State v. White

• Decision Date: 30 March 2007
• Docket Number: No. 2006-199.,2006-199.
• Citation: 155 N.H. 119,920 A.2d 1216
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Delvin WHITE.

155 N.H. 119

920 A.2d 1216

The STATE of New Hampshire

v.Delvin WHITE.

No. 2006-199.

Supreme Court of New Hampshire.

Argued: Feb. 22, 2007.

Opinion Issued: March 30, 2007.

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, 546 U.S. 972, 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 resulting plausible inference of a motive to deceive that could infect the present testimony of the two vital prosecution witnesses; and with a defendant who had virtually no other way to defend himself. This is the unusual situation and, to us, an extreme case.

Id. at 27 (quotation and brackets omitted). According to the First Circuit, the defendant was entitled to cross-examine the girls because "[w]e are dealing here with something far more potent than ‘general credibility’ evidence which, under confrontation clause standards, may have a lower status." Id. at 26. The First Circuit, therefore, vacated the defendant's conviction. Id. at 27.

In ruling that the defendant was entitled to cross-examine the girls on their prior accusations, the First Circuit stated that it was not endorsing an open-ended constitutional right to offer extrinsic evidence. Id. at 26. "Such an excursion requires more witnesses and documents, and so greater risks of confusion and delay; to say that impeachment here would cast light on a motive to lie is not to suggest that prior false accusations are the kind of evidence for which extrinsic evidence has traditionally been admitted." Id.

Prior to the defendant's retrial, he moved in limine to be permitted to introduce extrinsic evidence to the extent that either of the girls, during cross-examination, alleged to have no memory of the prior accusations. Following a hearing, the trial court permitted the defendant to introduce extrinsic evidence but specifically stated that, to the extent such evidence created a misleading advantage, the State would be permitted to introduce rebuttal evidence.

During trial, the State elicited, on direct examination of M.E., that she had previously accused Houston of sexually assaulting her. On cross-examination, the defendant elicited testimony from M.E. that she had accused Houston and testified against him, but that he was found not guilty. The defendant then asked M.E. if she had, in her deposition, stated that the jury in Houston's trial decided that her accusation was false. M.E. stated that she had so described the jury's verdict during her deposition. Upon redirect examination, M.E. testified that although she had, during her deposition, believed that a not guilty verdict meant that the jury believed her accusations were false, she now understood a not guilty verdict to mean that there was not enough evidence to prove that Houston was either innocent or guilty. M.G. also testified on direct examination that Houston had sexually assaulted her, but the defendant did not cross-examine M.G. regarding that accusation.

Following the testimony of M.E. and M.G., the State sought to introduce the testimony of Officer James Winn of the Manchester Police Department. The State represented that Winn would testify that Houston had confessed to him that he had assaulted the two girls, but that he later recanted his confession. The State contended that Winn's testimony was appropriate because the defendant, by eliciting testimony from M.E. that she thought the jury in Houston's case believed her allegations to be false, had created a misleading impression which opened the door to this rebuttal testimony. Therefore, Winn's testimony that Houston confessed would, the State contended, counter M.E.'s misleading testimony. Over the defendant's objections, the trial court permitted the State to introduce Winn's testimony, which was consistent with the State's representations.

On appeal, the defendant contends that the testimony he elicited from M.E. did not create a misleading impression and thus did not open the door to Winn's testimony. Additionally, the defendant contends that even if the door was opened, Winn's testimony was inadmissible under Crawford v. Washington 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The State counters that the defendant opened the door to Winn's testimony, and that because the door was opened, the defendant waived his Sixth Amendment right to confrontation as explained in Crawford. Finally, the State contends that if there was any error in admitting this testimony, it was harmless.

The admissibility of evidence is a matter left to the sound discretion of the trial court. State v. Gibson, 153 N.H. 454, 457, 897 A.2d 957 (2006). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset its ruling absent an unsustainable exercise of discretion. Id. To sustain his burden, the defendant must show that the trial court's decision was unreasonable to the prejudice of his case. Id.

We have recently clarified that the "opening the door" doctrine subsumes within it two doctrines governing the admissibility of evidence. State v. Morrill, 154 N.H. 547, 549-50, 914 A.2d 1206, 1209 (2006). The first doctrine, "curative admissibility," applies when inadmissible prejudicial evidence has been erroneously admitted, and the opponent seeks to introduce testimony to counter...