State v. Kilgus, 84-555

Citation519 A.2d 231,128 N.H. 577
Decision Date03 October 1986
Docket NumberNo. 84-555,84-555
PartiesThe STATE of New Hampshire v. George W. KILGUS, Jr.
CourtSupreme Court of New Hampshire

Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, on the brief and orally), for the State.

Sakellarios & Associates, Manchester (Jean-Claude Sakellarios, on brief and orally, and Kathleen Mulcahey-Hampson on the brief), for defendant.

KING, Chief Justice.

The defendant was found guilty after a jury trial of conspiracy to commit murder, RSA 629:3, and of attempted murder, RSA 629:1 (Supp.1983). The Superior Court (Goode, J.) sentenced the defendant to twenty-seven and one-half to forty-five years in prison. The defendant appealed and we affirm.

George Kilgus, Jr., the defendant, became well-acquainted with Paul and Barbara Labonville when Kilgus loaned Paul money to open an automobile repair garage in January, 1980. Kilgus often worked around the garage for Paul, picking up parts and delivering automobiles, and was aided in his tasks by Barbara. Between the summer of 1980 and January, 1982, Kilgus and Barbara had an affair.

During the spring of 1981 the Labonvilles' marriage deteriorated when each learned that the other had been unfaithful. When Barbara told Paul that she wanted a divorce, he struck her and said he would not allow her to get a divorce. Barbara told Kilgus that Paul would not give her a divorce and she added that "if I ever really want[ ] to be free and to be able to have a life of my own ... he [will] probably have to be dead." During other conversations that spring, Kilgus asked Barbara if she were sure she wanted Paul out of her life, and Barbara responded affirmatively.

In June, 1981 Kilgus asked Raoul Chasse if he could have Paul Labonville killed. Chasse replied that he knew people in Boston who would kill Paul, but that he needed $1000 ahead of time. Kilgus agreed to pay Chasse, and added that Paul's body had to be found outside the state. Within a few days, Kilgus and Chasse met again. Kilgus paid Chasse $1000 and again stressed that the body had to be found outside New Hampshire. Chasse, never intending to kill Paul or to arrange for someone else to kill him, took an airplane flight to North Dakota. In June or July, 1981, Kilgus told Barbara that he had paid someone $1000 to kill Paul, but that nothing had happened.

In October, 1981, Kilgus told Barbara that he was taking out a $7000 bank loan, adding that he needed the money because the people from Boston desired an additional payment. It seems the Bostonians had had to make too many trips from Boston and could not get Paul alone. Kilgus told Barbara that he was going to give the cash to Thomas "Bumpy" Bourbeau to hold until the murder was completed. Sometime later, Kilgus asked Bourbeau to deliver an envelope to a man at a New Hampshire restaurant.

Around December 15, 1981, Kilgus told Barbara that he was going to have to get involved himself since "they" were having a hard time finding Paul alone and "it was taking too long for it to happen." Kilgus added that it was going to happen that night and that he had set Paul up to meet someone, allegedly to borrow some money.

The same day Paul Labonville told Barbara he was meeting someone that evening to borrow money. He told one of his employees that he would be driving a customer's blue Chevrolet. Paul never returned home that evening.

Late that evening, an unknown person left a set of General Motors car keys with Bourbeau. Around midnight, Kilgus picked up the car keys from Bourbeau. The next day, Kilgus told Barbara that the night before he had received a telephone call informing him that "it had been done" and that he was to pick up from Bourbeau the keys for the blue car Paul had driven.

On January 2, 1982, Paul Labonville's corpse was found in a wooded area on a remote road in Westford, Massachusetts. Paul had died as a result of a gunshot wound, which due to its location could not have been self-inflicted.

That same month, Kilgus went on a vacation. Before leaving, Kilgus gave Barbara the name of a lawyer and told her that she "could handle it," because if she did not, he would go to jail. On January 18, 1982, Barbara told the State police all she knew about her husband's death. Barbara was later convicted of conspiracy to murder Paul. See State v. Labonville, 126 N.H. 451, 492 A.2d 1376 (1985) (upholding the conviction).

In June, 1982, Chasse returned to New Hampshire from North Dakota. Chasse and Barbara Labonville met, saw each other regularly, and became engaged to be married several months later.

In May, 1983, Chasse told the police about his deal with Kilgus, about how he had received $1000 from Kilgus in return for a promise to arrange Paul Labonville's murder. Chasse agreed to be outfitted with a hidden tape recorder, to meet with Kilgus, and to engage Kilgus in conversation about their deal. Chasse's and Kilgus's tape recorded conversation included the following exchange:

"Chasse: I mean you give [sic] me a $1,000.00 bucks to blow him away, right?

Kilgus: Yeah.

Chasse: Right?

Kilgus: Yeah."

On July 11, 1983, Kilgus was indicted for the crimes of conspiracy to commit murder, RSA 629:3, solicitation to commit murder, RSA 629:2, and attempted murder, RSA 629:1. The State declined to prosecute the solicitation charge.

Prior to trial, Kilgus moved to suppress a tape recording of his conversation with Chasse. The court denied the motion on the grounds that the tape recording of the conversation was lawful under both the Federal and New Hampshire Constitutions, as well as under RSA 570-A:2, II(d) (Supp.1983) (amended by Laws 1985, 263:2) (wiretapping statute). During trial, Kilgus moved for a directed verdict on both the conspiracy and attempt charges. The motion was denied.

After his trial, the jury found Kilgus guilty of both charges, and the trial court sentenced him to prison. The superior court subsequently denied Kilgus's motion for judgment notwithstanding the verdict. The defendant appealed from his two convictions and the denials of his several motions, and we affirm.

We must consider three issues on this appeal. First, whether solicitation of another to commit a murder accompanied by a substantial payment of cash and directions regarding how the murder should be performed is sufficient to constitute the substantial step needed to prove an attempted murder. Second, whether the State proved a sufficient overt act needed to prove conspiracy to commit murder. Third, whether the tape recorded conversation between Kilgus and Chasse was lawful under RSA 570-A:2, II(d) and under the State and Federal Constitutions, and thus admissible at trial.

I. The Attempted Murder Conviction

The defendant's first argument is that his solicitation of Chasse to kill Paul Labonville can not constitute attempted murder. The defendant contends that the trial court therefore erred in denying his motions for a directed verdict and for a judgment notwithstanding the verdict on the attempt charge. We disagree.

This question involves the interplay of three statutes; namely, the capital murder statute, RSA 630:1; the attempt statute, RSA 629:1; and the criminal solicitation statute, RSA 629:2. New Hampshire's capital murder statute, RSA 630:1, states in pertinent part that:

"I. A person is guilty of capital murder if he knowingly causes the death of

................................................................................

* * *

(c) Another by criminally soliciting a person to cause said death...."

New Hampshire's attempt statute, RSA 629:1, states in pertinent part that:

"I. A person is guilty of an attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime.

II. As used in this section, 'substantial step' means conduct that is strongly corroborative of the actor's criminal purpose."

Finally, the solicitation statute, RSA 629:3, states that:

"I. A person is guilty of criminal solicitation if, with a purpose that another engage in conduct constituting a crime, he commands, solicits or requests such other person to engage in such conduct."

It is clear to us that under the capital murder statute, if one solicits another to commit murder and the one solicited does kill, then the one who solicited is guilty of capital murder. Cf. State v. Kaplan, 124 N.H. 382, 469 A.2d 1354 (1983) (upholding conviction of one who solicited another to commit murder and agreed to pay solicitee $5000 as an accomplice to murder). It is equally clear that under the criminal solicitation statute, if one solicits another to commit murder and the one solicited does not kill, then the one who solicited is, by definition, guilty of criminal solicitation.

Solicitation to murder becomes attempted murder when the solicitation meets the requisites of the attempt statute. Thus, one is guilty of attempted capital murder if one's fruitless criminal solicitation of another to commit murder is (1) carried out "with a purpose that a crime be committed" and is (2) "an act or omission constituting a substantial step toward the commission of the crime." RSA 629:1, I.

The attempt statute itself notes that a "substantial step" "means conduct that is strongly corroborative of the actor's criminal purpose." RSA 629:1, II. In State v. Gerald Davis, 108 N.H. 158, 161, 229 A.2d 842, 844 (1967), a case decided prior to the enactment of the current attempt statute, we noted that a substantial step is "an overt act directed to the commission of the crime intended, which goes beyond mere preparation and is apparently suitable for that purpose but fails to result in the commission of the intended crime." Id.

There is a sharp split among other courts over whether criminal solicitation can be the "substantial step" needed for an attempt. The majority position is that solicitation...

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