State v. Goodale

• Decision Date: 20 October 1999
• Docket Number: No. 97–589.,97–589.
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Warren GOODALE.

144 N.H. 224

740 A.2d 1026

The STATE of New Hampshire

v.Warren GOODALE.

No. 97–589.

Supreme Court of New Hampshire.

Oct. 20, 1999.

Philip T. McLaughlin, attorney general (Mark D. Attorri, senior assistant attorney general, on the brief, and Malinda R. Lawrence, assistant attorney general, orally), for the State.

Gary Apfel, assistant appellate defender, of Orford, by brief and orally, for the defendant.

BROCK, C.J.

The defendant, Warren Goodale, was convicted after a jury trial in Superior Court (Perkins , J.) of second degree assault. See RSA 631:2 (1996). We affirm.

Based upon the evidence at trial viewed most favorably to the State, see State v. Smart , 136 N.H. 639, 643, 622 A.2d 1197, 1200, cert. denied, 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993), the jury was entitled to find the following facts. In September 1996, after an evening of drinking, the defendant and his girlfriend returned to the girlfriend's apartment. The two had been arguing, and while walking toward the apartment, the defendant began to punch her and to pull her hair. Once inside the apartment, the defendant kicked her several times, causing a displaced fracture

to her right femur. The defendant then sat down in the living room, drank a beer, and refused to call an ambulance.

The defendant was charged with first degree assault. See RSA 631:1 (1996). He took the position at trial that the victim had assaulted him, and in attempting to protect his groin from being kicked, he had raised his leg. As a result, the victim's femur struck his knee, causing the fracture. The jury acquitted the defendant of first degree assault, but convicted him of second degree assault.

On appeal, the defendant argues that the trial court erred by: (1) denying his motion to depose the State's expert witnesses; (2) allowing the State to obtain criminal records of potential jurors while denying him equal access to such records during jury selection; and (3) prohibiting him from cross-examining the victim about a prior false statement and from introducing extrinsic evidence of her untruthful conduct. We address each argument in turn.

I. Motion to Depose the State's Expert Witnesses

Prior to trial, the State indicated that it intended to call three physicians and an emergency room nurse as witnesses. The defendant moved to depose those witnesses pursuant to RSA 517:13 (1997). Citing State v. Rhoades , 139 N.H. 432, 655 A.2d 414 (1995), the defendant asserted that he had shown necessity for depositions based on the facts and circumstances of his case. After a hearing, the Superior Court (Smukler , J.) denied the motion without prejudice because he had not attempted to attain the information through alternative methods. See RSA 517:13, II(b) (in determining necessity to depose State's non-expert witness, trial court considers other opportunities to discover information).

On appeal, the defendant argues that the witnesses he sought to depose were expert witnesses, and thus the trial court had no discretion to deny the motion. See RSA 517:13, III; State v. Martin , 142 N.H. 63, 64–65, 694 A.2d 999, 1000 (1997). The State argues that any error was invited. We agree.

Under the "invited error" doctrine, "[a] party may not avail himself of error into which he has led the trial court, intentionally or unintentionally." 5 C.J.S. Appeal and Error § 745, at 179 (1993) ; see State v. LaPlante , 117 N.H. 417, 418, 374 A.2d 643, 644–45 (1977). In this case, the defendant himself argued that he had shown necessity for the depositions, and cited a case in which we held that to depose the State's non-expert witnesses, "[t]he defendant must make some showing of necessity ... with reference to the facts and circumstances of the particular case." Rhoades , 139 N.H. at 434, 655 A.2d at 415. The defendant never argued below that because the witnesses were experts, he was entitled as a matter of law to depose them. Accordingly, he cannot now claim the trial court erred by using the very standard he asked the court to apply. See State v. Bey , 85 Ohio St.3d 487, 709 N.E.2d 484, 492–93 (1999) ; cf. E. Udolf, Inc. v. Aetna Cas. and Sur. , 214 Conn. 741, 573 A.2d 1211, 1216 (1990).

II. Access to Criminal Records of Potential Jurors

The defendant next argues that the trial court erred by allowing the State to use the criminal records of potential jurors during jury selection and denying him equal access to such records. In Belknap County, it is apparently the practice of the county attorney's office to obtain the criminal records of potential jurors in criminal cases. When a member of the venire is selected to be on a defendant's jury panel, the State compares the selected juror's questionnaire and criminal record history. If the selected juror omitted information about the juror's criminal record on the questionnaire, the State at that time informs the trial court and the defendant of the omission.

Prior to trial, the defendant objected to the State's use of criminal records in the jury selection process. The defendant asserted that he did not have access to such information, and thus the State was "in a position [to] engineer the jury pool to be more favorable to its interests." The defendant argued that his rights to fundamental fairness and to an impartial jury would be violated if the State were permitted "to draw a jury based on information ... unavailable to [him]." The defendant moved that the trial court order the State either to certify that it had not used information other than juror questionnaires to assist it in jury selection, or not to use official information unavailable to the defendant during jury selection. Based upon the State's practice of disclosing information omitted from selected jurors' questionnaires, the Superior Court (Smukler , J.) denied the motion but directed the State to continue that practice.

On appeal, the defendant argues that this procedure violated his rights to an impartial jury and to due process under both the State and Federal Constitutions. Thus, he asserts that the trial court erred in allowing the State to obtain the criminal records for use in jury selection while not providing him equal access.

The State argues that the defendant failed to preserve these claims. Because the defendant only requested that the State be prohibited from using the criminal record histories during jury selection, the State argues that he cannot now contend that the trial court erred in allowing the State to obtain the records or in not providing him equal access to the records. We agree that the defendant never requested equal access to the records. As such, he cannot now argue that the trial court's failure to provide access constituted reversible error. Cf. State v. Horne , 136 N.H. 348, 349, 615 A.2d 1251, 1252 (1992).

With respect to the contention that the defendant failed to request that the State be precluded from obtaining the records, we note that the defendant argues not merely that the trial court erred in permitting the State to obtain the records, but in permitting the State to obtain the records for use during jury selection. The State concedes that the defendant requested that the State be precluded from using the records. Hence, the trial court's denial of such relief in effect permitted the State to obtain the records for use during jury selection. Moreover, the State does not argue that the constitutional grounds raised on appeal were not raised below. Accordingly, the trial court was given an opportunity to rule on its purported error to the extent that the defendant challenges the constitutionality of permitting the State to use criminal records during jury selection, see State v. Tselios , 134 N.H. 405, 407, 593 A.2d 243, 245 (1991), and to that extent we conclude that his arguments are preserved.

We analyze the arguments first under New Hampshire law, "referenc [ing] ... decisions of the United States Supreme Court and other jurisdictions only for the purpose of aiding our State constitutional analysis." State v. Cannuli , 143 N.H. 149, 151, 722 A.2d 450, 451 (1998) (quotation omitted). Because we find the New Hampshire Constitution at least as protective of the defendant's rights in this case as the Federal Constitution, see State v. Graf , 143 N.H. 294, ––––, 726 A.2d 1270, 1277 (1999) (due process); State v. Rideout , 143 N.H. 363, ––––, 725 A.2d 8, 9 (1999) (impartial jury), we do not engage in a separate federal analysis, see State v. Ball , 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

With respect to the defendant's claim that the procedure denied him an impartial jury, we note that the defendant does not argue that his jury in fact lacked impartiality. Accordingly, "the right of trial by an impartial jury ... is not directly implicated in this case." State v. Castle , 128 N.H. 649, 651, 517 A.2d 848, 849 (1986). Thus, "[o]ur inquiry focuses ... on the procedural protections necessary to ensure the impartiality of jurors." Id.

Significantly, the defendant does not claim that the State withholds information revealed in the empaneled jurors' criminal records that the jurors omitted from their questionnaires. Rather, the defendant acknowledges that this information is disclosed both to the court and to counsel, either through the questionnaires or the State's disclosure, once the jurors are selected. Thus, the information is equally available to the parties for use in challenging the selected jurors, either peremptorily or for cause. The only prejudice that the defendant claims by virtue of the State's unequal access to the records is that with knowledge of the criminal records of the unselected members of the venire, the State is in a better position to know who might replace a selected juror in determining whether to exercise a peremptory challenge. While our constitutional policy requires that voir dire be conducted in a manner that permits reasonably intelligent use of peremptory challenges, cf . State v. Brodowski , 135 N.H. 197, 201, ...