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State v. Gallagher

Supreme Court of New Hampshire

October 16, 2012

State of New Hampshire
v.
Robert Gallagher

The defendant, Robert Gallagher, appeals his conviction for felony receipt of stolen property. He argues that the trial court erred in denying: (1) his motion to exclude evidence of witness tampering, or, in the alternative, for a continuance to allow the defense to investigate; and (2) his request to admit evidence to show a witness's bias and motive to lie. We affirm.

We generally review a trial court's rulings on evidentiary matters with considerable deference, and, absent an unsustainable exercise of discretion, we will affirm its decision on the admissibility of evidence. State v. Ruggiero, 163 N.H. 129, 135 (2011). This standard of review also applies to trial court rulings on motions to continue. See State v. Addison, 160 N.H. 792, 795 (2010).

We briefly restate the relevant facts. In May 2009, the Topsfield, Massachusetts Police Department received a report of a missing trailer. The VIN number of the trailer was incorrectly reported. In August 2009, after the defendant and his wife separated, she called the Topsfield Police to report that the trailer would be found at a Canaan dirt race track on August 28, 2009. Canaan Police Chief Frank located the defendant at the track. When Frank told the defendant that he was investigating a report of a stolen trailer, the defendant told him it couldn't be his trailer because he had bought his trailer from his grandfather about ten years earlier. When Frank checked the VIN number of the trailer in the defendant's possession, it did not match the one that had been reported stolen. The records check revealed, however, that the trailer in the defendant's possession was a 2007 model and that it had never been registered. Frank seized the trailer. A few days later, the defendant called Frank and told him that his lawyer had advised him to cooperate. He then faxed several documents to Frank; all pertained to a 2002 trailer. The defendant was subsequently charged with receipt of stolen property.

In February 2010, the defendant's wife brought divorce papers to the Vermont home where the defendant was living. She testified at trial that while she was at the Vermont home, he told her: "That I should not testify, and that if I did testify, I would regret it." Before trial, the defendant filed a motion in limine to exclude "any reference to an allegation of witness tampering on the part of [the defendant] directed at his wife." The defendant also sought the alternative remedy of a continuance, arguing that he was first advised that the State intended to offer evidence at trial of the alleged witness tampering on the day before trial was scheduled to begin. The trial court denied his motion.

The defendant first argues that the trial court erred in denying his motion in limine because although he "was aware of evidence that might rebut the credibility of [his wife]'s claim, that evidence was not within the defendant's control and located out-of-state."

The State contends that the trial court's ruling was sustainable or that, if there was error, it was harmless. We will assume without deciding that the trial court's ruling was error. We conclude based upon the record before us that any error was harmless. An error is harmless only if it is determined beyond a reasonable doubt that the error did not affect the verdict. State v. Belonga, 163 N.H. 343, 362 (2012). The State bears the burden of proving that an error is harmless. Id. An error may be harmless if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. Id. In determining whether an error is harmless, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence. Id.

In this case, the defendant was charged with receipt of stolen property. The State's evidence included: (1) the defendant was found in possession of a stolen trailer, model year 2007; (2) the defendant provided an implausible explanation for possessing it when first questioned by Frank; and (3) the defendant subsequently faxed information to Frank which only related to a 2002 trailer rather than the stolen 2007 trailer. After being asked about his possession of the stolen 2007 trailer, the defendant provided both inconsistent and duplicative documentation about the 2002 trailer. Given all of the evidence presented about the defendant's actions, including his testimony, we conclude that the limited testimony of the defendant's wife was inconsequential in relation to the strength of the State's evidence of guilt.

The defendant also argues that the trial court erred in denying his request to admit evidence to show a witness's bias and motive to lie. Specifically, the defendant argues that if the evidence of the alleged witness tampering was admissible, then evidence tending to demonstrate that his wife lied about the threat was also relevant. The defendant argues that he should have been allowed to present evidence of an altercation that occurred when his wife appeared at his Vermont home in February 2010 with Isaac Brake. As a result of that altercation charges were pending against Brake at the time that the defendant's wife testified at trial in this case.

We note at the outset that the defendant's wife's testimony comprises fifteen pages of the trial transcript. Her testimony on cross-examination included: (1) she had not disclosed the defendant's threat to the prosecution in this case until two days before her testimony; (2) she had not disclosed the threat to the Topsfield Police; (3) the defendant had obtained a restraining order against her; (4) the defendant ended their relationship against her wishes; and (5) the defendant refused to sign the divorce papers which she brought with her when she came to the defendant's home in February 2010.

Given the permitted scope of cross-examination, we conclude that the trial court's decision to exclude evidence about an altercation with an individual who was not a witness in the theft case was sustainable. See, e.g., State v. Oakes, 161 N.H. 270, 280 (2010) (trial courts afforded broad discretion to determine scope of cross-examination).

Affirmed.

DALIANIS, C.J., and HICKS and LYNN, JJ, ...


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