Preview:

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 ___________________________ Hillsborough-northern judicial district No. 2006-456 THE STATE OF NEW HAMPSHIRE v. STEPHEN DESCHENES Argued: June 14, 2007 Opinion Issued: August 24, 2007 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. BRODERICK, C.J. The defendant, Stephen Deschenes, appeals his convictions, after a jury trial, for aggravated felonious sexual assault, see RSA 632-A:2, I (2007), arguing that the superior court unsustainably exercised its discretion by: (1) allowing the State to impeach his credibility as a witness with three prior convictions for assault and battery, including one in which the victim was female; (2) allowing the State to offer extrinsic evidence to impeach his credibility; and (3) refusing to instruct the jury to weigh, with "great caution and care," the testimony of a police officer concerning an unrecorded postarrest interrogation of the defendant. We affirm.

I The jury could have found the following facts. At around midnight on June 7, 2003, the victim went to a bar on Lake Avenue in Manchester. She left at about 1:30 a.m. Just outside the bar, the defendant attracted the victim's attention and invited her to his apartment for a beer. She accepted. The victim and the defendant walked to the building where the defendant resided and went upstairs to his one-room apartment. He went in first and turned the stereo on "pretty loud." When the victim entered the apartment, she sat down on the defendant's bed, the only available piece of furniture. After the victim sat down, the defendant walked over to a nightstand. He then turned to face her, while holding a knife. He put the knife about six inches from the victim's throat, and told her to take off her clothes. She did so, and the defendant followed suit. Once both the victim and the defendant were undressed, the defendant held the victim's head down and forced her to perform oral sex. He then had intercourse with her while he held her hands down. At trial, the defendant characterized his encounter with the victim differently. In particular, he claimed that the victim agreed to have sex with him in exchange for drugs, and that after they had sex, she began yelling at him and threatening him when he failed to provide the promised drugs. Fifteen or twenty minutes after the defendant had intercourse with the victim, he told her she was free to go. At that point, both the victim and the defendant put their clothes back on and left the building through a back door. When she reached the street, the victim began running in the direction of her home. On her way, she encountered several Manchester police officers and told them she had just been raped. In late July, the defendant was interviewed by Manchester Police Detective Richard Brennan (Detective Brennan). During the interview, Detective Brennan asked whether he had ever been arrested. The defendant admitted that he had been arrested, but did not offer that he had also been convicted nine times. The defendant was arrested in August for the alleged rape and interrogated by Manchester Police Officer Dan Brennan (Officer Brennan). Officer Brennan did not record the interrogation on either audiotape or videotape. Subsequently, the defendant was indicted on several counts of aggravated felonious sexual assault.

2

Before trial, the State filed a motion in limine seeking to admit the defendant's prior convictions solely for the purpose of impeaching his credibility in the event he testified. The Trial Court (Abramson, J.) granted the motion in part, allowing the State to use seven of the nine convictions it sought to introduce, including the three at issue in this appeal: (1) a February 1994 felony conviction for assault and battery on a female household member; (2) an April 1994 felony conviction for assault and battery; and (3) a November 1994 felony conviction for assault and battery. The trial court also allowed, for impeachment purposes only, the admission of: (1) a July 2000 misdemeanor conviction for disobeying a police officer; (2) a July 2002 conviction for giving a false name to a police officer; (3) an August 1996 felony conviction for receiving stolen property, a crime the trial court deemed to involve dishonesty; and (4) a May 1996 felony conviction for unarmed robbery, a crime the trial court considered sufficiently different from the charged offenses in this case so as not to create undue prejudice. The two convictions the trial court excluded were a 1996 conviction for armed robbery, which it deemed too prejudicial in a trial on allegations that involved the use of a weapon to threaten the victim, and a 1993 conviction for assault and battery, which the trial court excluded for being more than ten years old. In response to the defendant's motion for clarification and/or reconsideration, the trial court ruled that "the State is precluded from referencing that the defendant's prior conviction for assault and battery of a female household member, date of conviction being February 18, 1994 . . . involved `a female household member.'" At trial, the defendant elected to testify. During a conference in chambers, counsel for the State asked for permission to inquire about the February 1994 assault and battery conviction in the following way: "Mr. Deschenes, were you convicted of assault and battery in that you did assault and beat Michelle Fontaine?" Defense counsel objected, arguing that the proposed question would "bring[ ] into evidence half of the prejudicial information that is cited in [the trial court's] ruling, which is that he assaulted a female." In response, the Trial Judge (Barry, J.) ruled: [T]he State can use the prior conviction. You can use the essence or the body of what's in the complaint on each one with the limitation that you cannot use the words "a household member" with regard to the complaint or indictment that Judge Abramson has previously ruled on, and you cannot go into the underlying facts beyond that nor ask about the sentences imposed in any instance. On direct examination, the defendant testified that he was convicted of assault and battery three times in 1994. On cross-examination, he answered in the

3

affirmative when asked whether he "assault[ed] and beat Michelle Fontaine" in February 1994. When the defendant's testimony concluded, the trial judge instructed the jurors that they could consider the defendant's convictions "only with regard to [his] credibility . . . that is, in deciding whether or not [they] believe[d] him and for no other purpose whatsoever." The trial judge gave another more detailed limiting instruction before the jury retired to deliberate. Also on cross-examination, the State asked the defendant about the interview Detective Brennan had conducted with him the month before his arrest. Specifically, the defendant was asked whether Detective Brennan asked him about his criminal history and whether he told Detective Brennan about his prior convictions. After the defendant said that the detective "may have" asked him about his criminal history but that he did not remember, counsel for the State gave the defendant a document, without objection, to refresh his recollection. Thereafter, the defendant repeated his testimony that Detective Brennan "may have" asked him about his criminal history. Then, when asked, one by one, whether he had told the detective about his prior seven convictions, the defendant gave answers such as "I may and I may not have." Subsequently, the State called Detective Brennan. He testified that he asked the defendant "if he had ever been arrested before" and that the defendant "stated yes, he had been" but did not disclose any of the seven convictions admitted into evidence. Detective Brennan did not testify that he asked the defendant whether he had ever been convicted of a crime. Based upon Detective Brennan's rebuttal testimony, the State contended, during its closing argument, that the defendant lied about his criminal record in his interview with Detective Brennan. Finally, after the close of the evidence, the defendant requested the following jury instruction: The State has offered into evidence statements allegedly made by the defendant to the police. These statements were made at the Manchester police station during an interrogation conducted while the defendant was in the custody of the Manchester Police Department. The statements were not recorded. Because of the absence of a recording of these statements, you should weigh the statement's usefulness with great caution and care. As well, the failure of the police to tape record the interrogation may be considered by you in evaluating the testimony and credibility of the officer as to what the defendant actually said. The trial judge denied the defendant's request.

4

After the defendant was convicted, he filed a motion for a new trial, arguing that the admission of the three 1994 assault and battery convictions was unfairly prejudicial because those convictions, like his current prosecution, involved crimes of violence, and that the trial judge's ruling on a similar issue in a different case entitled him to a new trial. The trial judge denied the motion. This appeal followed. II The defendant first argues that the trial court unsustainably exercised its discretion by allowing the State to impeach his credibility with evidence of his three 1994 assault and battery convictions. More specifically, he contends that: (1) the 1994 convictions were not especially probative because the State could have "fully accomplish[ed]" the intended impeachment of his credibility with the four other convictions that were admitted; (2) admitting evidence of convictions for assault and battery was unfairly prejudicial in a prosecution for crimes involving the use of force; and (3) admitting evidence that one of the 1994 convictions involved a female victim was especially prejudicial because the victim in this case was also a woman. We disagree. We review a trial court's ruling to admit evidence of prior convictions under an unsustainable exercise of discretion standard. State v. McGill, 153 N.H. 813, 815 (2006). To show an unsustainable exercise of discretion, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. The defendant's 1994 convictions were admitted pursuant to New Hampshire Rule of Evidence 609 which provides, in pertinent part: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he or she was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. N.H. R. Ev. 609(a). In the context of New Hampshire Rule of Evidence 403, we have explained that [f]actors to consider in balancing a conviction's probative value against its prejudicial effect include the impeachment value of the prior conviction, the date of the conviction and the witness's

5

subsequent history, the degree of similarity between the past crime and any conduct of the witness currently at issue, the importance of the witness's testimony, and the centrality of the credibility issue. Zola v. Kelley, 149 N.H. 648, 655 (2003). While we use similar factors when conducting the balancing tests established by Rules 403 and 609(a), those two tests strike different balances, and the Rule 609(a) test is the more exclusionary. See id. at 653. "Prior convictions are admissible to impeach a defendant even if the crimes do not directly involve a lack of veracity." State v. Demeritt, 148 N.H. 435, 442 (2002) (quotation and brackets omitted). This is "because the jury should be informed what sort of person is asking them to take his word," and "[l]ack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey." Id. (quotation omitted; emphasis added). Again in the Rule 403 context, [e]vidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Zola, 149 N.H. at 655 (quotation omitted). Finally, because evidence of a prior crime is inherently prejudicial to the defendant, State v. Skidmore, 138 N.H. 201, 202 (1993), a trial court must provide a limiting instruction when evidence of prior convictions is introduced to impeach a defendant's credibility, State v. Cassell, 140 N.H. 317, 318 (1995). In its pre-trial order on the State's motion in limine, the trial court cited Demeritt, 148 N.H. at 442, for the proposition that "[l]ack of trustworthiness may be evinced by [a witness's] abiding and repeated contempt for laws which he is legally and morally bound to obey." Based upon that understanding of probative value, the trial court reasoned that because none of the 1994 convictions "involve[d] a sexual assault of the victim," they were sufficiently different from the defendant's current charges to diminish their prejudicial effect and make them admissible under the balancing test of New Hampshire Rule of Evidence 403. We note that while the trial court referred to the Rule 403 balancing test, its initial reference to that test makes clear that its reference to Rule 403 was akin to a scrivener's error; what it describes as the Rule 403 balancing test in its order is, in actuality, the more exclusionary Rule 609(a) balancing test. See Zola, 149 N.H. at 653. Accordingly, we, like both parties, will treat the trial court's order as having applied the correct balancing test

Download 2006-456, STATE OF NH v. STEPHEN DESCHENES.pdf

New Hampshire Law