___________________________

Hillsborough-northern judicial district

No. 97-387

THE STATE OF NEW HAMPSHIRE

v.

ERIC BENNETT

July 13, 1999

Philip T. McLaughlin, attorney general (John C. Kissinger, assistant attorney general, on the brief, and Patrick E. Donovan, assistant attorney general, orally), for the State.

Janice S. Peterson, public defender, of Keene, by brief and orally, for the defendant.

BRODERICK, J. After a jury trial in Superior Court (Abramson, J.), the defendant, Eric Bennett, was convicted of manslaughter, RSA 630:2, I(b) (1996). On appeal, he argues that the trial court erred by excluding: (1) evidence of the circumstances surrounding his taped statement to the police; (2) excerpts from his taped statement to the police; (3) evidence of the victim's prior conduct; and (4) testimony of his expert and certain cross-examination of the State's expert. We affirm.

I

On August 3, 1996, the defendant went to a bar with some friends, including his former girlfriend, Jennifer Bohl. Around 11:15 p.m., the group proceeded to Bohl's house, where the intoxicated defendant passed out or fell asleep. While he was unconscious, Bohl and some of the others attended a party in a nearby town, where they were joined by Doug Goodman. Upon returning to Bohl's house, Goodman woke the defendant, whom he knew, and explained that they were taking him home. The defendant eventually got into the back seat of Bohl's car. Bohl drove while Goodman sat in the front passenger seat.

At some point, the defendant grabbed Goodman around the neck with his left arm and held him against the seat. Bohl pulled the car over, and the defendant screamed for her to call the police. When a local police officer arrived approximately ten minutes later, she made three demands that the defendant release his hold on Goodman. He refused to do so until the officer drew her gun. Goodman died as a result of the defendant's choke hold. An autopsy revealed that his hyoid bone had been fractured.

Following his arrest, the defendant waived his Miranda rights and gave a taped statement. He was charged with second degree murder, RSA 630:1-b, I(b) (1996), and convicted by a jury of the lesser-included offense of manslaughter. This appeal followed.

II

We first address the defendant's argument that the trial court erred by excluding evidence of the circumstances surrounding his taped statement to the police. Specifically, he argues that he should have been permitted to introduce testimony that he voluntarily waived his Miranda rights.

Prior to trial, the court granted the State's motion to exclude the defendant's statement as inadmissible hearsay. See N.H. R. Ev. 802. The defendant makes no claim that the State attempted to introduce his taped statement at trial and the defendant did not testify. He sought, however, to establish through the cross-examination of an interrogating officer that he waived his Miranda rights and voluntarily gave the statement, arguing the evidence was "relevant to his state of mind of innocence."

We conclude that the circumstances surrounding the defendant's taped statement were not relevant. Cf. State v. Guyette, 139 N.H. 526, 529, 658 A.2d 1204, 1206 (1995). To be relevant, evidence must have a "tendency to make the existence of any fact that is of consequence to the determination of [an] action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401. Absent evidence of the substance of the defendant's statement, the circumstances surrounding it were not probative of the defendant's innocence.

Even assuming that the defendant voluntarily made the statement, the trial court did not abuse its discretion in excluding such evidence because of its potential to mislead the jury. Cf. State v. Leroux, 133 N.H. 781, 784, 584 A.2d 778, 780 (1990). Evidence that the defendant waived his Miranda rights and voluntarily spoke to the police would allow him to project a cooperative and candid image, while avoiding the substance of his statement and the rigors of cross-examination concerning it. With only a part of the puzzle before it, the jury could not have reasonably determined whether the defendant was being cooperative and honest or merely protecting his self-interest when he spoke to the police. Accordingly, we conclude that the circumstances surrounding the defendant's statement were not relevant to his asserted innocence, or if relevant, potentially misleading, and therefore properly excluded by the trial court.

We are not persuaded by the defendant's reliance on Crane v. Kentucky, 476 U.S. 683 (1986), to establish his claim that excluding evidence of the circumstances of his statement violated his due process rights under the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986) (claim limited to Federal Constitution where State Constitution not specifically invoked on appeal). In Crane, the prosecution relied almost entirely on the defendant's confession to secure a conviction, and the defendant sought to introduce evidence of the circumstances surrounding it to undermine its reliability. Crane, 476 U.S. at 685. Here, however, the defendant's statement was never introduced so that evidence of the circumstances surrounding it were not necessary to explain its context. Therefore, the defendant's federal due process claim is without merit. Cf. State v. Ellsworth, 142 N.H. 710, 718-19, 709 A.2d 768, 773-74 (1998) (due process rights may trump evidentiary rules but defendant must first make threshold showing of probity to justify admission of testimony).

III

The defendant next argues that the trial court erred by not permitting him to introduce portions of his taped statement. Specifically, he contends that two excerpts from his statement, "what did he die from" and "I remember going somewhere where I'm not supposed to be going in the middle of the night with somebody that's not supposed to be there," should have been admitted.

The State argues that the defendant did not preserve this issue for appellate review. We disagree. At a pretrial hearing on the State's motion in limine to exclude the defendant's taped statement in its entirety, the defendant argued that he "might want to introduce" the referenced excerpts. The trial court responded, "My inclination is they're hearsay. But that's just to let you know where I'm going. I will take it on a question by question basis at trial . . . ." Subsequently, however, the court issued a written order declaring the excerpts proposed for admission to be hearsay. The State contends that the defendant's proffer and the court's written ruling were not sufficient to preserve the issue for appellate review because the court invited the defendant to request reconsideration at trial and he failed to do so.

Under New Hampshire Rule of Evidence 103(b)(1), a contemporaneous and specific objection at trial is required to preserve an issue for appellate review. See State v. McMinn, 141 N.H. 636, 642, 690 A.2d 1017, 1021 (1997). The rule recognizes that "trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court." Id. (quotation omitted). A motion in limine affords an opportunity for the trial court to rule on the admissibility of evidence prior to trial and for counsel to devise trial strategy accordingly. 2 R. McNamara, New Hampshire Practice, Criminal Practice and Procedure