State v. LaBranche, 7853
| Decision Date | 31 March 1978 |
| Docket Number | No. 7853,7853 |
| Citation | 385 A.2d 108,118 N.H. 176 |
| Parties | The STATE of New Hampshire v. Joseph F. LaBRANCHE. |
| Court | New Hampshire Supreme Court |
David H. Souter, Atty. Gen. (James L. Kruse, Asst. Atty. Gen., orally), for the State.
New Hampshire Legal Assistance, Manchester (Bruce E. Kenna, Hillsborough County Public Defender), for defendant.
This is an appeal from defendant's conviction for aggravated felonious sexual assault. RSA 632-A:2 (Supp.1975). All questions of law arising from the trial were reserved and transferred by Cann, J. The issue presented is whether the trial court should have granted a mistrial after witnesses for the State testified about an untried indictment of attempted aggravated felonious sexual assault then pending against the defendant. We find that this testimony of the State's witnesses was inadmissible and sufficiently prejudicial to require a new trial.
Defendant was indicted for aggravated felonious sexual assault on his daughter; a companion indictment charged him with a later attempted aggravated felonious sexual assault on the same daughter. As each indictment alleged distinctly different actions on different dates, the State agreed to proceed on the indictments separately. This resolution was proper in this case for a fair determination of guilt or innocence. See State v. Freije, 109 N.H. 290, 249 A.2d 683 (1969). The charge of aggravated felonious sexual assault, being the earliest, was tried first pursuant to the agreement to sever the charges.
Defendant cites two occasions when the State's witnesses testified about the second untried indictment of attempted sexual assault. The first instance was the response of the complainant, Marie LaBranche, to the prosecutor's inquiry whether she had occasion to contact the police regarding the alleged offense. She replied, "After the second time, yes." Defendant's motion for a mistrial was denied, but each counsel agreed to advise further witnesses not to mention the second untried charge. Later in the State's case, the arresting and investigating officer made mention of the second charge by saying, "I then went into the second incident with Mr. LaBranche; and after completion of that, I advised him that he would be charged with two counts." Defendant seasonably renewed his motion for mistrial on grounds that the inadmissible statements by both State witnesses concerning the second untried charge were so prejudicial as to prevent a fair trial on the single charge before the jury. Defendant's motion was denied and his exception noted.
Evidence of another offense in a criminal proceeding is inadmissible either to establish guilt or to show that a defendant would be likely to commit the crime with which he is charged. State v. Cote, 108 N.H. 290, 294, 235 A.2d 111, 114 (1967); cf. State v. Desilets, 96 N.H. 245, (1950). The exclusion of such evidence is grounded on the potentiality for prejudice and a fear that the generality of the jury's verdict might mask a finding of guilt based on an accused's past or alleged criminal acts. State v. Cote, supra, at 294, 235 A.2d at 114; see Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). However, evidence of prior crimes may be admitted "when it is particularly probative in showing such things as intent . . . an element in the crime . . . identity . . . malice . . . motive . . . a system of criminal activity . . . or when the defendant has raised the issue of his character . . . or when the defendant has testified and the State seeks to impeach his credibility . . . ." State v. Cote,supra at 294-95, 235 A.2d at 114, quoting Spencer v. Texas, supra,385 U.S. at 560-61, 87 S.Ct. 648. The exceptions are not relevant here, nor does the State rely upon this case.
In the instant case, the high potential for prejudice resulted in a proper severance of the charges for trial. ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 2.2 (1968). Clearly the reason for the severance was to reduce the inherent dangers of the prejudicial effect two charges of this nature might carry. Although neither witness specifically identified the pending charge, the record clearly disclosed that the jury could easily discern that the defendant...
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... ... See State v. Labranche, 118 N.H. ---, 385 A.2d 108 (1978); cf. Wainwright v. Sykes,433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Considering this last factor, we find ... ...
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