State v. Monsalve
| Decision Date | 24 May 1990 |
| Docket Number | No. 89-163,89-163 |
| Citation | 133 N.H. 268,574 A.2d 1384 |
| Parties | The STATE of New Hampshire v. Fabio MONSALVE. |
| Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen. (William H. Lyons, Asst. Atty. Gen., on the brief and orally), for the State.
W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on the brief and orally, for the defendant.
Having been convicted in the Superior Court (Groff, J.) of possessing a narcotic drug with intent to sell, RSA 318-B:2, I, the defendant argues on appeal that he was denied State due process when the court allowed the trial to proceed despite the State's refusal to take steps to obtain immunity for a defense witness maintaining his right to silence, and that the court erroneously admitted hearsay, implicating State and federal rights to confrontation, when it allowed a police officer to describe an agreement with the same witness. We affirm.
On January 14, 1988, police officers of the Attorney General's Drug Task Force assigned to Nashua arrested one Coelho for sale of a narcotic and for conspiracy to engage in a separate sale of one kilogram of cocaine, although the sale had not taken place as expected. After the arrest, the director of the task force, James Norris, agreed to drop both charges if Coelho would produce the kilo of cocaine and his "source." Following some telephone calls by Coelho and Norris to a third person in Massachusetts, the defendant, Fabio Monsalve, arrived in Nashua by car with a companion named Greenwood, who was holding a locked metal box. After conversing with an undercover police officer, the defendant produced the key to the box, from which 954 grams of cocaine were removed. The defendant's arrest and prosecution followed.
At trial he raised the defense of entrapment, in support of which he claims to have sought Coelho's testimony. When the latter remained silent in the exercise of his privilege against compelled self-incrimination, the defendant requested the court to order the State to "grant" the witness transactional immunity, following which the testimony could have been compelled. In effect, that is, the defendant asked the court to order the State to choose between requesting the court to require the witness to testify subject to the consequences provided by RSA 516:34 or suffering dismissal of the indictment. The trial court denied the request. Before us, the defendant raises no claim of error in the court's recognition of Coelho's invocation of the privilege against compelled self-incrimination, but he argues that the refusal to order the State to choose between dismissal and a request to compel testimony under RSA 516:34 denied him due process as guaranteed by part I, article 15, of the State Constitution.
State constitutional standards for reviewing defense requests for what are colloquially called grants of immunity to defense witnesses have been recognized for more than a decade. Although a defendant has no per se right to obtain a potentially immunizing order, see State v. MacManus, 130 N.H. 256, 259, 536 A.2d 203, 204 (1987), the court has recognized that prosecution without such an order can deny due process under some circumstances, see State v. Farrow, 118 N.H. 296, 306, 386 A.2d 808, 814 (1978). No such violation will be recognized, however, without a showing by the defendant that the testimony sought would be directly exculpatory or would present a highly material variance from the tenor of the State's evidence. Id.; see MacManus supra.
These standards are fatal to the defendant's claim. Quite simply, we have no inkling of whether Coelho would have testified for the defendant's benefit or of what he would have said. The defendant apparently hoped that Coelho would have supported the entrapment defense, but that possibility was remote at best. The record indicates that Coelho and the defendant did not speak together in the period between their respective arrests, and the only specific point about which the record gives any clear indication of the defendant's desire to examine Coelho goes to the defendant's status as Coelho's "source." Perhaps the defendant reasoned that his claim of entrapment was less plausible if he was understood to be the "source." There is, however, no reason to believe that Coelho would have conceded that the defendant was not his source for the...
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State v. Etienne, s. 2004–833
...exculpatory or would present a highly material variance from the [163 N.H. 100] tenor of the State's evidence.” State v. Monsalve, 133 N.H. 268, 270 [574 A.2d 1384] (1990). Second, “if the defendant demonstrates that his case falls within these narrow circumstances, we then decide whether, ......
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State v. Davis, 93-085
...can be said beyond a reasonable doubt that the introduction of the copy of the check did not affect the verdict. State v. Monsalve, 133 N.H. 268, 271, 574 A.2d 1384, 1386 (1990). Turning finally to the fourth issue raised by the defendant, that the jury was not instructed on the issue of ve......
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State v. Seymour
...be directly exculpatory or would present a highly material variance from the tenor of the State's evidence." State v. Monsalve, 133 N.H. 268, 270, 574 A.2d 1384, 1385 (1990). Here, the defendant has shown neither. He argues that Garey Smith and Kittridge Smith could have offered testimony c......
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State v. Rogers
...would be directly exculpatory or would present a highly material variance from the tenor of the State's evidence." State v. Monsalve, 133 N.H. 268, 270, 574 A.2d 1384 (1990). Second, "[i]f the defendant demonstrates that [his] case falls within these narrow circumstances, we then decide whe......