2003-774, STATE OF NH v. CHRISTOPHER ROGAN

committed against the victim, who was thirteen at the time. four counts of pattern aggravated felonious sexual assault alleging assaults The record supports the following facts. The defendant wa s indicted on

audiotaped interview of the victim. We affirm. appeal, he argues that the trial court erred when it allowed the State to play an sexual assault, see RSA 632 - A:2 (1996 & Supp. 2001) (amended 2003). On jury trial in Superior Court (Hollman, J.) on one count of aggravated felonious GALWAY, J. The defendant, Christopher Rogan, was convicted after a

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Brian R. Graf, senior assistant attorney

No. 2003 - 774 Belknap

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Id. opposing party to place potentially misleading evidence in its proper context. misim pression or misled the fact - finder in some way. Id. This rule allows the A. p. 2 2d 1250, 1251 (2004). The initial evidence must have reasonably created a that may not otherwise be admissible. State v. Morrill, 151 N.H. __, __, 857 justification beyond mere relevance for an opponent’s introduction of evidence doctrine applies when one party introduces evidence that provides a otherwise inadmissible evidence. See id. at 530 - 31. The “opening the door” misleading advantage may be countered with previously suppressed or admissibili ty, it is now more broadly applied to situations in which a 527, 530 (1984). Once associated more strictly with the doctrine of curative “Opening the door” is a conclusory term. State v. Crosman, 125 N.H.

the admission of the entire tape was an “unfairly prejudicial remedy.” creating a misleading impression regarding the interview; and even if she did, the defendant contends that defense counsel did not “open the door” by charges; the jury convicted the defendant on the remaining charge. On appeal, At the close of the Sta te’s case, the trial court dismissed three of the

impartial.” in her testimony at trial and of whether her investigation was fair and admissibility to “evidence bearing upon the issues of Denise Miller’s credibility allowed it to be played, but first issued a jury instruction limiting its was incomplete and flawed. After listening to most of the tape, the court because the focus of her cross - examination was to show that the investigation because she used a transcript and not the tape to impeach Deputy Miller, and argued, on the other hand, that the tape should not be played f or the jury, incriminating statements were suggested by Deputy Miller. Defense counsel inference created during Deputy Miller’s cross - examination that the victim’s argued that the entire audiotape need ed to be played to the jury to rebut the examination, the State requested permission to play the audiotape. The State about whether she coerced the victim’s answers. Following this cross tran script of the interview, questioned her regarding her thoroughness and On cross - examination of Deputy Miller, defense counsel, using a

events. that during her interview of the victim, she was able to obtain details about the responded when discussing certain aspects of the investigation, and explained which lasted approximately two hours. She described how the victim audiotaped and videotaped interview of the victim on November 1 p. 2 2, 2002, conducts interviews in this type of case, and specifically testified regarding her assigned to the case, testifi ed on direct examination as to how she generally At trial, Deputy Belknap County Sheriff Denise Miller, an investigator p. 3 3

“unfair,” and that the investigator used a “persuasional technique” to prompt unfairly influenced by the investigator,” that the interview was essentially was flawed and incomplete, but also that “[the vic tim’s] statements were counsel’s cross - examination not only raised the issue that the investigation After reviewing the record, we agree with the trial court that defense

coercion had occurred during the interview. fact, defense counsel ultimately admitted that she had indeed suggested th at [victim’s] mouth and essentially prompted the [victim] to give responses.” In counsel was “trying to say the nature of the interview put words in the investigation was incomplete and flawed. Th e State countered that defense the focus of the cross - examination of Deputy Miller was to suggest that her the State’s request to play the tape, during which defense counsel argued that The trial court held a hearing out of the presence of the jury regarding

victim to make incriminating statements.” We agree. Deputy Miller that her investigation was unfair and that she had coerced the to rebut the inference created by the defense through the cross - examination of The State contends that the statements on t he audiotape “were relevant

after the accident . . . . because of what you got her to say in that interview, that it started Q: All right. And we know - - at least we think we know now, . . . . intention? Q: And if she didn’t want t o say something, what was your Q: Were you going to coerce her to say anything? . . . . . . . . lying to Detective Simmons before you ever met her? Q: So you - - you’ve made up your mind that [the victim] . . . was

such as: Deputy Miller’s investigation at issue with sev eral questions and comments, Here, during cross - examination, defense counsel placed the integrity of

case. Carlson, 1 p. 4 46 N.H. at 57; cf. Lambert 147 N.H. at 296. establish ing that the decision was clearly unreasonable to the prejudice of his exercise of discretion is unsustainable, the defendant bears the burden of unsustainable exercise of discretion standard). To show that the trial court’s (2001); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion. See State v. Carlson, 146 N.H. 52, 56 testimony, we will not upset the trial court’s ruling unless it is an court is in the best position to gauge the prejudicial impact of particular discretion. State v. Ellsworth, 151 N.H. 152, 159 (2004). Because the trial The admissibility of evidence is generally within the trial court’s sound 4

had attempted to impeach the victim’s testimony by referencing portions of the 129 N.H. 7 p. 4 44, 750 (1987). Similarly, in State v. Morales, where the defendant her testimony, and that any inconsistencies were insignificant. State v. Dean, properly admitted to show that the statement as a whole was consistent with In State v. Dean, we held that a prosecutrix’s entire statement was

189 (2001). the trial court’s ruling. See, e.g., Handley v. Town of Hooksett, 1 p. 4 47 N.H. 184, videotape). Even if the issue were properly preserved, we would concur with 143 N.H. 24 (1998) (upholding trial court’s decision to admit entire two - hour allow ed lengthy recorded testimony to be admitted. See, e.g., State v. Dewitt, discretion to admit the entire audiotape, citing several cases in which we have further argues that if the issue was preserved, it was within the trial court’s that only a portion of the tape should have been heard by the jury. The State rather than the tape, should have been admitted, and never specific ally argued properly preserved below because defense counsel argued that the transcript, have considered it for its truth.” The State responds that this issue was not content so resonated with [the victim’s] testim ony . . . the jury was likely to defendant’s position is that because the tape was “so long” and because “its prejudicial” in a manner that greatly outweighed its probative value. The Finally, we conside r whether playing the tape in its entirety was “unfairly

there was coercion. pauses, because such factors could assist the jury in its assessment of whether important factors such as tone of voice and presentation of questions and State’s position that it was necessary to play the tape to expose the jury to happened in terms of whether the interview [was] fair or not,” and with the trial court’s assessment that the tapes were the “best evidence of what that the victim’s answers were coerced by Deputy Miller. We agree with the information on the tape rebutted the misimpression created by d efense counsel investigation”; rather, its purpose was to allow the jury to assess whether the Playing the tape did not serve to “shed light on the adequacy of Miller’s inconsistent responses.” The defenda nt’s argument is, however, misplaced. that she did not do any further investigation based on [the victim’s] vague or adequacy of Miller’s investigation, because she admitted on cross - examination The crux of the de fendant’s position is that “the tape shed little light on the rebutting any misimpression that might have been created by defense counsel. We next consider whether the tape was the appropriate evidence for

evidence in its proper context.” Id. misimpression. As such, the State “place[d] [the] potentially misleading 12 p. 5 51 – “opened the door” to the admission of evidence that would rebut the misleading the fact - finder in some way, see Morrill, 151 N.H. at __, 857 A.2d at risk of creating a misleading advantage, see Crosman, 125 N.H. at 531, or of the victim. Accordingly, we conclude that defense counsel – having taken the 5

impartial. her testimony at trial and of whether her investigation was fair and as evidence bear ing upon the issues of Denise Miller’s credibility in as proof of the truth of the statements contained therein, but only limited purpose. You are not to consider the content of this tape In other words, this tape has been admitted into evidence for a was fair and impartial. the issue of whether the investigation conducted by Deni se Miller Denise Miller in her testimony at trial and as evidence bearing upon evidence bearing upon the credibility of certain statements made by pro of of the truth of the statements contained in the tape but as tape, which has been admitted into evidence, is not admitted as Deputy Sheriff Denise Miller’s interview with [the victim] . . . . The Ladies and gentlemen, you are going to hear now an audiotape of

following jury instructions: instruction” was met when the judge clearly and unequivo cally issued the Here, Fischer’s requirement of a “careful explanation in the limiting

State v. Fischer, 143 N.H. 311, 317 (1999). su bstantive purposes, requires a careful explanation in the limiting instruction. distinguishing between using evidence for credibility purposes, as opposed to limiting instruction. Dean, 129 N.H. at 7 p. 5 50. We have also stated that regarding admitted evidence unfounded, especially in light of the trial court’s prejudicial. We have previously found a defend ant’s claim of prejudice We next consider whether the admission of the entire tape was

significant probative value. transcript of the interview. Thus, we conclude that the entire tape had impression that the interview was i nappropriate, extensively referenced the was appropriate because defense counsel, in her attempt to create the defense counsel that the victim was coerced. Moreover, playing the entire tape for which the State wanted it introduced – to rehabilitate any misimpression by Playing the audiotape directly pertained to that interview and to the purpose counsel impeached Deputy Miller by referencing portions of her interview. Here, similar to the situations in both Dean and Morales, defense

the sound discretion of t he trial court.” Id. statements allowed to rehabilitate an impeached witness, are matters within portions of the statement. Rather, questions concerning . . . portions of those p rior statement after the witness has been impeached through reference to purport to establish a per se rule mandating the admission of a witness’s entire Significantly, we stated: “In affirming the trial court’s decision, we do not entire statement of the victim. State v. Morales, 13 p. 6 6 N.H. 616, 620 (1993). victim’s prior statement, we affirmed the trial court’s decis ion to allow the 6

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

Deputy Miller’s interview with the victim. its discretion by admitting into evidence the contents of the entire tape of Carlson, 14 p. 6 6 N.H. at 57. We hold, therefore, that the trial court acted within that the trial court’s ruling was unreasonable to the prejudic e of his case. See We conclude that the defendant has not carried his burden of proving

court). p. 6 697 (2003) (stating that juries are presumed to follow the instructions of the prejudicial. See Dean, 129 N.H. at 750; see also State v. Smith, 149 N.H. 693, Thus, we conclude that the admission of the entire tape was not unduly