State v. Trainor
Decision Date | 29 March 1988 |
Docket Number | No. 87-185,87-185 |
Citation | 130 N.H. 371,540 A.2d 1236 |
Parties | The STATE of New Hampshire v. John H. TRAINOR, Jr. |
Court | New Hampshire Supreme Court |
Stephen E. Merrill, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on the brief), for State.
James E. Duggan, Appellate Defender, Concord, for defendant.
The defendant, John Trainor, appeals his conviction after a jury trial in Superior Court (Bean, J.) of attempted theft by deception. RSA 629:1, 637:4. He was sentenced to three to seven years in the State prison. We affirm.
The defendant was the bagman in a so-called "flim-flam" operation. On the morning of September 10, 1986, Brian or Bud Coleman, the owner of a video store in Keene, received a telephone call from a man identifying himself as Jim Collins, a United Parcel Service (UPS) employee. Collins told Coleman that his brother Henry Collins worked for a "large electronic firm," and had received an overshipment of merchandise, including video cassette recorders and camcorders. Collins asked Coleman if he would like to buy them, to which Coleman responded affirmatively. Collins made a repeat call to Coleman later that day and said that Henry Collins would be calling that afternoon to make the final arrangements.
In the meantime, Coleman called UPS and learned that Jim Collins was unknown to them. When Henry Collins called that afternoon he said he worked for Jordan Marsh Company, and that his brother Jim had told him that Coleman was interested in buying some merchandise. The two agreed upon a price of $4800 for the video equipment, and to meet in the Pheasant Lane Mall parking lot in Nashua at 11:00 a.m. the following day. Coleman then contacted Lieutenant Fish of the Keene Police Department, who substituted for Coleman at the mall the next day.
Lieutenant Fish arrived at the mall parking lot at the appointed hour, where a man later identified as the defendant approached him and asked, "Are you Bud?" Fish stated that he was, and the defendant directed him to a public telephone to speak with Henry Collins. Collins asked if Fish had the money, and told Fish that the equipment would be on "truck number nineteen." Collins directed Fish to pay the defendant, who would give him a receipt for the goods. Fish explained that the money was in his truck.
Fish and the defendant returned to Fish's vehicle, where Fish and other officers, from the Nashua Police Department, who had been waiting nearby, arrested the defendant. They waited for "truck number nineteen" to arrive, but to no avail. The defendant told the police that Henry Collins would be waiting for him in the video area of the Jordan Marsh store, but no one was there, and the store manager told the police that no one named Henry Collins worked at the store. The defendant later denied knowledge of any wrongdoing, claiming that he was an innocent middleman who had been duped by his friends.
The defendant was indicted for attempted theft by deception, and, prior to trial, the State by written motion sought to introduce evidence of a pending New York indictment to counter the defendant's claim that he had no knowledge of any illicit activity. The State sought to introduce the New York indictment and the testimony of an investigating officer. The motion was granted over defendant's objection, and the evidence was admitted at trial.
The New York indictment was based on the following facts. Approximately two weeks prior to the Nashua arrest, the defendant was arrested in Syracuse, New York, for his involvement in a similar incident. In that case, a man telephoned the proprietor of a video store in Syracuse and identified himself as Jim Collins from UPS. He said that his brother Henry had some video equipment for sale, and asked if the owner would like to buy some. The would-be victim contacted the police, who obtained a one-way intercept of the store's telephone line. A subsequent call from Jim Collins consisted of a discussion of the proposed sale. Later, Henry Collins called the store and arranged to sell the equipment for $4400 cash. The next day, a meeting was arranged to conduct the sale, and a New York State trooper was sent to the rendezvous. While in the store parking lot, the trooper was approached by a man named John, later identified as the defendant, and was asked to go to a nearby phone and await a call from Henry. When the call came, the trooper was told to deliver the cash to the defendant, who would provide a receipt, and that a delivery truck would be by in about ten minutes with the goods. A sales receipt from a local store was produced by the defendant, and the trooper gave the defendant $300, promising to pay the balance when the goods arrived. The police arrested the defendant, and the goods never arrived.
On this appeal, the defendant challenges the admissibility of the evidence of the New York indictment. He asserts that evidence of prior bad acts, see N.H.R.Ev. 404(b), is inadmissible unless it is clearly established that the defendant committed the prior acts, and that the probative value of the evidence is not substantially outweighed by its prejudicial effect. The defendant argues that it was not clear that he committed the prior offense, since he had only been indicted, not convicted. He argues, moreover, that the State relied on hearsay to prove the act, which does not meet the "clear" standard under State v. Smith, 125 N.H. 522, 484 A.2d 1091 (1984). The defendant also claims that the evidence was highly prejudicial because the jury could infer guilt from a pattern of conduct instead of from the facts of the offense charged.
Evidence of prior offenses or bad acts is admissible under certain circumstances. Rule 404(b) of the New Hampshire Rules of Evidence states:
Prior to the effective date of the rule (July 1, 1985), this court had established a three-pronged test to determine the...
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...the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence. State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988). To reverse a conviction, the defendant must demonstrate that the trial court's discretionary ruling was clearly unten......
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