State v. PlummerState v. Plummer
- Reporters:
- , ,
- Before:
- Lampron
The defendant was indicted in February 1975 for the offense of recklessly causing the death of one Waldemar Buranen,
Three issues are presented on appeal. The first concerns the court’s admission of testimony by one Harold Smith that defend
The second issue raised concerns the admission of statements made by the deceased to a nurse at the hospital where he was taken three or four hours after he had been injured. These statements, in which the victim had described his assailant, were admitted under the res gestae exception to the hearsay rule. Defendant argues that, because of the lapse of time between the events and the statements, the deceased’s statements were not spontaneous or excited utterances which would properly qualify for admission under the res gestae rule. For reasons which follow, we hold there was no error in the admission of these statements.
The third issue is whether the trial court erred in excluding testimony that defendant’s drinking and his intoxication at the time of the events in question rendered his actions nonculpable because defendant was a chronic alcoholic. We hold that the trial court properly excluded this testimony under the circumstances of this case.
On the evening of January 20, 1975, defendant and the deceased were in defendant’s apartment on the first floor of the Colonial House in Newport. The two men had known each other for several weeks, spending most of their time together drinking. On this evening they were also drinking, along with defendant’s girlfriend, Marjorie Slocum, and various other people who came and went during the evening.
There was testimony that the two men had some arguments later on in the evening. Harold Smith, a resident of another first floor apartment, testified that around 12:30 a.m. or 1:00 a.m. on January 21, 1975, he heard what sounded like someone falling several times in defendant’s apartment. Marjorie Slocum, who had
At approximately 2:30 a.m. three people arrived at defendant’s apartment. At that time they found the deceased lying between the kitchen and the bathroom. He was injured, but conscious. Defendant told the visitors to get the deceased out of his apartment. Two of them helped the deceased up to his room on the second floor of the building. At about 4:00 a.m. these people called to report the deceased’s condition and to get an ambulance. Two police officers responded along with the ambulance and they helped transport deceased into the ambulance. The deceased arrived at Newport Hospital at about 4:30 a.m. He was attended to by a nurse, Paula Berquist, and a medic, Arthur Moilanen. The deceased spoke with both of them, volunteering information and responding to questions.
The deceased was later removed to Claremont General Hospital where he died on January 23, 1975. His injuries included eight or nine fractured and displaced ribs which had ruptured his left lung, causing it to collapse. The deceased, who was sixty-seven years old, also had marked arteriosclerosis of the coronary arteries and an enlarged “fatty” liver resulting from heavy drinking. Due to these conditions he was unable to survive the injuries to his lung, and the immediate cause of death was diagnosed as “[f]ractures, left ribs, 3-10, with hemothorax and lung contusion.”
The statements by the deceased to which defendant objects were made to the nurse and the medic while he was being taken from the ambulance to the hospital emergency room. The deceased had stated to the police that he had been beaten by a drinking “buddy”. On his own, and not in response to any question, the deceased stated to the nurse that he had been beaten by a man weighing about two hundred and twenty pounds. This description implicated defendant as his assailant. In order to fall within the res gestae exception to the rule excluding hearsay statements, it is necessary that the statement be made as a “spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event, and before he had time to contrive or misrepresent.”
Semprini v.
Railroad, 87 N.H. 279, 280, 179 A. 349, 350 (1935). The purpose of these requirements is to ensure reliability of the statements which would otherwise not be present for hearsay
From an examination of the record, it is apparent that the deceased lapsed in and out of consciousness during the period of time between his injury and the time he made the statements in question. The deceased was in a state of intoxication throughout this period, and due to the severity of the injuries was in considerable pain. On the basis of these facts there was evidence to support a finding by the trial court that the deceased’s statements were made under the influence of his beating. See Nawn v. Railroad, 77 N.H. 299, 91 A. 181 (1914); C. McCormick, Evidence § 297, at 704 (2d ed. 1972). Furthermore, other witnesses testified without objection, as to other statements made earlier by the deceased when he was being removed from defendant’s apartment and when he was being helped out of his own apartment to the ambulance. These statements were consistent with those objected to by defendant, and were further evidence of the reliability of the latter. The trial court did not abuse its discretion in permitting testimony as to the deceased’s statements describing his assailant. State v. Kenna, 117 N.H. 305, 374 A.2d 427 (1977).
Defendant called as a witness Dr. Nathan Brody, an expert in the field of alcoholism. The doctor defined an alcoholic as someone who “loses control in the use of alcohol” and was permitted to testify that defendant was a “classical chronic alcoholic.” Both he and the defendant testified as to the details of defendant’s history of drinking. Defendant and other witnesses also described defendant’s drinking on the evening of January 20, 1975, the evening of Buranen’s beating. The trial court did not, however, permit Dr. Brody to state any opinion as to “whether or not an alcoholic drinks voluntarily.” Dr. Brody’s proposed testimony would have been that defendant’s chronic alcoholism was primarily a physical addiction and that consequently his drinking was involuntary and free of culpability.
Secondly the defendant intended to show by evidence of Dr. Brody that his actions that night were not voluntary and therefore not subject to criminal liability.
Generally the defense of involuntary intoxication will only be considered when it is shown that the intoxication was the product of external pressures such as fraud, force, or coercion, or when the intoxication resulted from a medical prescription. See Paulsen, Intoxication as a Defense to Crime, 1961 U. Ill. L.F. 1, 18-19 (1961); Hall, Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045, 1054-57 (1944); Annot., 30 A.L.R. 761 (1924). In cases where the issue of involuntary intoxication by reason of duress has been raised, the courts have articulated the test for voluntariness in terms of whether the individual exercised independent judgment and volition in taking the intoxicant. Hanks v. State, 542 S.W.2d 413, 416 (Tex. Crim. App. 1976); Johnson v. Commonwealth, 135 Va. 524, 536, 115 S.E. 673, 675 (1923).
In
Powell v. Texas,
392 U.S. 514, 518 (1968), the court alluded to the testimony in the trial court by a fellow of the American Medical Association that there was no generally adopted definition of alcoholism. He also testified to the ongoing debate within the medical profession over whether alcohol is actually physically “ad-
In the instant case the testimony to be offered by Dr. Brody would have been that defendant’s alcoholism was a physical, not a mental, disease or addiction. For legal purposes, however, the determination of whether an individual has exercised independent judgment and volition in becoming intoxicated, or whether his intoxication was involuntary, necessarily involves a determination regarding his state of mind at the commission of the crime. In the course of his argument before this court, counsel for defendant characterized his client’s alcoholism as a “physical disease which affects the mind.”
Alcoholism may vary among individuals and different theories may characterize alcoholism as being physical, psychological, or sociological in nature.
See
Fingarette,
The Perils of Powell: In Search of a Factual Foundation for the “Disease Concept of Alcoholism”,
83 Harv. L. Rev. 793, 805 n.59 (1970). However, when evi dence of alcoholism is offered as a defense to the commission of a criminal act because it is involuntary,
In this state there are no legal rules which either define a mental disease or determine when a defendant’s actions are the product of such a disease. Rather these are questions of fact to be decided by the jury in each case. This unique approach to criminal insanity,
see
Reid,
Understanding the New Hampshire Doctrine of Criminal Insanity,
69 Yale L.J. 367 (1960), was first expressed in
State v. Pike,
49 N.H. 399 (1870), and
State v. Jones,
50 N.H. 369 (1871) , and is still a part of our criminal law.
See
Report of Commission to Recommend Codification of Criminal Law 30 (1969). Under our decisions insanity is not limited either as a matter of
Intoxication has been recognized in this state and elsewhere as a defense to a crime on the grounds of insanity in the form of dipsomania.
State v. Pike,
49 N.H. 399 (1870);
Commonwealth v. Ricard,
355 Mass. 509, 515, 246 N.E.2d 433, 437 (1969);
Salzman v. United States,
405 F.2d 358, 372 (D.C. Cir. 1968);
see
Paulsen,
supra
at 18-19. We hold that it is only when the defendant claims that his condition of chronic alcoholism constitutes a mental disease or insanity which renders him incapable of exercising his volition and thus constitutes a complete defense to an alleged criminal act that he will be allowed to present evidence of this condition. In order to do so defendant must first comply with the notice provisions of
In so holding we are mindful of the provisions of
Exceptions overruled.
Bois and Douglas, JJ., did not sit; the other concurred.