State v. Judkins

Decision Date09 July 1986
Docket NumberNo. 84-439,84-439
Citation512 A.2d 427,128 N.H. 223
PartiesThe STATE of New Hampshire, v. Roy E. JUDKINS.
CourtNew Hampshire Supreme Court

Stephen E. Merrill, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on brief and orally), for State.

Schroeder & McLetchie, Ossipee (Erland C.L. McLetchie on brief and orally), for defendant.


This criminal appeal presents the question whether the Superior Court (Goode, J.) properly admitted evidence at trial pertaining to a condition imposed on the defendant at his bail hearing. We hold that the evidence was properly admitted, and therefore affirm.

The defendant was indicted for aggravated felonious sexual assault, RSA 632-A:2, XI (Supp.1983). At his bail hearing, the Superior Court (Wyman, J.) imposed a condition on the defendant that he no longer live in the same residence with the alleged victim, his thirteen-year-old stepdaughter. At trial the State introduced evidence (including the victim's testimony) that the defendant had fondled the victim and inserted his finger into her vagina, that he had exposed his genitals to her, and that the victim initially revealed the incidents to her "life education" teacher at school. In response to defense counsel's questioning, Malcolm Young, a case worker for the New Hampshire Division of Children and Youth Services (formerly the division of welfare), testified that no child abuse petition was brought to remove the victim from the defendant's household. Defense counsel's questioning was an apparent effort to establish that the State had taken no legal steps to separate the defendant from the victim. Several witnesses testified that the victim had moved out of the defendant's residence and was residing in Maine. During cross-examination late in the trial, the State was permitted, over the defendant's objection, to question the defendant concerning the bail condition in an effort to rebut the earlier testimony of Young that the State took no official action to separate the defendant from the victim. The defendant was convicted, and thereafter appealed to this court.

The defendant argues that he was unfairly prejudiced when the jury heard testimony regarding the bail condition. According to the defendant, evidence of a judicial determination that the defendant was a potential danger to the child could only result in an unfair inference of guilt, an inference that could not be overcome by a limiting or corrective instruction. The State counters that (1) the prejudice issue was not preserved for appeal, because the only objection raised at trial was on the ground of relevance, (2) the evidence was necessary to rebut the erroneous impression that the State allowed the defendant to continue living in the same home as the victim, and (3) any error was harmless in light of the overwhelming evidence of guilt.

In State v. Williams, 115 N.H. 437, 443, 343 A.2d 29, 33 (1975), we held that a defendant's testimony at his bail hearing should be excluded from evidence at his later trial. We now consider whether testimony regarding a condition imposed at the defendant's bail hearing is admissible at the defendant's subsequent trial, and the extent to which the State may be permitted to use such testimony to counter a misleading advantage resulting from defense counsel's questioning.

We first address the State's contention that the defendant failed to preserve the issue for appeal because he objected on the ground of relevance rather than prejudice. See State v. Fernald, 123 N.H. 442, 462 A.2d 122 (1983). This contention is not supported by the record. Although defense counsel did not clearly articulate the reason for his objection, he did suggest that the evidence was inadmissible as rebuttal evidence, and that it would lead the jury to infer guilt. Counsel stated: "The jury is going to say, why did this happen? I think it error to let [the statements] in, and I most strenuously object." Counsel's objection gave the trial court an adequate opportunity to reconsider its ruling and assess the...

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15 cases
  • State v. McMinn, 95-707
    • United States
    • New Hampshire Supreme Court
    • March 7, 1997
    ...the substance of a relatively vague objection, see State v. King, 136 N.H. 674, 677, 621 A.2d 921, 922 (1993); State v. Judkins, 128 N.H. 223, 224-25, 512 A.2d 427, 428 (1986). Conversely, we have treated issues as unpreserved when a litigant's delay foreclosed effective remedial action by ......
  • State v. Croft
    • United States
    • New Hampshire Supreme Court
    • June 19, 1997
    ...140 N.H. 1, 4-5, 662 A.2d 289, 291 (1995) ; cf. State v. Bouchard, 138 N.H. 581, 585, 643 A.2d 963, 966 (1994) ; State v. Judkins, 128 N.H. 223, 224-25, 512 A.2d 427, 428 (1986). Moreover, the trial court apparently understood the defendant's objections as presenting the Rule 403 issue beca......
  • State v. Fowler, 88-387
    • United States
    • New Hampshire Supreme Court
    • December 28, 1989
    ...Mr. Klose's opinions, and the State was entitled to respond. See Robinson, 108 S.Ct. at 869-70; see also State v. Judkins, 128 N.H. 223, 225, 512 A.2d 427, 429 (1986) (State allowed to introduce otherwise inadmissible evidence to rebut erroneous impression created by defendant); Kelly, 113 ......
  • State v. Mills
    • United States
    • New Hampshire Supreme Court
    • July 27, 1992
    ...462, 465, 594 A.2d 1284, 1286 (1991); see also State v. Baird, 133 N.H. 637, 640, 581 A.2d 1313, 1315 (1990); State v. Judkins, 128 N.H. 223, 224-25, 512 A.2d 427, 428 (1986). The defendant's objection, although specific in its wording, is sufficient to alert the court to the general nature......
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