State v. Weitzman

• Decision Date: 06 March 1981
• Docket Number: No. 80-060,80-060
• Citation: 121 N.H. 83,427 A.2d 3
• Parties: The STATE of New Hampshire v. Donald C. WEITZMAN.
• Court: New Hampshire Supreme Court

Page 3

427 A.2d 3

121 N.H. 83

The STATE of New Hampshire v. Donald C. WEITZMAN.

No. 80-060.

Supreme Court of New Hampshire.

March 6, 1981.

Gregory H. Smith, Atty. Gen. (Martha V. Gordon, Concord, Atty., on the brief and orally), for State.

Donald C. Weitzman, on the brief pro se (Benjamin Hiller, Cambridge, Mass., orally), for defendant.

PER CURIAM.

As the result of his participation in a demonstration at the construction site of the Seabrook nuclear power plant, the defendant was charged with criminal trespass under RSA 635:2. He was found guilty in the Hampton District Court and appealed to the Rockingham County Superior Court, requesting a jury trial. Before trial, the defendant filed a motion to dismiss for lack of speedy trial, a motion to disqualify the jury pool on the grounds that blacks and persons under thirty years of age had been systematically excluded, a motion to conduct voir dire and/or propound specific questions to the jury, and a motion to use the competing harms defense provided for by RSA 627:3. The Superior Court (Temple, J.) denied the motions and proceeded with the trial. The jury found the defendant guilty. The defendant appeals his conviction, claiming that the trial judge erred in denying his pretrial motions. We affirm the decisions of the trial court.

We address first the defendant's argument that he was denied his right to a speedy trial by a delay of thirteen months prior to his arraignment in superior court. Both the United States and the New Hampshire Constitutions guarantee a criminal defendant a right to a speedy trial. U.S.Const. amend. VI; N.H.Const. pt. I, art. 14; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. White, 116 N.H. 687, 366 A.2d 872 (1976). There is no doubt that the thirteen-month delay in this misdemeanor case triggers an examination into the question whether the defendant was denied his right to a speedy trial. See State v. Cole, 118 N.H. 829, 831, 395 A.2d 189, 190 (1978). Length of delay, however, is not the determinative factor. Barker v. Wingo, supra 407 U.S. at 530-33, 92 S.Ct. at 2191; State v. Novosel, 120 N.H. 176, 182, 412 A.2d 739, 744 (1980). In order to determine whether the defendant has been denied his right to a speedy trial, we must balance four factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right, and (4) any prejudice to the defendant. Barker v. Wingo supra; State v. Novosel supra; State v. Blake, 113 N.H. 115, 122, 305 A.2d 300, 305 (1973). Upon examining these factors, we find the delay in this case was justified.

Absent a rule or statute setting time limits, a defendant has a responsibility to assert his right to a speedy trial. See Barker v. Wingo, supra 407 U.S. at 531-32, 92 S.Ct. at 2192. In the companion cases that the dissent notes were dismissed for lack of a speedy trial, each of the defendants had requested a speedy trial. Although the defendant is correct in pointing out that the failure to demand a speedy trial may not be held against a defendant who is without counsel and who is unaware of his speedy trial right, United States v. Butler, 426 F.2d 1275, 1278 (1st Cir. 1970), we think that this case does not require such deferential treatment. Weitzman is not a defendant to whom the assistance of counsel was denied but is a man who, as a matter of conscience, knowingly and intelligently made the decision to proceed without an attorney. The right to represent oneself is guaranteed to a criminal defendant even though the choice to conduct his own defense may be to his detriment. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). Once a defendant has made that choice, he cannot later "complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.' " Id. at 834-35 n.46, 95 S.Ct. at 2541 n.46. We conclude that the defendant's failure to demand a speedy trial may be weighed against him.

That conclusion is also supported by the fact that this failure accounts in part for the delay. The State maintains that the reason for the delay was a backlog in the court calendar due to pending cases resulting from prior mass demonstrations. Although responsibility for that situation rests with the State, this reason weighs less heavily against it than would deliberate delay. Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. at 2192. It is reasonable to assume that those defendants who request a speedy trial are given preference as to early court dates.

Perhaps the decisive factor in this case is that the defendant was not prejudiced by the delay. He was not incarcerated pending trial nor was his ability to conduct his defense impaired by the delay. Relying on State v. Cole, 118 N.H. 829, 395 A.2d 189 (1978), the defendant alleges prejudice presumed from the delay itself. The Cole decision, however, was not based on presumed prejudice alone but on a consideration of all the facts. State v. Cole, 118 N.H. at 831-32, 395 A.2d at 191. In particular the court relied on the facts that Cole "constantly asserted his right and the State established no valid excuse for the delay." Id. Since the facts of the Cole case are the converse of the facts in this case, we find no error in the trial court's determination that Weitzman was not deprived of his right to a speedy trial.

Next we consider the defendant's argument that he was denied his sixth amendment right to an impartial jury by the trial judge's refusal either to ask the jurors specific questions on voir dire or to allow the defendant to conduct his own voir dire. In this State, the manner in which voir dire is conducted is wholly within the sound discretion of the trial judge. State v. Dunbar, 117 N.H. 904, 905, 379 A.2d 831, 832 (1977); Patterson v. Corliss, 112 N.H. 480, 486, 298 A.2d 586, 590 (1972). Except in capital cases, voir dire in this State has traditionally been conducted by the court and not by counsel. State v. Colby, 116 N.H. 790, 793, 368 A.2d 587, 590 (1976); see McGuirk & Tober, Attorney-Conducted Voir Dire: Securing an Impartial Jury, 15 N.H.B.J. 1, 1-2 (1973). We cannot say that the trial judge abused his discretion in refusing to allow the defendant to conduct his own voir dire.

Nor do we find any error in the trial judge's refusal to ask the jurors specific questions. "It is within the sound discretion of the trial court to accept or reject a party's proposed questions for the examination of prospective jurors." Soucy v. Koustas, 120 N.H. 381, 382, 415 A.2d 335, 335 (1980). Rather than ask several specific questions, the trial judge commendably expanded upon the minimal questions required by RSA 500-A:22 (Supp.1979) by asking the prospective jurors if they had any opinions on protest, civil disobedience, or the Seabrook demonstrations as a result of any newspaper, television, radio, or other reports. The defendant argues that, because of the widespread publicity of the Seabrook demonstrations, there was a "compelling need" for a more detailed inquiry into potential juror prejudice. When the publicity does not result in inherent prejudice, allegations of adverse publicity are not enough. 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). "(T)he defendant must prove that the publicity complained of resulted in actual identifiable prejudice which prevented him from obtaining a fair trial." Id.; see Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Mikus v. United States, 433 F.2d 719, 723 (2d Cir. 1970). The fact that the defendant was a Seabrook demonstrator does not automatically entitle him to a specific inquiry into potential juror prejudice. Cf. Ristaino v. Ross, 424 U.S. 589, 594, 597, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976); State v. Gullick, 120 N.H. 99, 103, 411 A.2d 1113, 1115-16 (1980). The trial judge's inquiry, although a general one, was designed to uncover precisely the type of prejudice which one might reasonably expect to find among veniremen in a case such as this one. We hold that this inquiry was constitutionally sufficient.

The defendant's next argument relates to use of the competing harms defense, RSA 627:3. This court has previously held that the defense is unavailable in nuclear power plant criminal trespass cases. State v. Dorsey, 118 N.H. 844, 845-46, 395 A.2d 855, 857 (1978); State v. Dupuy, 118 N.H. 848, 854, 395 A.2d 851, 855 (1978). In this case, the defendant argues that the defense of competing harms bears upon the element of knowledge in the criminal trespass statute, RSA 635:2. In essence, he argues that nuclear power policy involves competing harms considerations and that, therefore, he entered the Seabrook construction site knowing that he had a license or privilege to do so under the competing harms statute. The defendant in State v. Koski, 120 N.H. 112, 114-15, 411 A.2d 1122, 1123 (1980), raised the same argument. In that case, we did not have to decide the issue because "there was evidence before the jury regarding the competing harms statute as it related to ... (the defendant's) knowledge" and she therefore had "no cause to complain." Id. We noted, however, that Dorsey was controlling. Id. In this case the judge allowed no evidence of the competing harms defense. We find no error.

The defendant's proposed use of the competing harms defense goes to his motive for entering the construction site, not to his knowledge of having a license or privilege to do so. RSA 635:2 does not require that a defendant intend to commit a crime but only that he knowingly commit an act that is in fact a violation of the law. See W. LaFave & A. Scott, Handbook on Criminal Law § 47 at 362-63 (1972); Model Penal Code § 2.02 Comments 11 (Tent. Draft No. 4, 1955).

"A person acts knowingly with respect to conduct or to a circumstance that is a material element of an...