State v. Martineau

• Decision Date: 15 August 1974
• Docket Number: No. 6953,6953
• Citation: 324 A.2d 718,114 N.H. 552
• Parties: , 89 A.L.R.3d 93 STATE of New Hampshire v. Raymond G. MARTINEAU et al.
• Court: New Hampshire Supreme Court

Page 718

324 A.2d 718

114 N.H. 552, 89 A.L.R.3d 93

STATE of New Hampshire v. Raymond G. MARTINEAU et al.

No. 6953.

Supreme Court of New Hampshire.

Aug. 15, 1974.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State of New Hampshire.

Edmund J. Murphy, Manchester, by brief and orally, for Raymond G. Martineau.

Kfoury & Williams, Manchester (Joseph Williams, Manchester, orally), for John R. Colby.

GRIFFITH, Justice.

This is a criminal case in which defendants Raymond G. Martineau and John R. Colby are charged with committing the crimes of rape (RSA 632:1 (Supp. 1973)) and deviate sexual relations (RSA 632:2 (Supp.1973)) upon Wanda Graham, deceased complainant, at approximately 8:00 p.m. on December 30, 1973, in a Manchester, New Hampshire apartment located at 80 Lowell Street. The body of Wanda Graham, apparently murdered, was discovered shortly before trial. Defendants waived their right to trial by jury and the trial commenced before Loughlin, J. During the course of the trial defendants excepted to the introduction of certain evidence. By agreement of the State and defendants, at the close of the State's case and before completion of the case, the trial court made findings of fact and transferred without ruling certain questions of law raised by defendants' exceptions.

The reserved case and the transcript indicate the following sequence of events on the evening of December 30, 1973, and during the early morning hours of December 31, 1973. The testimony of the first two witnesses, Donna Biron and Patricia Simpson was reluctant and of little aid to the State's case. The testimony of Bruce Page indicated that when he arrived at the 80 Lowell Street apartment between 5:30 and 6:00 p.m., defendant Colby, Donna Biron Patricia Simpson and the complainant, Wanda Graham, were already there. Raymond Martineau arrived sometime later. Page testified that Colby accused Wanda of 'ratting on him by going to the police,' then kicked her and threw her into a bedroom. He indicated that they were in the bedroom for approximately one-half hour and that he heard Wanda crying and the bed squeaking. He testified that when they re-entered the livingroom Colby had his belt unbuckled, but Wanda was fully dressed.

After observing Wanda enter the bathroom and then reappear in the livingroom, Page observed Raymond Martineau strike her in the head twice. He then heard Martineau order her back into the bedroom and saw him accompany her into that room. Since there was no door, but only an open archway separating the bedroom from the room in which Page was sitting, he was able to see them engaging in the act of fellatio. When Martineau re-entered the livingroom Page saw a knife in his hand which Martineau subsequently twice threw across the apartment into the far wall of another bedroom. He was not certain where Wanda was situated when the knife was thrown. Page heard Martineau tell Wanda that he would kill her if she went to the police. He then heard Martineau tell Wanda to get him $30 from the Venice Room, a cocktail lounge in the neighboring Cadillac Hotel. Lastly, Page testified that out of concern for Wanda's well-being he followed her to the Venice Room and told her to 'split', but was then asked to leave the premises by the hotel manager, Robert Proulx.

Robert Proulx testified that Wanda Graham, a former employee, arrived at the Venice Room between 8:30 and 9:00 p.m. He then testified over defendants' objections that Wanda told him that she had been raped and had a knife thrown at her. He indicated that he refused Wanda's request for money and when he suggested to her that she go to the police she indicated that 'they' would harm her if she did. Mr. Proulx further testified that during his meeting with Wanda Graham she was crying, expressed fear and was in an hysterical condition.

After Wanda's meeting with Robert Proulx she was taken behind the bar in the Venice Room by Doris Belleville, the bartender. Doris testified that she was trying to hide Wanda. Wanda stayed behind the bar with her for about one and a half hours. Since Doris was also working, her discussions with Wanda were intermittent. She testified, also over defendants' objections, that Wanda told her that the 'Diehards' got her. ('Diehards' being the sobriquet of the defendants' motorcycle club.) Doris asked that the Diehards had done to her and Wanda said 'everything.' In response to Doris' question 'Which Diehards?' Wanda answered, 'Martineau Ray and Gino.' Wanda told Doris that they were going to kill her. Doris also testified that Wanda was in fear, crying and hysterical. There was also testimony by Doris Belleville that one Donna Mailman was sent to take the complainant out from behind the bar to bring her to the defendants. After identifying Donna Mailman at the trial Doris testified as follows: 'And I told her, 'I won't let her go.' Because Wanda, she was just like she was crazy and everytime she (Donna Mailman) mentioned, 'I have to take her out,' Wanda would hold on to me and say, 'Keep me. They are going to kill me. Keep me.' And she left and she came and after that she said, 'Doris, I have to take her out. If I don't, I am going to get killed.' I said, 'That is your problem.' Just then she left by the back door.' (T. 137).

At some point Wanda Graham changed her mind about going to the police and at approximately 11:50 p.m. she spoke with Captain Edmund LeBoeuf of the Manchester Police Department. Captain LeBoeuf testified, also over defendants' objections, that Wanda told him she went to the apartment at 80 Lowell Street at about 1:00 a.m. on December 30, 1973. She indicated that she slept until about 1:00 p.m. She stated that Martineau arrived at approximately 7:00 p.m. and Colby at about 8:00 p.m. Captain LeBoeuf testified that Wanda told him that Colby then brought her into the bedroom at knifepoint, had sexual intercourse with her and then 'committed the act of fellatio.' She told him Martineau then duplicated each of Colby's sexual activities with her, also at knifepoint. Captain LeBoeuf also indicated that Wanda said she yelled several times, but nobody came to her assistance.

At approximately 1:00 a.m. on December 31, 1973, Captain LeBoeuf instructed another police officer to bring Wanda to the Sacred Heart Hospital, where she was later examined by Dr. Ali Ata. Dr. Ata testified that he observed a bruise of approximately one-half inch on Wanda's head. His examination of the genital area disclosed that the vulva and vagina were red, swollen and tender to the touch. Dr. Ata also observed a white fluid in and around the genital area which a laboratory examination indicated was sperm. The doctor indicated in his testimony that in all probability sexual intercourse had taken place within the last 24 hours prior to his examination, but admitted on cross-examination that it could have taken place as long as 30 hours prior to his examination.

The first question transferred for our consideration is whether the trial court was in error when after finding the statements of Wanda Graham to Robert Proulx and Doris Belleville to be a part of the res gestae, it admitted them only as bearing on the credibility of the complainant and as bearing on the complainant's state of mind with reference to consent, and not as evidence of the truth of the facts stated. The trial court relied on State v. Lynch, 94 N.H. 52, 45 A.2d 885 (1946) as authority for its ruling. While the Lynch case is good support for the limited admissibility to which the trial court refers, that case dealt with statements that were hearsay and not 'so spontaneous as to be admissible as a part of the res gestae.' Id. at 53, 45 A.2d at 886. It is implicit from the trial court's finding that the statements in question were a part of the res gestae, that they possessed the requisite spontaneity and contemporaneity to warrant their inclusion within the spontaneous exclamation or excited utterance exception to the hearsay rule. See Semprini v. Railroad, 87 N.H. 279, 280, 179 A. 349, 350 (1935); Bennett v. Bennett, 92 N.H. 379, 386, 31 A.2d 374, 380 (1943); Proposed Federal Rules of Evidence Rule 803(2) (1973); see also C. McCormick, On Evidence § 297, at 704-09 (2d ed. 1972).

Defendants argue that Wanda Graham's statements to Robert Proulx and Doris Belleville were too remote in time from the alleged crimes to justify their admissibility as excited utterances. While it is true that contemporaneity is a factor to be considered in determining the admissibility of such statements, it is by no means controlling and such things as the nature of the event, the victim's state of mind and all other circumstances are important considerations. Bennett v. Bennett, 92 N.H. 379, 386, 31 A.2d 374, 380 (1943); State v. Carraturo, R.I., 308 A.2d 828, 831 (1973); State v. Medicine Bull, 152 Mont. 34, 44-45, 445 P.2d 916, 922 (1968); Commonwealth v. Cheeks, 423 Pa. 67, 70, 223 A.2d 291, 293 (1966). The precise amount of time that may elapse before a statement loses its spontaneity as an excited utterance evoked by a startling event and becomes a mere narrative cannot be established by any absolute rule of law and accordingly, '(m)uch must be left to the discretion of the (trial) court in admitting or rejecting such testimony.' Dorr v. Railway, 76 N.H. 160, 162, 80 A. 336, 337 (1911); State v. La Vallee, 104 N.H. 443, 448, 189 A.2d 475, 479 (1963); Bennett v. Bennett, 92 N.H. 379, 386, 31 A.2d 374, 380 (1943); Commonwealth v. Cheeks, 423 Pa. 67, 70, 223 A.2d 291, 293 (1966).

While it is possible that some of complainant's statements to Doris Belleville may have been uttered as much as two or three hours after the alleged offenses, a careful review of the transcript shows that there is strong evidentiary support for the trial court's finding that they were a part of the res gestae. In view of the testimony of the continued attempts to remove Wanda from the bar...