State v. Gaudet, 2012-581
| Decision Date | 20 June 2014 |
| Docket Number | No. 2012-581,2012-581 |
| Citation | 166 N.H. 390,97 A.3d 640 |
| Parties | The STATE of New Hampshire v. William GAUDET |
| Court | New Hampshire Supreme Court |
Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, William Gaudet, appeals his convictions on one count of felonious sexual assault, see RSA 632–A:3, I–III (1996) (amended 2003, 2006, 2008), two counts of misdemeanor sexual assault, see RSA 632–A:4 (Supp.2005) (amended 2005, 2008, 2010), one count of attempted aggravated felonious sexual assault, see RSA 632–A:2 (2007) (amended 2008, 2012), and one count of attempted incest, see RSA 639:2 (2007) (amended 2008), following a jury trial in Superior Court (Houran, J.). On appeal, he argues that the trial court erroneously: (1) determined that he "opened the door" to certain otherwise inadmissible evidence; (2) denied his motion for a mistrial during the State's opening statement; (3) denied his two motions for a mistrial during the State's closing argument; and (4) failed to conduct an adequate inquiry after excusing one of the deliberating jurors. We affirm.
The jury could have found the following facts. The victim was born in November 1989. The defendant, the victim's father, is divorced from her mother. In 2001, when she was twelve years old, the victim lived with him in New Hampshire. One day, the defendant came into the victim's room and asked to view a scar on her breast. Although she felt "very uncomfortable" and told him "no," the defendant pulled her shirt down and rubbed her breast for "about ten minutes." The defendant told the victim not to tell anyone, and because she was afraid, she complied. After that incident, the victim moved out of the defendant's home and lived with her mother and stepfather in Maine.
The defendant next assaulted the victim in 2005 when she visited him in New Hampshire for her sixteenth birthday. On the night in question, the defendant gave the victim two beers. While the two watched a movie in the living room, the victim fell asleep. When she awoke, she was lying naked on the defendant's bed. The defendant was lying naked next to her, rubbing his erect penis against her leg, and "rubbing [her] vagina with his hand." The victim felt "really weird[,] ... uncomfortable[,] [and] ... scared" and went across the hall to her own bedroom. The next morning, the defendant "said he was sorry" for the previous night. The defendant drove the victim back to Maine. Again, because she was afraid, the victim did not tell her mother about the assault. The victim did not report the assaults to the police until five years later, in 2010.
After speaking to the police, the victim was informed by the defendant's former employer and business partner, Dwight Raymond, that the defendant "had some money." Raymond, who has known the victim since she was a child, was aware that the defendant had inherited a house, which he had sold for $160,000. He was also aware, generally, of the victim's allegations against the defendant, having been informed of them by the police. Raymond advised the victim to file a civil lawsuit against the defendant because he thought that she deserved some of the defendant's money. The victim took Raymond's advice and filed a civil suit against the defendant in Maine. Her lawsuit was still pending when the instant criminal charges were tried.
The relevance of the Maine lawsuit at the defendant's criminal trial was the subject of several colloquies between counsel and the court. Before counsel gave opening statements, defense counsel informed the court that she intended to refer to the Maine lawsuit. The State objected, arguing that the lawsuit was irrelevant because it seeks "damages based on conduct that occurred strictly within ... Maine." Defense counsel countered that the victim's affidavit, supporting her lawsuit, also referred to conduct that occurred in New Hampshire. Defense counsel then stated: "I think we can address the existence of the lawsuit without leaving a misimpression that [the New Hampshire] charge[s] [are] the sole basis of the lawsuit." She explained: "I think it can be said that there is a lawsuit in ... Maine and that part of th[e] [New Hampshire] allegations are included in paperwork in that lawsuit." The trial court decided that defense counsel could refer to the Maine lawsuit in her opening statement, but ruled that if she created "a misleading impression that the New Hampshire charges are the motivation or the only motivation for the Maine lawsuit," then the court would allow the State "to make it clear that the lawsuit does not concern only these charged events here in New Hampshire."
In accord with the trial court's decision, defense counsel made the following statements in her opening statement:
The State objected, arguing that defense counsel had created "a misimpression that [the New Hampshire allegations are] what the lawsuit is about as opposed to years of sexual and physical abuse, including the specific charged acts in that lawsuit of acts that occurred in Maine." The State further objected that it was misleading for defense counsel to suggest that the victim's motivation for bringing the lawsuit "is to make money." The State contended that it had the "right to argue how much weight, if any, evidence [of the victim's motive] should be given," and that it could not "adequately do that [with] the misimpression that this lawsuit was filed ... last year about these things that occurred eight years ago, without the jury knowing that the abuse had occurred before that, between the two [charged] occasions, and also subsequent to the[ ] charged conduct[,] in multiple states." Defense counsel countered that her statement that the New Hampshire allegations were part of the Maine lawsuit was true and that, therefore, there was no misimpression for the State to correct.
The trial court ruled that defense counsel's opening statement was misleading to the extent that it suggested that the New Hampshire allegations constituted the sole basis for the Maine lawsuit. The court stated: "In ... balance then, looking at [New Hampshire] Rule [of Evidence] 403, as [the defendant] actively decided to open with reference to the lawsuit, of course the State cannot be limited to simply evidence concerning these charges as in support of that lawsuit." The court observed that a juror "listening carefully" to defense counsel's opening "would understand there's more to that lawsuit." Accordingly, the court decided that the State was "not precluded from having the jury understand that there is more to that lawsuit."
With regard to the evidence necessary to counter the misleading impression, the State asserted that the victim "should be allowed to testify what her real motivation is, in that ... she endured years of physical and emotional and sexual abuse at the hands of this man." Defense counsel agreed that it would be proper for the victim "to say [that] money isn't [her] motivating factor" and to "say there are ... other reasons why [she's] suing him in ... Maine beyond just [the New Hampshire allegations]." However, defense counsel argued that it would not be proper for the victim to "say [the defendant] physically and sexually abused [her] over all of these years." Defense counsel stressed that it would be particularly improper for the victim to testify that she was abused in Maine because the Maine allegations had not resulted in criminal charges and because defense counsel had "strong evidence" that the Maine alleged assaults did not occur.
The trial court explained that although the State would be "permitted to rebut any potential[ly] misleading impression" by asking the victim questions about her motive for filing the lawsuit, the State would not be allowed to do so by questioning her about "specific allegations of specific incidents of bad acts such as vaginal penetration in Kennebunk, Maine." The trial court ruled that with regard to the allegation that the defendant sexually penetrated the victim in Maine, "Rule 403 ... trump[s] the opening the door doctrine."
The State then questioned the victim as follows:
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