State v. Thompson

• Decision Date: 25 February 2011
• Docket Number: No. 2009–345.,2009–345.
• Citation: 20 A.3d 242,161 N.H. 507
• Parties: The STATE of New Hampshirev.Jerome THOMPSON.
• Court: New Hampshire Supreme Court

161 N.H. 507

20 A.3d 242

The STATE of New Hampshire

v.Jerome THOMPSON.

No. 2009–345.

Supreme Court of New Hampshire.

Argued: June 17, 2010.Opinion Issued: Feb. 25, 2011.

Michael A. Delaney, attorney general(Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.DUGGAN, J.

The defendant, Jerome Thompson, appeals his conviction by a jury of one count of aggravated felonious sexual assault.SeeRSA 632–A:2, II (2007).On appeal, he argues that the Superior Court( Sullivan, J.) erred by denying his motion to dismiss based upon the weight of the evidence and by admitting certain hearsay evidence.He also, for the first time on appeal, argues that we should reverse his conviction and grant him a new trial because his trial counsel was ineffective.While we have previously declined to review ineffective assistance of counsel claims on direct appeal, we hold, based upon the indisputable and egregious errors of trial counsel, which are apparent from the trial record, that the defendant was provided ineffective assistance of counsel.Accordingly, we reverse and remand.

The record supports the following facts.Six-year-old D.K. lived in North Woodstock with her mother, her mother's boyfriend and her two younger siblings.During the weekend of October5–7, 2007, D.K.'s father brought D.K. and her siblings to Concord to visit his cousin, Andrea Zbink, who lived with the defendant.At one point that weekend, D.K. spent approximately one hour sitting with Thompson at the computer desk in Thompson's and Zbink's bedroom.

D.K.'s father returned the children to their mother at the end of the weekend.On October 11, 2007, D.K. first told her babysitter, and then later that evening her mother, that the defendant had shown her pornographic movies on his computer.She also told the babysitter, but not her mother, that the defendant put his hand on her “private parts.”D.K. later repeated these allegations during an interview at a Child Advocacy Center, which was observed by Detective Sean Dougherty of the Concord Police Department.During the trial, the only substantive evidence of the defendant's guilt consisted of unobjected-to hearsay testimony by the babysitter and the mother describing the statements D.K. made to them, and unobjected-to hearsay testimony by Dougherty regarding statements made by D.K. during her Child Advocacy Center interview.While at trial D.K. acknowledged that the defendant showed her movies that made her feel “icky,”she denied that he had touched her.

The defendant argues that his trial counsel, who is not counsel on appeal, rendered ineffective assistance of counsel by: (1) failing to object to inadmissible hearsay; (2) failing to object during the State's closing argument when the State referenced evidence that had previously been ruled inadmissible; and (3) simultaneously representing the defendant's parents, whose interests conflicted with the defendant's interests.We set forth the testimony and facts from trial in significant detail to evaluate the basis for the defendant's claims.

The State used much of its opening statement to appeal to the emotions of the jury, and began by questioning how anyone could touch a small child for his own sexual gratification.The prosecutor emphasized to the jury that he could not explain to them

why any human being would be so brazen and so bold as to touch a child for their sexual gratification, particularly an eight year old.Why anyone would violate the innocence of a child for that purpose is something that as human beings, you may grapple with to try to put your mind around, but you know, unfortunately, in this day and age ... it happens.It's outrageous.

At times in your life you've heard maybe from a friend or family member about things like this that happened, or you've read in the paper stories, scout masters, clergy abusing students....It happens.It's insidious and brazen in its nature.

What makes it so insidious and so brazen is that sometimes it can happen seemingly right under the eyes of the people who should be watching for that child's safety.That's the sort of case that you're going to be hearing about.

The prosecutor then continued by outlining some of the likely testimony from the State's witnesses.Specifically, he told the jury that they would “hear an eight-year-old girl talk to [them] about things no eight year old should ever see.”He reminded them that the victim was “very shy,” and implored them to have patience and to listen carefully to her testimony.He also told the jury to expect testimony from the babysitter, who would tell them “ever [ sic ] babysitter's nightmare, which is the child that you love and care for disclosing abuse,” and the mother, who would disclose “what it's like to be the parent in every parent's nightmare ... actually of learning that your child is the victim of sexual abuse.”The prosecutor, however, made no mention of D.K.'s Child Advocacy Center interview.He concluded with another emotional plea:

When you see [D.K.] on the stand, you may wish for all—in all your heart that you could just turn back the clock to October 4, 2007 and tell her, don't go, but you can't do that.You can't do that.What you can do is believe her and hold that man accountable for what he did to her.

Defense counsel's opening statement responded by attacking D.K.'s credibility.He told the jury that D.K. had a difficult time dealing with her parents' divorce, which caused her emotional distress.He also explained that D.K. had recently told the prosecutor that none of the events she previously alleged had ever actually occurred.He concluded by telling the jury that “the adults that were there didn't see anything wrong.The evidence will show you that.It's only what [D.K.] said, and then she changed her mind.”

Following opening statements, the State questioned its first witness, the babysitter, about the night that D.K. first disclosed the allegations:

Q.What did she tell you?

A.She started just telling me that she went to this—I don't know if it's a cousin or uncle, but house, and the guy's name was Jerome, and he would let her go into his bedroom but no one else could ever go into it.So it kind of got me curious on why were you allowed to but not the other kids.

....

Q.Was there a word or phrase she used about the bedroom?

A.She said she would go into his bedroom, and the door would get shut, and no one else was allowed in there.

Q.Did she refer to it as a particular place, private in some fashion?

A.Yeah.She just said no one could go in there.

....

I asked her what was—you know, what happened, you know, what were you guys doing in the bedroom by yourself with the door shut, and she did tell me they were watching movies.

....

Q.What happens next?

A. She—I asked her what kind of movies they were watching, and she was telling me she was watching adult movies with him.

Q.She didn't use that phrase, though?

A.No.She basically said that she was watching movies at—she was—movies that kids shouldn't be watching basically so that the other kids weren't allowed in the room at the time.

Q.How did she describe them to you?

A.She said they were naked and on the bed and things like that.

Q.And was there anything about—other things that she mentioned that made you realize what kind of movies they were?

A. ...You know, she was—just when she said that there were—she was watching movies that people are naked and stuff like that kind of just threw me.Like I didn't know what to expect.

....

Q.Did she say where she was in his bedroom when she was being shown these movies?

A.I think she said she was on the bed.

....

Q.So what else do you remember her telling you?

A.She told me they were sitting on the bed together watching the movie and he placed his hand on her thigh, her inner thigh and gradually moved up towards her private parts.

Q.Did she use a word for private part?

A.She just said “my private parts.”

....

Q. So—and I hate to ask, but I have to be clear.She told you he ended up touching her where?

A.In her private spot.

....

Q.I'm sorry, because we have to, in court, be clear, what was it that you believed—what was the subject of the conversation about private part?

A.I believed that it was her vagina.

Q.Aside from what she said, what helped you make that conclusion?

A.Because she was saying that he was rubbing the inner thigh of her leg and she said that “he touched my private parts.”

Defense counsel did not object at any point during this testimony.On cross-examination, defense counsel again made reference to the babysitter's conversation with D.K., and she again testified that D.K. told her that the door to the defendant's bedroom was shut and that D.K. and the defendant sat on the bed together watching the movie.

The State next called D.K.'s mother, who also provided unobjected to testimony about her conversation with the babysitter when she returned home that evening:

Q.How did [the babysitter] come out and say she needed to talk with you about something?

A.Just kind of did.She just kind of said, you know “I need to talk you to [ sic ].[D.K.] said something that is concerning, and I need to tell you about it.”

....

Q.What did she tell you?

A.She told me that [D.K.] told her that when she was at her cousin's house this weekend that she was sitting on Jerome's lap and he was trying to do things and watch movies with her.

Q. When—from what she was relating to you, did the movies—I mean, what kind are we talking about?

A.Yeah.She said bad movies.

Q.Do you remember her—other than bad movies—

A.[The babysitter] did not get into detail with me.I wanted to hear it directly from [D.K.], so I wasn't listening to one person and not the other.

The State then questioned the mother regarding her conversation with D.K. later that evening:

Q...