State v. Fraser

411 A.2d 1125, 120 N.H. 117, 1980 N.H. LEXIS 241
CourtSupreme Court of New Hampshire
DecidedFebruary 14, 1980
Docket79-247
StatusPublished
Cited by19 cases

This text of 411 A.2d 1125 (State v. Fraser) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fraser, 411 A.2d 1125, 120 N.H. 117, 1980 N.H. LEXIS 241 (N.H. 1980).

Opinions

GRIMES, C. J.

The defendant herein was convicted by a jury of the crimes of attempted armed robbery and felonious use of a firearm. He seeks to overturn these convictions on the grounds that he was denied a speedy trial, that impermissible evidence was admitted against him, and that the evidence presented at trial was insufficient, as a matter of law, to sustain the State’s burden of proving guilt beyond a reasonable doubt. Finding no merit in the defendant’s arguments, we affirm both convictions.

On November 20, 1978, the defendant, Kevin P. Fraser, was indicted by the Rockingham County Grand Jury for attempted armed robbery, RSA 636:1 and RSA 629:1, and the felonious use of a firearm. RSA 650-A:l (Supp. 1977). The charges arose out of events that occurred on the evening of November 13, 1978, when four heavily armed, masked men broke into the residence of the Milne family in Auburn, New Hampshire. Thereafter, the defendant was taken into custody and held, in lieu of bail, until trial.

On December 9,1978, the defendant filed a motion for a psychiatric and drug dependency evaluation, which was granted December 15. On that date, the defendant was transferred to the forensic unit of the New Hampshire Hospital and remained there under observation until January 12, 1979, when he was returned to the Rockingham County jail.

The defendant’s case was scheduled for trial on February 12,1979, but was continued until March 12, 1979, at the request of defense counsel. On March 12, when both parties were prepared for trial, the Presiding Judge (Randall, J.) disqualified himself because he knew the victims. On March 14,1979, the defendant filed a motion to dismiss for lack of a speedy trial, which motion was renewed on March 20, 1979. Both motions were denied.

Trial began on April 9, 1979. The principal evidence linking the defendant to the attempted robbery of the Milne residence was the [120]*120testimony of one Gary Zielinski, an admitted participant in the break-in, who testified that the defendant had been a participant. During the course of his testimony, Zielinski related threats made to him by a friend of the defendant concerning his cooperation with the police. Zielinski’s testimony was buttressed by that of Rene Cook, who testified that while confined in the Rockingham County jail, the defendant admitted his participation in the Milne break-in to him. The defendant was ultimately convicted of both offenses. The defendant’s exceptions were transferred by Mullavey, J.

The defendant first attacks his convictions on the grounds that he was denied the speedy trial guaranteed to him by both the federal Constitution and the New Hampshire Constitution. U.S. CONST, amend. VI; N.H. Const. pt. 1, art. 14. He argues that insofar as there was a delay from his arrest until the commencement of his trial of almost five months, his right was impermissibly abridged, for which dismissal of the charges is the only remedy. Barker v. Wingo, 407 U.S. 514, 522 (1972); State v. Hudson, 119 N.H. 963, 409 A.2d 1349 (1979). We perceive no such abridgment of the defendant’s constitutional rights. In determining whether a criminal defendant has been denied a speedy trial, we consider the four factors set out in Barker and Hudson. They are: (1) the length of the delay, (2) the reasons for the delay, (3) the responsibility of the defendant to assert his right, and (4) prejudice to the defendant. This court places particular emphasis upon the latter two factors. State v. Cole, 118 N.H. 829, 831, 395 A.2d 189, 190 (1978).

As we have noted above, much of the delay in this case was brought about by the defendant. It is elementary that the defendant cannot take advantage of delay that he has occasioned. State v. Cole supra; State v. Blake, 113 N.H. 115, 305 A.2d 300 (1973). When a defendant requests a continuance, he thereby temporarily waives his right to a speedy trial. State v. Dufield, 119 N.H. 28, 398 A.2d 818 (1979). Moreover, we observe that the defendant did not assert his right to a speedy trial until March 14,1979. His trial followed within one month. On the facts of this case, we hold that there was no violation of the defendant’s right to a speedy trial.

The defendant next argues that the admission of testimony concerning certain threats made against a State’s witness by a third party constitutes reversible error. During the course of the trial, State’s witness Zielinski testified concerning a fight that he had with one Alan Therien, an alleged friend of the defendant. The following exchange took place between the witness and the State’s attorney:

[121]*121Q: And did this assault on you at Alan Therien’s have anything to do with the Milne robbery?
A: Yes, it did.
Q: And would you describe for the Jury what it has to do with the Milne robbery?
A: When I first arrived at Alan Therien’s he pulled a gun on me and told me he was going to blow my head off because I had informed on Kevin Fraser. It was his way of getting back at me since Kevin couldn’t. That is when the fight took place.

We think it sufficient to note, for the purposes of this case, that the preceding exchange took place without objection or motion to strike being offered by defense counsel. Thus, the defendant may not now question the propriety of the evidence. State v. Josselin, 119 N.H. 936, 409 A.2d 1336 (1979); State v. Taschler, 116 N.H. 218, 356 A.2d 697 (1976). We decline to rule on whether, in the circumstances of this case, threats made against a witness by a third person may be admissible against a defendant. See generally, Annot., 79 A.L.R.3d 1156 (1977); 1 C. Torcia, Wharton’s Criminal Evidence § 217 (13th ed. 1972).

The defendant further contends that repeated attempts by the prosecuting attorney to elicit testimony concerning the defendant’s alleged threats made to other State’s witnesses was improper. We observe, however, that it is the law in this State that such threats are admissible against a criminal defendant. State v. Belkner, 117 N.H. 462, 374 A.2d 938 (1977); State v. Martineau, 116 N.H. 797, 368 A.2d 592 (1976); 2 J. Wigmore, Evidence §§ 273, 277, 278 (3d ed. 1940). We are of the opinion that the threats allegedly made by the defendant against State’s witnesses were admissible.

The defendant further asserts that the State failed in its burden of proof. In evaluating such a claim, it is our task to examine the record for sufficient evidence from which a reasonable trier of fact could find guilt beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781 (1979); State v. Kiluk, 120 N.H. 1, 410 A.2d 648 (1980). In so doing, we view the evidence in the light most favorable to the State. State v. Meloon, 119 N.H. 76, 397 A.2d 1041 (1979);State v.Dupuy, 118 N.H.

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Bluebook (online)
411 A.2d 1125, 120 N.H. 117, 1980 N.H. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fraser-nh-1980.