State v. Letendre

• Decision Date: 13 January 2011
• Docket Number: No. 2009–770.,2009–770.
• Citation: 13 A.3d 249,161 N.H. 370
• Parties: The STATE of New Hampshirev.Daniel J. LETENDRE.
• Court: New Hampshire Supreme Court

161 N.H. 370

13 A.3d 249

The STATE of New Hampshire

v.Daniel J. LETENDRE.

No. 2009–770.

Supreme Court of New Hampshire.

Argued: Oct. 14, 2010.Opinion Issued: Jan. 13, 2011.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.DUGGAN, J.

Following a jury trial, the defendant, Daniel J. Letendre, was convicted of two counts of aggravated felonious sexual assault and two counts of simple assault. See RSA 631:2–a (2007); RSA 632–A:2 (2007). On appeal, he argues that the Trial Court ( Abramson, J.) erroneously: (1) admitted statements the victim made concerning the defendant; and (2) permitted the victim's guardian ad litem to sit with her during her testimony. We affirm.

The jury could have found the following facts. The defendant and the ten-year-old victim, E.M., lived in the same apartment building. On March 18, 2008, E.M.'s parents went outside to investigate a loud noise, while E.M. remained in the building. She testified that during this time the defendant sexually assaulted her. While outside, E.M.'s parents observed her and the defendant descending a staircase that was visible from the outside. Both parents testified that E.M. was shaking and looked “like something happened,” or as “if she had done something.”

E.M.'s mother then questioned her privately, and E.M.'s father contacted the police. E.M. was subsequently taken to the hospital by ambulance where she made statements to a sexual assault nurse examiner implicating the defendant.

The State also alleged two other encounters between E.M. and the defendant, which occurred between February 1 and March 17, 2008. The State alleged that during one of these encounters, E.M. and the defendant engaged in sexual intercourse, and in another, the defendant kissed E.M. using his tongue. The defendant was indicted on four counts of aggravated felonious sexual assault and was also charged by information with two counts of simple assault.

Prior to trial, the defendant filed a motion in limine to exclude as hearsay the statements E.M. made to Michelle McMurray, the sexual assault nurse examiner, because they were made “for purposes of a criminal investigation and not for purposes of medical diagnosis or treatment.” The court denied the motion. The defendant renewed his objection at trial and the court overruled the objection after a hearing.

The defense also objected to the guardian ad litem's request to sit beside E.M. during her testimony, arguing that the guardian ad litem's presence would lend the victim's testimony greater credibility and improperly affect the emotions of the jury. The court also overruled this objection.

After the close of the State's case, the court dismissed two of the counts of aggravated felonious sexual assault. The jury convicted the defendant on the remaining charges. This appeal followed.

The defendant first argues that the trial court erred in admitting the hearsay statements E.M. made to McMurray because there was insufficient evidence to conclude that E.M. intended to make the statements for purposes of medical diagnosis or treatment as required by New Hampshire Rule of Evidence 803(4).

“We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion.” State v. Legere, 157 N.H. 746, 758, 958 A.2d 969 (2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1623, 173 L.Ed.2d 1005 (2009) (quotation omitted). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

“Hearsay is generally defined as an extrajudicial statement offered in court to show the truth of the matter asserted in the statement.” State v. Soldi, 145 N.H. 571, 575, 765 A.2d 1048 (2000) (quotation omitted). Hearsay evidence is generally inadmissible, subject to certain well-delineated exceptions. Id.; see also N.H. R. Ev. 801(c), 802.

One such exception, “Statements for Purposes of Medical Diagnosis or Treatment,” applies to:

[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances indicating their trustworthiness.

N.H. R. Ev. 803(4). The rationale for this exception is that statements made with the purpose of obtaining medical attention are usually made with the motivation to obtain an accurate diagnosis or proper treatment and thus there is normally no incentive to fabricate. Soldi, 145 N.H. at 575–76, 765 A.2d 1048.

We have interpreted Rule 803(4) as having a three-part test for the exception to apply. State v. Graf, 143 N.H. 294, 303, 726 A.2d 1270 (1999). “A court must find first that the declarant intended to make the statements to obtain a medical diagnosis or treatment.” State v. Roberts, 136 N.H. 731, 740, 622 A.2d 1225 (1993). Second, “the statements must describe medical history, or symptoms, pain, sensations, or their cause or source to an extent reasonably pertinent to diagnosis or treatment.” Id. at 741, 622 A.2d 1225 (quotation omitted). Third, the court must find that the circumstances surrounding the statements support their trustworthiness. Id. at 743, 622 A.2d 1225.

The defendant challenges the trial court's findings regarding only part one of this test. With respect to part one's intent requirement, “we require extra care in determining the declarant's intent” when the declarant is a child. Graf, 143 N.H. at 303–04, 726 A.2d 1270 (quotations omitted). This is because “[i]t is difficult for a court to discover whether a young child completely understands the purpose for which information is being obtained from her.” State v. Wade, 136 N.H. 750, 755, 622 A.2d 832 (1993).

The defendant argues that the first part was not met because E.M. “never asked for nor declined any medical treatment, nor did [she] make any physical complaints to McMurray that might have indicated she was seeking medical assistance.” The defendant relies upon Wade, in which a five-year-old child revealed to a pediatrician that she had been sexually assaulted. Id. at 752, 622 A.2d 832. The trial court admitted her statements under Rule 803(4), stating, “[T]his falls within 803(4), as this is taking a medical history. The doctor has testified what his purposes were, and that he had concerns with respect to the safety of the child....” Id. at 753, 622 A.2d 832 (quotation omitted). The trial court also admitted similar statements the child made to a gynecologist. Id. We reversed because, although the doctors testified about their states of mind and intentions in speaking with and examining the child, nothing in the record shed any light on the child's intentions in making the hearsay statements. Id. at 756, 622 A.2d 832. Additionally, the trial court's ruling indicated that it had conflated parts one and two of the Rule 803(4) test. Id. at 756–57, 622 A.2d 832.

Here, however, the trial court considered each part of the Rule 803(4) test separately and articulated the evidence that satisfied each part. With respect to the first part, the court stated:

The first [part] is the declarant's intent in making the statements, which can be established by circumstantial evidence, and in finding that this prong has been met, the Court notes that she knew she was going to the hospital. The declarant knew she was going to the hospital to be treated. And I base this on her fear that she specifically testified that she knew if she went to the hospital she was going to get a shot. In fact, I think her testimony was that she did get a shot. But she certainly was aware what could happen to her if she went to the hospital and that it would involve treatment.

Further, the temporal relationship between the declarant's complaints, the upheaval in her home, and her visit by ambulance to the hospital supports a finding that the declarant knew the reason for her hospital visit [to be] related to both her physical and her emotional health.

And finally, Nurse McMurray had explained to her what her role as a nurse was and what the reasons for the exam were before [E.M.] made the statements, so she knew at the time that she made those statements that it involved treatment. So the first prong has been met.

We conclude that the record contains ample evidence to support the trial court's finding of the declarant's intent. E.M. was taken to the hospital by ambulance shortly after she spoke with her mother about the defendant and observed her parents crying in response to her revelations. Cf. State v. White, 145 N.H. 544, 555, 765 A.2d 156 (2000) (“temporal proximity” between complaints, “emotional upheaval” surrounding the incident, and visit to the hospital supports finding that declarant had requisite intent), cert. denied, 533 U.S. 932, 145 N.H. 544, 121 S.Ct. 2557, 150 L.Ed.2d 722 (2001), petition for habeas corpus denied by White v. Coplan, 296 F.Supp.2d 46 (D.N.H.2003), vacated on fed'l constitutional grounds, 399 F.3d 18 (1st Cir.), cert. denied, 546 U.S. 972, 126 S.Ct. 478, 163 L.Ed.2d 384 (2005). Later, when McMurray asked E.M. why she had been taken to the hospital, she responded that “she was at somebody's house that was a couple of doors down from her, and that she was in this person's apartment where she had some [sexual] relations” with that person. She also testified that she feared going to the hospital because she might need to get a shot. Thus, E.M. associated...