Defense motion relative to what jury might know about eye witness leads to postponement of sex assault trial
LACONIA — The jury trial of a Tilton man who was charged in January with one count each of aggravated felonious sexual assault and indecent exposure was postponed last week while the court considers a motion filed by his defense team regarding the actions of his accusers.
Thomas Gardner, 55, of Sanborn Road was arrested by Tilton Police on January 16 — about a week after two men, Joseph Ernst and Mark Corenti, reported to police they had seen him performing a sex act in his car on a disabled 20-year-old man while parked in a manufactured housing park off School Street in Tilton.
According to paperwork filed with the Superior Court, the defense said it has recently learned that Tilton Police officers investigated a reported theft at Sherryland Park four days later and the two men who reported Gardner for sexual assault were suspects in the alleged theft.
While being questioned about the alleged theft, one of the men is said to have told a Tilton Police Officer that if the police were to charge him with theft, he would refuse to testify in the rape he says he witnessed.
New filings also indicated that the officer who was investigating the reported theft from Sherryland Park was not involved in the investigation regarding Gardner's alleged rape of the disabled man.
Belknap County Superior Court Judge James O'Neill had previously denied a motion filed by Gardner's defense team to let similar evidence be presented to the jury. With the new information, Gardner's defense team asked the judge to reconsider his earlier ruling and allow what they consider exculpatory evidence to be given to the jury.
Gardner's defense team said it got the information on September 12, which was after jury selection on September 9. The court had already ordered the prosecution to provide any exculpatory evidence to the defense and, with this new information, Gardner's defense team said in its motion it wants to pursue a different theory of the case — namely that Ernst and Corenti made up the story about Gardner and young disabled man because they were at the park unlawfully.
The state's case is pretty cut and dry. Police and prosecutors contend Gardner took the 20-year-old disabled man who was left in his care to Sherryland Park, where he had him perform a sex act. The victim is unable to communicate and, according to police affidavits filed in January, has two brain disorders, is autistic, and epileptic.
Ernst and Corenti told detectives they were at Sherryland Park looking for a mobile home that they thought was for sale. One of them said he went up to Gardner's Volkswagen to ask him if he knew anything about the trailers.
The man said he initially thought Gardner was alone but when he went to his window he allegedly saw the two men engaged in a sexual act.
The men called 9-1-1 to report what he saw and gave police the license plate number of Gardner's Volkswagen but his cell phone connection died. The witness called police back about an hour later to report the same Volkswagen was now parked in the driveway of a house on Sanborn Road.
Police went to Gardner's house and said he didn't seem upset or defensive by what they were saying. He offered to take a lie-detector test so police would know he hadn't done anything wrong. Affidavits also reflected that Gardner asked police what would happen to his accusers if police determined they were lying.
The court has denied the Gardner's request for a lie-detector test to be presented to the jury.
Court filings show Corente has been convicted of two felony counts of driving after being deemed a habitual offender, one conviction for misdemeanor theft, one conviction for possession of heroin, and one conviction for bail jumping. The court ruled this evidence could be given to the jury if Corente were to testify against Gardner.
The same police affidavit said Gardner was initially reluctant to allow detectives to enter the home to make sure the disabled man was unharmed. Gardner eventually did consent however police found the alleged victim to be so severely disabled they were unable to communicate with him.
Gardner told detectives he and the alleged victim had gone for a ride and had stopped at Sherryland Park to see if the view was different as some trees had recently be removed.
No date has been set for the motion hearing and new trial.