no evidence relating to any of the items which the defendants took out of their pockets in the Derry police station was presented at the trial.
There was testimony at the trial that after being warned of his rights each defendant stated substantially that on October 25, 1965, the day of the Gagne break, he had come to Manchester from Boston with a friend by thumbing a ride arriving in Manchester about 6:30 P.M. Evidence was also admitted that when each defendant was shown the Thunderbird seen at the scene of the crime that night each denied to the police ever having seen the car previously.
Assistant police chief Leavitt of Manchester testified that he fingerprinted the defendants on the day following that of the crime. He also testified that on that same day while processing the Thunderbird in the police station garage area where it had been taken, he found a registration plate on the floor of the rear of the car behind the driver's seat. This plate matched the plate mounted on the front of the car. Upon dusting it with fingerprint powder, he obtained partial latent fingerprints which he compared with Hutton's prints taken previously. This led him to the conclusion, and he so testified, that the prints found on the registration plate were made by Hutton. A fingerprint examiner for the Federal Bureau of Investigation testified that after a comparison of the prints on the registration plate with photographs of those of Hutton he concluded that the fingerprints on the plate were Hutton's.
Lieutenant Curran of the Manchester police testified that he was wearing a top coat on this 'cool' night of October 25, 1965 when investigating the Gagne break. There was evidence that the defendants were without topcoats when seen that night by Mrs. Gagne and police officers. A witness who lived in the vicinity of the Gagne residence testified that on the same night she found two coats, a flashlight, and a pair of gloves under a clothes line located near an alley in back of her house. She turned these articles over to the police and they were admitted in evidence as exhibits.
We hold that on the evidence before it the jury could find beyond a reasonable doubt that the defendants were in the vicinity of the Gagne house on the evening of October 25, 1965 and that furthermore they were the perpetrators of the burglary which took place there at that time. State v. Enright, 108 N.H. --, 231 A.2d 628; State v. Cote, 108 N.H. --, 235 A.2d 111 (decided this day); State v. Keegan, 106 N.H. 152, 153, 207 A.2d 427. Defendants' motions to dismiss the indictments and to set aside the verdicts of guilty returned against them by the jury were properly denied and their exceptions thereto are overruled.
The defendants argue that the finding and ruling by the Trial Court, on their motions to suppress, that their detention by the Derry police up to the point that the Manchester police arrived was an illegal detention cannot be questioned on this appeal. We hold that the Trial Court's ruling on this issue has a bearing on the validity of defendants' exceptions to the admission of certain evidence at the trial and to the denial of their motions to dismiss the indictments. Consequently the ruling presents a reviewable question of law transferred to this court by the reserved case. 5...
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