State v. Herrick

582 A.2d 613, 133 N.H. 694, 1990 N.H. LEXIS 123
CourtSupreme Court of New Hampshire
DecidedNovember 15, 1990
DocketNo. 89-394
StatusPublished
Cited by1 cases

This text of 582 A.2d 613 (State v. Herrick) 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. Herrick, 582 A.2d 613, 133 N.H. 694, 1990 N.H. LEXIS 123 (N.H. 1990).

Opinion

Thayer, J.

After a jury trial in Superior Court (Mangones, J.), the defendant, Michael C. Herrick, was convicted of first degree murder. RSA 630:l-a. The issue presented on appeal is whether there was sufficient evidence of premeditation and deliberation to support the jury’s verdict. We affirm.

The record discloses that on October 22, 1987, the defendant shot and killed Neil Ryan in Concord with a .357 magnum revolver that he had purchased that morning. The defendant and Ryan were acquaintances, and apparently Ryan owed the defendant $55. Several months before the shooting, the defendant arranged with his landlord to obtain an illegal inspection sticker from Ryan for the defendant’s car. The defendant paid Ryan $20, but Ryan failed to obtain the sticker and never repaid the defendant. The defendant told the landlord that he would “take care of it [him]self” and indicated that Ryan also owed him an additional $35.

In July of 1987 the defendant observed Ryan driving past the defendant’s apartment in a brown car, and he remarked that he thought Ryan was trying to avoid him by driving someone else’s vehicle, rather than his own pick-up truck. On another occasion that same summer, the defendant saw Ryan drive by while the defendant was a passenger in another car. The defendant told the driver to follow Ryan so that he could collect his debt, but the driver refused, not wanting to get into “a hassle.”

[696]*696On the day of the killing, the defendant bought the .357 magnum revolver used to shoot Ryan. The seller asked the defendant if he was interested in buying a stolen gun. The defendant examined the gun, opened the chamber, which was unloaded at the time, cocked the hammer and let it down so as not to ruin the firing pin. The defendant bought the gun and some bullets for $75 and put the gun in a paper bag under the seat of the car he was driving. That same day, the defendant showed the gun to a friend named Zankowski, who offered to buy it or trade it for a shotgun. The defendant refused. Later the defendant told Zankowski that he was upset because someone owed him money.

Around 5:30 p.m. that evening, the defendant visited the trailer of another friend, Dahood, to show him the gun, again opening the chamber to indicate that it was unloaded and carefully cocking and releasing the hammer. The defendant then left to drive to Manchester with his friend Hall, stopping briefly at the defendant’s trailer so he could change jackets. Driving down Manchester Street in Concord, the defendant saw Ryan’s pick-up truck and, commenting “that’s the guy that owes me some money,” reversed direction and followed Ryan. When Ryan pulled into a Getty gas station, the defendant pulled off the side of the road to wait. Ryan and his two companions, all seated in the cab of Ryan’s truck, noticed the defendant staring at them and pulled out of the Getty station and turned onto Old Suncook Road to see whether defendant’s car was following them. When the defendant proceeded to drive up behind Ryan, Ryan stopped the truck and parked.

The defendant took his gun from under the driver’s seat and said he was “going to see if the guy has got the money he owe[d] him.” The defendant asked Ryan through the open window of the truck for his money. Ryan responded that he would have it the next day when he got paid. The defendant asked Ryan for his wallet, and when Ryan refused, the defendant warned, “you don’t want to f— around with me,” pushed the .357 magnum revolver through the window into the truck, cocked the trigger and pointed it at Ryan’s head, holding it only a few inches away. Ryan pushed the defendant’s arm away but the defendant forced the gun back, pushed it into the side of Ryan’s back and fired. The bullet penetrated Ryan’s lungs and severed his aorta and vena cava, causing extensive bleeding in his chest killing him almost instantly. The gun was fired so close to Ryan’s arm that the gases and heat from the gun burned a hole through Ryan’s shirt and into his arm. The bullet exited Ryan’s body and struck Todd [697]*697Calley, sitting in the passenger seat of the truck, piercing his left arm and grazing his chest.

The defendant walked back to the car and drove to his trailer, where he put the gun and bullets into a bag and walked with it behind the trailer, returning empty handed. He then shaved his beard and cut his hair before going to work at 11:00 p.m. that evening. The defendant later told the friend whose car he was driving at the time of the killing to change his car tires because the police were taking tire prints. The defendant told the individual who had sold him the gun not to speak with the police, and made threatening statements concerning those persons who had already given statements to the police.

After the defendant was arrested, a search of his trailer uncovered some long dark hair in the trash and a composite drawing of the shooter’s face cut out of the newspaper on which a beard and mustache had been drawn. The black leather jacket and white cowboy hat which the defendant allegedly was wearing at the time of the shooting were never found. The gun was recovered by the defense investigator underneath an abandoned car in a junkyard near the defendant’s trailer five months after the shooting.

On appeal, the defendant contends that the evidence at trial was insufficient to prove the elements of premeditation and deliberation required for a conviction of first degree murder. We disagree.

The evidence must be considered in the light most favorable to the State, State v. Elbert, 125 N.H. 1, 12, 480 A.2d 854, 860 (1984), and the jury’s verdict upheld unless no rational trier of fact could have found guilt beyond a reasonable doubt. State v. Sadvari, 123 N.H. 410, 413, 462 A.2d 102, 103-04 (1983); State v. Martin, 121 N.H. 1032, 1033-34, 437 A.2d 308, 309 (1981). The defendant has the burden of showing that the evidence was insufficient to prove guilt. State v. Smith, 127 N.H. 433, 436, 503 A.2d 774, 776 (1985); State v. Burke, 122 N.H. 565, 569, 448 A.2d 962, 964 (1982).

The elements of premeditation and deliberation require that

“[t]here must be not only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it [698]*698matters not how brief it is. The human mind acts with celerity which it is sometimes impossible to measure; and whether a deliberate and premeditated design to kill was formed, must be determined from all the circumstances of the case.”

State v. Greenleaf, 71 N.H. 606, 613-14, 54 A. 38, 42 (1902) (quoting People v. Majone, 91 N.Y. 211, 212 (1883)).

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Bluebook (online)
582 A.2d 613, 133 N.H. 694, 1990 N.H. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herrick-nh-1990.