Worster v. Watkins

669 A.2d 212, 140 N.H. 546, 1995 N.H. LEXIS 184
CourtSupreme Court of New Hampshire
DecidedDecember 22, 1995
DocketNo. 94-426
StatusPublished
Cited by4 cases

This text of 669 A.2d 212 (Worster v. Watkins) 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
Worster v. Watkins, 669 A.2d 212, 140 N.H. 546, 1995 N.H. LEXIS 184 (N.H. 1995).

Opinion

THAYER, J.

The plaintiff, Philip Worster, appeals from a jury verdict finding the defendant, Mark Watkins, not liable for damages resulting from injuries sustained by the plaintiff during a fight at the defendant’s house. The plaintiff argues that the Superior Court (Arnold, J.) erred when it ruled that two out-of-court statements were inadmissible at trial. We affirm.

On August 10, 1991, the defendant held a bachelor party in his home. The plaintiff attended the party and became involved in a fight between the groom and another guest. During the fight, a fourth person, Stephen Fowlie, joined the altercation and struck the plaintiff in the jaw with either a tire iron or a wrench. The blow fractured the plaintiff’s jaw.

On October 22,1991, more than two months after the party, Fowlie was arrested and charged with assault in connection with his attack on the plaintiff. While in custody, Fowlie gave Detective Ted Curtis of the Merrimack Police Department a written confession in which [548]*548he said that the defendant wanted him to attend the bachelor party to prevent guests from fighting and to act as a designated driver. Detective Curtis filed a supplementary investigation report following his interview with Fowlie, summarizing what Fowlie had told him.

Armed with Fowlie’s confession and the police report, the plaintiff filed suit against the defendant. The plaintiff alleged that Fowlie was acting as the defendant’s agent when the assault occurred and, therefore, that the defendant was liable for damages.

Prior to trial, the defendant moved in limine to exclude Fowlie’s written confession and the supplementary investigation report filed by Detective Curtis. The defendant argued that both out-of-court statements were hearsay. The plaintiff countered by arguing that the documents could be introduced under specific exceptions to the hearsay rule.

Following a hearing, the superior court granted the defendant’s motion. The court ruled, first, that Fowlie’s confession was inadmissible hearsay. It rejected the plaintiff’s argument that the confession qualified as a statement against interest and therefore could be introduced as an exception to the hearsay rule. It also concluded that the plaintiff had not shown that the declarant, Fowlie, was unavailable for trial — a prerequisite to admitting a statement against interest under New Hampshire Rule of Evidence 804. Although the court acknowledged that the plaintiff sent a subpoena to Fowlie’s last known address in New Hampshire in an effort to secure his attendance at trial, it found that effort insufficient because the plaintiff was aware of two alternative addresses which he did not use to locate Fowlie or to secure his testimony before trial.

Second, the court ruled that the police report was inadmissible. The court concluded that the report could not be admitted into evidence under either the public records or the business records exceptions to the hearsay rule.

On May 18, 1994, the jury returned a verdict in favor of the defendant. The plaintiff appeals on the ground that the trial court erred in granting the .defendant’s motion in limine.

The plaintiff’s appeal requires that we analyze three exceptions to the hearsay rule. It is the trial court’s duty “to determine whether testimony is admissible as an exception to the hearsay rule.” State v. Killam, 137 N.H. 155, 160, 626 A.2d 401, 404 (1993). We will not disturb the trial court’s ruling unless it is clearly erroneous. Flanagan v. Prudhomme, 138 N.H. 561, 569, 644 A.2d 51, 57 (1994).

[549]*549 I. Stephen Fowlie’s Confession

The plaintiff first challenges the trial court’s refusal to admit Stephen Fowlie’s written confession into evidence. The plaintiff concedes that the confession is hearsay, but he argues that it should have been admitted under New Hampshire Rule of Evidence 804(b)(3). Rule 804(b)(3) provides an exception to the hearsay rule for a statement which was, at the time it was made, contrary to the declarant’s penal or pecuniary interest. Such a statement is admissible because “one does not make [a] statement[] that would damage oneself unless the statement is true.” State v. Kiewert, 135 N.H. 338, 343, 605 A.2d 1031, 1034 (1992) (quotations and brackets omitted).

Before such a statement can be admitted into evidence, however, the party introducing it must prove that the declarant is “unavailable” to testify at trial. See N.H. R. EV. 804(b). A declarant is “unavailable” for trial if he satisfies any of the conditions listed in Rule 804(a). The only condition relevant here is found in Rule 804(a)(5), which states that a declarant is unavailable if he “is absent from the hearing and the proponent of [his] statement has been unable to procure [his] attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), [his] attendance or testimony) by process or other reasonable means.” N.H. R. EV. 804(a)(5).

The plaintiff attempted to locate Fowlie in an effort to secure his attendance at trial. When efforts to locate Fowlie produced only two addresses — one in Maine and one in Florida — the plaintiff concluded that he was unable, by process or other reasonable means, to bring Fowlie to New Hampshire to testify. Therefore, he argues, Fowlie was unavailable for purposes of Rule 804(a)(5).

Rule 804(a)(5), however, requires a more rigorous showing of unavailability than the one made by the plaintiff. Even assuming the plaintiff demonstrated that Fowlie could not be forced to attend the trial, the parenthetical clause in Rule 804(a)(5) required the plaintiff to show that he could not procure Fowlie’s “testimony” for trial. N.H. R. EV. 804(a)(5). We interpret that clause to mean that the plaintiff had to demonstrate that he was unable to depose Fowlie. See 2 MCCORMICK ON EVIDENCE § 253, at 136 n.33 (J. Strong ed., 4th ed. 1992). Jurisdictions examining the corresponding federal rule have concluded that Congress intended to adopt an “attempt to depose” standard. See, e.g., Schaffer v. Lindy, 511 A.2d 1022, 1025 (Conn. App. Ct. 1986). Because New Hampshire’s version of Rule 804(a)(5) is identical in every important respect to the federal rule, we find those cases persuasive in our interpretation of [550]*550the New Hampshire rule. See Kiewert, 135 N.H. at 343, 605 A.2d at 1034.

In this case, the trial court found that the plaintiff made no effort to depose Fowlie before trial and therefore ruled that he was not unavailable for purposes of Rule 804. We see no reason to overturn the trial court’s ruling. We will assume for purposes of this case that the plaintiff’s duty to depose Fowlie did not arise until he learned that Fowlie was not going to appear at trial in response to the subpoena sent to his last known address in New Hampshire. After learning that Fowlie would not appear to testify, the plaintiff made no effort to contact Fowlie in Maine or Florida — or to request a continuance to give him time to do so — despite having specific information about his location. We conclude, therefore, that the trial court reasonably held that the plaintiff failed to meet the requirements of Rule 804(a)(5).

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Bluebook (online)
669 A.2d 212, 140 N.H. 546, 1995 N.H. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worster-v-watkins-nh-1995.