Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2005-444 THE STATE OF NEW HAMPSHIRE v. STEPHEN J. GOUPIL Argued: July 20, 2006 Opinion Issued: September 28, 2006 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant. GALWAY, J. The defendant, Stephen J. Goupil, was convicted in Superior Court (Smukler, J.) of five counts of aggravated felonious sexual assault, see RSA 632-A:2, I(c) (Supp. 2005), and one count of theft by unauthorized taking, see RSA 637:3 (1996). The defendant appeals the denial of his pretrial motions to suppress, the admission of photographic evidence and exclusion of demonstration evidence at trial, the denial of his motions to dismiss and for directed verdict, and the denial of his motions to set aside the verdict based upon alleged juror misconduct. We affirm. The jury could have found the following relevant facts. At the time of the incident, the victim lived in a first-floor apartment in Laconia. In the early

morning of April 23, 2004, two men broke into her apartment and entered her bedroom. They repeatedly punched her in her face, head, neck and back. The victim was screaming and attempting to defend herself when one of the men placed a knife to her neck and said, "[S]hut up, stop screaming or . . . you're going to f---ing die." The men continued to threaten the victim and she stopped screaming. They blindfolded and gagged her, and then searched her apartment. The first assailant, the man with the knife, then straddled her while she lay on the bed and began to ask personal questions about her sexual past. He removed her clothing and forced her into the shower. The victim, who was still blindfolded, could see that the first assailant was Caucasian. He then removed his own clothes and got into the shower, where he fondled her vagina. The victim and the first assailant returned to the bedroom where she complied with his order to lie down on the bed. The assailant told her to remain quiet and keep her eyes closed, after which he removed the blindfold. The victim testified that she was still in shock and "didn't know what was going to happen. I still didn't know if I was going to get cut with the knife, I still didn't know if I was going to live or die. The one thought I know I had, I remembered in the back of my mind I wanted to keep myself alive and just try to survive this ordeal." The first assailant then sexually assaulted the victim. While he was on top of her, she opened her eyes and saw a "red and black tribal looking tattoo" on his left upper arm. Once the first assailant stopped sexually assaulting the victim, he ordered her to have sex with "Corey," the second assailant. After Corey sexually assaulted her, the first assailant said, "[A]lright, we're done now." He then ordered the victim to turn around and look at the wall. When she complied, she noticed that the second assailant was standing in the doorway holding a knife and pointing it at her. Later, the first assailant asked the victim where her car keys were and she told him. He then blindfolded her, picked up her cordless phone, and told her to not get up or say anything for five minutes to give them time to leave. After she heard the assailants begin to drive away, she looked out the window and watched them drive down the street in her car. The victim ran to a neighbor's apartment for help; the neighbor called 911. An ambulance took the victim to Lakes Region General Hospital, where evidence was collected using a sexual assault kit, and she was treated and released. The victim then gave a detailed tape-recorded statement to Detective Jeffrey Stiegler at the Laconia police station. During that interview, she stated that she recalled seeing a tattoo on the left bicep of the smaller of the two assailants that was red and black and looked like a tribal design. She also stated that the two assailants were white, and that the first assailant had a tattoo, was shorter than the other, was the leader, and did most of the talking.

2

These were the only identifying statements the victim made with regard to her assailants. Later that morning, Detective Sergeant William Clary began to investigate the home invasion and sexual assaults. Based upon information developed during the investigation, he, Stiegler and another Belmont police officer went to interview the defendant at his grandmother's house in Belmont. The defendant's grandmother answered the door and the officers identified themselves and asked to speak with the defendant. She let the officers into the house, told them that the defendant was sleeping and went to wake him. When the defendant entered the kitchen, Clary noticed that the defendant had a red and black tattoo on his shoulder. Clary, Steigler and the defendant were seated at the kitchen table while the other police officer and the grandmother were standing in the kitchen. The officers asked the defendant if he would speak with them and he agreed. They explained that they were investigating a burglary, sexual assault and theft of a motor vehicle that had occurred in Laconia. During the conversation, the defendant stated that he had been with his cousin, Douglas Jenot, that morning but was unable to account for his whereabouts between 1:30 a.m. and approximately 6:30 a.m. The officers asked the defendant if they could take a photograph of his tattoo and if he would give them a hair sample; he consented to both. However, he refused the officers' request to obtain a DNA sample by swabbing the inside of his mouth. When it became clear that the defendant would give the officers no further information, they terminated the interview, which did not exceed fifteen minutes. On April 27, the victim again met with Stiegler. Stiegler showed her the photograph of the defendant's tattoo. She was not informed of, and did not know, the identity of the person whose arm and tattoo were depicted in the photograph. Nor were there any identifying markers on the photograph. The victim was asked if the tattoo was the same one she saw when she was attacked. She was unable to positively identify the tattoo. Consistent with the statement she gave to Steigler during that meeting, the victim testified at trial that when shown the photograph of the tattoo, it looked "somewhat familiar" in that it was red and black and had a tribal design. However, she also testified that she did not remember seeing a bulldog in the tattoo on the first assailant's arm. On May 5, Steigler obtained a search warrant to obtain a DNA sample, in the form of a saliva swab to be taken from the defendant. The DNA in the sperm collected from the victim matched the defendant's DNA. On May 11, 2004, the defendant and Douglas Jenot were both arrested. The police officer who booked Jenot testified that Jenot had no tattoos.

3

The defendant was indicted on five counts of aggravated felonious sexual assault, one count of burglary, and one count of theft by unauthorized taking. Prior to trial, he moved to suppress: (1) statements that he made at his grandmother's home; (2) the photograph of the tattoo on his arm; and (3) the DNA evidence obtained from the saliva swab. After a three-day evidentiary hearing, the trial court denied the motions. A six-day jury trial was held in March 2005. At the close of the State's case, the defendant moved to dismiss the indictments, and the court denied the motion. The defendant was convicted of five counts of aggravated felonious sexual assault and one count of theft by unauthorized taking, and acquitted of burglary. Soon after the jury returned the verdicts, the trial court was informed that prior to jury selection, Juror 2

Download 2005-444, STATE OF NH v. STEPHEN J. GOUPIL.pdf

New Hampshire Law