The defendant, Joshua McDermott, appeals his conviction, following a jury trial in superior court, on charges of aggravated felonious sexual assault. See RSA 632-A:2, I (i)(2007). He contends that the trial court erred by barring him, on the grounds of late disclosure, from eliciting testimony from a witness about a statement made by the victim. We reverse and remand.
We will not reverse a trial court's ruling regarding the admission of evidence, or alleged discovery violations, absent an unsustainable exercise of discretion. State v. Brooks, 164 N.H. 272, 287 (2012). To show that the trial court's exercise of discretion is unsustainable, the defendant must show that the decision was clearly unreasonable and that it prejudiced his case. Id.
The proposed testimony at issue was that of a nurse who examined the victim at the hospital subsequent to the alleged assault. The nurse indicated that, during the examination, the victim told her that she did not need to examine his anus because he did not have any pain or discomfort in that area. This statement was not included in the nurse's report, which the State disclosed to the defendant prior to trial. The defendant listed the nurse on his trial witness list and first discovered the victim's statement to the nurse when he interviewed her on the morning of the day he proposed to call her as a witness.
Superior Court Rule 98(C)(2) requires defendants to provide the State, prior to trial, "all statements of witnesses the defendant anticipates calling." Although the nurse's statement to defense counsel had not been reduced to writing, see Super. Ct. R. 98(C)(3) (defining "statement" for purposes of Rule 98), we assume, without deciding, that it was subject to discovery by the State, cf. State v. Zwicker, 151 N.H. 179, 192 (2004) (upholding trial court order that required defendant to provide summary of testimony he expected to elicit from two witnesses). Rule 98(H) places parties "under a continuing obligation to supplement their discovery responses on a timely basis as additional materials . . . are generated." This rule presupposes that parties will continue investigating after the initial discovery deadline and imposes no limitations on their right to do so; all it demands is that they disclose new materials subject to discovery on a "timely basis, " calculated from when the information was "generated." Although the trial court noted that "the Defense had an opportunity to talk to this witness before, " the State does not rely on, nor are we aware of, any authority requiring the defendant to interview a witness – particularly one who has already provided information to the State – at any point prior to the witness testifying. See State v. DeLong, 136 N.H. 707, 708-09 (1993) (allowing State to present witness discovered the night before trial and disclosed the following day after trial had begun). The State does not argue that the defendant failed to meet clear and reasonable deadlines without excuse. Cf. State v. Cromlish, 146 N.H. 277, 281 (2001) (upholding trial court's denial of defendant's motion for expert where defendant should have been aware of need months prior to request and offered no reason for delay). Thus, the issue is whether the defendant disclosed the information he learned to the State "on a timely basis." See Super. Ct. R. 98(H). The record shows that he did.
The State does not contest that the defendant first learned of the statement less than an hour before he disclosed it to the State. Under these circumstances, the trial court's apparent conclusion that the defendant should have disclosed it more promptly is clearly unreasonable. The trial court stated that "the disclosure, at this juncture, was prejudicial to the State . . . in light of the fact that [the victim] has already testified in this case and has been excused as a witness, [and] is not present in the court." However, the State did not suffer any prejudice from the time that elapsed between the defendant's discovery of the statement and his disclosure of it. Regardless of exactly when the defendant disclosed the statement that morning, as the trial court noted, the victim was not in court the day the defendant discovered the statement.
The State argues that the fact that it "was on the verge of resting" distinguishes this case from cases in which evidence discovered during trial has been admitted. Cf. DeLong, 136 N.H. at 708-09 (upholding admission of witness disclosed during trial). However, the State does not explain why this fact is significant. Regardless of whether the statement was offered for substantive purposes or for impeachment, the trial court could have mitigated any prejudice to the State by allowing it to recall the victim. Cf. State v. Smart, 136 N.H. 639, 668 (1993) (noting trial court has discretion to recall witness).
Nor can we agree with the State's position that the trial court's failure to allow the defendant to admit the statement was harmless error. To establish that an error was harmless, the State must prove beyond a reasonable doubt that the error did not affect the verdict. State v. Peters, 162 N.H. 30, 36 (2011). This standard applies to both the erroneous admission and exclusion of evidence. Id. An error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity, or weight, and if the evidence that was improperly excluded is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. Id. In making this determination, we consider the alternative evidence presented at trial as well as the character of the erroneously excluded evidence itself. Id.
In this case, the excluded evidence was not merely cumulative. The only direct evidence of the assault was the victim's testimony. However, a corrections officer testified that, in speaking with the victim shortly after the alleged assault, the victim said that he could not sit because he was too sore. The excluded testimony of the nurse would have been admissible both to impeach the testimony of the victim and the corrections officer and as substantive evidence that the victim did not have pain in his rectal area. See N.H. R. Ev. 803(4). The evidence to which the State points as being overwhelming – that the defendant acted strangely and that the victim was extremely uncomfortable testifying – is not sufficiently compelling to permit us to conclude beyond a reasonable doubt that exclusion of the nurse's testimony was harmless.
Reversed and remanded.
CONBOY, LYNN and BASSETT, JJ., ...