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State v. Czekalski

Supreme Court of New Hampshire

April 11, 2017

THE STATE OF NEW HAMPSHIRE
v.
JASON CZEKALSKI

          Argued: February 16, 2017

         Cheshire

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

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          Jason Czekalski, the defendant, filed a supplemental brief with permission of the court.

          DALIANIS, C.J.

         The defendant, Jason Czekalski, appeals his convictions on two counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(1) (1996) (amended 2003), II (1996) (amended 1999), and one count of pattern AFSA, see RSA 632-A:2, III (2016), following a jury trial in Superior Court (Kissinger, J.). On appeal, he argues that the trial court erred by denying his motion to suppress evidence related to a January 2013 telephone call between the defendant and the victim, recorded by the police with the victim's consent. See RSA 570-A:6 (2001), :7 (Supp. 2014) (amended 2015), :9, IX (2001). He asserts that suppression was warranted because the recording was not "done in such way as [would] protect the recording from editing or other alterations." RSA 570-A:9, VII(a) (2001); see RSA 570-A:6 (providing that "[w]henever any telecommunication or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of this chapter").

         In his supplemental brief filed with court permission, the defendant argues that the trial court also erred when it denied his motion to continue the trial. The defendant further argues, under our plain error rule, see Sup. Ct. R. 16-A, that the trial court should have dismissed two of his indictments because they were defective and the trial court erred when it allowed a juror to be seated who allegedly failed to complete a juror questionnaire. We affirm.

         I. Recorded Telephone Call

         A. Relevant Facts

         In January 2013, the State Police recorded a telephone conversation between the defendant and the adult victim. Before doing so, the police obtained authorization from the Office of the New Hampshire Attorney General to record the call. The police recorded the call pursuant to that authorization and with the victim's consent.

         In the recorded call, the defendant and the victim discussed his conduct when the victim was a child. The victim told the defendant that she had begun to see a counselor to talk about "[w]hat [the defendant] did to [the victim] when [she] was growing up." During the conversation, the defendant admitted that, when the victim was a child, he once digitally penetrated her, twice touched her "privates, " and touched her breasts. The defendant told the victim that he did not know why he engaged in this conduct. He said, "I still can't come up with any kind of explanation that makes sense . . . [o]ther [than] I was weak and I let evil rule me till I found a counselor who would do things anonymously so he did not have to report me." The defendant told the victim that he was "so sorry."

         Thereafter, the defendant was arrested. In his subsequent police interview, the defendant admitted that he once digitally penetrated the victim, touched her pubic hair, partially removed her underwear, and "probably" touched her breasts "probably . . . in the same time period" during which he partially removed her underwear.

         A Cheshire County grand jury indicted the defendant on several charges, including: (1) a charge alleging that he had committed AFSA when he purposely penetrated the victim digitally when she was younger than 13 years old; (2) a charge alleging that he had committed AFSA when he intentionally touched the victim's genitalia without penetration when she was younger than 13 years old; and (3) a charge alleging that the defendant had engaged in a pattern of AFSA when he touched the victim's breasts on more than one occasion in 1995, when she was younger than 13 years old, "under circumstances that can reasonably be construed as being for purposes of sexual arousal or gratification." See RSA 632-A:2, I(1), II, III.

         Before trial, the defendant moved to suppress evidence from the recorded telephone call and "any evidence obtained as fruit of the poisonous tree" on the ground that the recording was not "done in such way as will protect [it] from editing or other alterations." RSA 570-A:9, VII(a). The State objected to the motion, arguing that the statutory language upon which the defendant relied did not apply to the recorded communication in this case. The trial court agreed with the State.

         At trial, the victim, who was born in 1983, testified that the defendant "molested [her] while [she] was growing up, " including when she was 11 and 12 years old. The victim testified that, when she was asleep, the defendant "would come into [her] room and would remove parts of [her] clothing and he would rub [her] breasts and [her] vagina, and he stuck his fingers inside of [her] sometimes." The victim testified that "every time he was done[, ] he would whisper into [her] ear, 'It was just a dream, just a sweet, sweet dream, ' and then he would leave the room." The victim testified that she "would pretend that [she] was sleeping because [she] was so scared." The victim estimated that the defendant ...


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