2004-594, STATE OF NH v. TIMOTHY LUCIER

Walter Plant and Michael Barton went to Tammy Crawf ord’s apartment. Chase November 2, 2003, after the defendant and Chase had an argument, Chase, t he defendant had been dating Melody Chase, who lived next door to him. On The jury could hav e found the following relevant facts. Since April 2002,

We affirm. by admitting certain evidence without first making a finding of its reliability. assault, RSA 631:2 - a (1996). On appeal, he contends that the trial court erred violation of a p rotective order, RSA ch. 173 - B (2002 & Supp. 2005), and simple defendant, Timothy Lucier, was convicted of burglary, RSA 635:1 (1996), NADEAU, J. Following a jury trial in Superior Court (Vaughan, J.), the

and orally, for the defendant. Andrew W inters, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 2004 - 59 4 Coos

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

particular case. State v. Walters, 14 p. 2 2 N.H. 239, 242 (1997). The level of general acceptance is not likely to vary according to the circumstances of a review some aspects of scientific evidence independently when its reliability or decision on the reliability of scientific evidence deferentially, although we unreasonable to t he prejudice of his case. Id. We also review the trial court’s unsustainable, the defendant must show that the decision was clearly decision. Id. To show that the trial court’s exercise of discretion is unsustainable exercise of its discretion, we will not reverse the trial court’s discretion. State v. Roldan, 151 N.H. 283, 287 (2 004). Absent an The admissibility of evidence is generally within the trial court’s

photograph. should have required the State to prove reliability before admitting the photographed on the caller ID b ox was reliable. He argues that the trial court T he defendant contends that the State did not prove the information

This appeal followed. admission of the photograph as a record or reflection of what [Colborn] saw.” admitted the photograp h, noting that the State had laid “a foundation for photograph of the caller ID. The court denied the defendant’s motion and defendant again objected on the same grounds to the admission of the to its contents. The trial court denied the motion. During the trial, the from evidence the photograph of the caller ID box and any testim ony pertaining Prior to trial, the defendant filed a motion in limine seeking to exclude

indicated that the call had been received at 9:04 p.m. apartment and took p hotographs, including a photograph of the caller ID which apartment door. The defendant was then arrested. Colborn went into the department arrived and saw the defendant “yelling and banging” on Crawford’s after the police were called, Corporal William Colborn of the Lancaster police act, also hit Chase. Thereafter, the defendant exited the apartment. S hortly everyone was gathered. He then punched Barton in the face and, in the same Crawford’s apartment without knocking, and went into the living room where Approximately twenty or thirty minu tes later, the defendant entered

slut, and then hung up on him. identified the caller as the defendant. Chase heard the defendant call her a when the phone rang. Plant answered the phone and handed it to Chase who testified that she knew the time of the call because she looked up at the clock usually called from that number were Chase and the defendant. Chase Crawford testified that, based upon her experience, the only people who ti me was 9:04 p.m. and that the call was coming from Chase’s residence. the telephone rang at Crawford’s residence. The caller ID indicated that the served upon him at his residence at approximately 8:45 p.m. Soon thereafter, had earlier obtained a restraining order against the defendant, which was p. 3 3

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

the testimony related to it, we find no error in the trial court’s ruling. court’s exercise of i ts discretion to admit the photograph of the caller ID and properly). Because there is sufficient evidence in the record to support the trial satisfied by witness testimony that caller ID device is or has been operating proper ly. See Schuette, 44 P. p. 3 3d at 463 (foundation requirement of reliability was sufficient evidence to demonstrate that the caller ID was operating p.m. because she looked up at the clock when the phone rang. Thus, there the phone. In addition, Chase testified that the defendant called after 9:00 same as her residence’s number and she recognized the defendant’s voice on Similarly, Chase testified that the number displayed on the caller ID was the house from the number displayed on the caller ID on previous occasions. time and place of the call. Crawford testified that the defendant had called her Here, the testimony offered by the State’s witnesses corroborated the

court did not err by admitting the evidence without any expert testimony. or occupation as to be beyond the knowledge of the average layman, the trial box is not a matter so distinctly related to some science, profession, busin ess, (quotation omitted). Thus, because the information displayed on the caller ID Graham, Handbook of Federal Evidence § 901.6, at 700 n.10 (5 ed. 2001) th matter capable of verification as to be beyond rea sonable controversy.” p. 3 3 M. reliability of the technology is both a matter of common knowledge and a would be willing to judicially notice [that the technology is reliable]. The Furthermore, “Caller ID is already in such widespread use that many judges Schuette, 44 P.3d 459, 463 (Kan. 2002) (quotation and brackets omitted). of the court that it cannot reasonably be the subject of dispute.” State v. generally known or of such common notoriety within the territorial jurisdiction arrow buttons, the user could review prior calls that were made. This fact i s so caller ID units does not require any advanced training; . . . by merely pressing of the Kansas Supreme Court: “We take judicial notice that the operation of Com. 440 S.E.2d 133, 136 (Va. App. 1994). We find comp elling the reasoning the past was sufficient to establish that the device was reliable. See Tatum v. recognized the defendant’s number on a caller ID device as one he had seen in The Virginia Court of Appeal s held that a witness’s testimony that he first impression in New Hampshire, other courts have considered the issue. While the admissibility of caller ID evidence appears to be an issue of

itself. State v. Dahood, 148 N.H. 72 p. 3 3, 726 (2002). the evidence involved and the impact the evidence like ly will have on the trial scrutiny we employ in our reliability inquiry will depend upon the complexity of