2002-065, THE STATE OF NEW HAMPSHIRE v. ROBERT A. TIERNEY, JR.

The defendant, Robert A. Tierney, Jr., appeals his multiple convictions f or both aggravated felonious sexual assault, see RSA 632-A:2, X and XI (1986) ( amended 1986, 1992, 1994, 1995), and felonious sexual assault, see RSA 632-A:3, I II (1996), after a jury trial in the Superior Court (T. Nadeau, J.). On appeal, he a rgues that the Superior Court (O’Neill, J.) erred in denying his motion to s ever the charges against him, which involved two young victims. He further contends that t he Trial Court (T. Nadeau, J.) erred in precluding witness testimony about his c haracter and in permitting a lay witness to testify as an expert. We reverse and remand.

The record supports the following facts. In 1984, the defendant, a lieutenant in the W olfeboro Police Department, moved into the home of his fiancée, Paula Lewis. Lewis’ t wo sons, W.P., then age 14, and R.J., then age 10, lived with her. I n October 1984, the defendant and Lewis married. During the time he lived in Lewis’ h ome, the defendant sexually assaulted both W.P. and R.J. on numerous occasions. Neither boy told their mother or each other about the assaults.

As a result of an incident involving the defendant and W.P. in the summer of 1984 and a nother involving R.J. in December 1987, Lewis became concerned that the defendant might be sexually assaulting her sons. She testified that she did not confront either the de fendant or her sons after these incidents because she was unsure of what she had a ctually p. 2 seen, was fearful of the defendant’s position with the police department, a nd did not want to hurt her children. Lewis did, however, divorce the defendant in the l ate 1980s because she believed he "was sexually molesting [her sons]."

In 1992 or 1993, in a letter to his mother, W.P. informed her of the sexual assaults c ommitted by the defendant. In June 2002, R.J. reported his allegations involving the de fendant to the Wolfeboro and State Police. Following a criminal investigation, the de fendant was indicted for scores of sexual assaults against each boy.

Prior to trial, the defendant moved unsuccessfully to sever the charges, claiming that " the acts alleged, the manner and means, are completely separate and distinct for e ach complainant" and that joinder would jeopardize his right to a fair trial. During t he trial, the State sought to prohibit three proposed defense witnesses from offering t heir opinions about the defendant’s character for truthfulness. The defendant t estified and denied the charged sexual assaults. Following crossexamination of the de fendant, the trial court granted the State’s motion because the defendant’s c haracter for honesty had not been sufficiently impeached to permit the proffered opi nions.

Following Lewis’ testimony, the prosecution called State Police Sergeant Thomas Yorke to testify about his criminal investigation. The defendant’s motion to disallow a portion of the sergeant’s testimony as improper expert testimony from a lay witness w as denied. At the conclusion of a six-day jury trial, the defendant was convicted on all c ounts. This appeal followed.

The defendant argues that the trial court erred by: (1) denying his motion to sever " the unrelated sets of charges" involving both boys, pursuant to State v. R amos, 149 N.H. 118 (2003); (2) preventing him from presenting "evidence about h is character for truthfulness," under New Hampshire Rule of Evidence 608(a); and (3) a llowing the State to present expert testimony through a lay witness.

We turn first to the issue of severance. The defendant contends that the trial court e rred in denying his motion to sever because the jury likely "decide[d] the cases on a n improper basis and [was subjected to] the inherent prejudice of evidence of other w rongs." Specifically, the defendant argues that he had an absolute right to have the c harges involving one boy severed from those involving the other because they were u nrelated. He asserts that the trial court’s failure to do so was per se pr ejudicial and not subject to a harmless error analysis. We note that the defendant does n ot make a constitutional argument under either our State or the Federal Constitution.

We will uphold a trial court’s denial of a motion to sever unless we conclude that i ts ruling constituted an unsustainable exercise of discretion. State v. Ramos, 149 N.H. 118, 120 (2003). To show that a trial court’s decision was unsustainable, a de fendant must demonstrate that the ruling was clearly untenable or unreasonable to the pr ejudice of his case. Id. The focus of our inquiry, therefore, is whether the j oinder of charges jeopardized the defendant’s right to a fair trial. Id.

The trial court denied the defendant’s motion to sever after reviewing the factors i dentified in State v. Cote, 129 N.H. 358, 367-68 (1987), and State v. Fecteau, 133 N.H. 860, 869 (1991). After we accepted the defendant’s direct appeal, however, w e issued our opinion in Ramos. In Ramos, we adopted the American Bar Association (ABA) standards for joinder and severance of criminal offenses for trial, w hich allow for joinder in all cases, but grant either the defense or prosecution " the absolute right to sever unrelated cases." Ramos, 149 N.H. at 127-28. W e held that:

Id. at 128 (citations omitted). p. 3 The State concedes that if our ruling in Ramos governs the defendant’s r ights to severance, the cases should have been severed for trial. Additionally, t he State concedes that if Ramos applies to this case, it cannot prove " harmless error." See State v. Mason, 150 N.H. ___, ___, 834 A.2d 339, 347 ( 2003) (holding that misjoinder of criminal offenses is subject to harmless error a nalysis). The State does not contend that the charges involving each boy were related, n or does it argue that had the charges involving each boy been prosecuted in separate t rials, the evidence involving the assaults against one boy would have been admissible in t he trial involving the other under New Hampshire Rule of Evidence 404(b). Consequently, t he only issue we need decide here is whether the joinder and severance standards we a dopted in Ramos apply retroactively to a criminal case pending on direct appeal, w here the issue of joinder or severance has been properly preserved. We hold that they do.

To decide the issue at hand, the defendant contends that we should follow Griffith v. Kentucky, 479 U.S. 314 (1987). Griffith concerned the retroactive a pplication of Batson v. Kentucky, 476 U.S. 79 (1986). Griffith, 479 U.S. at 316. I n Batson, the United States Supreme Court had ruled that the defendant in a s tate criminal trial could establish a prima facie case of racial di scrimination based on the prosecution’s use of peremptory challenges to strike m embers of the defendant’s race from the jury pool. Id. Further, once the de fendant had made such a showing, the burden shifted to the prosecution to come forward w ith a neutral explanation for those challenges. Id. The Supreme Court held that " a new rule for the conduct of criminal prosecutions is to be applied retroactively t o all cases, state or federal, pending on direct review or not yet final, with no e xception for cases in which the new rule constitutes a ‘clear break’ with the pa st." Id. at 328. This holding supplanted the previous analysis of Stovall v. Denno, 388 U.S. 293 (1967), where the Supreme Court held that a determination r egarding the retroactive effect of a newly announced rule of criminal procedure should be examined using a three-part test:

Stovall v. Denno, 388 U.S. 293, 296-97 (1967).

The State contends that we should retain the Stovall test, which we originally a dopted in State v. Shea, 117 N.H. 1007, 1008 (1977). At the outset, we agree with t he State that we are only bound to apply the Griffith test to rules of criminal procedure grounded in the United States Constitution. With regard to the retroactive or pr ospective effect of our decision in Ramos, a State case grounded upon State law, " [a] state in defining the limits of adherence to precedent may make a choice for i tself between the principle of forward operation and that of relation backward." Gt. N orthern Ry. v. Sunburst Co., 287 U.S. 358, 364 (1932); see State v. Tallard, 149 N.H. 183, 185 (2003) ("state courts clearly can determine the retroactivity of t heir own decisions on state law issues").

We agree with the Supreme Court that the failure to apply a newly declared c onstitutional rule to criminal cases pending on direct review violates basic norms of c onstitutional adjudication: that once such a new rule has been announced, the integrity of judicial review requires that we apply the rule to all similar cases pending on direct r eview; and that "selective application of new rules violates the principle of t reating similarly situated defendants the same." Griffith, 479 U.S. at 322-23.

Id. at 327-28 (citations and quotations omitted). p. 4 We recognize that our adoption of the ABA standards in Ramos was not c onstitutionally mandated, but we disagree with the State that our purpose in adopting t hem was solely "supervisory in nature." Although the joinder rules themselves a re not constitutional rights, misjoinder of charges may result in depriving a defendant of his fundamental right to a fair trial. Mason, 150 N.H. at ___, 834 A.2d at 346. T he rules are grounded in the bedrock constitutional mandate of a fair trial and it would be incorrect to characterize them as mere procedural rules.

We adopt the rule enunciated in Griffith, as we believe it comports more a ppropriately with the fair and balanced administration of justice than the rule-specific Stovall a nalysis. Accordingly, the standards we adopted in Ramos apply retroactively here. Cf. Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656, 659-60 (2003) (in the c ontext of a civil case or controversy, once a new rule of law has been applied r etroactively, the rule must be applied retroactively to all cases thereafter, still open on direct review); Tallard, 149 N.H. at 186 (applying Teague v. Lane, 489 U.S. 288 (1989), to determine whether federal rule applies retroactively on State c ollateral review).

The State also contends that, by its plain language, our decision in Ramos was i ntended for prospective application only and, consequently, does not control the outcome of this case. Specifically, the State argues that our use of the word "henceforth" to preface the holding in Ramos indicates that our decision w as not intended for retroactive application, see Ramos, 149 N.H. at 128. We di sagree.

We do not believe that the word "henceforth," as used in Ramos, c arries the degree of limitation ascribed to it by the State. First, whether or not the n ewly adopted ABA standards would have retroactive or prospective effect was not at issue i n the case. In addition, the word prefaces a single sentence concerning two or more of fenses committed by the same defendant, but the body of the sentence concerns only the ABA standard for joinder. See id. The following sentence, concerning the ABA s tandard for severance of two or more unrelated offenses, is prefaced by the more inclusive word "whenever." Id. Further, notwithstanding our use of the w ord "henceforth," we applied the newly adopted rule to the defendant in Ramos. Id. Finally, the word lacks the degree of specificity we prefer when dealing with t he issues of retroactive or prospective application of a rule. See, e.g., Estate of Ireland, 149 N.H. at 660; Echo Consulting Services v. North Conway Bank, 140 N.H. 566, 573 (1995); State v. Hughes, 135 N.H. 413, 420 (1992); State v. Wonyetye, 122 N.H. 39, 40 (1982). In sum, the import of the word " henceforth" in Ramos is miscast by the State.

Because we conclude that the standards we adopted in Ramos apply retroactively t o criminal cases pending on direct appeal where the issue of joinder or severance has be en raised in the trial court and properly preserved for appeal, see Wonyetye, 122 N.H. at 40, and in light of the State’s concessions noted previously, we reverse t he defendant’s convictions and remand for further proceedings consistent with this opi nion.

Although we reverse the defendant’s convictions on his first claim of error, we a ddress his other claims in the interest of judicial economy to the extent they are likely t o arise upon retrial. See State v. Cressey, 137 N.H. 402, 412 (1993).

The defendant argues that the trial court erred by not permitting him to present " evidence about his character for truthfulness," pursuant to New Hampshire Rule of Evidence 608(a) and State v. Ross, 141 N.H. 397 (1996). During trial, the State m oved to prohibit such testimony. When the defendant testified, he denied having ever s exually assaulted either W.P. or R.J. At the conclusion of cross-examination, the trial c ourt granted the State’s motion because the defendant had not been sufficiently i mpeached to place his character for truthfulness at issue. See State v. Ross, 141 N.H. 397, 400-01 (1996).

We examine the trial court’s ruling on the admissibility of evidence pursuant to R ule 608(a) under an unsustainable exercise of discretion standard. State v. Berry, 148 N.H. 88, 93 (2002). Rule 608(a) reads: p. 5 (a) Opinion and reputation of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

"Character evidence in support of credibility is admissible under the Rule only a fter the witness’ character has first been attacked.... The enormous needless c onsumption of time which a contrary practice would entail justifies the limitation." N.H. R. Ev. 608 Reporter’s Notes (citations omitted).

The defendant argues that under State v. Vachon, 139 N.H. 540, 543 (1995), a de fendant is permitted to present witnesses to testify "about his veracity" once a proper foundation is established. The defendant further asserts that because the State di d not challenge his ability to do so, it was error to deny him "the opportunity to pr esent evidence in the form of opinion or reputation concerning his credibility." We di sagree.

The defendant’s argument fails to recognize the limited scope of our review of R ule 608 in Vachon. There, the defendant argued that the trial court erred in a dmitting reputation evidence "because the prosecution failed to lay an adequate foundation for admissibility under [Rule] 608(a)(1)." State v. Vachon, 139 N.H. 540, 541 (1995). Rule 608(a)(2), and its mandate that evidence of truthful character i s admissible only after a witness’s character for truthfulness has be en attacked, was not at issue in Vachon. Satisfying the requirement for a proper f oundation, as explained in Vachon, does not negate the need to also satisfy the e xplicit mandate of Rule 608(a)(2). See Ross, 141 N.H. at 400-01.

The defendant also argues that the trial court erred in relying on Ross because Ross i s "inapposite" to his case. We disagree. In Ross, we held that the trial c ourt erred in allowing the State to present opinion or reputation testimony as to the c omplainant’s truthful character because the defendant’s cross-examination had n ot attacked the complainant’s general character for truthfulness. Id. at 400-02. Noting that Rule 608(a) is identical to Federal Rule of Evidence 608(a), we looked t o cases interpreting the federal rule to guide our decision. We cited with approval United S tates v. Dring, 930 F.2d 687, 691 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992), and stated:

Ross, 141 N.H. at 400-01 (quotations, citations, brackets, and emphasis omitted).

Here, the trial court denied the defendant the opportunity to present evidence of his t ruthful character, not because he could not lay a proper foundation under Rule 608(a)(1), bu t because the State’s cross-examination had attacked his credibility, not his g eneral character for truthfulness. We find no unsustainable exercise of discretion in the t rial court’s ruling.

Finally, the defendant contends that the trial court erred by permitting the State to pr esent expert witness testimony through a lay witness. Subsequent to Paula Lewis’ t estimony and cross-examination, the State called State Police Sergeant Thomas Yorke to t estify about the criminal investigation he conducted into the charged sexual assaults. D uring the State’s direct examination, the following exchange occurred: p. 6 Q. Okay. So it’s not unusual for there to be sexual abuse of a child in a home?

The defendant objected and moved to strike the line of questioning, characterizing it a s "inappropriate expert testimony" under State v. Cressey, 137 N.H. 402 ( 1993). The State countered that the testimony was "quasi-expert" and an appropriate response to Lewis’ cross-examination, because she was "attacked... w ith great incredulity that she would allow this to go on, or that this could possibly g o on when she was in the house or wouldn’t know what was going on, wouldn’t do a nything about it." The trial court allowed the testimony to stand because the rules of evidence "permit a witness with experience to testify about their experience" a nd the State had not crossed the "fine line" of expert testimony under Cressey.

We limit our review to whether the trial court erred in admitting Sergeant Yorke’s t estimony regarding his experiences with child sexual abuse investigations. We review the t rial court’s ruling regarding the admissibility of Sergeant Yorke’s testimony u nder our unsustainable exercise of discretion standard. State v. Gonzalez, 150 N.H. ___, ___, 834 A.2d 354, 357 (2003).

The question of admissibility turns on the characterization of Yorke’s testimony. Id. a t ___, 834 A.2d at 357. Expert testimony involves matters of scientific, mechanical, pr ofessional or other like nature, which requires special study, experience, or obs ervation not within the common knowledge of the general public. Id. at ___, 834 A.2d at 357. Lay testimony must be confined to personal observations that any layperson w ould be capable of making. Id. at ___, 834 A.2d at 357. If Yorke’s testimony i s expert testimony, then it was not properly admitted as lay testimony; if it is not expert testimony, then it must be determined whether it is permissible lay testimony. Id. a t ___, 834 A.2d at 357.

Sergeant Yorke testified that he had investigated some 225-300 cases of sexual assault i n his career. While his testimony was based on his personal observations while i nvestigating those cases, his observations and conclusions regarding the usual or unusual n ature of the location, the identity of the perpetrator, and the level of knowledge of a n on-offending adult in child sexual assault cases required specialized training, e xperience and skill not within the ken of the ordinary person. See id. at ___, 834 A.2d at 359. As such, Sergeant Yorke’s testimony was expert testimony, and i t was erroneously admitted as lay testimony. See id. at ___, 834 A.2d at 359.

Because we reverse the defendant’s convictions under our earlier Ramos a nalysis, we need not address the State’s argument that the trial court’s error w as harmless. See id. at ___, 834 A.2d at 359-60 (applying harmless error a nalysis to admission of expert testimony).