State v. Vandebogart

• Decision Date: 09 December 1994
• Docket Number: Nos. 91-380,93-326,s. 91-380
• Citation: 139 N.H. 145,652 A.2d 671
• Parties: The STATE of New Hampshire v. Daniel VANDEBOGART.
• Court: New Hampshire Supreme Court

Page 671

652 A.2d 671

139 N.H. 145

The STATE of New Hampshire v. Daniel VANDEBOGART.

Nos. 91-380, 93-326.

Supreme Court of New Hampshire.

Dec. 9, 1994.

As Modified on Reconsideration Jan. 19, 1995.

Jeffrey R. Howard, Atty. Gen. (Janice K. Rundles, Asst. Atty. Gen., on the brief and orally), for State.

James E. Duggan, Chief Appellate Defender, and Albert E. Scherr, Assistant Appellate Defender, Concord (Mr. Duggan and Mr. Scherr on the brief and Mr. Scherr orally), for defendant.

THAYER, Justice.

The defendant, Daniel Vandebogart, appeals from his conviction for first degree murder, RSA 630:1-a (1986), based on a jury verdict in the Superior Court (Mohl, J.). After consideration of all the issues raised by the defendant on appeal, we affirm.

On the afternoon of September 12, 1989, Kimberly Goss, the victim, was taken from her home, bound, gagged, raped, and strangled, and her dead body was left partially buried in the woods. The defendant was arrested the following morning. Evidence was presented at the defendant's six-week jury trial as to the following facts.

At approximately 1:30 p.m. on September 12, the victim left work intending to meet a friend, Susan Thibodeau, to go shopping. The victim and her husband lived on Old Derry Road in Londonderry in a duplex with a large, secluded back yard, behind which was a large tract of woods. At approximately 2:30 p.m., neighbor Carl Currier heard a woman's scream coming from the area behind the victim's residence. Between five and fifteen minutes later, he heard a car start and thought the sound came from the area of a dirt driveway located near the victim's home. He then saw a black Pontiac Firebird with a white male driver going slowly past his house, headed toward Derry. Shortly thereafter, Currier saw the Firebird parked down the street and wrote down the vehicle's license plate number. Carl Currier's thirteen-year-old brother, Toby, also saw the car parked as described by Carl when he arrived home from school, and then saw it pass their residence again, headed toward Manchester at about 3:25 p.m.

Unable to reach the victim at the time of their planned shopping excursion, Thibodeau went to the victim's home to look for her. She arrived at about 4:00 p.m. and found the victim's car in the driveway, but not the victim. The victim's husband, David Goss, arrived home at 4:30 p.m. to find his wife missing and Thibodeau looking for her. The victim's purse and keys were on the table, and her cigarettes were on the kitchen counter; a cigarette butt was on the floor, and an ashtray was in the trash can; the dishwasher was standing open and half-unloaded; the family dog was shut in a closet. After searching for several hours and calling friends and relatives, David Goss called the Londonderry Police Department at about 7:30 p.m. Several officers responded, including Detective Scott Saunders and his supervisor, Lieutenant Joseph Ryan. Currier, seeing the commotion at the victim's residence, walked over and gave the officers the license number for the vehicle he had seen. A motor vehicle record check revealed that the defendant was a co-owner of the car.

At the victim's home, the Londonderry police located the victim's blue jacket buried under some leaves just beyond the cleared portion of the back yard. They also found a pair of sneakers with the laces removed and a kitchen knife belonging to a butcher block set in the victim's kitchen. Casts and photographs were taken of tire impressions and footprints found at the scene.

On September 15, the victim's body was discovered partially buried in the woods behind her home. Her arms were behind her back, bound at the wrists with shoe laces and pantyhose in a series of complicated knots, and a white athletic sock was knotted tightly around her neck. Her lower body was unclothed. Her denim skirt, underwear, a broken shoe lace, and a jar of Vaseline which had been taken from the victim's bathroom were found near the body. The medical examiner concluded that the victim had been strangled with the athletic sock, after it had been used as a gag. There were ligature marks around the victim's ankles, and it appeared that her ankles and wrists had been bound together behind her back. There was an abrasion on her chin and indications that she had struggled. A tear to her anus which had hemorrhaged, a bruise on her thigh, and the presence of Vaseline in her pubic hair suggested that the victim had been sexually assaulted while still alive. Semen, which proved not to be from David Goss, was found in the victim's vagina.

The defendant was arrested at approximately 5:15 a.m. on September 13. His clothing was seized and placed in eight separate bags. Combings of the defendant's pubic hair, which was coated in petroleum jelly, a photograph of what appeared to be a fresh scratch on his leg, and a sample of the defendant's blood were all taken for evidentiary purposes.

The samples of Vaseline and semen taken from the victim, the tire and footwear impressions found at the scene, and the clothing, petroleum jelly, and blood taken from the defendant were sent to various laboratories for testing. An expert in tire and footwear comparisons and in chemical analysis testified that the marks found at the scene were consistent with both the defendant's tires and the tennis shoes he was wearing at the time of his arrest. He additionally testified that the petroleum jelly found on both the victim and the defendant was chemically indistinguishable from that in the container of Vaseline found at the scene.

Analysis of the defendant's clothing revealed the presence of vegetation in his jeans, socks, and boxer shorts. This vegetation included hemlock needles, white pine bud scales, and seed-like structures. Identical needles and bud scales were found in the vicinity of the victim's body. Identical seed-like structures were found in the cleared area of the victim's back yard and were identified as barnyard grass. An expert testified that the combination of the vegetation was very unusual because barnyard grass is rare and does not exist in the same habitat as the hemlock and white pine.

Testimony regarding the testing of the defendant's blood for a match to the semen took a little more than a day of the six-week trial. The samples of semen and known blood taken from the victim's body as well as the sample of blood taken from the defendant were sent to the FBI forensic laboratory for comparison. The tests performed showed that the defendant's DNA profile matched that of the semen, and that he could therefore not be excluded as a source. The FBI calculated the odds of a person selected at random from the Caucasian population matching the semen sample as one in 50,000.

The defendant had previously been convicted of two very similar sexual assaults, one in Virginia and the other in Montana. In each case, the defendant had subdued the victim by threatening the victim with a knife. He had taken each victim to a secluded, wooded area, bound their wrists behind their backs with boot laces, gagged them with white athletic socks, and raped them. On one occasion, he told the victim that "[t]ying knots turn[ed] him on."

The defendant's mother had spoken with the defendant on the telephone after his arrest. After asking the defendant about another assault charge then pending against him, she said, "I have another question for you," to which the defendant replied, "The answer to that question is yes.... I can't tell you why. I don't know. I just went too far this time." She understood the defendant's statements as a confession of guilt for the victim's murder. Later that day, she visited him at the prison and asked him more questions about the murder. She asked him how he felt when he "dragged her body out," and he replied, "Scared." She asked him if he had buried her, and he replied, "[P]artially." He admitted that it was a sex crime. Other testimony established that at the time she spoke with her son, the news media had not yet reported that the victim had been raped or that she had been partially buried. The defendant also told his mother that he had attempted to commit suicide the day before their conversation.

In State v. Vandebogart (DNA), 136 N.H. 365, 616 A.2d 483 (1992), we bifurcated the defendant's appeal to expedite our consideration of issues relating solely to the admissibility of forensic deoxyribonucleic acid (DNA) profiling. After clarifying the two-part Frye standard for admitting novel scientific evidence, id. at 376, 616 A.2d at 490; see Frye v. United States, 293 F. 1013 (D.C.Cir.1923), as requested by the parties, we concluded that the trial court had misapplied Frye by admitting population frequency estimates that had not found general acceptance in the field of population genetics. Vandebogart (DNA), 136 N.H. at 381, 616 A.2d at 494. We remanded to the trial court to conduct a hearing in order to determine whether a technique known as the "ceiling principle" has gained general acceptance in the relevant scientific community and whether the erroneous admission of the population frequency statistic in this case was harmless error. Id. at 383, 616 A.2d at 495.

We now hold that the ceiling principle, as described infra, has gained general acceptance in the relevant scientific community. We also conclude that the overwhelming conventional evidence presented at trial against the defendant renders the erroneous admission of population frequency evidence in this case harmless beyond a reasonable doubt.

The defendant also asserts several alternative grounds upon which the trial court allegedly erred: (1) in failing to grant a mistrial or to give curative instructions following a portion of the prosecutor's closing argument that the defendant argues denied him a fair trial by improperly evoking sympathy for the victim; (2) in ruling that one of the State's witnesses, a prior victim of the defendant, need not disclose her current...