State v. Parker

999 A.2d 314, 160 N.H. 203
CourtSupreme Court of New Hampshire
DecidedMay 6, 2010
DocketNos. 2008-885; 2008-886
StatusPublished
Cited by11 cases

This text of 999 A.2d 314 (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, 999 A.2d 314, 160 N.H. 203 (N.H. 2010).

Opinion

HICKS, J.

The defendant, Anthony Parker, appeals his convictions for aggravated felonious sexual assault and felonious sexual assault on two minors under the age of thirteen. See RSA 632-A:2, 1(1) (2007); RSA 632-A:3, III (2007). On appeal, he argues that the Superior Court (Groff, J.) erred in: (1) denying his motion to suppress; (2) denying his motion for a mistrial when a redacted portion of his interrogation was played to the jury; (3) permitting the State to ask him whether one of the complainants was lying; and (4) denying his motion to find a child witness incompetent to testify. We reverse and remand.

"Viewing the evidence in the light most favorable to the State, the jury could have found or the record supports the following. From 2004 to 2006, the defendant lived in Nashua with his former wife and two children, C.P. and A.P. In 2006, the couple separated, and the children moved with their mother to upstate New York to live with their grandmother. The children’s mother began to date another man whom the children started to call “Dad.” One evening at the dinner table, C.P. and A.P. told their grandmother that they had been sexually assaulted by the defendant. The children’s mother promptly reported this disclosure to New York authorities, sought a protective order against the defendant, and petitioned for full custody of the children in New York. The New York State police referred the case to the Nashua police.

[205]*205In June 2007, a Nashua police detective called the defendant and asked him to come to the police station for an interview. The detective told the defendant that there was no active warrant for his arrest. The defendant, who had moved to Georgia to live with his mother, declined the request, stating that he did not have the money to travel to Nashua. In July, the detective renewed his interview request upon learning that the defendant would be in New York to attend a protective order hearing concerning the alleged assault of C.P. and A.P. Eventually, the defendant agreed to come to Nashua.

On July 11, after the hearing in New York, the defendant and his mother arrived at the Nashua police station. The police directed the defendant to a waiting room, permitted him to watch television, and served him a soda. The investigating officer, with whom the defendant had spoken on the phone, introduced himself to the defendant and led him to an interview room. Although the Nashua police already had obtained a warrant for the defendant’s arrest, he was not so informed before the interview.

The defendant was told that the interview would be audio- and video-recorded, and was then advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). He stated that he understood his rights but wanted to waive them and to speak with the detective. He also signed a waiver form. The detective proceeded to question the defendant about his personal history, children, and relationship with his wife. After approximately two hours, the detective directed the interview to the alleged sexual assault of C.P. and A.P. He explained that forensic examiners had interviewed the two children about the assaults and determined that “[C.P.] and [A.P.] are telling the truth.” He next told the defendant that his children missed him and that he needed to repair his relationship with the children. The following exchange then occurred:

[DETECTIVE:] If I saw two children that were distraught by this, destroyed by this, hurt very badly by this, OK, I wouldn’t be here talking to you. OK? I wouldn’t be here trying to work things with you. OK? Because that’s a different source, different scenario, different story. That’s not what we’re dealing with here. OK? This is a very simple matter. OK? A very simple thing. OK? What you tell me and what we deal with in here can stay between me and you. OK? I know [your] mom’s here, OK? Um, and I know your mom is very protective of you, right?
[DEFENDANT:] Right.
[DETECTIVE:] Ok. Um, what you tell me in here, OK, doesn’t have to go to her. But I need you to be honest with me so that we [206]*206can move past and move forward and keep going. OK? ... Um, and I’m not bull... ting ya. I haven’t bull... t you all, any of the time. I’m telling you the straight up truth.

After this exchange, the detective asked the defendant to discuss the specific events giving rise to the allegations of sexual assault. When the defendant was not immediately forthcoming, the detective interrupted to remind the defendant that the children had told the truth. The detective then said that he needed to hear the defendant admit that the children were telling the truth “before I can say hey, you know what? This is a decent guy. He crossed the line once. It’s all done. It’s behind him. You know? Get a little counseling and, and it’s over.” Shortly thereafter, the detective again stated, “And if you can’t tell me the scenario, that, you know, what happened and what was going through your mind at the time, OK, we can’t get [you] any counseling to fix the problem if you can’t give us some clue as to what the problem was.” The defendant then admitted to sexually assaulting C.P. and A.P. and the detective arrested him.

Before trial, the defendant filed several motions relevant to this appeal. He first moved to suppress his oral statements, arguing they were involuntary under the Due Process Clauses of the Federal and New Hampshire Constitutions. The State objected, arguing that there was “no evidence that the defendant’s will was overwrought [sic] by any comment that was made” by the detective. The trial court denied the motion.

After a hearing, the defendant argued that A.P., who was then five years old, was not competent to testify because A.P. did not appreciate the consequences of lying. The trial court disagreed, ruling that A.P had demonstrated “sufficient capacity to observe, remember, and narrate, as well as to understand the duty to tell the truth.” She was found competent to testify.

The defendant moved to sever the trials on the indictments concerning the two children. The trial court granted this motion, resulting in separate trials. Because of the severance, the parties agreed to redact the transcript of the defendant’s confession to omit any reference to the acts of sexual assault against A.P. at the trial for the sexual assault of C.P. These passages were blacked out with a marker. The parties also agreed to redact the video-recording of the confession by muting the sound.

The trial involving C.P. occurred first. During the detective’s testimony, the prosecution played the redacted video-recording and gave the jury the redacted transcript. At one point during the videotape, the defendant objected and moved for a mistrial, arguing that the prosecution had not properly redacted the videotape and that the jury heard “with [A.P.] at least twice.” Based upon this statement, the defendant contended that the [207]*207jury would infer that the defendant assaulted A.P., not just C.P. as alleged, and that the defendant discussed this assault in the redacted portions of the interrogation. The State maintained that the jury had heard nothing prejudicial and that the jury would infer only that A.P. may have witnessed the assault. The trial court denied the defendant’s request for a mistrial.

During his case, the defendant introduced evidence that his ex-wife’s new boyfriend had assaulted C.P.

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Cite This Page — Counsel Stack

Bluebook (online)
999 A.2d 314, 160 N.H. 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-nh-2010.