State v. Novosel

• Citation: 412 A.2d 739,120 N.H. 176
• Decision Date: 13 March 1980
• Docket Number: No. 79-049,79-049
• Parties: The STATE of New Hampshire v. Viktor NOVOSEL.
• Court: New Hampshire Supreme Court

Page 739

412 A.2d 739

120 N.H. 176

The STATE of New Hampshire v. Viktor NOVOSEL.

No. 79-049.

Supreme Court of New Hampshire.

March 13, 1980.

Thomas D. Rath, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

James E. Duggan and Schuyler Crawford, Concord (Mr. Duggan, orally), for defendant.

KING, Justice.

This is an appeal from a conviction for second-degree murder following a bifurcated trial. The defendant, Viktor Novosel, was sentenced to forty years to life. This is the fourth time the defendant has been before this court. State v. Gregoire, 118 N.H. 140, 384 A.2d 132 (1978); Novosel v. Helgemoe, 118 N.H. 115, 384 A.2d 124 (1978); State v. Novosel, 115 N.H. 302, 339 A.2d 16 (1975).

On December 24, 1974, the defendant went to the home of George and Helen Morrison in search of his former wife and his children. Novosel carried a loaded gun. Precisely what happened thereafter is unclear.

George Morrison testified that when Novosel entered the living room with gun in hand, he demanded to know where his former wife and his children were. In response, George Morrison leaned over to pick up a coffee table to throw at Novosel. According to Morrison, Novosel then fired at him, striking him in the chest but causing only a superficial wound. George Morrison then fled to a neighbor's house to call the police. Helen was still alive when George fled but was dead from a bullet wound when he returned.

Novosel testified that he entered the Morrison house that night through an unlocked back door. He entered the living room where, before any conversation ensued, George Morrison tried to grab him. Novosel pushed him away, but Morrison came after him again. Novosel then took out the gun and fired at the floor. Novosel denied shooting directly at Morrison. As Novosel and Morrison struggled, Helen Morrison got up and started walking from the room. Novosel walked after her asking for his former wife and his children. George Morrison grabbed Novosel from behind, the gun went off and Helen Morrison fell to the floor. Novosel immediately fled the scene and was arrested within a few hours.

After a probable cause hearing on January 9, 1975, the defendant was indicted for second-degree murder, aggravated assault and possession of a handgun by a convicted felon. Novosel, however, was not tried on these charges. Instead, the State indicated at a pre-trial conference on April 11, 1975, that it intended to invoke the provisions of RSA 651:8, i. e., to resubmit the case to the grand jury for a determination as to whether it would "omit to find an indictment . . . for the reason of insanity or mental derangement . . . ." RSA 651:8.

Recognizing the constitutional problems presented by RSA 651:8 and :9, the Superior Court (Keller, C. J.) reserved and transferred several issues to this court. The defense objected to the transfer on speedy trial grounds on April 15, 1975. On June 5, 1975, in State v. Novosel supra, this court held: (1) that RSA 651:8 and :9 were constitutional if the defendant was accorded a hearing consistent with RSA 135:30-a; and (2) that Novosel's request for a bifurcated trial could be honored in the discretion of the trial court.

Novosel was denied a bifurcated trial upon remand, however, because the grand jury which was reconvened by the State failed to return an indictment by reason of insanity. The grand jury certified defendant insane, and the State nolle prossed the indictments. Thus, at the hearing held on June 9, 1975, the only issues decided by the court were whether it would be dangerous for Novosel to go at large and whether his life commitment should be to the State prison or to the State hospital. See RSA 651:9 (Supp.1979).

To prove Novosel dangerous, the State produced expert testimony from two psychiatrists and other testimony concerning the killing of Helen Morrison. A defense psychiatrist, however, sharply disagreed with the diagnosis of the State's experts and concluded that "institutional care" for Novosel was inappropriate. George Morrison and Viktor Novosel testified about the events surrounding Helen Morrison's death.

On June 12, 1975, the court entered an order finding Novosel dangerous and committed him for life to the maximum security unit of the New Hampshire State Hospital. Anticipating this court's decision in Gibbs v. Helgemoe, 116 N.H. 825, 367 A.2d 1041 (1976), the court ordered Novosel's commitment reviewed in two years.

Novosel subsequently renewed his challenge to the grand jury procedure, this time by a writ of habeas corpus in the superior court. In the interim, the grand jury procedure had been found to be constitutionally defective on federal grounds. Kanteles v. Wheelock, 439 F.Supp. 505 (D.N.H.1977). This court therefore held in Novosel v. Helgemoe, 118 N.H. 115, 384 A.2d 124 (1978) that the grand jury procedure was unconstitutional and ordered Novosel's release unless new indictments were returned against him within thirty days.

Novosel was again indicted for second-degree murder, aggravated assault and possession of a gun by a felon. The gun charge was severed for a separate trial. The murder trial began on May 1, 1978, three-and-a-half years after Novosel's arrest. Pre-trial motions to dismiss for lack of speedy trial, violation of double jeopardy and prosecutorial misconduct were denied. A defense motion for a bifurcated trial was granted. At the guilt phase of the trial, the jury found Novosel guilty of second-degree murder and not guilty of aggravated assault.

Prior to the "sanity phase" of the bifurcated trial, the court denied a defense motion to preclude the State from contesting Novosel's insanity defense. In support of the insanity defense, the defendant called two psychiatrists, a psychologist, and former assistant attorney general Robert Johnson, who had prosecuted Novosel in 1975. Johnson denied that he had ever "come to a particular conclusion himself as to whether or not Mr. Novosel was sane or insane." The only evidence offered by the State was testimony by Barbara Freeman, Novosel's girlfriend from August 1974 to the time of trial. In her opinion, Novosel was not insane. In closing argument, the State argued that Novosel was sane. The jury agreed. The Court (Mullavey, J.) sentenced Novosel to forty years to life with credit for his incarceration since December 24, 1974.

The first issue is whether due process was violated when, on remand from an appellate court, the prosecution reversed its position regarding the defendant's insanity. The defendant argues that the prosecution could not, consistent with due process, present his case to the grand jury in 1975 for consideration under RSA 651:8, and then, after a successful challenge to that statute, take the position that the defendant was sane at the time of the commission of the crime. Defendant however is not in a position to argue unfairness. All during the time the validity of RSA 651:8 was being litigated, he insisted that he was not insane, yet he thereafter changed his position and claimed he was insane.

The defendant argues that the state's change of position was intended to increase his penalty from a hospital commitment with biennial review to a criminal sentence (forty years to life in prison), and therefore, constitutes "vindictive" behavior which violates the defendant's right to due process.

Because it would be extremely difficult in any given case to prove the actual existence of a retaliatory motivation, North Carolina v. Pearce, 395 U.S. 711, 725 n.20, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969), no vindictive motive on the part of the prosecution need be proved to protect the defendant from an increased penalty for challenging his confinement. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); see North Carolina v. Pearce supra.

Prosecutorial "vindictiveness," however, is present only if the prosecution had "upped the ante" during a retrial and if a harsher sentence is thereby imposed. Blackledge v. Perry supra; North Carolina v. Pearce supra; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). But see State v. Koski, 120 N.H. ---, 411 A.2d 1122 (1980). This threshold element is not present here. After the 1975 grand jury omitted to indict, and after the defendant was found to be dangerous after hearing, he was committed by the court to an indeterminate term (with a maximum of life) to the New Hampshire hospital or State prison. While the commitment had to be reviewed every two years, there was certainly no guarantee that the defendant would ever be released. This must be contrasted with the defendant's parole eligibility. RSA 651:45-a. Whether incarceration would be longer under the sentence than under the commitment is unascertainable. In addition, while one penalty is a commitment based on a grand jury certification of insanity and a court finding of dangerousness, the second is a sentence based on a guilty verdict after jury trial. Although both penalties are harsh, one is not conclusively harsher than the other. Because the prosecution cannot be found to have "upped the ante" in this instance, and because one penalty is not conclusively harsher than the other, the defendant's due process argument fails.

The defendant next argues that he was denied his right to a speedy trial by an unjustifiable delay of three-and-one-half years between his arrest and trial. Under both the Federal and State Constitutions, a defendant is entitled to be free from capricious and oppressive delay in receiving a trial. U.S.Const. amend. VI; N.H.Const. pt. I, art. 14; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. White, 116 N.H. 687, 366 A.2d 872 (1976).

The period considered in determining the length of delay is between arrest and trial. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Collins, 115 N.H. 499, 502, 345 A.2d 162, 165 (1975). In the instant...