State v. Martin

694 A.2d 999, 142 N.H. 63, 1997 N.H. LEXIS 55, 1997 WL 294677
CourtSupreme Court of New Hampshire
DecidedJune 5, 1997
DocketNo. 96-029
StatusPublished
Cited by9 cases

This text of 694 A.2d 999 (State v. Martin) 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. Martin, 694 A.2d 999, 142 N.H. 63, 1997 N.H. LEXIS 55, 1997 WL 294677 (N.H. 1997).

Opinion

BRODERICK, J.

The defendant, Kelsey A. Martin, was convicted of aggravated felonious sexual assault. See RSA 632-A:2 (1996). On appeal, he argues that the Superior Court (Gray, J.) erred in denying his motion to depose the victim’s physician, who testified at trial. The defendant also argues, among other things, that the trial court failed to properly apply the standard of State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992), to his request for access to certain medical records, that the evidence was insufficient to support his conviction, and that the county attorney made several improper comments during the course of the trial. We reverse the defendant’s conviction because he was entitled to take the deposition. he sought.

The defendant was charged with sexually molesting the foui'-yearold female victim after a party at her mother’s home. Prior to trial the defendant moved to depose the victim’s treating physician, whom the State indicated would be a witness at trial. The motion was filed pursuant to RSA 517:13, which states that “[i]n any felony case either party may take a discovery deposition of any expert witness who may be called by the other party to testify at trial.” RSA 517:13, III (Supp. 1996). The State objected to the motion on the basis that the physician’s findings were “neither surprising, nor complicated” and that there was no need for a deposition. On appeal, the State elaborates on this argument by asserting that the victim’s treating physician was not an expert witness, but instead “an ordinary witness testifying to her own personal, first-hand knowledge.” The trial court agreed with the State’s reasoning, stating at one point that the doctor was “not an expert witness [but] . . . the treating physician.” The trial court denied the defendant’s motion and also denied a companion motion to obtain the services of an expert-physician to assist defense counsel in understanding the treating physician’s testimony. At trial the defendant renewed his motion to depose the physician, and further urged the trial court to enforce its pretrial ruling restricting the doctor’s testimony to lay observations. Following his conviction, the defendant brought this appeal.

We note at the outset that if the victim’s treating physician is an expert witness, the plain language of the statute expressly allows the defendant to take her deposition. See RSA 517:13, III; see [65]*65also Penrich, Inc. v. Sullivan, 140 N.H. 583, 589, 669 A.2d 1363, 1367 (1995) (when court interprets a statute “we examine the statutory language itself and construe the law consistently with its plain meaning”). Under RSA 517:13, III, a party to a felony case “may take a discovery deposition of any expert witness who may be called by the other party to testify at trial.” While the trial court has the discretion to grant or deny a deposition of a lay witness, see RSA 517:13, II (Supp. 1996); State v. Chick, 141 N.H. 503, 505, 688 A.2d 553, 554-55 (1996), it is not accorded similar discretion with expert witnesses. See RSA 517:13, III. While the statute requires the court to make a finding of necessity before ordering the deposition of a lay witness, RSA 517:13, II, no such finding is required before an expert witness may be deposed. See RSA 517:13, III. We therefore read the statute to provide the defendant with the right to depose the State’s expert witnesses, in felony cases. See State v. Farrow, 140 N.H. 473, 475, 667 A.2d 1029, 1031 (1995) (per curiam) (court interprets statutes “in the context of the overall statutory scheme”). Accordingly, the dispositive question in this case is whether the trial court correctly determined that the victim’s physician was not an expert.

“An expert witness is one who testifies concerning matters of scientific, mechanical, professional or other like nature, which requires special study, experience, or observation not within the common knowledge” of the general public. State v. Fyffe, 588 N.E.2d 137, 139 (Ohio Ct. App. 1990); see McMullin v. Downing, 135 N.H. 675, 679, 609 A.2d 1226, 1229 (1992); Dowling v. Shattuck, 91 N.H. 234, 236, 17 A.2d 529, 532 (1941). Simply possessing a professional degree does not make one an expert witness in all circumstances: “Where a person who might otherwise be qualified as an expert testifies as to personal or first-hand knowledge, such a witness should be treated as an ordinary witness and not as an expert.” Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 167-68, 551 A.2d 962, 970 (1988). Thus, medical professionals may testify as lay witnesses when they confine their testimony to “personal observations which any lay person [would be] capable of making.” State v. Tucker, 861 P.2d 37, 46 (Haw. Ct. App.), cert. denied, 863 P.2d 989 (Haw. 1993), cert. denied, 895 P.2d 1193 (Haw. 1993).

Lay witnesses, however, may not testify competently about a medical diagnosis, Doyle v. State, 785 P.2d 317, 322 (Okla. Crim. App. 1989); cf. Bentley v. Adams, 100 N.H. 377, 379, 128 A.2d 202, 204 (1956), and, more generally, may not draw conclusions which require the application of specialized medical knowledge. See Common[66]*66wealth v. White, 106 N.E.2d 419, 420 (Mass. 1952). A lay witness may relate another’s medical ailments when manifested as “a readily observable physical condition, which does not require a complex application of technical knowledge.” Commonwealth v. Cody, 584 A.2d 992, 995 (Pa. Super. Ct.), appeal denied, 592 A.2d 42 (Pa. 1991). If in order to testify a witness must possess some training or expertise that is atypical of the public at large, the witness should be treated as an expert. Cf. Sample v. State, 643 So. 2d 524, 529-30 (Miss. 1994) (plurality opinion) (opinion testimony must be considered expert testimony if “in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult”).

In light of these considerations, it is apparent that the victim’s physician testified in her expert capacity in this case. Her testimony began with a recitation of professional qualifications. She proceeded to explain the anatomical structure of female genitalia to the jury, using a medical chart to illustrate her discussion. She then described the conditions she had discovered during a physical examination of the victim, marking the chart to indicate their location.

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Bluebook (online)
694 A.2d 999, 142 N.H. 63, 1997 N.H. LEXIS 55, 1997 WL 294677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martin-nh-1997.