State v. McDuffee

459 A.2d 251, 123 N.H. 184, 1983 N.H. LEXIS 249
CourtSupreme Court of New Hampshire
DecidedMarch 28, 1983
DocketNo. 81-222
StatusPublished
Cited by3 cases

This text of 459 A.2d 251 (State v. McDuffee) 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. McDuffee, 459 A.2d 251, 123 N.H. 184, 1983 N.H. LEXIS 249 (N.H. 1983).

Opinion

Douglas, J.

The defendant was tried by a jury and convicted in Superior Court (Gann, J.) of being an accomplice to burglary. RSA 626:8; RSA 635:1. The defendant argues on appeal that: (1) he was denied due process and unfairly prejudiced by the State’s delay of more than twenty months in notifying him that he was a suspect in the burglary; (2) he was denied a speedy trial; and (3) the trial court erred in admitting evidence that the principal in the burglary, who was also the key prosecution witness, was not in another State when the burglary occurred. We affirm.

During the first week in May 1978, the Dover police received a tip from an informant that Carlton Gosselin, Jr., and the defendant, Gilman McDuffee, were going to burglarize a house along Route 202 in the Strafford-Barrington area. This information was given to New Hampshire State Police Corporal Ronald Kalway, who determined from the details of the location that the target of the burglary was the home of Bertha Foss. At about 10:30 p.m. on the night of May 9, 1978, the Dover police telephoned Corporal Kalway and informed him that they believed the burglary would take place that evening. Corporal Kalway and Strafford Police Chief Edgar Burroughs set up a stakeout of the Foss home beginning at 11:15 p.m.

At approximately the same time that Corporal Kalway received word of the impending burglary, the defendant dropped Gosselin in the vicinity of the Foss home. After seeing Mrs. Foss leave for work at 10:45 p.m., Gosselin entered the house and spent the next hour gathering goods he intended to take with him. He telephoned the defendant at the VFW club in Rochester, and the defendant returned to pick him up between 12:30 and 12:45 a.m. After loading the stolen goods into the trunk of the car, the defendant drove Gosselin to the home of Donna and James Sanger, Gosselin’s sister and brother-in-law. The stolen goods were stored at the Sanger home.

Neither Corporal Kalway nor Chief Burroughs saw or heard any car stop near the Foss home during their stakeout. About 3:00 a.m., the two police officers entered the Foss house and discovered that it had already been burglarized. Corporal Kalway dusted the burglary scene for fingerprints and examined some tire print marks on the soft shoulder of the road near the burglarized residence.

The next day, the informant telephoned the Dover police, who notified Corporal Kalway that the stolen goods could be found at the [186]*186Sanger home. Corporal Kalway obtained a search warrant, and on May 11 he searched the Sanger home, recovering virtually all of the items that had been taken during the burglary. A subsequent dusting of the stolen items for fingerprints apparently failed to yield any conclusive evidence, as Corporal Kalway did not submit any prints to the State police crime laboratory for analysis. Donna and James Sanger were indicted for possession of stolen property, but the charges were eventually nol prossed. Neither of these individuals at that time implicated the defendant in the burglary.

In June 1978, while Gosselin was being held at the Rochester Police Station on an unrelated charge, the corporal questioned him about the Foss burglary. Corporal Kalway did not mention the defendant at the time, however. On December 28, 1979, Gosselin was questioned concerning a number of other burglaries, and for the first time the defendant McDuffee was implicated in the Foss burglary. On January 3, 1980, the Strafford County Grand Jury indicted the defendant on sixty-two counts of being an accomplice in numerous burglaries, including the burglary of the Foss residence, and nine counts of burglary.

During the next thirteen months, the defendant was tried and acquitted in connection with two separate burglaries. On February 10, 1981, the Strafford County Attorney notified the defendant’s attorneys that the defendant would be tried the following month for the Foss burglary. The defendant filed a motion for a continuance and a motion to dismiss for lack of speedy trial. On March 3, 1981, the continuance was granted but the speedy-trial motion was denied. In May 1981, sixteen months after his indictment, the defendant was convicted of being an accomplice to the burglary of the Foss residence.

The defendant’s first contention is that he was denied due process because the State waited twenty months to notify him that he was a suspect in the Foss burglary. The defendant argues that he was unfairly prejudiced because if he had been notified earlier, he would have had an opportunity to develop properly exculpatory evidence, primarily testimony that he frequently picked up his fiancee when she finished work at the end of the second shift at the General Electric plant in Somersworth at about 11:30 p.m. At trial, the defendant testified that he could not recall whether he had picked up his fiancee the night of the Foss burglary. In light of the fact that the stolen property was recovered two days after the burglary, the defendant claims the State’s investigation was virtually completed at that point, and thus there was little justification for not informing the defendant that he was suspected of having been involved in the burglary of the Foss home.

[187]*187The defendant has cited no authority, and we are aware of none, supporting his argument that the requirement of due process imposed upon the State, under the circumstances of this case, an affirmative duty to inform him that he was suspected of being implicated in a crime. The farthest that the United States Supreme Court has been willing to go has been to suggest that the due process clause may require the dismissal of a criminal charge against a defendant when, due to unreasonable delay, “actual prejudice resulting from pre-accusation delays” occurs. United States v. Marion, 404 U.S. 307, 324 (1971); see United States v. Lovasco, 431 U.S. 783, 796-97 (1977). The defendant does not argue that the State was obligated to indict him within a specified period after the Foss burglary, but rather that it was obligated to tell him that he was suspected of having been a party to the burglary. We cannot accept this novel contention.

The defendant next argues that the delay of sixteen months between his indictment and trial denied him his right to a speedy trial. Length of the delay is not the dispositive factor in evaluating a speedy-trial claim, but we must also consider the reason for the delay, whether the defendant asserted his right, and the resulting prejudice to the defendant. State v. Perron, 122 N.H. 941, 950, 454 A.2d 422, 427 (1982); State v. Weitzman, 121 N.H. 83, 86, 427 A.2d 3, 5 (1981); Barker v. Wingo, 407 U.S. 514, 530 (1972).

During the sixteen months between the defendant’s indictment and trial in this case, he was tried three times for other crimes, one resulting in a mistrial, and two resulting in acquittals. The record shows that the State continuously proceeded with its prosecution of the defendant on the seventy-one burglary indictments against him. The defendant never moved for consolidation of the charges, all of which involved different burglaries, and opposed the State’s attempt to consolidate the offenses for trial.

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Cite This Page — Counsel Stack

Bluebook (online)
459 A.2d 251, 123 N.H. 184, 1983 N.H. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcduffee-nh-1983.