State v. White
| Decision Date | 27 December 2000 |
| Docket Number | 97-412 |
| Citation | 765 A.2d 156 |
| Parties | THE STATE OF NEW HAMPSHIRE v. DELVIN WHITETHE SUPREME COURT OF NEW HAMPSHIRE |
| Court | New Hampshire Supreme Court |
Hillsborough-northern judicial district
Philip T. McLaughlin, attorney general (N. William Delker, attorney, on the brief and orally), for the State.
Behzad Mirhashem, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Delvin White, appeals his convictions following a jury trial of one count of aggravated felonious sexual assault, see RSA 632-A:2, II (1996) (amended 1997, 1998, 1999), and two counts of felonious sexual assault, see RSA 632-A:3 (1996) (amended 1997). He contends that the Superior Court (Barry, J.) erred by: (1) excluding the victims' prior allegations of sexual assault against other individuals; (2) admitting hearsay statements by the victims to an emergency room physician; (3) excluding evidence that the victims had previously been placed in foster care; and (4) sentencing him to an extended term of incarceration under RSA 651:6 (1996) (amended 1996, 1997, 1998, 1999). We affirm the defendant's convictions, vacate the sentence, and remand for resentencing.
The following facts were either adduced at trial or are undisputed. In March 1996, the defendant spent an afternoon visiting a friend and his girlfriend at their apartment in Manchester. The friend had two daughters, ages twelve and eight, and the girlfriend had two sons, all of whom were together at the apartment that day. After spending the afternoon playing cribbage, listening to the radio, and drinking beer with his friend, the defendant accepted an invitation to stay for dinner. It was later agreed that he would spend the night.
At trial, the younger daughter testified that while she sat with the defendant on a day bed watching television, he rubbed her breasts, put his hands down her pants, and "stuck his finger in." When the daughter told her father what had happened, he attacked the defendant. During this confrontation, the older daughter came out of a bedroom crying hysterically. She later related that earlier that same day the defendant had touched her breasts, her vaginal area, and inserted his finger in her "private." As the confrontation between the father and the defendant continued, the father's girlfriend took all of the children to a neighbor's apartment and called the police. After an investigation, the police told her to take the victims to the hospital for a physical examination, and she did so.
The defendant was convicted of aggravated felonious sexual assault against the older child and one count of felonious sexual assault against each child. This appeal followed.
The defendant argues that the trial court erred in excluding evidence of the victims' prior allegations of sexual assault against other individuals. He contends that these prior allegations were false, and therefore admissible to impeach the victims' credibility. See N.H. R. Ev. 608(b).
"The admissibility of evidence is a matter within the trial court's broad discretion, and we will not upset [its] ruling absent an abuse of that discretion." State v. Dewitt, 143 N.H. 24, 26-27, 719 A.2d 570, 572 (1998). Here, the probative value of the victims' prior allegations of sexual assault against other individuals depends upon their truthfulness. If the prior allegations were false, they would adversely affect the victims' credibility. See State v. Dukette, 127 N.H. 540, 549, 506 A.2d 699, 706 (1986). The trial court refused to admit the prior allegations, however, because the defendant "failed to persuade [it] that any of [the victims'] prior allegations . . . were demonstrably false." We must first decide whether "demonstrably false" is the proper standard to be applied. Cf. State v. Walters, 142 N.H. 239, 242, 698 A.2d 1244, 1246 (1997) ().
The defendant argues that a less stringent standard controls, asserting that prior allegations of sexual assault should be admitted if there is a "reasonable probability" they are false. See Clinebell v. Com., 368 S.E.2d 263, 266 (Va. 1988). We disagree. This standard, if adopted, could "divert the attention of the trial from its primary objective [of] determini[ng] . . . the guilt or innocence of [an] accused . . . [and] in effect [put] the complainant on trial as to the truthfulness of any complaint [of sexual assault]." State v. Johnson, 692 P.2d 35, 43 (N.M. Ct. App. 1984), overruled in part on other grounds by Manlove v. Sullivan, 775 P.2d 237 (N.M. 1989).
The State invites us to adopt the "demonstrably false" standard, but to construe it as meaning false "in fact." See, e.g., State v. Hutchinson, 688 P.2d 209, 212-13 (Ariz. Ct. App. 1984); Com. v. Bohannon, 378 N.E.2d 987, 991 (Mass. 1978). The pitfall of this heightened approach is that there are few, if any, situations where the standard could be met, other than where the victim testifies to the falsity of the prior allegations. Accordingly, we reject the State's invitation. Instead, we hold that the trial court correctly determined that a defendant may introduce a victim's prior allegations of sexual assault by showing that the prior allegations were demonstrably false, which we interpret to mean "clearly and convincingly untrue." This approach requires greater proof of falsity than the "reasonable probability" standard proposed by the defendant, but less certitude than the "false-in-fact" test offered by the State. It also ensures that there will not be a "trial within a trial" on evidence ultimately excluded while still allowing a defendant the opportunity to present relevant evidence.
We must now decide whether the trial court properly applied the standard. Both victims previously accused a neighbor of committing sexual assault, but he was eventually acquitted of the charges. The defendant contends that the acquittal, in conjunction with other proffered evidence, satisfies his proof. We disagree. While an acquittal is strong evidence that the jury may have found a victim's allegations to be unreliable, an acquittal, by itself, does not necessarily clearly and convincingly demonstrate that the victims were lying about the assaults. Rather, an acquittal merely means that the State failed to carry its burden of proving beyond a reasonable doubt one or more elements of the charged crime. See United States v. Kerley, 643 F.2d 299, 300-01 (5th Cir. 1981). Such failure can result from a variety of factors. See United States v. Hernandez, 146 F.3d 30, 33 n.1 (1st Cir. 1998).
The defendant also relies on testimony at the neighbor's trial from the victims' babysitter and their mother's then boyfriend as elements of the clear and convincing proof of the falsity of the older victim's prior allegation of sexual assault. The babysitter testified that she heard the older victim tell her mother that her accusations were not true. The former boyfriend testified that the older victim told him she was lying when she accused the neighbor of sexual assault. The trial court in the present case, however, was not persuaded by the babysitter's testimony because it did "not find [her] testimony credible given the State's offers of inconsistency and questionable credibility." The defendant contends that the trial court erred by taking the issue of the babysitter's credibility from the jury, instead relying on the State's "unsubstantiated" proffer to determine the babysitter's threshold credibility.
We agree that credibility is normally a matter for the trier of fact. See State v. Lowe, 140 N.H. 271, 275, 665 A.2d 740, 743 (1995). The trial court, however, must make an initial determination of credibility or else risk admitting evidence of prior allegations without a showing that they are demonstrably false, resulting in a "trial within a trial" and confusing the jury. See N.H. R. Ev. 104(a); State v. Alexander, 143 N.H. 216, 221-22, 723 A.2d 22, 26 (1998). At the hearing on the defendant's motion in limine, the State proffered that the babysitter was unreliable, stating that she had provided "multiple statements" concerning the older victim's allegations, including statements that she could not remember the pertinent events. The State contended that her memory loss was due to, inter alia, cocaine addiction. "We [have previously] acknowledge[d] that a proffer of evidence presents a great[] risk of an erroneous pretrial ruling." State v. Haley, 141 N.H. 541, 544, 689 A.2d 671, 674 (1997). Here, however, the trial court had not only the State's proffer, but also the entire transcript of the babysitter's testimony from the neighbor's trial. Although we do not have the entire transcript before us, we do have portions which suggest a possible bias on the part of the babysitter in favor of the neighbor accused of sexual assault. We assume that the trial court examined the entire transcript before deciding that the defendant had not shown the prior allegations of sexual assault to be demonstrably false. See Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 492-93, 558 A.2d 822, 826 (1989). We cannot say, therefore, that the trial court abused its discretion in finding that the babysitter's testimony at the neighbor's trial did not satisfy the defendant's burden of establishing falsity.
The trial court also excluded the former boyfriend's testimony that the older victim had recanted her accusations of sexual assault against the neighbor because the "recantation was made under circumstances akin to duress or coercion." The defendant challenges this decision because the former boyfriend "testified at [the neighbor's] trial that the recantation did not result from any coercion." Notwithstanding this testimony, the trial court could have reasonably found, based on the transcript of the former boyfriend's testimony, that he was in fact coercing the older victim to recant. Cf. State v. Berry, 117 N.H. 352, 355, 373...
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