Opinion
No. 83-439
Decided June 19, 1985
1. Indictment and Information — Duplication of Charges — Generally An indictment is duplicitous when it charges more than one offense in one count.
2. Indictment and Information — Duplication of Charges — Generally Duplicitousness in an indictment runs afoul of the requirement that an indictment inform a defendant of the charge he must meet, so that he can prepare for trial and plead any ensuing verdict as a protection against double jeopardy in any subsequent prosecution.
3. Indictment and Information — Duplication of Charges — Particular Cases Indictment charging felony offense of assault by a prisoner and using language that was consistent with misdemeanor offense of simple assault did not charge two different offenses and was not, therefore, duplicitous, since the common law assault necessary to prove felony offense of assault by a prisoner included purposely causing bodily injury, which is the definition of misdemeanor offense of simple assault under the Criminal Code. RSA 622:13 (Supp. 1983), 631:2-a (Supp. 1983).
4. Indictment and Information — Duplication of Charges — Particular Cases Indictment was not duplicitous as charging the felony offense of assault by a prisoner and also charging misdemeanor offense of simple assault, since the indictment could only be read to charge the felony. RSA 622:13 (Supp. 1983), 631:2-a (Supp. 1983).
5. Jury — "Voir Dire" — Scope The threshold scope of juror voir dire is established by the statute governing examination of jurors. RSA 500-A:12.
6. Jury — "Voir Dire" — Scope Statutorily prescribed inquiries of juror voir dire must be supplemented with questions about the presumption of innocence and the burden of proof in criminal cases, as required by State v. Cere, 125 N.H. 421 (1984).
7. Jury — "Voir Dire" — Purpose The purpose of questions asked during juror voir dire is to elicit the surface information necessary to furnish an intelligent basis for counsel's exercise of challenges.
8. Jury — "Voir Dire" — Discretion of Court As a general rule, decisions about the need to supplement the basic voir dire questions are left to the sound discretion of the trial court.
9. Jury — "Voir Dire" — Discretion of Court Trial court's judgment as to the need to supplement the basic voir dire questions will not be revised unless it is manifestly against the law and the evidence.
10. Jury — "Voir Dire" — Prejudice A defendant is not always entitled to have questions posed on voir dire specifically directed to matters that conceivably might prejudice veniremen against him.
11. Jury — "Voir Dire" — Prejudice A defendant is entitled to supplemental questions on voir dire when there is an articulable factual basis, specific to a venire panelist or to the circumstances of the case, for concluding that one or more members of the venire panel may be prejudiced or otherwise incompetent.
12. Jury — "Voir Dire" — Prejudice When widespread publicity precedes a criminal trial, there is a factual basis for concluding that members of the venire panel may be prejudiced or otherwise incompetent, and therefore a defendant is entitled to supplemental questions on voir dire.
13. Jury — "Voir Dire" — Discretion of Court Trial court's action was consistent with standards applicable to the allowance of supplemental questions on juror voir dire, and the trial court did not abuse its discretion in denying all but one of defendant's requests for such questions.
14. Jury — "Voir Dire" — Views on Drinking General possibility that a juror's views on drinking could influence his judgment in a case involving drinking does not require particular inquiry on voir dire.
15. Jury — "Voir Dire" — Prejudice General possibility that members of venire panel in a criminal case might have been victims of crime and thereby prejudiced against defendant was reasonably dealt with by the general voir dire questions, asking whether the members of the panel had formed any opinion about the case or had any prejudice that might affect consideration of the case. RSA 500-A:12, I(d), (e).
16. Assault and Battery — Evidence — Particular Cases Where indictment charging assault by a prisoner alleged that bodily injury to victim had consisted of soreness and bruises to the groin, knee and neck, it was not necessary at trial to prove every detail of these injuries; so long as there was some proof of bodily injury as alleged, cumulative or superfluous details were properly disregarded as surplusage. RSA 622:13 (Supp. 1983).
17. Assault and Battery — Evidence — Particular Cases Where indictment charging assault by a prisoner alleged that bodily injury to victim had consisted of soreness and bruises to the groin, knee and neck evidence at trial was sufficient proof of bodily injury as alleged in the indictment. RSA 622:13 (Supp. 1983).
Gregory H. Smith, attorney general (T. David Plourde, assistant attorney general, on the brief), by brief for the State.
Joanne S. Green, assistant appellate defender, of Concord, by brief for the defendant.
A jury found the defendant guilty of the offense of assault committed by a prisoner. RSA 622:13 (Supp. 1983). On appeal he argues that the Superior Court (Flynn, J.) erred in failing to quash the indictment as duplicitous, in refusing to ask certain questions in voir dire of the prospective jurors, in failing to dismiss or direct a verdict of acquittal for insufficient proof of bodily injury, and in failing to give a requested instruction on proof of bodily injury. We affirm.
On April 4, 1983, the defendant was an inmate of the New Hampshire State Prison halfway house, Shea Farm. He worked in the community by day and returned to the supervised farm at night.
If such inmates are found to have consumed alcohol, they are returned to the prison. When the defendant returned to the farm on the night in question, the dormitory supervisor smelled alcohol on his breath. The supervisor administered a breath-alcohol test using an "alco-sensor" device, which gave a positive reading. The supervisor called in a counselor, John Boardman, who again administered an alco-sensor test with a positive result. Boardman took the defendant into an office where he administered two more tests with like results, whereupon he told the defendant that he would return him to the prison.
Boardman then handcuffed the defendant's hands in front. When the defendant tried to leave the office, Boardman grabbed him. The defendant responded by swinging his arms and striking Boardman's head. When Boardman tried to lead the defendant back to a chair, the defendant, wearing heavy boots, kicked him in the groin. Boardman bent forward, and the defendant hit his head again.
The indictment returned against the defendant charged that he "did, while under sentence . . . for not less than 3 1/2 years nor more than seven years . . . at the New Hampshire State Prison, purposely cause bodily injury to . . . Boardman: to wit: the [defendant] did strike . . . Boardman with his hands and feet causing soreness and bruises to Boardman's groin, knee and neck." Following this language in the indictment there was a citation to RSA 622:13 (Supp. 1983) (providing that "assault" by a prisoner is a felony), and a notation that the charge was a felony. The case was tried to a jury, which returned a verdict of guilty.
[1, 2] The defendant's first claim of error is that the trial court should have quashed the indictment as duplicitous. An indictment is said to be duplicitous when it charges more than one offense in one count. R. McNAMARA, 1 NEW HAMPSHIRE PRACTICE, CRIMINAL PRACTICE AND PROCEDURE 315, at 199 (1980); see State v. Hoyt, 114 N.H. 256, 257, 319 A.2d 286, 287 (1974). The duplicitousness runs afoul of the requirement that an indictment inform a defendant of the charge he must meet, so that he can prepare for trial and plead any ensuing verdict as a protection against double jeopardy in any subsequent prosecution. See State v. Shannon, 125 N.H. 653, 663-64, 484 A.2d 1164, 1172-73 (1984).
In this case, the defendant argues that it was duplicitous to charge "assault" under RSA 622:13 (Supp. 1983) by using indictment language consistent with RSA 631:2-a, I(a) (Supp. 1983), the Criminal Code provision defining the misdemeanor of simple assault. The defendant points out that RSA 622:13 (Supp. 1983) does not define "assault," which must therefore be taken to mean assault as it existed at common law, since RSA 622:13 was in effect before the enactment of the present Criminal Code in 1973. In effect, he argues that common law assault and simple assault under the Code are differently defined, so that to charge both is to charge two different offenses.
The defendant is certainly correct that the indictment charges assault under RSA 622:13 (Supp. 1983) and also tracks the Code language of RSA 631:2-a, I(a) (Supp. 1983), which defines simple assault as purposely causing bodily injury. This does not, however, create any ambiguity or duplicitousness in identifying the elements of the offense. There would be duplicitousness only if purposely causing bodily injury had not constituted assault at common law. On the contrary, however, common law assault did include purposely causing bodily injury, see State v. Cornwell, 97 N.H. 446, 448, 91 A.2d 456, 458 (1952), just as it is defined under the Code. RSA 631:2-a, I(a) (Supp. 1983).
Since there is no basis to find duplicitousness from any definitional inconsistency as between the terms used, the only remaining question is whether the indictment could reasonably be read to charge offenses with two separate gradations of severity, the felony of RSA 622:13 (Supp. 1983) and the misdemeanor of RSA 631:2-a, I(a) (Supp. 1983). It is clear that the answer is no, and that the indictment charges only the felony of assault by a prisoner. The only possible reason for alleging that the defendant was under sentence to the prison was to satisfy that element of the felony offense; it would have been irrelevant in charging simple assault. Thus, the indictment can only be read as charging the felony. This conclusion is supported by the citation to the felony statute in the indictment itself and by the very fact that the charge was stated in a grand jury indictment rather than a complaint or information. See State v. Hoyt, supra at 257-58, 319 A.2d at 287. Therefore, the motion to quash was rightly denied.
The defendant's next assignment of error is that the trial court abused its discretion by refusing to ask as broad a range of questions on jury voir dire as the defendant had requested. Originally the defendant had requested the court to ask the members of the venire panel whether any of them had been employed as correctional officers or had been victims of crime, about the relative weight they might give to testimony of a correctional officer and a prisoner, about the civil rights consequences of imprisonment and about views on drinking. The court did inquire about prior employment in corrections but refused the other requests. On appeal the defendant argues that the court erred in refusing to make specific inquiries about the panelists' possible experiences as victims of crime and about their views on drinking.
[5-7] The threshold scope of juror voir dire is established by RSA 500-A:12. See State v. Goding, 124 N.H. 781, 783, 474 A.2d 580, 581 (1984). But we have recently required that the statutorily prescribed inquiries be supplemented with questions about the presumption of innocence and the burden of proof in criminal cases. State v. Cere, 125 N.H. 421, 424-25, 480 A.2d 195, 198 (1984). The purpose of all such questions is to elicit the "surface information necessary to furnish an intelligent basis for counsel's exercise of challenges." State v. Goding, supra at 783, 474 A.2d at 581.
[8, 9] As a general rule, decisions about the need to supplement the basic voir dire questions are left to the sound discretion of the trial court. State v. Sullivan, 121 N.H. 301, 303, 428 A.2d 1247, 1249 (1981); State v. Dunbar, 117 N.H. 904, 905, 379 A.2d 831, 832 (1977); Ristaino v. Ross, 424 U.S. 589, 594 (1976). Cf. State v. Goding, supra at 784, 474 A.2d at 581 (refusal to exercise any discretion is abuse of discretion). We will not revise the trial court's judgment "unless it is manifestly against the law and the evidence." State v. Conklin, 115 N.H. 331, 337, 341 A.2d 770, 775 (1975).
[10-12] In applying these rules, however, certain more definite standards have emerged. We have held that "[t]he Constitution does not always entitle a defendant to have questions posed . . . specifically directed to matters that conceivably might prejudice veniremen against him." State v. Gullick, 120 N.H. 99, 103, 411 A.2d 1113, 1115-16 (quoting Ristaino v. Ross, supra at 594), cert. denied, 449 U.S. 879 (1980). We have, however, found an entitlement to supplemental questions when there is an articulable factual basis, specific to a venire panelist or to the circumstances of the case, for concluding that one or more members of the venire panel may be prejudiced or otherwise incompetent. We found such a basis, for example, when counsel gave the court reason to believe that one or more panel members had been disqualified for cause in a previous case. State v. Cere supra. And such a factual basis is encountered as a matter of course when widespread publicity precedes a criminal trial. See State v. Laaman supra; Ham v. South Carolina, 409 U.S. 524 (1973). Cf. Ristaino v. Ross, supra at 596 (supplemental voir dire required when circumstances "strongly suggested the need"), and supra at 598 (not required when there is no "significant likelihood" of prejudice).
[13-15] Applying our standards, it is clear that there was no abuse of discretion in the trial court's response to the defendant's requests. The court addressed the requests and granted one of them. The other requests that the court denied were not supported by any articulable factual basis for concluding that there were special problems involving one or more jurors that would warrant inquiry beyond customary voir dire. Rather, the requests were predicated on mere possibilities. The general possibility that a juror's views on drinking could influence his judgment does not require particular inquiry. See State v. Dunbar supra. And the general possibility that members of the panel might have been victims of crime and thereby prejudiced was reasonably dealt with by the general voir dire questions, asking whether the members of the panel had formed any opinion about the case or had any prejudice that might affect consideration of the case. See RSA 500-A:12, I(d) and (e).
While we find no abuse of discretion in refusing to extend the scope of voir dire in the present case, we do not wish to promote a grudging reception to requests for supplementary questions in future cases. Although the need for extra inquiry may not seem insistent, in a close case a few extra questions are better than the risks of appellate litigation. Suffice it to say that there is a happy middle ground between pointless inquiry and "specific questions [that] may activate latent . . . bias in certain prospective jurors or . . . insult others without uncovering evidence of bias in hard-core bigots who refuse to acknowledge their prejudice." Commonwealth v. Lumley, 367 Mass. 213, 217, 327 N.E.2d 683, 686 (1975) (footnote omitted); see State v. Sullivan, 121 N.H. at 303, 428 A.2d at 1249.
Each of the defendant's two remaining claims on appeal concerns the sufficiency of the evidence to prove the element of bodily injury. The first of these claims was raised on the defendant's successive motions for dismissal and for directed verdict for failure to prove injury. The defendant argues that these motions were improperly denied because there was no evidence of some of the injuries specified in the indictments, and insufficient evidence of any injury at all. These points are not well taken.
Although the indictment alleged that bodily injury had consisted of "soreness and bruises to Boardman's groin, knee and neck," it was not necessary to prove every detail of these injuries as alleged. So long as there was some proof of bodily injury as alleged, cumulative or superfluous details were properly disregarded as surplusage. State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 697 (1973).
In this case there was ample evidence for some of the bodily injury alleged. As we have noted before, there was evidence that the defendant had struck Boardman twice about the head by swinging his shackled hands and had kicked him in the groin with a heavily booted foot. Boardman testified that after the defendant had kicked him, Boardman had reacted by bending forward and moving one hand to the groin. Considering this evidence "`in the light most favorable to the State with all reasonable inferences therefrom,'" State v. Holt, 124 N.H. 645, 647, 474 A.2d 1031, 1033 (1984) (quoting State v. Canney, 112 N.H. 301, 303, 294 A.2d 382, 383 (1972)), the jury could reasonably infer that the affected portions of the victim's body were sore and therefore injured as alleged. Thus the evidence was sufficient proof of bodily injury as alleged in the indictment.
The defendant's last claim of error simply raises the same issue in different guise. He requested a jury instruction that would have required the State to prove every specification of injury stated in the indictment. Since, as we have noted, the allegations of injury included surplusage, the court properly denied the request.
Affirmed.
All concurred.