Sherman sex offender loses state supreme court appeal

By Jen Lynds, BDN Staff
Posted May 03, 2012, at 4:06 p.m.

HOULTON, Maine — An appeal by a Sherman man convicted in 2009 on two counts of gross sexual assault for abusing a young girl was rejected unanimously by the Maine Supreme Judicial Court earlier this week.

The decision in the case against Kirk Gould, 44, was handed down on May 1.

Gould was convicted after a two-day trial in August 2009 of sexually abusing a relative for more than five years. He was sentenced by Superior Court Justice E. Allen Hunter to 25 years in prison with all but 12 years suspended on the first sex charge, a Class A felony. He also will be on probation for four years. On the second charge, a Class B felony, Gould received 10 years in prison, which is being served concurrently with the first sentence. He also must register as a sex offender. He was represented at the trial by Torrey Sylvester, a Houlton attorney.

According to court documents, Gould, who was represented during the appeal by attorney Sarah LeClaire of Presque Isle, contended that the court should not have denied a motion to suppress his confession. Gould said that the confession was involuntary. He also said that he was denied a fair trial based on the prosecutor’s misrepresentation of the evidence in closing argument, and he also maintained that the court erred by denying his motions for a new trial and sanctions based on a discovery violation.

The 2009 case was prosecuted by former Aroostook County Assistant District Attorney Patrick Gordon, who has since left the position. Current Assistant District Attorney Kurt Kafferlin represented the state before the state supreme court during oral arguments in Portland in January.

Maine Supreme Judicial Court Justice Jon Levy wrote the opinion.

Gould began abusing the victim when she was 11 years old and it continued until she was nearly 17, according to court records. The victim and other family members lived with Gould. During the trial, evidence was presented to show that Gould, who is disabled with numerous health problems, sought and was given testosterone from his doctor so that he would have more energy. He also obtained Cialis, a pill used to treat erectile dysfunction, a step that Gordon said Gould took so that he could abuse the girl for longer periods of time. Gould also kept the victim’s bed on the floor so that no one in the small trailer would hear him abusing her at night.

According to court documents, Gould confessed his crime to state police Detective Joshua Haines. In the appeal, Gould maintained that his confession was involuntary because it was induced by Haines telling Gould that he would “get him help” and that the state would have DNA evidence that would establish his guilt. Levy noted that Haines was not confrontational or aggressive with Gould and that “the interview was conducted in a very conversational and relaxed manner.” Haines repeatedly advised Gould of his Miranda rights, Gould was not restrained, and Haines did not make any promises of leniency or favorable treatment if Gould admitted guilt.

Before the trial, crime lab tests analyzing bedding and body tissue samples from the victim were conducted. The results showed the presence of prostate-specific antigen and a presumptive positive result for seminal fluid on the victim’s bedsheet, but no sperm cells. Because the lab needed sperm cells to test for DNA at that time, no further analysis was performed. The state did not introduce the report as evidence at trial, nor did Gould.

But Gould said that Gordon misrepresented evidence when he told jurors during the rebuttal phase of his closing argument that there was no DNA evidence on the victim’s bedsheet because it had been washed before it was taken as evidence by police.

Among the arguments made by Kafferlin, however, was that Gordon’s statement was supported by testimony from the victim and her mother that the victim had a habit of frequently washing her sheets, as often as every other day. The justices considered this and other arguments in rejecting Gould’s assertion about misrepresented evidence.

They also did not accept his argument that the court erred in denying his motions for a new trial and for sanctions. Gould said that results of the crime lab tests on the bedding and tissue samples were provided to him just before the beginning of trial and that the state denied him the time needed to prepare his defense. He also said that the action violated his constitutional guarantee of due process.

Levy wrote that the record supported the court’s findings that Gould received a copy of the crime lab report on the morning of the first day of trial, before the start of the trial. The supreme court also found no indication that the state unreasonably delayed delivering the test results to Gould. Levy wrote that Gould neither requested a continuance during the 2009 trial so that he could have more time to analyze the results, nor raised an objection based on the timing of his receipt of the report.

Kafferlin said Thursday that he was “very pleased” with the supreme court’s decision.

“The court made it abundantly clear that both the Maine State Police and the Aroostook County District Attorney’s Office conducted themselves in an appropriate manner,” he said. “This decision brings closure to the case for the victim and the victim’s family and it helps ensure that Mr. Gould is held accountable for his crimes.”

http://bangordailynews.com/2012/05/03/news/aroostook/sherman-sex-offender-loses-state-supreme-court-appeal/ printed on April 23, 2014