Argued January 16, 2014
[Copyrighted Material Omitted]
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Joseph A. Foster, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
LYNN, J. DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.
Following a jury trial in Superior Court ( Smukler, J.), the defendant, Theadore Mitchell, was convicted of one count of aggravated felonious sexual assault, RSA 632-A:2, I(m) (2007), and two class A misdemeanor counts of violation of a protective order, RSA 173-B:9, III (2002). He appeals, arguing that the trial court erred by excluding evidence that he offered to take a polygraph test. The defendant also argues that the trial court plainly erred when it allocated his pretrial confinement credit. We affirm in part, vacate in part, and remand for resentencing.
The record establishes the following facts. In the early morning of May 2, 2012, officers arrested the defendant pursuant to a warrant and transported him to the Northfield Police Station. Officer Aaron Chapple brought the defendant into a booking room and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant waived his rights and agreed to speak with Chapple. Chapple began a recorded interview and informed the defendant that he was being charged with aggravated felonious sexual assault and simple assault. Several times throughout the interview the defendant denied any sexual contact with the victim. Chapple observed that the defendant got " a little bit more defensive" when specifically questioned about having sex with the victim.
During the interview, the defendant asked, " [C]an't you take a lie detector test
for this stuff?" Chapple replied, " [W]e don't do lie detectors on -- you know, on everything." Later in the interview, the defendant stated, " I'll take a lie detector. I can take a polygraph. I'll do whatever you guys tell me to." Chapple did not acknowledge this offer. Toward the end of the interview, the defendant again stated, " I could take a lie detector test. I'll pass that sucker. I'm not a good liar." Chapple again did not acknowledge the offer. In addition to the above offers to take a polygraph, the defendant made other statements adamantly denying, throughout the interview, that he and the victim had sex.
Before trial, the State moved to exclude the portions of the defendant's recorded interview in which he offered to take a polygraph test. Defense counsel objected, arguing that the defendant's willingness to take a polygraph should be admitted as evidence. Defense counsel analogized the defendant's statements to the statement, " I'll swear on a stack of Bibles," arguing that they provided context of the degree to which the defendant asserted his innocence. Defense counsel specifically argued that the defendant's offers should be admitted under the doctrine of completeness because the State would gain a misleading advantage if it were allowed to admit only part of the recorded interview. Additionally, ...