State v. Coleman

584 A.2d 755, 133 N.H. 713, 1990 N.H. LEXIS 128
CourtSupreme Court of New Hampshire
DecidedDecember 28, 1990
DocketNo. 89-309
StatusPublished
Cited by8 cases

This text of 584 A.2d 755 (State v. Coleman) 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. Coleman, 584 A.2d 755, 133 N.H. 713, 1990 N.H. LEXIS 128 (N.H. 1990).

Opinion

JOHNSON, J.

The defendant, Daniel Coleman, was convicted of second degree assault after jury trial in the Superior Court (O’Neil, J.) and was sentenced to from one to seven years of imprisonment. Coleman appeals his conviction, arguing that the trial court improperly found a witness to be qualified as an expert and erroneously admitted certain hearsay evidence. We reverse and remand.

The pertinent facts of this case are as follows. On the morning of June 5, 1988, Coleman and his ex-girlfriend, Susan Lefebvre, were arguing in an alley off of Amory Street in Manchester. She was on foot; he was in his car. Lefebvre was on her way to a friend’s apartment, the entrance to which was located further down the alley, away from Amory Street. Coleman had backed his car into the alley in order to talk with her. After a few moments, Lefebvre walked away from Coleman and continued down the alley toward her friend’s apartment. Coleman’s car then accelerated, in reverse, and struck a dumpster; Lefebvre was behind the dumpster at the time. The dumpster hit Lefebvre, breaking her arm and injuring her back.

The defendant first argues that during a pre-trial conference the trial court improperly denied Coleman’s motion to conduct a hearing outside the jury’s presence to determine whether police officer Edward Szelog was qualified to testify as an expert. The defendant asserted that the trial judge improperly found the officer to be an expert based on his personal knowledge of the officer’s qualifications. Szelog, an officer in the Manchester Police Department, specialized in accident reconstruction. He later testified at trial that he examined the marks left by the tires of Coleman’s car, and concluded that Coleman had not braked before hitting the dumpster. This conclusion directly contradicted Coleman’s testimony at trial, and was generally inconsistent with Coleman’s defense of accident.

The trial judge was not obligated to conduct a hearing on Szelog’s qualifications outside the presence of the jury, and thus committed no error when he denied the defendant’s motion. See N.H. R. Ev. 104(a), (c). At the pre-trial conference on the motion to conduct a hearing outside the jury’s presence, the following statement was made:

[715]*715THE COURT: “I’d have to say myself... I’ve known Officer Szelog for 25 years and I’d have to say if there’s anybody that’s an expert over in that department, it’s Eddy Szelog. And I’ve listened to him and qualified him dozens of times as being an expert. He’s been doing traffic as far back as I can remember . . . .”

The trial judge then went on to say, “I don’t know what you’re going to ask him that would unqualify him.” Finally, after further discussion, the trial court found the officer qualified to offer expert opinion evidence.

Coleman now argues that the trial judge erroneously found Szelog to be qualified as an expert. The judge erred, Coleman contends, because he found Szelog qualified before hearing any evidence of Szelog’s qualifications, and instead based his decision on his personal knowledge of the officer’s expertise. The State responds that the trial judge’s qualification of Szelog as an expert should not be reversed, because (1) Coleman never objected to the officer’s qualifications; (2) Coleman failed to adequately cross-examine Szelog concerning his qualifications; and (3) if the trial judge’s decision was in error, it was harmless.

Rule 702 of the New Hampshire Rules of Evidence, “Testimony by Experts,” states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” N.H. R. Ev. 702. An established, widely-recognized corollary of this rule is that “[t]he party offering a witness as an expert has the burden of establishing the witness’ qualifications.” C. Douglas, New Hampshire Rules of Evidence Manual 160 (1986); see also Birmingham Ry., Light & Power Co. v. Barrett, 179 Ala. 274, 290-91, 60 So. 262, 267 (1912); Giacobazzi v. Fetzer, 6 Mich. App. 308, 315, 149 N.W.2d 222, 225 (1967); International Security Life Ins. Co. v. Beauchamp, 464 S.W.2d 679, 681 (Tex. Civ. App. 1971); 31A Am. JUR. 2d Expert and Opinion Evidence § 60 (1989); 32 C.J.S. Evidence § 458 (1964).

Officer Szelog testified at trial. The State first inquired as to his experience and qualifications to offer expert opinion as to the tire marks left by the defendant’s vehicle. The officer’s testimony clearly indicated that he met the standard of an expert under New Hampshire law. See State v. Berry, 124 N.H. 203, 208, 470 A.2d 881, 884 (1983) (witness may testify as expert if evidence will aid jury in [716]*716search for truth). The defendant’s cross-examination of the officer’s qualifications was cursory.

We conclude that the trial court’s decision to find the officer qualified as an expert, during the chambers conference, was improper since the State had the burden of offering evidence as to the expertise of the officer. The trial court may not rely upon its personal knowledge of the expertise of a witness, without any evidence being proffered by the proponent, when ruling that a witness may offer expert opinions. However, the failure of the defendant to object to the opinions of the officer, given after he was qualified, and the virtually unchallenged evidence at trial that the witness was qualified, render the error harmless. See State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976); see also State v. Nadeau, 126 N.H. 120, 125, 489 A.2d 623, 626 (1985).

The next issue is whether the trial court erred in allowing into evidence the statement of an eyewitness through the testimony of an investigating officer. At trial, Coleman argued in defense that he struck the dumpster accidentally. The State, however, produced an eyewitness, Alan Gervais, who was prepared to testify that he thought Coleman acted deliberately. Coleman objected to Gervais’s stating his opinion to the jury, and the trial court sustained the objection. Gervais, however, had told a police officer at the scene his opinion of Coleman’s actions and, later in the trial, the court allowed the officer to repeat to the jury Gervais’s opinion that Coleman’s actions were deliberate.

On appeal, Coleman argues that the police officer’s testimony as to what Gervais had reported to him was inadmissible hearsay. The State counters that Coleman failed to properly raise an objection to the testimony at trial. We disagree.

Gervais was called as a witness for the State. The following colloquy took place:

“STATE: You gave an oral statement to one of the officers?
MR. GERVAIS: Yeah.
STATE: Did that event in the alley appear to you to be accidental?
DEFENSE COUNSEL: Objection, your Honor.
STATE: I believe he’s entitled to form that opinion, Judge, he was there.

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Bluebook (online)
584 A.2d 755, 133 N.H. 713, 1990 N.H. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coleman-nh-1990.