2007-863, STATE OF NH v. SEVERINE WAMALA

Kelly A. Ayotte

No. 2007-863

Hillsborough-southern judicial district

Severine Wamala, by brief, pro

Christopher M. Johnson

eleven counts of aggravated felonious sexual assault (AFSA). See DALIANIS, J. The defendant, Severine Wamala, appeals his conviction of

defendant had had sex; (2) denied his counsel’s request to voir dire prospective “time capsule,” a school project in which she had written that she and the C.J.) erroneously: (1) allowed the State to introduce evidence of the victim’s (2007) (amended 2008). On appeal, he argues that the Superior Court (Lynn,

brief and orally, for the defendant.

general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as soon, everyone was yelling at everyone else. Eventually, J.W. called the police, p. 2 began yelling at him. According to defense counsel, “[t]hings escalated,” and, the defendant pushed her out of the way, and “[the victim] went crazy” and told repeatedly to get out of the way, the victim refused to move. Eventually, sink to dump the water from the pot, the victim was in her way. Despite being “giant pot full of water that [was] boiling hot.” When she walked over to the As defense counsel told the jury, that night, L.W. was at the stove with a

sister, L.W., her brother, J.W., and the defendant. September 11, 2006, as a result of a heated argument among the victim, her one. Her rebellion against the defendant allegedly came to a head on her from obtaining her driver’s license although she was old enough to have the jury that the victim’s rebelliousness escalated when the defendant forbade daughter and police who were overeager to believe her.” Defense counsel told unfounded allegations, a nightmare caused by a willful, rebellious, yet brilliant his opening statement, was that he was innocent, “caught in a nightmare of The defendant’s theory of the case, as explained by defense counsel in

themselves; and (2) introduce the time capsule into evidence as a full exhibit. about the time capsule as well as about the prior uncharged assaults court allowed the State to: (1) call the victim as a rebuttal witness to testify capsule, after hearing the defendant’s theory of the case and his testimony, the Although the trial court had initially excluded evidence of the time

resealed the envelope. envelope and wrote: “I’m not a virgin or have a virgin mouth.” She then sex with my father.” When the victim was in eighth grade, she opened the wrote: “[S]omething about me that would surprise most people is . . . I have an envelope, and open the envelope two years later. On the paper, the victim I. Victim’s “Time Capsule” Statements victim to write information about herself on a piece of paper, seal the paper in The “time capsule” was a sixth grade school project that required the

A. Relevant Facts

to the prejudice of a party’s case. State v. Forbes standard and reverse only if the rulings are clearly untenable or unreasonable court’s evidentiary rulings under our unsustainable exercise of discretion evidence of the victim’s so-called “time capsule.” We review challenges to a trial The defendant first argues that the trial court erred when it admitted

statements. We affirm. the State to impeach the victim’s sisters with their prior inconsistent jurors individually pursuant to RSA 500-A:12-a (Supp. 2008); and (3) permitted p. 3 [J.W.] to leave and I don’t think also she believed she [sic in closeness, and the fact that [on September 11, 2006,] I had told [J.W.] and [the victim] are very tight, and – you now, tight as

her, the defendant testified: asked why he thought that the victim would say that he had sexually assaulted I can never do . . . I can never do that to my children, never, ever.” When not even [to] an enemy.” He testified that having sex with them was “something up.” He testified: “[T]here’s no way I could ever do that to my children, I mean horrifying” to think of having sex with his children and that it made him “throw “disturbing” to think of committing incest. He testified that it was “just not “do something . . . traumatizing to [his] children” and that he found it denied ever having sexual contact with his children. He testified that he could The defendant testified consistently with this theory of the case. He

door to evidence about the prior uncharged assaults to which the victim’s After the defendant testified, the trial court ruled that he had opened the

that didn’t happen, that never occurred.” teenage girl” engaged the police, who began to “look[] for evidence of a crime be excited of [sic] getting her license, you know. defense counsel explained to the jury, by so doing, this “willful and rebellious wants, you know, I believe also the freedom because she seemed to more freedom,” told the police that her father sexually assaulted her. As that’s who she is. She is, you know, very, very willful, and she also point, the victim, seeing “an opportunity to get out of the house” and “have wants to be right, and she just wants to continue with it. I mean, jumping off the third floor balcony.” According to defense counsel, at this and I think once she started this whole thing of rape, she just house and that she[] [was] going to do it any way she [could], including going to leave, and [the victim] is one of those very willful people, “behaving hysterically,” telling them that “she just want[ed] to get out of the] was daughter to call the police and, when the officers arrived, the victim was done earlier in the night over the pot of water.” The defendant asked another teenage temper tantrum” and began yelling at the defendant “just like she had bluff, so to speak, and . . . left.” Upon seeing this, the victim “threw another you want to discipline my children? Then go someplace else.” J.W. “called his feeling exasperated, eventually yelled: “[D]o you want to raise my children? Do emerged from the bedroom and began to yell at the defendant. The defendant, bedroom. J.W. decided to confront the defendant about the incident. J.W. could be heard talking to each other in the bathroom and then in their After the police left, the victim and J.W. slowly got ready for bed and

left without arresting anyone. who came to the apartment, and, after being assured that everyone was safe, p. 4 B. Discussion

for that purpose. that prior statement contained in the time capsule . . . for its truth a recent fabrication of her testimony at trial. You may consider of whether or not . . . the [victim] . . . had some motivation to make

that as substantive evidence in the case for its truth on the issue That constitutes a prior statement of [the victim]. . . . You may use this. You have received in evidence . . . the so-called time capsule. facts in the prior statement are true. There is one exception to You may not use a statement made before trial as proof that the

only use a prior statement in assessing the witness’ credibility. with the witness’ testimony at trial. Keep in mind that you may the witness made statements before trial, which are inconsistent In deciding whether to believe a witness, you may consider whether

was admissible. See testimony about the uncharged assaults themselves, and that this testimony

The defendant concedes that he opened the door to the victim’s 4

asserted. He argues that while he may have opened the door to the victim’s hearsay exception and were, thus, inadmissible for the truth of what they victim’s testimony about her statements are hearsay that do not fall within a her statements in it into evidence. He contends that the time capsule and the In its final instructions, the court told the jury: however, when it admitted the time capsule and the victim’s testimony about Taylor, 139 N.H. 96, 99-101 (1994). He argues that the trial court erred,

fabricated her allegations. See only to rebut any suggestion that the defendant may have made that she court instructed the jury that her time capsule statements were being admitted Before allowing the victim to testify about the time capsule, the trial

404(b). earlier offenses, he must have committed these offenses.” See N.H. R. Ev. propensity to commit such assaults, “to say, well, gee, - - if he committed some sexual assaults, the jury could not use them as evidence of the defendant’s the jury that, to the extent that these statements referred to any uncharged

Ev. 403. probative value outweighed its potential prejudice to the defendant, see N.H. R. admissible under New Hampshire Rule of Evidence (Rule) 404(b) and that its determined that even though this was evidence of prior bad acts, it was fabricated the allegations against him. See N.H. R. Ev. 801(d)(1)(B). The court evidence was admissible to rebut the defendant’s claim that the victim had statements in her time capsule referred. The trial court ruled that this advantage. See

sexually assaulted the victim in the past. See sexually assault his children, it opened the door to evidence that he had The defendant concedes that when he testified that he could “never”

id.

uncharged assaults was, therefore, necessary to counter this misleading opponent’s introduction of evidence that may not otherwise be admissible. Id could reasonably have concluded that introducing evidence of the prior evidence that provides a justification, beyond mere relevance, for the sexually assault his own children. See Carlson, 146 N.H. at p. 5 57. The court For the specific contradiction doctrine to apply, a party must introduce interpreted his testimony as an assertion that it was not within his character to evidence to pass through.” State v. Benoit Taylor, 139 N.H. at 99-101. As he admits, the jury logically could have “The fact that the door has been opened does not, by itself, permit all Carlson, 146 N.H. at 56-58;

unsustainable exercise of discretion. See id.; White, 1 p. 5 55 N.H. at 123. the defendant opened the door to prejudicial rebuttal evidence absent an 146 N.H. at 56. Therefore, we will not upset the trial court’s ruling on whether best position to gauge the prejudicial impact of particular testimony. Carlson, for the injection of prejudice. Morrill, 154 N.H. at 550. The trial court is in the admissibility” and “specific contradiction” doctrines. State v. Morrill doctrine is intended to prevent prejudice, and is not to be subverted into a rule The opening the door doctrine comprises two doctrines, the “curative, 126 N.H. 6, 21 (1985). The

misleading advantage. Id evidence in proper context. Id. evidence for his own advantage, without allowing the opponent to place the evidence favorable to his opponent, and then selectively introducing this some way. Id. The rule thus prevents a party from successfully excluding The initial evidence must, however, have reasonably misled the fact finder in

contradiction doctrine.

previously suppressed or otherwise inadmissible evidence to counter the creates a misleading advantage and the opponent is then allowed to introduce broadly applied when one party has introduced admissible evidence that White, 1 p. 5 55 N.H. 119, 124 (2007). The “specific contradiction” doctrine is more opponent seeks to introduce testimony to counter the prejudice. State v. inadmissible prejudicial evidence has been erroneously admitted, and the 547, 549-50 (2006). The “curative admissibility” doctrine applies when

evidence. testimony about the prior assaults, he did not open the door to this hearsay time capsule statements. See p. 6 potential for unfair prejudice to the defendant from admission of the victim’s Moreover, the trial court’s limiting instruction to the jury mitigated the

incidents was necessary.

inadmissible hearsay evidence of statements made before the rebellion the trial court reasonably could have determined that introducing otherwise 6 defendant alleged her testimony about the charged assaults was. Accordingly, the prior assaults could have been the result of the same rebelliousness as the that she fabricated her allegations against him because her testimony about consistent statement unfounded, especially in light of trial court’s limiting the prior assaults themselves – did not directly counter the defendant’s theory (defendant’s claim of prejudice from potential substantive use of prior result of fabrication did By contrast, here, the admissible evidence – the victim’s testimony about State v. Dean, 129 N.H. 744, 750 (1987) reasonably could have found that his claim that her testimony at trial was the to evidence of the victim’s statements in her time capsule, the trial court defendant’s testimony about his good character may not have opened the door

In this way, this case is distinguishable from Morrill

that the defendant had opened the door to them. Id The trial court had admitted the statements, in part, because it found

inadmissible hearsay for the same purpose was unnecessary.” Id. at 552. supporting its alternative explanation for [the father’s] delay, introducing . . . the door to evidence of the victim’s statements, we disagree. While the theory. Id. at 551-52. “Because the State had presented admissible evidence To the extent that the defendant argues that he never actually opened already been countered by admissible evidence that directly countered this given the jury about the father’s delay in reporting his daughter’s abuse had was error because whatever misleading impression the defendant may have

constituted inadmissible hearsay. Id. police officer. Id. On appeal, the State conceded that the statements victim’s father died before trial, the statements were introduced through a defendant’s sexual abuse of the victim. Morrill, 154 N.H. at 549. Because the victim’s father to the police regarding why he had delayed reporting the In Morrill, the trial court had allowed the State to introduce statements by the

time capsule statements and the time capsule itself were necessary. alone, was insufficient to counter this claim, and that her testimony about the determined that the victim’s testimony about the prior uncharged assaults,

asserts, are hearsay and, thus, were inadmissible. evidence of the victim’s statements in her time capsule. These statements, he The defendant contends, however, that he did not open the door to p. 7 7 The interpretation of a statute is a question of law, which we review de Resolving this claim requires that we engage in statutory interpretation.

155 (2008). nor add words that it did not see fit to include. State v. Duran, 158 N.H. 146, used. Id. at 423. We will neither consider what the legislature might have said and, where possible, we apply the plain and ordinary meanings to the words 15 p. 7 7 N.H. 421, 422-23 (2008). We first examine the language of the statute, expressed in the words of a statute considered as a whole. State v. Gallagher, interpretation, we are the final arbiter of the intent of the legislature as State v. Brown, 155 N.H. 590, 591 (2007). In matters of statutory

The defendant next argues that the trial court erred when it refused to 131 N.H. 1, 3 (1988), we first examine the defendant’s statutory claim. Morrill constitutional grounds only when necessary, see II. Jury Voir Dire White v. Town of Wolfeboro, doctrine, the court has the discretion to admit otherwise inadmissible evidence. pt. I, arts. 1, 2; U.S. CONST. amend. XIV. Because we decide cases on Under either the curative admissibility doctrine or the specific contradiction Protection Clauses of the State and Federal Constitutions. See N.H. CONST. door doctrine does not allow the admission of hearsay evidence, he is mistaken. affirm if valid alternative grounds support the decision.” State v. Beede individual voir dire in civil but not in criminal cases violates the Equal Further, to the extent that the defendant argues that the opening the “where the trial court reaches the correct result on mistaken grounds, we will either pursuant to RSA 606:1 (2001), or because to allow attorney-conducted, that the defendant is correct. We affirm the trial court, nonetheless, because defendant contends that RSA 500-A:12-a must also apply to criminal cases 801(d)(1)(B), which he argues, was error. We will assume, without deciding, voir dire of potential jurors in civil cases. See RSA 500-A:12-a, III, IV. The opening the door doctrine. He contends that they were admitted under Rule RSA 500-A:12-a. RSA 500-A:12-a provides for attorney-conducted, individual victim’s testimony about her statements and the time capsule itself under the dire potential jurors during jury selection pursuant to The defendant observes that the trial court did not, in fact, admit the

N.H. 102, 106 (200 p. 7 7) (quotation and brackets omitted).

, 154 N.H. at 549-50.

defendant’s propensity to assault his children. was told that it could not consider the statements as evidence of the the defendant’s charge that the victim had fabricated her allegations. The jury victim’s time capsule statements to the extent that they were relevant to rebut instruction). The court twice instructed the jury that it could consider the p. 8 State v. Ball We first address the defendant’s claim under the State Constitution,

general rule of statutory construction that the word “may” is permissive. State individual rights affected. State v. Chrisicos empanelled for a criminal trial “may” be examined as in civil cases. It is a, 158 N.H. 82, 87 (2008). guaranteed by the State and Federal Constitutions. See by examining the purpose and scope of the State-created classification and the The plain meaning of RSA 606:1, to the contrary, is that jurors IV to civil but not to criminal trials violates the equal protection of laws State Constitution, we must first determine the appropriate standard of review Alternatively, the defendant argues that applying RSA 500-A:12-a, III and only, id. at 232-33. In considering an equal protection challenge under our , 124 N.H. 226, 231 (1983), and cite federal opinions for guidance

omitted). will not declare it invalid except upon inescapable grounds.” Id. (quotation 70 (2006). “In reviewing a statute, we presume it to be constitutional and we question of law, which we review de novo. Akins v. Sec’y of State, 154 N.H. 67, arts. 1, 2; U.S. CONST. amend. XIV. Whether a statute is constitutional is a

procedures, and requires that RSA 500-A:12-a apply to criminal trials. as in civil cases” mandates parity between civil and criminal jury selection dire jurors on the trial.” The defendant contends that the phrase “may be examined process outlined in RSA 500-A:12-a, III and IV apply to criminal trials. Accordingly, we hold that RSA 606:1 does not mandate that the attorney voir civil cases and otherwise, as to their fitness and capacity to perform the duty of trials be subject to the same voir may be impanelled for the trial of any criminal case and may be examined as in dire process as jurors in civil trials. express terms, therefore, RSA 606:1 does not require that jurors in criminal pursuant to RSA 606:1. RSA 606:1 provides: “Petit jurors attending the court v. Korean Methodist Church of N.H. cases,” the defendant contends that it must apply also to criminal cases, 157 N.H. 254, 256-57 (2008). By its While on its face, RSA 500-A:12-a applies only to “jury selection for civil

judge’s sound discretion.” such examination “shall be within reasonable limits prescribed by the trial challenges and challenges for cause.” Under RSA 500-A:12-a, IV, the scope of jurors in order to enable counsel to intelligently exercise both peremptory case may “examine, by oral and direct questioning, any of the prospective cases as well. Pursuant to RSA 500-A:12-a, III, counsel for each party in a civil 500-A:12-a, which allows for attorney-conducted individual voir dire in civil v. Fernandez, 152 N.H. 233, 239 (2005). In 2004, the legislature enacted RSA solely by the trial judge, except in capital and first-degree murder cases. State The practice in New Hampshire has been that jury voir dire is conducted criminal voir p. 9 Because we conclude that the classification at issue between civil and

dire does not involve important substantive rights, we hold that

constitutional protection, the manner in which voir important substantive right. “[W]hile the right to an impartial jury enjoys (2005). We disagree with the defendant that the jury selection process itself is an 101 P.3d 478, 492 (Cal. 2004) (quotation omitted), cert. denied, 546 U.S. 844 essential in securing impartial juries are not transgressed.” People v. Ramos, limitations as are recognized by the settled principles of criminal law to be manner of conducting the voir dire and selecting a jury so long as such Constitutions). “Therefore, there is no constitutional right to any particular provided that these procedures do not violate the State or Federal (noting, a state is free to adopt whatever jury selection procedures it desires, (2006); see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144 n.17 (1994) People v. Robinson, 124 P.3d 363, 377 (Cal. 2005), cert. denied, 549 U.S. 953 preserved, including number of jurors (12), unanimity, and impartiality.” right to a jury trial as long as the essential elements of a jury trial are important substantive right, we must apply intermediate scrutiny. See that the Legislature may establish reasonable regulations or conditions on the Goding, 124 N.H. 781, 783 (1984). “Federal and state courts have held . . . Cal. Rptr. 2d 279, 285 (Ct. App.), review denied (Cal. 1992); see State v. is but a means to achieve the end of an impartial jury. People v. Boulerice, 7 jury.” Morgan v. Illinois, 504 U.S. 719, 729 (1992). Viewed as such, voir dire catechism for voir dire, but only that the defendant be afforded an impartial 108, 111 (2001) (quotation omitted). “The Constitution . . . does not dictate a within the sound discretion of the trial judge.” State v. McLellan, 146 N.H.

right. The defendant counters that because the jury selection process is an Article 21 elevates the mechanics of jury selection to an important substantive that “none but qualified persons [are] appointed to serve” as jurors, Part I, as “inestimable” and stating that “great care ought to be taken” in ensuring attendance.” The defendant argues that by describing the right to a jury trial serve; and such ought to be fully compensated for their travel, time, and ought to be taken, that none but qualified persons should be appointed to the fullest advantage of the inestimable privilege of the trial by jury, great care Part I, Article 21 of the State Constitution, which provides: “In order to reap Sandra H., 150 N.H. 634, 638 (2004). To support this assertion, he relies upon

classification. See id. important substantive right or application of some recognized suspect classification at issue does not involve infringement of a fundamental right, an State contends that we need apply only rational basis review because the The parties disagree as to the level of scrutiny we should apply. The and distinguishing between civil and criminal voir p. 10 criminal cases was the legislature’s actual purpose in enacting RSA 500-A:12-a

basis for the same reasons that we have articulated. See The court first determined that the proper level of scrutiny was rational Regardless of whether preventing abuse of the jury selection process in starting with civil trials, before expanding the change to criminal trials. “The rationally have decided to change the requirements for voir dire incrementally, and would result in delayed criminal trials. The legislature could also individual attorney-conducted voir dire in all criminal cases would be costly concerns. The legislature rationally could have believed that requiring distinguishing between civil and criminal voir dire include cost and speedy trial Chrisicos, 158 N.H. at 88-89. Other conceivable justifications for justification for so doing, and, thus, constitutes a rational basis. See

rights to equal protection. Id. Therefore, the court concluded, this provision did not deny the defendant his is a legitimate purpose to which this provision was rationally related. Id. prevent criminal counsel from abusing the jury selection process, and that this which required the court to conduct voir dire in a criminal trial, was enacted to Id. The court observed that California Code of Civil Procedure section 223, constitutional because it was rationally related to a legitimate state purpose. determined that the distinction between criminal and civil voir dire was

disagreed. Procedure section 223 violated his right to equal protection, and the court court’s examination. Id. The defendant argued that California Code of Civil although the parties upon a showing of good cause could supplement the Procedure section 223, the court conducted voir legislation is rationally related to a legitimate state interest. Id dire in a criminal case, criminal cases. Robinson Under the rational basis test, we determine whether the challenged, 124 P.3d at 377. Under California Code of Civil RSA 500-A:12-a, conferred a right of attorney voir dire in civil cases, but not in Robinson involved California Code of Civil Procedure section 222.5, which like

brackets omitted). whether or not the basis has a foundation in the record.” Id. (quotations and negative every conceivable basis which might support the classification, the classification is arbitrary or without some reasonable justification” and “to challenging the alleged statutory classification “has the burden to prove that

standard to be applied is that of rationality.” (quotation and brackets omitted)). application of some recognized suspect classification, the constitutional infringement of a fundamental right, an important substantive right, or the rational basis test applies. See Chrisicos, 158 N.H. at 87 (“Absent some any party, including the party calling the witness.” N.H. R. Ev. p. 11 Rule 607 provides that the “credibility of a witness may be attacked by

involving L.W. counts involving L.W. The jury acquitted the defendant of the remaining count the court dismissed all of the counts involving T.W. and all but one of the impeached them with their prior statements. At the close of the State’s case, testified that the defendant had never had sex with them, and the State the Public Defender. The State called both L.W. and T.W. as witnesses. Both Both L.W. and T.W. later recanted in interviews with an investigator for

be used for impeachment purposes even when the party calling the witness in the exercise of its sound discretion, to allow a witness’s prior statements to inconsistent statement. We have construed Rule 607 as enabling a trial court, Rule 613(b), such impeachment may be accomplished by use of a prior involving T.W. 607. Under counts of incest for acts involving L.W., and five counts of incest for acts them. The defendant, therefore, was charged with one count of AFSA and six Both T.W. and L.W. told the police that the defendant had had sex with

distinction between civil and criminal jury voir

In his pro

III. Impeachment of Victim’s Sisters

State v. Beltran, 153 N.H. 643, 651 (2006). We review this claim under our unsustainable exercise of discretion standard. their prior inconsistent statements. See State v. Soldi, 145 N.H. 571 (2000). allowing the State to impeach L.W. and the victim’s other sister, T.W., with Having articulated these legitimate state interests to which the

se brief, the defendant argues that the trial court erred by

at 637-39, we necessarily reach the same result under both constitutions. than does the State Constitution in this context, see In re Sandra H., 150 N.H. State Constitution. As the Federal Constitution affords no greater protection trials only does not violate the defendant’s right to equal protection under the A:12-a is rationally related, we conclude that applying RSA 500-A:12-a to civil

appeal dismissed, 445 U.S. 921 (1980). more than a carefully balanced sculpture.” (quotation and citation omitted)), problem that appears most acute, even if the net result resembles a crazy quilt particular statute, . . . the legislature may address itself to only that phase of a Estate of Cargill v. City of Rochester, 119 N.H. 661, 668 (1979) (“In enacting a 339 F.3d 582, 596 (7th Cir. 2003), cert. denied, 541 U.S. 935 (2004); see legislative powers protected by the rational-basis standard.” Johnson v. Daley, happens) without changing the rules for everyone, is one of the most important ability to take one step at a time, to alter the rules for one subset (to see what p. 12 Affirmed

BRODERICK, C.J.