State v. Plante

• Decision Date: 24 July 1991
• Docket Number: No. 89-430,89-430
• Citation: 594 A.2d 1279,134 N.H. 456
• Parties: The STATE of New Hampshire v. Paul PLANTE, Jr.
• Court: New Hampshire Supreme Court

Page 1279

594 A.2d 1279

134 N.H. 456

The STATE of New Hampshire v. Paul PLANTE, Jr.

No. 89-430.

Supreme Court of New Hampshire.

July 24, 1991.

John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief and orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on brief and orally, for defendant.

THAYER, Justice.

The defendant appeals from his conviction of the kidnapping and aggravated felonious sexual assault of one victim, and the attempted kidnapping of another victim, on the basis of one issue: whether the Trial Court (Groff, J.) erred in refusing to give the defendant's requested instruction on insanity and thereby deprived the defendant of a fair trial. We affirm.

The relevant facts are as follows. On the morning of October 7, 1987, the defendant exited his vehicle, approached a seventeen-year-old girl who was walking to school in Milford and asked her if she could provide directions out of town. After receiving the directions, the defendant returned to his vehicle and followed the girl as she continued to walk to school. Eventually, the defendant stopped the girl again and forced her into his vehicle at knife-point. He then drove to the Milford Drive-in Theatre, parked and, while continuing to threaten the victim with the knife, sexually assaulted her. After the assault, the defendant asked the victim whether he should let her live, but he eventually drove the victim to school and dropped her off. Once inside the school, the victim reported the incident to school authorities who called the police.

On the morning of January 29, 1988, the defendant's second victim was walking to school in Hillsborough, when the defendant stopped his car and asked if she could direct him to Waltham Street. When she replied that she had never heard of the road, the defendant got out of his car brandishing a knife, and told her to get in the car. The victim immediately ran to a nearby home, where a neighbor brought her into the house and called the police.

On February 10, 1988, two State Police officers interviewed the defendant regarding the two incidents described above. After properly informing the defendant of his rights, and upon obtaining a valid waiver of those rights, the officers asked the defendant a number of questions which prompted him to admit to attempting to force the second victim into his car on January 29th, with the intention of having sex with her. The defendant also told the police that since November of 1987, when he was in an automobile accident, he had been having problems relating to women his own age, and that he felt more comfortable dealing with younger girls. On March 15, 1988, the defendant was indicted on one count of aggravated felonious assault, one count of kidnapping and one count of attempted kidnapping. The defendant entered a plea of not guilty by reason of insanity.

At trial, it was established that the defendant had been in an automobile accident in November of 1986, rather than November of 1987. As a result of this accident, the defendant was in a coma for three weeks and suffered contusions to the frontal lobes and occipital region of his brain. After the accident, the defendant underwent months of rehabilitation and therapy, which eventually enabled him to regain his basic speech, motor and cognitive skills. However, several people who knew the defendant well testified that they perceived a change in his personality after the accident. According to the defendant's sister, the defendant had not exhibited any aggressive tendencies toward women or young girls prior to the accident, and the defendant's former girlfriend noted that he began to physically abuse her only after the accident.

Before the trial, the defendant was examined by a number of physicians and psychiatrists in response to his contention that he suffered from a serious mental condition as a result of the 1986 automobile accident, which rendered him insane. The weight of the expert testimony presented to the jury concentrated on the issue of whether the defendant suffered from "organic personality syndrome," an organic brain disorder that influences a person's behavior and demeanor. Both the defense and the State called several expert witnesses who testified as to how his brain injury affected the defendant's behavior. Although these witnesses could not agree on how the defendant's injury specifically affected him, experts for both parties concluded that it did not alter the defendant's ability to distinguish right from wrong, cause delusions or compel the defendant to commit the sexual assault itself. Moreover, experts for both the defense and the State testified that organic personality syndrome is not a mental illness as defined by the psychiatric community.

At the close of the evidence, the defendant requested a jury instruction which included the term "condition" wherever the terms "illness" or "disease" appear in the instruction. The defense also requested that the jury be instructed that it could consider the question of "whether the defendant was suffering from brain damage or injury" as evidence of insanity. The trial court refused to give the requested instruction and, over the defendant's objection, rendered the jury charge in accordance with the model instruction for the insanity defense. See RSA 628:2, II (Supp.1990); N.H. Criminal Jury Instructions 3.07 (1985). The jury found the defendant sane and guilty on all three counts, and this appeal followed.

The defendant now asserts that the trial court denied him a fair trial because the refusal to include the additional terms he requested in the jury instructions removed a question of fact from the jury's consideration. Essentially, the defendant argues that the terms "mental condition" and "brain damage or injury" were essential to his insanity defense, and the instruction without these terms was inadequate because it failed to alert the jury to the distinction between clinical and legal definitions of mental illness or disease. The defendant further maintains that the trial court abused its discretion in not including in the list of evidence on which the jury could rely in rendering its judgment evidence on the issue of whether the defendant suffered from brain damage or injury. We disagree.

We note in passing that the defendant, in his brief, bases his argument on both the Federal and State Constitutions. However, the constitutional dimension of the defendant's argument was not called to the trial court's attention, nor was it raised in the notice of appeal. Therefore, we will consider his argument under an abuse of discretion standard, as these constitutional issues are not properly before this court under our long-standing rule regarding preservation of constitutional issues. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986). Where an alleged error involves a jury instruction, it is particularly appropriate that we follow this rule. See State v. Wood, 132 N.H. 162, 165, 562 A.2d 1312, 1314-15 (1989).

The disputed instructions provided in pertinent part:

"The defendant has raised the defense of insanity. Insanity is a affirmative defense. This means that the defendant has the burden of proving by clear and convincing evidence that he was insane at the time of the crime. The State does not have to prove that defendant was sane. The defense of insanity is essentially a claim that the defendant is not responsible for the act he committed. By raising a defense of insanity, the defendant says that he suffered from a mental illness or disease which made him...