State v. Nelson

• Decision Date: 30 November 1961
• Citation: 175 A.2d 814,103 N.H. 478
• Parties: STATE v. Russell NELSON and another.
• Court: New Hampshire Supreme Court

Page 814

175 A.2d 814

103 N.H. 478

STATE v. Russell NELSON and another.

Supreme Court of New Hampshire.

Argued Sept. 7, 1961.

Decided Nov. 30, 1961.

Gardner C. Turner, Atty. Gen., Elmer T. Bourque, Asst. Atty. Gen., Conrad Danais, County Atty., Manchester, for the State.

Leonard & Leonard, Nashua, Leo Patrick McGowan, Providence, R. I., Richard Leonard, Nashua, for defendant Nelson.

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

WHEELER, Justice.

There was evidence from which the jury could find the following facts: On February 9, 1959, just before noon, the body of Maurice Gagnon was found in the front seat of his white Cadillac automobile in a parking lot in Nashua. The body was lying on the front seat on its left side with the head under the steering wheel. A bullet later found in the brain had been discharged from a gun held not more than five inches from the left ear. Death could have occurred shortly thereafter and between the hours of 6:30 in the evening of Sunday, February 8, 1959, and 2:30 a. m. Monday, February 9, 1959. Gagnon, who lived in Lincoln, Rhode Island in a trailer, was part owner of Stateland, a roller skating rink in Georgiaville, Rhode Island, and also operated Magco Plastics in Lawnsdale, Rhode Island, employing approximately fifty persons.

The defendants Martineau and Nelson lived respectively in Pawtucket and Providence, Rhode Island. They, with one Knowles, were under indictment in Rhode Island for burglarizing Gagnon's trailer, with the trial scheduled to start February 10, 1959, the maximum penalty being life imprisonment. On the previous Wednesday, Martineau had sought out Gagnon and tried to induce him to change his testimony, but he refused. On Sunday, February 8, 1959, between 5:20 and 5:30 p. m., Gagnon's partner, Jack Rose, left him at the roller skating rink in Georgiaville where he was in the process of repairing skates in the skate room. When the police visited the room on the following evening, a single skate was found in the middle of the floor with its mate in the skate rack. Skateland is located on Whipple Road. About 7:00 o'clock on the evening of February 8, 1959 an attendant at a filling station located at the intersection of Douglas Pike and Whipple Road heard a car come out of Whipple Road at a 'terrific rate of speed' estimated to be ninety to one hundred miles an hour. The attendant knew Gagnon and had previously seen his car at the filling station. He testified it was Gagnon's car because it came out of Whipple Road and he had never seen a similar car in the vicinity.

On Sunday afternoon, February 8, between 3:30 and 4:00 p. m., a Mr. and Mrs. Albert Fossa who were acquainted with Mr. and Mrs. Martineau went to the Old Canteen restaurant on Atlas Avenue n Providence where they met Martineau and Nelson and invited them to have dinner. Nelson and Martineau left the restaurant together around 5:00 p. m. At 10:00 o'clock that evening Nelson's car was observed parked on Alexander Street in Lincoln, Rhode Island, about one and a quarter miles from Gagnon's trailer home. The same car was there the next morning. On Saturday evening, February 7, one Robert Almonte, who at the time of the trial was under indictment as an accessory after the fact to the murder of Maurice Gagnon, shared a room at the Plaza Hotel, Providence, Rhode Island, with defendant Nelson. The following evening (Sunday) at about 8:00 o'clock Almonte went to the Bradford Social Club on Atwood Avenue in Providence. Two calls were placed from an outdoor telephone booth in front of the Nashua city hall at 10:18 p. m. that evening. The first call was made to the Albert Fossa home where there was no answer. The second call was to the Bradford Social Club and was completed.

Almonte left the Bradford Social Club between 10:00 and 11:00 p. m. and walked to the Fountain Lounge, arriving there between 10:30 and 11:00 o'clock. The owner of the Lounge, one Thomas Tomasian, loaned Almonte the keys to his car. Not long after midnight Almonte arrived at the Bedford, Massachusetts police station and inquired for directions to Nashua, New Hampshire. He appeared nervous.

Police officers in Nashua, at 12:51 a. m. Monday, February 9, observed a 1959 light-colored Chevrolet automobile bearing registration plates 'RI TT 130' with one occupant proceeding north on Main Street. These registration plates had been issued to Thomas Tomasian. 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. Another police officer stationed further north also observed the same car approaching from the south. The operator pulled over toward the officer and inquired the directions to the Yankee Flyer, then reversed his course and headed south on Main Street in the direction of that restaurant. The operator was later identified as Robert Almonte.

The police officers who first observed this motor vehicle proceeded north on the westerly side of Main Street to the Central Variety Store from which point they observed a man on the opposite side of the street walking south and saw him turn into a driveway next to the Yankee Flyer. The motor vehicle with registration plates 'RI TT 130' reappeared on Main Street heading south and turned into the same driveway, returning to Main Street shortly thereafter with two occupants. The officers stepped into the street and stopped the vehicle. The occupants were identified as Almonte and Nelson. Almonte could not produce a driver's license, and they were taken to the police station and detained for questioning.

Later that same morning at 3:50 a. m. Martineau was seen in a parking lot located at the intersection of Spring and East Pearl Streets. An officer in a patrol car proceeding north on Spring Street approaching the parking lot observed him walking toward Spring Street. As he 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 to the junior high school. The officer gave chase and Martineau disappeared around the southeast corner of the school building where he was apprehended some 1500 feet from the point where Gagnon's body was later found. Thereafter that morning traveler's checks in Gagnon's name were discovered throughout the neighborhood of the parking lot where the body was found. Also $850 in cash was found in the window well on the south side of the school building near where Martineau disappeared. It consisted of three one-hundred-dollar bills and eleven fifty-dollar bills, one of which was bloodstained. It was established that on the previous Friday evening Gagnon had received two one-hundred-dollar bills and four fifty-dollar bills from his partner Rose and was to provide an additional four hundred dollars for deposit to their corporation account the following Monday morning.

Certain chemical and microscopic tests were made of the defendants' clothing and areas of their hands and bodies for the presence of blood and other foreign matter. Martineau's hands and wrists were examined at about 7:30 Monday evening February 9 and blood was discovered on them, but it was not possible to determine whether it was human. A bloodstain of considerable size was found in the lining of the lefthand pocket of Martineau's topcoat. This stain was identified as Type 'O' blood, which was the same type as Martineau's and the victim Gagnon's. At the trial Martineau attempted to explain the presence of blood on his clothing by claiming he had been beaten up by a Rhode Island state police officer in the Nashua police station. It appeared that his clothing had been removed on Monday at 4:00 p. m. and the Rhode Island police did not arrive until 7:00 p. m. He further testified that on the night of February 4 or 5 his wife hit her nose on the cupboard and she had a hemorrhage which splattered on the rug. On rebuttal it was established by the State that Mrs. Martineau's blood was Type 'A'. Bloodstains of an undetermined type were found in the lining of Martineau's left trousers pocket, on the right hip pocket and in the fly. An area of blood was found on the left side and in the left pocket of his suede jacket. Two stains were found on his left shoe and one on the right. Inside of Martineau's left-hand topcoat pocket a dark colored gray-blackish smudge was found which upon analysis was determined to contain firearm discharge residue. Martineau is left-handed.

On Nelson's jacket an area of blood was discovered near the right side pocket and on the stitching of his right shoe. Some twenty-two strands of hair were found in the Gagnon motor vehicle, seventeen of which were identified as having come from the victim Gagnon and four from the defendant Martineau. Certain foreign substances were vacuumed from the floor of the victim's automobile and compared with fibers on the shoes of the defendants. The State's expert testified that both Nelson's and Martineau's shoes had been in physical contact with the floor mats of the Gagnon vehicle and that certain plastic particles found on the clothing of the defendants probably originated from the interior of Gagnon's automobile, some of which were similar to those used in his plastics plant.

Both defendants took the stand and the substance of their defense was that they had arrived in Nashua without prearrangement and for unrelated reasons and that their presence there when Gagnon's body was discovered was wholly coincidental. It was their further contention that his death occurred after they had been taken into custody by the police.

The defendants contend before us that the Trial Court erred in denying their motion to dismiss the kidnaping indictment (728) or, in the alternative, should have postponed the date of trial...