The defendant, Christine Tumulty, appeals her conviction, following a jury trial in Superior Court (Wageling, J.), on ten counts of second degree assault. See RSA 631:2 (Supp. 2015). She contends that the trial court erred by excluding testimony that the victim's father, with whom she was accused of acting in concert, had threatened her only witness prior to the witness's first interview at the Child Advocacy Center (CAC). We reverse and remand.
We will not reverse the trial court's decision regarding 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 was unsustainable, the defendant must show that the decision was clearly unreasonable to the prejudice of her case. Id.
Superior Court Criminal Rule 98(D)(2) requires a defendant to provide the State, prior to trial, with all statements of witnesses that the defendant plans to call. Rule 98(I) imposes "a continuing obligation to supplement . . . discovery responses on a timely basis . . . as a party learns that discovery previously provided is incomplete, inaccurate or misleading."
Under the particular circumstances of this case, we conclude that the defendant did not violate her discovery obligation because she informed the trial court and the State of the threat as soon as defense counsel learned of it. The witness was eleven years old at the time of the trial. She had been interviewed twice by the CAC and had given inconsistent statements, neither of which described a "tug-of-war" over the victim between the defendant and the father, which might have accounted for the victim's injuries. At trial, the witness testified that she had been present during this "tug-of-war" and described it in detail. She also testified to the defendant's care of the victim and to the father's other mistreatment of the victim.
The State cross-examined the witness regarding her prior inconsistent statements to the CAC. The defendant's counsel then made an offer of proof that he had just learned from the defendant that the witness had been threatened by the father prior to her first interview by the CAC. The record does not reflect when or how the defendant acquired this information. The trial court excluded this testimony, apparently on the grounds that the defendant had not disclosed it during discovery. Although the trial court did not clearly articulate its reasons for excluding the testimony, we infer that it accepted the State's argument that the defendant should have interviewed the witness, before trial, and presumably would have learned of the alleged threat.
We assume, without deciding, that the proffered testimony regarding the threat constituted a statement subject to Rule 98. However, defense counsel stated that he learned of the threat only minutes prior to informing the State and the trial court. The State does not argue that the defense possessed this information at an earlier time. Instead, it argues that the defendant "failed to make a good faith effort . . . because she had the ability to learn this information from [the witness] well in advance of trial."
However, defense counsel stated that he intentionally did not interview the witness to avoid any appearance that he had influenced her testimony. Given the legislature's objective of limiting the number of times a young witness may be subject to cross-examination, see RSA 517:13, V (2007) (prohibiting discovery depositions in criminal matters of witnesses under age 16); RSA 517:13-a (2007) (authorizing in criminal matters videotaped testimony of witnesses under age 16); State v. Heath, 129 N.H. 102, 108 (1986) (discussing legislative objectives in enacting RSA 517:13 and RSA 517:13-a), the fact that the witness had been interviewed twice by the CAC, and her young age, we cannot say that the defendant's decision not to subject her to a third interview prior to trial was unreasonable. Cf. State v. Reader, 160 N.H. 664, 669 (2010) (sanctioning defendant for failing to make good faith effort to comply with discovery order and Rule 98); State v. Cromlish, 146 N.H. 277, 281 (2001) (sanctioning defendant for unexcused failure to disclose expert whose necessity defendant should have been aware of months prior to deadline). Therefore, we conclude that the trial court's implicit finding that the defendant failed to supplement her discovery responses on a timely basis was unreasonable. See Brooks, 164 N.H. at 287.
We note that the trial court could have ameliorated the impact of this disclosure upon the State by allowing it to interview the witness or by continuing the trial. Because we conclude that the defendant did not violate her discovery obligation, we need not address whether the trial court's sanction was warranted. Cf. Reader, 160 N.H. at 667 (identifying factors to consider in determining whether evidence should be excluded for violation of discovery rules).
We conclude that the defendant was prejudiced by the exclusion of this evidence because it precluded her from rehabilitating her only witness, who was also the only witness to the "tug-of-war." A police officer testified to the defendant's various accounts of the "tug-of-war." He described the defendant as saying that the father was holding the victim and she grabbed the victim's legs and "yanked" them for about five minutes "with everything [she] had." However, the witness's testimony gave a different character to the defendant's participation in the "tug-of-war." The witness testified that the defendant tried to get the victim away from the father, who was angry, to comfort the victim and that the father "started to yank [the victim] away from" the defendant. Furthermore, the witness described the defendant's actions in caring for the victim and the father's mistreatment of the victim on other occasions. This testimony was critical to the defense's argument regarding the father's mistreatment of the victim.
The State's cross-examination of the witness regarding her prior inconsistent statements created the impression that the witness had fabricated her testimony to benefit the defendant. Explaining those statements as having been the result of a threat could have rehabilitated the witness. Accordingly, we conclude that the defense was prejudiced by the exclusion of this evidence. See Brooks, 164 N.H. at 287. In light of this conclusion, we need not address whether the State's cross-examination of the witness opened the door to this evidence.
We next address the State's argument that the exclusion of the testimony regarding the threat can be sustained on alternative grounds "because the probative value was substantially outweighed by the danger of confusing the issues, misleading the jury, and creating a trial within a trial." See N.H. R. Ev. 403; State v. Mitchell, 166 N.H. 288, 294 (2014) (stating trial court has discretion to exclude evidence pursuant to Rule 403). When a discretionary decision is at issue and the trial court has not exercised that discretion, we may sustain the trial court's ruling on a ground upon which it did not rely only if there is only one way the trial court could have ruled as a matter of law. State v. Hayward, 166 N.H. 575, 583 (2014).
In this case, we cannot say, as a matter of law, that the trial court would have excluded the testimony pursuant to Rule 403. The State had cross-examined the witness in detail regarding inconsistencies between her CAC interviews and her testimony, thereby creating the impression that her testimony regarding the defendant's participation in the "tug-of-war" and the father's treatment of the victim was fabricated. The trial court noted that the witness's testimony that she had been threatened prior to making her inconsistent statements was "critical evidence from the Defense." Thus, its probative value was high.
The State argues that admitting the witness's testimony regarding the threat would have required it "to bring in additional witnesses and evidence to refute her allegation." However, it does not identify what witnesses or evidence would have been required. Although it contends that it would have needed "to show that the defendant had fought tirelessly to keep [the father] in the home, " it is not clear how this would have rebutted the witness's testimony that she had been threatened by him. The State also argues that its rebuttal evidence would have distracted the jury by "focus[ing] almost entirely on that aspect of the case" at the end of the trial. However, it does not explain why extensive rebuttal evidence would have been necessary.
Accordingly, we cannot say, as a matter of law, that the trial court would have ruled that the probative value of the witness's testimony that she had been threatened was substantially outweighed by "the danger of confusing the issues, misleading the jury, and creating a trial within a trial." Therefore, the trial court's ...