State v. Shute

• Decision Date: 09 June 1982
• Docket Number: Nos. 81-020,81-181 and 81-051,s. 81-020
• Parties: The STATE of New Hampshire v. Richard E. SHUTE, Jr.
• Court: New Hampshire Supreme Court

Page 1162

446 A.2d 1162

122 N.H. 498

The STATE of New Hampshire v. Richard E. SHUTE, Jr.

Nos. 81-020, 81-181 and 81-051.

Supreme Court of New Hampshire.

June 9, 1982.

Gregory H. Smith, Atty. Gen. (Martha V. Gordon, Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

McSwiney, Jones & Semple, Concord (Carroll F. Jones, Concord, on the brief and orally), for Glenn W. Bricker, M.D., intervenor.

DOUGLAS, Justice.

The defendant appeals his convictions in Superior Court (Johnson, J.) of aggravated felonious sexual assault, RSA 632-A:2 III (Supp.1981), and kidnapping, RSA 633:1 I(d). Finding reversible error, we remand for a new trial.

On July 7, 1979, the prosecutrix, met her boyfriend Tim Smith at his home in Meredith, New Hampshire. He was accompanied by Richard Shute, the defendant, whom the prosecutrix met for the first time that evening. The three left Smith's home in his car, when the car began to have serious muffler problems, the defendant, who was driving, stopped the car, and Smith got out to repair the muffler. While Smith was underneath the car working on the muffler, the defendant drove away with the prosecutrix. He stopped the car in a dark, deserted clearing on a dirt logging road at about 1:30 a.m. on July 8th. According to the prosecutrix, the defendant removed her clothes and forced her to submit to sexual intercourse two times during the night. At approximately 5:00 a.m., the prosecutrix testified that she again submitted to sexual intercourse because the defendant threatened her with a knife. After a fourth incident, the defendant allowed the prosecutrix to leave.

The defendant was indicted by a grand jury for aggravated felonious sexual assault, RSA 632-A:2 III (Supp.1981), and kidnapping, RSA 633:1 I(d). His first trial ended in mistrial when one juror announced he had heard about the case and was "prejudiced" against the defendant. A second trial, which commenced on November 3, 1980, culminated in convictions on both charges. The court denied the defendant's motions for judgment of acquittal notwithstanding the verdict and for new trial and sentenced him to 7 1/2 to 15 years imprisonment for the crime of aggravated felonious sexual assault. The defendant appealed. Sentence has not yet been imposed for the kidnapping conviction.

The defendant claims the trial court's denial of his motion for a transcript violated his right to equal protection of the laws. At the hearing on the motion, defense counsel stated that the transcript was needed to impeach the prosecutrix because she had changed her story at least two, and possibly three, times since her deposition. He specified that she made statements during the first trial which were inconsistent with statements she made previously under oath at the deposition. Defense counsel believed it would also be useful to compare the prosecutrix' testimony during the second trial with her prior testimony. Although he would have liked the entire transcript of the first trial, defense counsel narrowed his request to the testimony of the prosecutrix and the State's two medical experts. The State objected to the defendant's motion on the ground of expense, and the court denied the motion. We hold that the court erred.

In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the United States Supreme Court held that an indigent defendant in a criminal case is entitled to a free transcript of his first trial, if it ends in a mistrial, when the transcript is needed for an effective defense on appeal. Id. at 227, 92 S.Ct. at 433. Whether a transcript is needed for an effective defense depends on two factors: first, the value of the transcript to the defendant; and second, the availability of alternative devices that would fulfill the same functions as a transcript. Id. In this case, the transcript would have been extremely valuable to the defendant because he might have been able to use it to impeach the prosecutrix, whose testimony formed the basis for the State's entire case. See id. at 228, 92 S.Ct. at 434; United States v. Rosales-Lopez, 617 F.2d 1349, 1355 (9th Cir. 1980).

Unlike the court in Britt, we find that the defendant before us did not have an adequate substitute for a transcript. For example, during defense counsel's cross-examination of the prosecutrix at the second trial on November 3, 1980, the following colloquy took place: "Q. Would you say that your testimony today differs quite a bit with ... your previous testimony ...? A. No." Without the transcript defense counsel's ability to impugn the prosecutrix' credibility was severely impaired.

The alternatives available to the defendant in Britt were not viable options in this case. In Britt, the defendant's attorney had the alternative of informally asking the court reporter, who was a good friend of all the local lawyers, to read back his notes of the mistrial. Id. 404 U.S. at 229, 92 S.Ct. at 434. The State urges this court to accept such a procedure as an adequate substitute for a transcript. We refuse to do so. First, the defendant's ultimate request was not onerous: he did not ask for the entire transcript, but only for the testimony of three witnesses. Second, we cannot conclude that the trial in this case took place in a small town where the stenographer was a "good friend" of all the local lawyers and was willing to read back his notes routinely. Moreover, if New Hampshire court stenographers were regularly required to read back their notes of mistrials or to appear as witnesses at subsequent trials, they would not have time to perform their primary function, to record court proceedings and prepare transcripts for appeals.

We are compelled by the holding in Britt to conclude that the defendant's constitutional right to equal protection of the laws under the fourteenth amendment to the United States Constitution has been violated. He is therefore entitled to a new trial.

Since this case began in 1980, the parties have disputed admission of the victim's prior sexual history. At the first trial, the court held that the rape shield statute, RSA 632-A:6 (Supp.1981), totally barred evidence of the victim's prior consensual sexual activity. At the second trial, the court again ruled that the statute prohibited questioning relating to prior consensual sexual activity. Approximately one month after the defendant filed his notice of appeal, we held in State v. Howard, 121 N.H. 53, 60-61, 426 A.2d 457, 462 (1981), that evidence of a prosecutrix' prior sexual activity could be relevant and admissible in certain limited circumstances. We have also held that the prosecutrix may be cross-examined about prior inconsistent statements relating to her previous sexual activity. State v. LaClair, 121 N.H. 743, 746, 433 A.2d 1326, 1329 (1981). Subsequent to the decision in State v. Howard, the defendant filed a motion to set aside the conviction as well as a motion for new trial. At the motion hearing, defense counsel addressed the impact of State v. Howard on the defendant's case.

We have previously held that we will apply State v. Howard retroactively when the issue it addresses has been properly raised in the trial court and preserved for appeal. State v. Wonyetye, 122 N.H. 39, 441 A.2d 363, 364 (1982). The defendant challenged the trial court's application of the rape shield statute by excepting to its ruling and appealing to this court. Because the defendant properly excepted to the trial court's application of the rape shield statute and preserved the issue for appeal, he is entitled to the procedural protections of State v. Howard. See State v. LaClair, 121 N.H. at 748, 433 A.2d at 1330. The defendant is entitled to demonstrate at a hearing held out of the presence of the jury that due process requires introduction of evidence concerning the prosecutrix' prior consensual sexual activity. State v. Howard, 121 N.H. at 58-59, 426 A.2d at 461. The evidence is admissible when the trial court, in its discretion, determines that the probative value of the evidence outweighs its prejudicial effect on the prosecutrix. Id., 426 A.2d at 461; see State v. LaClair, 121 N.H. at 745, 433 A.2d at 1328.

We reject, however, the defendant's argument that he should be allowed to present evidence of the prosecutrix' predilection for promiscuity and indiscriminate sexual activity. We will not permit defense counsel to parade a prosecutrix' entire sexual history before a jury. Rather, prior sexual activity may be admitted only for those limited purposes recognized in State v. Howard and State v. LaClair.

In the interest of judicial economy and because some of the issues raised will be relevant upon retrial, we address the defendant's remaining arguments. State v. LaClair, 121 N.H. 743, 746, 433 A.2d 1326, 1329 (1981).

The defendant challenges the indictment charging him with aggravated felonious sexual assault under RSA 632-A:2 III (Supp.1981). The statute provides that a "person is guilty of a class A felony when he "coerces the victim to submit [to sexual penetration] by threatening to use physical force, physical violence or superior physical strength on the victim, and the victim believes that the actor has the present ability to execute these threats." RSA 632-A:2 III (Supp.1981) (emphasis added). The indictment for aggravated felonious sexual assault did not allege the underlined portion of the statute as an element of the offense. The defendant considers this a fatal defect justifying dismissal of the indictment. We agree with the trial court,...