State v. Sullivan, 87-184

• Citation: 131 N.H. 209,551 A.2d 519
• Decision Date: 12 December 1988
• Docket Number: No. 87-184,87-184
• Parties: The STATE of New Hampshire v. John SULLIVAN.
• Court: Supreme Court of New Hampshire

Page 519

551 A.2d 519

131 N.H. 209

The STATE of New Hampshire v. John SULLIVAN.

No. 87-184.

Supreme Court of New Hampshire.

Dec. 12, 1988.

Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, Asst. Atty. Gen., on the brief and orally), for the State.

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

JOHNSON, Justice.

After a bifurcated trial, a superior court jury first found the defendant, John Sullivan, guilty of the second degree murder of Lynne Rousseau and the first degree murder of Harry Pike, and then rejected Sullivan's insanity defense, thereby affirming the guilty verdicts arrived at earlier. Sullivan appeals his convictions on the grounds that the Trial Court (Nadeau, J.) erred in denying both his motion for a mistrial, which argued that the State had improperly introduced character evidence that Sullivan was violent and a misogynist, and his motion to dismiss the first degree murder charge, which argued that there was insufficient evidence of premeditation and deliberation to support that charge. Sullivan also argues that New Hampshire's insanity rule denies due process because it lacks a standard that can guide a jury during deliberations and because a finding of sanity is not, therefore, subject to meaningful appellate review. We affirm.

The essential facts are as follows. John Sullivan lived in and managed a multi-family house in Farmington owned by his brother and sister-in-law. In March, 1985, he became acquainted with Harry and Mildreth Pike, who lived in the house next door with their daughter, Lynne Rousseau, and Rousseau's twelve-year-old daughter Melissa. Sullivan and Rousseau went out to dinner shortly after they met. However, according to Rousseau's mother's testimony, Rousseau told her mother after that date, that she would not have a second date with Sullivan because "there was something strange about him." Nonetheless, Sullivan, Rousseau, and Melissa did go out to dinner two or three months later. These two occasions were the only formal dates between Sullivan and Rousseau; however, it is unclear whether they spent additional time together. Mrs. Pike testified that Rousseau "didn't want to have anything to do with [Sullivan]," but Sullivan testified that Rousseau had visited him at his apartment on approximately eight occasions and that they had had sexual relations on those occasions.

In September, 1985, Sullivan went to the Pikes' home, while intoxicated, to see Lynne Rousseau, who was not at home. Sullivan waited for her, and when Rousseau returned home and asked him to leave, he began to yell at her, using profane language. Although he left shortly thereafter, he proceeded to call Rousseau on the telephone repeatedly, speaking to her on three separate occasions that evening. Sullivan later positioned himself outside the Pikes' house and yelled at Rousseau, prompting the Pikes to call the police.

Sullivan subsequently informed Mrs. Pike that he did not want Lynne Rousseau to set foot on his property. When Rousseau thereafter visited a friend who lived in the apartment house that Sullivan managed, he filed a criminal trespass complaint against her, although he later dropped it. In November or December, 1985, Sullivan told the Pikes and Rousseau that he wanted to forget their past disputes and have an amicable relationship with them in the future. Sullivan apparently had little contact with the Pikes and Rousseau between the late fall of 1985 and February 8, 1986.

On the evening of February 8, Sullivan telephoned Rousseau, who told him to go to bed. Shortly thereafter, he knocked on the back door of the Pike home, whereupon Rousseau let him in and they conversed briefly in the kitchen. Sullivan then entered and stood briefly in the doorway between the kitchen and living room, with his hands in his pockets, and looked back and forth at Mrs. Pike and Melissa, who were watching television in the living room. Rousseau grabbed Sullivan by the arm, saying. "Come on, John. My father's in bed. Go home." Sullivan and Rousseau then returned to the kitchen, where Rousseau again asked him to leave, indicating that she needed to go to the bathroom. Sullivan replied, "O.K. You have two seconds to go to the bathroom." Mrs. Pike then heard the door to the kitchen entrance open and close, followed by sounds that she described as two "pops." She heard her daughter scream and her husband emerge from his bedroom. Harry Pike appeared in the doorway to his bedroom adjacent to the kitchen and exclaimed, "Oh my God! He shot her!"

Mrs. Pike heard footsteps approaching the living room, quickly got up from the couch and, along with her husband and Melissa, ran upstairs. When she reached the top of the stairs, Mrs. Pike, who was behind Melissa but in front of her husband, felt Mr. Pike's hand leave her back and heard two shots. Thinking that she had been shot, Mrs. Pike dragged herself into Lynne Rousseau's bedroom, while Melissa hid in her own bedroom. Shortly thereafter, Melissa saw Sullivan running toward his garage, whereupon she went downstairs and called the police at 10:11 p.m.

At approximately 11:30 p.m., Tilton police officers Adam Roy and Owen Wellington observed Sullivan's dark-colored Nissan 300 ZX weaving in and out of its lane and alternately accelerating and decelerating between 45 and 55 mph on Interstate Route 93 southbound. The officers stopped Sullivan's car and arrested him for DWI. They recovered from his person twelve unspent .35 caliber rounds and a Smith and Wesson revolver. At 12:15 a.m., Sullivan took a breathalyzer test that indicated that his blood alcohol level was .22. A blood sample taken at 1:35 a.m. indicated a blood alcohol level of .20.

After the jury found Sullivan guilty of the second degree murder of Lynne Rousseau and the first degree murder of Harry Pike, and rejected his insanity defense, the trial court sentenced him to thirty-five years to life on the second degree murder charge and to life imprisonment without the possibility of parole on the first degree murder charge.

Sullivan argues, first, that the trial court erred in denying his motion for a mistrial because the court allowed the introduction by the State of evidence of the defendant's bad character in violation of New Hampshire Rule of Evidence 404. Specifically, Sullivan contends that the trial court permitted the State to ask Sullivan during cross-examination whether he was a violent person, whether he had an unfavorable opinion of women, whether he believed women were only useful for sex and whether his principal interests were drinking and pursuing women, thereby placing Sullivan's character into evidence in order that the jury would conclude that, in killing Rousseau and Pike, Sullivan had acted consistently with his character. The State contends that the court was correct in denying Sullivan's motion and that no violation of Rule 404 occurred because the State did not introduce evidence of Sullivan's propensities for violence and misogyny in order to prove that he had acted in conformity with those propensities on February 8, 1986, but rather to rebut his testimony that he was not a violent person and that he had sought a "well-rounded relationship" with Lynne Rousseau, despite her sole interest in a sexual liaison. We agree with the State.

New Hampshire Rule of Evidence 404(a) states that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion." However, Rule 404(a)(1) states an exception to the above rule and permits the admission of "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same." Similarly, Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith," but then proceeds to state that "[i]t may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Moreover, the defendant, by presenting certain evidence, may "open the door" to the introduction of otherwise inadmissible evidence for the limited purpose of impugning the veracity of the witness presented by the defendant. See State v. Pugliese, 129 N.H. 442, 529 A.2d 925 (1987); State v. Judkins, 128 N.H. 223, 512 A.2d 427 (1986); State v. Brown, 125 N.H. 346, 480 A.2d 901 (1984). Opening the door occurs "when one party introduces evidence that provides a justification beyond mere relevance for an opponent's introduction of otherwise inadmissible evidence." State v. Crosman, 125 N.H. 527, 530, 484 A.2d 1095, 1097 (1984). By means of this mechanism, "a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence." Id. at 531, 484 A.2d at 1098.

Furthermore, a mistrial is warranted, absent prosecutorial violation of a prior court ruling excluding certain evidence, only when that evidence is "inadmissible and both preponderantly and irremediably prejudicial." State v. Elbert, 125 N.H. 1, 13, 480 A.2d 854, 861 (1984).

In this case, the State's cross-examination of Sullivan regarding Sullivan's propensity for violence and his attitude toward women was admissible under the exception contained in Rule 404(a)(1) because the evidence elicited from that cross-examination was presented not to prove that Sullivan had acted in conformity with a character trait in killing Rousseau and Pike, but rather, to refute the impressions created by his earlier testimony that (1) he was incapable of committing such violent acts and (2) he wanted a "well-rounded relationship" with Lynne Rousseau, but she wanted their relationship to be purely sexual.

When asked during direct examination whether, at the time of his arrest on murder charges, he thought he had killed anyone,...