State v. Plummer

• Decision Date: 29 April 1977
• Docket Number: No. 7401,7401
• Citation: 374 A.2d 431,117 N.H. 320
• Parties: STATE of New Hampshire v. Charles A. PLUMMER.
• Court: New Hampshire Supreme Court

Page 431

374 A.2d 431

117 N.H. 320

STATE of New Hampshire v. Charles A. PLUMMER.

No. 7401.

Supreme Court of New Hampshire.

April 29, 1977.

David H. Souter, Atty. Gen., and James L. Kruse, Asst. Atty. Gen., for the State.

Edes & Elliott and Bruce R. Jasper, Newport, for defendant.

LAMPRON, Justice.

The defendant was indicted in February 1975 for the offense of recklessly causing the death of one Waldemar Buranen (RSA 630:2 I(b)). Trial was held in late March of 1975. The jury returned a verdict that defendant was guilty of the lesser included offense of negligent homicide (RSA 630:3 I). During the course of trial, defendant excepted to certain rulings of the court admitting and excluding evidence. Defendant also excepted to the denial of his motion to set aside the verdict. All questions of law raised by these exceptions were reserved and transferred by Loughlin, P. J.

Three issues are presented on appeal. The first concerns the court's admission of testimony by one Harold Smith that defendant was "bullish" and that he liked to "show his strength." Counsel for the defendant objected to the admission of this testimony, but the objection was overruled. However, recognizing its error, at the beginning of the following day the court instructed the jury to disregard Mr. Smith's testimony relative to defendant's general character or reputation, and not to consider it to provide any inference of guilt. The defendant also testified himself that he was "bullish," as Mr. Smith had testified. During oral argument before this court, counsel for the defendant properly conceded that under these circumstances the initial admission of this statement by Mr. Smith constituted harmless error, and we need not discuss this issue further. State v. Ballentine, 116 N.H. 120, 352 A.2d 403 (1976).

The second issue raised concerns the admission of statements made by the deceased to a nurse at the hospital where he was taken three or four hours after he had been injured. These statements, in which the victim had described his assailant, were admitted under the res gestae exception to the hearsay rule. Defendant argues that because of the lapse of time between the events and the statements the deceased's statements were not spontaneous or excited utterances which would properly qualify for admission under the res gestae rule. For reasons which follow we hold there was no error in the admission of these statements.

The third issue is whether the trial court erred in excluding testimony that defendant's drinking and his intoxication at the time of the events in question rendered his actions nonculpable because defendant was a chronic alcoholic. We hold that the trial court properly excluded this testimony under the circumstances of this case.

On the evening of January 20, 1975, defendant and the deceased were in defendant's apartment on the first floor of the Colonial House in Newport. The two men had known each other for several weeks, spending most of their time together drinking. On this evening they were also drinking, along with defendant's girlfriend, Marjorie Slocum, and various other people who came and went during the evening.

There was testimony that the two men had some arguments later on in the evening. Harold Smith, a resident of another first floor apartment, testified that around 12:30 a.m. or 1:00 a.m. on January 21, 1975, he heard what sounded like someone falling several times in defendant's apartment. Marjorie Slocum, who had gone to bed in defendant's apartment, also testified that she heard sounds of people arguing and fighting in the living room and kitchen areas of the apartment.

At approximately 2:30 a.m. three people arrived at defendant's apartment. At that time they found the deceased lying between the kitchen and the bathroom. He was injured, but conscious. Defendant told the visitors to get the deceased out of his apartment. Two of them helped the deceased up to his room on the second floor of the building. At about 4:00 a.m. these people called to report the deceased's condition and to get an ambulance. Two police officers responded along with the ambulance and they helped transport deceased into the ambulance. The deceased arrived at Newport Hospital at about 4:30 a.m. He was attended to by a nurse, Paula Berquist, and a medic, Arthur Moilanen. The deceased spoke with both of them, volunteering information and responding to questions.

The deceased was later removed to Claremont General Hospital where he died on January 23, 1975. His injuries included eight or nine fractured and displaced ribs which had ruptured his left lung, causing it to collapse. The deceased, who was sixty-seven years old, also had marked arteriosclerosis of the coronary arteries and an enlarged "fatty" liver resulting from heavy drinking. Due to these conditions he was unable to survive the injuries to his lung, and the immediate cause of death was diagnosed as "(f)ractures, left ribs, 3-10, with hemothorax and lung contusion."

The statements by the deceased to which defendant objects were made to the nurse and medic while he was being taken from the ambulance to the hospital emergency room. The deceased had stated to the police that he had been beaten by a drinking "buddy." On his own, and not in response to any question, the deceased stated to the nurse that he had been beaten by a man weighing about two hundred and twenty pounds. This description implicated defendant as his assailant. In order to fall within the res gestae exception to the rule excluding hearsay statements, it is necessary that the statement be made as a "spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event, and before he had time to contrive or misrepresent." Semprini v. Railroad, 87 N.H. 279, 280, 179 A. 349, 350 (1935). The purpose of these requirements is to ensure reliability of the statements which would otherwise not be present for hearsay statements. Id. The lapse of time, which defendant claims was more than three hours after the fight, is a factor to be considered, but is not controlling. The trial court must also consider the nature of the event, the deceased's state of mind, and all other circumstances surrounding the statements. State v. Martineau, 114 N.H. 552, 556, 324 A.2d 718, 721 (1974); Bennett v. Bennett, 92 N.H. 379, 386, 31 A.2d 374, 380 (1943). Because of the wide variety of factual situations, the determination of admissibility under the res gestae rule is a matter left to the discretion of the trial court. State v. Martineau, supra 114 N.H. at 557, 324 A.2d at 721.

From an examination of the record, it is apparent that the deceased lapsed in and out of consciousness during the period of time between his injury and the time he made the statements in question. The deceased was in a state of intoxication throughout this period, and due to the severity of the injuries was in considerable pain. On the basis of these facts there was evidence to support a finding by the trial court that the deceased's statements were made under the influence of his beating. See Nawn v. Railroad, 77 N.H. 299, 91 A. 181 (1914); G. McCormick, Evidence § 297, at 704 (2d ed. 1972). Furthermore, other witnesses testified without objection, as to other statements made earlier by the deceased when he was being removed from defendant's apartment and when he was being helped out of his own apartment to the ambulance. These statements were consistent with those objected to be defendant, and were further evidence of the reliability of the latter. The trial court did not abuse its discretion in permitting testimony as to the deceased's statements describing his assailant. State v. Kenna, N.H., 374 A.2d 427, decided April 15, 1977.

Defendant called as a witness Dr. Nathan Brody, an expert in the field of alcoholism. The doctor defined an alcoholic as someone who "loses control in the use of alcohol" and was permitted to testify that defendant was a "classical chronic alcoholic." Both he and the defendant testified as to the details of defendant's history of drinking. Defendant and other witnesses also described defendant's drinking on the evening of January 20, 1975, the evening of Buranen's beating. The trial court did not, however, permit Dr. Brody to state any opinion as to "whether or not an alcoholic drinks voluntarily." Dr. Brody's proposed testimony would have been that defendant's chronic alcoholism was primarily a physical addiction and that consequently his drinking was involuntary and free of culpability.

Defendant's purpose in presenting evidence of involuntary intoxication on the evening in question was twofold. First he wanted to negate the state of mind of recklessness required for the offense of manslaughter with which he was charged. RSA 630:2 I(b). This culpable mental state is defined in part as follows: " 'Recklessly.' A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct . . . A person who creates such a risk but is unaware thereof...