State v. Miller

• Decision Date: 18 April 2007
• Docket Number: No. 2005-775.,2005-775.
• Citation: 155 N.H. 246,921 A.2d 942
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Terry MILLER.

155 N.H. 246

921 A.2d 942

The STATE of New Hampshire

v.Terry MILLER.

No. 2005-775.

Supreme Court of New Hampshire.

Argued: Feb. 27, 2007.

Opinion Issued: April 18, 2007.

Kelly A. Ayotte, attorney general(Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.

DALIANIS, J.

The defendant, Terry Miller, appeals his conviction by a jury on three counts of aggravated felonious sexual assault, seeRSA 632-A:2, III (1996), and one count of felonious sexual assault, seeRSA 632-A:3, III (1996)(amended 2003).He argues that the Superior Court(Fitzgerald, J.) erred when it granted the State's motion in limine to preclude him from cross-examining the victim about her allegations that her father had physically and emotionally abused her.We remand.

The record reveals the following: The aggravated felonious sexual assault indictments alleged that the defendant engaged in a pattern of sexual assault involving sexual intercourse, cunnilingus and masturbation; the felonious sexual assault charge alleged a single sexual assault involving fellatio.At the time of trial, the victim was eighteen years old; the charges alleged conduct from 1993, when she was six, from 1995, when she was eight, and from 1996, when she was nine.

Before trial, the State moved in limine to exclude, among other things, evidence that the victim had alleged that her father had abused her.The State acknowledged that the New Hampshire Division for Children, Youth and Families(DCYF) had classified the allegations as unfounded.The State sought to preclude the defendant from cross-examining the victim about them.

Over the defendant's objection, the trial court granted this portion of the State's motion in limine.The trial court ruled that the defendant could not cross-examine the victim about the allegations against her father unless he showed that they were demonstrably false by clear and convincing evidence.SeeState v. White,145 N.H. 544, 548, 765 A.2d 156(2000), cert. denied,533 U.S. 932, 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).The court found that the defendant failed to meet this burden.Noting that the defendant intended to call several witnesses to testify that the victim was untruthful, the court ruled that "while the abuse allegations may be informative, their weight is diminished and the Court does not see the introduction of those statements as compelling."The court, therefore, precluded the defendant from cross-examining the victim about the abuse allegations against her father.

On appeal, the defendant argues that the trial court misconstrued and misapplied New Hampshire Rule of Evidence 608(b) by requiring him to show that the victim's allegations against her father were demonstrably false before permitting him to cross-examine her about them.

I

A trial court has broad discretion to determine the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion.SeeState v. Abram,153 N.H. 619, 632, 903 A.2d 1042(2006).To prevail under this standard, the defendant must demonstrate that the trial court's decision was clearly untenable or unreasonable to the prejudice of his case.Id.

A

Rule 608(b) provides, in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule § 609, may not be proved by extrinsic evidence.They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness....

Although Rule 608(b) permits a cross-examiner to inquire into conduct that is probative of the witness's character for truthfulness or untruthfulness, generally, the examiner must take the answer as the witness gives it.State v. Hopkins,136 N.H. 272, 276, 616 A.2d 916(1992).Rule 608(b) prohibits the examiner from introducing "extrinsic evidence, such as calling other witnesses to rebut the witness's statements."Id.The objective is to avoid a trial within a trial; that is, to avoid the litigation of issues that are collateral to the case at hand.Id.

Nothing in this rule requires that a defendant prove that allegations a victim made against someone else are demonstrably false by clear and convincing evidence before being permitted to cross-examine the victim about them.SeeCoplan,399 F.3d at 22.The "demonstrably false" requirement comes from our decision in White.Seeid.

In White,the defendant appealed his convictions for felonious sexual assault, arguing, in part, that the trial court erred when it excluded extrinsic evidence of the victims' prior allegations of sexual assault against other individuals.White,145 N.H. at 547, 765 A.2d 156.Extrinsic evidence means evidence other than the witness's own answers on cross-examination.SeeState v. Higgins,149 N.H. 290, 299, 821 A.2d 964(2003).Although Rule 608(b), on its face, bars extrinsic evidence of "[s]pecific instances of the conduct of a witness" introduced "for the purpose of attacking or supporting the witness' credibility,"the trial court ruled that the defendant could introduce extrinsic evidence of the victim's prior allegations if he proved that they were demonstrably false.White,145 N.H. at 547, 765 A.2d 156.We agreed that this was the correct standard to impose before permitting the defendant to introduce extrinsic evidence of prior allegations of sexual assault under Rule 608(b).Id. at 548, 765 A.2d 156.We explained that we interpreted "demonstrably false" to mean "clearly and convincingly untrue."Id.(quotation omitted).

We did not rule, however, that a defendant had to meet the "demonstrably false" standard before Rule 608(b) permitted him to cross-examine a victim about prior allegations of sexual assault.Rather, we ruled that the Confrontation Clauses of the Federal and State Constitutions did not mandate such cross-examination unless the defendant met the "demonstrably false" standard.Id. at 553-54, 765 A.2d 156.We held that because there was no clear and convincing evidence that the prior allegations of sexual assault were "demonstrably false,"the trial court did not violate the defendant's constitutional rights under the Federal and State Confrontation Clauses when it precluded him from cross-examining the victims about them.Id.On habeas review, the First Circuit Court of Appeals in Coplan,399 F.3d at 22-23, 26-27, took issue with this part of our decision.

Thus, the trial court erred when it construed Rule 608(b) to require the defendant to prove that the victim's allegations against her father were demonstrably false by clear and convincing evidence before it could permit him to cross-examine the victim about them.Consistent with Rule 608(b), the trial courtcould have exercised its discretion to permit the defendant to cross-examine the victim about the prior false allegations, provided that the court found that the allegations were probative of truthfulness and untruthfulness and otherwise admissible.Consistent with White,the trial court would not have been constitutionally required to permit this cross-examination unless the defendant proved that the prior allegations were demonstrably false.Contrary to the trial court's ruling, the trial court's discretion with respect to cross-examination about prior false allegations of sexual assault is broader under Rule 608(b) than it is under the State Constitution.

The trial court's misinterpretation of White is understandable given that in opinions decided after White,we have been less than clear in describing its holding.SeeAbram,153 N.H. at 631-33, 903 A.2d 1042;State v. Etienne,146 N.H. 115, 118-19, 767 A.2d 455(2001);State v. Gordon,146 N.H. 258, 261, 770 A.2d 702(2001).In Abram,153 N.H. at 631, 903 A.2d 1042, for instance, we stated that in White:"We affirmed the trial court's exclusion of both cross-examination of the victims and extrinsic evidence concerning the prior allegations, holding that ‘a defendant may introduce a victim's prior allegations of sexual assault by showing that the prior allegations were demonstrably false,’ which we interpreted to mean ‘clearly and convincingly untrue.’ "In Etienne,146 N.H. at 118-19, 767 A.2d 455, we interpreted White to mean that before the defendant could impeach the credibility of a witness by inquiring about a police report alleging a sexual assault that she filed and later recanted, he must show that the prior allegations were demonstrably false.In Gordon,146 N.H. at 261, 770 A.2d 702, we described our holding in White as "stating that a defendant in a sexual assault case may cross-examine the victim about a prior false allegation of sexual assault under Rule 608(b) only if the defendant makes a threshold showing of ‘probity and similarity,’ and demonstrates clearly and convincingly that the prior allegations were false."

In the above cases, we conflated the issues of when, as a constitutional matter, a trial courtmust permit a defendant to cross-examine a witness about allegedly false accusations of sexual assault and when, as an evidentiary matter, a courtmay allow a defendant to do this.In so doing, we were imprecise about what White actually held.In Gordon, in particular, we erred when we construed White to require a defendant to demonstrate clearly and convincingly that the prior allegations were false before being permitted to cross-examine the victim about them under Rule 608(b)."While we recognize the value of stability in legal rules, we have also...