___________________________

Strafford

No. 96-787

THE STATE OF NEW HAMPSHIRE

v.

DAVID FISCHER

February 3, 1999

Philip T. McLaughlin, attorney general (Mark D. Attorri, senior assistant attorney general, on the brief and orally), for the State.

Donald E. Bisson, assistant appellate defender, of Concord, by brief and orally, for the defendant.

JOHNSON, J. The defendant, David Fischer, was convicted of attempted first degree assault, see RSA 629:1 (1996); RSA 631:1 (1996), and witness tampering, see RSA 641:5 (1996). On appeal, he argues that the Superior Court (Mohl, J.) erred in: (1) admitting a prior consistent statement of the victim to bolster the victim's credibility; (2) issuing a "false exculpatory evidence" instruction to the jury; and (3) refusing to strike an allegedly improper statement made by the State during its closing argument and failing to issue a curative instruction. We affirm.

The following facts were adduced at trial. The defendant and the victim began dating in August 1995 and were living together by the late fall. In February 1996, the victim moved her belongings to a new apartment without the defendant's knowledge in an attempt to terminate their relationship. Over the course of the following month, the defendant attempted numerous times to convince her to continue their relationship.

On March 10, 1996, the defendant approached the victim in the parking lot of her workplace as she arrived for work. She testified that the defendant blocked her from exiting her car, telling her that "we need to talk." She testified that the defendant then restrained her in her car, began to choke her, and told her that he was going to kill her. The victim testified that she was eventually able to free herself by kicking the defendant in the face. As she was running through the parking lot, the defendant shouted to her that he would kill her if she notified the police. She ran into her workplace and called the local police department. While at work, she completed a written police statement. The defendant was arrested later that day and was subsequently charged with attempted first degree assault for choking the victim and witness tampering for his threat to kill her if she called the police.

The defendant and the victim, however, continued to communicate during the months following the March 10th incident. She visited the defendant in the Strafford County House of Corrections on multiple occasions, and the defendant sent her a number of letters. She testified that during her visits, the defendant asked her to "change the story so that he didn't look as guilty." In a letter dated May 30, 1996, the defendant wrote to her that "I . . . went over your statements. They are very damaging. I hope that you will be able to lessen . . . their impact with your personal appearance in court." In a subsequent letter, the defendant urged her to be careful as to what she said to an assistant county attorney regarding the incident. She testified that on one visit to the house of corrections, the defendant handed her a "script" detailing his planned testimony at trial. He later called her and told her that he wanted her trial testimony to match his planned testimony. Notably, the version of the events in the "script" varied from the victim's original statement to the police in several ways that minimized the defendant's culpability. The scripted version of the March 10th incident stated that the defendant grabbed the victim by the "clavicle," not the neck, and contained no reference to the assertion that the defendant threatened to kill her if she called the police. Shortly before trial, the victim turned the letters and "script" over to the State, and these documents were entered into evidence at trial. The defendant's trial testimony essentially followed the "script" given to the victim. The defendant, however, denied that the "script" was intended to influence her, but rather contended that it was one of many "essays" written in prison that he later shared with her. The defendant was convicted of both charges, and this appeal followed.

The defendant contends that the trial court erred in admitting, as a prior consistent statement, the victim's written statement given to police on the day of the assault. We have held:

While hearsay statements are generally inadmissible, we have long recognized the common law rule that a prior consistent statement is admissible for the nonsubstantive use of rehabilitating a witness's credibility. The admissibility of a prior consistent statement, for use in rehabilitating a witness's credibility, is a matter wholly within the discretion of the trial court.

State v. Hennessey, 142 N.H. 149, 159, 697 A.2d 930, 937 (1997) (citations and quotation omitted); see State v. Morales, 136 N.H. 616, 619, 620 A.2d 1034, 1036 (1993); cf. N.H. R. Ev. 801 (d)(1)(B) (under certain circumstances a prior consistent statement may be admitted as substantive evidence). The State argued at trial that admission of the statement was necessary to rehabilitate the credibility of the victim in order to rebut the theory of the defense that she was lying and to respond to a statement by a defense witness on cross-examination that the victim kept "changing everything she says all the time." The court ruled that the statement was admissible "to evaluate what [the victim] said at the time of the encounter" subject to an instruction that the jury may only use the statement to assess her credibility.

In order for the common law rule allowing the admission of prior consistent statements to rehabilitate a witness's credibility to apply, however, prior inconsistent statements must have been introduced into evidence by the opposing side. See State v. Woods, 130 N.H. 721, 728, 546 A.2d 1073, 1077 (1988); State v. Koski, 120 N.H. 112, 115, 411 A.2d 1122, 1124 (1980). Further, even when a witness's credibility has been directly attacked through the use of prior inconsistent statements, "the common law rule allowing admission of rehabilitative testimony should be used with caution." State v. Huard, 138 N.H. 256, 261, 638 A.2d 787, 791 (1994).

Here, we must decide whether it was error for the trial court to admit a prior consistent statement to rebut attacks on a witness's credibility that did not involve the use of actual prior inconsistent statements of that witness. We hold that the first basis for admissibility offered by the State — the theory of the defense that the victim was lying about the assault — was not sufficient to justify admission of the police report. In Woods, 130 N.H. at 728, 546 A.2d at 1077, we rejected the use of a victim's prior consistent statement "to rebut the defendant's cross-examination of the [victim] through which he challenged her testimony." Cf. 1 J. Strong, McCormick on Evidence