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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 97-257
THE STATE OF NEW HAMPSHIRE
v.
CHANEL J. COTE
February 25, 1999
Philip T. McLaughlin, attorney general (Richard J. Lehmann, attorney, on the brief and orally), for the State.
Paul J. Garrity, of Londonderry, by brief and orally, for the defendant.
BRODERICK, J. The defendant, Chanel Cote, appeals his conviction on two counts of aggravated felonious sexual assault. See RSA 632-A:2, II (1996). He contends that the Superior Court (McHugh, J.) erred by: (1) granting the State a recess to refresh the recollection of the ten-year-old victim; (2) permitting the prosecutor during closing argument to argue facts not in evidence; (3) refusing to give the jury an accident instruction; and (4) excluding the public from a post-trial hearing on a motion to set aside the verdict. We affirm in part and remand.
The following facts were adduced at trial. The defendant attended Our Lady of Mount Carmel Church (church) in Methuen, Massachusetts, and trained children who wished to become altar servers. He first met the young victim in 1992 when he was training the victim's sister. Over time, the defendant and the victim's family became friends. In June 1993, the victim, then age seven, began visiting the defendant at his home in Salem, and on several occasions, he spent the night. During a June 1993 visit, the defendant touched the victim's genitals while the victim was in the bathtub (first assault). In July of that same year, the defendant repeated the same act while the victim was in the shower (second assault). Following the second assault, the defendant threatened to hurt the victim if he informed anyone about the touching. After a three-day trial, the jury found the defendant guilty on both counts of aggravated felonious sexual assault.
I
We first address the defendant's argument that the trial court erred in granting the State a recess to refresh the victim's recollection about the second assault. The defendant asserts that the victim twice responded unequivocally "no" to questions from the prosecutor on whether there was a second "bad touching." He argues that the victim was not confused or uncertain and thus there was no justification for his recollection to be refreshed.
The record reflects the following colloquy about the second assault during direct examination:
[STATE]: And on that time that you stayed over, did any bad touching happen?
[VICTIM]: Um, I don't . . . (Stopped talking)
[STATE]: The week before you went to the Water Country
. . .
[DEFENSE]: I'm sorry. I couldn't hear. Did he say . . .
[STATE]: I believe he said no on the second time.
Now, . . . the week before you went to Water Country, did you go on a sleepover at Mr. Cote's house?
[VICTIM]: I don't know.
[STATE]: Okay. Was there ever a time in July that something happened when you were in the shower?
[DEFENSE]: Objection, leading.
[THE COURT:] Yeah. Why don't you rephrase the question.
[STATE]: Was there another time in the bathroom that bad touching took place?
[VICTIM]: Um . . .
[DEFENSE]: That's asked and answered. He already said no.
[THE COURT:] No. I think it's a different question, and I think it's permissible. So he can answer that one.
[VICTIM]: No.
[STATE]: Do you remember talking to Detective Cavanaugh about what had happened to you?
[VICTIM]: Yes.
[STATE]: And do you remember telling Detective Cavanaugh
. . .
[DEFENSE]: Objection. Leading, hearsay.
[THE COURT:] Well, it is for the purpose of refreshing a recollection, not for the truth, however. Why don't you . . .
[DEFENSE]: He's already--he's already given an answer.
[STATE]: He may say he doesn't remember.
[THE COURT:] Well, why don't you come up for a minute.
After a bench conference, the trial court declared a recess. Subsequently, the victim resumed his testimony and testified about the second assault.
Although the bench conference was not recorded, the court held a chambers conference after the close of the evidence to reconstruct it. The court recited the prosecutor's argument that the victim's response to his questions about the second assault was a complete surprise in light of prior interviews. The court then documented its basis for allowing the recess:
I think it's undisputed that the child was extremely nervous, was confused about some very basic issues, was relatively quiet, waited a long time before responding to any question, sometimes questions had to be asked -- several different questions had to be asked before any response was given, and in light of the young man's age, I felt that a break and an opportunity to review the statements was appropriate.
After giving counsel the opportunity to record their arguments, the court further explained its reasoning, stating in part:
I think I've got to make the judgment, based upon what I see in the demeanor of the witness, to indicate whether or not the "No, No" is a definitive, well-thought-out "No, No" or whether or not it's the product of "Get me out of this quickly and maybe if I say `No,' I can leave this room without being asked any more questions."
It is well-settled that counsel can use a prior written statement to stimulate the recollection of a witness who demonstrates a doubtful memory while testifying. See N.H. R. Ev. 612; see also State v. Slocinski, 89 N.H. 262, 265, 197 A. 560, 562 (1938). The trial court is in a unique position to review the demeanor of witnesses and thus retains the discretion to determine whether a witness lacks present recollection. See 1 J. Strong, McCormick on Evidence