State v. Wellington

846 A.2d 1171, 150 N.H. 782, 2004 N.H. LEXIS 71
CourtSupreme Court of New Hampshire
DecidedApril 20, 2004
DocketNo. 2903-209
StatusPublished
Cited by7 cases

This text of 846 A.2d 1171 (State v. Wellington) 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. Wellington, 846 A.2d 1171, 150 N.H. 782, 2004 N.H. LEXIS 71 (N.H. 2004).

Opinion

Dalianis, J.

The defendant, James Wellington, was convicted by a jury of six counts of aggravated felonious sexual assault, see RSA 632-A:2, I© (1996), II (Supp. 1999), one count of felonious sexual assault, see RSA 632-[783]*783A:3, III (1996), and one count of indecent exposure and lewdness, see RSA 645:1, 11(a) (Supp. 1999). The defendant argues that the Trial Court (McGuire, J.) erred by: (1) refusing to award him funds to hire an expert on child witness suggestibility to consult with defense counsel; and (2) refusing to allow him to introduce evidence tending to demonstrate the victim’s sexual knowledge. We affirm.

The victim, an eight-year-old female at the time, first met the defendant in May 2001 when he helped the victim’s mother move into a new apartment. The defendant continued to have contact with the victim and her mother through the church they all attended and in late August 2001, the defendant volunteered to mentor the victim. The victim’s mother agreed to let the defendant spend time with the victim. Throughout August and early September the defendant took the victim swimming at Webster Lake and on occasion took her to his house. During that time the defendant touched the victim’s genital area while they were swimming.

On one occasion, while at the defendant’s house, the victim asked the defendant “where babies come from.” The defendant told the victim that it was too hard to explain and that he would show her. He took off his clothes and had the victim take off her clothes. He next got on top of the victim on his bed and touched his penis to her genital area, but said that he could not show her because his penis would not fit into her vagina. He then put his mouth on her genital area and touched her genital area with his hand. After that he masturbated, ejaculated onto her and wiped the semen off with a paper towel. Then he placed his penis inside her mouth.

On the evening of September 11, 2001, the victim’s mother went to a meeting and left the defendant to babysit the victim and her friend. After the friend had gone home, the defendant pulled down the victim’s pants and underwear and put his mouth on her genital area. Nine days later, on September 20, the victim told her mother what had happened. The victim’s mother contacted the police.

Sergeant Norman Ashburn of the Franklin Police Department responded and spoke briefly with the victim and her mother. Ashburn took them to the police station where they met briefly with Officer Nancy Hicks. Neither Hicks nor Ashburn had significant experience interviewing children. On September 24, Anne Pennock of the New Hampshire Division for Children, Youth and Families met with Hicks and together they interviewed the victim. The interview was videotaped and lasted between forty-five minutes and an hour.

Prior to trial, the defendant filed a motion for services other than counsel, pursuant to RSA 604-A:6 (2001), seeking “funds in the amount of $2,000 for the purpose of consulting with Dr. Phillip Esplín, an expert in [784]*784the area of child suggestibility and interviewing techniques.” The trial court denied the motion. The defendant sought reconsideration, which the court denied.

The defendant first argues that the trial court erred when it denied him the funds necessary to consult with Dr. Esplín for a review of the discovery material and an opinion as to whether false memory implantation may have occurred. The defendant contends that he made a sufficient showing that the interviewers engaged in improper or suggestive interviewing techniques, and he claims violations of his rights to due process, a fair trial, and equal protection. N.H. CONST, pt. I, art. 15; U.S. Const, amends. V, VI, XIV.

We first address the defendant’s claims under the New Hampshire Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).

Regardless of whether a defendant has invoked equal protection, fundamental fairness necessary for due process, or the right to services to enable his counsel to assist him effectively, an indigent defendant’s access to experts has been said to lie within the sound discretion of the court. State v. Campbell, 127 N.H. 112, 115 (1985). To warrant a favorable exercise of that discretion, it is not enough merely to allege in general or conclusory terms that expert services would be helpful. Id. Rather, a defendant must demonstrate by reference to the facts and circumstances of his particular case that the assistance he seeks is necessary to ensure effective preparation of his defense by his attorneys. Id.

To successfully establish an unsustainable exercise of that discretion, on appeal, the defendant must demonstrate by clear and convincing evidence that his request to the court included as complete a showing of necessity for the desired services as could be expected of him, and that the denial of funds substantially prejudiced him at trial. State v. Stow, 136 N.H. 598, 605 (1993); see also State v. Lambert, 147 N.H. 295, 296 (2001); Campbell, 127 N.H. at 117.

The defendant filed a motion for services other than counsel to explore the possibility that improper techniques were employed during interviews of the victim because: (1) the initial interviews between the victim and Ashburn and Hicks were not recorded; (2) “leading questions and anatomical drawings were used”; and (3) “the child was not asked about her memories of prior instances of abuse.” The defendant cited our approval of expert testimony in this area, see State v. Sargent, 144 N.H. 103, 105 (1999). He also stated that, “if after consulting with Dr. Esplín, [785]*785counsel feels that it is necessary to call Dr. Esplín at a trial in this matter, counsel will then petition this court for additional funds.”

In denying the initial motion for funds the trial court ruled:

According to the defendant, the value of Dr. Esplin’s services is to explore the reliability of [the victim’s] statements and whether, because of improper interviewing techniques, false memory implantation may have occurred ---- After reviewing the videotape and other relevant evidence, the Court finds that the defendant has not shown that improper interviewing techniques were used, and thus, the probable value of Dr. Esplin’s testimony is minimal.

The defendant argues that the trial court’s finding constituted an unsustainable exercise of discretion because he pointed to specific examples of improper interview techniques. In State v. Sargent, 144 N.H. at 106, we held that “the proper protocols and techniques used to interview child victim witnesses” is a subject for expert testimony. We did not require, however, “that the trial court provide funds for such a witness, nor did [we] mandate that such expert witnesses be called in all cases involving child victims.” Cupe v. State, 560 S.E.2d 700, 706 (Ga. Ct. App. 2002).

In this case, the defendant has not met his burden of demonstrating by clear and convincing evidence that his request for authorization to obtain expert services at public expense included as complete a showing of necessity as could then be expected of him. See Campbell, 127 N.H. at 117.

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Bluebook (online)
846 A.2d 1171, 150 N.H. 782, 2004 N.H. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wellington-nh-2004.