State v. Shannon

484 A.2d 1164, 125 N.H. 653, 1984 N.H. LEXIS 380
CourtSupreme Court of New Hampshire
DecidedNovember 9, 1984
DocketNo. 83-276
StatusPublished
Cited by26 cases

This text of 484 A.2d 1164 (State v. Shannon) 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. Shannon, 484 A.2d 1164, 125 N.H. 653, 1984 N.H. LEXIS 380 (N.H. 1984).

Opinion

Douglas, J.

The defendant appeals his convictions for armed robbery and assault, arguing that: (1) his conviction for assault amounted to a violation of the double jeopardy clause; (2) hearsay evidence was improperly admitted against him at trial; (3) the court erred in denying a requested jury instruction; (4) his conviction for armed robbery, a class A felony, was improper, as the indictment did not specify the essential element of use of a deadly weapon; and (5) there was insufficient evidence to support his convictions. For the reasons that follow, we reverse both convictions and remand for a new trial.

The record establishes the following facts. On September 11, 1982, at approximately 6:30 p.m., a man entered the Lafayette Street Market, a grocery store in Rochester owned by Roger Chasse. The man had a paper bag over his head and carried a length of wood. He beat Chasse with the wood, forced him to the ground and moved toward the cash register. At that point, Chasse summoned his two guard dogs and they chased the assailant away. The defendant was [657]*657arrested shortly thereafter, following a brief police investigation of the incident.

The defendant was indicted for armed robbery, RSA 636:1, and second degree assault, RSA 631:2 (Supp. 1983). The armed robbery indictment alleged that the defendant “[d]id purposely use physical force on another person in the course of committing the crime of theft... to wit: He did strike one Roger Chassie [sic] about the head with a blunt instrument while demanding United States currency . . . .” The assault indictment alleged that the defendant “[d]id recklessly cause bodily injury to another by means of a deadly weapon, to wit: He did strike one Roger Chassie [sic] about the head with a blunt instrument, a hammer handle.”

The defendant moved, before trial, to dismiss the assault indictment, alleging that the essential elements in the assault indictment and the robbery indictment were the same and that, therefore, the indictment violated the double jeopardy clause of the fifth amendment to the United States Constitution. The motion was denied by the Superior Court (Goode, J.), subject to the defendant’s exception. After a jury trial, the defendant was convicted of armed robbery, RSA 636:1, and second degree assault, RSA 631:2 (Supp. 1983). He appeals both convictions.

I. Double jeopardy

The defendant first argues that the trial court erred in denying his motion to dismiss the assault indictment. On appeal, he now raises both federal and State constitutional claims. It is well settled in this State, however, that arguments not presented below may not be raised on appeal. State v. Laliberte, 124 N.H. 621-22, 474 A.2d 1025, 1025 (1984). Accordingly, we will consider the merits of the defendant’s argument solely under the double jeopardy clause of the fifth amendment to the United States Constitution because State issues were not raised below. See State v. Miskolczi, 123 N.H. 626, 628, 465 A.2d 919, 920 (1983); compare State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983) (when defendant raises State constitutional claims we will address those claims).

The superior court denied the defendant’s motion to dismiss, citing Blockburger v. United States, 284 U.S. 299 (1932), as authority. In Blockburger, the United States Supreme Court held:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.”

[658]*658Id. at 304.

The United States Supreme Court recently reconsidered the Blockburger rule. In Missouri v. Hunter, 459 U.S. 359 (1983), the court construed the Blockburger test as a rule of statutory construction and directed that the rule should not apply where there is a clear indication of contrary legislative intent. Id. at 367-68. The court then held that when a legislature specifically authorizes cumulative punishment under two different statutes, regardless of whether those two statutes proscribe the same conduct under the Blockburger test, the double jeopardy clause does not preclude the imposition, in a single trial, of cumulative punishments under those statutes. Id. at 368-69.

The New Hampshire Legislature has not specifically authorized cumulative sentences for armed robbery and assault. Therefore, Missouri v. Hunter is inapplicable to the case before us. Since it appears that the Blockburger rule still controls when there is no clear indication that a legislature intended otherwise, we will consider the defendant’s double jeopardy claim using the Block-burger test.

Proof that the defendant used physical force, while in the course of committing theft, is essential to a conviction for armed robbery, RSA 636:1, but it is not necessary that the defendant be in the course of committing theft for a conviction for assault, RSA 631:2 (Supp. 1983). Additionally, the State must establish that the defendant caused bodily injury to obtain an assault conviction under RSA 631:2 (Supp. 1983), while bodily injury is not essential to a con.viction for armed robbery, RSA 636:1. Because “each provision requires proof of a fact which the other does not,” Blockburger v. United States, 284 U.S. at 304, we conclude that the convictions for armed robbery and assault do not violate the double jeopardy clause of the Federal Constitution. Accordingly, the superior court’s denial of the defendant’s motion to dismiss the assault indictment was correct.

II. Hearsay

We now turn to the defendant’s claim that hearsay evidence was improperly admitted against him at trial. The record indicates that after the guard dogs chased the assailant from the store, Mr. Chasse called the police. Two Rochester police officers responded to the call and arrived at the market within minutes. At trial, the police officers were questioned as to their activities once they arrived at the market.

Police Lieutenant Robert Bridges testified that he went into the store and spoke to Mr. Chasse. He then relayed information he [659]*659obtained from Mr. Chasse, concerning the assailant’s description, to a police officer who arrived at the scene as a back-up unit. He testified that he returned to the police station after an ambulance arrived.

Police Officer Clarke, who accompanied Lieutenant Bridges in responding to the call, testified that when he arrived at the market, he spoke with “some people” outside. When he began to testify as to statements made during the conversations, defense counsel objected on hearsay grounds. Counsel for the State claimed that the testimony was not hearsay because it was not being offered for the truth of the matter asserted, but was offered to give the basis for the officer’s subsequent actions. The court instructed counsel for the State to rephrase the question by asking the officer what he did as a result of certain conversations.

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Bluebook (online)
484 A.2d 1164, 125 N.H. 653, 1984 N.H. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shannon-nh-1984.