State v. Lemire
| Decision Date | 30 September 1975 |
| Docket Number | Nos. 7117-7121,s. 7117-7121 |
| Citation | 115 N.H. 526,345 A.2d 906 |
| Parties | The STATE of New Hampshire v. Paul E. LEMIRE. The STATE of New Hampshire v. Randall D. THOMPSON. The STATE of New Hampshire v. Leon R. CHASSE. The STATE of New Hampshire v. Lionel E. POLIQUIN. The STATE of New Hampshire v. Steven ACORN. |
| Court | New Hampshire Supreme Court |
Warren B. Rudman, Atty. Gen., and Edward N. Damon, Concord, for the state.
Jean-Claude Sakellarios, Boston, Mass., and John F. Bielagus, Amherst, for defendant Lemire.
Ernest A. Jette, Nashua, by brief and orally, for defendant Thompson.
Kfoury & Williams, Manchester (Joseph Williams, Manchester, orally), for defendant Chasse.
Prolman & Holland, Nashua (Francis G. Holland, Nashua, orally), for defendant Poliquin, joins in brief for Lemire (No. 7117).
Kfoury & Williams and Alexandra T. Breed, Manchester (Paul R. Kfoury, Manchester, orally), for defendant Acorn.
Multiple procedural and substantive questions of criminal law have been transferred to us from the convictions of some or all of the defendants for the crimes of rape and unnatural acts. RSA 585:16 (Crime of Rape) (repealed by Laws 1973, ch. 370:9); RSA 579:9 (Lascivious Acts) (repealed by Laws 1973, ch. 532:26). Both statutes were respectively superseded by RSA 632:1 (1973) (Rape) and RSA 632:2 (1973) (Deviate Sexual Relations). For purpose of this transfer the grounds for reversal of the trial conviction can be conveniently grouped into five claims which are: (1) newly discovered evidence; (2) failure to disclose exculpatory evidence; (3) defense of consent; (4) the acts were not unnatural; and (5) a prejudicially unfair trial was conducted, i.e., publicity, inaccurate and prejudicial closing statement by prosecution.
Exceptions arising from the trial held in May 1973, and from a motion for a new trial which was denied after a hearing held on May 17, 1974, were transferred by Loughlin, J.
The facts as developed are essentially these. On December 15, 1972, Susan Towle, the complaining witness, was staying with her sister, Kathleen Baker, and her four-year-old nephew at their apartment on Orange Street, Manchester, New Hampshire. Early in the evening, a few friends were visiting, playing records, watching television and socializing. Somewhere around 10 p.m. that night, Ray Hudon and eight or nine of his friends or acquaintances, members of the Die-Hard motorcycle group, arrived at the apartment. At that time, most of those already at the apartment left with the exception of Susan Towle, Kathleen Baker and her four-year-old child. There is evidence that Hudon told Susan Towle that 'she wasn't going anywhere' despite the fact that she had her coat on and was apparently ready to leave.
From this point on, the evidence becomes contradictory. However, there was evidence that Hudon then brought Towle into one of the bedrooms and tore off her clothes. Towle testified that defendant Lemire then entered and after subduing her with a slap proceeded to have intercourse with her against her will. Lemire denied this but on the stand admitted he committed fellatio with her.
Towle and other witnesses also described a series of acts including fellatio, cunnilingus and assault. In addition to Towle's testimony, there was substantial evidence corroborating lack of consent, including but not limited to the probable presence of a pistol, the size and strength of the group of men involved, and the conduct of this group, including possible threats on Towle's life if she failed to cooperate.
Defendants do not deny their presence in the apartment on the evening of December 15, 1972, and the early morning hours of December 16, 1972, when the crimes were said to have occurred. In fact, defendants Lemire and Acorn took the stand and admitted their presence and Lemire admitted to at least one act of fellatio with Susan Towle. However, the gist of their defense is consent to the acts and that the alleged unnatural acts which occurred were not in fact unnatural.
After reporting the incident to the police during the early morning of December 17, 1972, Towle was treated at the Sacred Heart Hospital in Manchester. A gynecologist who examined her found that her private parts were bruised and she had cuts on one leg and the lower lip. No spermatozoa, however, were found in the victim. Nonetheless, the injuries were said to be generally consistent with the events alleged to have occurred on the night prior thereto.
All five defendants were convicted: Lemire of rape and an unnatural act (fellatio); Thompson of an unnatural act (cunnilingus); Chasse of an unnatural act (fellatio); Poliquin of rape and of an unnatural act (fellatio); and Acorn of rape and an unnatural act (fellatio).
Prior to trial, the deposition of Kathleen Baker, sister of Towle, was taken by defendant's trial counsel and the State. After trial, Kathleen Baker then allegedly on her own came forward and gave a sworn statement to present defense counsel Sakellarios and Bielagus which was transcribed and submitted as an exhibit during the hearing on the motion for a new trial. Counsel contend this constitutes newly discovered evidence, which contradicts Baker's first story and suggests her sister consented to the acts committed. Failure to discover this evidence prior to trial was through no fault of defense counsel, they claim, since the police allegedly threatened to cause Baker to lose custody of her child unless she went along with the story that her sister did not consent. Moreover, counsel claimed that this new evidence would probably bring about a different result and therefore requires a new trial. The trial court denied a new trial on May 29, 1974.
At that same hearing, counsel presented testimony of a juror and claimed that the trial was prejudicially tainted because the jurors viewed the search of all spectators and that this created an unfair atmosphere in which to conduct the trial. The juror, however, also testified that the jury never discussed this matter and there is no direct evidence suggesting any prejudice to the trial because of this security precaution even though within the view of the jurors.
We cannot say that the trial court erred in denying a new trial. To do so would require us to rule that the evidence compelled favorable findings of all facts necessary to justify a new trial. The trial judge in denying a new trial noted that Kathleen Baker's deposition showed that she had a fear of retaliation if she attempted to intervene on her sister's behalf. He also found that 'this atmosphere of terror and intimidation permeated into the actual trial of the case.' He stated that there was evidence that her hospitalization, which prevented her from being present at the trial, was due to her 'fear of testifying and of the possible untoward results to her if she did testify by defendants or their friends.' He also pointed out that she was the girl friend of Hudon who had pleaded guilty to related charges prior to trial of these defendants and that Hudon, although called as a witness by the State, refused to testify. He noted that her after-trial statement was taken by defense counsel and was given in response to questions which were 'leading and suggestive of the answers' and further that she was and had been residing in California for over a year.
Although these findings do not expressly relate to those necessary for the granting of a new trial (McGinley v. Railroad, 79 N.H. 320, 109 A. 715 (1919); State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963)), they indicate that in denying the motion for a new trial the court found that some requirements had not been met. The evidence presented in the record before us would not permit us to rule that the trial court was compelled to make the required finding that a different result on retrial was probable. Cf. Hall v. Insurance Co., 91 N.H. 6, 13 A.2d 157 (1940). This itself is sufficient to uphold the denial.
Nor is a new trial required as a matter of law because of any alleged prejudicial atmosphere created prior to or during the trial. In this case, the record reveals no motion requesting change in venue, voir dire of the jury to purge any specific taint, sequestration of the jurors or severance of the trials because of any prejudicial evidence or activity. Pike v. Hartford, 100 N.H. 473, 474-75, 130 A.2d 540, 542 (1957). Nor can we say after reviewing all the trial transcripts and documents that any specific activity or evidence or any cumulative series of events demonstrate sufficient prejudice to require reversal and a new trial. State v. Conklin, 115 N.H. --, 341 A.2d 770 (1975); State v. Booton, 114 N.H. 750, 756, 329 A.2d 376, 383 (1974); cf. ABA Standards, Fair Trial and Free Press §§ 3.2, 3.4, 3.5(6)(e) and (f), 3.6 (Approved Draft 1968).
Defense counsel raises the possibility that the verdicts may be tainted because at least one juror, and possibly all, saw some of the defendants arriving at the courtroom in shackles and spectators being searched before being allowed to enter. See O'Shea v. United States, 400 F.2d 78, 79 (1st Cir. 1968); United States v. Larkin, 417 F.2d 617, 618 (1st Cir. 1969). However, the record on the motion for a new trial indicates that the juror who testified did not possess any kind of fixed opinion which would raise the presumption of partiality and compel disqualification. Irvin v. Dowd, 366 U.S. 717, 722-25, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Nor is there any evidence that at the time of trial, the defense objected and excepted to the security procedures used at the trial or that the defendants were prejudiced thereby.
Defendants contend that Kathleen Baker's after-trial statement indicates that both she and her sister had originally given statements to the police which indicated consent on the part of Susan, that the police had threatened Kathleen with the loss of custody of her...
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