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State v. Breest

Supreme Court of New Hampshire

February 17, 2017


          Argued: October 6, 2016


          Joseph A. Foster, attorney general (Elizabeth C. Woodcock and John J. Kennedy, assistant attorneys general, on the brief, and Ms. Woodcock orally), for the State.

          Albert E. Scherr, of Concord, by brief, and Boies, Schiller & Flexner LLP, of Armonk, New York (Ian M. Dumain on the brief and orally), for the defendant.

          Wilmer Cutler Pickering Hale & Dorr LLP, of Boston, Massachusetts; Washington, D.C.; and Los Angeles, California (Louis W. Tompros, Dino L. LaVerghetta, Richard A. Crudo, and Catherine Owens on the brief), and Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Andru H. Volinsky on the brief) for The Innocence Project, Inc., as amicus curiae.

          LYNN, J.

         In 1973, the defendant, Robert Breest, was convicted of murdering Susan Randall. Although we affirmed his conviction on direct appeal, see State v. Breest, 116 N.H. 734 (1976), the defendant has maintained his innocence since his conviction and has instituted numerous collateral proceedings in an effort to secure his freedom.[1] Since 2000, the defendant has succeeded in obtaining multiple rounds of DNA testing of fingernail clippings taken from Randall's body. All of this testing, including the latest round conducted in 2012, showed that the defendant could not be excluded as a contributor of DNA material found on the clippings. However, the most recent testing revealed for the first time that the clippings also contained DNA material from another unidentified male contributor. Based upon the latest test results, the defendant moved for a new trial.[2] At the hearing on his new trial motion, the State sought to exclude non-DNA evidence that the defendant had proffered, but that was not presented at his original trial. The Superior Court (Smukler, J.) granted the State's motion to exclude the non-DNA evidence and, following a hearing, denied the motion for a new trial. The defendant appeals both rulings. We affirm.


         The pertinent facts are as follows. On March 2, 1971, a state highway employee found Randall's body, clothed from the waist up, on the frozen Merrimack River near Interstate Route 93 in Concord. Randall had been reported missing since February 27 of that year. The body, located 20 to 25 feet away from a bridge, was placed in a rescue basket by two officers from the Concord Police Department and taken to the Concord Hospital morgue. There, Dr. George C. Katsas, a board certified forensic pathologist, performed an autopsy. According to Katsas, Randall's body was heavily bruised as a result of multiple traumas. Her facial and neck area were covered with lacerations and contusions. An internal examination of Randall's body revealed massive injury to the vital organs: her lungs had been severely bruised, her liver was almost split in half, and there were multiple ruptures of her duodenum. Also, Randall's skull had been fractured. Although Katsas conceded that some of the injuries may have been caused by a fall from the nearby bridge onto the frozen river, he asserted that the injuries to the liver and duodenum were rare and were most often caused by kicking the abdominal area. Based upon the autopsy, Katsas concluded that Randall's death had occurred as a result of multiple blunt injuries. He estimated that Randall was killed within a few hours of her last meal, which she ate late in the evening of February 27. Furthermore, in light of her appearance at the time she was found, Katsas believed that Randall had been sexually assaulted. The medical examiner clipped Randall's fingernails, and the police retained the clippings as evidence.

         On the night of her death, Randall invited her friend, Judy Jenkins, to visit Randall's apartment on Manchester Street in Manchester. Around 11:45 p.m., Jenkins left Randall in the vicinity of Granite Square in Manchester. At that time, Randall was wearing blue jeans, a sweater, a hip-length brown fur coat, and a brown floppy hat.

         One witness testified that while driving through Granite Square shortly after midnight, she saw a young woman hitchhiking in an easterly direction in front of the Chicken House Restaurant. The witness claimed that the woman was wearing a floppy hat, a dark coat, and slacks. When the witness drove by the same area around 12:30 a.m., the woman was gone.

         Four individuals sitting in the Chicken House Restaurant also saw a woman hitchhiking. One of the four individuals described her as wearing a floppy brown hat, a fur coat, and dark pants. All four witnesses testified that they saw her enter a white, four-door car with blue interior upholstery. One witness stated that the car was driven by a "big man, I'd say around six feet tall, very broad shoulders, a big head for a man his size." At trial, one individual stated that the driver had a build consistent with the defendant's.

         On the night Randall died, several witnesses placed the defendant in Manchester. Around 5:30 p.m., the defendant sought help from two young men to move furniture into the back seat of his white car--a 1964 Ford with blue upholstery. After loading the furniture into his car, the defendant dropped the men off and left Manchester for Lowell, Massachusetts.

         Upon arriving in Lowell at 10:30 p.m., the defendant asked Dolor Morel to help him take the furniture out of the car. Morel noticed that the back seat of the car was missing. The defendant told Morel that he was returning to Manchester to get more furniture; Morel saw the defendant leave after 11:00 p.m. and did not see him come back. The following day, Morel noticed the defendant's vehicle parked in the street with the back seat in place.

         There also was evidence that the defendant went to Jennie Haggett's residence in Manchester around 11:45 p.m. on February 27. After the defendant spoke with Haggett's son, Haggett told the defendant to leave. Haggett testified that the defendant retrieved an object from the porch and placed it in his car before driving away around 12:10 a.m. on February 28 in the direction of Granite Square. On the morning of March 1, before Randall's body had been found, Haggett went to the Manchester Police Department and reported that a man named "Robert" had come to her Manchester home on the night of February 27th and disturbed her family. She claimed that the man weighed over 200 pounds and was over six feet tall. This description was consistent with the defendant's build.

         The day that Randall's body was found, the defendant went to the Manchester Police Department and told an officer that he had heard that a body had been found. The defendant then stated that he thought the police would want to speak with him because he had been "questioned before on things."

         On March 15, 1971, Colonel Paul Doyon of the New Hampshire State Police met with the defendant at the defendant's home in Lowell. Doyon explained that he was investigating Randall's homicide and was interested in learning the defendant's whereabouts on February 27, 1971. The defendant provided an account of his activities on February 27 that was consistent with the testimony at trial, with one exception. The defendant told Doyon that, after he unloaded furniture in Lowell, he stayed at home for the rest of the night of February 27. During their conversation, Doyon asked to look at the defendant's vehicle. The defendant consented. Doyon did not see anything incriminating in the vehicle at that time.

         However, Doyon observed scratches between the defendant's knuckles, and inquired about them. The defendant stated that the scratches had been caused by a cat. Doyon noted the scratches in his report and stated that the scratches appeared to be consistent with the defendant's explanation because they were not injuries that one would receive from using one's hands in a fight. At trial, Doyon qualified his answer and explained that the injuries were not consistent with injuries that one would receive in a fight insofar as the scratches did not appear to be "offensive injuries." However, the scratches could have been "defensive injuries."

         On April 2, 1971, pursuant to a warrant, the police searched the defendant's vehicle for fingerprints, blood, and trace evidence. They removed fibers and paint chips from the vehicle. Roger Beaudoin of the New Hampshire State Police Crime Laboratory microscopically examined the particles and compared them to samples taken from Randall's clothing. As a result of the examination, Beaudoin concluded that there was a "high degree of probability" that there was contact between Randall's clothing and the defendant's vehicle. Beaudoin subsequently sent the samples to the chief of the forensic branch of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Using a technology known as neutron-activation analysis, the chief opined that Randall's coat had come in contact with the defendant's vehicle.[3]

         In 1973, the defendant was tried for Randall's murder. At trial, the defendant asserted that he was not in New Hampshire when Randall was killed. The State presented testimony from David Carita, who had been incarcerated with the defendant while the defendant was contesting extradition from Massachusetts to New Hampshire after his arrest. Carita testified that when he asked the defendant if he had murdered "Susan, " the defendant confessed that he had. Carita also stated that the defendant told him that he had committed the murder when "[t]here was nobody around."

         In its closing argument, the State asserted that the scientific evidence and eyewitness testimony supported its theory that the defendant had picked up Randall, struggled with her, and then beat her to death. The jury returned a guilty verdict, and the defendant was sentenced to life in prison.

         Between 2000 and 2008, three rounds of DNA testing were conducted on Randall's fingernail clippings. None of these tests excluded the defendant as the contributor of the DNA. In 2012, with the State's consent, the defendant obtained another round of DNA testing. Because of the analyst's use of new technology, the DNA test indicated that the fingernail clippings contained DNA from two different males. The defendant could not be excluded as the contributor of one of the male DNA profiles, but he was excluded as the contributor of the other profile.

         Based upon the 2012 test results, the defendant moved for a new trial, pursuant to RSA 651-D:2. If several prerequisites are met, RSA 651-D:2, which governs post-conviction DNA testing, allows prisoners to "at any time after conviction . . . petition the court for forensic DNA testing of any biological material." RSA 651-D:2, I. Paragraph VI(b) states that if the results of the DNA test conducted under the statute "are favorable to the petitioner, " the court "shall order a hearing." Id. at VI(b). At the conclusion of the hearing, the court "shall enter any order that serves the interests of justice, " including an order "setting aside the judgment, discharging the petitioner . . . resentencing the petitioner, or granting a new trial." Id.

         Prior to a hearing on the defendant's motion, the State moved to exclude three evidentiary items that it argued were unrelated to the 2012 DNA test results: (1) an affidavit from John J. Kelleher, who was imprisoned with the defendant and Carita in 1972-1973, and whose averments tend to undermine Carita's testimony that the defendant confessed to the murder; (2) an affidavit from Dr. Jeffrey Neuschatz, who would have opined on the effect of Carita's testimony on the jury at the 1973 trial; and (3) testimony from Professor Stephen J. Morris discrediting the neutron activation analysis used in the 1973 trial. The trial court granted the State's motion, concluding that the ...

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