State v. Munoz

• Decision Date: 18 April 2008
• Docket Number: No. 2007–159.,2007–159.
• Citation: 157 N.H. 143,949 A.2d 155
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Peter MUNOZ.

157 N.H. 143

949 A.2d 155

The STATE of New Hampshire

v.Peter MUNOZ.

No. 2007–159.

Supreme Court of New Hampshire.

Argued: Feb. 21, 2008.

Opinion Issued: April 18, 2008.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State.

Desfosses Law Firm, of Portsmouth (Philip Desfosses on the brief and orally), and Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief), for the defendant.

GALWAY, J.

The defendant, Peter Munoz, appeals his conviction following a jury trial for attempted burglary, see RSA 635:1 (2007); RSA 629:1 (2007), arguing that the trial court erred in denying his motions to quash and to dismiss, and in permitting certain testimony. We affirm.

The record discloses the following facts. On May 29, 2003, Jennifer Durbin was alone in her second-floor apartment at the Fairways apartment complex in Derry when she heard a noise from her living room. When she went to investigate, she saw a man standing on her balcony attempting to pry open her sliding-glass door with an orange-handled screwdriver. When the man noticed her, he pulled the hood of his sweatshirt over his head, jumped off the balcony and departed. Durbin called the police. Upon their arrival, the police obtained a description of the man, and a latent fingerprint from the exterior handle of the balcony door.

Later that morning, an anonymous female caller with a Hispanic accent telephoned the Derry Police Department and spoke with Officer Barry Charewicz. She informed him that she had the name of someone the police "should be looking at for the Fairways attempted burglary." Despite being asked, the caller would not give her name, but did provide the defendant's name, age and physical description. The caller also stated that she and the defendant knew each other because they were from the same country. Shortly before trial, the caller was identified as the defendant's wife, Naomi Pena.

Based upon the information received from the then-anonymous tip, the police contacted the United States Immigration and Naturalization Service (INS) (now known as the United States Customs and Immigration Services) and obtained a fingerprint card for the defendant. It was later determined that the fingerprint from the balcony matched one on that card.

Approximately one month after finding the man on her balcony, Durbin and her husband moved out of their apartment. Three or four days prior to moving, the Durbins held a furniture sale at their apartment. Durbin testified that she recalled seeing the defendant and his wife at the sale, and that she sold them some furniture. Durbin testified that she was startled by the defendant's presence at the sale because she believed, though was not certain, that she recognized him as the man from her balcony. Durbin also testified that even at the time of trial she could not be certain if the defendant was, in fact, the man on her balcony.

In July 2003, with the defendant's wife acting as an interpreter, the police spoke with the defendant at his apartment. According to the interviewing officer's testimony, after being told that his fingerprint was found on the balcony, the defendant stated that he was not in Derry but in Boston on May 29. Later in the interview, the defendant stated that he was in Colombia on that day, but then stated that he had actually returned from Colombia before May 29. According to the officer, the defendant explained that his fingerprint might have been found in Durbin's apartment because he had been there to buy furniture, or because he had visited a prior tenant there, but he could not recall the tenant's last name. At the conclusion of the interview, the police received the defendant's wife's permission to search her two cars and a slightly bent, orange-handled screwdriver was found in one.

The defendant was subsequently indicted for attempted burglary. Prior to trial, he moved to quash the indictment, arguing that it was defective. The Trial Court (Morrill, J.) denied the motion. He renewed his argument in a motion to dismiss at the close of the State's case, which the Trial Court (Coffey, J.) also denied. Additionally, before trial the defendant moved to preclude the State from referring to the anonymous telephone call or from disclosing its contents. The Trial Court (Coffey, J.), however, admitted testimony about the call, subject to certain limitations. The defendant appealed these rulings following his conviction for attempted burglary.

On appeal the defendant first contends, under Part I, Article 15 of the New Hampshire Constitution, that the trial court erred in denying his motions to quash and dismiss because the indictment was inadequate. According to the defendant, because burglary is essentially an attempt to enter a building to commit some other offense, for a burglary indictment to be adequate, it must allege which crime the perpetrator would have committed in furtherance of the burglary. The defendant contends that because a burglary indictment must allege the crime to be committed, so must an indictment for attempted burglary. Because the indictment here did not allege what other offense would be committed upon entry, it was defective.

"A person is guilty of an attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime." RSA 629:1, I. Attempt is an inchoate crime that is considered a substantive offense in and of itself. State v. Johnson, 144 N.H. 175, 178, 738 A.2d 1284 (1999). To be constitutionally adequate, an indictment charging an attempt must allege both an intent to commit a crime and an overt act in furtherance of the crime. Id. at 177, 178, 738 A.2d 1284. However, while the attempt statute requires the State to identify the intended offense, it does not require the State to plead and prove the elements of the intended offense and it is ordinarily sufficient to state the intended offense generally. Id. at 178, 738 A.2d 1284. "Since an attempted crime is by definition a crime not completed, the State could not plead, factually identify, and prove the elements of the intended offense as if it had been carried out." Id.

Here, the indictment alleges that the defendant had the requisite intent and alleges an overt act in furtherance of the crime as well as the crime attempted, i.e., burglary. Therefore, it is constitutionally adequate. Id. at 177, 178, 738 A.2d 1284. Charging the defendant with attempted burglary does not require the State to specify the offense the defendant would have committed in furtherance of the burglary. Requiring the State to comply with the defendant's argument would require it to plead and prove the elements of the crime attempted, a result contrary to Johnson. Moreover, such a requirement would force the State to prove more than is required by the attempt statute, see RSA 629:1, I. The indictment meets the requirements for an adequate attempt charge and it describes the offense with sufficient specificity to allow the defendant to prepare for trial. Id. at 177, 738 A.2d 1284.

The defendant argues that not requiring the State to identify the crime to be committed would leave the jury to speculate about what crime would have been committed. Permitting such speculation, according to the defendant, is impermissible because the jury could convict the defendant without reaching a unanimous decision regarding the crime that would have been committed. Unanimity, however, is required only as to the elements of the crime charged. See State v. Greene, 137 N.H. 126, 128, 623 A.2d 1342 (1993) ("The New Hampshire Criminal Code requires jury unanimity with respect to the presence of the elements of offenses in criminal cases as charged."). Here, the crime charged is attempted burglary, and unanimity is needed only as to its elements. What crime or offense the defendant would have committed in furtherance of the burglary is not an element of attempt, and, therefore, does not require unanimity. Accordingly, we conclude that the trial court did not err in denying the defendant's motions to quash and dismiss.

Next, the defendant contends that in admitting the officer's testimony regarding the substance of his conversation with the anonymous caller, the trial court violated his right of confrontation under both the State and Federal Constitutions. See N.H. CONST., pt. I, art. 15 ; U.S. CONST. amends. VI, XIV. Before trial, the defendant sought to exclude testimony regarding the anonymous call, but the trial court nevertheless permitted the State to introduce portions of the call through Charewicz, which the State did. The defendant argues that admitting Charewicz's testimony was error.

We address first the defendant's argument under Part I, Article 15 of the New Hampshire Constitution, citing federal opinions for guidance only. See State v. Miller, 155 N.H. 246, 253, 921 A.2d 942 (2007). The defendant contends that his rights under the State Constitution were violated because admitting Charewicz's testimony was contrary to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We have not, however, adopted the Crawford analysis as applicable in this State, see State v. Ayer, 154 N.H. 500, 511, 917 A.2d 214 (2006), cert. denied, ––– U.S. ––––, 128 S.Ct. 63, 169 L.Ed.2d 52 (2007), and the defendant does not argue that we should do so here. Moreover, the defendant offers no argument under any other standard regarding the violation of his rights under the State Constitution. See id. (noting that we have traditionally applied the analysis in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to Confrontation Clause challenges under the State Constitution). Accordingly, we conclude that the defendant does not prevail on his claim under the New Hampshire Constitution.

In support of his...