Opinion
No. 79-438
Decided July 7, 1982
1. Jury — "Voir Dire" — Prejudice Whether or not a prospective juror is free from prejudice is a determination to be made in the first instance by the trial court on voir dire and the supreme court on appeal will evaluate the voir dire testimony of the empaneled jury to determine whether an impartial jury was selected.
2. Jury — "Voir Dire" — Prejudice In the case of defendant charged with non-capital first-degree murder, where trial started on September 24, 1979, and on September 28, 1979, after five jurors had been selected to sit on the case, the defendant escaped from custody and the trial continued with the defendant in absentia, the trial court did not abuse its discretion in its voir dire examination of the prospective jurors after the defendant's escape when it asked the five jurors already selected and all the veniremen whether the fact that the defendant had escaped and would not be present at trial would prejudice or influence their consideration of the question of his guilt or innocence, and a fair and impartial jury was empaneled where the record indicated that while many of the prospective jurors had some knowledge of the defendant's escape, each of the jurors selected stated under oath that he or she could render a verdict based only on the evidence presented at trial; and further, where several other veniremen stated that they had formed an opinion about the case as a result of the defendant's escape, that fact showed that the judge's questions were sufficient to uncover any bias or prejudice among the jurors.
3. Searches and Seizures — Consent — Voluntary In the case of defendant charged with non-capital first-degree murder, where on the evening of his arrest the defendant offered to volunteer information to a custodial officer in return for a favor, and based on this information the police went to a car rented and abandoned by the defendant, searched the car and seized a gun which was later admitted into evidence at trial, the search and seizure were lawful and the gun was properly admitted into evidence because the defendant initiated the entire transaction, volunteered the information about the car and the gun, and knowingly, freely and voluntarily consented to the search of the car and the seizure of his gun.
4. Trial — Instructions — Failure To Object In the case of defendant charged with non-capital first-degree murder, where defense counsel did not object to the trial court's instruction on reasonable doubt when first given at the close of the evidence but objected when the court gave virtually the identical instruction at the jury's request after it had deliberated for some time, and where at that point defense counsel objected on the ground that by failing to repeat the entire charge to the jury the court had taken the reasonable doubt instruction out of context and had emphasized what reasonable doubt was not, the supreme court would not consider the arguments of defendant, first raised on appeal, that the instruction impermissibly shifted the burden of proof or violated the requirements imposed by State v. Wentworth, 118 N.H. 832 (1978), because the defendant failed to object and take an exception to the original reasonable doubt instruction given by the court and failed to state clearly his objection to the virtually identical reinstruction.
5. Trial — Instructions — Failure To Request A defendant waives his right to a specific jury instruction unless the request is timely made. Superior Ct. R. 62H, 72.
6. Trial — Instructions — Failure To Testify In the case of defendant charged with non-capital first-degree murder, where the defendant escaped from custody after trial had commenced and the trial continued with the defendant in absentia, the trial court did not err in failing to give an instruction concerning the defendant's failure to testify on his own behalf, first, where the defendant's request for an instruction on his failure to testify was not made until after the trial court had charged the jury and thus was waived as not timely made, and second, since the rationale underlying the U.S. Supreme Court decision, decided approximately one-and-one-half years after the trial, in Carter v. Kentucky, 450 U.S. 288 (1981) was that a defendant present during trial who elected not to testify on his own behalf should not be prejudiced because of his decision to remain silent, and the defendant in this case elected not to be present at trial and was not a defendant who was present and chose not to testify.
7. Witnesses — Cross-Examination — Scope On cross-examination, hypothetical questions can be asked for the purpose of testing the accuracy or credibility of an expert or determining the value of his opinion.
8. Witnesses — Cross-Examination — Scope During the insanity phase of defendant's bifurcated trial, where the State, on cross-examination, posed hypothetical questions to the defendant's expert, some of which were based on facts not in the evidence, the trial court properly allowed the questions where the State's purpose in posing them was to attempt to establish that the expert was unreliable, and such questions are permitted for that purpose.
9. Trial — Instructions — Insanity During the insanity phase of defendant's bifurcated trial, where the court instructed the jury that upon a finding of insanity the court would determine "whether or not it [would be] dangerous for the defendant to go at large", the information given by the court to the jurors, although brief, satisfied the policy behind the procedures in Novosel v. Helgemoe, 118 N.H. 115 (1978), because its obvious implication was that the defendant would not go free if he were found to be dangerous, and even if the instruction was deficient, the effect of any error was minimized when the defendant's counsel repeatedly emphasized that a finding of insanity would not mean that the defendant would simply walk away.
Gregory H. Smith, attorney general (David L. Harrigan and Martha V. Gordon, assistant attorneys general, on the brief, and Mr. Harrigan orally), for the State.
James E. Duggan, of Concord, appellate defender, by brief and orally, for the defendant.
The defendant appeals his conviction for the crime of non-capital first-degree murder (RSA 630:1-a) after a trial bifurcated for separate determination of guilt and sanity. Novosel v. Helgemoe, 118 N.H. 115, 124-25, 384 A.2d 124, 130 (1978). The following issues are raised on appeal: (1) whether the trial court's voir dire of the jurors was adequate to select an impartial jury; (2) whether the search of the defendant's car and the seizure of his gun were lawful; (3) whether the defendant's objection to the court's reasonable doubt instruction was timely; (4) whether the trial court erred in failing to give an instruction concerning the defendant's failure to testify; (5) whether hypothetical questions based on facts not in evidence can be asked of an expert on cross-examination; and (6) whether the trial court's failure to instruct the jury in detail concerning the consequences of a verdict of insanity requires a new trial on that issue. Finding no merit to the defendant's arguments, we affirm.
In September 1975, the body of Kenneth Dunlap was discovered in his apartment in Manchester, New Hampshire. Shortly thereafter, a warrant was issued for the arrest of the defendant, Joseph Lister, on a charge of first-degree murder. The authorities were unable to locate the defendant until he was arrested in August 1978 in Massachusetts.
The defendant was returned to New Hampshire and his trial on the murder charge was set to begin on September 24, 1979. The first four days, September 24 to September 27, were devoted to various suppression motions, and the actual selection of jurors to sit on the case began on September 28. On that day, after five jurors had been selected, the defendant escaped from custody. The case was transferred to this court for a ruling on the question of whether the defendant could be tried in absentia, State v. Lister, 119 N.H. 713, 406 A.2d 967 (1979). We answered the question affirmatively and remanded in order that the trial could continue. Id. at 717, 406 A.2d at 969.
Upon remand, the Trial Court (Contas, J.) asked five jurors already selected and all the veniremen whether the fact that the defendant had escaped and would not be present at trial would prejudice or influence their consideration of the question of his guilt or innocence. The five jurors, and all of those who were eventually selected as jurors, responded in the negative. The defendant argues that the trial court's voir dire of the jurors, concerning the effect that his escape might have on their ability to impartially judge the defendant's guilt or innocence, was insufficient to ensure their impartiality. See N.H. CONST. pt. I, arts. 17 and 35; U.S. CONST. amend. VI.
[1, 2] It is well settled that whether or not a prospective juror is free from prejudice is a determination to be made in the first instance by the trial court on voir dire, State v. Gullick, 120 N.H. 99, 102, 411 A.2d 1113, 1116, cert. denied, 449 U.S. 879 (1980), and that this court on appeal "will evaluate the voir dire testimony of the empaneled jury to determine whether an impartial jury was selected." State v. Laaman, 114 N.H. 794, 800, 331 A.2d 354, 358 (1974), cert. denied, 423 U.S. 854 (1975). While the record indicates that many of the prospective jurors had some knowledge of the defendant's escape, each of the jurors selected stated under oath that he or she could render a verdict based only on the evidence presented at trial. In addition, the fact that several other veniremen stated in response to the trial court's question that they had formed an opinion about the case as a result of the defendant's escape, shows that the judge's questions were sufficient to uncover any bias or prejudice among the jurors. See State v. Sullivan, 121 N.H. 301, 303, 428 A.2d 1247, 1249 (1981). We therefore conclude that the trial court did not abuse its discretion in its voir dire examination of the prospective jurors, and that a fair and impartial jury was empaneled.
The defendant next contends that a gun which the police took from his car after his arrest in August 1978 should not have been admitted into evidence because it was obtained through an unlawful search of the car.
Testimony presented to the trial court indicates that at some point during the evening of his arrest, the defendant asked a custodial officer to bring his cat "Pepi" to him. He promised that in return for this favor, he would give the officer some important information. After the officer brought the cat to him and reminded the defendant of his promise, the defendant told the officer that there was a gun in a car that he had rented and abandoned in a nearby shopping mall. The police then went to the place indicated by the defendant, searched the car, and seized the gun. The defendant now contends that he never gave his consent to the search. We disagree. The defendant initiated the entire transaction with the police and volunteered the information about the car and the gun. Under these circumstances, it would have been superfluous for the police to ask explicit permission to search the car. Because the defendant knowingly, freely and voluntarily consented to the search of the car and the seizure of his gun, the search and seizure were lawful and the gun was properly admitted into evidence. See State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493, 497-98 (1979).
We next consider whether the defendant's objection to the trial court's instruction to the jury on reasonable doubt is properly before us. When the trial court instructed the jury at the close of the evidence, defense counsel did not object to the reasonable doubt instruction given by the court. After the jury had been deliberating for some time, at its request, the trial court repeated its reasonable doubt instruction in a form virtually identical to that which it had previously given the jury. At this point, the defendant objected for the first time to the court's reasonable doubt instruction on the ground that by failing to repeat the entire charge to the jury, the court had taken the reasonable doubt instruction out of context and had emphasized what reasonable doubt was not. At the time, no claim was made that the court's instruction impermissibly shifted the burden of proof to the defendant or in any way violated the requirements imposed by State v. Wentworth, 118 N.H. 832, 838-39, 395 A.2d 858, 862-63 (1978). Those arguments are made for the first time on appeal. Because the defendant failed to object and take an exception to the original reasonable doubt instruction given by the court and failed to state clearly his objection to the virtually identical reinstruction, he is precluded from claiming that the instruction was erroneous. RSA 491:17; State v. O'Brien, 114 N.H. 233, 236, 317 A.2d 783, 785 (1974); see Roy v. Perrin, 122 N.H. 88, 100, 441 A.2d 1151, 1159 (1982).
The defendant next argues that the trial court erred in failing to give an instruction concerning the defendant's failure to testify on his own behalf. He relies upon a decision of the United States Supreme Court, decided approximately one-and-one-half years after the trial in this case, which holds that a trial court must instruct the jury that no adverse inference may be drawn from the defendant's failure to testify when such an instruction is properly requested by the defendant. Carter v. Kentucky, 450 U.S. 288, 303 (1981).
[5, 6] The defendant's reliance upon Carter is misplaced. In spite of the fact that the defendant had absented himself from the trial before its evidentiary phase began, a request for an instruction on his failure to testify was not made until after the trial court had charged the jury. In this State, a defendant waives his right to a specific jury instruction unless the request is timely made. See Superior Court Rules 72 and 62H; State v. O'Brien, 114 N.H. at 236 317 A.2d at 785. Second, the rationale underlying Carter is that a defendant present during trial who elects not to testify on his own behalf should not be prejudiced because of his decision to remain silent. The case before us, however, involves a defendant who elected not to be present at his trial, not a defendant who was present and chose not to testify.
After the guilt phase of the defendant's bifurcated trial resulted in a guilty verdict, the insanity phase of the proceedings commenced. During these proceedings, the State, on cross-examination, posed hypothetical questions to the defendant's psychiatric expert. Relying on Connell v. Company, 93 N.H. 244, 246, 40 A.2d 743, 744 (1944), the defendant contends that he should be given a new trial because certain questions asked of the expert were based on facts not in the evidence. See id., 40 A.2d at 744. See also State v. Arillo, 122 N.H. 107, 108, 441 A.2d 1163, 1164 (1982).
[7, 8] The present case is to be distinguished from Connell, however, since the questions here were asked on cross-examination of the expert, not on direct examination. Cf. Connell v. Company, 93 N.H. at 246, 40 A.2d at 744. On cross-examination, hypothetical questions can be asked for the purpose of testing the accuracy or credibility of an expert or determining the value of his opinion. 2 GARD, JONES ON EVIDENCE 14:30, at 666 (6th ed. 1972); see also McCORMICK ON EVIDENCE 14, at 33 n. 92 (2d ed. 1972); 2 WIGMORE ON EVIDENCE 684, at 960 (Chadbourn rev. 1979). The State's purpose in posing hypothetical questions to the defendant's expert on cross-examination was to attempt to establish that the expert was unreliable. Because such questions are permitted for such purposes, the trial court properly allowed them.
At the close of the evidence in the insanity phase of the trial, the court instructed the jury that upon a finding of insanity the court would determine, "whether or not it [would be] dangerous for the defendant to go at large." The defendant complains that the court's instruction concerning the consequences of a finding of insanity violated the procedure outlined in Novosel v. Helgemoe, 118 N.H. 115, 125, 384 A.2d 124, 130 (1978). In Novosel, this court recommended that the trial court inform the jury briefly of the committal procedures available upon a finding of insanity. Id., 384 A.2d at 130; see RSA 651:9, :11-a (Supp. 1981). The information given by the court to the jurors, although brief, satisfied the policy behind Novosel because its obvious implication was that the defendant would not go free if he were found to be dangerous.
Moreover, even if the instruction was deficient, the effect of any error was minimized when the defendant's counsel repeatedly emphasized that a finding of insanity would not mean that the defendant would "simply walk away." See Novosel v. Helgemoe, 118 N.H. at 125, 384 A.2d at 130 (and cases cited therein).
Affirmed.
All concurred.