Opinion
No. 80-161
Decided August 10, 1981
1. Appeal and Error — Preservation of Questions — Failure To Brief Where defendant, in notice of appeal, alleged that confession should not have been admitted, but failed to address issue in his brief, supreme court regarded issue as having been waived.
2. Criminal Law — Sentence — Governing Law Where defendant found guilty of misdemeanor was sentenced to maximum term of imprisonment for a misdemeanor, with no part suspended, and to a period of probation, although he could not be subjected to additional period of incarceration for the offense if he violated probation, violation of probation could be punished by imposition of a fine; therefore, sentence of probation in addition to sentence of imprisonment did not lack enforcement mechanism and thus probation sentence was not invalid as inconsistent with statutory scheme. RSA ch. 651.
3. Constitutional Law — Double Jeopardy A new or additional sentence may be imposed upon a defendant who violates probation; the fifth amendment bar against double jeopardy does not limit a court to imposing only that portion of the original sentence which was suspended. U.S. CONST. amend. 5.
4. Constitutional Law — Double Jeopardy Where defendant was found guilty of misdemeanor and sentenced to maximum term of imprisonment for a misdemeanor and to a period of probation, with no part suspended, imposition of a fine upon violation of probation would not violate fifth amendment bar against double jeopardy. U.S. CONST. amend. 5.
5. Constitutional Law — Double Jeopardy Where defendant found guilty of misdemeanor was sentenced to maximum term of imprisonment allowed for a misdemeanor, with no part suspended, and to a period of probation, imposition of sentence of additional period of incarceration upon violation of probation would not be permissible because defendant had been sentenced to the maximum for the crime.
6. Appeal and Error — Preservation of Questions — Failure To Present Below Where trial court's comment, expressing satisfaction about witness, a six-year-old girl, being able to tell the truth, was clearly intended as a statement indicating that the girl was legally competent to testify and not as one endorsing her testimony and its credibility, and defense counsel took only a general exception rather than a specific objection which would have enabled the trial judge to consider any specific error alleged and to take appropriate remedial measures, the issue of the prejudicial effect of the statement of the judge was not properly before the supreme court.
7. Witnesses — Competency — Infants Question of competency of a young child to testify is one for trial court to determine, and supreme court will not disturb such determination absent an abuse of discretion.
8. Mental Health — Commitment — Determination In the determination of defendant's mental state, it is the judge or trier of fact who makes the decision and not the psychiatrist.
9. Mental Health — Commitment — Dangerous Sexual Offenders Where experts testified that, in their opinion, defendant did not fall within statutory definition of dangerous sexual offender and that he did not, or at best did not intend to, inflict any physical harm on his victims, trial court could, nevertheless, find the defendant to be a dangerous sexual offender; it is the trial court, not the expert witness, that applies the statute, makes the necessary findings and applies the law. RSA 173-A:2.
Gregory H. Smith, attorney general (Donald J. Perrault, assistant attorney general, on the brief and Martha V. Gordon, assistant attorney general, orally), for the State.
James E. Duggan, appellate defender, by brief and orally, for the defendant.
In this criminal case, the defendant, Nelson E. Perkins, was tried before a jury on a charge of aggravated felonious sexual assault, RSA 632-A:2 XI (Supp. 1979). The jury acquitted him of that charge but returned a guilty verdict on the lesser-included charge of sexual assault, RSA 632-A:4 (Supp. 1979), and the Trial Court (Cann, J.) deferred sentencing pending the defendant's evaluation at the New Hampshire Hospital. RSA ch. 173-A. After the evaluation was completed, a sentencing hearing was held and the trial court found that the defendant was a dangerous sexual offender. RSA 173-A:2. The court sentenced the defendant to the forensic unit of the State hospital for a period of twelve months and placed him on probation for a period of two years. No part of the defendant's sentence was suspended.
On this appeal, the defendant claims that: (1) it was error for the trial court to sentence him to the maximum term of imprisonment provided by law for the offense of which he was found guilty and to a period of probation where none of the commitment was suspended; (2) the trial court improperly endorsed the victim's credibility before the jury; (3) there was insufficient evidence to support the finding that the six-year-old victim was competent to testify; and (4) there was insufficient evidence to support the finding that the defendant was a dangerous sexual offender.
It is not necessary to relate the details of the incident upon which the criminal charge against the defendant was based in order to discuss the merits of his appeal. We do note, however, that the police obtained a signed confession from the defendant while he was under investigation. The confession was introduced at trial, and when the defendant filed his notice of appeal in this court, he alleged that the confession should not have been admitted. In his brief, however, the defendant did not address this issue, and we, therefore, regard it as having been waived. Moreover, our review of the record reveals that there was more than sufficient evidence to establish, beyond a reasonable doubt, that this confession was given voluntarily, knowingly and intelligently by the defendant. See State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 555-56 (1978).
The defendant first argues that the trial court could not lawfully impose a sentence of two years' probation when it had already imposed the maximum term of imprisonment for a misdemeanor, twelve months, with no part suspended. In support of his argument, the defendant claims "that probation, under such circumstances, lacks any enforcement mechanism and is therefore inconsistent with the statutory scheme [of RSA ch. 651]." We disagree.
The defendant was sentenced to a one-year term of imprisonment after being found guilty of a misdemeanor. Because that is the maximum term of imprisonment for a misdemeanor, RSA 651:1 II, the defendant cannot be subjected to additional periods of incarceration for this offense even if he violates probation. That is not to say, however, that a probation enforcement mechanism is not contemplated by RSA ch. 651. RSA 651:2 VII provides that "[w]hen a probation is revoked . . . the defendant may be fined, as authorized by paragraph IV, if a fine was not imposed in addition to the probation. . . ." Under paragraph IV a defendant may be fined up to $1,000 for a misdemeanor. The court may, therefore, enforce the probationary period by imposing a fine, not to exceed a total of $1,000, upon the defendant if he violates the terms of his probation.
As an alternative argument, the defendant contends that if such a fine were subsequently imposed, in the event he violates the terms of his probation, this would constitute double jeopardy because a suspended fine was not part of his original sentence. The defendant argues that upon revocation of probation a court cannot add to the sentence it originally imposed and can only impose that portion of the sentence which was suspended under the terms of the original sentence.
In 1943, a similar double jeopardy issue was before the United States Supreme Court in the case of Roberts v. United States, 320 U.S. 264 (1943). The Court, however, did not reach the double jeopardy issue raised in that case concerning the imposition of a new or additional sentence upon revocation of probation but based its decision on its interpretation of the then applicable federal Probation Act. Id. at 265. In a dissenting opinion, however, Justice Frankfurter and two other justices addressed the double jeopardy issue and concluded that the fifth amendment prohibition against double jeopardy does not prevent the imposition of a new sentence after a defendant violates probation. Id. at 273-77 (Frankfurter, J., dissenting).
[3-5] More recently, other courts have considered the question of whether a court may impose a new sentence upon a defendant who violates probation and held that a more severe sentence may be imposed when the defendant violates probation and that the courts are not limited to imposing only that portion of the original sentence which was suspended. Williams v. Wainwright, 493 F. Supp. 153, 155 (S.D. Fla. 1980); State v. Jones, 327 So.2d 18, 20 (Fla. 1976); Smith v. State, 261 Ind. 510, 513-15, 307 N.E.2d 281, 283 (1974). We similarly hold that no violation of the fifth amendment bar against double jeopardy has occurred in the present case. In the event that the defendant here violates probation, however, the trial court cannot sentence him to additional periods of incarceration because he has been sentenced to the maximum period of incarceration for the crime involved.
The defendant's next issue on appeal is the trial judge's statement during trial, in finding the six-year-old victim competent to testify, that "the court is satisfied that this witness will tell the truth." Defendant argues that the statement was highly prejudicial to him and constituted reversible error.
The defendant filed a pretrial motion for determination of the competency of this witness to testify. A hearing before Souter, J., resulted in a finding of competency. At trial, just before this witness was to testify, a bench conference was held concerning the administration of an oath to this witness and the court stated to counsel that "I think there ought to be some preliminary questions asked this girl as to whether she intends to tell the truth, if she knows the difference between right and wrong and importance to tell the truth." As a result, the prosecutor asked the girl several preliminary questions, eventually leading to the following colloquy:
"Prosecutor: [C]an you tell the truth for us today?
Witness: Mmmhmm, yup.
The Court: For the record, the Court is satisfied that this witness will tell the truth.
Prosecutor: Thank you, Your Honor.
Defense Counsel: Your Honor, note my exception.
The Court: Exception noted."
Taken in context, it is clear that the trial court's comment was intended as a statement indicating that the girl was legally competent to testify and not as one endorsing her testimony and its credibility. It is apparent that defense counsel took the comment in that light because he took only a general exception (preserving the defendant's objection to the determination that the girl was competent to testify) rather than a specific objection which would have enabled the trial judge to consider any specific error alleged and to take appropriate remedial measures. See State v. Kelly, 120 N.H. 904, 905, 424 A.2d 820, 821 (1980). Therefore, the specific point now being argued by the defendant is not properly before us. Wiggin v. Kent McCray Co., 109 N.H. 342, 345, 252 A.2d 418, 423 (1969).
The defendant next argues that it was error for the court to rule that the six-year-old victim was competent to testify. The question of the competency of a young child to testify, however, is one for the trial court to determine, and we will not disturb its determination absent an abuse of discretion. State v. St. John, 120 N.H. 61, 62-63, 410 A.2d 1126, 1127 (1980).
In this case, there was a pretrial hearing on this issue before Souter, J., and a separate determination by the trial court. In both instances, the child was found competent to testify. On the basis of our review of the record, we conclude that there was ample evidence to support both of these judicial determinations.
[8, 9] The defendant's final argument is that there was insufficient evidence for the trial court to find that the defendant was a dangerous sexual offender. RSA 173-A:2. In making its finding the trial court ruled that it was convinced beyond a reasonable doubt that the defendant was a dangerous sexual offender even though the court was aware that such a finding did not require that high a burden of proof. Grindle v. Miller, 119 N.H. 214, 218, 400 A.2d 787, 791 (1979). The defendant, nevertheless, argues that because both experts testified that, in their opinion, the defendant did not fall within the statutory definition of a dangerous sexual offender and that he did not, or at best did not intend to, inflict any physical harm on his victims, that the trial court could not find the defendant to be a dangerous sexual offender. We disagree.
In determining matters such as the defendant's mental state, we have repeatedly stated "that it is the judge [or trier of fact] who makes the decision and not the psychiatrist." State v. Hudson, 119 N.H. 963, 967, 409 A.2d 1349, 1351 (1979); see State v. Rullo, 120 N.H. 149, 152, 412 A.2d 1009, 1011-12 (1980). We again stress that it is the trial court, not the expert witness, that applies the statute, makes the necessary findings and applies the law.
With respect to whether the defendant presented a physical danger to his victim, the psychologist testified that persons suffering from the type of sexual deviation which the defendant experiences "are obviously dangerous to their victims." We have reviewed the entire record and find that it amply supports the trial court's findings.
In the context of the court's determination that the defendant was a dangerous sexual offender, the defendant suggests that, because both experts testified that he was not amenable to treatment, it was error for the court to find him to be a dangerous sexual offender and order treatment for that status. "This argument is without merit." State v. Preston, 121 N.H. 147, 152, 427 A.2d 32, 35 (1981).
Affirmed.
BATCHELDER, J., did not sit; the others concurred.