State v. Boulton

• Decision Date: 30 September 2021
• Docket Number: No. 2020-0025,2020-0025
• Citation: 266 A.3d 355,174 N.H. 470
• Parties: The STATE of New Hampshire v. Mark BOULTON
• Court: New Hampshire Supreme Court

174 N.H. 470

266 A.3d 355

The STATE of New Hampshire

v.Mark BOULTON

No. 2020-0025

Supreme Court of New Hampshire.

Argued: April 14, 2021

Opinion Issued: September 30, 2021

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally), for the State.

Rudolph Friedmann, LLP, of Boston, Massachusetts (William A. Korman on the brief and orally), for the defendant.

BASSETT, J.

The defendant, Mark Boulton, appeals convictions, following a jury trial, on four counts of aggravated felonious sexual assault, see RSA 632-A:2, IV (2016), and one count of misdemeanor sexual assault, see RSA 632-A:4, I(b) (Supp. 2020). He argues that the Superior Court (Ignatius, J.) erred by: (1) denying his request to enter portions of the transcript of his interview with police into the record; and (2) allowing a witness for the State to offer expert testimony while testifying as a lay witness. We affirm.

The following facts are undisputed or supported by the record. In 2016, a 15-year-old child reported that she had been sexually assaulted by the defendant. The Moultonborough Police Department investigated the allegations. A detective in the department interviewed the defendant, and the department prepared a transcript of the interview.

At trial, the State called the detective as a witness. On direct examination, the detective testified regarding his interview with the defendant, but the State did not offer the transcript of the interview into evidence, nor did it use the transcript to refresh the detective's memory. The defendant objected to the detective's testimony, arguing that he was mischaracterizing the interview. The trial court overruled the objection, observing that the defendant was free to cross-examine the detective if he believed that the detective was mischaracterizing the interview.

On cross-examination, the defendant sought to have the detective read portions of the interview transcript into the record. The State objected. The defendant responded that he was entitled to read portions of the transcript into the record because the State had provided an incomplete and misleading account of the interview. See N.H. R. Ev. 106.

The trial court sustained the objection. The court ruled that, because the State had only questioned the detective regarding the interview, without introducing any portion of the transcript, the defendant was not entitled to introduce the transcript in order to correct any misleading impression. Rather, the court stated, the defendant could use the transcript to refresh the detective's memory or impeach specific answers. At the close of the State's case, the defendant asked the court to reconsider its prior ruling. The defendant requested that the court "allow the defense to enter into evidence the entirety of [the defendant's] statements" from the interview in regard to certain topics that the detective had testified to. The court denied the motion.

At trial, the State also called as a witness the Moultonborough police officer who had led the department's investigation in the case. On direct examination, the State asked the officer to explain the role of a Child Advocacy Center in a criminal investigation when a child is interviewed. The defendant objected, arguing that, because the officer was not testifying as an expert, she should not be allowed to testify as to how she had been "trained ... to speak with children." The trial court overruled the objection, explaining that the officer could answer the question because it would provide the jury with background information about how a child sexual assault investigation generally proceeds. Shortly thereafter, the State asked the officer how many child sexual abuse investigations she had led. The defendant again objected, arguing that that information was irrelevant. The court overruled the objection, stating that the answer would provide appropriate background information regarding the officer's training and experience.

During cross-examination, the defendant asked the officer whether it is standard practice when conducting an investigation to interview witnesses as soon as possible after an event. The officer responded that witnesses sometimes need time to "process" an event before discussing it. On redirect examination, the officer was asked to expand on her answer:

Q You talked a little bit, at the beginning of that cross [- examination], about giving people time to process. Counsel [for the defendant] had asked you questions about immediately interviewing witnesses and alleged victims. And you started to talk a little bit about processing. What do you mean by that?

A When a traumatic event occurs -- and we know this, you know, essentially, from our training and how to approach, you know, if we're at a --

The defendant objected, arguing that the officer was "not testifying as an expert, so I don't think she gets to talk about processing, internal mind, all of that stuff." The trial court overruled the defendant's objection. This exchange between the State's counsel and the officer followed:

Q Counsel [for the defendant] had asked you questions about how it's -- the protocol or the procedure is to interview people right away. And your response, if I understand you correctly -- correct me if I'm wrong -- was that not always and that sometimes people need to process. Was that your answer?

A Yeah, many --

Q Can you just --

A -- many times they do, yes.

Q Right. Explain that.

A Yeah. I -- I was saying, before, that, you know, a police-involved shooting, for example, we would never interview the officer involved or officers, you know, right site on scene, you know, three minutes after it happened: what did you see; what did you -- I mean, often, they'll take a quick statement from them. By that, I mean, like, how many shots do you think you fired, and go from there, go home, rest. They seize the firearm.

My training with working with child advocacy centers and forensic interviewing, you know, they alway[s] -- we just constantly are saying, disclosure is a process. And a traumatic event, as we know, can -- you know, for anyone, just a general, you know, like, you go through a tough time, you lose a parent or something, no matter what age you are, and you become depressed, that's a reaction to that. And it's hard to process information on the event and whatnot.

And it does take time, and you remember little things. And that's why it's important and we often do go back and talk to people, sometimes informally. Like I said, it's not, you know, always, like, oh, push play, you know, record. For victims and suspects, yes, we -- there are certain things in place. But other than that, no.

The jury convicted the defendant, and this appeal followed.

On appeal, the defendant argues that the trial court erred when it ruled that he was not entitled to enter portions of the transcript of his interview with the detective into the record. He also argues that the trial court erred when it allowed the officer, who was testifying as a lay witness, to provide expert testimony regarding forensic interviewing.

"The trial court has broad discretion to determine the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion." State v. Plantamuro, 171 N.H. 253, 255, 194 A.3d 464 (2018). "When we determine whether a trial court has sustainably exercised its discretion, we are really deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made." State v. Gonzalez, 170 N.H. 398, 407, 173 A.3d 583 (2017) (quotation omitted). "Our task is not to determine whether we would have found differently, but is only to determine whether a reasonable person could have reached the same decision as the trial court on the basis of the evidence before it." Plantamuro, 171 N.H. at 255, 194 A.3d 464. To show that the court's ruling is not sustainable, the defendant must demonstrate that the decision "was clearly untenable or unreasonable to the prejudice of his case." State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (quotation omitted).

We first address the defendant's argument that the trial court erred when it ruled that he was not entitled to enter portions of the interview transcript into the record. The defendant argues that the State created a misleading impression when, through the detective, it elicited testimony as to selected portions of the defendant's statements during the interview. The defendant contends that the jury was left with the impression that his responses were more inculpatory than they actually were. He argues that, pursuant to Rule 106 of the New Hampshire Rules of Evidence, he had a right to introduce excerpts from the transcript into the record to correct the misleading impression created by the detective's testimony. We disagree.

Rule 106, Remainder of or Related Writings or Recorded Statements, provides as follows:

(a) If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at the time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

(b) A party has a right to introduce the remainder of an unrecorded statement or conversation that his or her opponent introduced so far as it relates:

(1) to the same subject matter; and

(2) tends to explain or shed light on the meaning of the part already received.

N.H. R. Ev. 106. Rule 106 codifies New Hampshire's common law doctrine of completeness, which provides that a party "has the right to introduce the remainder of a writing, statement, correspondence, former testimony or conversation that his or her opponent introduced so far as it relates to the same subject matter and hence tends to explain or shed light on the meaning of the part already received." State v. Lopez, 156 N.H. 416, 421, 937 A.2d 905 (2007) (quotation omitted); see State v. Mitchell, ...