State v. Haley

• Decision Date: 23 January 1997
• Docket Number: No. 94-443,94-443
• Citation: 141 N.H. 541,689 A.2d 671
• Parties: The STATE of New Hampshire v. Carleton HALEY.
• Court: New Hampshire Supreme Court

Page 671

689 A.2d 671

141 N.H. 541

The STATE of New Hampshire v. Carleton HALEY.

No. 94-443.

Supreme Court of New Hampshire.

Jan. 23, 1997.

Jeffrey R. Howard, Attorney General (Mark S. Zuckerman, Senior Assistant Attorney General, on the briefs and orally), for the State.

Twomey & Sisti Law Offices, Concord (Nicholas K. Holmes on the initial brief and orally, and Jonathan R. Saxe on the supplemental brief and orally), for defendant.

James E. Duggan, Chief Appellate Defender, and David M. Rothstein, Assistant Appellate Defender, Concord (Mr. Duggan and Mr. Rothstein on the brief, and Mr. Rothstein orally), as amicus curiae.

JOHNSON, Justice.

Following a jury trial in the Superior Court (Smukler, J.), the defendant, Carleton Haley, was convicted of six counts of aggravated felonious sexual assault, RSA 632-A:2 (1986 & Supp.1987), and one count each of attempted aggravated felonious sexual assault, RSA 632-A:2 (Supp.1987); RSA 629:1 (1986), felonious sexual assault, RSA 632-A:3, III (1986), and attempted felonious sexual assault, RSA 632-A:3, III; RSA 629:1. He appeals, arguing that: (1) the court erred in admitting evidence under New Hampshire Rule of Evidence 404(b); (2) the Superior Court (Manias, J.) erred in refusing to hold an evidentiary hearing to determine whether the State met the "clear proof" prong of Rule 404(b)'s test for admissibility; (3) the jury may not have reached a unanimous verdict because the State did not differentiate its evidence of charged and uncharged acts; and (4) testimony regarding his silence in the face of an accusation warranted a mistrial. After briefing and argument, we ordered supplemental briefing and reargument and invited the appellate defender's office to submit a brief as amicus curiae. We affirm.

We first address the defendant's contention that the court erred in refusing to hold an evidentiary hearing to determine whether the State satisfied the clear proof prong of Rule 404(b)'s admissibility test. The defendant was charged with sexually assaulting his step-granddaughter several times when she was twelve and thirteen years old. Prior to trial, the State moved to admit evidence that the defendant had sexually assaulted the victim on other occasions and that he had tickled and kissed her and touched her with a vibrator when she was younger. At the hearing on its motions, the State asked the court to use the victim's depositions to determine that the uncharged acts had, in fact, occurred. The defendant objected, asserting that the State could not meet its burden of proving the uncharged acts unless the victim testified at the hearing. In support of his contention, the defendant pointed out several inconsistencies between the depositions and a letter the victim had written earlier. The court overruled the defendant's objection and ultimately found the evidence admissible under Rule 404(b).

The defendant argues on appeal that the court's refusal to require live testimony from the victim violated his right to due process under the State and Federal Constitutions. See U.S. CONST. amend. XIV; N.H. CONST. pt. I, art. 15. The starting point for addressing this claim is Rule 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We have held that

[e]vidence of other bad acts is only admissible if relevant for a purpose other than to prove the defendant's character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence.

State v. Kirsch, 139 N.H. 647, 653, 662 A.2d 937, 942 (1995) (emphasis added). The defendant maintains that when proof of the uncharged acts depends on a witness's credibility, the State must prove the acts through the witness's live testimony. No statute, court rule, or case law requires an evidentiary hearing on Rule 404(b) motions, cf. N.H.R.Ev. 104; the defendant relies on the due process clauses of the State and Federal Constitutions for authority. We begin by analyzing the defendant's claim under the New Hampshire Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

"[D]ue process under our constitutional republic has, as a primary consideration, the notion that no matter how rich or how poor, all of our citizens are entitled to fundamental fairness when the government seeks to take action which will deprive them of their property or liberty interests." City of Claremont v. Truell, 126 N.H. 30, 36, 489 A.2d 581, 586 (1985) (quotation omitted). To determine whether a government action satisfies due process requirements, "we first decide whether the challenged procedure concerns a constitutionally protected interest, and if so, we then determine whether the procedure at issue afforded the requisite safeguards." In re Tracy M., 137 N.H. 119, 122, 624 A.2d 963, 965 (1993). We hold that a pretrial hearing on the admissibility of evidence does implicate a defendant's liberty interest because the outcome of a criminal trial may depend on the admission or exclusion of certain evidence. We therefore proceed to consider whether live testimony was required to safeguard the defendant's due process rights. To make this determination, we weigh the following factors:

(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Petition of Bagley, 128 N.H. 275, 285, 513 A.2d 331, 338-39 (1986).

The private interest affected by a pretrial hearing on the admissibility of evidence is important because, as noted above, a conviction may hinge on the admission or exclusion of certain evidence. Such a hearing, however, is not a trial. Cf. In re Eduardo L., 136 N.H. 678, 687, 621 A.2d 923, 929 (1993) (observing that interest at stake in juvenile certification hearings is not as compelling as in pretrial detention hearings).

Turning to the test's second prong, we acknowledge that a proffer of evidence presents a greater risk of an erroneous pretrial ruling than live testimony. A trial court, however, "may consider the indicia of trustworthiness of evidence sought to be admitted, and it has the discretion to require live witnesses where it is not satisfied with the trustworthiness." Id. at 687-88, 621 A.2d at 930. In this case, the State presented not merely a proffer, but the sworn testimony of the victim, contained in two depositions. Moreover, in rebuttal, the defendant proffered the contents of a letter the victim had written, pointing out several inconsistencies in her story. It does not appear that the victim's live testimony would have significantly increased the accuracy of the court's evidentiary determination. We note that at trial, the defendant had the opportunity to cross-examine the victim. If the evidence had cast doubt on the validity of the court's pretrial ruling, the defendant could have moved for reconsideration or for a mistrial.

The third prong of the test asks us to consider the government's interest in the procedure used. As in Eduardo L., the governmental interest here is "compelling ...; namely, to avoid transforming [a] ... hearing into a full-blown trial, and to reduce fiscal and administrative burdens on the court, the prosecution, and law enforcement officials." Id. at 688, 621 A.2d at 930; see also State v. Poulicakos, 131 N.H. 709, 713, 559 A.2d 1341, 1344 (1989). The government also has an interest in sparing victims of sexual assault from the additional trauma of repeated questioning. See State v. Howard, 121 N.H. 53, 57, 426 A.2d 457, 459-60 (1981).

After weighing the three factors, we conclude that the due process clause of the New Hampshire Constitution does not necessarily require--and in this case did not require--live testimony at a pretrial hearing on the admissibility of evidence under Rule 404(b). We are unaware of any federal decisions on this issue but note that the test for addressing the defendant's claim under the due process clause of the fourteenth amendment to the United States Constitution would be less advantageous to him than the test we use under the State Constitution. See Medina v. California, 505 U.S. 437, 442-46, 112 S.Ct. 2572, 2575-78, 120 L.Ed.2d 353 (1992). We therefore hold that the Federal Constitution provides no greater protection than the New Hampshire Constitution in this instance and undertake no separate federal analysis. See State v. Davis, 139 N.H. 185, 189, 650 A.2d 1386, 1388 (1994).

The defendant next argues that the trial court erred in admitting the uncharged acts under Rule 404(b). In its pretrial motions, the State separated the acts into two categories. We consider first the State's proffer that the defendant's conduct progressed gradually over the course of years from nonsexual contact to lesser sexual acts and finally to attempted intercourse.

The State wished to admit evidence that "[t]he defendant began tickling and kissing the victim and used a vibrator over the victim's body when she was a child. The defendant progressed to tickling the victim in her genital areas and then to digital penetration as charged in the indictments." The State argued that this evidence would be relevant "to show that the defendant prepared to commit the offenses charged in the respective indictments by grooming the child victim." The superior court agreed:

[The evidence] would tend to show that the...