State v. Tufts, 91-163

• Decision Date: 29 December 1992
• Docket Number: No. 91-163,91-163
• Citation: 618 A.2d 818,136 N.H. 517
• Parties: The STATE of New Hampshire v. Michael D. TUFTS.
• Court: New Hampshire Supreme Court

Page 818

618 A.2d 818

136 N.H. 517

The STATE of New Hampshire v. Michael D. TUFTS.

No. 91-163.

Supreme Court of New Hampshire.

Dec. 29, 1992.

John P. Arnold, Atty. Gen. (Janice K. Rundles, Asst. Atty. Gen., on the brief and orally), for the State.

Michael K. Skibbie, Asst. Appellate Defender, Concord, on the brief and orally, for defendant.

BATCHELDER, Justice.

The defendant, Michael D. Tufts, was convicted, after a jury trial in Superior Court (Nadeau, J.), of aggravated felonious sexual assault. On appeal, he challenges the sentencing court's consideration of an allegation of a prior sexual assault contained in the presentence investigation report. We affirm.

At the defendant's sentencing hearing on February 13, 1991, defense counsel objected to a paragraph in the probation department's presentence report containing a named woman's allegation that the defendant sexually assaulted her in 1988. The report referred to a letter written by the woman to the county attorney's office, "describing in detail" the alleged assault. According to defense counsel, the defendant did not recognize the woman's name and had "nothing to do with" her. The trial court continued the sentencing hearing until both the court and the defendant could review the materials at issue, so that the court could "determine whether or not these are, in fact, verifiable facts." If the facts were verifiable and taken into consideration, the court noted, they would have "a strong influence" on whatever sentence was imposed.

On March 5, 1991, the State forwarded to the court and the defendant three documents pertaining to the alleged assault. Included was the four-page letter that the alleged victim had written to the county attorney's office on September 28, 1989, shortly after the defendant's arrest on the instant charge. The letter was an account of an assault by the defendant, containing the date, time, and a detailed description of the incident. Along with the letter, the State forwarded a Dover police detective's police report describing the woman's positive identification of the defendant from a photographic array on February 15, 1991. Attached to these documents was an affidavit by probation/parole officer Stephen Carlisle, stating that he had prepared the presentence report and had spoken with the woman, obtaining from her corroborating details about the defendant and his family.

The sentencing hearing resumed on March 22, 1991. Defense counsel again objected to the court's considering the alleged prior incident, arguing that he was unable to "verify this person existed." He proffered no evidence to rebut the allegation except the representation that the defendant "believes he was out of state working in Connecticut" on the date of the alleged incident. The trial court, expressly ruling that the alleged assault would be considered in arriving at the defendant's sentence, stated:

"I consider the information that's been provided by the State here, including the affidavit of Mr. Carlisle, the procedures taken by the Dover Police Department, verify the facts that are relevant to the sentencing in this case, and this is just what kind of information probation officers include in their reports. They include police contact; they include information from people who know the defendant, and I think this information has been in existence for a significant enough period of time to allow the defendant to make whatever response he wishes to the material that's here."

The court sentenced the defendant to the maximum term of seven and one-half to fifteen years' imprisonment.

The defendant contends that the sentencing court improperly considered the prior sexual assault allegation, arguing first that the information in the presentence report was not verified. He relies on our direction to sentencing courts in State v. Cote, 129 N.H. 358, 372, 530 A.2d 775, 783 (1987), "to ignore unsubstantiated, unverified statements made in the probation report."

Presentence reports prepared in contemplation of sentencing may refer to criminal charges not resulting in conviction and may be based on hearsay. Id. at 371-72, 530 A.2d at 782. The authority to consider other criminal charges at sentencing stems from the sentencing court's "wide discretion in choosing the sources and types of evidence on which to rely in imposing sentence." State v. Rodrigue, 127 N.H. 496, 500, 506 A.2d 299, 303 (1985).

The sentencing court's discretion to consider other offenses, however, has been limited by this court. "We have held that judges in sentencing should not rely upon allegations of other crimes by the defendant when such allegations are unsubstantiated, resolved by acquittals, or the product of speculation." State v. Nutter, 135 N.H. 162, 167, 600 A.2d 139, 142 (1991) (Batchelder, J., concurring) (citations omitted). In addition, "[i]t is well settled that a sentencing court cannot consider prior convictions which have [previously] been found constitutionally infirm." Cote, 129 N.H. at 375, 530 A.2d at 785. Our concern is that sentencing courts should not consider conclusory statements of criminal conduct lacking a factual basis, i.e., "evidence [that] does not carry suspicion to the point of probability," State v. Coppola, 130 N.H. 148, 156, 536 A.2d 1236, 1241 (1987), rev'd on other grounds sub nom. Coppola v. Powell, 878 F.2d 1562 (1st Cir.), cert. denied 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989).

The information at issue here is not of this character. The letter describes in first-person detail an encounter with the defendant in the writer's home that began as a conversation between acquaintances about their respective family problems. The incident that followed was one of violence and sexual depravity. Probation/parole officer Carlisle, through his conversations with the woman and from other information known to him,...