State v. Newman

• Citation: 808 A.2d 7,148 N.H. 287
• Decision Date: 13 September 2002
• Docket Number: No. 2000-657.,2000-657.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Steven NEWMAN.

148 N.H. 287

808 A.2d 7

The STATE of New Hampshire

v.Steven NEWMAN.

No. 2000-657.

Supreme Court of New Hampshire.

Argued Jan. 15, 2002.

Opinion Issued Sept. 13, 2002.

Philip T. McLaughlin, attorney general (Stephen D. Fuller, assistant attorney general, on the brief and orally), for the State.

Richard E. Samdperil, assistant appellate defender, of Concord, by brief and orally, for the defendant.

BROCK, C.J.

The defendant, Steven Newman, was convicted after a jury trial in Superior Court (O'Neill , J.) of aggravated felonious sexual assault against a victim younger than thirteen. See RSA 632-A:2, I (1996). He appeals, arguing that the trial court erred when it: (1) ruled that he could not cross-examine the victim about her knowledge of a friend's recent sexual assault allegations; and (2) allowed a laboratory technician to render an expert opinion about the potential sources of red blood cells found in a vaginal smear. We affirm.

The jury could have found the following facts. On the evening of April 16, 1999, the eight-year-old victim was at home with her mother and the defendant, her stepfather.

Sometime during the night, the victim awoke to find the defendant "start[ing] to bother[ ]" her. The victim testified that the defendant twice put his finger "down [her] pee pee," and later put his finger in her "bottom."

In the morning, the victim went next door to the home of her friend KP, where she told KP what had happened. KP, in turn, told her mother and her aunt, and KP's mother called the police.

That afternoon, an investigating officer took the victim and the victim's mother to the emergency room at Huggins Hospital in Wolfeboro, where the victim was examined by Dr. Scott Horton. The examination included the use of a "rape kit."

The State's forensic laboratory analyst, Susan Withey, examined the "rape kit" and found an occasional red blood cell on the vaginal smear

. Ms. Withey testified on direct examination that there are two reasons red blood cells would be found on a smear: "either the person is menstruating, or there's been some sort of trauma."

The defendant was convicted of aggravated felonious sexual assault for penetrating the victim's vagina with his finger. On appeal, he argues, first, that the trial court erred when it barred him from cross-examining the victim about KP's recent claim that she had been sexually assaulted by her babysitter. We disagree.

The defendant's contention at trial was that the victim had fabricated the sexual assault allegations in order to protect her mother by having him separated from the family. In an effort to prove that the victim knew that allegations of sexual assault could result in his removal from the home, the defendant filed a motion in limine prior to trial to cross-examine the victim about KP's recent allegations of sexual assault. The defendant asserted that, prior to the victim's disclosure of his alleged assault to KP, KP had told the victim that she had been sexually assaulted by her babysitter and that the babysitter was thereafter prevented from having any contact with KP. Thus, on cross-examination, the defendant sought to inquire at trial about the following: (1) that KP made allegations of sexual assault against her babysitter prior to the victim's allegations of sexual assault against the defendant; (2) that action had been taken to protect KP from her alleged assailant; (3) that the victim and KP were close friends who frequently spent time together; and (4) that the victim's accusations against the defendant were made through KP after the two girls conversed. Following a hearing, the trial court rejected the defendant's constitutional and evidentiary arguments, but stated:

Despite the above determination, the Court concludes that the Defendant may inquire at trial of both the complainant and KP, should they testify, about any suggestions, recommendations, or discussions between the two as to a course of action whereby false allegations of sexual assault would be an essential component of a plan to have the defendant removed from the complainant's home prior to the formal investigation by the authorities in this matter. Such inquiry would be proper pursuant to Rules 404(b) and 401. However, for the reasons discussed above, the Defendant may not question either the complainant or KP about specific details involving KP's alleged sexual assault.

On appeal, the defendant contends that he was denied his constitutional right to confront the principal witness against him through cross-examination designed to impeach or discredit her credibility and to reveal any ulterior motives she may have had in accusing him of sexual assault. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amend. VI. We first address the defendant's argument under our State Constitution, citing federal authority only to aid our analysis. See State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). Because the federal Confrontation Clause affords no greater protection than the State Confrontation Clause, we need not undertake a separate federal analysis. See State v. Dixon, 144 N.H. 273, 278, 741 A.2d 580 (1999).

"The opportunity to impeach a witness's credibility through cross-examination is an incident of rights guaranteed by part I, article 15 of the State Constitution." State v. Roberts, 136 N.H. 731, 744, 622 A.2d 1225 (1993). Although a trial court has broad discretion to fix the limits of cross-examination, it "may not completely deny a defendant the right to cross-examine a witness on a proper matter of inquiry." State v. Dugas, 147 N.H. 62, 72, 782 A.2d 888 (2001) (quotations and citation omitted). "Once a defendant has been permitted a threshold level of inquiry, however, the constitutional standard is satisfied, and the judge's limiting of cross-examination is measured against an [unsustainable exercise of discretion] standard." State v. Smart, 136 N.H. 639, 667-68, 622 A.2d 1197 (citation omitted), cert. denied , 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993) ; cf . State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard). Thus, when the record reveals that a threshold level of inquiry was allowed, we will uphold the trial court's decision limiting the scope of further cross-examination unless the defendant demonstrates that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. See Smart, 136 N.H. at 668, 622 A.2d 1197; Lambert, 147 N.H. at 296, 787 A.2d 175.

The defendant argues that he was constitutionally entitled to inquire whether the victim knew that: (1) KP had made sexual assault allegations against someone; and (2) action was taken to protect KP from the alleged perpetrator. The defendant argues that such evidence is relevant to whether the victim had fabricated the story because a jury could have inferred from the evidence that the victim knew that an allegation of sexual assault could result in the defendant being removed from the home.

While we agree that whether the complainant knew that making a sexual assault allegation could result in the defendant being removed from the home was relevant to the defendant's fabrication defense, we conclude that the trial court's order did not bar the defendant from making at least a threshold inquiry at trial into the victim's knowledge about the consequences of making an allegation of sexual assault. The trial court's order did not preclude the defendant from cross-examining the victim about whether she knew at the time she made the allegations that they could result in the defendant being removed from the home. Furthermore, the order specifically noted that the defendant could cross-examine the victim about "a plan to have the defendant removed from the [victim]'s home." Thus, the order did not, as the defendant asserts, bar him from attempting to establish that the victim knew that an allegation of sexual assault could result in his expulsion from the home. Therefore, the order did not impermissibly limit the defendant's ability to effectively impeach the principal witness against him at trial in violation of Part I, Article 15 of the New Hampshire Constitution.

The defendant did not make these threshold inquiries at trial, despite the fact that the trial court's order did not bar him from doing so. Therefore, we do not decide whether a limitation on further cross- examination...