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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2005-694 THE STATE OF NEW HAMPSHIRE v. DONALD W. MORRILL a/k/a "SAM" W. MORRILL Argued: October 3, 2006 Opinion Issued: December 19, 2006 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the defendant. GALWAY, J. The defendant, Donald W. Morrill, appeals his conviction for aggravated felonious sexual assault, see RSA 632-A:2, III (1996), arguing that the Trial Court (Fauver, J.) erred by admitting hearsay evidence and by allowing the prosecutor to improperly comment upon his decision not to testify. We reverse and remand. The jury could have found the following facts. In 1998, the defendant's stepdaughter, N.N., reported to her biological father, L.N., that the defendant had sexually abused her. In late April 1998, L.N. reported N.N.'s disclosure to the authorities. The New Hampshire Division for Children, Youth and Families (DCYF) began investigating the allegations. Approximately one week after the

disclosure N.N. recanted, claiming that she had lied about the abuse because her father had convinced her to do so. Eventually, the case was closed without any prosecution. In June 1998, L.N. petitioned for custody of N.N., citing the investigation of the defendant as justification for granting him custody. L.N. obtained temporary custody, but within days custody was returned to N.N.'s mother. This custody dispute remained unresolved when L.N. died in October 1998. In December 2000, DCYF received, from N.N.'s mother, a second report that the defendant had abused N.N. DCYF attempted to interview N.N., but she was unresponsive. Without further meaningful contact between DCYF and N.N. or her mother, the case was closed in November 2001. In December 2001, N.N. made a third disclosure of abuse, this time to her guidance counselor. That disclosure was reported to the Strafford County Attorney's Office, which, in January 2002, conducted a videotaped interview of N.N. Following this interview, the defendant was indicted for sexually abusing N.N. In 2003, the defendant was convicted of aggravated felonious sexual assault. That conviction was reversed and remanded. See State v. Morrill, 151 N.H. 331 (2004). Upon remand, the defendant was again convicted of sexually abusing N.N. This appeal followed. On appeal, the defendant contends that the trial court erred by: (1) allowing the State to introduce inadmissible hearsay evidence; (2) violating his rights under the State and Federal Constitutions by admitting this hearsay; and (3) permitting the prosecutor to comment upon his decision not to testify. As to the first issue, after N.N.'s first disclosure was reported to the authorities, L.N. was interviewed by Sergeant Erin Commerford, formerly of the New Hampshire State Police. During that interview, it appeared to Sergeant Commerford that N.N. might have reported the abuse to her father some time before he contacted the authorities. Therefore, she asked him why he had delayed in reporting the abuse. He responded that he had been unsure about what to do and did not want to "get anyone in trouble." Because he died before the matter was brought to trial, the State sought to introduce, through Sergeant Commerford, L.N.'s statements regarding the timing of his report to the authorities. The defendant objected, arguing that the statements were inadmissible hearsay and, in addition, barred by Crawford v. Washington, 541 U.S. 36 (2004). The State countered that the statements were admissible because they fell within an exception to the rule against hearsay, and, even if they did not, the defendant had "opened the door" to their admission. The trial court ruled

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that the statements were not hearsay because they were not offered for their truth. Additionally, the trial court ruled that the defendant had opened the door to the statements and that the statements were not barred by Crawford. On appeal, the State conceded at oral argument that the statements were offered for their truth, and does not contend that they fall within an exception to the hearsay rule. Accordingly, we conclude that L.N.'s statements to Sergeant Commerford were hearsay and, thus, inadmissible under the rules of evidence. See State v. Bennett, 144 N.H. 13, 19 (1999) (noting that narratives of past state of mind or belief are incompetent hearsay). Having concluded that the statements were inadmissible hearsay, we must determine whether the trial court properly admitted them under the "opening the door" theory. We note that the term "opening the door" is conclusory. State v. Rogan, 151 N.H. 629, 631 (2005). At one time the phrase referred to the doctrine of "curative admissibility." Id. Under that doctrine, a trial judge has discretion to admit otherwise inadmissible evidence in order to rebut prejudicial evidence that has already been erroneously admitted. State v. Benoit, 126 N.H. 6, 20 (1985). The doctrine applied "only when inadmissible evidence has been allowed, when that evidence was prejudicial, and when the proffered testimony would counter that prejudice." Id. We have, however, expanded the meaning of the phrase "opening the door" beyond the doctrine of "curative admissibility." Id. "Opening the door" is now more broadly applied to situations in which one party has created a misleading advantage, and the opponent is then permitted to use previously suppressed or otherwise inadmissible evidence to directly counter the misleading advantage. State v. Carlson, 146 N.H. 52, 56 (2001); see also Gilligan & Imwinkelried, Bringing the "Opening the Door" Theory to a Close: The Tendency to Overlook the Specific Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev. 807 (2001). This doctrine, sometimes known as the doctrine of "specific contradiction," applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent's introduction of evidence that may not otherwise be admissible. Rogan, 151 N.H. at 631. The initial evidence must have reasonably created a misimpression or misled the fact-finder in some way. Id. The rule thus prevents a party from successfully excluding evidence favorable to his opponent and then selectively introducing this evidence for his own advantage, without allowing the opponent to place the evidence in proper context. Carlson, 146 N.H. at 56. The fact that the "door has been opened," however, does not, by itself, permit all evidence to pass through. State v. Trempe, 140 N.H. 95, 99 (1995). The doctrine is intended to prevent prejudice and is not to be subverted into a rule for injection of prejudice. Id.

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We acknowledge that our prior decisions have, to some degree, blurred the distinction between the two doctrines described above. See Estabrook, Opening the Door: New Hampshire's Treatment of Trial Court Rebuttal Evidence, 46 N.H.B.J. 30 (2005). To prevent confusion that might arise from the use of the term, when a party uses the term "opening the door" or its equivalent as justifying the admission of otherwise inadmissible evidence, the party should make clear which of the above doctrines is being invoked. This is so because the two doctrines are invoked by different types of evidence

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