State v. Lovett, 7384

• Decision Date: 30 September 1976
• Docket Number: No. 7384,7384
• Citation: 116 N.H. 571,364 A.2d 880
• Parties: STATE of New Hampshire v. Walter J. LOVETT, Jr.
• Court: New Hampshire Supreme Court

Page 880

364 A.2d 880

116 N.H. 571

STATE of New Hampshire v. Walter J. LOVETT, Jr.

No. 7384.

Supreme Court of New Hampshire.

Sept. 30, 1976.

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

Devine, Millimet, Stahl & Branch, Manchester, and Farese, Farese & Chambers and Albert H. Russell, Jr., Everett, Mass, for defendant.

DUNCAN, Justice.

The defendant was indicted, tried by jury, and convicted for the offense of burglary committed on March 26, 1974. RSA 635:1. The questions of law presented by his exceptions were reserved and transferred by the Presiding Justice (King, J.). The defendant raises four issues in this court.

I. Jury Composition and RSA ch. 500-A

The defendant has challenged the constitutionality of RSA ch. 500-A (Supp. 1975) on the ground that it does not contain identifiable standards for selecting jurors. The constitutionality of RSA ch. 500-A (Supp.1975) was considered and upheld in State v. Fleury, 114 N.H. 325, 321 A.2d 108 (1974); State v. Greely, 115 N.H. H. 461, 344 A.2d 12 (1975); State v. Taschler, 116 N.H. 218, 356 A.2d 697 (1976). The defendant in the instant case has made no showing of 'purposeful and systematic exclusion' of any cognizable group from the pool of prospective jurors. State v. Fleury, supra at 331, 321 A.2d at 112. Nor is there any indication that the venire as actually constituted in this case did not represent a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 537-38, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970).

II. Sufficiency of the Evidence

The defendant next alleges that the State did not produce enough evidence to establish guilt beyond a reasonable doubt. A criminal conviction may rest solely on circumstantial evidence if of a nature and quality to permit a reasonable juror to infer guilt beyond a reasonable doubt. State v. Greely, 115 N.H. 461, 344 A.2d 12 (1975); State v. Nickerson, 114 N.H. 47, 314 A.2d 649 (1974).

Viewed in a light most favorable to the State (State v. Canney, 112 N.H. 301, 294 A.2d 382 (1972)), the jury could find the following: At about 9:30 p.m., on the night of March 26, 1974, a house located in Harrisville and owned by Wellington Wells, was burglarized. The burglars apparently tripped an alarm which alerted Officer Alton Chamberlain, a part-time police officer in Harrisville. Arriving at the scene, he noticed in the immediate vicinity a dark station wagon with two occupants and exhibiting Massachusetts plates. The vehicle had left a clear track in fresh snow leading back to the Wells residence. Chamberlain radioed for assistance, and Deputy Sheriff Robert Bonner attempted to intercept the station wagon. When it failed to stop, a third police vehicle attempted to block the road. The station wagon forced its way around the police vehicle and a high-speed chase ensued. Finally, the station wagon came to a stop in a long driveway leading to a farmhouse. The two occupants, one of whom matched the description of the defendant, fled on foot, apparently in different directions. At first, the officers had little trouble in following the footprints in the fresh snow. However, at some point the footprints disappeared, but more footprints were found approximately 200 feet away which appeared to match the ones first followed. These led to a road where once again the prints were lost. Searching along the embankment, the officers found a set of prints leading away from the road on the opposite embankment. Following these, they came upon the defendant after 1:00 a.m., sitting in the snow under a tree, and 'panting hard'. The defendant claimed he was hitchhiking from Roxbury, Massachusetts.

There was no problem in connecting the station wagon and its occupants with the burglary. The front door of the Wells residence had been kicked in, leaving a bootprint which matched the tread design of a boot later found in the station wagon. It is the defendant's contention that there is no sufficient evidence to connect him with the initial set of tracks which led away from the station wagon. He points to the two instances in which the tracks were broken, only to be picked up at a somewhat distant point. This, he argues, is enough to require the jury to find that there was reasonable doubt of his guilt.

( T)he trier may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided that they can be reasonably drawn therefrom'. State v. Palumbo, 113 N.H. 329, 330, 306 A.2d 793, 795 (1973); State v. Canney, 112 N.H. 301, 294 A.2d 382 (1972). The court on review must assume in favor of the verdict every fact which may fairly be deduced from the evidence. The jury in the instant case could reasonably conclude that the defendant was one of the mem in the station wagon and that, in all likelihood, they were responsible for the burglary. Such a conclusion is not inconsistent with the evidence at trial, nor does it ignore any more plausible explanation consistent with innocence. The defendant's explanation that he was 'hitchhiking' was not so convincing under the circumstances as to require the jury to find it to be the truth.

III. The Requirement of an 'Occupied Structure'

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