State v. Jordan

803 A.2d 604, 148 N.H. 115, 2002 N.H. LEXIS 101
CourtSupreme Court of New Hampshire
DecidedJuly 24, 2002
DocketNo. 2001-401
StatusPublished
Cited by11 cases

This text of 803 A.2d 604 (State v. Jordan) 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. Jordan, 803 A.2d 604, 148 N.H. 115, 2002 N.H. LEXIS 101 (N.H. 2002).

Opinion

Dalianis, J.

The defendant, John Jordan, was convicted by a jury of one count of second degree assault, see RSA 631:2 (1996), and one count of simple assault, see RSA 631:2-a (1996). On appeal, he argues that the [116]*116Superior Court {Perkins, J.) erred by admitting certain evidence into trial ’ and denying his motion to dismiss the simple assault charge. We affirm.

A jury could have reasonably found the following facts. On June 7,2000, Scott Selg went to the defendant’s residence at approximately 7:45 p.m. to help Patricia Lance, the defendant’s wife, with some gardening. Shortly after Selg’s arrival, the defendant telephoned his house and learned that Selg was there. Upset, he rushed home and confronted Selg, yelling at him to get off of his property.

The defendant quickly approached Selg, which prompted Selg to move into a defensive stance. The two men began swinging at each other, and the defendant hit Selg. Selg then got into his truck to leave, and Lance approached him to apologize for the defendant’s behavior. The defendant then pushed Lance to the ground, fracturing her arm. Unable to get up, Lance told her daughter, Erica, to call 911 for help. During the 911 telephone call, Erica told the operator that “[m]y father came home drunk ... and he slammed my mother on the ground.” She also stated that the defendant “was punching this guy who was helping us----”

At approximately 8:00 p.m., Sergeant Mark Chase of the Center Harbor Police Department received a dispatch from the Belknap County Sheriffs Office and went to the defendant’s residence. At trial, Sergeant Chase testified that Lance told him that the defendant pushed her to the ground. He also testified that Lance’s daughter, Kristina, told him that “her father had come home drunk and hit Scott and then pushed her mother.” The defendant was arrested that night. Two days later, Lance prepared a written statement in which she stated that the defendant “hit S[elg]” and that he “came running at [her] and pushed [her] onto the ground.”

Prior to trial, the State filed a motion in limine to admit the tape of the 911 telephone call. The defendant objected, arguing that the probative value of the tape was substantially outweighed by the risk of unfair prejudice and that the tape was not admissible under New Hampshire Rule of Evidence 403. The trial court admitted the tape into evidence, ruling that its probative value was not substantially outweighed by the risk of unfair prejudice. After reviewing the complete transcript of the 911 call, however, the court did redact certain statements made on the tape that it considered overly prejudicial.

At trial, the State played the 911 tape for the jury three times: first, in its opening statement; then during its case-in-chief; and finally in its closing argument. The defendant did not object at trial to the repeated playing of the tape, but objected only to the jury having access to the tape during its deliberations.

The defendant moved to dismiss the simple assault charge at the conclusion of the State’s case-in-chief and at the end of trial, arguing that [117]*117there was insufficient evidence that he hit Selg, or that the contact was unprivileged. The court denied these motions, and the defendant was convicted of reckless second degree assault and simple assault. This appeal followed.

On appeal, the defendant argues that the trial court erred by: (1) admitting the 911 tape at trial; (2) admitting portions of the 911 tape that include statements by the 911 operator and the police dispatcher; and (3) refusing to dismiss the simple assault charge. We address each argument in turn.

I. Admission of the 911 Tape

The defendant first argues that the 911 tape was inadmissible at trial because it was unfairly prejudicial under New Hampshire Rule of Evidence 403. He asserts that the recording was highly inflammatory and appealed to the jurors’ sympathies because Erica was “hysterical” during the call, making numerous references to the defendant hitting Lance. He further argues that the tape was not necessary because Erica’s statements could have been admitted at trial through other means. Finally, he argues that even if the tape was admissible, it was unfairly prejudicial to allow the State to play the tape numerous times during the trial.

New Hampshire Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.H. R. Ev. 403. We accord the trial court considerable deference in determining whether probative value is substantially outweighed by the danger of unfair prejudice, and we will not disturb its decision absent an unsustainable exercise of discretion. State v. Pelkey, 145 N.H. 133, 136 (2000); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). To show that the trial court exercised unsustainable discretion, the defendant must show that the ruling was clearly untenable or unreasonable to the prejudice of his case. State v. Hurlburt, 135 N.H. 143, 145 (1991), cert. denied, 503 U.S. 1008 (1992).

“Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.” Pelkey, 145 N.H. at 136 (quotations omitted).

[U]nfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove his guilt, [118]*118in which sense all evidence offered by the prosecution is meant to be prejudicial. Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.

State v. Cochran, 132 N.H. 670, 672 (1990) (citations and quotations omitted).

The record supports the trial court’s admission of the 911 tape. In its order, the trial court found the tape to be highly probative of the defendant’s involvement in the altercation with Lance and Selg. As it correctly points out, unlike other evidence offered at trial, “[t]he 9-1-1 tape is as contemporaneous an account of the events as they occurred as possible.” Moreover, the probative value of the tape is strengthened given the State’s theory that witnesses, including Erica, were reluctant to testify against the defendant. While the State could have used other evidence to introduce Erica’s statements at trial, “[t]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” State v. Evans, 689 A.2d 494, 498 (Conn. App. Ct. 1997) (quotation omitted).

Nor do we find that the danger of unfair prejudice substantially outweighs the tape’s probative value. Having listened to the tape, we disagree with the defendant’s characterization of Erica as “hysterical” throughout the call.

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Bluebook (online)
803 A.2d 604, 148 N.H. 115, 2002 N.H. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jordan-nh-2002.