State v. Stowe

• Decision Date: 22 September 2011
• Docket Number: No. 2010–383.,2010–383.
• Citation: 34 A.3d 678,162 N.H. 464
• Parties: The STATE of New Hampshire v. John STOWE.
• Court: New Hampshire Supreme Court

162 N.H. 464

34 A.3d 678

The STATE of New Hampshire

v.John STOWE.

No. 2010–383.

Supreme Court of New Hampshire.

Submitted: June 16, 2011.Opinion Issued: Sept. 22, 2011.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief), for the State.

Dorothy E. Graham, assistant appellate defender, of Concord, on the brief, for the defendant.

LYNN, J.

The defendant, John Stowe, appeals his convictions of false report to law enforcement, RSA 641:4, and of unsworn falsification, RSA 641:3, arguing that the Superior Court ( McHugh, J.) erred when it: (1) limited his cross-examination of a crucial State witness; (2) denied his request for a curative instruction on the State's misstatements of law made during closing argument; and (3) denied his motion to dismiss the unsworn falsification complaint. We affirm the false report conviction and reverse the unsworn falsification conviction.

We recite the facts drawn from the record. In 2005, John Deere Company was authorized to repossess a tractor that the defendant had financed through it. John Deere was unsuccessful in doing so, however, because the tractor was not at the expected location. The defendant claimed that he did not know what happened to the tractor. During a subsequent court hearing, the trial court ordered the defendant to file a police report indicating that the tractor had been stolen.

In February 2006, the defendant told a Derry police officer that he had left the tractor on his lawn in the spring or summer of 2005 for John Deere to take possession of it, went on a business trip, and discovered it was gone when he returned home. He told the officer that he had assumed that John Deere repossessed it. The defendant completed a written statement, and the officer explained that a false report would result in “consequences.” The form itself contained the following notification: “I understand that false written statements made herein are punishable pursuant to RSA 641:3, unsworn falsification.”

During the time frame relevant to this case, the defendant worked for Frederick Nixon, who owned a demolition company. The defendant and Nixon had developed a close friendship, and socialized frequently. On September 6, 2006, Brian Dunn, also an employee of Nixon, contacted the police regarding suspicions he had about a tractor he had transported to one of Nixon's work sites. Dunn informed the police of the tractor's location and provided a photograph of it. The police obtained a search warrant but discovered that the tractor was no longer there. They left a copy of the warrant at the work site. About a week later, the tractor was located in some woods behind a towing yard in Derry. The police matched the tractor's VIN numbers with that of the tractor that the defendant had reported as stolen.

In January 2007, the investigating officer briefly spoke with Nixon, then interviewed him in March of that year. Subsequently, the defendant was charged with one count of giving a false report to law enforcement and one count of unsworn falsification. At trial, he unsuccessfully moved to dismiss the unsworn falsification charge. The jury found him guilty on both counts. This appeal followed.

I

The defendant first argues that the trial court erred in limiting his cross-examination of Nixon, thereby violating his rights to confrontation under Part I, Article 15 of the State Constitution and the Sixth and Fourteenth Amendments of the Federal Constitution. He sought to cross-examine Nixon about events that purportedly demonstrated Nixon's bias and hostility towards him, and about an alleged prior false statement Nixon had made to the police. We conclude that the defendant has failed to establish error.

We first consider the defendant's constitutional arguments under the State Constitution, referring to federal decisions only for guidance. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). “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. Brum, 155 N.H. 408, 416, 923 A.2d 1068 (2007) (quotation omitted); see State v. Etienne, 146 N.H. 115, 117, 767 A.2d 455 (2001) (right to cross-examine adverse witnesses in criminal cases is fundamental). Cross-examination provides the defendant a right to meet the witnesses against him face to face, and be fully heard in his defense. N.H. CONST. pt. I, art. 15; Etienne, 146 N.H. at 118, 767 A.2d 455. This includes the right to expose the possible biases of witnesses. Etienne, 146 N.H. at 118, 767 A.2d 455.

The trial court has “broad discretion to fix the limits of proper areas of cross-examination, including attacks upon a witness's credibility.” Brum, 155 N.H. at 416, 923 A.2d 1068. The trial court, however, “may not completely deny a defendant the right to cross-examine a witness upon a proper matter of inquiry and must permit sufficient cross-examination to satisfy a constitutional threshold.” Id. “Once a defendant has been permitted a threshold level of inquiry the constitutional standard is satisfied, and the [trial court's] limitation of cross-examination thereafter is measured against an unsustainable exercise of discretion standard.” Id. (quotation and ellipsis omitted). “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.” Id. (quotation omitted).

There is no doubt that Nixon was a key State witness. He testified that the defendant had allowed him to use the tractor for several projects during 2005 and 2006. He also testified that the defendant had asked him to keep it parked on the side of his house to prevent detection, explaining that he did not want his ex-wife to learn about the tractor. According to Nixon, some time in 2006, the defendant asked him to change the tractor's location so his ex-wife could not discover it. Nixon complied, moving it to a friend's home. At some point, the tractor was repaired at Nixon's workplace and then moved to a work site in North Conway where the defendant was managing a job.

Nixon testified that after the police attempted to seize the tractor in September 2006, he was “horrified” that police officers had been searching one of his company's job sites. He contacted the defendant, who told him that the court had required him to report it as stolen. Nixon explained that the defendant discouraged him from calling the police by telling him that he might be charged with grand larceny. Nixon did not contact the police, but moved the tractor to yet another location and then told the defendant, “I'm all done with this.” The defendant had some friends again move the tractor, and the police later seized it. In March 2007, Nixon informed the police of the defendant's involvement with the tractor.

Testifying on his own behalf, the defendant maintained that he had parked the tractor on his lawn in the spring or summer of 2005 and had not seen it since. He assumed that John Deere had retrieved it while he was away from his home, and also posited that Nixon or two of his other friends may have taken it because all three had asked to borrow it. He denied Nixon's account of the defendant's involvement with the tractor throughout 2005–2006.

To establish Nixon's bias against him and motive to lie to the police, the defendant sought to cross-examine him about events that occurred around the time Nixon gave his statement to the police, including a physical confrontation between them, criminal threatening complaints the defendant had filed against Nixon, and the fact that the defendant had testified at Nixon's divorce and custody proceeding where Nixon's income and finances were at issue. To further challenge Nixon's credibility, the defendant sought to elicit testimony that Nixon had lied to a police officer during the investigation of a criminal threatening complaint against him. The State objected, arguing that the defendant had an adequate opportunity to cross-examine Nixon on his credibility by questioning him at length about inconsistent statements he had made in prior court proceedings. It also contended that the “bad blood” between the two men was not in dispute, and testimony on specific events underlying their hostilities would be irrelevant, be a waste of time, cause confusion of the issues, and constitute “a trial within a trial.” The State also argued that if the defendant elicited testimony on the specific instances of conduct, he would open the door to testimony that he had embezzled from Nixon, which was part of the basis of the hostilities.

The trial court denied the defendant's request, determining that it would not allow a “trial within a trial,” and that the defendant had “adequate confrontation” regarding Nixon's bias and motive, as well as the State's presentation of his character as not “an angel.” It ruled that the character of both the defendant and Nixon, including “their disdain and dislike for one another,” was not disputed by the State and was “crystal clear in the jury's mind,” and that the details formulating their disdain were “totally irrelevant, [would] run the risk of undue prejudice” and would distract the jury from the criminal charges before it.

We first consider whether the defendant was permitted a threshold level of inquiry regarding Nixon's bias against him and motive for casting him “as a thief and a liar.” See Brum, 155 N.H. at 416, 923 A.2d 1068. Clearly, Nixon's bias and motive as grounds for impeachment were relevant to the defense, but the State correctly argues that these issues were not in dispute. On direct examination, the State elicited testimony from Nixon that around the time he talked to the police about the defendant's involvement with the...