State v. Thresher, 80-340

• Decision Date: 12 February 1982
• Docket Number: No. 80-340,80-340
• Parties: The STATE of New Hampshire v. Edwin N. THRESHER.
• Court: New Hampshire Supreme Court

Page 578

442 A.2d 578

122 N.H. 63

The STATE of New Hampshire v. Edwin N. THRESHER.

No. 80-340.

Supreme Court of New Hampshire.

Feb. 12, 1982.

Gregory H. Smith, Atty. Gen. (Richard C. Nelson, Asst. Atty. Gen., and Michael A. Pignatelli, Concord, on brief and orally), for the State.

Holland & Aivalikles, P.A., Nashua (Francis G. Holland, Nashua, on brief and orally), for defendant.

KING, Chief Justice.

The defendant appealed to this court from convictions of second-degree murder and robbery in the Hillsborough County Superior Court (Souter, J.). The defendant argues that errors in the indictment and errors throughout the trial, including errors in the admission of evidence and instructions to the jury, and errors in sentencing, warrant reversal. We disagree and affirm the trial court's decision.

Late in the evening of October 25, 1979, the defendant, Edwin N. Thresher, another man, John Gillen, and the victim, Thomas Morris, were at a restaurant in Manchester, New Hampshire. The police were summoned to remove the victim because he was intoxicated. At the restaurant, the defendant told the police that he would take the victim home, and as a result, the police left the victim in the defendant's care.

The record contains evidence that two men and the victim left Manchester and some time early on October 26, 1979, ended up in a remote area of Litchfield, New Hampshire, known as the "Three Fields." The men dragged the victim out of the car and demanded his money. Both men kicked the victim. Gillen was wearing sneakers, but Thresher was wearing heavy work boots. After Thresher had beaten the victim and hit him with a bottle, the two men moved his body to the woods where hunters discovered it on November 2, 1979.

In December 1979, the defendant, Edwin Thresher, and the co-defendant, John Gillen, were indicted for robbery and second-degree murder. In May 1980, the co-defendant pleaded guilty and agreed to testify for the State. Later that month, the defendant went to trial on the two indictments.

Prior to trial, the trial court granted the State's motion to amend the indictment in order to change the victim's date of death from October 27, 1979, to October 26, 1979. The defendant argues that the court improperly granted the motion. We disagree.

This court held in State v. Spade, 118 N.H. 186, 385 A.2d 115 (1978) that an amendment of a date in the indictment is permissible unless the date itself is an element of the offense charged. Id. at 189, 385 A.2d at 117. An exact date is not an element of either robbery, RSA 636:1, or murder, RSA 630:1-b. Although the date of death was an issue at trial, the defendant was not prejudiced by the State's amendment, which occurred prior to the start of the trial. See State v. Darcy, 121 N.H. 220, 223, 427 A.2d 516, 518 (1981); State v. Spade, 118 N.H. at 189-90, 385 A.2d at 117.

The defendant's next argument involves the wording of the indictment which stated that he

"... did commit the crime of second degree murder in that he did, in concert with and aided by John M. Gillen, knowingly cause the death of Thomas M. Morris, age 82, by beating and slashing the said Thomas M. Morris about the head and chest with hands, feet, and a bottle, thereby causing his death...."

The robbery indictment was worded in a similar fashion and employed the language of "in concert with."

The defendant contends that the trial court erred in interpreting the language of the indictments as charging him as a principal and/or accomplice rather than only as a principal. He claims that because the charge in this case is murder that only one person inflicted the fatal blow. He contends, therefore, that the "in concert with" language should have been interpreted as charging him as a principal. In State v. Morin, 111 N.H. 113, 276 A.2d 476 (1971), this court interpreted the "in concert with" language as charging the defendants as accomplices. Id. at 116, 276 A.2d at 478. Although the crime in Morin was aggravated assault rather than murder, we cannot agree with the defendant that this distinction removes the instant case from the Morin analysis. The defendant could have been found guilty of second-degree murder whether he was the principal or accomplice.

RSA 626:8 states that "(a) person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." RSA 626:8 I. "Legally accountable" is defined as including being "an accomplice of such other person in the commission of the offense." RSA 626:8 II(c). This court has interpreted RSA 626:8 as eradicating the distinctions between principal and accomplice, State v. Jansen, 120 N.H. 616, 618-19, 419 A.2d 1108, 1110 (1980); State v. Morin, 111 N.H. at 116, 276 A.2d at 478, and therefore, we find no error in the trial court's interpretation of the indictments as charging the defendant as either a principal or accomplice.

The indictment for second-degree murder stated that death was caused by beating "with hands, feet and a bottle." Before trial, the defendant made a motion to dismiss, and alternatively, a motion for a bill of particulars which would state the exact cause of the victim's death. The trial court denied the defendant's motions, and the defendant argues that the trial court's denial was incorrect. We disagree.

The indictment need not state the exact cause of death, RSA 601:6 (Supp.1979), provided that all the elements of the crime charged are alleged, State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459 (1974), with sufficient specificity that the defendant can prepare his defense. State v. Fields, 119 N.H. 249, 253, 400 A.2d 1175, 1177 (1979) (citations omitted); State v. Manchester News Co., 118 N.H. 255, 257, 387 A.2d 324, 326-27, appeal dismissed, 439 U.S. 949, 99 S.Ct. 343, 58 L.Ed.2d 340 (1978); see RSA 601:4. Here, the indictment stated the necessary information, see State v. Merski, 121 N.H. ---, ---, 437 A.2d 710, (decided October 14, 1981); State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981), and the trial court properly denied the defendant's motions. See State v. Underwood, 110 N.H. 413, 415, 270 A.2d 599, 601 (1970).

In asserting that the jury instructions based on the indictments were improper, the defendant again raises arguments about the wording of the indictments. The court instructed the jury that if it found that the defendant had committed all of the acts necessary for murder or if he had committed the acts in conjunction with Gillen, provided he was accountable for Gillen's acts, then it could find him guilty of murder. Because this charge is consistent with RSA 626:8, defining principal and accomplice liability, and because we have already determined that the trial court's interpretation of the indictment as charging the defendant as a principal or accomplice was valid, these jury instructions were proper. See State v. Langdon, 121 N.H. at ---, 438 A.2d at 299 (decided December 8, 1981).

Likewise, the jury instructions pertaining to the date of death and the acts that caused death were proper. As we have stated, the State need not prove an exact time of death, see W. LaFave and A. Scott, Handbook on Criminal Law, § 68 at 539, nor the medically precise cause of death, see id. § 35 at 249-50, because neither factor is an element of murder. The trial court, therefore, properly instructed the jury that the defendant could be found guilty of second-degree murder even if the State had not proved the exact date or cause of the victim's death. See State v. Langdon, 121 N.H. at ---, 438 A.2d at 299 (decided December 8, 1981); State v. Carroll, 120 N.H. 458, 460, 417 A.2d 8, 10 (1980).

The defendant moved to suppress the testimony of the accomplice, John Gillen, who was to testify for the State. The trial court denied the motion, and the defendant argues that the denial was improper because the State offered no evidence to corroborate his testimony. We disagree.

In State v. Fraser, 120 N.H. 117, 411 A.2d 1125 (1980), this court stated that "(t)he testimony of an admitted accomplice, standing alone, is sufficient to sustain a verdict." Id. at 122, 411 A.2d at 1128; see State v. Rumney, 109 N.H. 544, 545, 258 A.2d 349, 350 (1969), cert. denied, 397 U.S. 1051, 90 S.Ct. 1389, 25 L.Ed.2d 666 (1970).

Even if Gillen, through his testimony, denied being an accomplice, his testimony as an eyewitness at the scene of the crime was admissible without corroborative testimony. The admissibility of evidence is generally within the discretion of the trial court. See State v. Baker, 120 N.H. 773, 775, 424 A.2d 171, 172-73 (1980). Once evidence is admitted, the jury can determine whether to believe all, part or none of it. See State v. Scarlett, 121 N.H. 37, 40, 426 A.2d 25, 27 (1981); State v. Fraser, 120 N.H. at 122, 411 A.2d at 1128. See Appeal of McKenney, 120 N.H. 77, 81, 412 A.2d 116, 118 (1980). Because the weight of Gillen's testimony depended on his credibility, and credibility is for the jury to determine, the trial court properly allowed the jury to hear the witness. See State v. Hardy, 120 N.H. 552, 554, 419 A.2d 398, 400 (1980); State v. Dupuy, 118 N.H. 848, 853, 395 A.2d 851, 854 (1978).

The defendant also sought to suppress the admission of his boots into evidence and any testimony regarding the blood found on the boots. Again the trial court denied the defendant's motion to suppress, and we hold that the denial was proper.

The defendant claims that testimony of the State's witness who identified the boots as the ones the defendant was wearing the night of the murder was not credible. Additionally, the defendant argues that the State proved that the blood was human blood, but did not prove what type human blood it was or how long the blood had been on the boots. These arguments attack the weight and credibility of the evidence rather than its admissibility. Evidence is admissible if it may be of aid to the jury. State v....