Merrimack

No. 7189

#### State of New Hampshire v. Viktor Novosel

June 5, 1975

*Warren B. Rudman,*attorney general, and *Robert V. Johnson II,*assistant attorney general, by brief for the State.

*Carroll F. Jones*and *Leonard Merski*by brief for the defendant.

Per curiam.

The main issues in this second-degree murder case are (1) the constitutionality of RSA 651:8 and :9 which permit the grand jury to omit to indict for the reason of insanity, and in such case allow the court, after finding it to be dangerous for defendant to go at large, to commit him to the prison or the State hospital for life unless sooner released or transferred; and (2) whether, when there is a question of insanity of the defendant, the trial court has discretion to order a bifurcated trial.

Defendant in January 1975 was indicted for second-degree murder alleged to have been committed by means of firing a pistol on December 24, 1974. The State was granted a pretrial psychiatric examination, and in response to the State’s motion *303defendant’s counsel filed notice of intent to rely on the defense of insanity as well as other defenses in accordance with Superior Court Rule 90-C and -D. RSA 628:2. The question of competency to stand trial was also raised by the State, but neither side moved for a hearing on that issue and the trial court decided not to conduct a hearing sua sponte. *See Drope v. Missouri,*420 U.S. 162 (1975).

Defense counsel informed the trial court that defendant did not want to raise insanity as a defense and therefore had not signed the notice of intent filed by counsel. This notice has now been withdrawn. State’s counsel indicated that the State would produce evidence of insanity at the trial and the defense moved for a bifurcated trial which the State opposed.

The State moved that the grand jury be recalled so that it could determine whether, in view of presently available evidence, it would omit to indict by reason of insanity under RSA 651:8. Defense counsel objected and raised the question of the constitutionality of RSA 651:8 and :9.

All questions of law raised by the various motions of the parties were reserved and transferred without ruling by *Keller,*C.J.

The trial court in its discretion has the authority to reconvene the grand jury as the State requests. If the grand jury should omit to find an indictment for the reason of insanity or mental derangement, and so certify to the court under RSA 651:8, committal under RSA 651:9 would require a due process hearing in accordance with RSA 135:30-a (Supp. 1973). Consequently we hold RSA 651:8 and :9 to be constitutional.

We also hold that the trial court can in its discretion order a bifurcated trial reserving the issue of insanity at the time of the alleged offense to be determined at a later trial in the event the jury finds defendant committed the acts charged. Such bifurcation involves the exercise of the discretion which trial judges have always had to determine “the manner and timing of the trial of all or part of the issues in an action ... *.’’Jamestown Mut. Ins. Co. v. Meehan,*113 N.H. 639, 641, 312 A.2d 689, 691 (1973). No reasons exist for prescribing a different rule in criminal cases than in civil so long as due process is not denied the defendant. *See*Comment, *Due Process and Bifurcated Trials,*66 Nw. U.L. Rev. 327 (1971); *State v. Shaw,*106 Ariz. 103, 471 P.2d 715 (1970).

*Remanded.*

*309D. Alan Rock, Senator, District 12, filed memorandum.

Philip R. Currier, Representative District 15, filed memorandum.

Hat Enterprises, Inc., of Nashua, New Hampshire, filed memorandum.

*328William C. Whittemore, staff attorney for Mobil Oil Corporation, filed memorandum of law.

Stacey W. Cole, executive director of New Hampshire Petroleum Council, filed memorandum.

Robert T. Haslam, senior public relations representatives for Exxon Company, U.S.A., filed memorandum.

J. William Dalgetty, regional attorney for Mobil Oil Corporation, filed memorandum.