Photos recovered from cellphone admissible at trial of man accused of killing toddler, judge rulesBy BEA LEWIS
Union Leader Correspondent
July 09. 2017 9:59PM
NORTH HAVERHILL — The defense attorney representing a Grafton County man accused of drugging, sexually abusing and killing a toddler will have to explain to a jury how graphic images of the victim's naked and battered body ended up on his client's cellphone.
A judge has ruled that the 23 photographs are admissible when Tommy Page's murder trial starts on Sept. 11.
Judge Lawrence MacLeod said he was not convinced that photos in a cellphone should be given greater protection than a photo album on a book shelf in someone’s living room, holding that a lawful search of fixed premises generally extends to the entire area in which the object of the search is found.
The issue of what happens when police are authorized to search a smartphone and encounter incriminating evidence of other crimes while lawfully searching the cellphone for the evidence identified in a warrant was raised by this case.
Page, 30, formerly of 133 Fowler River Road, Alexandria, is charged with killing Shawn Sylvester on Nov. 15, 2015. Police obtained a warrant to search Page’s phone for evidence of crimes related to assault, felonious sexual assault, endangering the welfare of a child and or hindering apprehension or prosecution.
During a forensic examination of the phone, a criminalist spotted photos he suspected were child pornography and reported it. Page was initially arrested on 23 counts of possession of child sexual abuse images. Those charges were dropped after a grand jury returned murder indictments.
Slated to stand trial in Grafton County Superior Court this fall, Page is now facing alternate counts of first- and second-degree murder, as well as manslaughter. He also is charged with administration of a controlled drug, subsequent offense and falsifying physical evidence.
The 11-month-old son of the defendant’s former girlfriend, Danielle Sylvester, died from blunt impact trauma to his head, two days after he was rushed to Dartmouth-Hitchcock Medical Center. The state medical examiner determined he had sustained multiple displaced and complex skull fractures and a broken left lower leg.
While he was being treated for his injuries, his urine tested positive for buprenorphine, commonly prescribed to treat opioid addiction. Less than a month after the investigation into the death began, Page’s home where the crimes reportedly took place was destroyed by fire.
In seeking to keep the photos from a jury, defense attorney James Brooks of Orford argued that in a normal physical search — even of a home — the size of the area to be combed imposes reasonable restrictions on what the police may legitimately see. However, when the search is for digital information, those limits are absent.
In a lengthy opinion dated June 29, Judge MacLeod disclosed that two of those images captured by Page’s phone on Nov. 13, 2015, depict Sylvester lying naked with what appears to be swelling and redness on his face and head. The remainder are close-ups, depicting sex acts between an adult and a child. All of the photographs had been erased from the phone before it was seized by police, but were recovered during a forensic examination.
The judge rejected arguments by the defense that the photographs should be excluded from trial because the warrant’s inclusion of all text messages, voicemails, and even photographs and video images as far back as possible, whether saved or deleted, allowed police to “engage in a general rummaging through” of Page’s phone, “a search far more invasive than justified by the facts.”
The judge, however, found the search warrant contained sufficient detail to allow a search of photos on the phone as Page could have used the photo feature to take “screen shots” of communications he had with the alleged victim’s mother, Danielle Sylvester. While the warrant doesn’t specifically mention screen shots, MacLeod held that Judge Thomas Rappa, who approved the search, could have relied on his personal knowledge and common sense when determining probable cause.
“Even if the court were to apply a more exacting standard requiring that the scope of a search of an electronic device be limited only to those files that might reasonably, as opposed to possibly, contain that data being sought, that standard is met here,” MacLeod ruled.
A jury is to be picked on Aug. 29.