State v. Kelly

• Decision Date: 06 May 2010
• Docket Number: No. 2008–672.,2008–672.
• Citation: 999 A.2d 303,160 N.H. 190
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. James KELLY.

160 N.H. 190

999 A.2d 303

The STATE of New Hampshire

v.James KELLY.

No. 2008–672.

Supreme Court of New Hampshire.

Argued: Jan. 20, 2010.

Opinion Issued: May 6, 2010.

Michael A. Delaney, attorney general(Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, James Kelly, appeals his conviction for violating a protective order, seeRSA 173–B:9 (Supp.2009), arguing that the Superior Court(Nicolosi, J.) erred in its answers to jury questions and by excluding evidence of a witness's allegedly false statements to police.We reverse and remand.

The jury could have found the following facts.The defendant and Elizabeth Kelly were engaged and cohabited until their relationship ended in February 2006.Their separation produced an ongoing custody dispute and prompted Elizabeth to seek a protective order against the defendant.

On February 21, 2006, the Nashua District Court issued a protective order that prohibited the defendant from going within 100 yards of where Elizabeth might be, including the house where she resided, unless accompanied by a police officer.The district court modified this order to require the defendant to provide Elizabeth, through counsel, a list of all business property he sought to retrieve from the residence.

On October 16, 2006, the defendant and his brother-in-law drove, in separate cars, from Massachusetts to Hudson.They both testified that they drove directly to the Hudson police station, and not past Elizabeth's residence.The defendant presented an officer with the protective order and asked him to accompany him to Elizabeth's residence to obtain his belongings.The officer agreed after hearing that Elizabeth was home.

Later that evening, the officer escorted the defendant to Elizabeth's residence, where they each parked on the side of the road approximately 100 yards from Elizabeth's house.The officer went to Elizabeth's side door to speak with her while the defendant waited in his car.When Elizabeth answered the door, the officer testified, "[s]he seemed excited" and told him she was just about to call the police.At trial, Elizabeth testified that she had seen the defendant drive past her house twice that evening, once when she arrived home between 5:00 and 6:00 p.m. and once just before the officer arrived.She stated she had memorized his car and license plate.

After hearing this information, the officer gave Elizabeth the protective order that the defendant had given him.Elizabeth responded that he had the incorrect order and gave him the amended protective order.The officer then walked to the defendant's car, and advised him that he could not remove his belongings that day.The defendant drove up the street, turned around in Elizabeth's driveway, and drove away.Subsequently, the defendant was charged, by complaint, with violating a protective order.Specifically, the complaint alleged that on October 16, 2006, the defendant committed "the crime of violation of a protective order and that [he] did knowingly violate a protective order ... by driving within 100 yards of Elizabeth Kelly's residence."

At trial, the defense argued that Elizabeth was not credible.Two of Elizabeth's neighbors testified that they had not seen the defendant on October 16, 2006, until he arrived with the officer.The two neighbors, a father and daughter, had been working in the yard.The defense also argued that Elizabeth's testimony was incompatible with the police officer's testimony.

To impeach Elizabeth's credibility, the defendant moved in limine to permit cross-examination regarding five allegedly false statements Elizabeth had made to the police.Two statements concerned allegations that her former husband assaulted her in February 2003 during their divorce proceedings and that a boyfriend assaulted her in May 2004.The other three concerned statements Elizabeth made to the police denying reported threats of suicide or suicide attempts in March 2003 and October 2005.The trial court ruled that the defense could not refer to the "statements she may have made to the police in connection with possible suicide attempts," but could ask Elizabeth whether she had given a false statement in 2003 or on other occasions.Defense counsel followed these instructions but renewed the motion in limine during the cross-examination of Elizabeth.The court allowed counsel to attempt to refresh Elizabeth's recollection with the police reports but barred counsel from impeaching her with the substance of the reports.The defendant was convicted as charged.This appeal followed.

I

We first address whether the trial court's response to three jury questions constructively amended the complaint to the defendant's prejudice.The defendant argues that he preserved this issue by making a motion for a new trial, citing State v. Elliott,133 N.H. 759, 585 A.2d 304(1990), andState v. Johnson,130 N.H. 578, 586, 547 A.2d 213(1988).In Johnson,we stated: "We agree that an amendment to an indictment ... might constitute ground for a new trial, if the amendment surprises the defendant and this surprise prejudices his defense."Johnson,130 N.H. at 586, 547 A.2d 213(quotation omitted).We, however, did not address whether a motion for new trial would preserve this argument.Instead, we held that the trial court's jury instruction that allegedly amended the indictment did not prejudice the defendant in his ability to present his case.Id.In Elliott,the defendant contended that the State's proposed jury instruction in a felony case would impermissibly amend the indictment.Elliott,133 N.H. at 762–63, 585 A.2d 304.In contrast, the defendant in the case before us did not object to the trial court's jury instructions or to the trial court's answers to the jury questions.He only filed a motion for a new trial.

The general rule is that "a contemporaneous and specific objection is required to preserve an issue for appellate review."State v. Croft,142 N.H. 76, 80, 696 A.2d 1117(1997)(quotation omitted).We have held that an objection to jury instructions raised for the first time in a motion for a new trial is not timely.Mailhot v. C & R Const. Co.,128 N.H. 323, 325, 514 A.2d 1255(1986);seeState v. Ainsworth,151 N.H. 691, 693, 867 A.2d 420(2005)(finding necessary a contemporaneous objection to preserve a jury instruction issue for appellate review).Similarly, we believe that a contemporaneous objection is necessary to preserve a challenge to a trial court's answer to a jury question.This rule, based on "common sense and judicial economy,"Johnson,130 N.H. at 587, 547 A.2d 213, affords a "trial court an opportunity to correct an error it may have made,"Ainsworth,151 N.H. at 693, 867 A.2d 420.A contemporaneous objection is particularly appropriate where an alleged error involves a response to a jury question.Accordingly, our review is limited to plain error.

The plain error rule allows us to consider errors not brought to the attention of the trial court.State v. Almodovar,158 N.H. 548, 553, 969 A.2d 479(2009).However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.Id.For us to find error under the rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.Id.

During deliberations, the jury asked three questions to which the court responded.The first question was: "Are we to decide if Mr. Kelly came within 100 yards of Ms. Kelly or if he violated any stipulations of the protective order.For example not making an appt via the appropriate channels via the protective order?"The court answered: "The issue for you to decide is whether Mr. Kelly violated the protective order by coming within 100 yards of where Elizabeth Kelly may be."Second, the jury asked: "At what point did the police escort officially end?"The court responded: "This is a factual question which is for you as jurors to resolve if it is necessary for you to render a fair and just verdict."Third, the jury inquired: "Is charge based on 1st driveby only (w/out police) or entire chain of events (ie: police escorted visit, driveway turn-around, etc.)."The court answered: "You may consider all of the evidence that was admitted at trial in deciding whether the State has proven the elements of the crime beyond a reasonable [doubt]."

The defendant contends that the trial court's answers constructively amended the complaint to his prejudice by "expand[ing] the scope of the charge" to include the defendant's conduct during the police escort.The defendant believed that the complaint only charged him with violating the protective order by "driving past Elizabeth's house prior to the police escort."The State counters that the trial court's answers were appropriate and did not expand the scope of the complaint."The response to a jury question is left to the sound discretion of the trial court."State v. Poole,150 N.H. 299, 301, 837 A.2d 307(2003)(quotation omitted).We review the trial court's answer to a jury question under the unsustainable exercise of discretion standard.Id.;seeState v. Lambert,147 N.H. 295, 296, 787 A.2d 175(2001)(explaining unsustainable exercise of discretion standard).

Here, the trial court's answer to the third jury question constructively amended the complaint to the defendant's prejudice.The complaint alleged that the defendant committed "the crime of violation of a protective order and that [he] did knowingly violate a protective order ... by driving within 100 yards of Elizabeth Kelly's residence" on October 16, 2006.The complaint, therefore, placed the defendant on notice that he could be prosecuted for any...