State v. Racette, 2020-0364
| Docket Number | 2020-0364 |
| Decision Date | 26 April 2022 |
| Citation | 175 N.H. 132,281 A.3d 980 |
| Parties | The STATE of New Hampshire v. Richard RACETTE |
| Court | New Hampshire Supreme Court |
175 N.H. 132
281 A.3d 980
The STATE of New Hampshire
v.
Richard RACETTE
No. 2020-0364
Supreme Court of New Hampshire.
Argued: February 10, 2022
Opinion Issued: April 26, 2022
John M. Formella, attorney general (Zachary L. Higham, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
DONOVAN, J.
The defendant, Richard Racette, appeals his convictions, following a jury trial in the Superior Court (St. Hilaire, J.), on four pattern counts of aggravated felonious sexual assault (AFSA). See RSA 632-A:2, III (2016). He argues that the trial court erred by: (1) barring cross-examination about a witness's prior statement; and (2) failing to dismiss one of the indictments for insufficient evidence. We conclude that the trial court erred by barring cross-examination about the witness's prior statement and that the error was not harmless beyond a reasonable doubt. We further conclude that the trial court committed plain error by failing to dismiss one of the indictments for insufficient evidence. Accordingly, we reverse and remand.
I. Facts
The jury could have found the following facts. In September 2016, the defendant began residing in an apartment with the complainant, who was under the age of thirteen, and the complainant's mother, whom he had known for over a decade. The complainant's mother asked the defendant to move into the apartment to assist with the rental payments. The defendant occupied one of the bedrooms, and the complainant and her mother shared another bedroom. The defendant moved out of the apartment in February 2017, but returned for the month of April 2017. Thereafter, the defendant moved to a different residence in another town.
In July 2017, the defendant began encouraging the complainant's mother to move into his new residence with the complainant. The mother agreed and informed the complainant of her plan to move. Shortly thereafter, the complainant disclosed to the police that the defendant had repeatedly sexually assaulted her while he resided at the apartment. The following
week, the complainant was interviewed at the Child Advocacy Center (CAC) about her allegations. The defendant was subsequently indicted on four pattern counts of AFSA. See RSA 632-A:2, III. The indictments alleged that the defendant engaged in patterns of sexual assault by touching the complainant's genitals, breasts, and buttocks, and by attempting to engage in sexual penetration with the complainant.
Prior to trial, the defendant moved for in camera review of certain confidential counseling and DCYF records pertaining to the complainant's family. The trial court granted the motion with respect to the DCYF records, but denied it with respect to a number of the family counseling records. Thereafter, the court reviewed the DCYF records and ordered the disclosure of some of the confidential records.
At trial, the complainant testified that, when the defendant resided at the apartment, he repeatedly entered her bedroom while she was sleeping and touched her breasts, buttocks, and genitals. The complainant testified that this conduct began about a month after the defendant moved into the apartment and occurred "on most nights." According to the complainant, when these assaults occurred, her mother
was sleeping on the couch. The complainant also testified that "[s]ometimes" the defendant attempted to engage in sexual penetration with her. The complainant stated that, on those occasions, she kicked and pushed the defendant until he left the room.
The State also called the complainant's older sister as a witness. The sister testified that, based upon her observations of the complainant's demeanor during the defendant's residence at the apartment, she believed the complainant "felt uncomfortable" and "didn't like being around" the defendant. The sister further stated that the defendant "would ... go near [the complainant] or put his hand on her, and she would brush it off ... she didn't really like him being around." The defendant attempted to impeach the sister's testimony by asking why she did not reveal this observation during her prior interview with prosecutors. The sister responded that she did not mention it because she "wasn't asked that question."
In response, the defendant sought to introduce the sister's prior statement from the same interview, during which she offered the following explanation as to why she assumed custody of the complainant following the disclosure of the sexual assault allegations:
I had a hard time believing that [the defendant] was capable of doing all this when my mom was there, and for as long as it went on. I mean, I don't think she was - - I don't think she was sober. I don't think anybody that would be sober would not know if their daughter was being raped. I just - - I don't believe it.
The defendant explained that he intended to use the sister's prior statement to impeach her testimony about the complainant's demeanor and her belief that the complainant felt uncomfortable around the defendant. The defendant also stated that he intended to ask the sister whether the allegations "came as a surprise" to her and, if the sister responded negatively, he intended to use the sister's statement that she "had a hard time believing that [the defendant] was capable of doing all this" as further impeachment evidence.
Ultimately, the trial court found the statement to be inadmissible lay opinion evidence. The court reasoned that the defendant wants "the statement to come out so the jury believes that this witness doesn't believe her sister." Thus, the court found that the statement was "a backdoor way" of allowing the sister to opine upon the complainant's credibility. As a result, the trial court precluded the defendant from introducing the sister's prior statement for impeachment purposes. The jury found the defendant guilty on all four counts. This appeal followed.
II. Analysis
A. Exclusion of the Sister's Prior Statement
The defendant first argues that the trial court erred by excluding the sister's prior statement as impermissible lay witness opinion evidence. We review the trial court's evidentiary rulings for an unsustainable exercise of discretion and reverse only if the court's decision was clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Fiske, 170 N.H. 279, 286, 171 A.3d 1234 (2017). We consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. Id. The defendant bears the burden of demonstrating that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.
A witness need not qualify as an expert to give testimony in the form of an opinion. See N.H. R. Ev. 701 ; see also
State v. McDonald, 163 N.H. 115, 121, 35 A.3d 605 (2011). The trial court may permit lay opinion testimony as long as the witness's opinion is "rationally based on the witness's perception," helpful to the trier of fact, and "not based on scientific, technical, or other specialized knowledge." N.H. R. Ev. 701. However, it is the province and obligation of the jury alone to determine the credibility of witnesses. McDonald, 163 N.H. at 121, 35 A.3d 605. Therefore, although witnesses may give lay opinion testimony on a variety of topics, they are not permitted to give lay opinion testimony regarding the credibility of another witness. Id. ; see also State v. Lopez, 156 N.H. 416, 423-24, 937 A.2d 905 (2007) (establishing "a broad prohibition on questions requiring a witness to comment upon the credibility of other witnesses"). This prohibition applies to testimony that explicitly
comments upon credibility, as well as testimony that indirectly comments upon credibility. McDonald, 163 N.H. at 123, 35 A.3d 605.
Here, the parties dispute whether, in her prior statement, the sister commented upon the complainant's credibility. The defendant argues that he "did not proffer the line of cross-examination for the purpose of eliciting [the sister's] opinion on [the complainant's] credibility." Instead, he argues, the prior statement impeached the sister's credibility because it was inconsistent with her testimony about the complainant's demeanor around the defendant. The State, on the other hand, argues that "the defendant intended to use" the sister's prior statement "to show the jury that [the sister] doubted the truth of [the complainant's] allegations." In the State's view, the prior statement is impermissible impeachment evidence because it amounts to a comment upon the complainant's credibility.
We disagree. Contrary to the State's argument, the sister's prior statement is not "equivalent to [the sister] stating that the [complainant] was lying or mistaken." The statement indicates the sister's surprise that the defendant "was capable of" sexually assaulting the complainant "when [her]...
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