State v. Preston, 83-023

• Decision Date: 26 October 1983
• Docket Number: No. 83-023,83-023
• Citation: 124 N.H. 118,467 A.2d 243
• Parties: The STATE of New Hampshire v. Terry PRESTON.
• Court: New Hampshire Supreme Court

Page 243

467 A.2d 243

124 N.H. 118

The STATE of New Hampshire v. Terry PRESTON.

No. 83-023.

Supreme Court of New Hampshire.

Oct. 26, 1983.

Gregory H. Smith, Atty. Gen., (Brian T. Tucker, Asst. Atty. Gen., on brief), for the State.

Joanne Green, Asst. Appellate Defender, Concord, by brief, for defendant.

BATCHELDER, Justice.

This appeal presents the question whether the defendant, an inmate at the New Hampshire State Prison, was arrested for purposes of the Hastings rule requiring timely indictment, at the time he was placed in administrative segregation after assaulting a prison guard. We hold that an arrest did not occur and affirm the superior court's denial of the defendant's motion to dismiss.

On February 14, 1982, the defendant, Terry Preston, an inmate at the New Hampshire State Prison, struck a prison guard with a club. Other guards subdued the defendant, handcuffed him and removed him to administrative segregation in the maximum security annex of the prison. Prior to the incident, the defendant had been in protective custody. On June 24, 1982, the defendant was indicted for assault. Alleging that he had been arrested on February 14, 1982, the defendant moved to dismiss based on the failure of the State to bring an indictment within sixty days of arrest, as required by State v. Hastings, 120 N.H. 454, 455, 417 A.2d 7, 8 (1980). The Superior Court (Souter, J.) denied the motion, with exception noted. A jury trial resulted in a verdict of guilty and this appeal followed.

In State v. Hastings, supra, this Court held that an indictment should be brought within sixty days from the date of an arrest. If it is not, the State has the burden to show that any delay beyond sixty days was not unreasonable. This requirement is not based on any constitutional mandate but was established pursuant to the court's rule-making power, N.H. CONST. pt. II, art. 73-A. Id. The question before us is whether the defendant was arrested on February 14, 1982, in determining his status in light of the Hastings rule.

In RSA 594:1, I, arrest is defined as the taking of a person into custody in order that he may be forthcoming to answer for the commission of a crime. As further elaborated by this court, there must exist an intent on the part of the arresting officer to take the accused into custody and a corresponding understanding by the accused that he is in custody. State v. Brodhead, 116 N.H. 39, 40, 351 A.2d 57, 58 (1976). We cannot say that the circumstances in this case fulfill either of these requirements. The guards moved the defendant to administrative segregation not for the purpose of having him available or taking him into custody (neither of which was necessary) but as a matter of prison policy and discipline. See State v. Collins, 115 N.H. 499, 502, 345 A.2d 162, 165 (1975); Garcia v. State, 625 S.W.2d 431, 432 (Tex.App.1981).

In Hastings we held that the State should expedite indictments because "[c]itizens cannot be arrested without probable cause; thus, if they are arrested there should usually be no reason to delay presentment of an indictment." State v. Hastings, supra 120 N.H. at 455, 417 A.2d at 8. However, this reasoning cannot be applied to the situation at hand. Prison officials need not find probable cause in order to transfer an inmate to a new custodial setting. See Snow v. State, 399 So.2d 466, 468 (Fla.App.1981) (transferred for protective purposes).

Indeed, isolation of an inmate, who breaks prison regulations, may occur for disciplinary reasons or to facilitate investigation. See United States v. Duke, 527 F.2d 386, 390 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976). The investigation should determine if the prison officials should handle the incident internally or turn the case over to the county attorney's office. To hold that the transfer of an inmate to a more restrictive setting is the equivalent of arrest would severely hamper the investigatory abilities of the State.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court articulated the concerns underlying the right to a speedy...