State v. Parker

503 A.2d 809, 127 N.H. 525, 1985 N.H. LEXIS 455
CourtSupreme Court of New Hampshire
DecidedDecember 31, 1985
DocketNo. 84-585
StatusPublished
Cited by26 cases

This text of 503 A.2d 809 (State v. Parker) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Parker, 503 A.2d 809, 127 N.H. 525, 1985 N.H. LEXIS 455 (N.H. 1985).

Opinion

JOHNSON, J.

In this appeal from his conviction for attempted aggravated felonious sexual assault, RSA 632-A:2 (Supp. 1983); RSA 629:1, the defendant argues that the Trial Court (O’Neil, J.) erred in (1) denying the defendant’s motion to suppress the victim’s testimonial evidence and (2) admitting evidence of prior sexual penetration of the victim by the defendant. We find no error and affirm.

On a day in late March or early April of 1984, at approximately 11:30 p.m., Officer James Trueman of the Portsmouth Police Department observed the defendant milling around his camper, parked in the deserted business district of Portsmouth. The officer approached the defendant and asked him “what he was doing in the area and if he had any identification.” The defendant identified himself as George Parker, from Crabtree, Oregon, and said that he was looking for part-time work in the area. He stated that he was traveling alone, without any family.

On the evening of May 3, 1984, Officer Trueman was routinely patrolling motel parking lots in Portsmouth because automobile interior thefts were a common problem. He recognized the defendant’s camper parked in the Holiday Inn parking lot. The headlights of the vehicle were not on, and the officer saw the defendant sitting behind the wheel. The officer took a second look, directly into the cab of the camper, and noticed a child’s “little head peek up over the dashboard, look at [him], and the head went down again.” The officer found this unusual because he recalled that the defendant previously had stated that he was traveling alone, and each time he had seen the defendant after the initial conversation, the defendant had been alone.

[528]*528Officer Trueman went into the Holiday Inn lobby in an attempt to observe what was going on in the defendant’s camper, but the defendant drove out of the parking lot before the officer could see anything. Concerned about the child, Officer Trueman decided to follow the defendant’s vehicle. He requested an unmarked detective unit to assist in the surveillance of the defendant’s camper, and another unit to check the Holiday Inn area, in order to ascertain whether the child had left the camper. Officer Trueman continued to follow the camper, and he radioed police headquarters to ask all the units on duty whether anyone had ever observed the defendant accompanied by a child. Several officers reported to him that every time they had observed the defendant, he had been alone.

Officer Trueman passed the defendant’s camper, and saw the child inside. The officer testified that the child “appeared to be okay,” but he was not satisfied that the child was safe. As the camper approached the city line, the officer pulled it over in order to “ascertain what the child was doing” with the defendant. The defendant and the child, an eleven-year-old boy, stepped out of the camper and approached the cruiser. The officer asked the defendant whether the child was his son, and the defendant replied affirmatively. The defendant then handed the officer a form signed by the boy’s mother that indicated that the child had permission to be with the defendant.

Officer Trueman thought the boy appeared nervous, and asked to speak with him privately. The defendant agreed. The child sat in the cruiser with Officer Trueman, and told him that he was “sort of” scared of the defendant. After the officer learned that the child was living out of defendant’s trailer, he questioned the child about his living conditions, and the child described the incident of sexual assault. Officer Trueman then arrested the defendant, for attempted aggravated felonious sexual assault, on the basis of what he had learned from the child.

The defendant was charged with attempted aggravated felonious sexual assault, resisting arrest, and endangering the welfare of a child. The latter charge was ultimately nol-prossed. Before the trial, the defendant moved to suppress the victim’s testimony on the basis of the illegality of the initial stop. After a hearing, the trial court denied the motion, ruling that the stop of the defendant’s vehicle was constitutional. Alternatively, the trial court held that even if the stop was illegal, the victim’s testimony was admissible under the doctrine of inevitable discovery.

At trial, the victim testified that on April 23, 1984, as the defendant and he were getting ready for bed, the defendant placed his [529]*529penis in or on the victim’s anus. The child also testified, over the defendant’s objection, that the defendant had sexually penetrated him a few days earlier. The defendant was found guilty of attempted aggravated felonious sexual assault, and sentenced to seven and one-half to fifteen years of imprisonment. This appeal followed.

The defendant first argues that the victim’s testimony should have been suppressed. He asserts that the initial stop of his vehicle by Officer Trueman was constitutionally impermissible under the fourth amendment of the United States Constitution and part I, article 19 of the New Hampshire Constitution, because (1) it was not based upon a specific and articulable suspicion of wrongdoing, and (2) the scope of the intrusion was unreasonable. He argues that the victim’s testimony would not have been discovered without the illegal stop, and is thus the “fruit of a poisonous tree” because it was tainted by the illegality of the stop. State v. Maya, 126 N.H. 590, 594-95, 493 A.2d 1139, 1143 (1985). We disagree.

State constitutional law is identical to the law of its federal counterpart in this case. See State v. Brodeur, 126 N.H. 411, 416, 493 A.2d 1134, 1138 (1985); N.H. Const, pt. I, art. 19; U.S. Const. amend. IV. Although we decide the State issue independently, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using federal precedent only for its help in dealing with the State issue, see Michigan v. Long, 103 S. Ct. 3469, 3476 (1983), the analysis and the result are the same under each constitution.

We begin with the first part of the defendant’s argument, which challenges the stop of his vehicle as unconstitutional. “An individual is ‘seized’ for fourth amendment purposes ‘if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” State v. Riley, 126 N.H. 257, 262, 490 A.2d 1362, 1366 (1985) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.); Florida v. Royer, 460 U.S. 491, 502 (1983)). The stop of the defendant’s vehicle by Officer Trueman constituted a seizure under the fourth amendment and part I, article 19 of the New Hampshire Constitution. See Terry v. Ohio, 392 U.S. 1, 16 (1968). The State has the burden of justifying the stop of the defendant’s vehicle as a legitimate investigative stop. Maya, supra at 595, 493 A.2d at 1143.

In Terry, supra

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Bluebook (online)
503 A.2d 809, 127 N.H. 525, 1985 N.H. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-nh-1985.