State v. Sullivan

• Decision Date: 17 April 1981
• Docket Number: No. 80-255,80-255
• Citation: 428 A.2d 1247,121 N.H. 301
• Parties: The STATE of New Hampshire v. Patrick SULLIVAN.
• Court: New Hampshire Supreme Court

Page 1247

428 A.2d 1247

121 N.H. 301

The STATE of New Hampshire v.Patrick SULLIVAN.

No. 80-255.

Supreme Court of New Hampshire.

April 17, 1981.

Gregory H. Smith, Acting Atty. Gen. (Brian T. Tucker, Concord, Atty., & a. on the brief and Mr. Tucker orally), for the State.

Gary H. Reiner, Kittery, by brief and orally, for defendant.

PER CURIAM.

The issues in this simple assault case are whether the Trial Court(Goode, J.) erred in not asking the prospective jurors certain questions on voir dire, in not granting the defendant's request for a change of venue, in not ruling in advance of trial that the State could not question the defendant about his prior assault convictions if he testified, in not instructing the jury on the issue of self-defense, and in its instructions on reasonable doubt.We find no error and uphold the defendant's conviction.

The defendant was charged and convicted in the Dover District Court with simple assault (RSA 631:2-a (Supp.1979)).He appealed to the superior court where he was tried before a jury and found guilty.The defendant then brought this appeal.

The alleged assault occurred on Dover Point Road on November 20, 1979.At the superior court trial, the victim testified that, while he was proceeding on Route 4, there was a car following him so closely that he became concerned.He tried to create some distance between the two cars by slowing down and then accelerating.The other car, driven by the defendant, continued to follow the victim closely when he exited onto Dover Point Road.All the evidence shows that the defendant finally pulled in front of the victim's automobile and stopped, thereby temporarily preventing the victim from proceeding.The defendant alighted from his vehicle and walked toward the victim, who had also stepped out of his automobile.The evidence is conflicting as to whether the victim proceeded toward the defendant and as to who struck the first blow.The evidence is clear, however, that the defendant struck the victim, knocking him to the ground.A passenger in the defendant's vehicle testified that the victim has been driving erratically in front of them before the defendant finally pulled in front of him.

The defendant's first argument relates to his concern that, because of his family's history of trouble with the Dover police and his reputation for brawling, he might not receive a fair trial in Strafford County.Prior to the selection of the jury, the defendant requested the court to question the prospective jurors regarding their knowledge of the defendant, his family, and their involvements with the Dover police.The court denied that request.It did, however, ask the members of the jury panel whether any of them knew the defendant, had any prejudice against him, or had any prejudice whatsoever which would prevent them from reaching a fair verdict.Two jurors were excused for cause when they indicated that they knew the defendant's family.No other juror responded affirmatively to the court's questions.At that time, the defendant renewed his request that the court make more specific inquiries into the possible bias of the prospective jurors.The court also denied that request, and the jury was selected.The defendant then moved for a change of venue, which the court denied.

As the defendant requested, the court asked the jurors if they knew the defendant.Although the court did not specifically use the other requested questions, it did question the jurors about any possible prejudice they might have.The fact that two of the jurors responded affirmatively to the court's inquiry shows that the judge's questions were sufficient to uncover any bias or prejudice among the jurors, and the lack of response from the other jurors is evidence of a lack of prejudice on their part.Furthermore, asking specific questions regarding the involvement of the defendant and his family with the police could have prejudiced the entire array.The extent of the voir dire examination is a matter within the broad discretion of the trial judge, State v. Gullick, 120 N.H. 99, 103, 411 A.2d 1113, 1116(1980);State v. Dunbar, 117 N.H. 904, 905, 379 A.2d 831, 832(1977);State v. Colby, 116 N.H. 790, 793, 368 A.2d 587, 590(1976), and we find no abuse of that discretion in this case.

We also find no error in the trial court's refusal to grant a change of venue.In order to obtain a change of venue, the defendant must prove that he cannot obtain a "fair and impartial trial" in the county in question.N.H.Const. pt. 1, art. 17(Supp.1979);State v. Laaman, 114 N.H. 794, 799, 331 A.2d 354, 358(1974), cert. denied, 423 U.S. 854, 96 S.Ct. 101, 46 L.Ed.2d 79(1975);State v. Albee, 61...