State v. Stearns, 86-453

• Citation: 130 N.H. 475,547 A.2d 672
• Decision Date: 06 June 1988
• Docket Number: No. 86-453,86-453
• Parties: The STATE of New Hampshire v. Warren V. STEARNS.
• Court: Supreme Court of New Hampshire

Page 672

547 A.2d 672

130 N.H. 475

The STATE of New Hampshire v. Warren V. STEARNS.

No. 86-453.

Supreme Court of New Hampshire.

June 6, 1988.

Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, on the brief and orally), for the State.

James Koromilas, Dover, by brief and orally, for defendant.

THAYER, Justice.

On August 12, 1986, a jury convicted the defendant, Warren Stearns, of theft by unauthorized taking contrary to RSA 637:3. The Superior Court (Temple, J.) sentenced him to from three to six years at the New Hampshire State Prison, with two years of the minimum sentence suspended upon good behavior. The court also fined Stearns $2000 plus penalty assessment, and ordered him to make restitution to the victim in the amount of $37,882.99. The defendant appealed, argument was heard and rehearing on the restitution issue was ordered on May 2, 1988. We affirm.

The issues raised on appeal are: whether the trial court (1) properly denied the defendant's motion to suppress bank records seized pursuant to RSA chapter 359-C; (2) properly denied the defendant's motion in limine relative to certain evidence of his credit union account transactions; (3) properly denied the defendant's motion to quash the indictment; (4) properly denied the defendant's motion for a psychological examination of the victim; (5) properly denied the defendant's motion to dismiss; (6) properly ordered restitution to the victim; (7) abused its discretion in sentencing the defendant to from three to six years; and (8) properly admitted into evidence photocopies of cancelled checks pursuant to New Hampshire Rule of Evidence 1003.

At trial, Hilda Arkerson, then an 85-year-old widow, testified that she met the defendant after he became manager of her apartment building in September, 1984. Stearns began visiting Mrs. Arkerson at her apartment, preparing breakfast for her on a half-dozen occasions, and performing some work on her apartment in exchange for money. She testified that they developed a friendship such that she trusted Stearns implicitly.

In December 1984, Mrs. Arkerson decided to withdraw some money from one bank and consolidate it with her accounts at another bank. Because she had not yet made a will, she also decided to add Stearns's name to her bank accounts to ensure that someone would get the money should she die. When he learned of her actions, Stearns offered to deposit the withdrawn money in certificates of deposits (CD's) at his credit union. Mrs. Arkerson agreed and told Stearns he could keep the interest, but made it clear that she wanted her principal returned in June 1985, when the CD's matured.

On December 18, 1984, Mrs. Arkerson gave Stearns a cashier's check for $37,882.99. He then deposited $38,601.81 into his checking account at the Service Federal Credit Union (SFCU) branch at Pease Air Force Base on December 19, 1984.

In January, 1985, Mrs. Arkerson left for Florida. Before leaving, she gave the defendant her check register and pre-signed enough blank checks for Stearns to pay her bills. Mrs. Arkerson did not recall either how many or the numbers of the checks she left for the defendant; however, she was able to identify copies of canceled checks filled out in the defendant's hand-writing. Trial testimony showed that checks numbered 470 through 475 were in the defendant's handwriting, but signed by Mrs. Arkerson. Check 477 was also in the defendant's handwriting, but was signed by the victim on February 2, after she had returned from Florida. That check was in payment for money the defendant had brought to her in Florida. Checks 476 and 478 through 489 were in the victim's handwriting and signed by her around February 14, 1985; however, trial testimony by both Mrs. Arkerson and Detective William Fenniman showed checks numbered 483 and 484 were unaccounted for in Mrs. Arkerson's check register.

Mrs. Arkerson testified that in February, 1985, she asked the defendant to return her money. The defendant told her that he could not get the money until the maturity date of the CD's, which was in June. Mrs. Arkerson also testified that on several subsequent occasions she requested that Stearns return her money and that he refused to do so. Stearns, in turn, testified that he in fact did return the money and that Mrs. Arkerson had given him a receipt for it on February 11, 1985.

Dorothy Miles, who did interior work on the apartments in Mrs. Arkerson's building and who was friendly with Mrs. Arkerson, testified that in July, 1985, the victim was very upset that the defendant had not yet returned her money. Miles testified to a telephone conversation she overheard between the victim and defendant while at Arkerson's apartment, which caused her to report the matter to the police.

On September 5, 1985, Detectives Fenniman and Miller of the Dover Police Department visited Mrs. Arkerson at her apartment. She told them that she had given Stearns approximately $37,882 to put into a high-interest-yielding account, that she asked for the money back, and that she had not yet received it. The officers then visited the defendant. He told them that he had withdrawn the money from the bank on February 10 and had given it to her on February 11. He also showed the officers a check from Mrs. Arkerson's account, numbered 484, written out in the form of a receipt. "Pay to order" was crossed out and "received from" written in its place. The document was signed by Mrs. Arkerson, but the rest of it was in his handwriting. The check was one of the two unaccounted for in the check register.

Fenniman and Miller returned to Mrs. Arkerson's apartment with a copy of the "receipt." She told them that, while her signature was on it, she had not seen this receipt before. The police officers then reviewed some of Mrs. Arkerson's records and found a check/receipt indicating that the defendant had received $37,882.99 from Mrs. Arkerson and that her check register indicated check number 484 was unaccounted for. The officers then returned to the defendant's apartment to confront him with the information and ask him to return the money. The defendant maintained that he had returned the money, although this time he told the officers that he had not taken the money from the bank, and told the officers to leave.

On September 6, 1985, Detective Fenniman wrote a letter to the SFCU requesting, pursuant to RSA 359-C:11, II, certain information about Stearns's account, including the dates and amounts of deposits and debits, and account balances for the period December 18, 1984, through February 28, 1985. In response to the letter, Everett Stone of the SFCU called Detective Fenniman and informed him of the status of Stearns's account. Fenniman applied for and was issued a search warrant to obtain records of that account based on this conversation and conversations with Mrs. Arkerson.

At trial, the State introduced these records to show that Stearns had not made a correspondingly large withdrawal before the time he claims to have returned the $37,882.99 to Mrs. Arkerson, supporting the likelihood that he did not in fact return the money to her.

The defendant testified that on February 10, 1985, Mrs. Arkerson demanded her money back and that, rather than wait until the banks were open, he retrieved the money from a strongbox hidden in a cistern in his house. He explained that the box contained approximately $39,000 in cash and had been left to his wife by her former boyfriend, who died in 1972, and had subsequently been left to the defendant when his wife died in 1984. After retrieving the money, he tried to return it to Mrs. Arkerson, but she was not home that day. The next day he gave Mrs. Arkerson three hundred and seventy $100 bills, four $20 bills, and three $1 bills. He suggested to Mrs. Arkerson that she write out the receipt on a check because he did not have his receipt book with him. He further testified that he wrote out the receipt because Mrs. Arkerson's handwriting was too large to fit on the check. The defendant denied telling the police that he had withdrawn money from the bank to repay Mrs. Arkerson. The jury found the defendant guilty, and he appealed.

I. Suppression of Bank Records

We now examine the first issue raised on appeal. The defendant claims that the trial court erred in refusing to suppress certain bank records seized pursuant to a search warrant on the grounds that (1) the supporting affidavit relied in part on evidence allegedly obtained in violation of the Right of Privacy Act, RSA chapter 359-C; (2) the warrant failed to describe with particularity the records requested; and (3) the warrant affidavit contained reckless misrepresentations.

The State responds that evidence referred to in the affidavit was lawfully obtained pursuant to RSA 359-C:11, II and that, assuming arguendo it was not, the search warrant was nonetheless supported by probable cause independent of such information.

The first issue gives rise to the question whether the letter from the Dover police to the SFCU complied with the requirements of § 11, II of RSA chapter 359-C, the Right to Privacy Act. The defendant argues that it did not and that the information obtained pursuant thereto (i.e., information obtained orally, during the phone conversation with Everett Stone, and Stearns's bank records) was, therefore, illegally obtained, and should have been suppressed at trial.

RSA chapter 359-C restricts the disclosure by a financial institution of a customer's financial records to certain situations described in RSA 359-C:11, II, which reads:

"II. When any police or sheriff's department or county attorney in this state certifies to a bank in writing that a crime report has been filed which involves the alleged fraudulent use of drafts, checks or other orders drawn upon any bank in this state, such police or sheriff's department or county attorney may request a bank to furnish, and a bank shall supply a statement setting forth the following...