State v. Donnelly

765 A.2d 680, 145 N.H. 562, 2000 N.H. LEXIS 109
CourtSupreme Court of New Hampshire
DecidedDecember 27, 2000
DocketNo. 98-177
StatusPublished
Cited by2 cases

This text of 765 A.2d 680 (State v. Donnelly) 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. Donnelly, 765 A.2d 680, 145 N.H. 562, 2000 N.H. LEXIS 109 (N.H. 2000).

Opinion

BRODERICK, J.

The defendant, Jeanne Donnelly, appeals her conviction on eleven counts of forgery, see RSA 638:1 (1992), arguing that the Superior Court (Mohl, J.) erred by permitting the testimony of two prosecution witnesses who asserted their rights against [563]*563self-incrimination on matters relating to her theory of defense. We affirm.

The following facts were adduced at trial. The defendant was a self-employed bookkeeper whom the victim, Stephen DiGiovanni, hired in 1994 to work for his business, Ace Transmissions (Ace). After two years of employment, DiGiovanni and his wife accused the defendant of forging eleven checks, which had been drawn on the company’s checking account. She admitted signing DiGiovanni’s name to the checks but asserted that she did so with his permission. The defendant claimed that nine of the eleven cheeks were part of a scheme to convert taxable business income into unreported cash and that the remaining checks represented personal loans to her.

The defendant testified that DiGiovanni followed very questionable practices with cash in the operation of his business, which she believed amounted to tax evasion. She recounted that Ace received cash for vehicle repairs and inspections, which it did not report as income, and presented a former Ace employee who testified that he was often paid in cash. The defendant recalled an occasion when DiGiovanni used a company check to make a $7500 loan to a friend with the understanding that it would be paid back in cash. According to the defendant, DiGiovanni accounted for the loan as a business expense for the purchase of a snap-on tool box. When confronted with the fabrication, DiGiovanni allegedly told the defendant that he would “cover his tracks” should the Internal Revenue Service (IRS) audit him. The defendant threatened to report DiGiovanni to the IRS but never did.

At a pretrial hearing, DiGiovanni learned that the defendant claimed that he fabricated the charges against her to discourage or discredit any report she might make to the IRS, and that to establish this defense, she intended to cross-examine him about alleged tax evasion practices at Ace. He invoked the Fifth Amendment privilege against self-incrimination to protect himself from this line of inquiry. Specifically, he did so to prevent the defendant from questioning him about the handling of cash receipts at Ace and the practice of paying some employees in cash.

The trial court ruled that the defendant would not be permitted to make such a broad inquiry but did allow questions, which DiGiovanni was to answer without invoking his Fifth Amendment privilege against self-incrimination, about the eleven checks at issue, including whether DiGiovanni gave the defendant permission to cash the checks as part of a scheme to avoid tax liability. The trial court later determined that because DiGiovanni’s wife was a [564]*564co-signer of the tax returns, she was entitled to the same Fifth Amendment protections extended to her husband.

In response to the trial court’s ruling, the defendant moved to prevent the DiGiovannis from offering any testimony on the basis that her proposed inquiry on cash handling practices was integral to her defense, and that by prohibiting such questioning the trial court undermined her State and Federal constitutional rights to confront witnesses against her. The trial court denied the defendant’s motion with the following explanation:

I disagree with the defendant as to whether or not Mr. DiGiovanni can testify on direct . . . notwithstanding . . . that he is asserting the Fifth [to] certain questions that he may be asked or would be asked on cross[-]examination. . . . [H]e has an absolute right to assert that. And when that comes in conflict with the defendant’s right to manner [sic] an adequate defense, the Court needs to engage in a balancing of those interests. And in this case, it seems to me the defendant certainly has the right to cross[-]examine the defendant to ask him about these transactions to put forth his theory as to these transactions. And I believe I heard Mr. Defossess indicate earlier that he had reams of documents to prove his theory, I think you’d said even beyond a reasonable doubt. So, given that there is an alternative means by which this evidence can be put before the jury, that is through the documentary evidence compiled by counsel, I believe that it’s appropriate in this case to sustain the witness’ claim of Fifth Amendment Privilege, yet to allow his testimony on direct with respect to the transactions and whether or not the defendant in this case had any authority to cash the checks that she cashed.

(Brackets omitted.)

The trial court noted that the defense theory concerning DiGiovanni’s motive to fabricate was “very attenuated” and was “awfully close” to being collateral to the central issues in the case. Following the court’s ruling, the State stipulated to the admission of every document that DiGiovanni refused to authenticate. At the close of the case, the trial court informed the jury that the DiGiovannis had sought the protection afforded by the Fifth Amendment:

A person cannot be compelled to be a witness against him or herself. That applies to the defendant. It also applies to a [565]*565witness in a case. In this case, the defendant proposed to ask both Steven and Jill DiGiovanni about certain practices in the operation of Ace Transmission, that could involve allegations of violations of tax laws or regulations. The DiGiovannis have a right to refuse to answer questions that could incriminate them in subsequent proceedings. The DiGiovannis asserted that right and I prohibited any questions about such practices. I wanted to make sure you had that instruction as part of the, at the close of the evidence in this case and before final arguments.

With the aid of the instruction, defense counsel concentrated much of his closing argument on the fact that the DiGiovannis had invoked their Fifth Amendment privilege and urged the jury to infer that the DiGiovannis had violated tax laws and, thus, had a motive to frame the defendant. The jury found the defendant guilty of all eleven counts of forgery. This appeal followed.

The defendant argues that her right to confront her accusers under the Sixth Amendment of the United States Constitution and Part I, Article 15 of the New Hampshire Constitution was violated when the trial court, knowing that the DiGiovannis had invoked their rights against self-incriroination on issues central to her defense, permitted them to testify. She asserts that the trial court erred by balancing her right to confrontation with the DiGiovannis’ rights against self-incrimination because the subject of tax evasion was integral to her defense. She contends that the trial court’s ruling was unfairly prejudicial because she could not confront DiGiovanni to undermine his self-portrayal as a mechanic who knew nothing about business, banking, or the IRS. Thus, the tidal court unfairly prevented her from proving that DiGiovanni was a sophisticated businessman in a vulnerable position because of his questionable business practices and had a motive to fabricate the charges against her.

The State contends that the trial court appropriately balanced the parties’ competing interests and acted properly in permitting the DiGiovannis’ testimony because the proposed cross-examination dealt with collateral issues. Furthermore, the State argues that the defendant failed to establish any prejudice.

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Cite This Page — Counsel Stack

Bluebook (online)
765 A.2d 680, 145 N.H. 562, 2000 N.H. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donnelly-nh-2000.