State v. Shannon

• Decision Date: 09 November 1984
• Docket Number: No. 83-276,83-276
• Citation: 125 N.H. 653,484 A.2d 1164
• Parties: The STATE of New Hampshire v. Bruce SHANNON.
• Court: New Hampshire Supreme Court

Page 1164

484 A.2d 1164

125 N.H. 653

The STATE of New Hampshire v. Bruce SHANNON.

No. 83-276.

Supreme Court of New Hampshire.

Nov. 9, 1984.

Gregory H. Smith, Atty. Gen. (Robert B. Muh, Concord, attorney, on the brief and orally), for the State.

Craig F. Evans, Durham, by brief and orally, for defendant.

DOUGLAS, Justice.

The defendant appeals his convictions for armed robbery and assault, arguing that: (1) his conviction for assault amounted to a violation of the double jeopardy clause; (2) hearsay evidence was improperly admitted against him at trial; (3) the court erred in denying a requested jury instruction; (4) his conviction for armed robbery, a class A felony, was improper, as the indictment did not specify the essential element of use of a deadly weapon; and (5) there was insufficient evidence to support his convictions. For the reasons that follow, we reverse both convictions and remand for a new trial.

The record establishes the following facts. On September 11, 1982, at approximately 6:30 p.m., a man entered the Lafayette Street market, a grocery store in Rochester owned by Roger Chasse. The man had a paper bag over his head and carried a length of wood. He beat Chasse with the wood, forced him to the ground and moved toward the cash register. At that point, Chasse summoned his two guard dogs and they chased the assailant away. The defendant was arrested shortly thereafter, following a brief police investigation of the incident.

The defendant was indicted for armed robbery, RSA 636:1, and second degree assault, RSA 631:2 (Supp.1983). The armed robbery indictment alleged that the defendant "[d]id purposely use physical force on another in the course of committing the crime of theft ... to wit: He did strike one Roger Chassie [sic] about the head with a blunt instrument while demanding United States currency ...." The assault indictment alleged that the defendant "[d]id recklessly cause bodily injury to another by means of a deadly weapon, to wit: He did strike one Roger Chassie [sic] about the head with a blunt instrument, a hammer handle."

The defendant moved, before trial, to dismiss the assault indictment, alleging that the essential elements in the assault indictment and the robbery indictment were the same and that, therefore, the indictment violated the double jeopardy clause of the fifth amendment to the United States Constitution. The motion was denied by the Superior Court (Goode, J.), subject to the defendant's exception. After a jury trial, the defendant was convicted of armed robbery, RSA 636:1, and second degree assault, RSA 631:2 (Supp.1983). He appeals both convictions.

I. Double jeopardy

The defendant first argues that the trial court erred in denying his motion to dismiss the assault indictment. On appeal, he now raises both federal and State constitutional claims. It is well settled in this State, however, that arguments not presented below may not be raised on appeal. State v. Laliberte, 124 N.H. 621, ---, 474 A.2d 1025, 1025 (1984). Accordingly, we will consider the merits of the defendant's argument solely under the double jeopardy clause of the fifth amendment to the United States Constitution because State issues were not raised below. See State v. Miskolczi, 123 N.H. 626, 628, 465 A.2d 919, 920 (1983); compare State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983) (when defendant raises State constitutional claims we will address those claims).

The superior court denied the defendant's motion to dismiss, citing Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as authority. In Blockburger, the United States Supreme Court held:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not."

Id., 284 U.S. at 304, 52 S.Ct. at 182.

The United States Supreme Court recently reconsidered the Blockburger rule. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the court construed the Blockburger test as a rule of statutory construction and directed that the rule should not apply where there is a clear indication of contrary legislative intent. Id., 459 U.S. 367-68, 103 S.Ct. at 678-79. The court then held that when a legislature specifically authorizes cumulative punishment under two different statutes, regardless of whether those two statutes proscribe the same conduct under the Blockburger test, the double jeopardy clause does not preclude the imposition, in a single trial, of cumulative punishments under those statutes. Id. at 368-69, 103 S.Ct. at 679.

The New Hampshire Legislature has not specifically authorized cumulative sentences for armed robbery and assault. Therefore, Missouri v. Hunter is inapplicable to the case before us. Since it appears that the Blockburger rule still controls when there is no clear indication that a legislature intended otherwise, we will consider the defendant's double jeopardy claim using the Blockburger test.

Proof that the defendant used physical force, while in the course of committing theft, is essential to a conviction for armed robbery, RSA 636:1, but it is not necessary that the defendant be in the course of committing theft for a conviction for assault, RSA 631:2 (Supp.1983). Additionally, the State must establish that the defendant caused bodily injury to obtain an assault conviction under RSA 631:2 (Supp.1983), while bodily injury is not essential to a conviction for armed robbery, RSA 636:1. Because "each provision requires proof of a fact which the other does not," Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182, we conclude that the convictions for armed robbery and assault do not violate the double jeopardy clause of the Federal Constitution. Accordingly, the superior court's denial of the defendant's motion to dismiss the assault indictment was correct.

II. Hearsay

We now turn to the defendant's claim that hearsay evidence was improperly admitted against him at trial. The record indicates that after the guard dogs chased the assailant from the store, Mr. Chasse called the police. Two Rochester police officers responded to the call and arrived at the market within minutes. At trial, the police officers were questioned as to their activities once they arrived at the market.

Police Lieutenant Robert Bridges testified that he went into the store and spoke to Mr. Chasse. He then relayed information he obtained from Mr. Chasse, concerning the assailant's description, to a police officer who arrived at the scene as a back-up unit. He testified that he returned to the police station after an ambulance arrived.

Police Officer Clarke, who accompanied Lieutenant Bridges in responding to the call, testified that when he arrived at the market, he spoke with "some people" outside. When he began to testify as to statements made during the conversations, defense counsel objected on hearsay grounds. Counsel for the State claimed that the testimony was not hearsay because it was not being offered for the truth of the matter asserted, but was offered to give the basis for the officer's subsequent actions. The court instructed counsel for the State to rephrase the question by asking the officer what he did as a result of certain conversations.

Counsel rephrased the question, but the police officer responded by recounting a conversation he had with two young boys who informed him that they saw a man run from the back of the market. He testified that they described the man as wearing a blue tee shirt, blue jeans and carrying an axe handle. Defense counsel objected, referring to the court's prior instruction and arguing that the officer's answer was unresponsive to the question put to him. His objection was overruled. When the officer again made mention of the boys' description of the assailant, defense counsel objected on hearsay grounds and a bench conference took place. The court overruled the objection, subject to the defendant's exception.

On appeal, the defendant claims that the testimony was hearsay, that it fit within no exception to the hearsay rule and that its introduction into evidence constituted reversible error. The State argues that the statements were not hearsay because they were not offered for the truth of the matter asserted.

"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement and is generally inadmissible unless it falls within one of the many exceptions which provide for admissibility." State v. Marcotte, 124 N.H. 61, 64, 466 A.2d 949, 951 (1983) (citations omitted). Although we do not have a transcript of the bench conference before us, it appears from oral argument that the trial court concluded that the statements were hearsay but admitted them under the "excited utterance" exception to the hearsay rule. See State v. Hudson, 121 N.H. 6, 10-11, 425 A.2d 255, 257 (1981). Whether a statement is hearsay or an exception applies are questions for the trial court and we will uphold the court's determination unless it is clearly erroneous. See Town of Weare v. Paquette, 121 N.H. 653, 659, 434 A.2d 591, 596 (1981).

At trial, the State had to convince the jury that the defendant, who was wearing a blue tee shirt and blue jeans when arrested, was Mr. Chasse's assailant. To do so, it introduced evidence of the events leading to the defendant's arrest. Thus, it elicited Officer Clarke's testimony of the description given to him by the two unidentified boys. Although the boys' statements were elicited during Officer Clarke's narrative of his actions, it is obvious that the description was offered for its content; that is, that the man who ran from the store wore a blue tee shirt and blue jeans. In fact, at oral argument, when asked whether he thought that the jurors used the...