State v. Richards, 86-384
Decision Date | 17 August 1987 |
Docket Number | No. 86-384,86-384 |
Citation | 129 N.H. 669,531 A.2d 338 |
Parties | The STATE of New Hampshire v. Steven RICHARDS. |
Court | New Hampshire Supreme Court |
Stephen E. Merrill, Atty. Gen. (Barbara R. Keshen, Asst. Atty. Gen., on the brief, and Robert B. Muh, Asst. Atty. Gen., orally), for the State.
Kinghorn, Maynard, Craighead & Dionne P.A., Nashua (Rodkey Craighead, Jr., on the brief and orally), for defendant.
In this case, we reverse the defendant's conviction of dispensing a narcotic drug in violation of RSA 318-B:2. The trial court's failure to investigate the validity of the fifth amendment claim of privilege asserted by the defendant's sole witness violated the defendant's right to a fair trial under the New Hampshire Constitution.
On January 18, 1985, James Brackett, Stephen Doyle, and Robert Grondin entered an apartment at 281 Central Street in Manchester occupied by Donna Dearborn and the defendant, Steven Richards. At the time, Brackett was a Nashua police detective sergeant working as an undercover investigator of the unlawful trafficking of drugs in the Manchester-Nashua area. He was associated with Doyle, who was also a Nashua police detective sergeant working undercover. Grondin, who was known to the occupants of the apartment, was an informant who took the officers to the Dearborn apartment to purchase cocaine.
In due course, Richards was indicted for the offense of dispensing 0.49 grams of cocaine to Donna Dearborn:
"[W]ithout being authorized to do so[,] under New Hampshire revised Statutes Annotated, Chapter 318-B, did purposely dispense a narcotic drug as defined by said statute, to wit: cocaine, to Donna Dearborn at 281 Central Street, Manchester, New Hampshire"
The indictment was based upon the observations of the officers that, while all parties were in the kitchen of the apartment, Richards absented himself briefly and returned with two small packets which he placed on the kitchen table. The contents of the packets were later proven to be cocaine. Dearborn handed the packets to Sergeant Brackett and received $50 from him. Dearborn was indicted for the offense of selling a narcotic drug (the two packets in question) to James Brackett. She pleaded guilty to the indictment on March 10, 1986, and was sentenced on the same day. Richards pleaded not guilty to the indictment charging him with the offense, was tried by jury in the Superior Court (Wyman, J.) on July 9, 1986, was found guilty, and appealed his conviction.
The appeal is grounded upon three claims of trial court error, each of which was preserved for review and is set forth in the defendant's brief as follows:
For the reasons which follow, we reverse the conviction.
Presumably, in the expectation that Dearborn would provide exculpatory evidence on his behalf, the defendant called her as his sole witness at trial. She claimed constitutional protection from being compelled to give testimony that could incriminate her. She refused to state her name or give further evidence. The court dismissed the witness following a brief colloquy which provides the background for this aspect of the appeal, and is, therefore, extensively quoted.
"DIRECT EXAMINATION: (By Mr. Craighead.)
Q. What is your name?
A. I refuse to give my name because I want to plead the 5th. I don't want to incriminate myself.
In so ruling, the trial court ran afoul of this court's holding in State v. Bell, 112 N.H. 444, 298 A.2d 753 (1972), where Chief Justice Kenison wrote the following language which provides the fulcrum upon which assertions of the privilege contained in the fifth amendment of the United States Constitution and in article 15 of part I of the New Hampshire Constitution are balanced:
112 N.H. at 447, 298 A.2d at 756. (Citations omitted.)
This is a point which need not be labored further except to observe that Justice Kenison traced his analysis to both an early decision of this court, Janvrin v. Scammon, 29 N.H. 280 (1854), as well as a more recent decision of the United States Supreme Court, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The privilege against self-incrimination as set forth in the State and National Constitutions may not be applied by the court to create an all-inclusive immunization from giving testimony. Instead, it must be weighed against the defendant's right under part 1, article 15 of the New Hampshire Constitution " 'to produce all proofs that may be favorable to himself.' " State v. Lavallee, 119 N.H. 207, 210, 400 A.2d 480, 482 (1979). This balance is to be determined in accordance with the standards set forth in Malloy v. Hogan, supra 378 U.S. at 11-12, 84 S.Ct. at 1495-96. Id.; see also State v. Wheeler, 128 N.H. 767, 770-71, 519 A.2d 289, 291 (1986). Because we find that the trial court erred in its application of the law governing...
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