State v. MacArthur, 93-167

• Decision Date: 27 June 1994
• Docket Number: No. 93-167,93-167
• Citation: 644 A.2d 68,138 N.H. 597
• Parties: The STATE of New Hampshire v. Arthur "Jay" MacARTHUR.
• Court: New Hampshire Supreme Court

Page 68

644 A.2d 68

138 N.H. 597

The STATE of New Hampshire v. Arthur "Jay" MacARTHUR.

No. 93-167.

Supreme Court of New Hampshire.

June 27, 1994.

Jeffrey R. Howard, Atty. Gen. (Mark S. Zuckerman, Asst. Atty. Gen., on the brief and orally), for the State.

Paul G. Schweizer, Keene, by brief and orally, for defendant.

HORTON, Justice.

The defendant, Arthur "Jay" MacArthur, appeals his conviction for class A kidnapping, RSA 633:1 (1986), and first degree assault, RSA 631:1 (1986 & Supp.1993), after a jury trial in Superior Court (Morrill, J.). He argues that the trial court should have instructed the jury that prior inconsistent statements made by the victim could not be used substantively, and that there was insufficient evidence of serious bodily injury to the victim. We reverse and remand.

On July 5, 1992, the defendant's girlfriend (victim) was admitted to the New London Hospital emergency room with dried blood on her hands and face, several facial lacerations, a hemorrhage in her right eye, a swollen and bruised face, and various bruises on other parts of her body. Nurses Pam Laurie and Wendy Whethers encountered the victim shortly after her admission, and Laurie described her as "hysterical"--"crying, shaking, talking fast. Breathing fast, very upset." The victim told the nurses that she had been dropped off at the hospital by the defendant who had beaten her with his fists and a flashlight, cut her with a knife, tried to strangle her, and held her without medical attention for two days. The same day, the victim gave a similar account to, among others, her brother; Dr. Timothy Wolfe, a physician at New London Hospital; and Dr. Michele Sasmore, a plastic surgeon to whom the victim was referred. On July 8, the victim completed, under oath, a domestic violence petition in Concord District Court, in which she stated: "I was beaten and sustained 36 stitches/staples on face and held on July 3rd ... without medical treatment until July 5th." On July 13, State Trooper J. Michael Johnson conducted a videotaped interview of the victim in which she detailed, among other things, that the defendant had been angry because he mistakenly thought he saw the victim kissing his best friend, Gordie Welch.

The victim subsequently met with the prosecutor and told him that although the statements she had made on videotape were true, she wanted the charges dropped and that she would be "a less than willing witness" at trial. Anticipating that the victim would recant at trial, the State made a pretrial motion to have the videotape admitted under the "catch-all" exception to the hearsay rule. See N.H.R.Ev. 803(24). The trial judge refused to admit the videotape under the catch-all exception, but ruled that if the victim did testify contrary to her earlier accounts, the State could use the videotape and any other inconsistent statements both to impeach her and substantively. At trial, the victim recanted her previous statements to the police and testified that she was injured when she fell against a sink and a barbecue grill. The videotape was admitted without limiting instructions.

On appeal, the defendant argues that the trial court erred in failing to instruct the jury that the victim's prior inconsistent statements could not be used substantively, and that because the only eyewitness evidence of the assault and kidnapping came from those statements, his conviction should be reversed. The State admits that the trial court erred in allowing some inconsistent statements, including the videotape, to be used substantively, but argues that such error was harmless. The State argues that because many inconsistent statements, although not so admitted, could have been admitted substantively under established hearsay exceptions, the improperly admitted evidence was only cumulative. In particular, the State insists that the statements to the nurses were admissible as either excited utterances, N.H.R.Ev. 803(3), or as statements for the purpose of medical treatment or diagnosis, N.H.R.Ev. 803(4), the statements to the doctors were admissible as statements for the purpose of medical treatment or diagnosis, and the domestic violence petition was admissible as a statement made under oath in a former proceeding, N.H.R.Ev. 801(d)(1)(A). We need not decide whether the State can raise on appeal alternative grounds for admission that were either not presented to or not considered by the trial court, compare State v. McLaughlin, 135 N.H. 669, 672, 610 A.2d 809, 810-11 (1992) and State...