State v. Aldrich

• Decision Date: 30 August 2016
• Docket Number: No. 2014-0774,2014-0774
• Citation: 169 N.H. 345,147 A.3d 1188
• Parties: The STATE of New Hampshire v. David ALDRICH
• Court: New Hampshire Supreme Court

169 N.H. 345

147 A.3d 1188

The STATE of New Hampshire

v.David ALDRICH

No. 2014-0774

Supreme Court of New Hampshire.

Argued: May 11, 2016

Opinion Issued: August 30, 2016

Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, David Aldrich, appeals his conviction, following a jury trial in Superior Court (MacLeod, J.), on two counts of aggravated felonious sexual assault. See RSA 632–A:2, I(j) (2007). The defendant challenges the trial court's ruling preventing him from cross-examining the victim about three of four allegedly false allegations of sexual assault that she had made against other men. He also challenges the court's failure to disclose material following an in camera review. We affirm.

The record supports the following facts. The defendant was charged with nine counts of aggravated felonious sexual assault and three counts of incest, based upon events occurring between 1995 and 2002. The three counts of incest and seven of the nine counts of aggravated felonious sexual assault were dismissed. The remaining two counts of aggravated felonious sexual assault concerned alleged conduct from July 1998 to July 1999 and July 2000 to May 2001, when the victim was older than thirteen but younger than sixteen.

The defendant filed a motion in limine requesting, among other things, permission to cross-examine the victim about prior allegedly false allegations of sexual assault. At a pretrial motions hearing, the defendant proffered that, in several interviews with police, the victim made allegations of sexual assault or other misconduct against A.A., V.A., G.B., and M.G. According to the defendant, "[e]ach man has denied these false allegations," and, "at least one witness, [E.W.], contradicts [the victim's] allegations of sexual assault by [G.B.]." The defendant argued that New Hampshire Rule of Evidence 608(b) and his state and federal constitutional rights to confrontation entitled him to this cross-examination. See U.S. CONST. amends. VI, XIV ; N.H. CONST. pt. I, art. 15.

The State argued that "the probative value of these ‘false accusations’ is outweighed by the danger of misleading the jury or in the alternative, confusion of the issues," and that "the defendant has failed to demonstrate that the prior allegations were indeed false." The State explained that the victim never recanted the allegations and there was no evidence before the court showing that the allegations were false.

The trial court granted the defendant's motion in part and denied it in part. The court allowed the defendant to cross-examine the victim about her allegations against A.A., stating that "such cross-examination is sufficiently probative given the unique facts of this case and not outweighed by substantial prejudice," and that "[t]his is particularly so given the undisputed fact that the [victim] falsely testified in a prior case regarding [A.A.]." However, the court denied the defendant's request to cross-examine the victim about her allegations against V.A., G.B., and M.G., ruling that "[t]he factors set forth in [ State v. Miller, 155 N.H. 246, 921 A.2d 942 (2007) ] weigh against permitting such cross-examination."

On appeal, the defendant argues that the court misapplied New Hampshire Rules of Evidence 608(b) and 403 and violated his state and federal constitutional rights to confrontation. See U.S. CONST. amends. VI, XIV ; N.H. CONST. pt. I, art. 15.

We first hold that the trial court correctly applied the evidentiary rules. A trial court has broad discretion to determine the scope of cross-examination or the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion. State v. Kornbrekke, 156 N.H. 821, 823–24, 943 A.2d 797 (2008). To prevail under this standard, the defendant must demonstrate that the trial court's decision was clearly untenable or unreasonable to the prejudice of his case. Id. at 824, 943 A.2d 797.

New Hampshire Rule of Evidence 608(b) provides, in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule § 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness ....

Under this rule, we consider whether the trial court accurately gauged the probative value of the defendant's proposed line of cross-examination. See Kornbrekke, 156 N.H. at 824, 943 A.2d 797. To do so, we use a nine-factor test:

(1) whether the testimony of the witness is crucial or unimportant; (2) the extent to which the evidence is probative of truthfulness or untruthfulness; (3) the extent to which the evidence is also probative of other relevant matters; (4) the extent to which the act of untruthfulness is connected to the case; (5) the extent to which the circumstances surrounding the specific instances of conduct are similar to the circumstances surrounding the giving of the witness's testimony; (6) the nearness or remoteness in time of the specific instances to trial; (7) the likelihood that the alleged specific-instances conduct in fact occurred; (8) the extent to which specific-instances evidence is cumulative or unnecessary in light of other evidence already received on credibility; and (9) whether specific-instances evidence is needed to rebut other evidence concerning credibility.

Miller, 155 N.H. at 252–53, 921 A.2d 942 (quotations and ellipses omitted). Of the nine factors, the seventh is particularly "critical ... to the probative value analysis in this case." Kornbrekke, 156 N.H. at 826, 943 A.2d 797. If a prior allegation were not in fact false, then cross-examination about it would not be "probative of the [victim's] character for truthfulness or untruthfulness." Id. Thus, the trial court must assess the evidence of the accusation's falsity when deciding whether to permit the defendant to ask the victim about it. See id. at 824, 826, 943 A.2d 797.

Although Rule 608(b) permits a cross-examiner to inquire into conduct that is probative of the witness's character for truthfulness or untruthfulness, the examiner must generally "take the answer as the witness gives it." Miller, 155 N.H. at 249, 921 A.2d 942. Rule 608(b) prohibits the examiner from introducing "extrinsic evidence, such as calling other witnesses, to rebut the witness's statements." State v. Hopkins, 136 N.H. 272, 276, 616 A.2d 916 (1992). Separate constitutional concerns, however, may overcome this prohibition. See Kornbrekke, 156 N.H. at 824, 943 A.2d 797.

We have observed that, "[w]hether the trial court erred in denying cross-examination and whether it erred in excluding extrinsic evidence are distinct inquiries," and that "[b]oth are separate and distinct from the question whether the defendant's constitutional rights to confrontation mandated such cross-examination." Id. Here, the defendant argues that the trial court erred in denying cross-examination and that his constitutional confrontation rights mandated such cross-examination; he does not assert that the court erred by excluding extrinsic evidence.

The trial court determined that the Miller factors "weigh against permitting ... cross-examination" about the three prior accusations at issue. The defendant disagrees. According to him, he proffered sufficient evidence showing that the accusations were false—specifically, he asserted that the three men denied the accusations against them, and another person contradicted the accusation against G.B. However, these mere denials are of questionable probative value. Cf. State v. Anderson, 211 Mont. 272, 686 P.2d 193, 200 (1984) (noting that an attorney's testimony about an accused person's denial would be inadmissible in part because "a mere denial does not establish falsity"). All except one of the denials were made by men who, because they had been accused, had an incentive to deny. See Richardson v. Com., 42 Va.App. 236, 590 S.E.2d 618, 621 (2004) (agreeing with the reasoning of other courts that "mere denial testimony ... is inherently self-serving and does not, by itself, establish falsity"). The contradictory testimony regarding the accusation against G.B. is also lacking in probative value: the State proffered evidence that the person who contradicted that accusation subsequently, in a conversation with her father, undermined her own credibility regarding the matter. Thus, we cannot say that the court, when assessing the evidence of the falsity of the accusations, should have given the denials and the contradiction greater weight.

The defendant also asserts that "the number of men [the victim] accused of sexual assault or misconduct constituted some evidence that the accusations were false." The defendant cites three cases to support this assertion: People v. Mardlin, 487 Mich. 609, 790 N.W.2d 607 (2010) ; United States v. Woods, 484 F.2d 127 (4th Cir.1973) ; and Mintz v. Premier Cab Ass'n, 127 F.2d 744 (D.C.Cir.1942).

In Mardlin and Woods—both criminal cases—it was held that evidence of the defendants' other alleged bad acts was admissible to show that the acts for which they had been charged were not accidental. In Mardlin, an arson case, the prosecution introduced evidence showing "that [the] defendant had been associated with four previous home or vehicle fires—each of which," like the home fire underlying his arson charge, "also involved insurance claims and arguably benefited [the] defendant in some way." Mardlin, 790 N.W.2d at 610. Woods concerned the first-degree murder, presumably by smothering, of the defendant's "eight-month-old pre-adoptive foster son." Woods, 484 F.2d at 128. At trial, the...