2009-770, State of New Hampshire v. Daniel J. Letendre

Michael A. Delaney

No. 2009-770

Hillsborough-northern judicial district

counts of simple assault. See was convicted of two counts of aggravated felonious sexual assault and two DUGGAN, J. Following a jury trial, the defendant, Daniel J. Letendre,

Pamela E. Phelan

2008, E.M.’s parents went outside to investigate a loud noise, while E.M. ___________________________ ten-year-old victim, E.M., lived in the same apartment building. On March 18, The jury could have found the following facts. The defendant and the

victim’s guardian ad litem to sit with her during her testimony. We affirm. statements the victim made concerning the defendant; and (2) permitted the appeal, he argues that the Trial Court (Abramson, J.) erroneously: (1) admitted

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 unsustainable exercise of discretion.” State v. Legere p. 2 admissibility of evidence, and we will not disturb its decision absent an

“We accord the trial court considerable deference in determining the

Evidence 803(4). of medical diagnosis or treatment as required by New Hampshire Rule of evidence to conclude that E.M. intended to make the statements for purposes hearsay statements E.M. made to McMurray because there was insufficient The defendant first argues that the trial court erred in admitting the

Prior to trial, the defendant filed a motion in

the remaining charges. This appeal followed. of aggravated felonious sexual assault. The jury convicted the defendant on After the close of the State’s case, the court dismissed two of the counts

assault. sexual assault and was also charged by information with two counts of simple tongue. The defendant was indicted on four counts of aggravated felonious sexual intercourse, and in another, the defendant kissed E.M. using his alleged that during one of these encounters, E.M. and the defendant engaged in defendant, which occurred between February 1 and March 17, 2008. The State The State also alleged two other encounters between E.M. and the

emotions of the jury. The court also overruled this objection. would lend the victim’s testimony greater credibility and improperly affect the E.M. during her testimony, arguing that the guardian ad litem’s presence The defense also objected to the guardian ad litem’s request to sit beside 2

demonstrate an unsustainable exercise of discretion, the defendant must show (2008), cert. denied, 129 S. Ct. 1623 (2009) (quotation omitted). To

defendant. she made statements to a sexual assault nurse examiner implicating the the police. E.M. was subsequently taken to the hospital by ambulance where E.M.’s mother then questioned her privately, and E.M.’s father contacted

the objection after a hearing. motion. The defendant renewed his objection at trial and the court overruled and not for purposes of medical diagnosis or treatment.” The court denied the examiner, because they were made “for purposes of a criminal investigation the statements E.M. made to Michelle McMurray, the sexual assault nurse

or as “if she had done something.” parents testified that E.M. was shaking and looked “like something happened,” defendant descending a staircase that was visible from the outside. Both sexually assaulted her. While outside, E.M.’s parents observed her and the remained in the building. She testified that during this time the defendant asked for nor declined any medical treatment, nor did [she] make any physical p. 3 The defendant argues that the first part was not met because E.M. “never

N.H. R. Ev.

Graf extra care in determining the declarant's intent” when the declarant is a child. one of this test. With respect to part one’s intent requirement, “we require 3 The defendant challenges the trial court’s findings regarding only part

N.H. 750, 755 (1993). purpose for which information is being obtained from her.” State v. Wade circumstances indicating their trustworthiness., 136 for a court to discover whether a young child completely understands the affirmatively finds that the proffered statements were made under , 143 N.H. at 303-04 (quotations omitted). This is because “[i]t is difficult when the statements are made, if the court, in its discretion, exception to apply. State v. Graf or treatment, regardless of to whom the statements are made, or We have interpreted Rule 803(4) as having a three-part test for the external source thereof insofar as reasonably pertinent to diagnosis or sensations, or the inception or general character of the cause or and describing medical history, or past or present symptoms, pain, trustworthiness. Id. at 743. find that the circumstances surrounding the statements support their diagnosis or treatment.” Id. at 741 (quotation omitted). Third, the court must sensations, or their cause or source to an extent reasonably pertinent to Second, “the statements must describe medical history, or symptoms, pain, medical diagnosis or treatment.” State v. Roberts, 130 N.H. 731, 740 (1993). find first that the declarant intended to make the statements to obtain a

is normally no incentive to fabricate. Soldi, 145 N.H. at 575-76. motivation to obtain an accurate diagnosis or proper treatment and thus there [s]tatements made for purposes of medical diagnosis or treatment with the purpose of obtaining medical attention are usually made with the Treatment,” applies to: 803(4). The rationale for this exception is that statements made One such exception, “Statements for Purposes of Medical Diagnosis or

court to show the truth of the matter asserted in the statement.” State v. Soldi “Hearsay is generally defined as an extrajudicial statement offered in

R. Ev. 801(c), 802. inadmissible, subject to certain well-delineated exceptions. Id.; see also N.H. 145 N.H. 571, 575 (2000) (quotation omitted). Hearsay evidence is generally

prejudice of his case. Id. that the trial court’s ruling was clearly untenable or unreasonable to the observed her parents crying in response to her revelations. Cf p. 4 ambulance shortly after she spoke with her mother about the defendant and court’s finding of the declarant’s intent. E.M. was taken to the hospital by We conclude that the record contains ample evidence to support the trial

prong has been met.

made those statements that it involved treatment. So the first

[E.M.] made the statements, so she knew at the time that she role as a nurse was and what the reasons for the exam were before And finally, Nurse McMurray had explained to her what her

her emotional health. reason for her hospital visit [to be] related to both her physical and to the hospital supports a finding that the declarant knew the complaints, the upheaval in her home, and her visit by ambulance

Further, the temporal relationship between the declarant’s

involve treatment. could happen to her if she went to the hospital and that it would was that she did get a shot. But she certainly was aware what hospital she was going to get a shot. In fact, I think her testimony

that she specifically testified that she knew if she went to the was going to the hospital to be treated. And I base this on her fear she knew she was going to the hospital. The declarant knew she and in finding that this prong has been met, the Court notes that

statements, which can be established by circumstantial evidence,

145 N.H. 544, 555 (2000) (“temporal proximity” between complaints,

The first [part] is the declarant’s intent in making the

respect to the first part, the court stated: test separately and articulated the evidence that satisfied each part. With Here, however, the trial court considered each part of the Rule 803(4)

and two of the Rule 803(4) test. Id. at 756-57. Additionally, the trial court’s ruling indicated that it had conflated parts one the child’s intentions in making the hearsay statements. Id. at 756. speaking with and examining the child, nothing in the record shed any light on although the doctors testified about their states of mind and intentions in statements the child made to a gynecologist. Id. We reversed because, child . . . .” Id. at 753 (quotation omitted). The trial court also admitted similar his purposes were, and that he had concerns with respect to the safety of the within 803(4), as this is taking a medical history. The doctor has testified what The trial court admitted her statements under Rule 803(4), stating, “[T]his falls revealed to a pediatrician that she had been sexually assaulted. Id. at 752. assistance.” The defendant relies upon Wade, in which a five-year-old child complaints to McMurray that might have indicated she was seeking medical medical visit. See p. 5 child and doctor is relevant to the child’s understanding of the purpose of a Finally, the defendant argues that an existing relationship between a

evidence of E.M.’s intent. See testimony is direct evidence of McMurray’s intent, it is also circumstantial bruises that needed any kind of medical attention at that time.” While this terminology that she would understand, but that she didn’t have any bumps or physically okay, that she didn’t have any bumps or bruises, of course in examining her that McMurray’s “role as a nurse was to make sure that she was McMurray also testified that she explained to E.M. before questioning or 5

be present, is relevant to determining the child’s understanding. However, we

Graf, 143 N.H. at 304. We agree that this factor, should it

purpose of a visit to the hospital). twelve- and eight-year-old declarants could be expected to understand medical purpose McMurray articulated. Cf. White, 145 N.H. at 555 (inferring that understand such an explanation and tailor her statements to the medical Renville for same proposition). A ten-year-old child could be expected to While it is true that E.M. never complained of pain, see questions were necessary to treat her); see also Wade, 136 N.H. at 756 (citing he explained to child before questioning her that his examination and (8th Cir. 1985) (eleven-year-old child’s statements to doctor admissible where

being. what happened and that she understood that it affected her health and well- This testimony supports an inference that E.M. was scared and upset about E.M.’s mother questioned her privately, E.M. was “crying, yelling for mommy.” and scared, and that her arms were in “a protective position.” Later, after she was “shak[ing] like something happened,” that she was noticeably upset made any complaints that required an ambulance. E.M.’s parents testified that that there was no evidence offered as to whether E.M. exhibited symptoms or contention that she made no “complaints, let alone medical complaints,” and that hospital visit was for medical purpose), we disagree with the defendant’s at 555 (child’s complaint of pain was factor in finding that child understood

to “sexual relations.” treatment and understood the reason for her visit to the hospital to be related might need to get a shot. Thus, E.M. associated hospitals with medical person. She also testified that she feared going to the hospital because she in this person’s apartment where she had some [sexual] relations” with that somebody’s house that was a couple of doors down from her, and that she was why she had been taken to the hospital, she responded that “she was at Cir.), cert. denied, 546 U.S. 972 (2005). Later, when McMurray asked E.M. 2d 46 (D.N.H. 2003), vacated on fed’l constitutional grounds, 399 F.3d 18 (1st 932 (2001), petition for habeas corpus denied by White v. Coplan, 296 F. Supp. supports finding that declarant had requisite intent), cert. denied, 533 U.S. “emotional upheaval” surrounding the incident, and visit to the hospital broad discretion in regulating the proceedings before it. See p. 6 Our case law and evidentiary rules make clear that the trial court enjoys 6 indicated that her request was “based on what the victim ha[d] said to [her].” requested to sit beside E.M. during her testimony. The guardian ad litem defendant to propose alternatives, a cautionary instruction to the support Before the State called E.M. to the stand, the guardian ad litem showing of “substantial need” for the accommodation, an opportunity for the with or assist a witness. These factors include a requirement for a preliminary judge’s discretion in determining whether to permit” a support person to sit 784 A.2d 719 (N.J. 2001), which identified nine “factors to guide the trial holding in State v. T.E., 775 A.2d 686 (N.J. Super. Ct. App. Div.), cert. denied, support person to sit with a witness. He argues that we should adopt the The defendant urges us to require extensive safeguards before allowing a

Comp. Laws Ann. § 600.2163a(4) (West 2010). Code § 868.5 (Deering Supp. 2010); Idaho Code § 19-3023 (Michie 2004); Mich. emotional support to the child.” 18 U.S.C. § 3509(i) (2006); see also Cal. Penal shall have the right to be accompanied by an adult attendant to provide sanctions the practice: “A child testifying at or attending a judicial proceeding sat 15-20 feet behind eleven-year-old witness). Additionally, a federal statute 1989); Mosby v. State, 703 S.W.2d 714 (Tex. Ct. App. 1985) (guardian ad litem Ct.) (four-year-old sat on grandmother’s lap), appeal denied, 563 A.2d 887 (Pa. (eight-year-old sat on aunt’s lap); Com. v. Pankraz, 554 A.2d 974 (Pa. Super. during testimony); State v. Johnson, 528 N.E.2d 567 (Ohio Ct. App. 1986) State, 522 N.E.2d 362 (Ind. 1988) (mother held the hand of her nine-year-old with six-year-old witness), cert. denied, 608 A.2d 690 (Conn. 1992); Baxter v. e.g., State v. Menzies, 603 A.2d 419 (Conn. App. Ct.) (guardian ad litem sat testifying, numerous other jurisdictions have permitted such involvement. See, issue of allowing support persons to accompany child witnesses while and bolstered E.M.’s credibility.” LaPorte, 134 N.H. 73, 77 (1991). While we have never addressed the specific accommodation unfairly and improperly appealed to the emotions of the jury the trauma experienced by child victims during the judicial process.” State v. extraordinary accommodation was necessary.” He contends that “the We have also recognized that there is a legitimate state interest in “reduc[ing] Trustees of Dartmouth College argues that “there was an insufficient basis upon which to find that such an, 160 N.H. 452, 461 (2010); N.H. R. Ev. 611(a). guardian ad litem to sit beside E.M. during her testimony. Specifically, he, e.g., Sabinson v. The defendant next argues that the trial court erred in permitting the

its discretion in finding that the first part of the Rule 803(4) test was satisfied. to apply. We therefore hold that the trial court did not unsustainably exercise have never held that this factor must be present for the Rule 803(4) exception give a cautionary instruction, sua p. 7 person’s role in the proceedings. Therefore, in the future, trial courts should trial. However, the jury should not be left to speculate as to the support the guardian’s presence. The defendant never requested such an instruction at jury was not to give the witness’s testimony any additional weight as a result of cautionary instruction to the jury to explain who the guardian was and that the The defendant further argues that the trial court should have given a

Affirmed

DALIANIS, C.J.