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The State of New Hampshire v. Jason Wilmot

January 13, 2012

THE STATE OF NEW HAMPSHIRE
v.
JASON WILMOT



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Hillsborough-southern judicial district

Argued: September 21, 2011

The defendant, Jason Wilmot, appeals his convictions, following a jury trial in Superior Court (Lynn, C.J.), on two counts of first- degree assault for recklessly causing serious bodily injury to a person under thirteen years of age. See RSA 631:1, I(d) (2007). He argues that the trial court erred in not setting aside the jury's verdict because the evidence could not have supported a conclusion by the jury that his statements to police were voluntary and without those statements the evidence was insufficient to support the jury's verdict. We affirm.

The jury could have found the following facts. The victim was between two and three months old when his ribs and skull were fractured and he was shaken, which caused his brain to bleed. When the baby suffered these injuries, the defendant lived with the baby and the baby's mother.

On December 27, 2007, the defendant was alone with the baby in the morning. When the baby's mother next saw him, he was "all white and crying, gasping for air." The baby's mother took him to the hospital where he stayed overnight, with the diagnosis of a cold.

Twelve days later, after being alone with the baby in the afternoon, the defendant told the baby's mother that he was "doing that limp thing again . But he's fine. He's breathing." The baby slept until later that evening. When the baby's mother and a visiting guest heard the baby crying, both offered to check on him, but the defendant refused. The defendant turned off the baby monitor, went to the baby's room alone and was gone for fifteen minutes.

At some point, the baby "cried a cry" his mother had "never heard." The mother asked the defendant if "everything [was] okay," and the defendant said, "yes, everything's fine." The baby was, in fact, "very pale," "very limp," gasping for air and non-responsive. He also had a bruise under his eye. The baby's mother brought him to the hospital again, and this time, doctors concluded that he was seriously injured.

The next day, as part of their investigation into the baby's injuries, police detectives videotaped two interviews with the defendant. In the first interview, the defendant told the detectives that, on the day before the interview, he had "picked [the baby] up too hard in the ribs." He then checked the baby for bruises and, finding none, decided that the baby was fine. The defendant said that he "felt horrible" about mishandling the baby, but did not tell the baby's mother immediately because he feared that she would leave him.

The detectives encouraged the defendant to reveal more about the incident, telling him, "If we can see there's a problem but there's some solutions to fix the problem, that's much better than getting people in trouble and breaking up a family." They said, "Sometimes when we do this, these thing[s] end very horribly. . . . [The baby] looks like he's gonna be fine." At one point, the defendant told the detectives that, when picking the baby up, he "might have shooken [sic] him a little bit," but throughout the interview, he maintained that he had only shaken the baby on the day of the second hospital visit. The interview lasted less than three hours, and when it ended, the police brought the defendant to a friend's home.

At approximately ten o'clock that night, the defendant drove to the police station for a second interview, which lasted less than an hour. Before the interview began, the defendant orally waived his Miranda rights and signed a waiver form. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). The detectives then pressed the defendant to admit to other abusive episodes. One said: You are the only one that did this. We are 100 percent sure of it now, 100 percent sure of it. Both times this baby is fine, things are going good, all of a sudden out of the blue, he's not breathing right, he's lethargic, his arms are going every which way, his eyes are kicking out to the side. Who finds him that way both times? You. . . . We're trying to meet you halfway . . . . But . . . I'll tell ya, from this point on, I'm not buying it. You tell us what you did and tell us the truth. . . . And nothing would make us happier than when this is all said and done, and we find out the whole truth from you, and we find out that this will never happen again, that's our greatest hope[ ], to put your family back together the way it should be.

The defendant admitted that he had also shaken the baby on the morning of the first hospital visit. He told police that the first event was "[n]ot as hard" as the second, and that during the second episode he "shook [the baby] once, but his head went . . . back, forward and then a little bit back." After the second interview, the defendant was arrested and charged with first degree assault.

At trial, the court denied two motions for directed verdict, and the jury found the defendant guilty of recklessly injuring the baby. The defendant then moved to set aside the jury's verdict, arguing that his statements to police were involuntary. The trial court ...


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