Thе defendant appeals his conviction for the crime of non-capital first-degree murder (RSA 630:l-a) after a trial bifurcated for separate determination of guilt and sanity.
Novosel v. Helgemoe,
In September 1975, the body of Kenneth Dunlap was disсovered in his apartment in Manchester, New Hampshire. Shortly thereafter, a warrant was issued for the arrest of the defendant, Joseph Lister, on a charge of first-degree murder. The authоrities were unable to locate the defendant until he was arrested in August 1978 in Massachusetts.
The defendant was returned to New Hampshire and his trial on the murder charge was set to begin on Septеmber 24, 1979. The first four days, September 24 to September 27, were devoted to various suppression motions, and the actual selection of jurors to sit on the case began on Septembеr 28. On that day, after five jurors had been selected, the defendant escaped from custody. The case was transferred to this court for a ruling on the question of whether the defendant cоuld be tried
in absentia, State v. Lister,
Upon remand, the Trial Court (Contas, J.) asked five jurors already selected and all the veniremen whether the fact that the defendant had escaped and would not be present at trial would prejudice or influence their consideration of the question of his guilt *606 or innocence. The five jurors, and all of thosе who were eventually selected as jurors, responded in the negative. The defendant argues that the trial court’s voir dire of the jurors, concerning the effect that his escape might hаve on their ability to impartially judge the defendant’s guilt or innocence, was insufficient to ensure their impartiality. See N.H. Const, pt. I, arts. 17 and 35; U.S. Const. amend. VI.
It is well settled that whether or not a prospective juror is free from prejudiсe is a determination to be made in the first instance by the trial court on voir dire,
State v. Gullick,
The defendant next contends that a gun which the police took from his car after his arrest in August 1978 should not have been admitted into evidence because it was obtained through an unlawful search of the car.
Testimony presented to the trial court indicates that at some point during the evening of his arrest, the defendant asked a custodial officer to bring his cat “Pepi” to him. He promised that in return for this favor, he would give the officer some important information. After the officer brought the cat to him and reminded the defendant of his promise, the defendant told the officer that there was a gun in a car that he had rented and abandoned in a nearby shopping mall. The police then went to the place indicated by the defendant, searched the car, and seized the gun. The defendant now contends that he never gave his consent to the search. We disagree. The defendant initiatеd the entire transaction with the police and volunteered the information about the car and
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the gun. Under these circumstances, it would have been superfluous for the police tо ask explicit permission to search the car. Because the defendant knowingly, freely and voluntarily consented to the search of the car and the seizure of his gun, the search аnd seizure were lawful and the gun was properly admitted into evidence.
See State v. Osborne,
We next consider whether the defendant’s objection to the trial court’s instruction to the jury on reasonable doubt is properly before us. When the trial court instructed the jury at the close of the evidence, defense counsel did not object to the reasonable doubt instruction given by the court. After thе jury had been deliberating for some time, at its request, the trial court repeated its reasonable doubt instruction in a form virtually identical to that which it had previously given the jury. At this point, the defendаnt objected for the first time to the court’s reasonable doubt instruction on the ground that by failing to repeat the entire charge to the jury, the court had taken the reasonable doubt instruсtion out of context and had emphasized what reasonable doubt was
not.
At the time, no claim was made that the court’s instruction impermissibly shifted the burden of proof to the defendant or in any way violated the requirements imposed by
State v. Wentworth,
The defendant next argues that the trial court erred in failing to give an instruction concerning the defendant’s failure to testify on his own behalf. He relies upon a decision of the United States Supreme Court, decided approximately one-and-one-half years after the trial in this case, which holds that a trial court must instruct the jury that no adverse inference may be drawn from the defendant’s failure to testify when such an instruction is properly requested by the defendant.
Carter v. Kentucky,
The defendant’s reliance upon
Carter
is misplaced. In spite of the fact that the defendant had absented himself from the trial before its evidentiary phase began, a request for an instruction on his failure to testify was not made until after the trial court had charged the jury. In this State, a defendant waives his right to a specific jury instruction unless the request is timely made.
See
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Superior Court Rules 72 and 62H;
State v. O’Brien,
After the guilt phase of the defendаnt’s bifurcated trial resulted in a guilty verdict, the insanity phase of the proceedings commenced. During these proceedings, the State, on cross-examination, posed hypothetical questions to the defendant’s psychiatric expert. Relying on
Connell v. Company,
The present case is to be distinguished from
Connell,
however, since the questions here were asked on cross-examination of the expert, not on direct examination.
Cf. Connell v. Company,
At the close оf the evidence in the insanity phase of the trial, the court instructed the jury that upon a finding of insanity the court would determine, “whether or not it [would be] dangerous for the defendant to go at large.” The defendant complains that the court’s instruction concerning the consequences of a finding of insanity violated the procedure outlined in
Novosel v. Helgemoe,
Moreover, even if the instruction was deficient, the effect of
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any error was minimized when the defendant’s counsel repeatedly emphasized that a finding of insanity would not mean that the defendant would “simply walk away.”
See Novosel v. Helgemoe,
Affirmed.