State v. Settle

• Decision Date: 31 January 1990
• Docket Number: No. 87-435,87-435
• Citation: 570 A.2d 895,132 N.H. 626
• Parties: The STATE of New Hampshire v. John A. SETTLE, Jr.
• Court: New Hampshire Supreme Court

Page 895

570 A.2d 895

132 N.H. 626

The STATE of New Hampshire v. John A. SETTLE, Jr.

No. 87-435.

Supreme Court of New Hampshire.

Jan. 31, 1990.

Rehearing Denied March 27, 1990.

John P. Arnold, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

This is a welfare fraud case based on alleged violations of RSA 167:17-b, I(a) (Supp.1989), which provides that

"[n]o person shall ... [b]y means of an intentionally false statement or misrepresentation or by impersonation or other fraudulent act or device obtain or attempt to obtain, or aid or abet any person in obtaining any assistance or benefit or payment under RSA 161 or RSA 167 to which he is not entitled...."

The defendant was convicted by a jury in Superior Court (Cann, J.) upon four indictments under the statute and appeals his conviction to this court upon three grounds: (1) trial court error in permitting amendment to the indictments and in the alternative, failure in not dismissing them or granting a mistrial; (2) trial court error in ruling that a witness had not waived her privilege against self-incrimination; and (3) trial court error in failing to grant a mistrial where a welfare investigator who was a State witness volunteered information during cross-examination that was inaccurate and otherwise inadmissible. We affirm.

The thrust of the State's case is that the defendant, in violation of RSA 167:17-b, I(a), obtained financial assistance in the months of March, May, July and August, 1984. The funds received were for assistance for the previous month; e.g., the check received in March was for February, and so on. In order to have received the check he obtained, the defendant filed with the Welfare Department reporting statements, so-called, on or before the tenth day of the month following the reporting period. On the reporting statements in question, defendant stated that he had no income. It would seem to have been simple enough for the State to have charged that the defendant on a particular reporting statement indicated that he had received no income for the reporting period of February 1 through February 28, for instance, when in fact he had received income and by means of such false statements obtained public assistance in violation of RSA 167:17-b, I(a). For reasons that are not apparent from the thirty-seven volumes of the record of this six-week trial, however, the State in the first instance obtained an indictment as follows:

"that JOHN ALDEN SETTLE of Concord, New Hampshire in the County of Merrimack February 1st. through February 28th. in the year of our Lord one thousand nine hundred and eighty-four ... did ... make intentional false statements to the N.H. Division of Human Services which would affect his eligibility for assistance, in that ... [he] stated he had no income when in fact he received income as a self-employed legal researcher...."

It should be noted that the precise language of the first indictment refers to "intentional false statements" whereas in the remaining three indictments for the later months the reference is to "intentional false statement." It is not readily understandable why the grand jury shifted from the plural to the singular. The change, however, is not important to this appeal.

The defendant was thus indicted for four separate class B felonies. The awkward language of the indictment was called to the attention of the court on the tenth day of pre-trial hearings, when counsel for the defendant in effect moved to dismiss and argued to the court:

"So what we are really doing is going to trial today on indictments that they just can't prove. And I think the Court ought to know that before we start. I did not, in my discussions or in my questioning of Cathy Battistelli yesterday--I would say right to her: 'You tell me--referring to the February indictment, you tell me what the alleged false statement is, point it out to me.' And she would point out the monthly report filed in March.

So I guess the basic argument that we have is, what is the real gravamen of this particular offense? It's not receiving the income--it's not receiving the income in April, for instance, that is the gravamen; it's making the false report in May, saying I didn't have income in April. It's the false statement that in and of itself is the real meat of this indictment. And they are alleging in their indictments that there is a false statement in a given month, for instance, April. But instead of relying on a false statement made in April, they want to rely on a false statement made in May, the monthly report.

And if that's the case, you know, it's the State that has selected this monthly reporting system; it's the State that has known all along--I mean, they've had those monthly reports right in their file all along. They could have easily have said, 'Mr. Settle made an intentional false statement on May 4th of 1984 that was false in regard to his income from April of '84 that caused him to get benefits in June of '84.' They could have said that, but they didn't.

So what I want the Court to do is to get an indication from the State as to exactly what statement they are going to rely on to prove each of these months. And if that statement is outside of the indictment period, of the specific indictment period; if, in fact, on the April indictment which says from April 1 to April 30 he made a false statement--if, in fact, they're going to rely on a false statement that was made supposedly in May, then I just can't see going forward on these cases at this point."

The motion, which was styled by the trial court as defendant's motion in limine, was denied by its written ruling; however, in an unsolicited maneuver, after jury selection the State filed bills of particulars with respect to each of the four indictments. The prosecutor filed them, as he explained to the court, to "avoid what Mr. Settle indicates was an uncertainty as to the specificity of the indictments and the dates alleged." The State then made its opening statement to the jury.

The defendant made a pro se opening statement during which he told the jury:

"The evidence will not show that I made an intentional false statement to anyone on February 1st through February 28th of 1984. It will not show that I made an intentional false statement on April 1st through April 30th of 1984. It will not show that I made an intentional false statement from June 1st through June 30th 1984, nor that I made a false statement on July 1st through July 31st. I simply didn't make false statements at those times ... I have these indictments, I've prepared a defense for these indictments and that's what you're going to hear me do."

After cross-examination of the State's first witness was nearly completed, at the commencement of the following day's proceedings, the State filed a motion to amend all four indictments by adding to each the language "for the reporting period." After a hearing on the motion, the court once again in a written ruling, having found no prejudice to the defendant, either in his ability to understand the charges or in the preparation of his defense, granted the State's motion over the defendant's objection. The defendant's first claim here is that upon such a record, he was entitled to have the indictments dismissed, or at least to have a mistrial declared. The reasons for our disagreement with his contentions follow.

The defendant's attack upon the sufficiency of the indictment must be viewed in light of constitutional safeguards set forth in the State and Federal Constitutions: part I, article 15, of the New Hampshire Constitution and amendments V and VI to the Constitution of the United States. The notions embodied in these constitutional provisions are those which protect the accused from surprise at trial, give reliance upon what must be defended against and provide notice of what the grand jury asserts to be the conduct which is violative of the law. In addition to matters of notice, there is also the notion of protection against being prosecuted another day for the same conduct.

The defendant has relied at trial, in his pleadings, and in this court upon both State and federal constitutional protection in his "sufficiency of indictment" and "indictment amendment" claims. In view of the fact that in such matters the federal constitutional provisions allow no greater protection than does our own constitution, we decide these issues on State constitutional law. State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983); State v. Scarborough, 124 N.H. 363, 368, 470 A.2d 909, 913 (1983).

Prosecutors may seek to take some refuge in RSA 601:8, which provides that

"[n]o indictment, complaint, return, process, judgment or other proceeding in any criminal case in the courts or course of justice shall be abated, quashed or reversed for any error or mistake where the person or case may be rightly understood by the court, nor through any defect or want of form or addition, and courts and justices may, on motion, order amendments in any such case."

This statute, however, like all statutes, stands in the shadow of the constitution, and was interpreted shortly after its passage (July 3, 1863) by this court in a case involving stolen oxen whose value had been omitted from the indictment and was sought to be inserted by way of an amendment. The court's language is helpful "The inquiry, then, turns upon the point whether the amendment here is matter of form or substance, and, from what has already been seen, it is quite clear that it is matter of substance, and therefore cannot be amended. The character of the offence, whether grand or simple larceny, depends upon the value of the things stolen, and it is obviously for the grand jury to determine that point. Should the court direct an amendment so as to make it a charge for...