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Paul Berry Lost His Appeal In NHSC Today
by ErieGuy 13 Replies latest watchtower child-abuse
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Gopher
Good news.
Is there a source to confirm this?
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Kenneson
It's true! What will the Watchtower say about this one? Go to:
Scroll down. It's on the left side of page. Article is entitled: "New Hampshire Supreme Court upholds convcition of man who sexually abused girl"
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gumby
Tuesday, July 23, 2002 E-mail This Article Here it is for the lazy ones.
N.H. Supreme Court upholds conviction of man who sexually abused girl
CONCORD, N.H. (AP) The state Supreme Court on Tuesday upheld the conviction of a Bible-quoting man who sexually abused a young girl, starting when she was 4 years old and ending when she was 10.
Paul Berry, 46, was convicted of 17 counts of aggravated felonious sexual assault two years ago. He was sentenced to 56 to 112 years in prison, possibly the longest sentence ever given for sexual assault in the state.
Berrys appeal said the trial judge should not have allowed evidence that he also physically abused and tortured the girl. The judge allowed the evidence to be introduced to explain why the girl waited until she was 17 to report the abuse.
Berry also said the trial judge should have allowed testimony by two defense witnesses who would have said the girl had a reputation for lying when she was a young child.
The judge said the testimony represented only the opinions of a few people and it had no bearing on whether the girl was telling the truth years later, when she reported the abuse to police.
The Supreme Court said the girl "believed, during the years she was sexually assaulted, that she was destined to live in constant fear and that the assaults were never gonna end."
The assaults included Berry hanging the girl by her wrists from hooks on a barn wall and, on another occasion, tying her to a tree, according to court records. The girl testified that Berry, a Jehovahs Witness, quoted Scriptures while forcing her to perform sex acts. She also said he struck her and threatened her so she would not tell her mother.
"The physical beatings and verbal threats ... explained why (the girl) became resigned to her fate as a victim of repeated sexual assault. It also explained her belief that reporting the abuse would be futile, thereby giving context to her delay in reporting the assaults," Justice Joseph Nadeau wrote for the court.
The high court also ruled that Judge Arthur Brennan had the discretion to exclude the testimony of two defense witnesses.
"The witnesses testimony was based upon the opinions of a small circle of children and their parents. The trial court found that this community was not of significant size and the evidence, therefore, was unreliable," the court ruled.
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Nanoprobe
Edited by - nanoprobe on 23 July 2002 21:11:2
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Nanoprobe
This is really sad.....
The assaults included Berry hanging the girl by her wrists from hooks on a barn wall and, on another occasion, tying her to a tree, according to court records. The girl testified that Berry, a Jehovahs Witness, quoted Scriptures while forcing her to perform sex acts. She also said he struck her and threatened her so she would not tell her mother.
Paul Berry HALL OF SHAME
(Members of the JW Congregation who served as character witnesses for Berry)
1) Joyce Saunders, 2) Rita Rivard, 3) Bob Ward, 4) Paul Ward, 5) Susan Ward 6) Shirley Roby, 7) Mike Earhardt, 8) Renata Earhardt, 9) Jean Mirona 10) Robin Nolan 11) Jessica Ellis, 12) Erin Corcoran 13) Sharon Ellis 14) Janet Dube, 15) Mike Dube, 16) Derek Hilpin, 17) Jose Rodriguez 18) Thomas Quigley, 19) David Garey, 20) James Hilton, 21) Gail Hilton, 22) Dean Foucher, 23) Wendi Herman, 24) Carla Ranchela, 25) Heidi Hearne, 26) Pat Hearne, 27) Robert Michalowski, 28) Shannon Christian 29) Ryan Unknown)
Edited by - nanoprobe on 23 July 2002 21:9:23
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Farkel
: The assaults included Berry hanging the girl by her wrists from hooks on a barn wall and, on another occasion, tying her to a tree, according to court records. The girl testified that Berry, a Jehovahs Witness, quoted Scriptures while forcing her to perform sex acts. She also said he struck her and threatened her so she would not tell her mother.
What's this world coming to when a Court has the audacity to introduce evidence that Berry was also torturing his daughter while he was raping her when she was 4 years old?
No wonder Berry had the common sense to ask them not to introduce such evidence. It's a shame that under Satan's evil influence they ignored his humble wishes and introduced it anyway.
Yeah, Berry you really got the shaft on that one. Let's see how you like the shaft(s) you're going to get in prison for the next 56 years, big boy! Watch your back you piece of shit scumbag.. But keep quoting that scripture!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!
Farkel
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ErieGuy
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 2000-762_________
THE STATE OF NEW HAMPSHIRE
v.
PAUL BERRY__________
Argued: May 8, 2002
Opinion Issued: July 23, 2002_________
Philip T. McLaughlin, attorney general (Susan P. McGinnis, attorney, on the brief and orally), for the State.
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Swope & Nicolosi, P.L.L.C., of Concord (Diane M. Nicolosi on the brief and orally), for the defendant.
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Nadeau, J. After a jury trial in Superior Court (Brennan, J.), the defendant, Paul Berry, was found guilty of seventeen counts of aggravated felonious sexual assault and four counts of misdemeanor sexual assault. See RSA 632-A:2, :4 (1996). On appeal, he alleges the trial court erred in: (1) admitting evidence of prior bad acts; and (2) barring the testimony of two defense witnesses. We affirm.
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The defendant married the victim's mother in 1980 and adopted her daughter, Holly, soon thereafter. The charges against the defendant stemmed from allegations that he repeatedly assaulted Holly over a six-year period, from 1983 to 1989. Holly was ten years old when the defendant moved out of the family home and the assaults ended, and she reported the sexual assaults to the police approximately seven years later.
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Prior to trial, the State filed a motion in limine seeking to introduce evidence that the defendant physically abused Holly during the time period when the sexual assaults occurred. The State sought admission of the evidence under New Hampshire Rules of Evidence 401, 402 and 403. It argued that the evidence was relevant to show "how and why [Holly] felt as she did about the defendant during the time period at issue." The State proffered that Holly would testify that her lack of resistance to the sexual assaults and her delay in reporting them was due, in part, to her fear that the defendant would physically harm her. The defendant objected, arguing that the evidence was inadmissible under New Hampshire Rule of Evidence 404(b), but did not claim that delay in reporting would not be an issue. Based upon the State's proffer, the trial court found the evidence admissible under Rules 401, 402 and 403 for the purpose of explaining Holly's delay in reporting the sexual assaults. The trial court also found the evidence relevant for the jury to consider in deciding whether Holly's testimony was credible and that it was "more probative than prejudicial to the defendant."
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The defendant renewed his objection to the admissibility of the evidence just prior to opening statements. A voir dire of Holly was conducted to examine her proposed testimony and, again, the trial court found the evidence admissible. The trial court ruled that [the] evidence is admissible only for the purpose of determining the witness's credibility regarding the delay in reporting. . . . It is not evidence that the defendant did these acts; it is only evidence of the credibility of the -- the alleged victim in light of the delay in disclosure. And with the length of time between the acts and the disclosure, it's implicit that there's a question as to why the [victim] disclosed so late.
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The trial court's ruling was based upon an analysis of the evidence under Rules 401, 402 and 403, not Rule 404(b).
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The trial court also ruled that it would issue a limiting instruction prior to witness testimony regarding the alleged physical abuse. The instruction would direct the jury to consider the evidence as it related to Holly's "state of mind at the time of the alleged [sexual] assaults, and/or her delay in disclosing the alleged assaults." The jury would be told not to consider the evidence for any other purpose. This instruction was given to the jury during Holly's testimony. The trial court also issued the instruction when Holly's mother testified about the defendant's physical abuse of her daughter.
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The crux of the defendant's case was that the assaults never occurred and that Holly's allegations were untrue. The defendant sought to present the testimony of two witnesses that Holly had a reputation for untruthfulness in the community. During voir dire, both witnesses testified that they had known Holly when she was a child, five or six years before Holly first reported the sexual assaults to an adult. The witnesses testified that Holly's reputation was essentially based upon the opinions of a small circle of children and their parents. Because it was based upon such a small group of individuals, the trial court found the witnesses' reputation evidence unreliable. The trial court also found that the witnesses knew Holly only when she was a child, years before she finally reported the sexual assaults to the police as a young adult. The trial court ruled, therefore, that their testimony had no relevance regarding Holly's reputation for truthfulness at the time she reported the sexual assaults.
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We begin with the defendant's argument that the trial court erroneously admitted evidence of the defendant's physical abuse of Holly without conducting an analysis under Rule 404(b). We agree with the defendant that the evidence constituted "other bad acts" and that the trial court should have considered the requirements of New Hampshire Rule of Evidence 404(b). We will not reverse a trial court decision, however, when it reaches the correct result and valid alternative grounds exist to reach that result. See State v. Cote, 143 N.H. 368, 378 (1999). In this case, we note that the trial court made specific findings regarding the relevance of the physical abuse evidence and its potential prejudice under Rules 401 and 403. Reviewing the evidence under Rule 404(b) does not diminish these findings, and we conclude that the evidence was admissible under Rule 404(b).
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.__________
Evidence of other bad acts is admissible when: (1) it is relevant for a purpose other than to prove the defendant's character or disposition; (2) there is clear proof that the defendant committed the acts; and (3) the prejudice to the defendant does not substantially outweigh the probative value of the evidence. State v. Dukette, 145 N.H. 226, 229 (2000). Rule 404(b) ensures that the defendant in a criminal trial is "tried on the merits of the crime as charged and [prevents] a conviction based on evidence of other crimes or wrongs." State v. Bassett, 139 N.H. 493, 496 (1995).
The evidence of the physical abuse of Holly was relevant to her delay in reporting the sexual abuse. Cf. United States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995), cert. denied, 516 U.S. 1077 (1996); Merzbacher v. State, 697 A.2d 432, 441-42 (Md. 1997); State v. Bynum, 433 S.E.2d 778, 780-81 (N.C. App. 1993); State v. Wilson, 808 P.2d 754, 757 (Wash. App. 1991). Holly testified that the defendant was the disciplinarian of the household and that she "was really scared of him." She believed, during the years she was sexually assaulted, that she was destined to live in constant fear and that the assaults were "never gonna end." The defendant threatened Holly that if she told her mother about the abuse, her mother would throw her out of the house in a jealous rage. The physical beatings and verbal threats, coupled with the defendant's role in the family as the disciplinarian, explained why Holly became resigned to her fate as a victim of repeated sexual assault. It also explained her belief that reporting the abuse would be futile, thereby giving context to her delay in reporting the assaults._____________
This is not a case where "an assumption based upon the defendant's propensity toward certain action is the essential connection in the inferential chain supporting relevance." State v. Melcher, 140 N.H. 823, 830 (1996). Indeed, evidence of the physical abuse was offered to show the reason why Holly delayed in reporting the assaults, not that the defendant had a violent character or that he acted in conformity with that character by sexually assaulting Holly.
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Turning to the clear proof requirement, it is satisfied when the State presents evidence "firmly establishing that the defendant, and not some other person, committed the prior bad act." State v. Lesnick, 141 N.H. 121, 126 (1996). Here, the trial court did not expressly find that the State's proffer satisfied the clear proof prong. "We ordinarily would remand this unresolved issue; however, when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law." State v. Gordon, 146 N.H. 258, 262 (2001) (quotation omitted).
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First, we note that the trial court implicitly found clear proof that the defendant physically abused and threatened Holly. In its ruling just prior to opening statements, the trial court found that the defendant not some other person committed "random acts" of physical abuse and verbally threatened Holly. Further, Holly clearly identified the defendant as the individual responsible for physically abusing her. During voir dire, she stated "[the defendant's] hand would come out of nowhere and knock me onto the ground for no reason; or throw me into a chimney because I wouldn't finish my dinner." Finally, Holly's allegations of physical abuse were corroborated by her mother's testimony. Based upon the foregoing, the evidence compels us to conclude that the State presented evidence "firmly establishing that the defendant, and not some other person, committed the prior bad act," Lesnick, 141 N.H. at 126, and no reasonable fact finder could find otherwise. See Gordon, 146 N.H. at 262.
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In its pretrial order on the State's motion in limine, the trial court found the evidence of physical abuse more probative than prejudicial. Evidence that the defendant beat Holly and created an atmosphere of fear in the household was highly probative of Holly's delay in disclosing the sexual assaults. By its nature, evidence of other bad acts is tainted with prejudice and can only be admitted for a non-propensity purpose. The trial court acknowledged the limited non-propensity purpose of the evidence and gave a well-structured instruction, limiting the use of the evidence to explaining Holly's delay in reporting the sexual assaults. The defendant has not demonstrated that any remaining prejudicial effect substantially outweighed the probative value of the evidence. See State v. Haley, 141 N.H. 541, 547 (1997).
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The evidence of the physical assaults was admissible under Rule 404(b). Accordingly, even though the trial judge did not conduct an analysis under Rule 404(b), its decision to admit the evidence reached the correct result and reversal is not warranted. Cote, 143 N.H. at 378.
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The defendant's second claim of error upon appeal is that the trial court erred in barring two witnesses from testifying about Holly's reputation for truthfulness in the community. See N.H. R. Ev. 608(a). We examine the trial court's ruling on the admissibility of this evidence under the unsustainable exercise of discretion standard. See State v. Porter, 144 N.H. 96, 98 (1999); State v. Lambert, 147 N.H. 295, 296 (2001).
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Reputation evidence "may be introduced only after the proponent has laid a proper foundation." State v. Vachon, 139 N.H. 540, 543 (1995). The party seeking to introduce such evidence must establish "that the reputation witness possesses a sufficient basis of knowledge such that the reputation evidence may be considered to be reliable." Id.
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This requires that: (1) the individual's reputation must be held generally in a community of significant size; (2) it must be developed over enough time to truly reflect character for truthfulness; and (3) it must be based upon the need of the members of the community to deal with the individual on a frequent basis. Id.
______________We agree with the trial court that the defendant failed to establish the foundational predicate necessary for the admission of the reputation evidence. The witnesses' testimony was based upon the opinions of a small circle of children and their parents. The trial court found that this community was not of significant size and the evidence, therefore, was unreliable. After reviewing the record, we conclude that this finding was not an unsustainable exercise of discretion.
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All other issues raised in the notice of appeal but not briefed are deemed waived. See State v. Mountjoy, 142 N.H. 648, 652 (1998).
Affirmed.
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BROCK, C.J., and DUGGAN, J., concurred. -
Dismembered
A little inside info friends;
This guy was allowed to be a "Key Man", or Dept. Head Overseer on the Natick Mass. Assembly Hall renovation project, a few years ago. He was allowed to live on the construction site and be Mr. Big Boss while this shit was going on. Unreal!!!!!
Edited by - Dismembered on 24 July 2002 8:19:53
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hawkaw
If I remember correctly, Mr. Paul Berry is STILL a Witness in Good Standing and I can't remember but he still may have the title of Ministerial Servant.
Kismet said something the other day that rings true - Its people like the Holly and Heather who have the guts to come forward who are the real heros in all of this.
hawk