State v. Fecteau, 89-301

• Decision Date: 08 March 1991
• Docket Number: No. 89-301,89-301
• Citation: 587 A.2d 591,133 N.H. 860
• Parties: The STATE of New Hampshire v. Gary FECTEAU.
• Court: New Hampshire Supreme Court

Page 591

587 A.2d 591

133 N.H. 860

The STATE of New Hampshire v. Gary FECTEAU.

No. 89-301.

Supreme Court of New Hampshire.

March 8, 1991.

John P. Arnold, Atty. Gen. (Jeffrey W. Spencer, on the brief and orally), for State.

Murphy, McLaughlin & Hemeon P.A., Laconia (Philip T. McLaughlin, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, Gary Fecteau, was convicted of one count of aggravated felonious sexual assault, one count of attempted aggravated felonious sexual assault, and two counts of burglary, following a jury trial in the Superior Court (Nadeau, J.). He was sentenced to seven and one-half to fifteen years for each assault conviction, and three and one-half to seven years for each burglary conviction, all terms to be served consecutively in the New Hampshire State Prison. Fecteau appeals the convictions, alleging that the trial court erred in: (1) denying his motion to suppress an out-of-court identification, which he argues was unnecessarily suggestive and violative of his right to counsel; (2) consolidating for trial four indictments involving two separate assaults; (3) admitting evidence of a third burglary committed by Fecteau; and (4) denying his request for funds to transport an out-of-state witness. We affirm all four convictions.

This case involves two assaults committed during June of 1987 against two University of New Hampshire students. The first attack occurred on June 2, 1987, in Dover, while the second attack took place in Durham on June 29, 1987. We describe the facts relating to the June 2 attack first.

On June 1, 1987, the first victim and her roommate were moving their belongings from one apartment in Dover to another. The roommate stopped work around 11:30 p.m., and left the victim for about two hours while she ate at a local restaurant. Between 1:00 and 1:30 a.m., the victim left the new apartment briefly to move her car. As she descended the interior staircase of the apartment building, she saw a man a few feet below her on the stairway. The area was brightly lit, and the victim saw most of the man's face and all of his back for several seconds. Later, she described the man as 5'10"' tall, of medium build, in his early twenties, with short dark hair, and wearing tightly-fitting grey shorts and a white tank top.

After the victim moved her car, she returned to her apartment and attempted, without success, to lock the door. Leaving the door closed, but unlocked, she shut off the lights and went to bed. A few moments later, she heard a noise in the living room. A man appeared in her bedroom doorway and remained there for fifteen to twenty seconds. It was too dark to see his face, but she saw a silhouette of his body.

At trial, the victim testified to the following. The man got on top of her, gagged her with a cloth he held and threatened to knife her. By his weight and strength, he kept her pinned to her bed and he threatened to kill her. He removed her tee-shirt and pulled down her sweat pants, but then suddenly jumped up and ran out of her bedroom.

The victim then heard her roommate scream. The roommate had just returned to the apartment and turned on the living room light. She testified that as she approached the victim's bedroom, the attacker appeared at the bedroom door and ran toward her. The roommate was face to face with him for several seconds and saw him clearly before he sped past her and out of the apartment. She later described this man as 5'8"', somewhat muscular, medium build, in his early twenties, with short dark brown hair, and wearing grey shorts and a white tank top. The victim and her roommate did not share with each other their visual impressions of the man before discussing them with the police.

The assault against the second victim took place at about 2:30 p.m. on June 29, 1987, at the house the victim was renting with three other women. The victim had just returned that afternoon from a trip out-of-town. At trial, she testified that she opened the unlocked front door of the house, walked through the house, and found none of her house-mates at home. She then saw a man standing with his back to her in the doorway of a bedroom. Later, she described him as 5'8"' or 5'9"', heavy set, with medium length dark brown hair. The room was well-lit, and for a few seconds she saw his face clearly. He grabbed her face and pushed her face-down onto a couch in the livingroom. When she screamed, he threatened to kill her, and when she struggled, he threatened to hurt her. Believing his threats, she no longer screamed or struggled.

The man removed the victim's shorts and underwear. He then penetrated her with his tongue, and forced her to perform fellatio on him. She testified that he then forceably engaged in sexual intercourse with her despite her verbal pleas to halt the assault.

I. Identification Procedures

Fecteau argues that the identification procedures used by the Dover Police Department in the first case violated due process under both the State and the Federal Constitutions. The procedures used in the second case are not in issue. (The second victim positively identified Fecteau as her assailant from a photo lineup and at trial.)

Immediately following the assault against the first victim, the police asked her roommate to look through "mug books" and tell them if she found a photograph that resembled the perpetrator of the assault. She could not make a positive identification. A month later, the police again asked the roommate to look at photographs for the purpose of identifying the attacker, and again she was unable to make a positive identification. Then on September 3, 1987, the police asked both the roommate and the victim independently to look at a third set of photographs, in which, for the first time, Fecteau's picture appeared. The roommate picked out his picture and said that she was "99% sure" that it depicted the man she saw in her apartment on the night of the assault. While the victim focused specifically on Fecteau's picture, she did not positively identify him as her assailant. Both women indicated they would be better able to make an identification if they could see the man who committed the crime in person.

The defendant does not question the propriety of the identification procedures described above. He argues, however, that the procedures used in his identification at the Dover District Court, described below, were unnecessarily suggestive and violated his right to counsel.

Sergeant Frank Santin of the Dover Police Department arranged to have the victim and her roommate view Fecteau at the Dover District Court on September 23, 1987, the day Fecteau was scheduled to appear for a probable cause hearing. September 23 was also an arraignment day; Santin chose that date in order to ensure that many people would be present in the courtroom and thus reduce the risk that the two witnesses would focus unjustifiably on Fecteau. Because Fecteau was scheduled to appear in court at 9:00 a.m., Santin planned to wait until shortly after 9:00 a.m. before bringing the victim and her roommate to the courthouse. In this way, Santin testified, he would be able to reduce the likelihood of the women's meeting Fecteau by himself in a hallway.

A few minutes after 9:00 a.m., Santin brought the victim and her roommate to a position across the street from the courthouse entrance. They stood there for several minutes awaiting the signal of another officer, who had stepped into the courthouse to make sure that Fecteau was seated inside the courtroom. While they were waiting and conversing, Fecteau drove up in front of the courthouse with his wife. Fecteau stopped his van in the middle of the road, got out, and walked into the courthouse while his wife drove the van away. Surprised, and worried that the women might see Fecteau, Santin stepped to one side in an attempt to unobtrusively block their view, and tried to distract them by continuing the conversation. Both women, however, saw Fecteau and later told the police that they instantly recognized him.

After a few more minutes, the officer inside the courthouse signaled to Santin, and he led the women into the building. The roommate went into a conference room with one of the officers, and Santin prepared to bring the victim inside the courtroom. He stressed that she might not recognize anyone inside, and told her not to identify someone unless she was sure of her decision. She then walked into the courtroom, with Santin beside her, and looked around. The trial court later found that "[t]here were approximately 12 other males in attendance excluding uniformed police officers" and that "[t]he defendant was seated in the general audience of the courtroom." The victim positively identified Fecteau as the man she saw in her stairwell just before she was assaulted (she was never able to positively identify anyone as the man who was in her apartment and attacked her that night). While the victim was in the courtroom, her roommate told one of the officers that she had recognized Fecteau while they were outside; thus the roommate did not make an identification inside the courtroom.

Fecteau moved to suppress the two "street identifications" made by the victim and her roommate, as well as the "courtroom identification" made by the victim on September 23, on the ground of suggestiveness and violation of his right to counsel. At the suppression hearing, Fecteau testified that while he sat in the courtroom of the Dover District Court that morning, he saw Santin and the victim walk in. He testified, "I really didn't see [the victim's] eyes fixed on me, but she obviously looked at everybody." After Santin and the victim entered the room, Fecteau's then-attorney, Robert Solomon, asked him if he had noticed anyone walk in. When Fecteau replied that he had, Solomon told him to write down everything that he noticed, including the condition of the room and the people in it.

Solomon also made...