State v. Graf

• Decision Date: 15 January 1999
• Docket Number: No. 95-798.,95-798.
• Citation: 143 N.H. 294,726 A.2d 1270
• Parties: THE STATE OF NEW HAMPSHIRE v. CARL H. GRAF
• Court: New Hampshire Supreme Court

143 N.H. 294

726 A.2d 1270

THE STATE OF NEW HAMPSHIRE v.CARL H. GRAF

No. 95-798.

Supreme Court of New Hampshire.

January 15, 1999.

Philip T. McLaughlin,attorney general(Cynthia L. White, senior assistant attorney general, on the brief and orally), for the State.

Twomey & Sisti Law Offices, of Chichester (Paul Twomey on the brief and orally), for the defendant.

THAYER, J.

The defendant, Carl H. Graf, appeals his convictions on three counts of aggravated felonious sexual assault, seeRSA 632-A:2 (1996)(amended 1997), after a jury trial in Superior Court(Fauver, J.).We affirm.

The defendant was a friend of the ten-year-old victim's family.In 1993, the victim's parents allowed the victim to stay overnight at the vacation home of the defendant's father.The victim testified that during this visit, the acts alleged in the indictments occurred.The defendant threatened the victim with bodily harm and told the victim that he would not be his friend anymore if the victim told anyone.

The victim did not disclose these incidents until several months later, when he told his younger brother that the defendant had touched his penis.The victim's brother told their mother what the victim had stated, and the mother questioned the victim.The victim testified that he disclosed everything that occurred during the overnight with the defendant.The defendant was convicted by a jury on three counts of aggravated felonious sexual assault.The defendant argues that the trial court violated his rights to due process, confrontation, and to produce all favorable proofs under both the State and Federal Constitutions when it precluded him from: (1) introducing character evidence that he was not the type of person who would sexually assault children or take advantage of them; and (2) introducing privileged information during the cross-examination of the State's expert witness regarding the victim's sexual history and punishments the victim may have received.The defendant also contends that a communication between the county attorney and the chief justice of the superior court that led to the recusal of the original judge assigned to the defendant's trial denied him due process.Finally, the defendant argues that the trial court erred in admitting hearsay statements made by the victim to his pediatrician without first determining the victim's intent in making those statements.

I.Character Evidence

The defendant argues that the trial court denied him due process of law and the right to present all favorable proofs under both the State and Federal Constitutions when it precluded him from introducing character evidence."The New Hampshire Constitution is at least as protective as the Federal Constitution in this area, and we therefore decide this case under the State Constitution, employing federal cases to aid in our analysis."State v. Newcomb,140 N.H. 72, 78, 663 A.2d 613, 617(1995).Specifically, the defendant sought to introduce testimony, through opinions and specific instances of conduct as testified to by other witnesses, to show that: (1)he was not the type of person who would engage in aggravated felonious sexual assault; and (2)he was not the type of person who would take advantage of children.Both the right to due process and the right to produce all favorable proofs are found in Part I, Article 15 of the New Hampshire Constitution.N.H. CONST. pt. I, art. 15;seeState v. Castle,128 N.H. 649, 651, 517 A.2d 848, 849(1986).

We begin by analyzing the defendant's claim that his right to produce all favorable proofs was violated by preclusion of the testimony.Both the Compulsory Process Clause of the Federal Constitution and the right to produce all favorable proofs under Part I, Article 15 give a defendant only the right to produce witnesses, not to produce their testimony.SeeState v. Roy,140 N.H. 478, 482, 668 A.2d 41, 44(1995);State v. Taylor,118 N.H. 859, 861, 395 A.2d 1239, 1240-41(1978).Part I, Article 15 does not entitle the defendant to introduce evidence in violation of the rules of evidence, Newcomb,140 N.H. at 79,663 A.2d at 618, and, therefore, a judge may exclude a witness's testimony on evidentiary grounds, Taylor,118 N.H. at 861,395 A.2d at 1240.Because the defendant does not contend that he was prevented from producing witnesses, his argument that the trial court's refusal to allow him to present evidence of his good character violated his right to produce all favorable proofs has no merit.For the same reason, we find no merit in the defendant's second argument that the trial court's refusal to allow the defendant to introduce privileged information regarding the victim's history violated his right to produce all favorable proofs.

We next address the defendant's argument that the trial court's refusal to allow him to introduce good character evidence through opinions violated his right to due process.The defendant's brief advances an evidentiary argument, without any meaningful discussion of how his due process rights were violated.Accordingly, we will address only the defendant's evidentiary argument.Cf.State v. Fecteau,133 N.H. 860, 873, 587 A.2d 591, 598(1991)(addressing defendant's due process argument as evidentiary argument only where defendant failed to specifically raise issue as constitutional matter to trial court).

"[T]he trial court has broad discretion in ruling on the admissibility of [character] evidence, and we will not disturb its ruling absent an abuse of discretion."State v. Newell,141 N.H. 199, 200, 679 A.2d 1142, 1143(1996)(quotation and brackets omitted).To demonstrate an abuse of discretion, the defendant must show that the court's ruling was "clearly untenable or unreasonable to the prejudice of [his] case."State v. VanDerHeyden,136 N.H. 277, 284, 615 A.2d 1246, 1250(1992)(quotation omitted).

New Hampshire Rule of Evidence 404(a) governs the admissibility of character evidence.The general rule is that evidence of a person's character or trait of character is inadmissible for the purpose of proving that the person acted in conformity therewith on a particular occasion.N.H. R. EV. 404(a)."The rationale behind this rule is the notion that this evidence has slight probative value but has a tendency to be highly prejudicial or to confuse the issues."Cohn v. Papke,655 F.2d 191, 194(9th Cir.1981).An exception to the general rule allows the accused to present evidence of a pertinent trait of character to prove that he acted in conformity with that character trait at the time of the alleged crime.N.H. R. EV. 404(a)(1).Thus, to be admissible under 404(a)(1), two requirements must be satisfied.SeeUnited States v. Angelini,678 F.2d 380, 381-82(1st Cir.1982).First the proffered character evidence must be "pertinent."N.H. R. EV. 404(a)(1).Second, the evidence must constitute a "character trait."Id.;seeAngelini,678 F.2d at 381-82(holding evidence does not constitute a trait when it is so diffuse as to be merely synonymous with good character generally).

The defendant relies on State v. Ramos,121 N.H. 863, 435 A.2d 1122(1981), to argue that the defendant can offer evidence of his general character and that he is not limited by Rule 404(a)(1).Ramos represents the common law of New Hampshire as it existed in 1981.We had not adopted the rules of evidence when Ramos was decided.In subsequently adopting the rules of evidence, we specifically provided that a trait of character must be pertinent to be admissible, seeN.H. R. EV. 404(a)(1), and expressly provided that "[t]o the extent these rules alter or conflict with the common law, the rules shall govern,"N.H. R. EV. 100;seeNewell,141 N.H. at 203, 679 A.2d at 1145.Accordingly, to the extent that Ramos can be read to imply that general character evidence is admissible absent a showing that the evidence constitutes a pertinent trait of character, it is no longer to be followed.SeeNewell,141 N.H. at 203, 679 A.2d at 1145.

We begin by analyzing whether the proffered evidence is pertinent.Evidence is "pertinent" if it is relevant.United States v. Roberts,887 F.2d 534, 536(5th Cir.1989);United States v. Staggs,553 F.2d 1073, 1075(7th Cir.1977).Whether the proffered character evidence is relevant depends on whether it relates to the particular trait(s) that are relevant to the matter in controversy.SeeState v. Lebel,594 A.2d 91, 93(Me.1991)(holding a trait is "pertinent" if its existence would be involved in the commission or non-commission of the crime charged).

We next consider whether not being the type of person to sexually assault or to take advantage of children is pertinent to the crime of aggravated felonious sexual assault involving a minor.We hold that, in this context, it is not.The trial court correctly noted that not being the type of person to sexually assault or to take advantage of children is not pertinent to the charged crime because such conduct is "generally not the type of conduct which is done in public, but an environment or location calculated to avoid detection.""One's reputation for sexual activity, or lack thereof, may have no correlation to one's actual sexual conduct."State v. Jackson,730 P.2d 1361, 1364(Wash. Ct. App.1986).When a character witness testifies as to his opinion of the defendant's pertinent trait of character, that opinion must be "confined to the nature and extent of observation and acquaintance upon which the opinion is based."Government of Virgin Islands v. Petersen,553 F.2d 324, 329(3d Cir.1977).Because aggravated felonious sexual assault concerns "sexual activity, which is normally an intimate, private affair,"Jackson,730 P.2d at 1364, we hold that the character witnesses lacked the knowledge necessary to form an opinion as to whether the defendant is the type of person to sexually assault or to take advantage of children.Accordingly, the proffered evidence, lacking any foundation, would be...