State v. Reid

• Decision Date: 16 March 2011
• Docket Number: No. 2009–280.,2009–280.
• Parties: The STATE of New Hampshirev.George REID.
• Court: New Hampshire Supreme Court

161 N.H. 569

20 A.3d 298

The STATE of New Hampshire

v.George REID.

No. 2009–280.

Supreme Court of New Hampshire.

Argued: Jan. 6, 2011.Opinion Issued: March 16, 2011.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.Lothstein Law Office, PLLC, of Concord (Theodore Lothstein on the brief and orally), for the defendant.DUGGAN, J.

The defendant, George Reid, appeals his conviction by a jury on two counts of aggravated felonious sexual assault, see RSA 632–A:2 (Supp. 2003), and two counts of felonious sexual assault, see RSA 632–A:3 (Supp. 2003). He argues that the Trial Court ( Brown, J.) erred when it allowed the State to admit a videotape of the victim's interview with police and when it denied his motion for a mistrial. We affirm.

The record reflects the following facts. In 2003, the defendant was living with the victim's grandmother. The victim, E.B., visited her grandmother and the defendant numerous times a week at their home, where they had a swimming pool and a hot tub. On at least one occasion, the defendant and E.B. were in the hot tub alone and the defendant did not have clothes on; the defendant told E.B. to come to him, pulled her bathing suit bottom down to her knees, and placed his penis between her buttocks. Occasionally, the victim also slept in the same bed with her grandmother and the defendant. On at least one occasion, the defendant pulled down E.B.'s pajama pants and put his penis between her buttocks. E.B. also told investigators that the defendant penetrated her vagina with his penis and his finger. On May 6, 2004, E.B. gave a videotaped interview with an investigator, Nancy Harris–Burovac, and described the incidents involving the defendant.

During the trial, which took place in January 2009, the State attempted to introduce the victim's videotaped statement as a recorded recollection. The victim testified that she remembered giving the videotaped interview and that at the time of the interview her memory was better than it was at trial. She testified that she had viewed the videotape and did not remember some of the events that she described on the videotape. E.B. specifically testified that she did not remember any of the sexual assaults involving vaginal penetration, but that when she was interviewed she tried to tell the truth about “what happened with George.” When defense counsel questioned the victim about some of the specific allegations, she was unable to testify to a memory of whether the assaults had occurred.

The trial court ruled that, with regard to the vaginal penetration charges, the victim had first-hand knowledge of the events, that she presently lacked sufficient memory of the event to testify fully and accurately, that the recorded statement was made at or near the time of the event when the witness had declared an accurate memory of the statement, and that the recorded statement accurately reflected the witness's knowledge. The State was then permitted to play an edited portion of the videotaped interview relating to the vaginal penetration charges.

On appeal, the defendant first argues that the trial court erred in allowing the State to introduce the victim's videotaped interview with an investigator under the recorded recollection exception to the hearsay rule. “We review the trial court's decisions on the admissibility of evidence under an unsustainable exercise of discretion standard.” State v. Beede, 156 N.H. 102, 105, 931 A.2d 1258 (2007). “Therefore, the defendant must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case.” Id.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.H. R. Ev. 801(c). Hearsay is inadmissible unless it falls within one of the specifically enumerated exceptions provided in the rules of evidence. See N.H. R. Ev. 802. To be admissible under the “recorded recollection” exception, a recorded statement must meet the following requirements:

(1) the witness once had firsthand knowledge about the event; (2) the witness now lacks sufficient memory of the event to testify fully and accurately; (3) the recorded statement was made at or near the time of the event when the witness had a clear and accurate memory of it; and (4) the recorded statement accurately reflects the witness's knowledge.

State v. Locke, 139 N.H. 741, 743, 663 A.2d 602 (1995); see N.H. R. Ev. 803(5).

The defendant contends that the State did not satisfy the third and fourth prongs of the foundation for a recorded recollection. We disagree. The third prong requires that the recorded statement be made at or near the time of the event when the witness had a clear and accurate memory of it. The victim disclosed the incidents to her mother on April 22, 2004, and gave her taped interview on May 6, 2004. In Locke, we found that the trial court properly exercised its discretion in finding that the third prong was satisfied when a videotape of the victim's statement was made “within a few weeks of the disclosure of the incidents.” Locke, 139 N.H. at 743–44, 663 A.2d 602. Here, the videotaped statement was made fourteen days after the disclosure of the incidents. At trial, the victim testified that when she made the videotaped statement she had a clear memory of the events. We find that the trial court was well within its discretion to find that the third prong of the recorded recollection exception was met.

The fourth prong requires that the recorded statement accurately reflect the witness's knowledge. The defendant argues that because the victim equivocated as to whether the incidents described in the videotaped interview actually took place, the State did not show that the statement accurately reflects the victim's knowledge.

Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration ... of factors indicating trustworthiness, or the lack thereof.

United States v. Porter, 986 F.2d 1014, 1017 (6th Cir.), cert. denied, 510 U.S. 933, 114 S.Ct. 347, 126 L.Ed.2d 312 (1993). While the general rule is that the witness must confirm the accuracy of the recorded statement, “unless the witness has expressly repudiated it on the stand the trial judge may consider all of the circumstances in finding the requisite confirmation, including the demeanor of the witness in court ... as well as the conditions under which the out-of-court statement was made.” Pickett v. United States, 822 A.2d 404, 406 (D.C.2003).

Here, the victim never repudiated the accuracy of the taped portion of the statement that was played for the jury. At trial, she could not remember the events described in the video at all and was unable to provide any information to either the State or defense counsel as to the accuracy of the recorded statements. The trial court was in the best position to determine the admissibility of the recording based upon a consideration of the factors indicating the trustworthiness of the statement. The trial court had the opportunity to observe testimony from the victim witness on multiple occasions regarding her memory of the events discussed in the video. The trial court also viewed the video in advance of showing it to the jury and considered the demeanor of the victim while making the statements. In ruling on the admissibility of the video, the trial court found that “[t]he recorded statement was made at or near the time of the event, when the witness had declared an accurate memory of it and of the recorded statement.... The recorded statement accurately reflects the witness' knowledge.” “[T]o the extent the finding reflects the court's firsthand observations of the witness's demeanor, it is deserving of considerable deference.” Locke, 139 N.H. at 743, 663 A.2d 602.

Additionally, the record supports a finding that the videotaped statement accurately reflected the victim's knowledge of the abuse at the time she made the statement. As previously mentioned, the interview occurred two weeks following the disclosure of the incidents. At trial, the victim testified that she remembered meeting with “Nancy” for the interview to “talk to her about what happened, what George had done.” She testified that her memory at the time of the interview was better than it was at present. She testified that she had tried to forget the incidents in the intervening years “so it [didn't] worry [her],” but that when she spoke to the investigator on the videotape, she tried to tell her everything that happened with the defendant. Finally, the victim testified that when she spoke with the investigator, she was telling her the truth about the incidents that occurred with the defendant. Given this testimony, we find that the trial court properly exercised its discretion in finding that the fourth prong of the recorded recollection exception was met.

The defendant also argues that the admission of the videotaped interview violated his right to confrontation under the Sixth Amendment to the Federal Constitution. The defendant contends that because E.B. claimed to have no memory of the charged events, she was not available for cross-examination. We have previously held that the admission of a witness's prior statement does not violate the federal right to confrontation if the witness is present for cross-examination, even if the witness has no recollection of the events. State v. Legere, 157 N.H. 746, 755–56, 958 A.2d 969 (2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1623, 173 L.Ed.2d 1005 (2009). The defendant urges us overrule our decision in Legere and hold that a...