2007-610, STATE OF NH v. ERIC HEBERT

The defendant, Eric Hebert, challenges his

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant

No. 2007-610 Hillsborough-northern judicial district

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E-mail at the following address: reporter@courts.state.nh.us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well head with a cell phone. p. 2 Picard had apparently stabbed a drug dealer and had beaten someone over the Picard was violent and had a reputation for violence. He further testified that

had teeth extracted, and had his jaw wired shut for several months.

his fist. He introduced evidence to support his fear of Picard, testifying that

attention for his injuries, which included a broken jaw. He underwent surgery, told the defendant to leave his property. Picard subsequently sought medical Picard was lucky that he had not hit him with the hose. At that point, Gilles door to protect himself. He denied striking Picard with any object other than toward his console, so he punched him and then immediately shut Picard’s car accordance with a pre-trial ruling, the State asked the defendant during crosstestified that he thought Picard was retrieving a weapon when he reached

about sixteen inches in length. defendant was returning to his car, Picard saw him carrying a black object Picard either that he should have broken Picard’s legs a long time ago, or that when he sat up, the defendant struck him in the face with an object. As the had lied to the police by claiming that Picard threw a punch at him first. In with Picard in his side mirror as he approached the car on foot. The defendant

brandished a black rubber hose at Gilles’ home. He also acknowledged telling he did so, Picard reached into his console to find money to buy cigarettes, and At trial, the defendant denied making this statement but admitted that he had earlier to the police. During his trial testimony, the defendant admitted that he additional $200, stating that he had “paid $200 to get [Picard’s] legs broken.” the defendant, after he parked behind Picard’s vehicle, he made eye contact

behind him. He alighted from his car and walked toward Picard’s vehicle. As that his version of events at trial differed from the version he had provided spotted Picard’s car at a gas station, he pulled in, unnoticed, and parked retrieve the money. When Gilles gave the defendant $400, he demanded an acted in self-defense, using only a justifiable measure of force. According to The State challenged the defendant’s credibility by submitting evidence however, noticed a car depart, and, soon thereafter, he followed it. When he

and Picard did as requested. The two then returned to the sister’s home to At trial, the defendant admitted to assaulting Picard but claimed that he money and then left through a rear door to avoid an encounter. The defendant,

uncle to borrow money to pay the debt. The defendant initiated the phone call, there, the defendant arrived. Picard told Tasha that he owed the defendant cigarettes, and when he returned, the defendant demanded that Picard call his After the two argued briefly, Picard went into the gas station to purchase

On August 18, 2005, Picard visited his sister Tasha, and, while he was

attempted to collect on the debt, but Picard avoided him. contended that the debt was much less. After Picard moved out, the defendant false statement, regardless of the punishment. p. 3 prejudicial effect to the defendant, or (2) involved dishonesty or

that the probative value of admitting this evidence outweighs its

simple assault. jury acquitted the defendant of second degree assault and convicted him of commit assault and his 2004 conviction for resisting arrest. Ultimately, the

impeachment purposes. under which he or she was convicted, and the court determines by death or imprisonment in excess of one year under the law during cross-examination but only if the crime (1) was punishable 3

to cross-examine the defendant on his 1993 conviction for conspiracy to defendant’s trial provided, in pertinent part:

609(a) to impeach his credibility.

to ensure that it relied upon his habitual offender conviction solely for

admitted if elicited from the witness or established by public record

value of the prior felony conviction significantly outweigh[ed] its prejudicial N.H. R. Ev. 609(a) (amended 2007). Because it concluded that “the probative

admission of additional prior convictions. Specifically, the State was permitted 609(a) was erroneous. The version of Rule 609(a) in effect at the time of the at the State’s request the trial court ruled that he had opened the door to the had testified on direct examination that he was not generally a violent person, upon the admission of his 1998 felony habitual offender conviction under Rule

that the trial court erred by failing to provide a limiting instruction to the jury permitting the State to introduce it under Rule 609(a). Second, he contends offender conviction is two-fold. First, he argues that the trial court erred in evidence that the witness has been convicted of a crime shall be

For the purpose of attacking the credibility of a witness,

We first address whether admission of the conviction pursuant to Rule

due to multiple motor vehicle convictions. Additionally, because the defendant direct examination that he was not violent. Rather, he focuses exclusively

The defendant’s challenge to the admission of his 1998 felony habitual

conviction was based upon driving after being certified as a habitual offender and 2004 misdemeanor convictions that were offered to rebut his testimony on offender (habitual offender conviction). On re-direct, he explained that the On appeal, the defendant does not challenge the admission of his 1993 convicted for operating a motor vehicle after being certified as a habitual

under Rule 609(a). The defendant acknowledged that in 1998, he had been examination about a prior felony conviction to further impeach his testimony a danger to other travelers. We are not persuaded.

p. 4 jury sentiment, at a minimum implying that he was an unsafe driver and posed inherent prejudicial effect because the conviction could have aroused negative assault trial. He contends that its minimal probative value is outweighed by its

defendant is on trial. challenging his credibility, and the conviction occurred nine years before his introduced for impeachment purposes and the crime for which the also the defendant, the similarity between the conviction

did not involve dishonesty or a false statement, the State had other evidence other mainsprings of human action, and (2) when the witness is

the centrality of the credibility issue.

probative value for impeachment of his credibility because the underlying crime arouse its sense of horror, provoke its instinct to punish, or trigger The defendant argues that the habitual offender conviction had little

would be the “most prejudicial.” Id. (quotations omitted). factors are pertinent: the charged crime is “least prejudicial,” while a conviction for the same crime a continuum in which a conviction for a crime that is the most different from Id. at 78 (quotation and citation omitted). The second factor is measured along

currently at issue, the importance of the witness’s testimony, and

(1) the inherent ability of a crime to appeal to a jury’s sympathies,

convictions for crimes that do not involve dishonesty or false statement, two Id word, and lack of trustworthiness may be evinced by [a defendant’s]. at 76-77 (quotation omitted). When examining the prejudicial effect of

similarity between the past crime and any conduct of the witness unreasonable to the prejudice of his case. conviction and the witness’s subsequent history, the degree of the impeachment value of the prior conviction, the date of the

prejudicial effect under Rule 609(a), the following factors are pertinent: Id. (quotations and brackets omitted). When balancing the probative value and and repeated contempt for laws which he is legally and morally bound to obey.”

Jurors ought to be informed of “what sort of person is asking them to take his crimes do not directly involve a lack of veracity.” Id. at 77 (quotation omitted). “Prior convictions are admissible to impeach a defendant even if the

demonstrating that the trial court’s ruling was clearly untenable or State v. Deschenes, 156 N.H. 71, 76 (2007). The defendant bears the burden of We review its ruling under an unsustainable exercise of discretion standard. effect,” the trial court permitted the State to use it for impeachment purposes. explanation for lying and to trust the account he gave at trial.

p. 5 his credibility remained at issue because he asked the jury to believe his admission. Moreover, even after the defendant admitted to lying to the police, suggestion that he asked the trial court to reconsider its ruling in light of his offender conviction represents. unreasonable given the repetitive transgression of the law that the habitual conclude that the trial court’s decision to admit it was clearly untenable or

after the trial court rendered its pre-trial ruling, and the defendant makes no sufficiently dissimilar to the charged assault. diminish the probative value of the habitual offender conviction, we cannot

trustworthiness, even when such convictions occurred nearly ten years earlier).

conviction was inherently horrifying even though trial court did not expressly however, the defendant first admitted to this lie during cross-examination, well See id. (reviewing whether prior trustworthiness. This conclusion is not clearly untenable or unreasonable. when initially recounting his version of the assault. As the State points out, mean that the conviction in this case was not inherently horrifying and was points to the State’s reliance upon his trial testimony that he lied to the police conviction’s probative value. While we agree that the nine-year span may reviewing prejudicial effect as outlined in Deschenes, we interpret its ruling to driving offense.” While the trial court did not explicitly apply the factors for diminished because the habitual offender conviction “may be considered a With respect to prejudicial effect, the trial court determined that it was

offenses within nine-month time frame could be especially probative of

repeated contempt for the law, and thus provided insight into the defendant’s court reasoned that the habitual offender conviction evinced an abiding and probative value of his habitual offender conviction. The defendant specifically between his 1998 felony conviction and the 2007 trial to challenge the habitual offender was based upon multiple motor vehicle violations. The trial Finally, the defendant relies upon the considerable passage of time

contempt for the law is abiding and repeated).

not involving dishonesty or false statement);

means of impeaching his credibility utilized by the State minimized the importance.” At trial, the defendant explained that his certification as a Further, we are unpersuaded by the defendant’s assertion that the other

(number of prior convictions may evince the degree to which defendant’s

law may evince lack of trustworthiness though the violations may be for crimes See State v. Hickey, 129 N.H. 53, 57 (1986) (abiding and repeated contempt for

justified in assaulting Picard, and, thus, his credibility was “of particular asserting self-defense, the defendant asked the jury to believe that he was it did not involve dishonesty or a false statement. The trial court found that by of his felony offense for driving after being certified a habitual offender because First, we reject the defendant’s attempt to minimize the probative value arbitrary and unpredictable results.” p. 6 in every case, deciding cases becomes a mere exercise of judicial will, with

defendant expressly waives his right to such an instruction on the record.

the rule of law,” because “when governing legal standards are open to revision

we overrule that portion of conviction should be reversed. precedent, (2007) (quotations omitted). When determining whether to depart from

lightly. The doctrine of stare decisis “demands respect in a society governed by Overruling any part of established precedent is not a task we undertake cross-examination pursuant to Rule 609(a)). contemporaneous objection requirement.

732, 736-37 (2005) (referring to recently adopted plain error rule). Accordingly, harmless error standard of review to determine whether the defendant’s adopted the plain error rule. Sup. Ct. R. 16-A; see State v. MacInnes, 151 N.H. Skidmore, 138 N.H. at 202. Since Skidmore was decided, however, we have permitted appellate review even in the absence of a defendant’s objection. See

limiting instruction when evidence of a prior conviction is utilized on crosswithout a limiting instruction was error unless a defendant specifically waived Today, we stand by our holding that a trial court is required to give a

pursuant to Rule 609(a), it must give a limiting instruction. which prior conviction evidence is admitted for impeachment purposes during Skidmore exception to contemporaneous objection rule to circumstances in

at 203. We examined the consequence of the trial court’s error under a

created an exception to the contemporaneous objection requirement and

held that the admission of prior conviction evidence pursuant to Rule 609(a) 140 N.H. 317, 318 (1995); see Skidmore, 138 N.H. at 203. In Skidmore, we

defendant, when a trial court admits such evidence for impeachment purposes Because evidence of a prior conviction is inherently prejudicial to a

defendant’s argument, we first determine the proper standard of review. to State v. Skidmore, 138 N.H. 201 (1993). To resolve the merits of the conviction requires that his conviction for simple assault be reversed pursuant instruction to the jury regarding its proper use of his felony habitual offender The defendant next argues that the trial court’s failure to give a limiting

that its ruling is not clearly untenable or unreasonable. address first prong of prejudicial effect test). We agree and conclude, therefore, instruction may be reviewed only for plain error. p. 7 issue for appeal. Otherwise, the trial court’s failure to provide a limiting

to the interests of justice.

policy that is grounded in common sense and judicial economy.

standard of review in this case, however, would lead to a harsh result, contrary review the trial court’s failure for plain error. Application of the plain error

affording the trial court the opportunity to correct error in the first instance, a

conviction evidence is elicited during cross-examination pursuant to Rule N.H. 507, 511 (2007) (applying new holding prospectively where retroactive a trial court fail in its obligation to provide a limiting instruction after prior harmless error standard of review to the trial court’s error. Accordingly, should See Appeal of State Employees’ Assoc. of N.H., 156

the old rule of significant application or justification. a limiting instruction in this case, our holding today would dictate that we changed, or come to be seen so differently, as to have robbed remnant of abandoned doctrine; and (4) facts have so Because the defendant did not object to the trial court’s failure to provide

provide such a limiting instruction abides by our well-established policy of defense counsel to contemporaneously object to the trial court’s failure to even when a defendant does not object, is no longer justified. Requiring

the contemporaneous objection requirement and consequently applied the Today, we overrule that portion of Skidmore that created an exception to decided Ainsworth, 151 N.H. 691, 693-94 (2005). so far developed as to have left the old rule no more than a See State v.

failure to provide a limiting instruction to the jury in the Rule 609(a) context, to the contemporaneous objection rule, which deems preserved a trial court’s brought to the attention of the trial court. Therefore, the Skidmore exception review jurisprudence because it permits review of error that was not otherwise

Skidmore and constitutes a significant development in our standard of

review standard was not within the body of New Hampshire law at the time we substantial rights. See State v. Panarello, 157 N.H. 204, 207 (2008). This discretion to review unpreserved error on appeal for plain error that affects consequence of overruling; (3) related principles of law have exception to the contemporaneous objection rule and provides us with the reliance that would lend a special hardship to the practical workability; (2) the rule is subject to a kind of The plain error review standard, Supreme Court Rule 16-A, is an

the latter two prompt us to overrule Skidmore in part. Id. at 724-25. The first two factors have little implication in this case. Rather,

the rule has proven to be intolerable simply by defying [s]everal factors inform our judgment, including whether: (1) p. 8 8

inference from a prior conviction; that is, that a defendant had a disposition to

inconsequential to the strength of the State’s evidence of guilt.” quantity or weight and if the inadmissible evidence is merely cumulative or

doubt that the inadmissible evidence did not affect the verdict.” overrules support a finding of guilt, but whether it can be said beyond a reasonable conviction should be upheld. limiting instruction helps ensure that the jury will not draw an impermissible interests of justice. Accordingly, that portion of our holding today that partially evidence to impeachment purposes only. Skidmore, 13 p. 8 8 N.H. at 202. A by shifting the burden of proof from the State to the defendant, contrary to the was not affected by the admission.” evidence is admitted under Rule 609(a) is to limit a jury’s consideration of the The purpose for providing a limiting instruction when prior conviction

Connor, 156 N.H. 544, 549 (2007).

the alternative evidence of the defendant’s guilt is of an overwhelming nature, (quotation omitted). “An error may be harmless beyond a reasonable doubt if

question whether the evidence, apart from that erroneously admitted, would instruction in the Rule 609(a) context was harmless and, thus, the challenged

application of the plain error standard in this case would create a harsh result harmless only if it is determined, beyond a reasonable doubt, that the verdict give a limiting instruction in this case. “The erroneous admission of evidence is Skidmore, we apply the harmless error standard to the trial court’s failure to to overturn his conviction. For the purposes of this appeal, therefore, and in conformity with standard requires a defendant to establish the underlying requisites necessary law issues”); Tierney, 150 N.H. at 343 (same). instruction in Rule 609(a) context); courts clearly can determine the retroactivity of their own decisions on state date of this opinion. See State v. Tallard, 149 N.H. 1 p. 8 83, 185 (2003) (“state

Skidmore applies prospectively to trials commenced on or after the

establishing on appeal that the trial court’s error in failing to provide a limiting

that error affected outcome of proceeding). Therefore, we conclude that that new rule benefits appealing defendant). Specifically, under refused to reverse conviction for plain error because defendant failed to show served); See State v. Lopez, 156 N.H. 416, 426 (2007) (court

(burden on State to prove harmless error). In contrast, the plain error review

harmless error standard to trial court error of failing to provide limiting

governing law at the time of the defendant’s trial, the State bears the burden of

application of new constitutionally based rule of criminal procedure assumes

cf. State v. Tierney, 150 N.H. 339, 343-44 (2003) (retroactive

retroactive application would cause harsh result and justice would be better 72 p. 8 8, 729-30 (2003) (judicial decisions can be applied prospectively where upon prior holding); Lee James Enters. v. Town of Northumberland, 149 N.H. application would lead to a harsh result due to parties’ reasonable reliance money from Gilles, Picard told her that the defendant just hit him in the face

p. 9 with the defendant. She also testified that when the two later returned to get

he was suddenly assaulted by him with a long black object.

testified that Picard left her house that day in order to avoid a confrontation in the case supported Picard’s version of the assault. For example, Tasha Picard was lucky that he did not hit him with it. Furthermore, other testimony

he was trying to avoid the defendant and was parked at the gas station when he struck Picard with his fist to protect himself. According to Picard, however, Consequently, he feared that Picard was retrieving a weapon. He claimed that toward his car, Picard promptly bent down in the direction of his car’s console.

Picard either that he should have broken Picard’s legs a long time ago, or that

to confront him about the debt. He testified that when Picard saw him walking

only showed it to Picard after the two had returned to Gilles’ house, telling defendant also admitted to owning a rubber tube or hose, but insisted that he he got some money on the debt and to following Picard to Gilles’ house. The

on the day of the assault, he parked behind Picard at the gas station in order

he grew “very upset” because Picard continually avoided him. He admitted that testified that he repeatedly sought repayment of a debt from Picard, and that admitted to striking Picard, but claimed that he acted in self-defense. He

personal safety, he nonetheless failed to return to his car and drive away. about the debt. He also testified that when he became worried about his own nonetheless parked behind him that day in order to initiate a confrontation

Moreover, the defendant undermined his own explanation of the assault. lied to the police when he told a detective that Picard swung at him first.

denies any involvement with the charged offense. Rather, the defendant

about his fear that Picard could be volatile, violent and dangerous, he his knowledge of prior acts of violence that Picard had allegedly committed and other mainsprings of human action. State v. Taylor, 141 N.H. 89, 93 (1996). For instance, while he testified about will stir up the jury’s sense of horror and outrage against a defendant or trigger See

same event, the defendant impeached his own credibility by admitting that he While the jury was asked to decide between two different versions of the

defendant’s guilt is overwhelming. This is not a case in which the defendant limiting instruction did not affect the verdict. First, the evidence of the

limiting instruction serves to minimize the likelihood that the prior conviction

doubt that admission of the defendant’s habitual offender conviction without a Under the circumstances of this case, we conclude beyond a reasonable

danger that a jury will draw an impermissible inference). Additionally, a is to explain proper purpose for relying upon such evidence and to minimize giving limiting instruction accompanying evidence admitted under Rule 404(b) guilt for the charged crime. See id.; cf. Hickey, 129 N.H. at 61 (purpose of commit crime or that a prior conviction constitutes substantive evidence of p. 10 10

nature of the charged offense. with a propensity to intentionally commit a violent act against another, the

and did not mention it during closing argument. unsafe driver, we are convinced that the jury would not equate such violations question about the conviction during its cross-examination of the defendant sense of horror, outrage or an instinct to punish. The State asked only one

instruction was harmless.

jury impression that defendant acted similarly regarding the charged crimes).

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred. have inferred that the defendant had contempt for motor vehicle laws or was an was based upon multiple motor vehicle violations. Thus, while the jury may propensity to commit the charged assault or that would have aroused the jury’s Affirmed. defendant was charged. The jury learned that the habitual offender conviction

reasonable doubt that the trial court’s error in failing to provide a limiting given). Accordingly, we conclude that the State has established beyond a

burglary conviction with events underlying charged crimes in manner that gave

jury in a manner that would have suggested that the defendant had a conviction was significantly different from the assault offense for which the Finally, the State did not present the habitual offender conviction to the

crimes of forgery and receiving stolen property, where no limiting instruction relied upon burglary conviction as substantive evidence of guilt of charged

the defendant’s habitual offender conviction was inconsequential because that Second, we conclude that any improper inference that the jury drew from

the defendant’s guilt was overwhelming. with a long object. Therefore, we conclude that the evidence presented to prove