State v. Dukette, 80-318
| Decision Date | 07 April 1982 |
| Docket Number | No. 80-318,80-318 |
| Parties | The STATE of New Hampshire v. Wilfred J. DUKETTE. |
| Court | New Hampshire Supreme Court |
Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on the brief and Martha Gordon, Asst. Atty. Gen., orally), for the State.
Fisher, Parsons & Moran, Dover (Ronald B. Willoughby, Dover, on the brief and orally), for defendant.
The defendant was convicted of aggravated felonious sexual assault, RSA 632-A:2 (Supp.1981), after trial by jury in the Strafford County Superior Court (Goode, J.). On appeal to this court, he raises numerous issues, only a few of which we consider as having sufficient merit to warrant more than passing reference. For the reasons which follow, we affirm.
Briefly stated, the evidence produced at trial considered in the light most favorable to the State, State v. Reardon, 121 N.H. 604, 605, 431 A.2d 796, 797 (1981) proved the following. During the night of September 7, 1979, the prosecutrix was at a Dover nightspot with a number of acquaintances. Shortly before midnight, the defendant approached the prosecutrix and told her that a friend of hers who had left earlier suggested that he give her a ride home. She accepted the offer, and was given a ride home on the defendant's motorcycle. The defendant invited himself up to the prosecutrix's apartment, where he remained for only fifteen minutes because the prosecutrix and her roommate objected to his behavior and continued presence. As the defendant was leaving, the prosecutrix, concerned that he might pass out due to the alcohol he had been drinking and that he might remain inside the house, accompanied him down the stairs to the main door of the apartment house. After the prosecutrix stopped at the door, the defendant grabbed her around the throat, pushed her outside into a nearby field, and raped her. She ultimately escaped from the defendant and ran, partially unclad, to her apartment. She subsequently called the police from a neighbor's phone.
Even though the victim knew her assailant by name, the police conducted a photographic lineup on the morning of September 8, 1979. The prosecutrix unhesitatingly selected the defendant's photo from the array and identified him as her assailant.
The first issue raised by the defendant concerns the sufficiency of the indictment. He contends that because the indictment does not specifically allege that the victim did not consent to the act, it is fatally defective.
The indictment against the defendant states, in relevant part, that he "did knowingly engage in sexual penetration with another person, not his wife, by overcoming the victim through the actual application of physical force in that the said Wilfred Dukette did grab [the prosecutrix] by the throat, force her to the ground and [raped her]." (Emphasis added.) This language closely parallels the language of RSA 632-A:2 I (Supp.1981). "Generally, 'an indictment is sufficient if it uses the words of the proper section of the applicable statute.' " State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981) (citations omitted). In our view, the words in the emphasized portion of the indictment clearly informed the defendant that he was charged with committing the act without the victim's consent. We hold that the indictment was sufficient.
The defendant next argues that remarks made by the trial court during cross-examination of the victim were unfair and prejudicial to him. The record reveals that, after the victim testified that there had been no eyewitnesses to the assault and that the defendant had not attained sexual emission, the trial judge told the jury that the law did not require the State to present a witness corroborating the victim's testimony or to prove that emission took place, in order to obtain a conviction under RSA 632-A:2 (Supp.1981).
In effect, these remarks were instructions to the jury given during the course of the trial. Such...
To continue reading
Request your trial
-
Dukette v. Perrin
...discretion in instructing the jury, mid-trial, on New Hampshire law concerning corroboration and proof of emission. State v. Dukette, 122 N.H. 336, 444 A.2d 547 (1982). It further held that petitioner's failure to object or except to the reasonable doubt instruction given, an instruction wh......
-
Gaxiola v. State
...State, 77 Nev. 184, 189, 360 P.2d 836, 838 (1961); State v. Diamond, 50 Nev. 433, 437, 264 P. 697, 698 (1928). 20. State v. Dukette, 122 N.H. 336, 444 A.2d 547, 549 (1982) (stating that the trial judge did not abuse its discretion by instructing the jury, immediately after the victim testif......
-
State v. Dukette
...brief and orally), for the State. Bertram D. Astles, of Derry, by brief and orally, for defendant. SOUTER, Justice. In State v. Dukette, 122 N.H. 336, 444 A.2d 547 (1982), this court affirmed the defendant's conviction for aggravated felonious sexual assault perpetrated by means of physical......
-
State v. Glidden
...the evidence was introduced at the trial. The defendant has therefore failed to preserve the issue for appeal. State v. Dukette, 122 N.H. 336, 338, 444 A.2d 547, 549 (1982); State v. Cass, 121 N.H. 81, 82, 427 A.2d 1, 2 Moreover, the evidence was admissible because it was relevant to the pu......