State v. Rogan

864 A.2d 382, 151 N.H. 629, 2005 N.H. LEXIS 2
CourtSupreme Court of New Hampshire
DecidedJanuary 6, 2005
DocketNo. 2003-774
StatusPublished
Cited by3 cases

This text of 864 A.2d 382 (State v. Rogan) 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. Rogan, 864 A.2d 382, 151 N.H. 629, 2005 N.H. LEXIS 2 (N.H. 2005).

Opinion

Galway, J.

The defendant, Christopher Rogan, was convicted after a jury trial in Superior Court (Hollman, J.) on one count of aggravated felonious sexual assault, see RSA 632-A:2 (1996 & Supp. 2001) (amended 2003). On appeal, he argues that the trial court erred when it allowed the State to play an audiotaped interview of the victim. We affirm.

The record supports the following facts. The defendant was indicted on four counts of pattern aggravated felonious sexual assault alleging assaults committed against the victim, who was thirteen at the time.

At trial, Deputy Belknap County Sheriff Denise Miller, an investigator assigned to the case, testified on direct examination as to how she generally conducts interviews in this type of case, and specifically testified regarding her audiotaped and videotaped interview of the victim on November 12, 2002, which lasted approximately two hours. She described how the victim responded when discussing certain aspects of the [631]*631investigation, and explained that during her interview of the victim, she was able to obtain details about the events.

On cross-examination of Deputy Miller, defense counsel, using a transcript of the interview, questioned her regarding her thoroughness and about whether she coerced the victim’s answers. Following this cross-examination, the State requested permission to play the audiotape. The State argued that the entire audiotape needed to be played to the jury to rebut the inference created during Deputy Miller’s cross-examination that the victim’s incriminating statements were suggested by Deputy Miller. Defense counsel argued, on the other hand, that the tape should not be played for the jury, because she used a transcript and not the tape to impeach Deputy Miller, and because the focus of her cross-examination was to show that the investigation was incomplete and flawed. After listening to most of the tape, the court allowed it to be played, but first issued a jury instruction limiting its admissibility to “evidence bearing upon the issues of Denise Miller’s credibility in her testimony at trial and of whether her investigation was fair and impartial.”

At the close of the State’s case, the trial court dismissed three of the charges; the jury convicted the defendant on the remaining charge. On appeal, the defendant contends that defense counsel did not “open the door” by creating a misleading impression regarding the interview; and even if she did, the admission of the entire tape was an “unfairly prejudicial remedy.”

“Opening the door” is a conclusory term. State v. Crosman, 125 N.H. 527, 530 (1984). Once associated more strictly with the doctrine of curative admissibility, it is now more broadly applied to situations in which a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence. See id. at 530-31. The “opening the door” doctrine applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent’s introduction of evidence that may not otherwise be admissible. State v. Morrill, 151 N.H. 331, 333 (2004). The initial evidence must have reasonably created a misimpression or misled the fact-finder in some way. Id. This rule allows the opposing party to place potentially misleading evidence in its proper context. Id.

The admissibility of evidence is generally within the trial court’s sound discretion. State v. Ellsworth, 151 N.H. 152, 159 (2004). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset the trial court’s ruling unless it is an [632]*632unsustainable exercise of discretion. See State v. Carlson, 146 N.H. 52, 56 (2001); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). To show that the trial court’s exercise of discretion is unsustainable, the defendant bears the burden of establishing that the decision was clearly, unreasonable to the prejudice of his case. Carlson, 146 N.H. at 57; cf. Lambert 147 N.H. at 296.

Here, during cross-examination, defense counsel placed the integrity of Deputy Miller’s investigation at issue with several questions and comments, such as:

Q: So you — you’ve made up your mind that [the victim] ... was lying to Detective Simmons before you ever met her?

Q: Were you going to coerce her to say anything?----

Q: And if she didn’t want to say something, what was your intention?

Q: All right. And we know — at least we think we know now, because of what you got her to say in that interview, that it started after the accident____

The State contends that the statements on the audiotape “were relevant to rebut the inference created by the defense through the cross-examination of Deputy Miller that her investigation was unfair and that she had coerced the victim to make incriminating statements.” We agree.

The trial court held a hearing out of the presence of the jury regarding the State’s request to play the tape, during which defense counsel argued that the focus of the cross-examination of Deputy Miller wás to suggest that her investigation was incomplete and flawed. The State countered that defense counsel was “trying to say the nature of the interview put words in the [victim’s] mouth and essentially prompted the [victim] to give responses.” In fact, defense counsel ultimately admitted that she had indeed suggested that coercion had occurred during the interview.

After reviewing the record, we agree with the trial court that defense counsel’s cross-examination not only raised the issue that the investigation was flawed and incomplete, but also that “[the victim’s] statements were unfairly influenced by the investigator,” that the interview was essentially “unfair,” and that the investigator used a [633]*633“persuasional technique” to prompt the victim. Accordingly, we conclude that defense counsel — having taken the risk of creating a misleading advantage, see Crosman, 125 N.H. at 531, or of misleading the fact-finder in some way, see Morrill, 151 N.H. at 333 — “opened the door” to the admission of evidence that would rebut the misimpression. As such, the State “place[d] [the] potentially misleading evidence in its proper context.” Id.

We next consider whether the tape was the appropriate evidence for rebutting any misimpression that might have been created by defense counsel. The crux of the defendant’s position is that “the tape shed little light on the adequacy of Miller’s investigation, because she admitted on cross-examination that she did not do any further investigation based on [the victim’s] vague or inconsistent responses.” The defendant’s argument is, however, misplaced. Playing the tape did not serve to “shed light on the adequacy of Miller’s investigation”; rather, its purpose was to allow the jury to assess whether the information on the tape rebutted the misimpression created by defense counsel that the victim’s answers were coerced by Deputy Miller.

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Cite This Page — Counsel Stack

Bluebook (online)
864 A.2d 382, 151 N.H. 629, 2005 N.H. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rogan-nh-2005.