State v. Ellsworth

• Decision Date: 31 March 1998
• Docket Number: No. 95–312.,95–312.
• Citation: 142 N.H. 710,709 A.2d 768
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Raymond ELLSWORTH.

142 N.H. 710

709 A.2d 768

The STATE of New Hampshire

v.Raymond ELLSWORTH.

No. 95–312.

Supreme Court of New Hampshire.

March 31, 1998.

Jeffrey R. Howard, Attorney General (Richard J. Lehmann, attorney, Concord, on the brief and orally), for the State.

Gary Apfel, Assistant Appellate Defender, Concord, by brief and orally, for defendant.

JOHNSON, Justice.

The defendant, Raymond Ellsworth, was convicted of five counts of felonious sexual assault, see RSA 632–A:3 (1996), and two counts of aggravated felonious sexual assault, see RSA 632–A:2, XI (1986) (amended 1992), for acts committed against an eleven-year-old boy. On appeal, he argues that the Superior Court (Manias , J.) erred: (1) in its discovery rulings related to counseling provided at a treatment facility that the victim attended after reporting the assaults and in limiting discovery of other materials requested by the defendant; (2) in refusing to admit extrinsic evidence of allegedly false allegations of theft and sexual voyeurism the victim made against other students subsequent to making the allegations against the defendant; and (3) in refusing to allow cross-examination of the victim of prior sexual victimization to establish an alternative source of sexual knowledge. In addition, the defendant argues that the cumulative effect of these alleged errors denied him a meaningful opportunity to challenge the victim's credibility. We affirm.

The following facts were adduced at trial. The defendant was accused of several incidents of sexual assault that occurred while the defendant was a teacher at the Spaulding Youth Center (Spaulding), a residential treatment facility for boys with emotional, developmental, and behavioral problems. The victim testified that on three separate occasions the defendant engaged in several acts of inappropriate touching, anal-oral contact, and fellatio. The victim told a Spaulding counselor about these incidents in November 1992. The defendant was subsequently indicted for eight acts of felonious sexual assault and four acts of aggravated felonious sexual assault. Shortly after leaving Spaulding, but prior to trial, the victim was placed at the Pine Haven School (Pine Haven), where he continued to receive counseling for various emotional and behavioral problems. The defendant denied the victim's allegations, asserting that the victim fabricated the charges either to gain attention or to retaliate against the defendant for administering discipline. The defendant was convicted on five of the felonious sexual assault indictments and two of the aggravated felonious sexual assault indictments. This appeal followed.

I. Discovery Rulings

The defendant first argues that the trial court erred in refusing to review in camera counseling records regarding the victim's post-allegation treatment at Pine Haven, and in refusing to allow a deposition of the victim's Pine Haven counselor. The defendant's request for in camera review is governed by State v. Gagne , 136 N.H. 101, 612 A.2d 899 (1992). To trigger in camera review of privileged information, "the defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense." Id. at 105, 612 A.2d at 901.

The threshold showing necessary to trigger an in camera review is not unduly high. The defendant must meaningfully articulate how the information sought is relevant and material to his defense. To do so, he must present a plausible theory of relevance and materiality sufficient to justify review of the protected documents, but he is not required to prove that his theory is true. At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought.

State v. Graham , 142 N.H. 357, 363, 702 A.2d 322, 325–26 (1997) (citation and quotations omitted). Although a defendant is not required to state the "precise nature" of the information sought, id ., he must provide the court with a logical factual basis for his request, based on information independently obtained, that the file may yield relevant evidence. See State v. Taylor , 139 N.H. 96, 98–99, 649 A.2d 375, 376 (1994).

Here, defense counsel's discovery motion stated that the victim's Pine Haven records should be reviewed in camera because "[a]ccording to the guardian ad litem, the complainant has been discussing the preparation of trial on this matter with [his] current counselor. The counselor's records are relevant and exculpatory because they contain additional statements made by the complainant about the allegations." In response, the guardian ad litem denied making such a representation to counsel, stating that he had only "relayed to [counsel] that [the victim's] therapist felt that a continuance [of trial] would be extremely distressing for the juvenile." The guardian ad litem further stated that he "possess[ed] no information pertaining to any discussion of trial preparation between the juvenile and any other person." Because the defendant's factual allegations were unsupported, he was left with a mere assertion that the Pine Haven records contained relevant information simply because the victim saw a counselor subsequent to making the allegations against the defendant. This is clearly an inadequate threshold showing. Cf. Taylor , 139 N.H. at 98, 649 A.2d at 376 (defendant failed to make an adequate showing where defendant established only that victim had spoken with division for children and youth services).

On appeal, the defendant argues that the existence of potentially exculpatory materials need not have been left to reasonable probability standards, however, because the trial court became aware of actual exculpatory evidence that may have been contained in the Pine Haven records. Specifically, after the trial court denied the defendant's discovery motion, the defendant produced the testimony of former Pine Haven staff member Craig Klare, who stated that the victim had falsely accused other students of stealing a toy and "peeking" under a shower stall. While defense counsel, during trial, noted that "the motion for disclosure of potentially exculpatory materials should be considered to be a continuing one," (emphasis added), the defendant never specifically renewed his Gagne request regarding in camera review of the Pine Haven records based on Klare's testimony. We do not expect the trial court, in this context, to reopen sua sponte a motion it had previously denied. Cf. State v. Smart , 136 N.H. 639, 652–53, 622 A.2d 1197, 1206,cert. denied , 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993) (trial court did not err in failing, sua sponte, to order a continuance). But cf. State v. Zorzy , 136 N.H. 710, 714–15, 622 A.2d 1217, 1219 (1993) (trial court must sua sponte order hearing if doubt about defendant's competency to stand trial arises). We will not base a finding of error on claims that were not properly called to the attention of the trial judge. See State v. Cole , 142 N.H. 519, ––––, 703 A.2d 658, 659 (1997). Accordingly, we conclude that the trial court did not err in refusing to conduct an in camera review of the Pine Haven records.

The defendant also argues that the trial court erred by denying his motion to depose the victim's Pine Haven counselor. We review such rulings under an abuse of discretion standard. State v. Rhoades , 139 N.H. 432, 433, 655 A.2d 414, 415 (1995). "A defendant has no general and unqualified due process right under either the State or Federal Constitutions to compel depositions in criminal cases." Id. In order to succeed on a motion to depose, the defendant must make a threshold showing of necessity given the particular facts and circumstances of his case. Id. at 434, 655 A.2d at 415; see RSA 517:13, II (1997).

In his motion for depositions, the defendant stated only that the victim was seeing a counselor and that "[a]lthough there have not been any specific representations that the complainant made statements about the case [,] ... it has been represented ... that the counselor has been used for a resource to determine the complainant's position with respect to particular issues of the cases, specifically the Defendant's Motion to Continue." During the motions hearing, counsel stated only that "the [victim's] mother told us ... one reason for the placement to Pine Haven was the child's accusations of sexual abuse and dealing with those accusations.

There's good reason to think that the child may have spoken about this case with his counselor at Pine Haven." These bare assertions are insufficient to demonstrate necessity. Further, "[d]iscovery depositions are not always essential to adequate trial preparation, for there may be other sources of information and evidence available to an accused." Rhoades , 139 N.H. at 434, 655 A.2d at 415 (quotation omitted). Defense counsel indicated that the deposition was needed to uncover inconsistencies in the victim's account of the offenses. Defense counsel also noted, however, that each of the victim's statements to the police were "different" and that there was "a problem with inconsistent statements." Accordingly we hold that the trial court did not abuse its discretion in denying the defendant's motion.

II. Extrinsic Evidence

The defendant next argues that the trial court erred when it denied the defendant's request to admit extrinsic evidence, based on Klare's testimony, that the victim had made false allegations of sexual voyeurism and theft against other children at Pine Haven. Defense counsel was allowed to question the victim about these allegations on cross-examination. The victim, however, denied ever making any false allegations at Pine Haven. The defendant sought to admit Klare's testimony under New Hampshire Rule of Evidence 404(b) as proof of knowledge, plan, and motive. The defendant also argued that he was entitled to present extrinsic proof of these acts under the due process...