State v. Silva

699 A.2d 591, 142 N.H. 269, 1997 N.H. LEXIS 88
CourtSupreme Court of New Hampshire
DecidedAugust 25, 1997
DocketNo. 95-648
StatusPublished
Cited by5 cases

This text of 699 A.2d 591 (State v. Silva) 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. Silva, 699 A.2d 591, 142 N.H. 269, 1997 N.H. LEXIS 88 (N.H. 1997).

Opinion

JOHNSON, J.

Following a jury trial in the Superior Court (Conboy, J.), the defendant, Edward Silva, was convicted of three counts of aggravated felonious sexual assault, RSA 632-A:2 (1986) (amended 1992, 1994, 1995). He appeals, arguing that: (1) he was convicted on evidence of crimes that was not presented to the grand jury; (2) there was insufficient evidence to sustain the convictions; and (3) the superior court erred in both the substance and the timing of a “jury deadlock” instruction. We affirm.

The victim in these assaults was the defendant’s nephew. The offenses occurred during July 1992, when the victim was eight years old and living in Manchester. Both of the victim’s parents worked full-time, which necessitated that the victim be cared for during the summer days by his grandmother, who also lived in Manchester.

The defendant lived in Union City, New Jersey, where he shared an apartment with a friend. In 1992, he was employed part-time in telemarketing, and during the month of July, he worked from 5:30 p.m. to 9:30 p.m., Sunday through Thursday. His schedule permitted him to travel to New Hampshire, a trip of approximately four and one-half to five hours, to visit friends and family members. He made the trip on a number of occasions. He maintained a bedroom in his parents’ home in Manchester, which the victim referred to as “Uncle Eddie’s” room.

The defendant was indicted on April 1, 1993, for one count of aggravated felonious sexual assault, RSA 632-A:2, and one count of [271]*271felonious sexual assault, RSA 632-A:3 (1996). These indictments were nol prossed shortly before the scheduled trial, and four new indictments were returned on April 2, 1994. The new indictments included the original two indictments, plus two more indictments for aggravated felonious sexual assault. The three 1994 indictments for aggravated felonious sexual assault included two acts of penetration (digitally and by tongue), and one act of fellatio. The digital penetration indictment stated only that the offense occurred in Manchester, while the other two charges specified that they occurred at the victim’s grandparents’ home. The defendant did not seek, through a bill of particulars, to ascertain the alleged location within Manchester of the criminal conduct underlying the digital penetration indictment.

The indictments also alleged that the sexual assaults occurred during the month of July 1992. The defendant maintained, however, that he never traveled to New Hampshire during that month. He thus asserted an alibi defense that he had no opportunity to commit the charged offenses. At the close of the trial, the defendant requested, and the trial court gave, an instruction that the jury had to find that the sexual assaults occurred during the month of July 1992. The jury returned findings of guilty in three indictments charging the defendant with aggravated felonious sexual assault and a finding of not guilty as to one indictment of felonious sexual assault. After trial, the defendant moved to set aside the verdicts and for a new trial. The superior court denied both motions, and this appeal followed.

I. Grand Jury Indictments

The defendant first asserts that he was convicted on evidence of crimes which was never presented to the grand jury. The defendant argues that there were variances in the evidence presented before the grand jury and the evidence presented to the trial jury. Hence, he asserts that his convictions are constitutionally flawed because the defendant “was tried and convicted for crimes which were never presented to a grand jury.”

As a preliminary matter, we note that following the defendant’s conviction, the trial court held a post-trial hearing to determine what evidence had been presented to the grand jury. The trial court allowed the defendant, over the State’s objection, to invade the secrecy of the grand jury process by inquiring into the substance of the investigating officer’s testimony before the grand jury. Although the issue is not before us on appeal, we take this [272]*272opportunity to remind trial courts of their duty to scrupulously protect the sanctity of grand jury proceedings. Our constitution does not grant defendants the right to examine grand jury testimony. State v. Booton, 114 N.H. 750, 753, 329 A.2d 376, 380 (1974), cert. denied, 421 U.S. 919 (1975). “It has long been the policy of the law, in furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret, and that for most intents and purposes, all its proceedings should be legally sealed against divulgence.” Opinion of the Justices, 96 N.H. 530, 531, 73 A.2d 433, 435 (1950). Our law presumes that the proceedings before the grand jury are sacrosanct, and they may not be invaded by a defendant to challenge an indictment or a conviction on the grounds that testimony before a grand jury was at odds with testimony later received at trial.

There is no dispute that the defendant has a constitutional right to have a grand jury consider the evidence and decide whether or not to return an indictment against him. State v. Erickson, 129 N.H. 515, 518-19, 533 A.2d 23, 24-25 (1987). While the defendant has a constitutional right to have the indictment clearly state the conduct which the grand jury found to be in violation of the Criminal Code, State v. Fennelly, 123 N.H. 378, 386, 461 A.2d 1090, 1094 (1983), he does not have a constitutional right to have all of the evidentiary details that the State intends to present at trial included in the indictment. Id.

Here, we find no error simply because there may have been a variation between the evidence presented to the grand jury and that heard by the trial jury. The defendant was tried for the same crime, aggravated felonious sexual assault, since there was no variance between the elements of the criminal act alleged in the digital penetration indictment and the proof offered at trial.

As to the other two indictments, the defendant challenges them on the basis that the officer’s testimony before the grand jury was not as detailed as the victim’s testimony at trial. Again, we note that the State is not required to present to the grand jury all of the evidentiary details that will be presented at trial. Cf. Fennelly, 123 N.H. at 386, 461 A.2d at 1094. The State merely has to present the grand jury with evidence of criminal conduct. Cf. id. Once the grand jury indicts, the State may present additional evidentiary detail to the trial jury. Accordingly, we find no error.

[273]*273 II. Sufficiency of the Evidence

The defendant next argues that there was insufficient evidence to sustain his convictions. The defendant focuses his argument on the alleged failure of the State to prove that the crimes occurred in July 1992 and that he was physically present in the State that month. The jury was instructed that they had to find that the crimes occurred in July 1992. See State v. Carter, 140 N.H. 114, 119, 663 A.2d 101, 104 (1995).

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Bluebook (online)
699 A.2d 591, 142 N.H. 269, 1997 N.H. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-silva-nh-1997.