State v. Lavallee

• Decision Date: 29 March 1963
• Citation: State v. Lavallee, 104 N.H. 443, 189 A.2d 475 (N.H. 1963)
• Parties: STATE v. Henry R. LAVALLEE.
• Court: New Hampshire Supreme Court

Page 475

189 A.2d 475

104 N.H. 443

STATE v. Henry R. LAVALLEE.

Supreme Court of New Hampshire.

Argued Nov. 7, 1962.

Submitted Feb. 5, 1963.

Decided March 29, 1963.

William Maynard, Atty. Gen., Frederic T. Greenhalge, Asst. Atty. Gen., and Conrad Danais, County Atty., for the State.

James M. Winston and Peter J. Bourque, Manchester, as amici curiae, on behalf of the defendant.

Henry R. Lavallee, pro se.

DUNCAN, Justice.

The defendant, who was then thirty-six years of age, was arrested on January 13, 1961 at approximately 5:00 P. M., following a complaint that he had assaulted Mrs. Elizabeth Lemire in her fourth floor apartment on Central Street in Manchester. There was evidence that they had been drinking together there. Just prior to the defendant's arrest, Mrs. Lemire sought aid in a neighboring store, and was taken to the hospital by police ambulance. She was suffering from fractures of three ribs on one side and two on the other, and from numerous cuts, bruises and lacerations of the scalp, face, and body. She was forty-five years of age, weighed approximately 135 pounds, and for some time previously had suffered from heart disease for which she had been hospitalized periodically. At 1:10 P.M. on Saturday, January 14, 1961, she expired.

At approximately 8:00 P.M. on January 13, 1961, the defendant was charged with aggravated assault, and on January 14, 1961, following Mrs. Lemire's death, the charge was changed to manslaughter. On Monday morning, January 16, 1961, he was taken before the municipal court of Manchester and bound over to the Hillsborough County Superior Court. He was indicted for manslaughter at the next April term of the Superior Court, and a second indictment for the same offense was returned at the following September term.

In October 1961 the defendant moved to quash the second indictment upon the ground that there was pending another indictment charging him with the same offense. On November 1, 1961 the prior indictment was nol-prossed and the motion to quash the second indictment was thereafter denied. The defendant's motion for an allowance of funds to obtain expert and other witnesses was granted. Original counsel having withdrawn, the Court appointed new counsel to represent the defendant. The trial commenced in the Superior Court on November 28, 1961, following the defendant's plea of not guilty, and continued through December 7, 1961 when a verdict of guilty of manslaughter in the first degree was returned.

Just prior to oral argument in this court the defendant discharged his court-appointed counsel. Since they had prepared and filed a brief on his behalf they were permitted to argue as amici curiae. Thereafter at the defendant's request decision was postponed to permit him to file his own brief after having had an opportunity to review the records and proceedings in this and the Superior Court. In addition thereto this court ordered copies of the briefs of the State and amici curiae and transcripts of all oral arguments in this court to be furnished to the defendant.

The first contention made on behalf of the defendant is that his motion to quash the indictment should have been granted. Apart from the issue of the sufficiency of the evidence which is hereinafter considered, the defendant's contention in support of his exception to the denial of his motion to quash the indictment is grounded upon the pendency of the earlier indictment. While the State might have been compelled to elect which indictment it would proceed upon at the trial (see State v. Nelson, 103 N.H. 478, 485, 175 A.2d 814), this issue was disposed of by the nolle prosequi entered by the county attorney. It was clearly within the prerogative of the county attorney to take this action (State v. Smith, 49 N.H. 155, 157; State by Tucker v. Gratta, 101 N.H. 87, 88, 133 A.2d 482) and the question presented by the motion to quash thereupon became moot. No defect in the indictment upon which the defendant was tried has come to our attention, and the exception to denial of the motion to quash is overruled.

A major contention relates to the receipt of evidence of certain oral statements made by the defendant following his arrest, and to receipt in evidence of a written statement covering substantially the same facts, which was given on January 14, 1961 just before the charge of manslaughter was lodged against him. In accordance with usual practice, the witnesses by whom this evidence was presented were first heard by the Trial Court without the presence of the jury. See State v. George, 93 N.H. 408, 43 A.2d 256. A finding that the defendant's statements were voluntarily made is implied in the ruling of the Trial Court permitting the jury to hear this evidence. A careful examination of the record discloses no error in its admission.

On behalf of the defendant it is argued, in particular, that the evidence was inadmissible under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, because the statements were made and the written statement was signed while the defendant was being illegally detained. According to the evidence the defendant was placed under arrest shortly before 5:00 P.M. on January 13, 1961, and at 5:07 P.M. was booked at the Manchester police station for investigation. See RSA 594:2. The same day, prior to 8:45 P.M., he was questioned after being informed of his right to decline to answer and he then informed the police among other things that he had been living with Mrs. Lemire on Central Street since March 1960, and that following an argument on the afternoon of January 13, 1961 he had repeatedly punched her in the face and knocked her down; and that if she had said (as she had) that he had kicked her, 'then he did'. Between 8:45 and 9:00 P.M. on January 13, 1961 the defendant was charged with aggravated assault. On January 14, 1961, after the police learned in the afternoon of Mrs. Lemire's death earlier that day, the defendant was again questioned by officers that evening. After he was advised of Mrs. Lemire's death, he repeated his earlier account, and his statement, after typing, was signed by him at approximately 9:05 P.M. Although the defendant had been told that he would be charged with manslaughter, it did not conclusively appear whether or not he was 'booked' for manslaughter or formally charged therewith on January 14, 1961. On Monday morning, January 16, 1961 he was arraigned before a magistrate on a charge of manslaughter.

RSA 594:23 provides that 'every person arrested shall be brought before a magistrate within twenty-four hours from the time of his arrest, Sundays and holidays excepted,' unless a justice of the municipal court for good cause shown orders that he be held 'for a further period of not exceeding forty-eight hours.' See also, RSA 594.20. Since no order for extension of time was obtained, the defendant contends that his detention was illegal, and that evidence of statements made during his detention should therefore have been excluded.

The State maintains that the defendant's detention did not violate RSA ch. 594, in view of the sequence of events. However, the issue need not be determined. As was pointed out in State v. Mihoy, 98 N.H. 38, 42, 93 A.2d 661, 663, 35 A.L.R.2d 852, '[f]ailure to comply with [RSA 594:23], without more, is not cause to reverse [a] conviction.' As in that case, there is no reason in this one to conclude that the statements made by the defendant were the product of illegal detention, or were anything other than voluntary. Nor does Mapp v. Ohio, supra, relied on by amici require us to come to any different conclusion. In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, decided on the same day as the Mapp case, the Court reversed a conviction upon the ground that certain confessions had been coerced from the defendant; but as appears from the opinion announcing the judgment of the Court in the Culombe case, the rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, has not been 'extended * * * to state prosecutions as a requirement of the Fourteenth Amendment.' Id., 600, 601, 81 S.Ct. 1879. See also, People v. Lane, 10 N.Y.2d 347, 352, 223 N.Y.S.2d 197, 179 N.E.2d 339; LaFave, Police Detention, 1962 Washington U.L.Q. 331, 332.

As we understand the rule applied by the United States Supreme Court with reference to proceedings in state courts: 'The question in each case is whether a defendant's will was overborne at the time he confessed.' Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948. 'The ultimate test remains * * * the test of voluntariness.' Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, supra. Only when it appears that statements of an accused are involuntary, because produced by coercion or other circumstances overbearing his will, does use of his statement offend due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; State v. Traub (Conn....