State v. Towle, 2013–217
| Decision Date | 29 January 2015 |
| Docket Number | No. 2013–217,2013–217 |
| Citation | 111 A.3d 679,167 N.H. 315 |
| Parties | The STATE of New Hampshire v. Robert TOWLE |
| Court | New Hampshire Supreme Court |
Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
After a jury trial in Superior Court (Bornstein, J.), the defendant, Robert Towle, was convicted on four counts of aggravated felonious sexual assault for engaging in fellatio and anal penetration with his minor son, and on four counts of criminal liability for the conduct of another for encouraging his wife and another adult to engage in sexual acts with his minor son. See State v. Towle, 162 N.H. 799, 800, 35 A.3d 490 (2011) ; see also RSA 632–A:2 (2007) (amended 2008, 2012, & 2014); RSA 632–A:3 (Supp.2003) (amended 2006, 2008, 2010, & 2014); RSA 626:8 (2007). The trial court sentenced the defendant to serve 57 to 114 years in prison and ordered the defendant to have no contact with the victim, the reporting witness, and his other minor son. On appeal, the defendant raises two challenges to his convictions and one challenge to his sentence. The defendant argues that the trial court erred by: (1) permitting the State to use prior statements to refresh the victim's recollection when the victim had not demonstrated an inability to recall the relevant event; and (2) permitting the State to introduce testimony referring to inadmissible photographic evidence. In addition, the defendant argues that the trial court erred by imposing the no-contact order.
We affirm the convictions and reverse the no-contact order.
The defendant first argues that the trial court erred by permitting the State to use prior statements to refresh the victim's recollection of the final sexual assault that occurred in early 2006, after the victim had been removed from the defendant's custody. The defendant asserts that the victim testified unequivocally that the defendant had not sexually assaulted him on that occasion and was neither confused nor uncertain. Therefore, he argues, the State had no justification for refreshing his recollection.
The record reflects the following exchange on direct examination:
The defendant, who represented himself at trial, revisited the incident during his cross-examination of the victim:
On redirect, the State attempted to use the victim's prior statements to refresh his recollection of the incident. The defendant objected on the basis that the State had not laid a foundation for refreshing the victim's recollection. The trial court sustained the objection and ordered the State to first establish that the victim's recollection needed refreshing. The following exchange occurred:
Next, the State asked the victim to review a portion of his interview with a staff member at the Child Advocacy Center and whether the interview refreshed his recollection about the incident that had occurred in early 2006. The victim stated that the interview did refresh his recollection, and the defendant objected.
During the ensuing sidebar conference, the defendant argued that the State was attempting to refresh the victim's recollection when the victim, on direct examination, had never stated that he could not remember what had occurred and stated clearly that nothing had happened. The State argued that the victim had just declared that he did not recall what had occurred, and only at that point did the State ask the victim to review the interview transcript. The trial court overruled the objection and allowed the State's examination to continue. The State continued its redirect examination and the victim stated that he remembered the defendant asking him to take his pants off and the defendant actually performing oral sex on him.
The defendant reiterated his objection during the next day of trial and in a motion to dismiss after the conclusion of the State's case. The State argued that the victim had stated on redirect examination that he did not remember if anything had occurred during that visit with the defendant in early 2006 and that its efforts to refresh the victim's recollection were proper. After noting that it had "observed and heard the entire course of trial and ... the circumstances presented," the trial court ruled that refreshing the victim's memory was proper.
The trial court has broad discretion to determine the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion. State v. Miller, 155 N.H. 246, 249, 921 A.2d 942 (2007). For the defendant to prevail under this standard, he must demonstrate that the trial court's decision was clearly untenable or unreasonable to the prejudice of his case. Id.
It is well-settled that counsel can use a prior written statement to stimulate the recollection of a witness who demonstrates a doubtful memory while testifying. See State v. Cote, 143 N.H. 368, 372, 725 A.2d 652 (1999) ; see also N.H. R. Ev. 612 ; State v. Slocinski, 89 N.H. 262, 265, 197 A. 560 (1938). For an effort to refresh recollection to be proper, it is widely recognized that there must be a "lack of effective present recollection without stimulation by the memorandum." Maguire & Quick, Testimony: Memory and Memoranda, 3 How. L.J. 1, 21 (1957); 3 J. Wigmore, Evidence § 758, at 125 (Chadbourn rev.1970). The defendant argues that absent a sufficient basis to conclude that the victim's memory had failed, any effort to refresh his recollection was improper and prejudicial.
A witness's clear statement indicating that the witness's memory has failed provides the most direct method for a trial court to determine that a witness lacks effective present recollection. Cf. Bartis v. Warrington, 91 N.H. 415, 416, 20 A.2d 642 (1941) (). Nevertheless, that is not the only way to determine that a witness lacks effective present recollection. See Wigmore, Evidence, supra § 765, at 145. We have recognized that a trial court is in the best position to consider the demeanor of a witness and determine whether the witness lacks present recollection, and we have held that a trial court properly exercised its discretion in permitting a party to refresh a witness's recollection without a statement that the witness's memory has failed. See Cote, 143 N.H. at 372, 725 A.2d 652.
The defendant argues that Cote is distinguishable from the present matter because in Cote the witness was a young child, and the trial court found he was giving one word answers to questions in order to end the examination and avoid discussing traumatic events. Id. at 371–72, 725 A.2d 652. The defendant contends that Cote is inapplicable because the witness was an adult, albeit one who was testifying about serious abuse he had suffered for many years as a child, and because he was able to give "a comprehensive and detailed account of the events on the day in question."
These factual distinctions are not dispositive. Our decision in Cote is neither limited to its facts nor anomalous. In fact, Cote is consistent with other jurisdictions that grant broad discretion to trial courts to determine whether refreshing a witness's recollection is warranted. See, e.g., Thompson v. United States, 342 F.2d 137, 140 (5th Cir.1965) (...
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