Appeal from Sullivan County.
The defendant, Bertrand DeLong, was convicted of one count of criminal threatening, RSA 631:4, and one count of criminal mischief, RSA 634:2 (1986 & Supp. 1991), after a jury trial in the Superior Court (Morrill, J.). On appeal, the defendant argues that the trial judge erred in allowing a witness to testify for the prosecution when the correct identity of that witness was not made known to the defendant until after the start of the trial. For the reasons that follow, we affirm.
Charges against the defendant arose out of an altercation in Newport on July 17, 1991. The facts surrounding the incident were in dispute at trial. The defendant and the victim's husband, Harvey Matheson, were returning home from a day of drinking that began hours earlier in a nearby hunting shelter called Joe's Jungle. The victim, Wanda Matheson, claimed that while she was waiting in her car outside of the defendant's apartment to give her husband a ride home, the defendant appeared with a stick. Believing that Mrs. Matheson had reported him to the police, the defendant slammed the stick down on her car and threatened to kill her. Mr. Matheson soon came to his wife's aid and attempted to confront the defendant at his apartment door. Eventually the police arrived and calmed the scene. At trial, however, the defendant testified to the contrary, claiming that he never threatened Mrs. Matheson and never confronted her in her car. Instead, he claimed the disturbance was caused by Mrs. Matheson, who was angry at the defendant for keeping her husband out of work and getting him drunk, and by Mr. Matheson, who was trying to retrieve his six-pack of beer and his sweatshirt from the defendant's apartment.
The night before trial the prosecutor learned of a new witness who could corroborate parts of Mrs. Matheson's account. He telephoned the defendant's attorney to inform him of this new witness but was unable to reach him. The next day the prosecutor informed the court and defense counsel that he had discovered a new witness. He identified this witness to defense counsel as Hazel Booth. The defendant moved to exclude the witness's testimony on the grounds of unfair surprise. In response, the trial court offered defense counsel a few minutes to interview the new witness, but the attorney declined, stating that he had already talked with Hazel Booth that morning, and that a few more minutes would not make a difference. The court ultimately denied the defendant's motion, noting the relative simplicity of the case, the prosecutor's efforts to inform defense counsel as soon as the witness was discovered, and defense counsel's opportunity to question the witness before the trial.
When the prosecution called its second witness, however, it became apparent that Hazel Booth had been incorrectly identified as the new witness. Hazel Booth was already on the prosecution's witness list. The new witness was named Ginger Martin, and apparently the prosecutor had confused the two. The defendant renewed his objection to the testimony of the new witness. The trial court again ...