State of New Hampshire v. Kierran Pierce

In its brief, the State argues that any error the court made in denying Pierce’s motion for a view was harmless. The State bears the burden of proving beyond a reasonable doubt that such an error was harmless. State v. Boudreau, No. 2021-0350. The State cannot meet that burden.

The only evidence that Pierce committed any of the acts for which he was convicted ca me from the testimony of M.M. Her testimony was contradicted by other witnesses. Among the contradictions is the following: M.M. testified that after the first assault she ran straight to her grandparents’ room and told them that Pierce “had touched [her] vagina.” TT. 78. She testified that she specifically used the word “vagina” in order “to make them understand what had happened.” She testified that she told this to both her grandfather and her grandmother. Id. This testimony was directly contradicted by her grandfather who stated that M.M. made no such disclosure to him. TT. 110. Thus M.M.’s claim that she made a disclosure, while upset, immediately after she was sexually assaulted, was directly contradicted by the person to whom she claimed to have made it. M.M.’s story changed as to whether she ran into her grandparents’ room after the first or second assault. TT. 78-80. She testified that after one of the assaults, she ran straight to her brother’s room and disclosed what had happened to her. TT. 81. The State did not call the brother to testify. Similarly, the State did not call M.M.’s grandmother. Thus, the jury was presented with testimony that M.M. had immediately told three people about being sexually assaulted. One contradicted her and the State did not call the other two.

Five people were living in the home when Pierce came to visit for a weekend. TT. 33. M.M. claimed to have made immediate disclosures of the sexual assaults to three of those individuals. Not one backed up her claim that she had actually made such a disclosure.

M.M. testified that she struggled to get away from Pierce during the first assault. 82. However M.M. admitted on cross-examination that during her CAC interview, she never claimed to have struggled. TT. 83. She never made that claim at the CAC despite having been “told to describe [the incident] in all the details [she] could remember.” Id. In her prior CAC interview, M.M. stated that one of the assaults occurred when she came home from school on a Monday. TT. 84. She told the CAC that she wanted to stay at school because she knew Pierce would be there when she went home. Id. The testimony was clear that Pierce arrived at her home on a Friday evening and left two days later on a Sunday. TT. 110-111. M.M. clearly testified that prior to Pierce arriving for this weekend visit she had “no memory” of him. TT. 81. There is no way that she could have wanted to stay at school on a Monday because she was afraid of Pierce being at her home because he was not at her home on a Monday or any other day she went to school. There is no way she could have simply been mistaken and thinking of Friday because she didn’t know Pierce at all prior to his arrival on Friday evening and would have had no reason to be frightened of him.

The evidence in this case was far from overwhelming. Allowing the jury to see the size of and layout of the trailer, to see what would have been visible to other people and how close other people would have been to the assaults would have been powerful evidence which would have likely made a difference in the verdict. The State cannot sustain its burden in showing that the court’s error in denying a view was harmless beyond a reasonable doubt.