State v. Roman
| Docket Number | 2022-0557 |
| Decision Date | 28 December 2023 |
| Parties | STATE OF NEW HAMPSHIRE v. NESTOR ROMAN |
| Court | New Hampshire Supreme Court |
Argued: September 21, 2023
Hillsborough-northern judicial district
John M. Formella, attorney general, and Anthony J. Galdieri solicitor general (Robert L. Baldridge, attorney, on the brief and orally), for the State.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown on the brief and orally), for the defendant.
The defendant, Nestor Roman, appeals his convictions, following a jury trial, on one count of aggravated felonious sexual assault (AFSA) for engaging in a pattern of sexual assault, two counts of attempted AFSA, and two counts of misdemeanor sexual assault. See RSA 632-A:2, III (Supp. 2022); RSA 629:1 (2016); RSA 632-A:2, Ij) (Supp. 2022); RSA 632-A:4 (Supp. 2022). The defendant argues that the Superior Court (Delker, J.) erred by ruling that the defense opened the door for the State to introduce the testimony of a nurse who performed a Child Advocacy and Protection Program (CAPP) examination of the victim. We conclude that the defendant opened the door to this evidence and that the State was entitled to explain the nurse's findings. Accordingly, we affirm.
The jury could have found, or the record otherwise supports, the following facts. On June 25, 2019, the victim was playing video games in her bedroom when the defendant, her grandfather, entered the victim's room and began touching her breast and her inner thigh over her clothing. The victim testified that when she pushed the defendant away, he told her that he was sorry. The victim then called her mother, the defendant's daughter, to tell her that the defendant had sexually assaulted her. The victim and her mother then went to the police station to file a report. While they were there, the defendant arrived to turn himself in, telling the police that "he did something wrong."
During a subsequent Child Advocacy Center (CAC) interview, the victim disclosed another incident of abuse that allegedly occurred in November 2018. Thereafter, the State indicted the defendant on two counts of attempted AFSA. In 2021, shortly before the defendant's trial was scheduled to begin, the victim told her mother that the defendant's sexual abuse was not limited to the 2018 and 2019 incidents. She disclosed that the abuse began much earlier, when she was in elementary school. As a result of these new allegations, the defendant's trial was continued. The victim participated in another CAC interview and underwent the CAPP examination at issue in this appeal in September 2021. The State subsequently indicted the defendant on additional AFSA charges.
In June 2022, twelve days before the rescheduled trial date, the State filed an amended witness list that included for the first time the nurse who performed the victim's CAPP examination. The defendant moved to exclude the nurse's testimony because her addition to the witness list was untimely. The State responded by filing a motion in limine to permit the nurse to testify about the victim's statements during the CAPP examination. The trial court granted the defendant's motion to exclude the nurse's testimony based on the State's untimely disclosure.
At trial, the State called the lead detective assigned to the victim's case. The detective testified, in pertinent part, that he collected medical records during the investigation, explaining that police request a CAPP examination whenever a child discloses "some sort of sexual trauma or experience." Although he testified that he received medical records from the victim's CAPP examination, he did not discuss the results or findings of the examination which were documented in those records. Nonetheless, on cross-examination, defense counsel questioned the detective about the nurse's findings from the CAPP examination. Specifically, defense counsel asked whether the detective's review of the records indicated "anything significant" such as "tears" or "injuries" or other "signs of trauma." The detective testified that there were no injuries documented. The State then approached the trial court and argued that, by questioning the detective about the specific findings of the CAPP examination, the defense had opened the door for the nurse to explain her findings. The defense maintained that it was forced to inquire into the nurse's findings after the detective testified that he received medical records because
The trial court ruled that, by introducing the detective's testimony that there had been a CAPP examination, the State did not open the door to any otherwise inadmissible evidence. The court further concluded that the defense introduced hearsay by questioning the detective about the nurse's specific findings and, therefore, that the defense opened the door to the nurse's testimony regarding the likelihood of specific types of injuries observed when a child is sexually abused. The defendant deposed the nurse the following morning before trial resumed. The State subsequently called the nurse to testify as an expert in pediatric nursing, specifically in the area of child abuse and maltreatment. The nurse testified that, in the majority of examinations she had performed, physical signs of abuse were not present.
The jury convicted the defendant on one count of AFSA for engaging in a pattern of sexual assault, two counts of attempted AFSA, and two counts of misdemeanor sexual assault. This appeal followed.
On appeal, the parties both acknowledge that the door was opened to evidence that would not have otherwise been admitted at trial. However, they dispute which party opened the door and to what evidence the door was opened. We review a trial court's decision regarding the admissibility of evidence under the opening the door doctrine pursuant to the unsustainable exercise of discretion standard. State v. Barr, 172 N.H. 681, 692 (2019). To prevail, the defendant must show that the trial court's decision was clearly untenable or unreasonable to the prejudice of his case. Id. If the record establishes that a reasonable person could have reached the same decision as the trial court on the basis of the evidence before it, we will uphold the trial court's decision. Id.
The opening the door doctrine comprises two doctrines governing the admissibility of evidence. State v. Gaudet, 166 N.H. 390, 396 (2014). The first, which we have described as the doctrine of "curative admissibility," arises when inadmissible prejudicial evidence has been erroneously admitted by one party, and the opposing party seeks to introduce other evidence to counter the prejudice. State v. DePaula, 170 N.H. 139, 146 (2017). The second, which we have described as the doctrine of "specific contradiction," applies more broadly to situations in which a party introduces admissible evidence that creates a misleading advantage for that party, and the opposing party is then permitted to introduce previously suppressed or otherwise inadmissible evidence to counter the misleading advantage. Id. With respect to either doctrine, the fact that the "door has been opened" does not permit all evidence to "pass through" because the doctrine is intended to prevent prejudice and is not to be subverted into a vehicle for the introduction of prejudice. See State v. Benoit, 126 N.H. 6, 21 (1985).
To prevent confusion that might arise from the use of the term, when a party uses the term "opening the door" or its equivalent as justifying the admission of otherwise inadmissible evidence, the party should specify which of the two doctrines is being invoked. Barr, 172 N.H. at 693. This specificity is necessary because the two doctrines are invoked by different types of evidence - curative admissibility is triggered by the erroneous prior admission of inadmissible evidence, while specific contradiction is triggered by the introduction of misleading admissible evidence. Id. at 693-94. Under the curative admissibility doctrine, a trial judge has discretion to admit otherwise inadmissible evidence to rebut prejudicial evidence that has already been erroneously admitted. Id. at 693. Under the specific contradiction doctrine, a trial judge has discretion to admit previously suppressed or otherwise inadmissible evidence to directly counter the misleading advantage triggered by the introduction of admissible evidence. Id. at 693-94.
Turning to the case before us, we first address the issue of which party opened the door. On appeal, the defendant argues that the State opened the door to the detective's testimony on cross-examination regarding the contents of the CAPP records under either the curative admissibility or specific contradiction doctrine. Specifically, he argues that the State opened the door when it questioned the detective regarding the medical records he received during the investigation. We disagree.
On direct examination, the State asked the detective whether he collected any evidence in the case other than interviews with the victim and her mother, to which he responded that he did not. The State then specifically asked the detective whether he "collect[ed] any medical records." The detective then responded:
Oh, yes. And there [were] medical records. So when - when a child indicates that there is some sort of sexual trauma or experience, we refer - there's something called a CAPP, C-A-P-P exam. It's a Child Advocacy Protection Program. It's handled through Dartmouth-Hitchcock. And we say, you know, regardless of what else it is you're going to want to do, this is a doctor that specializes in this sort of exam[]. They know how to talk...
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