State v. Nelson

• Decision Date: 20 December 1963
• Citation: 196 A.2d 52,105 N.H. 184
• Parties: STATE v. Russell NELSON. STATE v. Fred J. MARTINEAU.
• Court: New Hampshire Supreme Court

Page 52

196 A.2d 52

105 N.H. 184

STATE v. Russell NELSON.

STATE v. Fred J. MARTINEAU.

Supreme Court of New Hampshire.

Argued Oct. 3, 1963.

Decided Dec. 20, 1963.

William Maynard, Atty. Gen., Elmer T. Bourque, Deputy Atty. Gen., and Conrad Danais, County Atty., for the State.

Julius H. Soble, Boston, Mass., for defendant Martineau.

Leo Patrick McGowan, Providence, R. I., for defendant Nelson.

Leonard & Leonard, Richard Leonard, Nashua, for both defendants.

WHEELER, Justice.

The defendants stipulated as to the following facts:

'This stipulation is filed in conjunction with the defendants' motion for a new trial based on the claim that under Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081], decided June 19, 1961, certain evidence used against the defendants was illegally obtained and inadmissible.

'1. The circumstances leading to the apprehension of Russell Nelson are as follows: Police officers in Nashua, at 12:51 A.M., Monday, February 9, 1959 observed a 1959 light colored Chevrolet automobile with one occupant, Robert Almonte, proceeding north on Main Street. As the car passed through the intersection of Hollis Street it slowed down and veered to the right. The operator looked toward the Yankee Flyer Restaurant and then pulled into the center lane and continued in a northerly direction. The police officers in question walked north on the westerly side of Main Street to the Central Variety Store from which point they observed a man, Russell Nelson, on the opposite side of the street walking south and saw him turn into a driveway next to the Yankee Flyer. At about the same time Almonte reappeared in the 1959 Chevrolet proceeding south on Main Street. The automobile turned into the same driveway and shortly thereafter returned to Main Street with Almonte still driving and Nelson in the front passenger seat. The officers stepped into the street and stopped the vehicle. Almonte could not produce a driver's license and both he and Nelson were taken to the Police Station and booked for questioning.

'Shortly after being taken to the police station Nelson and Almonte were questioned by Sgt. Tafe. Records at the police department disclose that the registration plates on the Chevrolet correspond with those of a vehicle listed as being stolen on October 3, 1958. Sgt. Tafe telephoned to Providence and was advised of the criminal records of Nelson and Almonte. There was an exchange of teletype messages; at 4:44 A.M. the Providence Police teletyped that the stolen car listing was cancelled on October 5, 1958. Sgt. Tafe and Officer Lavoie searched the entire area for evidence of a stolen car, burglary or other crime. It was in the course of this search that Martineau was apprehended.

'2. The circumstances leading to the apprehension of Fred Martineau were as follows: Later that same morning at 3:50 A.M. Martineau was seen at the parking lot located at the intersection of Spring and East Pearl Streets. Officer Lavoie in a patrol car proceeding north on Spring Street approaching the parking lot observed him walking toward Spring Street. As Martineau approached the officer opened the door of his vehicle and snapped on the dome light. Martineau who was about six feet from the police car, looked at the officer and then proceeded to run south on Spring Street toward the Junior High School. The officer gave chase and Martineau disappeared around the southeast corner of the school building where he was apprehended some fifteen hundred feet from the point where Gagnon's body was later found. He was taken to the police station by the officer and was booked for questioning.

'Martineau was also questioned by Sgt. Tafe and there was an exchange of teletype messages between Nashua and Pawtucket concerning Martineau. Copies of the teletype messages are appended.

'3. Nelson and Martineau were originally booked for questioning. These entries were subsequently changed from 'Questioning' to 'S.P. of Felony'. The records do not indicate the time when these changes were made. Copies of the arrest records are appended. The State reserves the right to introduce evidence concerning the time when the changes were made.

'4. At 11:55 A.M. on February 9, 1959, the Nashua police received a call that a body was found in a parked car off Church Street in Nashua. Upon investigation, one Maurice Gagnon was found in his automobile, the apparent victim of murder.

'5. At 2:00 P.M. on February 9, 1959, some thirteen (13) hours after his apprehension, Russell Nelson was questioned by the Inspector's Division. On request Nelson removed and handed to the police the following items of clothing: Leather jacket, trousers, belt, shirt, stockings and shoes. At 4:00 P.M. on February 9, 1959, some twelve (12) hours after his original detention, Fred Martineau was questioned by members of the Nashua and Rhode Island Police Departments. On request Martineau removed and handed to the police the following items of clothing: his trousers, topcoat and suede jacket. On the following day the remainder of his clothing was obtained in the same manner: sportshirt, shoes, stockings and T-shirt. Specimens of dirt were also removed from Martineau's fingernails and a benzidine test, for the detection of blood, was performed on his hands at or about that time.

'6. On the evening of February 9, 1959 Justice Antoine Guertin of the Nashua Municipal Court granted petitions for additional detention of the prisoners. Copies of the petitions are appended.

'7. Both respondents were detained at the Nashua police station, without being formally charged with a crime, until 9:00 P.M. on February 11, 1959, when complaints were drawn charging them with first degree murder. Sometime around noon-time on February 11, 1959, more than fifty-six (56) hours after their original detention, they were allowed to contact legal counsel. Counsel were permitted to see the respondents in the late afternoon of February 11, 1959.

'8. When questioned by the police on the afternoon of February 9, 1959, and at subsequent times of questioning, both respondents demanded to see their lawyers; their requests were denied by Nashua police.

'9. At 9:00 A.M. on February 12, 1959, both respondents were arraigned before the Nashua Municipal Court and charged with first degree murder; both pleaded not guilty.

'10. At about 9:00 A.M. on February 13 hair specimens were procured from both Martineau and Nelson. In each case police handed the individual a clean comb and allowed him to comb his hair. Specimens adhering to the comb were preserved. According to the State's expert hair samples found in the victim's car could have come from the victim and could have come from the respondent Martineau. There were not sufficient specimens of Nelson's hair to justify an opinion by the State's expert.

'11. All items of clothing, hair and other specimens of the respondents which had been taken from them as set forth in paragraphs 5 & 6 hereof were subject to extensive scientific tests by Professor Harold C. Harrison, of the Rhode Island State Police Crime Laboratory and Lt. Carrol Durfee of the New Hampshire State Police.

'12. Items of clothing taken from the respondents were received in evidence against the respondents as follows:

'A. Nelson's Clothing. All of Nelson's clothing was taken at 2:00 P.M., Monday, February 9:

'(1) Nelson's Jacket. Blood was found on this item. It could not be determined whether the blood was human.

'(2) Nelson's Trousers. Small plastic particles found on Nelson's trousers corresponded to similar particles found in the victim's automobile and to plastic materials used in the victim's factory, Magco Plastics. It was the opinion of the State's experts witness that the contamination on Nelson's trousers probably originated from the interior of the victim's automobile.

'(3) Nelson's Shoes. An area of blood was found in the stitching of Nelson's right shoe. Fiber particles removed from Nelson's shoes were compared with fibers of the floormats of the victim's automobile. Based upon this comparison the State's expert testified that Nelson's shoes had been in contact with one or more of the floor mats of the victim's automobile.

'B. Martineau's Clothing. Admitted in evidence were the following items of clothing which except for four (4) were taken from Martineau at 4:00 P.M., Monday, February 9:

'(1) Martineau's topcoat. An area of blood was found just behind the left pocket--it could not be determined whether this blood was animal or human; a blood stain of considerable size was found in the lining of the same pocket--this was human blood type O, the same type as the victim's and the respondent Martineau's. On the inside of the left topcoat pocket was a smudge identified as firearms discharge residue. In the opinion of the State's expert this indicated that the pocket had been in contact with an object bearing firearms discharge residue and that the object could have been a semiautomatic weapon which the state claimed was the murder weapon.

'(2) Martineau's Suede Jacket. An area of blood was found on the left side of the jacket and several stains were found in the left pocket.

'(3) Martineau's Trousers. Human blood of undetermined type was found in the lining of the left side pocket; blood stains were also found in the right hip pocket and in the fly. Small plastic particles found on Martineau's trousers corresponded to similar particles found in the victim's automobile and to plastic materials used in the victim's factory. It was the opinion of the State's expert witness that the contamination on Martineau's trousers originated from the interior of the victim's automobile.

'(4) Martineau's Shoes. Martineau's shoes were taken Tuesday, February 10. Two blood stains were found on the left shoe, and one on the right shoe. Fiber particles removed from Martineau's shoes were compared with fibers of the floor mats of the victim's automobile. Based on this comparison the State's expert...