State v. White, 2006-199.
| Decision Date | 30 March 2007 |
| Docket Number | No. 2006-199.,2006-199. |
| Parties | The STATE of New Hampshire v. Delvin WHITE. |
| Court | New Hampshire Supreme Court |
v.
Delvin WHITE.
[920 A.2d 1219]
Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
GALWAY, J.
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 (Supp.2006), and one count of felonious sexual assault, see RSA 632-A:3 (Supp.2006). He contends that the Trial Court (Barry, J.) erred by permitting the State to introduce: (1) a statement allegedly made by the defendant to the victim's sister; and (2) the confession of a man who had been previously accused, but acquitted, of assaulting the victim and her sister. We reverse and remand.
The following facts were either adduced at trial, or are not disputed on appeal. On March 2, 1996, the defendant spent the afternoon with his friend Wayne, Wayne's girlfriend Marguerite, and their children. Wayne had two daughters, M.E. and M.G., aged twelve and eight respectively, and Marguerite had two sons, one about fifteen, D.G., and the other only an infant.
After spending the afternoon with Wayne, the defendant was invited to return for dinner. By the time dinner was over, he had consumed at least five beers and it was agreed that he should spend the night rather than drive home. Later in the evening, after M.E. had gone to bed, the defendant was seated on a couch in the playroom with M.G. and D.G. At that time, the defendant allegedly said to M.G., "I lived to kill and molest little kids." D.G. testified that he did not remember the defendant saying anything.
A short time later, M.G. went to Wayne and Marguerite in another room and told them that the defendant had sexually assaulted her. Marguerite took the children to a neighbor and contacted the police. When the police arrived, they spoke with M.G. about the assault and suggested that both girls be taken to a hospital for a physical examination. The examinations did not confirm or disprove the sexual assault claims. M.E. later accused the defendant of sexually assaulting her earlier in the day.
In 1997, the defendant was convicted of sexually assaulting both girls. We affirmed that conviction on appeal. See State v. White, 145 N.H. 544, 765 A.2d 156 (2000), cert. denied, 533 U.S. 932, 145 N.H. 544, 121 S.Ct. 2557, 150 L.Ed.2d 722 (2001). The defendant subsequently sought a writ of habeas corpus from the United States District Court for the District of New Hampshire, which was denied. White v. Coplan, 296 F.Supp.2d 46 (D.N.H. 2003). The defendant appealed and the Court of Appeals for the First Circuit reversed and ordered a new trial. White v. Coplan, 399 F.3d 18 (1st Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 478, 163 L.Ed.2d 384 (2005).
Upon retrial, the defendant was convicted of two counts involving M.E. On appeal, the defendant argues that the trial court erred in admitting the defendant's statement to M.G. and in permitting the State to introduce the confession of another man accused, but acquitted, of assaulting both girls.
As to the defendant's second argument, during his first trial the trial court prevented him from cross-examining the girls about prior accusations they had made against other individuals, including a man named Roger Houston, because the defendant had not shown the prior accusations
to be "demonstrably false." White, 145 N.H. at 547, 765 A.2d 156. On appeal, the defendant contended that in order to cross-examine the girls about the prior allegations, he need only have demonstrated to the trial court that there was a "reasonable probability" that the allegations were false. Id. While we agreed with the defendant that he had met the "reasonable probability" standard, we held that the "demonstrably false" standard applied, and that the defendant had not shown the allegations to be "demonstrably false." Id. at 547-48, 765 A.2d 156.
The defendant then sought a writ of habeas corpus arguing that the conduct of his trial violated his Sixth Amendment right to confrontation because he was prevented from cross-examining the girls regarding their prior accusations. Eventually, the First Circuit granted the defendant's writ, ruling that he was entitled to cross-examine the girls with regard to their prior accusations. Coplan, 399 F.3d at 26-27.
The First Circuit ruled that, while the requirement that the defendant meet the "demonstrably false" standard was not "always and everywhere infirm," in this case it was improperly applied. Id. at 26. According to that court:
We are concerned here with an attempt to pursue by cross-examination prior past accusations of a quite similar character to the present one; with a ruling . . . that the prior accusations (or at least two of them) were false to a reasonable probability; with a...
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