State v. Dukette
| Decision Date | 28 September 1973 |
| Docket Number | No. 5961,5961 |
| Citation | 309 A.2d 886,113 N.H. 472 |
| Parties | STATE of New Hampshire v. Earl DUKETTE. |
| Court | New Hampshire Supreme Court |
Warren B. Rudman, Atty. Gen., and Robert V. Johnson II, Asst. Atty. Gen., for the State of New Hampshire.
Wyman, Bean & Tefft, Manchester, (Arthur E. Bean, Jr., orally), for the defendant.
Defendant was convicted of the offense of statutory rape, allegedly committed on Mary Jane Seeley. Trial by jury was held before Bownes, J., who reserved and transferred defendant's exceptions. Prior to argument in this court the case was returned to the superior court for hearing on a motion for a new trial based upon newly discovered evidence and a claim that the prosecution suppressed evidence favorable to the accused. This motion was heard by Flynn, J., on April 7, 1972, who denied the motion for a new trial and transferred the defendant's exception. Counsel now representing the defendant did not represent him at the trial and the defendant has been on bail during these proceedings.
The evidence in the case disclosed a tangled web of relationship between the defendant, Mary Jane, and her mother, Agnes Seeley. It appeared that the defendant had entered into an extra-marital liaison with Agnes that began prior to the birth of Mary Jane and which persisted until shortly before he was charged with rape.
Agnes Seeley testified that the defendant was intimate with her for many years until shortly before his arrest for the offense charged here. Some time after Mary Jane was fourteen years old, the defendant had told her that he was her father and Agnes Seeley had always believed this to be so. Subsequent to defendant's telling Mary Jane he was her father, he took a greater interest in her personal life; taking her into his home where he lived with his wife and sons, in his car, and staying from time to time at the Seeley home. Mary Jane testified that defendant told her he was her father and produced in court a number of affectionate notes from the defendant signed 'Pa'. Mary Jane testified that the defendant first had intercourse with her on the date alleged in the indictment and that he continued to have intercourse with her until some time after she became pregnant.
Agnes Seeley having learned of her daughter's pregnancy took her to a doctor. The defendant was named in a bastardy complaint and subsequently he was indicted for two counts of incest and statutory rape. As a result of blood tests which were taken of the defendant, Mary Jane and Agnes, it was stipulated by the prosecution and defense counsel that the defendant could not be the father of Mary Jane, and therefore the incest indictments were nol-prossed. However, since blood tests of the defendant, Mary Jane, and her child, did not eliminate the defendant as a possible father, the bastardy complaint remained outstanding at the time of the trial.
The defendant took the stand and admitted his intimacy with Agenes Seeley but denied that he had ever had intercourse with Mary Jane. He agreed that he had referred to himself as her father, but he had done this with all the Seeley children because they were fatherless. He testified that he had finally decided to return to his wife and so informed Agnes Seeley. An argument ensued during which he told Agnes he would not marry her and she then became angry and said: The defendant testified that he retorted: 'You might try a blood test.' and then walked out the door.
All of the foregoing evidence including the nol-prossed incest indictments, the bastardy complaint and the results of all blood tests were introduced before the jury. Understandably, present counsel for the defendant urges us to rule some of this evidence irrelevant to the issue of defendant's guilt and prejudicial to his case. There must be a new trial in this case for reasons hereinafter set forth, but we are not disposed to rule on the specific exceptions to admission of evidence except to hold that in view of the way the defense was conducted all evidence was properly admitted in the trial, as held, even though in a different trial some of the evidence objected to might be well excluded. The defense tacties at the trial may best be described as freewheeling. The result of this defense was to thrust matters upon the jury that were irrelevant and prejudicial and to make relevant evidence offered by the State in answer to the defense.
The denial of the motion for a new trial presents a more serious question. Defense counsel in preparation for trial took the deposition of both the complainant and her mother. In answer to questions directed at whether her first intercourse with the defendant occurred when she was fifteen or when she was sixteen, the complainant betrayed some confusion on dates. The deposition was used by defense counsel to attack the credibility of complainant's testimony that the offense occurred before she was sixteen.
In reviewing the file for the appeal to this court, the assistant attorney general in charge of the case found a written statement of the complainant dated prior to the indictment. After consultation with the attorney who had prosecuted the case and with his consent, he gave a copy of this statement to the then attorney for the defendant. This statement was the basis of defendant's motion for a new trial. At the hearing on this motion, counsel for the prosecution and defense at the trial both testified. The trial court found that the complainant's statement was withheld in good faith from defendant's counsel during and before trial, that it might possibly have been useful to the defense, but that it is not probable that a different verdict would be reached upon another trial. At no time did the trial defense counsel ever request production by the State of any statements given by the complainant.
The statement contained language that the defense now claims would have affected the verdict in that Mary Jane stated she did not bleed until a date after she was sixteen 'when he (the defendant) finally succeeded.'
Prosecuting counsel at the trial testified at the hearing on the motion for a new trial that he did not feel the statement was exculpatory since medical texts state that rupture of the hymen does not necessarily occur the first time that a girl has sexual intercourse, and there was no evidence that rupture of the hymen was the cause of her bleeding. Counsel further testified that he would have produced the statement, at any time, had it been requested by defense counsel. Defense counsel, at the trial,...
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...process and requires a new trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also State v. Dukette, 113 N.H. 472, 309 A.2d 886 (1973). This issue of nondisclosure arose at the hearing on motion for new trial but was denied because the trial judge found th......
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