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State v. Labrie

Supreme Court of New Hampshire, Merrimack

June 7, 2019


          Argued: November 28, 2018

          Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

          HANTZ MARCONI, J.

         The defendant, Owen Labrie, was convicted by a jury on three counts of sexual assault, see RSA 632-A:4, I(c) (2016), one count of endangering the welfare of a child, see RSA 639:3, I (2016), and one count of using computer services for a prohibited purpose, see RSA 649-B:4, I(a) (2016) (computer services use charge). State v. Labrie, 171 N.H. 475, 477 (2018). In the instant appeal, the defendant challenges an order of the Superior Court (Smukler, J.) denying his motion for a new trial based upon ineffective assistance of counsel as to the computer services use charge. We affirm.

         I. Pertinent Facts

         The facts underlying the defendant's convictions are fully set forth in Labrie. See id. at 478-81. We repeat only those facts necessary to decide the instant matter. For the facts relevant to the defendant's motion for a new trial, we rely upon the trial court's order denying that motion and the record submitted in this appeal.

         A. Facts Underlying the Defendant's Convictions

         In early 2014, the defendant was 18 years old and a senior at St. Paul's School (SPS), a private coeducational boarding school in Concord. Id. at 478. At SPS, there was a prominent annual springtime tradition known as the "senior salute," which involved a senior sending a note (or a senior salute) to a younger student on campus, inviting that younger student to spend time with the senior before he or she graduated. Id. Often, these notes had sexual connotations. Id. Although a senior salute could be an invitation simply to meet up with someone on campus, it was widely understood among SPS students that physical contact, at least in the form of a kiss, was almost always expected. Id. It was not unusual for the invitation to imply more advanced sexual contact as well, including sexual intercourse. Id.

         On May 28, the defendant sent the victim the following senior salute via e-mail:

[W]hile the thought of my name in your inbox makes me blush perhaps more than it should, there's something [I] want to share with you and my evenings left to do it are growing fewer by the evening. [T]here's a door here that's been locked since before we were born, but in a moment of divine intervention the night before last, its hinges swung open in my hands. [I]f you want a definition of the word bittersweet, think of me spending three years trying to open it yet now only having three nights to remember the view. [I] want to invite you to come with me, to climb these hidden steps, and to bask in the nicest view [M]illville has ever had to offer. [I] hope you're all right with heights.
[I]f you're not otherwise engaged, mull it over. [I] ask only that you let me know soon--these days they're not making time quite like they used to.

Id. at 479 (quotation omitted). The victim replied to the defendant, stating:

[W]hile the thought of your name in my inbox gives me a sense of [déjà vu], ([my sister] and I are very close sisters, ) and although I would like to climb those hidden steps with you, I have to decline. I would like to climb that, not the list of [freshmen] that have spent quality time with you.

         Id. at 479-80 (quotation omitted). The defendant responded to the victim's e-mail, stating:

[P]robably one of the sassier emails [I]'ve ever received, my sweet lord. . . . [I]'m afraid that list is slimmer than you might think. [P]retty much nonexistent this term, even. [B]ut do as you please, [ma chère]. [I]'d have taken you either way.

Id. at 480 (quotation omitted). The defendant concluded his response with song lyrics in French, which translate as, "It's 2:45, . . . it's late and all the boys are dancing for you to console you, . . . their queen." Id. (quotation omitted).

         Following this exchange, the defendant asked a freshman in his dormitory to put in a good word for him with the victim. Id. After speaking with the freshman, the victim e-mailed the defendant. Id. Translated from French, the e-mail stated, "It's true, . . . please forgive me. Yes, only if it's our little secret." Id. (quotation omitted). The defendant interpreted this to mean that the victim would meet him, but only if they kept it between themselves. Id. The defendant responded, "[W]hat a golden change of heart. [Y]ou've saved it until the very end - there's not a lot of time but [I]'m sure we can figure something out. [P.S.] [Y]our French is amazing. [N]ot a soul needs to know." Id. (quotation omitted). Subsequently, via Facebook Messenger, the two made a plan to meet. Id.

         Before meeting the victim, as planned, on May 30, the defendant sent a message to an SPS alumnus that stated, "I'm slaying [the victim]." Id. at 480-81 (quotation omitted). Viewed in the light most favorable to the State, "slay" was a word regularly used by students at SPS to refer to sexual penetration, including digital penetration, oral sex, and sexual intercourse. Id. at 478 & n.1.

         That evening, the victim met the defendant on campus, and the pair, at the defendant's suggestion, entered an SPS building. Id. at 481. The evidence, viewed in the light most favorable to the State, indicates that the defendant ultimately penetrated the victim digitally, with his tongue, and with his penis. Id. Viewed in the light most favorable to the State, the evidence establishes that on the evening of the encounter and throughout the weekend, the defendant told various SPS students that he had had sexual intercourse with the victim. Id. In a conversation with a friend, the friend asked, "How did it go from no to bone?," meaning how did it go from the victim declining the defendant's e-mail invitation to the victim and the defendant having sexual intercourse. Id. (quotation omitted). The defendant responded that he "just pulled every trick in the book," including oral sex. Id. (quotation omitted).

         B. Jury Trial

         The defendant's jury trial was in August 2015. He was represented primarily by J.W. Carney, Jr. and Samir Zaganjori. Because neither attorney is admitted to practice in New Hampshire, they retained local counsel, Jaye Rancourt. Carney acted as lead counsel; Zaganjori acted as co-counsel; and Rancourt was available to consult with the rest of the trial team and to act as needed.

         In addition to the felony computer services use charge, the defendant faced three counts of aggravated felonious sexual assault (AFSA), three counts of misdemeanor sexual assault, two counts of endangering the welfare of a child, and one count of misdemeanor simple assault. One of the AFSA charges alleged that the defendant "utilize[d] the element of surprise" to cause penetration. See RSA 632-A:2, I(i) (2016). The remaining two AFSA charges alleged that he penetrated the victim when she indicated by speech and/or conduct that she did not freely consent to that penetration. See RSA 632-A:2, I(m) (2016). Six of the ten charges the defendant faced required the State to prove sexual penetration beyond a reasonable doubt. After the close of the State's case, the trial court dismissed one of the endangering the welfare of a child charges.

         In her opening statement, the prosecutor told the jury that the defendant raped the victim. The prosecutor said that the evidence would show, beyond a reasonable doubt, that the defendant "penetrated [the victim] digitally, that he engaged in oral sex with her, that he penetrated her with his penis, [and] that she indicated by speech or her actions that her consent was not given, that this was against her will." As to the computer services use charge, the prosecutor said:

The evidence is going to show you that the Defendant utilized the email server and Facebook, social network, to entice [the victim] to solicit, lure, or entice her to meet with him with a plan that he was going to have sex with her. And I encourage you to listen to that very carefully.

She told the jury that "[u]ltimately," the case came "down to one thing: Do you believe [the victim]? The State believes that you will."

         In his opening statement, Carney began by telling the jury that if the jury had a reasonable doubt about the victim's testimony, "then the government hasn't proven its case." He told the jury that the first issue for it to consider "is what does the evidence show about whether [the victim] was willing or unwilling" during her encounter with the defendant. He suggested that the "best evidence" of whether the victim was a willing or unwilling participant was her "own words." Carney then quoted each of the electronic messages that the defendant and victim exchanged and invited the jury to infer that the victim's words in those messages were not the "the words of a rape victim."

         Carney told the jury that the second issue for it to consider was whether there was "penetration of the vagina by . . . a penis or a finger or a tongue." Carney informed the jury that the phrase "senior salute" refers to a "range of activity," that the defendant denied to the police and would deny at trial that he ever penetrated the victim sexually, and that the evidence would show that the defendant and the victim, in fact, "never did have sex."

         The victim was the first witness to testify. On cross-examination, Carney elicited the victim's admission that the phrase "senior salute" could mean "to just hang out with someone," and did not necessarily refer to having sex. The victim testified that, after she received the defendant's senior salute, she thought that he might want to kiss her, but that was "the extent [to which she] thought it would go." During his cross-examination of the victim, Carney reviewed with her the electronic messages that she and the defendant exchanged. Carney also asked the victim whether she had told her friend before meeting up with the defendant, "I'll probably let him finger me and . . . at most I'll blow him." The victim testified that she had "no recollection" of saying this.

         On the fourth day of trial, several of the defendant's friends testified on behalf of the State. Defense counsel cross-examined several of those friends regarding the meaning of terms like "score," "hook up," and "slay," words that the defendant had used in electronic communications and conversations with his friends. Counsel elicited testimony that those terms did not necessarily refer to sexual intercourse.

         In addition, the defense team elicited testimony from both the defendant's friends and the victim's friends that the term "senior salute" could be an invitation to engage in any number of activities from walking around campus to having sex. During his cross-examination of one of the defendant's friends, Zaganjori elicited testimony that the defendant never told that friend that he planned or expected to have sexual intercourse with the victim. During cross-examination, one of the victim's friends testified that, before meeting up with the defendant, the victim had said that she would probably let the defendant "finger her" and that "[a]t most," she would "blow him."

         The defendant testified on the sixth day of trial. On direct examination, he testified that the word "slay" could refer to "walking around the lake," that the word "bone" could refer to "kissing," that the word "score" did not necessarily refer to engaging in physical activity with a member of the opposite sex, and that the term "hook up" could refer to kissing or "dry-humping." The defendant testified that he sent a senior salute to the victim because he "wanted to ask her out." His plan, he said, was to take her to the chapel tower. During his direct examination of the defendant, Carney reviewed with the defendant the electronic messages that he and the victim had exchanged. In testifying about the encounter with the victim, the defendant denied ever putting his fingers, tongue, or penis under the victim's underwear. He testified that it had not "been [his] intention going into the night to have sex with [the victim]."

         In his closing argument, Carney again focused upon the electronic messages that the defendant and the victim exchanged. He told the jury:

Now one of the most important piece[s] of evidence of all is what the e-mails and chats were between [the victim] and [the defendant]. In particular, the ones after they got together, not just in the next hour, not through the remainder of the day, not into the next day, into the next week between the two of them. Please read those e-mails and chats and decide is this someone who was unwilling in what happened in the attic. Was this the conversations at [the victim's] end by a rape victim, because that's what ...

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