State v. Poole
| Decision Date | 05 December 2003 |
| Docket Number | No. 2002-765.,2002-765. |
| Citation | 150 N.H. 299,837 A.2d 307 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Nathan T. POOLE. |
Peter W. Heed, attorney general (N. William Delker, senior assistant attorney general, on the brief and orally), for the State.
Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey, on the brief and orally), for the defendant.
The defendant, Nathan T. Poole, appeals his conviction, following a jury trial in Superior Court (Smukler , J.), for simple assault, see RSA 631:2-a (1996). He argues that the trial court's response to a jury question constructively amended the complaint to his prejudice. We reverse and remand.
The following facts were recited by the trial court in its order on the defendant's motion to vacate, or appear in the record. The defendant was charged by complaint with, among other things, simple assault on his wife. The complaint alleged that on December 22, 2001, at 7:00 p.m., the defendant committed "the crime of simple assault in that he knowingly caused unprivileged physical contact with Kristine Poole by pinching her arm."
Although the defendant did not request a bill of particulars or file a notice of intent to present an alibi defense, the State had notice of the defendant's alibi defense because the prosecutor knew he had presented it in a previous trial in the district court. Prior to trial, the State moved to strike the 7:00 p.m. reference from the complaint, as time is not an element of the offense. The motion was granted without objection.
At trial, the victim testified that the assault occurred on Saturday, December 22, 2001, between approximately 7:00 p.m. and midnight, at the home she shared with the defendant. The victim also testified that once the altercation began, the defendant never left the house. The defendant testified that on December 22, 2001, he worked from 10 a.m. to 7 p.m. playing Santa Claus at the Belknap Mall, after which he went to a gas station to get gas and then to Burger King in Laconia. He testified that he spent approximately forty-five minutes at Burger King, eating and possibly reading the paper, before heading to his cleaning job at the Tilton Outlet Mall. He stated that he worked there from approximately 9 p.m. to sometime between 11:45 and midnight, and returned home slightly before or after midnight. The defendant also produced a receipt from the station at which he stopped, reflecting a purchase of gas at 7:13 p.m. on December 22, 2001.
During deliberations, the jury asked the following question: "Are we allowed to consider the possibility that physical abuse may have happened, but not necessarily on the day (12/22/01)?" The court replied:
After additional deliberation, the jury again asked:
The court responded:
The date is not an element of the crimes charged. Therefore, on any of the complaints, you may find the defendant guilty of the crime with which he is charged, even if you find that the state was mistaken as to the specific date or time. In other words, if you find that the state has proved all of the elements of the crime with which the defendant is charged beyond a reasonable doubt, you should find the defendant guilty. If you find that the state has failed to prove any one or more of the elements of the crime with which he is charged beyond a reasonable doubt, you must find the defendant not guilty.
The jury found the defendant guilty of simple assault.
On appeal, the defendant contends that the court's response to the first question was proper, and concedes that the date was not an element of the offense, but argues that the answer to the second question constructively amended the complaint to his prejudice. "The response to a jury question is left to the sound discretion of the trial court." State v. Dingman, 144 N.H. 113, 115, 738 A.2d 357 (1999). Thus, we must determine whether the trial court unsustainably exercised its discretion. See id.; State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) ().
In addition, "[a] claim that the trial court erroneously instructed or refused to instruct the jury, or refused to answer a jury question in language requested by the defendant, must be evaluated in the context of the entire charge and all of the evidence." State v. Hammell, 139 N.H. 404, 406, 653 A.2d 1122 (1995).
The State concedes that the trial court constructively amended the complaint when it instructed that the jury was not required to find that the crime occurred on the date alleged. Moreover, the parties agree that the date of the offense in this case is a "middle-tier" allegation within the meaning of State v. French, 146 N.H. 97, 776 A.2d 1253 (2001), in that it is neither an element of the offense nor a "cumulative or superfluous detail[ ] that may be properly disregarded as surplusage," id. at 100, 776 A.2d 1253 (quotation and brackets omitted). Thus, the parties agree that the appropriate standard for determining whether the amendment was impermissible is whether it prejudiced the defendant.
The defendant argues that he relied upon the date specified in the complaint in preparing his defense. We conclude that because of the way in which the State tried the case and the way in which the defendant presented his defense, the defendant was prejudiced when the court instructed the jury that it need not find that the offense occurred on the date alleged.
As the trial court found, the prosecutor had notice of the defendant's alibi defense because he had reviewed tapes of the previous trial in the district court, at which the same defense had been presented. At trial in the superior court, ...
To continue reading
Request your trial