State v. Pepin
| Decision Date | 16 October 2007 |
| Docket Number | No. 2006–049.,2006–049. |
| Citation | 940 A.2d 221,156 N.H. 269 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Jeffrey PEPIN. |
Kelly A. Ayotte, attorney general (Elizabeth A. Dunn, assistant attorney general, on the brief and orally), for the State.
Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.
The defendant, Jeffrey Pepin, appeals his conviction by a jury in Superior Court (Nadeau, J.) for first degree assault, second degree assault and criminal restraint. See RSA 631:1, :2 (2007); RSA 633:2 (2007). We affirm.
The jury could have found the following facts: The defendant and the victim were married in 1988, and have three daughters, the youngest of whom was born in March 2004. The instant criminal charges arose from events on October 15, 2004, the couple's sixteenth wedding anniversary. The victim was upset because she thought that the defendant had forgotten their anniversary. After the family ate dinner together, the defendant went to his home office to work. After a time, the victim went to the defendant's office to find out when he would be done and to tell him that she wanted to spend time with him. The defendant was meeting with his office manager. When the defendant said that he would be through in a few minutes, the victim left.
The defendant felt humiliated by the interruption. He left his office, came into the room where the victim was, and began swearing and yelling at her. The couple argued and the defendant eventually went upstairs to take a shower.
Because of the defendant's outburst, the victim felt nervous about staying in the house with him and decided to spend the night elsewhere with their baby. The couple's two older daughters were with the defendant's mother and stepfather. The victim packed a few things for the baby and started to gather items to launder. She began climbing the stairs to the laundry room when the defendant met her halfway and refused to let her pass. He held onto her and stood in her way so that she could not continue up the stairs. She tried to go around him, but he blocked her way and continued to hold onto her.
The victim started to panic and tried to go downstairs to phone for help. The defendant grabbed her by the arms and dragged her up the stairs saying, "[O]h no, you don't." After dragging her up to the landing of the first stairway, he said, "I don't know why I even still bother with you, say good-bye," put his hands around her neck, and choked her. The victim tried to stop him, but soon lost consciousness. After she regained consciousness, the victim jumped up and tried to go downstairs, but the defendant stood in front of her and held her arms so that she could not get past him. The victim then attempted to go upstairs, but the defendant again held her arms from behind to prevent her from doing so. Suddenly, he stopped holding her from behind and started pushing her forward up the remaining stairs saying: When they reached the top of the stairs, the defendant grabbed her by the arm and the back of the head and slammed her face into the wooden floor four or five times. She was bleeding from her nose and in her mouth. He then choked her again and she again lost consciousness.
When the victim awoke, the defendant was crying and telling her that he loved her. The victim feigned unconsciousness, but after about ten minutes, she felt the urge to vomit, told the defendant this and crawled up the remaining stairs to the bathroom. She lay on the tile floor of the bathroom for a while because she felt weak. At some point, she crawled over to the toilet and vomited blood. Eventually, she walked into the bedroom and got into bed. She was so weak that she barely made it to the bed.
As she lay there, the victim decided that she would wait until the defendant was deeply asleep before trying to flee. She thought that if she tried to leave while he was still awake, he would try to hurt her again. She worried that if she tried to phone for help, he might kill her. She lay on top of the covers so that the cold air would keep her awake. The defendant eventually came to bed, put his arm around her and told her that he loved her. She pretended to fall asleep. She lay in bed from 9:30 or 9:45 p.m. until 4:00 a.m., waiting for the defendant to fall into a deep sleep. During that time, she struggled with whether to take the baby with her when she fled. She decided to leave without the baby, afraid that if she took the baby with her, the baby would cry and wake up the defendant and he would then beat her again.
At around 4:00 a.m., the victim began inching out of the bed. She moved one limb at a time off the bed, and after each move, waited to see if the defendant woke up. Eventually she was able to walk out of the bedroom and go down the stairs. She took her cell phone to call the police and left the house without a coat or shoes. She went to the garage, climbed into her car and started it, locking the doors to the car because she was afraid that the defendant might have followed her.
As she drove away, she called 911, frantic because she had left the baby in the house with the defendant and worried that he would hurt the baby when he realized that the victim had left. The dispatcher told her to drive to the parking lot of the local post office and wait for the police to arrive. The victim was afraid to stay there because she did not know whether the defendant had been following her. The dispatcher stayed on the line with her until the police arrived.
When the police arrived, the victim and dispatcher were still speaking; the victim was still frantic about having left her baby in the house. An officer noticed that the victim was crying and seemed to be "[v]ery nervous or afraid for her safety." He observed that her face had a lot of blood on it, some of which seemed fresh, and that it looked swollen. He also saw that she had a cut on her mouth and red marks on her neck "like if somebody put something around [it]." The victim told the officer what had happened that night. She also told the police that she had left her baby in the house because she was afraid that the baby would cry and wake up the defendant and that he would then beat her again. She told the police that she wanted her baby.
While the victim was taken by ambulance to the hospital, the police drove to her residence. After knocking on the door and getting no response, the police announced their presence and entered the home. The police eventually found the defendant in a third-floor crawlspace, lying face down. The defendant testified that he hid there because he "didn't want to be found."
In the meantime, the victim was treated at the hospital for a broken nose and lip laceration. A piece of a broken tooth that had been embedded in her lip was removed. She had a bruise on the left side of her neck. The treating physician testified that the victim's broken nose, broken tooth and swollen chin were consistent with being forcibly slammed against a floor. He also testified that the contusions on her neck were consistent with force having been applied there.
For about a week after the incident, the victim was unable to eat anything other than soft foods and could drink liquids only through a straw. Her injuries required her eventually to wear braces on her teeth; she also had to have a root canal because of her broken tooth. At the time of trial, nearly a year after the incident, the victim's lip was still tender, numb and tingling, and she had a scar underneath it.
A grand jury indicted the defendant for two counts of attempted murder and one count each of first degree assault, second degree assault and criminal restraint. The jury acquitted him on the attempted murder charges and convicted him on the remaining charges. This appeal followed.
The defendant first argues that the trial court erred when it permitted the jury to hear a tape of the victim's 911 call. He contends that the trial court erroneously ruled that the tape satisfied the excited utterance exception to the hearsay rule.
We review a trial court's decision to admit evidence under our unsustainable exercise of discretion standard. State v. Jordan, 148 N.H. 115, 117, 803 A.2d 604 (2002). To meet this standard, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.
The excited utterance exception to the hearsay rule permits the admission of hearsay statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." N.H. R. Ev. 803(2). To qualify as an excited utterance, the statement "must be a spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event and before [s]he had time to contrive or misrepresent." State v. Gordon, 148 N.H. 710, 720, 815 A.2d 392 (2002) (quotation omitted). "The basis of the excited utterance exception rests with the spontaneity and impulsiveness of the statement; thus, the startling event does not have to be the actual crime itself, but rather may be a related occurrence that causes such a reaction." State v. Bean, 153 N.H. 380, 386, 897 A.2d 946 (2006) (quotation omitted).
Here, the trial court reasonably could have found that the victim's statements in the 911 call were excited utterances. The record supports a finding that the victim made these statements immediately upon sneaking out of the house to flee the defendant who had beaten her severely that evening. It also supports the trial court's finding that the events that caused the victim extreme emotional upset were not only the beating,...
To continue reading
Request your trial