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.
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).
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).
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
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.
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.
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
"[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).
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.
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."
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).
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.
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.
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 ...