The defendant, Christian Gebo, appeals multiple convictions for pattern aggravated felonious sexual assault. He argues that the trial court erred in denying his motions: (1) to allow him to cross-examine the victim about a restraining order that she sought against him in which she did not allege sexual abuse; (2) to allow him to cross-examine the victim about abuse allegations she made against her estranged husband; and (3) for a Richards hearing, see State v. Richards, 129 N.H. 669 (1987). We reverse and remand.
We first address the defendant's argument that the trial court erred in denying his request to cross-examine the victim about a restraining order that she sought against him in February 2008. A trial court has broad discretion to determine the scope of cross-examination or the admissibility of evidence; we will affirm its decision absent an unsustainable exercise of discretion. State v. Kornbrekke, 156 N.H. 821, 823-24 (2008). Rule of Evidence 608(b) permits cross-examination to inquire into conduct that is probative of the witness's character for truthfulness or untruthfulness. Id. at 824.
The trial court found that the petition for the protective order filed against the defendant alleged that he had hit and pushed the victim in the past. In support of his request for cross-examination, the defendant argued that the petition presented another opportunity for the victim to report any sexual abuse by him and that her failure to do so should be subject to cross-examination. The trial court denied the request for cross-examination of the victim on this issue.
Even if we assume without deciding that Rule 608(b) applies to this issue, we conclude that the trial court erred in denying the defendant's request. We note that this is not a case where the defendant argues that he should have been permitted to introduce extrinsic evidence of the victim's credibility; rather, he argues that he should have been permitted to cross-examine her about the contents of the petition. In Kornbrekke, we addressed the factors to be considered by the trial court in weighing the interplay between Rules 403 and 608 to determine the degree of probative value of the evidence. Id. at 825. Applying the Kornbrekke factors to this case, we note that: (1) the testimony of the victim was crucial to the State's case; (2) the petition was filed against the defendant around the same time that she reported the sexual assaults to the police; and (3) the allegations in the petition apparently covered much of the same time period alleged in the indictments. Accordingly, evidence of the victim's alleged failure to allege any sexual assaults in the petition was relevant to the case. See N.H. R. Ev. 401 ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. In this case, the probative value of the proposed cross-examination is not substantially outweighed by any of the factors enumerated in Rule 403.
Because the remaining issues raised by the defendant are likely to arise on remand, we address them. See State v. Kelly, 160 N.H. 190, 198 (2010).
The defendant argues that the trial court erred in denying his motion to cross-examine the victim about abuse allegations she made against her estranged husband in a domestic violence petition filed in July 2009. The trial court denied this request after finding that the foundation was inadequate, stating: "I don't feel at all comfortable that - - saying that the allegations were false and therefore, she - - - she lied under oath." In a subsequent order, the court further found that the "family court did not find the complainant incredible or the statements she made to be false." Given the lack of any finding that the victim's allegations against her husband were false and the fact that the petition was filed over a year after the victim first reported the defendant's assaults to the police, we find the trial court's exercise of discretion in denying cross-examination on this issue sustainable.
Finally, we address whether the trial court erred in denying a Richards hearing. It is well settled that a defendant has no constitutional right to have immunity conferred upon a defense witness who exercises his privilege against self-incrimination. State v. Kivlin, 145 N.H. 718, 721 (2001). Although situations could arise in which to deny immunization from prosecution would deprive a defendant of due process, no such violation will be recognized without a showing by the defendant that the testimony sought: (1) would be directly exculpatory; or (2) would present a highly material variance from the tenor of the State's evidence. Id. If the defendant demonstrates that his case falls within these narrow confines, we then decide whether, on the facts of his case, the executive branch's refusal to immunize a defense witness denied the defendant a fair trial. Id.
In denying the defendant's request for a Richards hearing, the trial court gave a brief description of the basis for the request. The victim's estranged husband called one of the public defender investigators to say that the victim had told him what to say at trial. He then obtained court-appointed counsel, who indicated to defense counsel that the witness had some Fifth Amendment issues. From this statement, defense counsel inferred that the witness had testimony favorable to the defense. The trial court noted that the victim's counsel indicated that she had no Fifth Amendment issues; therefore the court noted that it was just as likely that the witness went to the public defender's office and gave false information. Given the speculative nature of the defendant's proffer, he failed to establish that the information sought would be directly exculpatory. Accordingly, we find no error in the trial court's ruling.
Reversed and remanded.
DUGGAN, HICKS and LYNN, JJ., ...