2008-316, STATE OF NH v. JEREMIAH M. HOLMES

Following his convictions for one count of being a felon in

and orally, for the defendant. Paul Borchardt, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-316 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 609(a) was amended but

version of the rule. to the federal rule. Holmes’ trial took place in December of 2007 — after Rule

we explain below, the result in this case would be the same under either of dishonesty under Rule 609(a)(2). prior rule was in effect at trial and we base our decision upon it. Moreover, as Driscoll’s prior conviction for receiving stolen property because theft is a crime Evidence 609(a), was amended in October 2007, mirroring a 2006 amendment which rule they believe applies and how. Here, however, it is clear that the

court based its decision upon it. However, both parties cite the current, case, was not, on its face, admissible under Rule 609(a)(2), and offered a federal

appeal, the defendant argues that the trial court erred by excluding evidence of apply in this appeal. Rule 609(a), which is identical to Federal Rule of circumstances, we might ask the parties to file supplemental briefs to clarify that involves dishonesty or false statement.” (Emphasis added). Under the unreasonable to the prejudice of his case. stating that, “[t]he only issue is whether receiving stolen property is a crime the defendant cites the language of the prior version centrally in his brief, amended version of Rule 609(a) in their briefs. Further complicating matters,

The prior version was therefore in effect at trial, and we presume that the trial

prior conviction, ruling that it was inadmissible under Rule 609(a)(2). On As a preliminary matter, we address which version of Rule 609(a) we

defendant must demonstrate that the court’s ruling was clearly untenable or 156 N.H. 71, 76 (2007). To show an unsustainable exercise of discretion, the under an unsustainable exercise of discretion standard. State v. Deschenes, We review a trial court’s ruling to admit evidence of prior convictions

Rule of Evidence 609(a)(2), with evidence of his prior conviction for receiving

refused to allow defense counsel to cross-examine Driscoll with evidence of his counsel could not provide a certified copy of the conviction. The trial court charge of receiving stolen property in 2002, but was found guilty. Defense Driscoll’s criminal record, which indicated that Driscoll pled not guilty to a that robbery is not per se a crime of dishonesty. Defense counsel proffered United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982), holding

the gun. Defense counsel sought to impeach him, pursuant to New Hampshire At trial, David Driscoll testified specifically to the size, shape, and color of

night, but only for an instant, and they provided differing descriptions of it. appeared to be a handgun in his waistband. Many witnesses saw the gun that Somersworth. At some point he threatened David Driscoll and revealed what 2006, Holmes attended a rap concert at Burby’s Pizza, a bar and restaurant in The jury could have found the following relevant facts. On November 18, crime of receiving stolen property when:

it has been stolen, or believing that it has probably been stolen, with a

property is not obviously dishonest. In New Hampshire, a person commits the analogous to receiving stolen property, is

“stealing is not a crime of dishonesty for purposes of the Rules of Evidence”), always a crime of dishonesty. We disagree. Federal Rule of Evidence 609(a)(2). purpose to deprive the owner thereof.

he receives, retains, or disposes of the property of another knowing that

Unlike crimes such as perjury or false statement, receiving stolen Evidence 102. under Rule 609(a)(2). While courts in several states do hold that theft, cert. denied, 508 U.S. 979 (199 p. 3 3).

p. 3 374, 378 n.1 (7th Cir.) (collecting cases from nine federal circuits holding that always suitable for cross-examination under Rule 609(a)(2) because theft is See United States v. Amaechi, 991 F.2d view among federal courts is that theft is not a crime of dishonesty under property is crimen falsi), appeal denied, 562 A.2d 824 (Pa. 1989), the majority the final interpreter of our rules. v. Ellis, 549 A.2d 1323, 1334 (Pa. Super. Ct. 1988) (holding receiving stolen 909 (Wash. 1991) (holding receiving stolen property is per se dishonest); Com. under their state rules of evidence, see, e.g., State v. McKinsey, 810 P.2d 907,

history to aid in our interpretation, consistent with New Hampshire Rule of We have never addressed the admissibility of receiving stolen property

The defendant argues that a conviction for receiving stolen property is

be helpful in interpreting analogous New Hampshire rules of evidence, we are Vector Mktg. Corp., 156 N.H. at 78 p. 3 3. While decisions of the federal courts may an ambiguous statute). We construe rules in their entirety, not piecemeal. Cf.

Cf. Appeal of Routhier, 14 p. 3 3 N.H. 404, 406 (1999) (interpreting

more than one reasonable interpretation exists, we will look to the rule’s 1 5 p. 3 3 N.H. 664, 666 (2006) (statute). Where language is ambiguous, or where Corp., 156 N.H. at 783 (administrative rule); D aimlerChrysler Corp. v. Victoria, rule – we will first look to the plain meaning of the words. Cf. Vector Mktg. When interpreting a rule of evidence – as with a statute or administrative

N.H. R. Ev. 609(a) (amended 2007).

involved dishonesty or false statement, regardless of the punishment. the witness has been convicted of a crime shall be admitted if . . . [it] For the purpose of attacking the credibility of a witness, evidence that

Prior to the amendment, the rule provided in relevant part: untruthfulness, or falsification bearing on the accused’s propensity to

Only a limited number of crimes

contemplate theft, and vice versa. embezzlement, or false pretense, or any other offense in the nature of receiving stolen property is not among them.

contemplates only crimes involving deceit, untruthfulness, or falsification. “dishonesty and [ Smith, 551 F.2d 3 p. 4 48, 362 (D.C. Cir. 1976). At its broadest, the rule was intended to include a “narrow subset of criminal activity.” Rule 609(a)(2). United States v. Id Evidence 609 (the report) did not include all forms of theft under the purview of. Although this list is not exhaustive, it clearly illustrates that Rule 609(a)(2)

testify truthfully.

characterizations, and we note that some definitions of “dishonesty” specifically integrity; faithless; . . . not trustworthy.” This is one of many sound perjury or subornation of perjury, false statement, criminal fraud, receiving stolen property because one who commits that crime is “void of the word “narrowly to refer to a liar, and broadly to refer to a thief.”

sic] false statement” to include crimes such as,

197 p. 4 4 U.S.C.C.A.N. 7098, 7103. The report instead construed the phrase believe that “dishonesty” has a narrower meaning. See H.R. Rep. No. 93-1597 (1974) (Conf. Rep.), as reprinted in

The original House Conference Committee Report on Federal Rule of

See Vector Mktg. Corp., 156 N.H. at 783. meaning, and we look to the history of Rule 609 to help resolve that ambiguity. is therefore ambiguous because it is reasonably susceptible to more than one States v. Brackeen, 969 F.2d 827, 829 (9th Cir. 1992). The term “dishonesty”

the phrase “dishonesty or false statement.” He argues that such acts embrace As other courts have observed, “dishonesty” is bifurcate: one may use

thievishness; theft, fraud”). However, in the context of Rule 609(a)(2), we the nature of the crime and the history of Rule 609(a)(2). (1971) (defining “dishonesty” as “disposition to deceive, defraud, or steal; defrauding”); 1 The Compact Edition of the Oxford English Dictionary 752 (3d ed. 1969) (defining “dishonesty” as “[w]ant of honesty; lying; stealing;

The crux of the defendant’s argument lies in his broad construction of

fraud and misrepresentation). We must, therefore, look beyond the statute to 637: p. 4 4 (2007) (defining “Theft by Deception” to include obvious examples of dishonesty for purposes of Rule 609(a)(2)); compare RSA 637:7, I, with RSA Cir. 2000) (holding that receiving stolen property is not automatically a crime of mendacity to the crime. See United States v. Foster, 227 F.3d 1096, 1100 (9th RSA 637:7, I (2007). On its face, our statute does not impute dishonesty or p. 5 5

find no unsustainable exercise of discretion.

admission of an act of dishonesty or false statement.”

an act of dishonesty or false statement within the meaning of Rule 609(a)(2), we

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

29 p. 5 5, 296 (2001). determined that establishing the elements of the crime required proof or because it allows for evidence to be admitted only where it “readily can be See State v. Lambert, 147 N.H. same under either version. The amendment is unavailing to the defendant Because Driscoll’s conviction for receiving stolen property did not involve

establishing the elements of the crime required proof of such an act. dishonesty or false statement, it is plainly not readily determinable that Where we hold that receiving stolen property does not involve an act of evidence under more narrow circumstances than the pre-amendment rule. least for the crime of receiving stolen property, the amended rule admits

instant case under the prior version of Rule 609(a)(2), the result would be the As noted above, the rule was amended in 2007. Although we address the