State v. Wong

• Decision Date: 26 October 1984
• Docket Number: 83-481,Nos. 83-358,s. 83-358
• Citation: 125 N.H. 610,486 A.2d 262
• Parties: The STATE of New Hampshire v. Steven P. WONG. The STATE of New Hampshire v. Joel GRINDLE.
• Court: New Hampshire Supreme Court

Page 262

486 A.2d 262

125 N.H. 610

The STATE of New Hampshire v. Steven P. WONG.

The STATE of New Hampshire v. Joel GRINDLE.

Nos. 83-358, 83-481.

Supreme Court of New Hampshire.

Oct. 26, 1984.

Gregory H. Smith, Atty. Gen. (Robert B. Muh, Concord, attorney, on the brief in Wong, Brian T. Tucker, Asst. Atty. Gen., on the brief in Grindle, and Michael A. Pignatelli, Asst. Atty. Gen., orally in both cases), for the State.

Jeffco, May & Smart, Portsmouth (Dennis M. May, Dover, on the brief and orally), for defendant Steven P. Wong.

Holland & Aivalikles, Nashua (Francis G. Holland, Nashua, on the brief and orally), for defendant Joel Grindle.

PER CURIAM.

The central question posed by these consolidated appeals is whether the State must allege and prove the elements of criminal negligence as defined by the Criminal Code, RSA 626:2, II(d), to sustain a conviction under section II of the negligent homicide statute, RSA 630:3. We hold that the culpability requirement of negligent homicide is satisfied upon proof of the fault element of section II: that a person operated a propelled vehicle while under the influence of intoxicating liquor or a controlled drug. RSA 630:3, II. We note that the State must establish a causal connection between the culpability prescribed by section II and the resulting death to meet the requirements of section II. We also examine the defendant Joel Grindle's argument that section II is constitutionally defective as violative of the due process and equal protection guarantees of the State and Federal Constitutions, and we decide that the section is constitutional.

Three subsidiary matters are also presented: (1) the sufficiency of the evidence to support the jury verdict in Grindle; (2) the admissibility of the results of a breathalyzer test in Grindle obtained by police approximately one and one-half hours after the collision, without preserving a second blood sample for the use of the defendant, and of the results of a warrantless blood alcohol test in Wong; and (3) the validity of specific trial court evidentiary rulings in Grindle. For the reasons that follow, we affirm the convictions in both Wong and Grindle.

The defendant Grindle was convicted by a jury in the Hillsborough County Superior Court (Dalianis, J.) of negligent homicide in violation of RSA 630:3, II.

The defendant Steven P. Wong was convicted by a jury in the Rockingham County Superior Court (Bean, J.) of negligent homicide in violation of RSA 630:3.

For the purpose of determining the sufficiency of the evidence in Grindle, the following facts have been adduced from the trial record: On May 15, 1982, shortly before 10:00 p.m., an automobile driven by the defendant collided with a bicycle ridden by the victim, Randy Benoit. The defendant testified that he was on route home from a party when the collision occurred. The defendant was present at the party from about 4:00 p.m. until 9:30 p.m., during which time he consumed approximately six beers along with assorted items of food. Several witnesses who attended the party testified that they did not observe anything "unusual" or "wrong" about the defendant during the course of the party.

As he was driving home the defendant noticed "something" in the road, at which point the car windshield shattered. He said that he did not see the victim before the impact. The defendant also testified that he did not have a chance to use the brakes before his automobile struck the victim. He characterized the road where the collision occurred as "dark" and without street lights.

After the windshield shattered, the defendant slowed the automobile to a stop. Upon discovering that his car had struck a bicyclist, the defendant attempted to call an ambulance from a nearby building which proved closed. Subsequently, the defendant returned to the victim, discovered the victim's difficulty breathing, and then drove to the Milford police station to report that he had "just hit somebody" and that the person was "hurt bad."

Patrolman Sturges, one of the police officers who met the defendant in the lobby of the police station immediately upon the defendant's arrival, testified that the defendant's eyes were bloodshot and watery, and that his breath smelled from a "strong odor" of an alcoholic beverage.

The police arriving at the accident scene found the victim alive but unconscious in a ditch approximately ten feet from the roadway. The victim later died as a result of the injuries sustained from the collision.

Then acting Chief of Police Rasmussen testified that while talking to the defendant at the police station, he detected an odor of alcoholic beverages emanating from the defendant's breath, and discerned that the defendant's eyes were watery, his face flushed and his speech slurred. Upon Officer Rasmussen's statement of the New Hampshire implied consent law, the defendant consented to three field sobriety tests: finger-to-nose, key-pick-up, and balancing, which were administered within fifteen to twenty minutes after the defendant's arrival at the police station. Officer Rasmussen testified that the defendant was "unsteady" and swayed throughout his performance of the tests.

Following the field sobriety tests, the defendant was placed under arrest for driving under the influence of alcohol and given a breathalyzer test which he failed: at 11:29 p.m., approximately an hour and a half after the accident, the breathalyzer revealed the defendant's .16 blood alcohol content. Patrolman Deneault, the breathalyzer operator, observed the defendant for a twenty-minute period prior to administering the test. The patrolman testified that the defendant, during this observation period, "appeared to be intoxicated" and described the defendant's eyes as bloodshot and watery, and his breath as smelling of alcohol. The police officer who took the defendant's fingerprints also testified that there was a "moderate to heavy odor" of alcohol on the defendant's breath, that the defendant was "waving back and forth" and that his eyes were "watery and glassy."

The defendant's expert witness in traffic accident reconstruction, John H. Meserve, testified that in his opinion "it would have been difficult, if not impossible, for a driver to observe an object" in the area of the fatal collision at the approximate time of the accident until the driver was "about on top of the object."

There was testimony that approximately ten to fifteen minutes prior to the collision, four police cruisers drove past the bicyclist as he was bicycling in the approximate area on the road where the fatal accident occurred. Three officers stated that they experienced no difficulty in seeing the bicyclist, who was said to be riding with the traffic in the breakdown lane of the road, as they slowed their vehicles and drove around him. The reflectors on his bicycle were also visible to one of the officers.

Senior Patrol Supervisor Douglas, one of the police officers who drove past the bicyclist, testified that the accident scene was visible for approximately one-tenth of a mile. The road is straight over that area and the posted speed limit is thirty-five miles an hour. Officer Douglas also testified that the closest street light to the point of impact was located approximately 350 to 400 feet across the road at the nearby pumping station.

Officer Douglas also testified that in his opinion a "scuff mark" discovered on the road at the scene of the collision indicated that the point of impact was a short distance into the travel lane, and also revealed that the right front tire of the defendant's automobile was either on the white line of the breakdown lane or just to the breakdown side of it.

The Trial Court (Dalianis, J.) denied the defendant's motions to suppress the results of the breathalyzer test. The defendant also moved to exclude any items seized or taken from his automobile following the collision. After a pretrial hearing, the trial court granted the defendant's motion to suppress evidence gathered from the automobile's interior. However, at trial, the trial court permitted the State to introduce photographs and measurements of the exterior of the defendant's automobile. At the close of the State's case, the defendant moved for a directed verdict, which was denied by the trial court.

The defendant Wong was the driver of an automobile which at approximately 11:24 p.m. on June 16, 1982, collided with a motorcycle resulting in the death of the motorcyclist, Damon Lee Spencer. Within several minutes of the fatal collision, Sergeant Gilmore of the Exeter police department arrived at the scene, determined the identity of the defendant, and, upon learning from another police officer that the defendant's breath smelled of alcohol, administered field sobriety tests. As a result of these tests, Sergeant Gilmore concluded that the defendant was under the influence of intoxicating liquor, and, accordingly, arrested him for driving while intoxicated.

At the Exeter police station, after the defendant was informed of the New Hampshire implied consent law, he declined to submit to a breath or a blood test. Subsequently, at about 11:59 p.m., the defendant was charged with negligent homicide.

Lieutenant Smith of the Exeter police informed the defendant that due to the death of the motorcyclist and the negligent homicide charge, it "was no longer his choice" whether to submit to a blood alcohol test. Officer Smith inquired whether the defendant would prefer a blood or a breath test, and the defendant chose a blood test. At approximately 12:17 a.m., on June 17, 1982, a blood specimen was extracted from the defendant at Exeter hospital. The blood analysis revealed the defendant's .21 percent blood alcohol content.

The Trial Court (Bean, J.), after a hearing, denied the defendant's motion to suppress the results of the blood alcohol test. A subsequent motion to reconsider and set aside the order was denied by the trial court after...