Roy's defense pushes for delay, motions for mistrialBy LARISSA MULKERN
Special to the Union Leader
January 28. 2013 9:15PM
OSSIPEE - Superior Court Associate Justice Steven Houran denied two separate motions - one to dismiss all charges and the second for a mistrial in the State vs. Justin Roy case on Monday, the fourth day of testimony in Carroll County Superior Court.
Roy, 34, of Albany, is facing felony assault charges for allegedly causing life-threatening injures to a 2½-year-old boy, Strider, kidnapping and criminal restraint. He faces two assault charges for allegedly pushing and bruising the child's then-7-year-old brother, Zander, and a third assault charge for allegedly squirting an 11-month-old baby, Gallagher, in the face with the contents of a baby bottle. The children and their mother, Heather Downs, 33, of Bartlett, had lived with Roy at an Albany mobile home park from late October 2011 to Dec. 19, 2011.
Downs is charged with three counts of endangering the welfare of her three children, and a felony count of witness tampering.
Defense attorney Wade Harwood of the state Public Defender's office in Laconia, who is defending Roy with co-counsel Howard Clayman, introduced the first motion to dismiss charges against Roy after the contents of a previously sealed court order were unsealed. The motion said that Downs' trial date was continued from October to after she testified in the Roy trial so the state could consider her testimony in proceeding with the charges against her.
Harwood asked Judge Houran to dismiss all charges again Roy because the new information was vital to the defense and could be used toward impeaching Downs as a witness.
"Certainly we have been made aware Heather Downs had pending charges, but there we are seeing, in the middle of trial, her case was continued so the state could see how the case goes," Harwood said, adding he wanted more time to prepare for Downs' cross examination in light of the new information.
Prosecutor Susan Boone objected, saying that defense had been aware since "day one" that Heather Downs was on the witness list, and that the newly unsealed document would only take moments to review.
Houran considered the request in chambers, then returned to deny the motion.
Downs testified during the trial Monday under subpoena, sometimes testifying through tears.
Downs said she and the kids lived with Roy for a few months and that she moved out on Dec. 19, 2011. She testified that on Dec. 18, 2011 she served supper to the boys and Roy, but that Strider didn't want to eat, as he had pancakes earlier at his grandma's house. She said Roy told Strider to go to bed. When Strider got out of bed a few minutes later, she said Roy kicked the boy on the diaper with his boot and the child lost balance.
"I got in Justin's face and said it was uncalled for," she said.
Later, Roy brought Strider into a shed near the house. Over the course of the evening, Roy allegedly drank a six-pack of Pabst Blue Ribbon, two mixed drinks with Malibu rum and a malt beverage, Triple Black.
When Downs awoke around 2 a.m., she checked on the kids and found Strider was not in the bedroom. She went out to the shed and found Strider wrapped in a blanket and sleeping; she told Roy to bring him inside. She returned to the house and fell asleep, but woke up again at 4:15 a.m. when she went out to the shed again and knocked on the window. Roy wouldn't let her in, she said. She realized Strider was still in the shed. "I was pretty upset he was still there. He was holding the door. That's when I realized the (pajamas) were hanging up by the stove." According to her testimony, Roy told her Strider had urinated in his pajama bottoms and that's whey they were hanging up. Roy insisted on carrying the boy inside himself, and put him to bed, Downs said.
Later that morning, after Roy allegedly jumped on Zander's legs and yelled at the baby, Downs packed up the boys and some belongings into the van and left at about 6:15 a.m. After making a couple stops, she drove to her parents' house in Bartlett and, after calling Memorial Hospital and asking if the police needed to be involved since she suspected her child had been beaten, she brought Strider to the hospital. Strider was taken into emergency care and was airlifted to Maine Medical Center.
A defense motion for a mistrial was ultimately rejected after the Downs said that she signed approval for the child to be tested for sexual assault. The judge denied the motion but told the jury that the test for sexual assault came back negative from the state police laboratory and there was no evidence of sexual assault in this case.
The trial is scheduled to resume today at 10 a.m.