State v. Murray

531 A.2d 323, 129 N.H. 645, 1987 N.H. LEXIS 233
CourtSupreme Court of New Hampshire
DecidedAugust 11, 1987
DocketNo. 86-239
StatusPublished
Cited by18 cases

This text of 531 A.2d 323 (State v. Murray) 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. Murray, 531 A.2d 323, 129 N.H. 645, 1987 N.H. LEXIS 233 (N.H. 1987).

Opinion

Souter, J.

In this appeal from his class B felony arson conviction, see RSA 634:1, III, the defendant argues that the Superior Court (Nadeau, J.) erred in failing to dismiss the indictment, either as a remedy for the destruction of material evidence or because of the insufficiency of the evidence to prove guilt. We affirm.

At all relevant times Arlene and Jeffrey Foster owned real estate in New Durham, on which, prior to September, 1983, there stood a vacant house and barn, known as Hill Farm. From the evidence at the defendant’s trial the jury could have found that Clarence and Barbara Jenness drove past.Hill Farm between 5:30 and 6:00 p.m. on August 21, 1983, and saw a green car parked in the driveway, with a man sitting at the wheel. Paul Moulton also drove by shortly before 6:00 p.m. and noticed a man, whom he later described and identified as the defendant, walking from the direction of the barn toward a dark green Chevrolet parked in the yard.

At 7:40 p.m. that evening, a neighbor reported that the farm was burning. The barn was in flames and had partially collapsed when the fire chief arrived, and the fire was spreading through the ell of the house. The flames were put out before destroying all of the house, however, and later in the evening two investigators from the State fire marshal’s office inspected what remained. They agreed with each other that the physical evidence pointed to the south side of the barn as the fire’s point of origin. Upon learning that no electric power was being supplied to the farm at the time of the fire, they ruled out wiring as a cause; they also eliminated heating devices because the place was unoccupied. One of the investigators later testified that he ruled out lightning, because there were no storms, as well as the possibility of a discarded cigarette, because of the description of the fire when first sighted. Each investigator stated that the cause was not spontaneous combustion, given the owners’ description of the materials at the buildings and the investigator’s own observations at the scene. Each concluded that someone had deliberately started the fire, and on the basis of physical evidence one of them set the time at 5:49 p.m.

On the basis of Moulton’s identification and description, the defendant was arrested the next day and charged with the arson. He first admitted he had driven over the road past the farm the day before, and said he knew of the fire because he had gone by the site on the morning of his arrest. When one of the fire investigators indicated there was reason to believe the defendant had spoken with a police cadet at the scene the night before, the defendant admitted he had driven to the fire and had asked a police [647]*647officer what was going on. He then also admitted that he had stopped at the farm for two or three minutes between 5:45 and 6:00 p.m. the evening before, and had left his car to relieve himself behind the barn. He first insisted that he had parked two or three hundred feet up the road from the buildings, but later changed his story and claimed he parked alongside the driveway. He said he had pulled into the property by the side of the driveway, but continued to deny he had parked in the yard. When the police asked if he might have started the fire accidentally, he said he did not remember whether he had been smoking at the time, and conceded that he might have dropped a cigarette.

Some two weeks after the fire, one of the owners, Arlene Foster, contracted to have the remains of the buildings torn down. At trial, she testified that she thought she told the police and fire inspectors of her plans, although she did not specifically remember doing so. The contractor who did the demolition work testified that the surviving portions of the structures were unsafe to go upon, and had been razed out of concern that pilferers would enter them and be injured. He estimated that it would have cost at least ten thousand dollars to fence off the site effectively.

This destruction of the buildings prompts the defendant’s first argument on appeal, that he was deprived of due process, as measured by the State and National Constitutions, in being forced to stand trial without the opportunity to subject the physical remains of the burned buildings to an examination by an expert of his own choosing. He cites part I, article 15 of the Constitution of New Hampshire and the fourth and fourteenth amendments of the National Constitution, and maintains that the only adequate remedy for the constitutional deprivation is dismissal of the indictment against him. We will consider the State claim first. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983); see also Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).

Although we have begun to develop a body of State law dealing with the interests affected by the government’s loss or destruction of relevant evidence, see State v. Baillargeon, 127 N.H. 782, 508 A.2d 1051 (1986); State v. Dukette, 127 N.H. 540, 545-46, 506 A.2d 699, 704-05 (1986), we have had no prior occasion to consider the constitutional significance of destruction by a third party. This, however, is not the case to examine that novel question. For in spite of the fact that it was the building’s owner, not the State, who caused the destruction of the evidence in question, the State has briefed the issues on the basis of our existing law as developed in Dukette and Baillargeon.

[648]*648 Under the standards derived in these recent cases, once a defendant demonstrates that the State has lost or destroyed apparently relevant evidence, the State has the burden to demonstrate that it acted both with good faith, in the sense that it was free of any intent to prejudice the defendant, and without culpable negligence. State v. Dukette, supra at 545-46, 506 A.2d at 704. If the State carries that burden, the defendant may not claim any relief unless he demonstrates that the lost evidence was material, to the degree that its introduction would probably have led to a verdict of not guilty, and that its loss prejudiced him by precluding the introduction of evidence that would probably have led to a verdict in his favor. Id. at 546, 506 A.2d at 704.

Taking these matters in order, the relevance of the lost evidence is not in issue, and we may look immediately to the State’s intentions and responsibility. Although the present case was tried before the decision in Dukette, the trial judge anticipated the required inquiry into the State’s good faith and freedom from culpability when he concluded, after hearing, that “[i]t’s just not clear to me that the State was responsible for the destruction.” And while this statement may suggest that the trial court burdened the defendant with an obligation to prove bad faith or negligence, the issue need not be reheard, because the evidentiary record would not reasonably support any other conclusion than good faith and freedom from culpable neglect. A brief summary of the evidence will indicate why this is so.

There is no evidence that anyone besides the owner participated in her decision to level the damaged buildings.

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Bluebook (online)
531 A.2d 323, 129 N.H. 645, 1987 N.H. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murray-nh-1987.