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New Hampshire Supreme Court Upholds Arson Conviction Supported by Audiotapes and Videotapes
NEW HAMPSHIRE SUPREME COURT UPHOLDS ARSON CONVICTION SUPPORTED BY AUDIOTAPES AND VIDEOTAPES
In State v. Dugas, No. 99-680 (Oct. 9, 2001), the Supreme Court of New Hampshire reviewed the defendant's arson conviction. Just before midnight on October 23, 1998, the Nashua Fire Department responded to a building fire that had been reported by passersby. Upon arrival, the fire fighters found a fire inside a convenience store known as Dugas Superette. They gained entry through locked doors and determined that the fire was confined to the southeast corner of the basement.
After extinguishing the fire, fire personnel began an investigation to determine the exact cause and origin of the fire. They found no signs of forced entry into the building, no likely cause from electrical or mechanical systems, and no accidental cause. During the course of the investigation, an accelerant detection dog "alerted" on several papers that were part of business records stacked in the southeast corner of the basement. Testing of several samples revealed the presence of ignitable fluids, leading the investigators to conclude that the fire was intentionally set.
Dugas Superette was principally owned by Edgar Dugas, the defendants father. In October 1998, the defendant managed the store and owned a minority share of the business. The store contained a basic grocery business with a fresh and fried seafood department run by the Dugases as well as separate concession areas for pizza and video rentals operated by others.
The defendant immediately responded and assisted the fire fighters by providing information about the building.
Later, the defendant consented to a search of the building by the police. In their search, the detectives noted that an electrically powered clock had stopped at 10:44. An investigator later determined that the wiring that powered the clock failed due to the heat of the fire. The detectives seized a videotape from the store's camera surveillance system. The defendant agreed to interviews at the fire scene and alter the next morning at the police station.
In a tape-recorded interview at the police station, the defendant described his role as manager of the store. He also described the two independently operated concessions within the store, and identified and explained the role of each person who worked in the building the day of the fire. The defendant provided information regarding the store's security system, which included video cameras, motion detectors and alarms. The defendant then described his activities the day of the fire. He reported that the arrived at 8:00 a.m. and, except for an afternoon break, worked through the day, closing the store juste before 10:00 p.m. He left with a pizza he had purchased from the pizza concession in the store and drove to the bank to make the night deposit. After arriving home, he ate, showered and then left to pick up his daughter at the movies.
During the interview, the defendant also reported that he was aware the building was covered by fire insurance but did not know what losses the policy covered or its limitations. When asked whether he had any problems with past employees, the defendant named Paul "P.J." Kulas. The police later determined that on October 23, 1998, Kulas and his family spent the evening dining at a restaurant in Nashua.
The police audiotaped a second interview with the defendant after they reviewed an enhanced version of the videotape sized from the store's surveillance camera video recorder. A camera located in the southeast corner of the store's main floor recorded activities within the store as they occurred at closing time on October 23, 1998. About three minutes after the lights were shut off and the defendant locked up the store, the defendant re-entered the store. He then proceeded to the rear office of the store, and exited the office within seconds. After leaving the office and turning off the light, the defendant disappeared from view for about one minute, then reappeared from the rear of the store and moved toward the front door. The defendant then walked very quickly back into the store. Thereafter, the videotape recorded a blank field for approximately thirty minutes before it shut down completely.
In the second audiotaped interview, on November 12, 1998, the defendant again described his activities the evening of the fire. When asked whether he re-entered the store, the defendant stated that he did not re-enter the store after closing and locking up. When the police confronted him with pictures taken from the videotape depicting his re-entry, he questioned the validity of the pictures and refused to say anything more than "I did not light the fire, did absolutely not light the fire."
During trial, the jury viewed and the court admitted into evidence the videotape from the store's surveillance camera, including a scientifically enhanced version of the videotape. The jury also listened to the audiotapes of the two police interviews with the defendant and the court admitted these audiotapes into evidence as well. The defendant requested that the jury not be permitted to review these videotapes and audiotapes during deliberations. Instead, the defendant suggested that the jury should be required to rely only upon their recollections of both the videotapes and audiotapes in their deliberations.
On appeal, the defendant contended the videotapes and audiotapes are part of the defendants testimony, and, therefore, like other witnesses' testimony, the jurors should rely only upon their recollections of this "taped testimony" when deliberating. In State v. Monroe, 146 N.H. ___, ___, 766 A.2d 734, 736 (2001), the court decided that where, as here, videotapes and audiotapes were admitted as exhibits into evidence, they are not testimonial but rather tangible exhibits. Consequently, as with other admitted exhibits, the presumptions videotapes and audiotapes "are available to the jurors to consider while deliberating, without limitation." Id. Because the defendant did not argue that the jury unfairly focused upon this evidence, see State v. Brough, 112 N.H. 182, 186 (1972), the court found no error.
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