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State v. Martin

Supreme Court of New Hampshire

July 6, 2017

State of New Hampshire
v.
Ronald Martin,

         The defendant, Ronald Martin, appeals his conviction, following a jury trial in Superior Court (Nicolosi, J.), on charges of felonious sexual assault, see RSA 632-A:3 (2016), and aggravated felonious sexual assault, see RSA 632-A:2 (2016). He contends that the trial court erred by: (1) denying his motion to depose the victim; and (2) admitting evidence of the victim's prior consistent statement to rehabilitate her credibility. We affirm.

         We first address whether the trial court erred in denying the defendant's motion to depose the victim. We evaluate the trial court's denial of the motion under the unsustainable exercise of discretion standard. State v. Oakes, 161 N.H. 270, 277 (2010). To prevail, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. In making this determination, we look only to the evidence the trial court had before it. State v. Rhoades, 139 N.H. 432, 434 (1995).

         The basic object of the discovery process in criminal proceedings is to permit the defendant a decent opportunity to prepare in advance of trial and avoid surprise, thus extending to him the fundamental fairness that the adversary system aims to provide. State v. Adams, 133 N.H. 818, 825 (1991). Pursuant to RSA 517:13, II (2007), the trial court has the discretion to allow a criminal defendant to depose a witness when the defendant shows "by a preponderance of the evidence that such deposition is necessary . . . [t]o ensure a fair trial, avoid surprise or for other good cause shown, " RSA 517:13, II(b).

         The necessity of a deposition is determined on a case-by-case basis and depends upon the complexity of the issues at trial, the other avenues for the defendant to acquire the same information, or other special circumstances. State v. Sargent, 148 N.H. 571, 575 (2002); RSA 517:13, II(b). To succeed on a motion to depose, the defendant must make a threshold showing of necessity given the particular facts and circumstances of his case. State v. Ellsworth, 142 N.H. 710, 715 (1998). A defendant does not have an unqualified due process right to compel depositions in a criminal case. State v. Fernandez, 152 N.H. 233, 236 (2005).

         In this case, a detective interviewed the victim for approximately five and a half hours, while a prosecutor observed and took detailed notes. Because the detective mistakenly believed that the interview was being recorded, she did not take notes. Within a few hours after the interview, the detective, relying upon her memory and the prosecutor's detailed notes, prepared a seven-page, single-spaced report of the interview. The report contained numerous details of each assault, such as the precise location, the victim's clothing, the surrounding circumstances, and the defendant's actions. The detective testified that, shortly before trial, she reviewed the report with the victim to confirm the information and that, at that time, the victim disclosed additional details. The defendant received numerous discovery documents, including the detective's seven-page report and the prosecutor's notes of the interview.

         The trial court found that the defendant failed to show a necessity to depose the victim. It determined that the discovery documents contained "information Defendant may use to impeach [the victim], " which was "adequate for him to have a fair trial and avoid surprise." See Adams, 133 N.H. at 825.

         The defendant "does not contend that a defendant is always entitled to a deposition in the absence of a verbatim transcript of a witness's statement." Instead, he argues that this case differs from others in which the defendant received a report of an interview, rather than a verbatim transcript or statement, because, here, the detective believed that the interview was being recorded and, thus, "did not take the kind of careful notes she would have taken had she anticipated depending on those notes" when writing her report. He contends that this undermined the report's "value as an impeachment tool" because it "enabled both [the detective] and [the victim] to disparage the report as not a comprehensive and accurate summary of [the victim's] statements during the interview." He argues that this allowed the victim to "disavow the contents of the report as to particular details, without harming her own credibility by pitting it against that of the [detective]." The defendant points to the detective's testimony that the report might not include everything the victim said during the interview. He further emphasizes that the State mentioned this in its closing.

         However, "[a]lthough a criminal defendant has a fundamental right to cross-examine prosecution witnesses, that right is not unfettered." State v. McGill, 153 N.H. 813, 817 (2006); see State v. Brum, 155 N.H. 408, 416-17 (2007) (upholding restriction on cross-examination of victim when threshold inquiry allowed); cf. State v. Ata, 158 N.H. 406, 410 (2009) (finding witness available for purpose of admitting prior statement even though defendant unable to cross-examine witness as he wished due to witness's lack of memory).

         In this case, the defendant's counsel cross-examined the victim regarding the details of each assault, noting where her testimony differed from, or was not reflected in, the detective's report. Although at times the victim questioned whether the report was accurate or complete, at other times she agreed that her testimony differed from what she told the detective and affirmed her trial testimony as correct. Although the defendant may not have been able to cross-examine the victim exactly as he wished, we conclude that the trial court reasonably found that the defendant failed to show that a deposition of the victim was necessary. See Oakes, 161 N.H. at 277; cf. Ata, 158 N.H. at 410.

         We next address whether the trial court erred by admitting evidence of a prior consistent statement by the victim to rehabilitate the victim's credibility. In this case, the defense counsel cross-examined the victim extensively regarding inconsistent details in her accounts of the assaults. That the purport of this cross-examination was to persuade the jury that she had fabricated the charged acts was apparent from the defendant's closing argument, in which his counsel told the jury that the defendant did not commit the charged acts and that the victim's story kept changing because "she can't remember her own lies."

         In response to this cross-examination, the trial court allowed the victim's former husband to testify to her prior consistent statements. He testified that she had told him "many times" that the defendant had sexually abused her. The former husband further testified that mentioning the abuse upset the victim and that she did not tell him anything specific about it. The trial court admitted this testimony because it was a logically relevant response to the defendant's inference that she fabricated the detailed account of the abuse that she gave to the detective and because it illustrated her difficulty in speaking about the abuse. See State v. White, 159 N.H. 76, 80 (2009).

         Our common law rule allows the admission of prior consistent statements for the limited purpose of rehabilitation when a witness's credibility has been impeached by the use of prior inconsistent statements. Id. at 79. Although many cases applying this rule involve prior consistent statements that were part of the same interview or conversation as the inconsistent statements used for impeachment, the doctrine requires only that the prior consistent statement be introduced as an appropriate, narrowly tailored, and logically relevant response to a specific attack on the witness's credibility. Id. at 80. Prior consistent statements admitted pursuant to this rule may not be used substantively, and a defendant is entitled to a limiting instruction to prevent unfair prejudice. Id. at 79. Because certain factors, such as the passage of time or intervening events, could make a prior consistent statement less probative as to credibility and more prejudicial to the defendant, this rule should be used with caution. Id. at 81.

         The admissibility of prior consistent statements for rehabilitative purposes is a matter wholly within the discretion of the trial court, which we will not overturn absent an unsustainable exercise of discretion. Id. at 79.

         The defendant argues that he "did not confront [the victim] with any prior statement in which . . . she had altogether denied any sexual abuse, and so [the former husband's] testimony about a generic accusation did not contradict any other statement . . . attributed to [her]." However, pursuant to the common law, a trial court has the discretion to admit a prior consistent statement "to dispel [an] inference [of fabrication] created on cross-examination." Id. at 80; cf. State v.Fischer, 143 N.H. 311, 314 (1999) (stating State could not use victim's prior consistent statement to rebut another ...


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