State v. Dewitt

719 A.2d 570, 143 N.H. 24, 1998 N.H. LEXIS 65
CourtSupreme Court of New Hampshire
DecidedSeptember 30, 1998
DocketNo. 95-439
StatusPublished
Cited by23 cases

This text of 719 A.2d 570 (State v. Dewitt) 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. Dewitt, 719 A.2d 570, 143 N.H. 24, 1998 N.H. LEXIS 65 (N.H. 1998).

Opinion

BRODERICK, J.

The defendant, Paul Dewitt, was convicted after a jury trial in Superior Court (Mohl, J.) on one count of aggravated felonious sexual assault. See RSA 632-A:2,1(a) (1996). On appeal, he asserts the trial court erred in several evidentiary rulings and by denying his motion for new trial. We vacate the court’s order denying the motion for new trial and remand for further proceedings.

The following evidence was introduced at trial. In January 1993, the defendant met the complainant one evening in Dover and discussed the possibility of employing her as a dump truck driver. They met again the following morning, had breakfast, and drove together in the defendant’s vehicle to several towns. The complainant testified that they eventually drove to Rochester, where the defendant forced her to engage in sexual intercourse. That evening, the complainant underwent an examination at the hospital for evidence of sexual assault. When the defendant was arrested in October 1993 for sexual assault, he admitted to having sexual intercourse with the complainant but maintained it was consensual. The jury returned a guilty verdict.

Following his conviction, the defendant moved for access to medical and other privileged records concerning the complainant, and for a new trial. The trial court denied the motions. On appeal, the defendant argues that his conviction should be overturned because the trial court erred in several evidentiary rulings, and in denying his motion for new trial based on (1) newly discovered evidence, (2) ineffective assistance of counsel, and (3) the alleged failure by the State to disclose favorable evidence. We address each argument in turn.

I

Prior to trial, the defendant moved in limine to introduce statements- allegedly made by the complainant’s sister-in-law that the complainant was a “sick chick” and “has problems with sexual behavior.” He sought to admit the statements as opinion testimony concerning the complainant’s character under New Hampshire Rule of Evidence 404(a)(2), arguing that the statements spoke “directly to [the complainant’s] credibility as to whether or not she consented to have sex with [the defendant] as alleged in [the] indictment.” The trial court denied the motion and excluded the evidence under New Hampshire Rules of Evidence 404(a) and 608. The defendant now argues that the statements were admissible under both rules. The admissibility of evidence is' a matter within the trial court’s broad [27]*27discretion, and we will not upset the court’s ruling absent an abuse of that discretion. State v. Patten, 137 N.H. 627, 629, 631 A.2d 921, 922 (1993).

Rule 404(a)(2) “permits a defendant to introduce evidence of a victim’s pertinent trait of character as substantive evidence to prove that the victim acted in conformity therewith on a particular occasion.” State v. Newell, 141 N.H. 199, 201, 679 A.2d 1142, 1144 (1996). Even if we assume, without deciding, that the sister-in-law’s statements evince a particular character trait of the complainant, the defendant failed to identify a nexus between that trait and the complainant’s conduct at the time of the assault. Cf. id. (complainant’s peaceful or aggressive character was pertinent to self defense claim). Accordingly, the trial court did not abuse its discretion by refusing to admit the proffered testimony under Rule 404(a)(2).

Rule 608 permits use of opinion testimony to impeach the credibility of a witness when it relates to the witness’s “character for truthfulness or untruthfulness.” N.H. R. EV. 608(a)(1). The sister-in-law’s portrayal of the complainant as a “sick chick” with “sexual behavior” problems is not a character opinion related to the complainant’s veracity. Further, as revealed by the record, the defendant never argued that the statements reflected the complainant’s character for veracity. Thus, the trial court did not abuse its discretion in excluding the statements.

II

The defendant next challenges the trial court’s admission of the complainant’s videotaped interview as a prior consistent statement. The two-hour interview was conducted at the county attorney’s office approximately two weeks after the assault. The prosecution offered the videotape to rehabilitate the complainant’s credibility after cross-examination and other impeachment by defense counsel. The trial court admitted the videotape in its entirety over the defendant’s objection.

“The admissibility of prior consistent statements for rehabilitative purposes is a matter wholly within the discretion of the trial court,” and we will overturn the trial court’s decision only for an abuse of discretion. State v. Martin, 138 N.H. 508, 515, 643 A.2d 946, 950 (1994) (quotation omitted).

Our common law rule allows the admission of prior consistent statements for the limited purpose of rehabilitation when a witness’s credibility has been impeached by the use of prior inconsis[28]*28tent statements. State v. Huard, 138 N.H. 256, 260-61, 638 A.2d 787, 790 (1994). The prior consistent statements, however, may not be used substantively, see id. at 261, 638 A.2d at 790-91, and a defendant is entitled to limiting instructions to prevent unfair prejudice. See Martin, 138 N.H. at 515, 643 A.2d at 950.

On cross-examination, defense counsel questioned the complainant extensively about discrepancies between her trial testimony and statements she had made during the videotaped interview. Confronted with this impeachment strategy, the trial court did not abuse its discretion by permitting the State to rehabilitate the complainant’s credibility with prior consistent statements. See id. In addition, the trial court repeatedly instructed the jury to consider the interview for the limited purpose of evaluating the complainant’s credibility, and not for the truth of the statements themselves. These limiting instructions adequately protected the defendant from unfair prejudice. See State v. Morales, 136 N.H. 616, 620, 620 A.2d 1034, 1037 (1993).

The defendant also challenges the trial court’s admission of the entire videotape to rebut impeachment of the complainant on limited topics. The trial court, in its discretion, concluded that the jury should have the benefit of the entire videotape because defense counsel impeached the complainant’s testimony “literally from the beginning of this matter right up through the [assault]” and thereafter, principally by reference to statements in the videotape. See id. (quantity of prior consistent statements to be admitted is within trial court’s sound discretion). Given the breadth of defense counsel’s attack on the complainant’s credibility, the trial court could have reasonably concluded that it was proper for the jury to view the entire tape to fully understand the inconsistencies alleged by the defense. See id. at 620, 620 A.2d at 1036-37; State v. Dean, 129 N.H. 744, 749-50, 533 A.2d 333, 337 (1987).

Ill

The defendant next argues that the trial court erred by denying his motion for new trial based on newly discovered evidence. Such motions require the defendant to prove:

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Cite This Page — Counsel Stack

Bluebook (online)
719 A.2d 570, 143 N.H. 24, 1998 N.H. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dewitt-nh-1998.