State v. Jason Czekalski
158 A.3d 1166
| N.H. | 2017Background
- In Jan. 2013 police, with authorization from the NH Attorney General and the victim’s consent, recorded a phone call between defendant Jason Czekalski and the adult victim in which defendant admitted various sexual acts against the victim when she was a child.
- The defendant was indicted on multiple counts including two counts of aggravated felonious sexual assault (AFSA) and a pattern AFSA charge based on conduct when the victim was under 13.
- Before trial defendant moved to suppress the recorded call, arguing RSA 570-A:9, VII(a) required recordings be made in a way that protects against editing/alteration and that this statutory requirement was not satisfied.
- At trial the recording and transcript were played; defendant testified and did not claim the recording or transcript were inaccurate, though he testified he was intoxicated and gave contextual explanations for his statements on the call.
- Defendant filed a supplemental brief raising (1) denial of a continuance after a jail transfer, (2) plain-error challenges to indictments (arguing ex post facto problems), and (3) seating of a juror allegedly without completing a juror questionnaire.
- The trial court denied suppression and the motion for continuance; post-conviction the court vacated a separate FSA conviction; the Supreme Court of NH affirmed the remaining convictions.
Issues
| Issue | State's Argument | Czekalski's Argument | Held |
|---|---|---|---|
| Whether RSA 570-A:9, VII(a)’s requirement that recordings be protected from editing applies to one-party interceptions authorized under RSA 570-A:2, II(d) | The paragraph-level protection requirement applies only to recordings made under RSA 570-A:9 (paragraph 9) and not to interceptions authorized under RSA 570-A:2, II(d) | The statutory requirement that recordings be protected from editing applies to all interceptions authorized by chapter 570-A, including one-party interceptions authorized under RSA 570-A:2, II(d) | Court: VII(a)’s second sentence applies only to recordings made “under this paragraph” (RSA 570-A:9); it does not apply to interceptions made pursuant to RSA 570-A:2, II(d); suppression not required. |
| Whether denial of a continuance after defendant’s transfer to state prison was an abuse of discretion | Trial court had discretion, defense counsel stated readiness, court offered accommodations and denied continuance appropriately | Transfer deprived defendant of access to files, counsel and medication, warranting continuance | Court: Defendant failed to show the court unsustainably exercised discretion; denial affirmed. |
| Whether AFSA indictment wording violated ex post facto by using language added in 1999 | Pre-1999 law already criminalized touching genitalia over clothing; indictment language did not criminalize previously innocent conduct | Indictment used phrase added in 1999 (“directly, through clothing or otherwise”), creating an ex post facto problem for conduct predating amendment | Court: No ex post facto violation because prior law already covered touching over clothing (citing Dixon); indictment valid. |
| Whether seating a juror who allegedly did not complete juror questionnaire was plain error | Record does not show juror failed to complete questionnaire; defendant must make prima facie showing of substantial noncompliance | Juror was seated without completing required juror qualification form, violating RSA 500-A:7 | Court: Defendant did not establish as a matter of law that juror failed to complete form; no plain error. |
Key Cases Cited
- State v. Kilgus, 128 N.H. 577 (describing when police may intercept without a court order)
- State v. MacMillan, 152 N.H. 67 (principles of statutory interpretation)
- State v. Dixon, 144 N.H. 273 (pre-1999 AFSA statute covers touching genitalia over clothing)
- State v. Pennock, 168 N.H. 294 (plain error standard)
- State v. Ayer, 150 N.H. 14 (test for substantial noncompliance with juror-selection statutes)