State v. Roubo

666 A.2d 1356, 140 N.H. 409, 1995 N.H. LEXIS 160
CourtSupreme Court of New Hampshire
DecidedNovember 6, 1995
DocketNo. 93-713
StatusPublished

This text of 666 A.2d 1356 (State v. Roubo) 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. Roubo, 666 A.2d 1356, 140 N.H. 409, 1995 N.H. LEXIS 160 (N.H. 1995).

Opinion

JOHNSON, J.

The defendant, Michael Roubo, was found guilty by a jury of disobeying an officer, RSA 265:4 (1993), and driving after revocation, RSA 263:64 (1993). He argues on appeal that the Superior Court (O'Neil, J.) erred by admitting hearsay evidence and by allowing a missing witness inference. We affirm.

In August 1991, three people in a Jeep sped past Laconia Police Officer James Conrad, who was able to observe the driver because the Jeep had no shell or doors. Officer Conrad followed the Jeep and attempted to pull it over after it ran a stop sign, but the Jeep eluded him by turning onto a dirt path. A motor vehicle check of the Jeep’s license number revealed that it was owned by Mark DeCormier. Officer Conrad proceeded to DeCormier’s house; the Jeep was not there and the house was unoccupied.

After his shift, Officer Conrad returned to DeCormier’s house. The defendant, DeCormier’s housemate, answered the door. Officer Conrad recognized him as the driver of the Jeep, but the defendant stated that he had been home all evening. DeCormier also appeared and stated that the Jeep had been parked in his driveway all night and that he had been out with his girlfriend. The defendant was charged with driving after revocation of a driver’s license and disobeying a police officer.

[410]*410At trial, the defendant sought to call DeCormier as a witness, but DeCormier successfully asserted his fifth amendment privilege against compelled self-incrimination, see State v. Richards, 129 N.H. 669, 673, 531 A.2d 338, 341 (1987), and the court ruled that he would be considered an unavailable witness. See N.H. R. Ev. 804(a)(1). The defendant presented as a witness an investigator from the public defender’s office who interviewed DeCormier in February and March of 1992. The investigator testified that DeCormier made the following statement in March 1992:

Well, as a matter of fact, I was driving the Jeep that night, but when the officer came to my home to get my plate number I think — um—he accused [the defendant] of driving the Jeep and not me so I told him that [the defendant] was not driving the Jeep.

The court admitted this hearsay statement under the statement against interest exception to the hearsay rule because the driver of the Jeep failed to obey a police officer. See N.H. R. Ev. 804(b)(3).

When the State attempted to examine the investigator about his February 1992 interview with DeCormier, the defendant objected on the ground that the statement was hearsay and not within any exception to the hearsay rule. The court overruled the objection because “on the issue of credibility it’s got to come in.” The court also referred to the catch-all hearsay exception in New Hampshire Rule of Evidence 803(24).

The State then asked the investigator whether DeCormier informed him “that he had returned home with his girlfriend?” The investigator replied affirmatively, and the State next asked whether the investigator requested the girlfriend’s name. He stated that he had not. The defendant objected because “[t]he defendant has absolutely no obligation to initiate an investigation. We do not have a burden of proof.” The court overruled the objection but instructed the jury that “the defendant has no obligation to introduce anything . . . . The burden is upon the State to prove guilt beyond a reasonable doubt, and the burden doesn’t shift, and it’s not shifting by this question or any other question.” On redirect examination, the defendant elicited for the first time the remainder of DeCormier’s February statement. The investigator testified, “As I recall, his story to me was that he had the only set of keys for the Jeep; he was out with his girlfriend; and that nobody was driving the Jeep that night.”

Prior to the closing arguments, the court issued instructions to the jury, two of which are relevant to this appeal. First, the jury was [411]*411given the following missing witness instruction regarding DeCormier:

DeCormier is not available to testify in person, and his unavailability is not the fault of either the State or the defendant and should not be held against the State or the defendant, nor are you to speculate or consider why DeCormier is not available. It is sufficient] to say that he’s just not available. You’re to use the same standards on credibility of DeCormier as to any other witnesses, and I mention that in credibility. It’s the same standards or guides for you.

Second, the court instructed the jury that “[t]he burden of proving guilt is entirely upon the State. The defendant does not have to prove his innocence.”

In its closing argument, the State urged the jury to infer from the defendant’s failure to call DeCormier’s girlfriend that her testimony would have been detrimental to his case. The defendant objected to the missing witness inference advanced by the State, stating in part that

to attack the defense, which is putting on the statement that DeCormier admitted to it, is one thing. To go and say we’ve got an obligation to find a witness who — which we were unable to put on is an entirely different issue, and it implicates due process and shifts the burden to the defendant.
The other thing, the missing witness instruction does not invite the State to absolutely speculate on anything that the witness would have said.

The trial judge overruled the objection as follows:

I don’t think it was improper, and I don’t think it shifted the burden. And I think if I mention it again to them, I’m just going to emphasize that testimony, and I don’t want to do it. In fairness to the defendant, I don’t want to be bringing out more of [the State’s] argument again if I give that instruction again, unless you want me to.

(Emphasis added.) The defendant did not ask the court to reissue the missing witness instruction.

On appeal, the defendant argues that the trial court erred by: (1) admitting DeCormier’s February statement for its truth when it did not fall within any of the exceptions to the hearsay rule; and (2) allowing the State to comment on his failure to call DeCormier’s [412]*412girlfriend, a missing witness who allegedly could corroborate DeCormier’s statement that he was driving the jeep on the night in question.

We first address the defendant’s claim that the trial court erred by admitting DeCormier’s February statement. After the defendant introduced DeCormier’s March statement under the statement against interest exception to the hearsay rule, see N.H. R. EV. 804(b)(3), the State sought to introduce part of his February statement as either a prior inconsistent statement or under the general exception to the hearsay rule. See N.H. R. Ev. 801(d)(1)(a), 803(24).

The State asked the investigator only whether DeCormier stated that he had returned home with his girlfriend on the night in question. Even if we were to assume that the admission of the investigator's affirmative response to this question was error, we would conclude that the error was harmless. See State v. Silk, 138 N.H. 290, 291, 639 A.2d 243, 244 (1994).

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Related

State v. Taylor
395 A.2d 505 (Supreme Court of New Hampshire, 1978)
State v. Lainey
375 A.2d 1162 (Supreme Court of New Hampshire, 1977)
State v. Kelly
306 A.2d 58 (Supreme Court of New Hampshire, 1973)
State v. Richards
531 A.2d 338 (Supreme Court of New Hampshire, 1987)
State v. Simonds
600 A.2d 928 (Supreme Court of New Hampshire, 1991)
State v. Drew
633 A.2d 108 (Supreme Court of New Hampshire, 1993)
State v. Silk
639 A.2d 243 (Supreme Court of New Hampshire, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
666 A.2d 1356, 140 N.H. 409, 1995 N.H. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roubo-nh-1995.