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State v. Cooper

Supreme Court of New Hampshire

December 12, 2019

State of New Hampshire
v.
Mark Cooper

         The defendant, Mark Cooper, appeals his conviction for aggravated felonious sexual assault (AFSA). See RSA 632-A:2, II (2016). He argues that the Trial Court (Bornstein, J.) erred in: (1) limiting cross-examination of the victim; and (2) denying the defendant's motion to suppress. We affirm.

         In November 2015, the principal at the victim's high school became aware that the victim was having "a very rough day at school." He asked the school social worker to speak to the victim. During the ensuing meeting, the victim disclosed to the social worker that the defendant had touched him several years earlier when the defendant was babysitting him. The victim's disclosure was reported to the police. Following an investigation, including an interview of the defendant conducted by the State Police, the defendant was charged with AFSA and attempted AFSA. At trial, a recording of the second half of the interview was played for the jury. After the State rested, the trial court found that insufficient evidence had been presented to support conviction on the attempted AFSA charge and dismissed it. Following his conviction on the remaining AFSA charge, the defendant filed this appeal.

         The defendant first argues that the trial court erred in limiting his cross-examination of the victim. The decision to admit or exclude evidence is within the discretion of the trial court. State v. Palermo, 168 N.H. 387, 391 (2015). To establish an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

         Prior to trial, the State filed a motion to preclude cross-examination of the victim about a 2015 delinquency proceeding. Defense counsel filed a motion seeking to admit evidence of the same proceeding. The transcript of the hearing on these motions indicates that the victim in this case was charged in the delinquency proceeding with the sexual assault of a younger child. The allegation was made in late summer of 2015 and the charges were resolved, either through acquittal or dismissal, in early October 2015.

          The defendant argues that the trial court erred in focusing only on the October 2015 resolution of the delinquency charges. He contends that the proffered evidence was "relevant to an assessment of the victim's motive to claim the role of the victim, regardless of [his] guilt of the delinquency charge." He asserts that, although the charge had been resolved, some members of the community knew that the victim in this case had been accused of committing sexual assault; accordingly, the victim would have been motivated "to distract and re-direct community disapproval by presenting himself as the victim of sexual molestation."

         The record indicates that the victim did not disclose the defendant's earlier assault until he was asked by the social worker whether something had occurred to prompt his unsettled behavior in November 2015. Moreover, the only specific evidence proffered by the defendant that the victim was suffering harassment as a result of the 2015 juvenile proceeding was that he had been accosted in August 2016 by the younger child's grandfather, nine months after his disclosure to the social worker.

         We need not determine whether the trial court erred in excluding this evidence, because we agree with the State that even if there were error, it was harmless. See State v. Page, 172 N.H. 346, 56 (2019). To establish that an error was harmless, the State must prove beyond a reasonable doubt that the error did not affect the verdict. Id. 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. at 57. In making this determination, we consider the alternative evidence presented at trial as well as the character of the erroneously excluded evidence itself. Id.

         The defendant argues that the excluded evidence would have established that the victim had a motive to lie. However, the State presented evidence from the victim, who described the assault, and from the interview of the defendant by the State Police, in which he admitted the same conduct as described by the victim but argued that he never intended to assault the victim. Given this evidence, we conclude that the State has established beyond a reasonable doubt that the error, if any, did not affect the verdict on the AFSA charge.

         The defendant also argues that the trial court erred in denying his motion to suppress the statements he made during his interview with the police, which he contends were involuntary. On November 21, 2017, two business days before trial was scheduled to begin, defense counsel filed a motion to suppress, arguing that he had just become aware of a viable involuntariness claim after reviewing the transcript of the interview. The trial court ruled that the motion was untimely and denied it.

          We review the trial court's decision to deny a motion to suppress as untimely to determine whether its exercise of discretion is sustainable. State v. Knight, 161 N.H. 338, 341 (2011). While the trial court may exercise its discretion to consider an untimely motion to suppress on the merits, "defendants are not entitled to assume that a judge will exercise discretion to entertain such a motion at the eleventh hour." Id. We have recognized the importance of scheduling deadlines, both to manage the pending case and "to retain the credibility of these deadlines in future cases." Id. (quotation and citation omitted).

         The trial court held a hearing on the motion to suppress on the day that trial was to begin, November 27, 2017. The jury had been selected approximately two weeks earlier and witnesses were present for trial. In support of his motion to suppress, defense counsel proffered: "I think this is, unfortunately, although inconvenient, a better way to proceed at this point, to continue the trial, have a hearing, and then come back on a later date and try the case with the evidence however the court sees fit."

         The trial court conducted a detailed review of the procedural history of the case, noting that the defendant was initially indicted in September 2016 and arraigned in October 2016. The case had already been continued four times at the defendant's request; the third request was based on the withdrawal of the defendant's previous counsel and the appointment of successor counsel. Recordings of the defendant's interview had been provided to both the defendant's previous and successor counsel; in September 2017, defense counsel filed a motion for services to obtain a transcript of the statement. Court records indicated that the transcript was completed on October 23, 2017. A final pretrial was held on November 6; the court found that the parties represented at that hearing that there were no pending motions. The jury was then selected on November 9.

         In denying the motion to suppress as untimely, the trial court observed that defense counsel had received the recorded interview four months earlier; previous counsel had received it twelve months earlier. The court found that to continue the case again would require the additional expenditure of judicial and jury resources and create a delay of at least another two months for scheduling on the trial calendar. The court also observed that one witness had travelled from Maine and another from Vermont and that the juvenile victim had missed another day of school to testify at trial. Finally, the court ruled that the defendant could challenge the voluntariness of his statements at trial and that the court would give the standard jury instruction governing the voluntariness of the defendant's statement to the police.

         Given the record before us, including the trial court's detailed review of the procedural history of the case, we conclude that its denial of the ...


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