State v. Bouchard

643 A.2d 963, 138 N.H. 581, 1994 N.H. LEXIS 64
CourtSupreme Court of New Hampshire
DecidedJune 15, 1994
DocketNo. 93-349
StatusPublished
Cited by11 cases

This text of 643 A.2d 963 (State v. Bouchard) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bouchard, 643 A.2d 963, 138 N.H. 581, 1994 N.H. LEXIS 64 (N.H. 1994).

Opinions

Johnson, J.

The defendant, M.G. Bouchard, appeals the verdict of the Superior Court (O’Neil, J.) finding him guilty of the possession of cocaine. RSA 318-B:2 (Supp. 1993). On appeal, the defendant argues that the court abused its discretion: (1) by ruling that he opened the door at trial to allow evidence of his alleged possession of marijuana, after granting the defendant’s pretrial motion in limine to exclude this evidence; and (2) by allowing the rebuttal testimony of a police officer regarding the defendant’s self-incriminating statements, when the officer’s report of these statements was not provided to the defendant’s counsel until after the discovery deadline. We affirm.

The defendant was operating his 1989 Baja motorboat on Lake Winnipesaukee at approximately 10:30 p.m. on July 17,1992, without its navigational lights illuminated, when he was stopped by a marine patrol officer. After administering a series of field sobriety tests, the officer arrested the defendant for boating while intoxicated. The defendant was escorted to the police cruiser of a marine patrol supervisor, who searched the defendant and inventoried his possessions. The supervisor found a green paper bindle containing white granular powder, later determined to be .22 grams of cocaine, among the contents of the defendant’s pockets. Four baggies of marijuana were recovered from the defendant’s pants and underwear.

The misdemeanor offense of possession of marijuana and various boating violations were brought in the Laconia District Court, while the felony charge of possession of cocaine was tried in the superior court. Prior to the felony trial, the defendant successfully moved in limine to exclude from evidence the defendant’s arrest for possession of marijuana under New Hampshire Rules of Evidence 402 and 403. On the day of trial, the defendant moved that Officer Race, who accompanied the defendant to his arraignment, be prohibited from testifying about self-incriminating statements that the defendant made just after his arraignment. Officer Race’s report concerning those statements was sent to the defendant’s counsel only one week before trial, at the direction of the county attorney. Because the report was provided five months beyond the court’s discovery deadline, the court granted the motion.

At trial, the prosecutor cross-examined the defendant about whether he was aware of the bindle of cocaine in his pants, to which [583]*583the defendant responded that the pants, which he took from a cabinet in his boat, were not his. The following exchange regarding the defendant’s knowledge of the bindle ensued:

“Q. And you said that you don’t believe that it was yours?

A. No, it wasn’t mine.

Q. Is it possible that could have been yours?

A. I don’t think so.

Q. You don’t think so but is it possible? Is it possible you forgot that that was in your pocket?

A. No, I don’t really think so. If I had known it was there, it wouldn’t have — I would have gotten — if I had known, I would have thrown it out or something.”

The prosecutor then sought permission to ask the defendant about the marijuana found on his person. Over the defendant’s objection, the prosecutor was allowed to refer to the marijuana, but only as green vegetative matter. The defendant admitted to his knowledge of the baggies of green vegetative matter in his pants and underwear, but maintained that he was unaware of the bindle.

Officer Kace was called by the prosecution as a rebuttal witness. Officer Kace testified that after the arraignment the defendant said “that he couldn’t understand why he was being charged with possession of cocaine with intent to sell because it was just a little bit of cocaine, and it was his.” On cross-examination, Officer Kace testified that the defendant also asked the officer “to cut [him] some slack” and promised to “get in some sort of rehab program.” The trial judge instructed the jury to use Officer Kace’s testimony solely to impeach the defendant’s credibility by prior inconsistent statement, not as substantive evidence. The defendant was found guilty of possession of cocaine.

On appeal the defendant first challenges the admission of evidence of his possession of marijuana. He contends that the trial court abused its discretion in applying the opening-the-door doctrine. He argues that he did not gain a misleading advantage through his testimony that if he had known there was cocaine in his pocket he would have gotten rid of it because his statement did not necessarily mean he would have thrown out the baggies of marijuana.

The defendant has the burden to demonstrate that the trial court’s discretionary ruling is clearly untenable or unreasonable to the prejudice of his case. State v. VanDerHeyden, 136 N.H. 277, 284, 615 A.2d 1246, 1249-50 (1992). “Opening the door” is often used “to describe situations in which a misleading advantage may be coun[584]*584tered with previously suppressed or otherwise inadmissible evidence.” State v. Crosman, 125 N.H. 527, 531, 484 A.2d 1095, 1097-98 (1984); see State v. Patten, 137 N.H. 627, 628, 631 A.2d 921, 922 (1993).

The State argues that the testimony gave the impression that the defendant would not willingly or knowingly have possessed any illegal substance. Our review of the transcript indicates that the jury logically could have understood the defendant’s statement as referring to any illegal substance. We have held that “[t]he prejudicial impact, if any, of particular testimony ... can best be gauged by the trial court judge,” State v. Lemire, 130 N.H. 552, 555, 543 A.2d 425, 427 (1988), and therefore find that the trial court did not abuse its discretion in deciding that the door had been opened.

The defendant also argues that the questions focusing on his possession of “green vegetative matter” violated New Hampshire Rule of Evidence 608(b). We will not address the defendant’s Rule 608(b) argument on appeal because the defendant failed to specifically argue Rule 608 in his motion in limine, which solely raised Rules 402 and 403, and he made no contemporaneous objection on such ground at trial. See VanDerHeyden, 136 N.H. at 282, 615 A.2d at 1249.

The second issue on appeal is whether the trial court abused its discretion by allowing Officer Kace to testify as a rebuttal witness when the defense was not provided a copy of the officer’s police report until one week before trial, five months after the discovery deadline. The defendant cites Superior Court Rule 98, which requires the State to furnish to the defendant “a copy of records of statements or confessions, signed or unsigned, by the defendant, to any law enforcement officer or his agent.” The defendant alleges surprise and unfair prejudice: his counsel did not have time to depose Officer Kace in order to prepare a rebuttal to the officer’s testimony establishing that the defendant knew he possessed cocaine.

At the outset, we must address the State’s argument that the defendant did not properly preserve the issue for appellate review because there is no record of an objection contemporaneous to Officer Race’s testimony at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
643 A.2d 963, 138 N.H. 581, 1994 N.H. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bouchard-nh-1994.