2011-678, State of New Hampshire v. Ernest Willis

The defendant, Ernest Willis, appeals his conviction,

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

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

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 and/or superior physical strength.” See RSA 632-A:2, I(a). Both sets of

p. 2 that he “overcame the victim through the actual application of physical force

(home indictments). The home indictments included an AFSA count alleging

the other set included charges that intercourse had occurred in C.A.’s home charges that intercourse had occurred in the defendant’s car (car indictments); The defendant was indicted on two sets of charges: one set included

with the defendant. May 2010, he and Detective Sean Ford conducted an audio-recorded interview speaking with Phelps, as well as the current pastor and Church members. In

events and telephoned C.A. to investigate. He continued his investigation by

was reopened in 2010, when Detective Chris DeAngelis learned of the 1997 For reasons disputed at trial, the police investigation stalled in 1997. It

evening with the defendant and his wife.

Children, Youth and Families (DCYF) as well. Phelps and Linda met later that

that he would do so, and reported it to the New Hampshire Division for Phelps reported this information to the police, after informing the defendant privately with the defendant, who acknowledged his relationship with C.A.

Phelps’s testimony.

that the defendant was the father of the child. The next day, Phelps met

interview of the defendant, partially redacted at the defendant’s request, and

his wife, Linda, met with C.A. and her mother that night, and C.A. reported Church’s pastor, Charles Phelps, and C.A.’s mother were notified. Phelps and trusted neighbor (and a member of the Church) that she was pregnant. The two, as the State claimed. The evidence included the audio-recorded police contact involved only one instance of intercourse, as the defendant claimed, or (1) whether the sexual contact was consensual or forced; and (2) whether the

On October 7, 1997, C.A., appearing “extremely upset,” confided to a

To decide the remaining counts, the jury had to resolve two questions:

See RSA 632-A:2, I(m). Both sets of charges also included an FSA count

intercourse at C.A.’s home. sexual contact for the first time. About one month later, they had sexual

conduct that she did not freely consent to the performance of the sexual act.”

driving lessons. During one of these lessons, the defendant and C.A. had pleaded guilty to the FSA count alleging statutory rape in the home. alleging statutory rape. See RSA 632-A:3, II. Prior to trial, the defendant

charges included an AFSA count alleging that C.A. “indicated by speech and/or

them on occasion. When C.A. approached driving age, the defendant gave her and his family through their active attendance at the Church, and babysat for Baptist Church in Concord (the Church). C.A. became close to the defendant

C.A. and the defendant, then thirty-nine years old, both attended the Trinity The jury could have found the following facts. In 1997, fifteen-year-old subsequent interview with the police. See N.H. R. Ev. 510. Finally, the trial p. 3 initially been privileged, the defendant waived the privilege during a

any church rules.” The court further found that, even if the statements had Hampshire Rule of Evidence 505. The statute provides: “A priest, rabbi or religious privilege, rests within the sound discretion of the trial court. N.H. R. Our religious privilege is codified by statute and set forth in New

statute or rule of evidence – de novo. Lillie-Putz Trust v. Downeast Energy

not erroneous as a matter of law. Franklin v. Callum, 146 N.H. 779, 781

Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 610 (2006), and defer to the trial

purpose of investigating “whether or not members of the church had broken statement). Before trial, following argument and voir dire of Phelps, the trial court found no privilege because Phelps had initiated the conversation for the Generally, ascertaining the existence of a privilege, including the occurred in the presence of third parties. As to the “twice” statement, the trial Corp., 160 N.H. 716, 721-22 (2010).

Child Protection Act. See RSA 169-C:29, :32 (2002). The court noted, however, (2001). However, we review questions of law – including the interpretation of a considerations, such as that reflected by the disclosure requirement under the court’s factual findings as long as they are supported by the evidence and are

generally review such rulings for an unsustainable exercise of discretion, State v. Gordon, 141 N.H. 703, 705 (1997) (attorney-client privilege). We Ev. 104(a); see State v. Pelletier, 149 N.H. 243, 247 (2003) (marital privilege);

role in his relationship with C.A. as that of the “aggressor” (the “aggressor” defendant’s wife and Phelps’s wife, during which the defendant described his As to the “aggressor” statement, the court found no privilege because it that it “need not decide this issue.” occasions (the “twice” statement). The other conversation included the

Hampshire Rule of Evidence 505, which may yield to countervailing court observed that the religious privilege is a qualified one under New

neither ‘confessions’ nor made to Pastor Phelps in his ‘professional character.’” defendant told Phelps that he had been sexually involved with C.A. on two found that the religious privilege did not apply because “the statements were order explaining its denial of the defendant’s motion in limine. The trial court Following the defendant’s conviction, the trial court issued a written

limine to exclude them. 505 did not protect either statement and denied the defendant’s motion in I. Religious Privilege court ruled that the religious privilege under New Hampshire Rule of Evidence

conversation was solely between the defendant and Phelps, during which the preclude the testimony of his pastor, Phelps, about two conversations. One The defendant first argues that the court erred by denying his motion to attorney, physician, psychologist or certified pastoral counselor. See Melvin,

p. 4 communications to persons assisting or working under the supervision of the In Melvin, we noted that “[g]enerally, the presence of an ‘extraneous’

psychologist, or certified pastoral counselor are also applicable to privileges applicable to communications to an attorney, physician, the rule of evidence adopting it. See Mitchell, Must Clergy Tell? Child Abuse New Hampshire Rules of Evidence 502 and 503, which provide that the protections conferred by the privilege are therefore based upon the statute and Because the religious privilege did not exist at common law, the Melvin, 132 N.H. at 309-10. We contrasted our religious privilege, which does communications made in the presence of an assistant to the clergyperson. clergyman’s wife did not invalidate the privilege because the privilege applied to

“‘extraneous’ third party.” not protect communications to clergy assistants, with the privileges granted by wife. Melvin, 132 N.H. at 310. We agree that the privilege did not apply

confidential). We rejected the defendant’s argument that the presence of the (N.C. 1986) (communication made in presence of minister’s wife not Melvin, 132 N.H. at 310; see also, e.g., State v. West, 345 S.E.2d 186, 189 third party during a privileged conversation operates to destroy the privilege.”

State v. Holmes, 159 N.H. 173, 175 (2009). We are the final arbiter of the because of the presence of Phelps’s wife, whom the trial court found to be an

the statement was made in the presence of the defendant’s wife and Phelps’s language of Rule 505 is essentially the same. statement. Relying upon Melvin, the trial court found that it did not because person confessing or confiding waives the privilege.” RSA 516:35 (2007). The We first consider whether the privilege applied to the “aggressor” made to him in his professional character as spiritual adviser, unless the that the privilege, if it exists, must rest on statute”); see also, e.g., Seidman v. A. “Aggressor” statement

whole. DaimlerChrysler Corp. v. Victoria, 153 N.H. 664, 666 (2006). intent of the legislature as expressed in the words of a statute considered as a

evidence, as with a statute, we will first look to the plain meaning of the words. State v. Melvin, 132 N.H. 308, 310 (1989). When interpreting a rule of “It is well settled that statutory privileges should be strictly construed.”

Fishburne-Hudgins Educ. Foundation, Inc., 724 F.2d 413, 415 (4th Cir. 1984). Science practitioner shall not be required to disclose a confession or confidence common law . . . most American courts and commentators have announced ordained or licensed minister of any church or a duly accredited Christian Religion, 71 Minn. L. Rev. 723, 737 (1987) (“clergy privilege was not part of the Reporting Requirements Versus the Clergy Privilege and Free Exercise of confidential communications with a clergyman in his professional

p. 5 required confessions and a privilege broadly applicable to all [t]he choice between a privilege narrowly restricted to doctrinally

similarly worded proposed Federal Rule of Evidence, which provides that

defendant instead cites the Note of the Advisory Committee that drafted a court’s finding that the defendant’s statement was not a “confession.” The We first note that the defendant does not appear to contest the trial

B. “Twice” statement

for admitting the “aggressor” statement.

err in admitting the “aggressor” statement because it was not made in furtherance of the communication.” We conclude that the trial court did not found that, in any event, the defendant waived any privilege. made to Pastor Phelps in his ‘professional character.’” The trial court further privilege did not apply because the statement was “neither [a] ‘confession[ ]’ nor

presence was “necessary for the communication” or “essential to and in

defendant made to Phelps alone. The trial court found that the religious

‘assistants’ within the express language of Rule 505.” Id. The defendant does

the defendant has not cited any facts that demonstrate that Phelps’s wife’s

vitiate the clergy-communicant privilege.” In re Grand Jury Investigation, 918 We next consider the admission of the “twice” statement, which the

privileges, it could easily have provided for the presence of third party person’s presence is necessary for the communication.” Martin, 975 P.2d at

F.2d at 377. Even if we were to adopt the reasoning of these cases, however, We are not persuaded by the defendant’s attempt to distinguish Melvin

parties, if essential to and in furtherance of the communication, does not privilege to the attorney-client privilege and held that “the presence of third 1029. In In re Grand Jury Investigation, the court analogized the religious to be as broad as that of the physician-patient and the attorney-client vitiate the privilege unless that person is another member of the clergy or the Cir. 1990). In Martin, the court held that “the presence of a third person may P.2d 1020 (Wash. 1999), and In re Grand Jury Investigation, 918 F.2d 374 (3d counseling given by Phelps. The defendant relies upon State v. Martin, 975 132 N.H. at 310; N.H. R. Ev. 502, 503. We noted that “[t]he absence of such a on the grounds that Phelps’s wife allegedly played a role in any spiritual

not contend that Phelps was a certified pastoral counselor.

court in approving the rules had intended the coverage of the religious privilege becomes even more conspicuous,” Melvin, 132 N.H. at 310, and that “[i]f this provision in the express language of the religious privilege of Rule 505 thus of child abuse. 2 D. Greenwald et al., Testimonial Privileges § 6:14, at 6-50 to

p. 6 privilege, so too has each state passed a statute requiring mandatory reporting Just as all fifty states have enacted statutes recognizing a religious

Trammel v. United States, 445 U.S. 40, 51 (1980); see also Keenan v. Gigante, under the totality of the circumstances.

or thoughts and to receive priestly consolation and guidance in return.” depends upon the objectively reasonable expectations of the communicant, counselor, in total and absolute confidence, what are believed to be flawed acts communication is a “confidence” within the meaning of the religious privilege Supreme Court, is the recognition of “the human need to disclose to a spiritual spiritual advisor.” State v. J.G., 990 A.2d 1122, 1124 (N.J. 2010); see also In based upon this precedent and the wording of our statute, that whether a statute, requiring a clergyperson to report child abuse regardless of the made in confidence to a cleric in the cleric’s professional character or role as a reasonable penitent would believe that a communication was secret, that is,

The purpose of the religious privilege, as articulated by the United States conversation in analyzing applicability of religious privilege). We conclude, abrogate the clergy communications privilege in its child abuse reporting has noted, however, New Hampshire is one of only six states to specifically privilege applies when, under the totality of the circumstances, an objectively capacity.” (emphasis added)). But see Magar v. State, 826 S.W.2d 221, 223 6-51 (Trial Practice Series, 3d ed. 2005 & Supp. 2010). As one commentator

(Ark. 1992) (heavily weighing clergyperson’s subjective belief as to purpose of not a “confession.” with the trial court’s findings, the statement was a protected confidence, and of confidence and trust” (quotation omitted)). Thus, “the cleric-penitent to a member of the clergy acting in his or her professional or spiritual person makes a communication with a reasonable expectation of confidentiality Wittig, 832 S.W.2d 681, 685 (Tex. App. 1992) (“[T]he privilege attaches when a reasonably expect that their words will be kept in confidence”); Nicholson v. professional capacity, by persons who seek spiritual counseling and who communications to a member of the clergy, in his or her spiritual or re Grand Jury Investigation, 918 F.2d at 377 (“this privilege protects

We therefore understand the defendant’s argument to be that, in accordance encourage uninhibited communication between persons standing in a relation an evidentiary privilege should be construed in furtherance of their policy to 390 N.E.2d 1151, 1154 (N.Y. 1979) (noting that ordinarily, “statutes bestowing See Advisory Committee’s Note to Proposed Fed. R. Ev. 506, 56 F.R.D. 183, 248

latter. character as spiritual adviser has been exercised in favor of the

confessions and “confidence[s]” made to clergy in their professional character. (1973). We agree: RSA 516:35 and Rule 505 explicitly protect both of the country in which he dwells.” State v. Stratton, 132 N.H. 451, 457

p. 7 administration of justice, that every man is presumed to know the laws as an opinion on credibility without a contextual purpose or without the result recording containing statements of the interrogating officers that “were uttered supplemental briefing from both parties, the trial court redacted portions of the

waive it. confidential. “It is elementary, as well as indispensable to the orderly an objectively reasonable expectation that such a statement will remain child abuse is not protected by the privilege, a communicant cannot have credibility or truthfulness of the defendant and of C.A. Following a hearing and

statute and rule, a clergyperson is a holder of the privilege who may assert or

any statement to a clergyperson that might be helpful in establishing contained both hearsay and the opinions of the interrogating officers as to the

Before trial, the defense moved in limine to preclude introduction of the

and any other information that might be helpful in establishing defendant waived any privilege. Neither need we decide whether, under our

required by this chapter.” RSA 169-C:32. Because our law provides that May 2010 audio-recorded police interview of the defendant, arguing that it

persons suspected of being responsible for such neglect or abuse, professional character as spiritual adviser, or the question of whether the not address the question of whether the statement was made to Phelps in his in admitting the “twice” statement. Having reached this conclusion, we need this chapter and shall not constitute grounds for failure to report as “confidence” to which the religious privilege applies, the trial court did not err attorney and client, shall not apply to proceedings instituted pursuant to Because the defendant’s statement indicating child abuse cannot be a professional person and his patient or client, except that between (1989) (quotation omitted).

any evidence of previous injuries), the identity of the person or

shall, if known, contain . . . the specific information indicating

privileged quality of communication between husband and wife and any RSA 169-C:30 (2002) (emphasis added). The Act further provides: “The

neglect or abuse or that may be required by the department. possible application of the religious privilege. Greenwald, supra § 6:14, at 6-

neglect or the nature and extent of the child’s injuries (including

report report the same in accordance with this chapter.” RSA 169-C:29. The required or rabbi . . . having reason to suspect that a child has been abused . . . shall 52. Specifically, our Child Protection Act mandates: “Any . . . priest, minister, something other than the established propositions in the case.” State v. p. 8 mainsprings of human action that may cause a jury to base its decision on arouse its sense of horror, provoke its instinct to punish, or trigger other

prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies,

time, or needless presentation of cumulative evidence.” “Evidence is unfairly issues, or misleading the jury, or by considerations of undue delay, waste of is substantially outweighed by the danger of unfair prejudice, confusion of the

Under Rule 403, relevant “evidence may be excluded if its probative value

contact between the defendant and C.A. as forcible. anonymous confidante of C.A., in which the confidante described the sexual a 1997 DCYF report, purportedly based upon information provided by an

implying that she was not lying; and statements in which the officers described

officers expressed their view that C.A. had no motive to lie, thus allegedly statements fall into two categories: statements in which the interrogating substantially outweighed by the danger of unfair prejudice. The challenged

under New Hampshire Rule of Evidence 403 because their probative value was

Id. at 574-75. “The trial court is in the best position to gauge the prejudicial

offered is established by other evidence, stipulation or inference. 8 or outrage; and (3) the extent to which the issue upon which it is

unsustainable exercise of discretion. See id. “To show that the trial court

The defendant argues that several statements should have been excluded

for the truth of any assertions contained within the officers’ questions.

jury; (2) its potential for appealing to a juror’s sense of resentment

prejudicial evidence, and we will not disturb the trial court’s decision absent an commonly one that is emotionally charged.” Id. broad latitude when ruling on the admissibility of potentially unfairly that prejudice.” Id. at 575 (quotation omitted). Thus, we give the trial court impact of particular testimony, and what steps, if any, are necessary to remedy

of . . . context, what elicited a particular response of the Defendant,” and not

whether the evidence would have a great emotional impact upon a Among the factors we consider in weighing the evidence are: (1)

tendency to induce a decision against the defendant on some improper basis, Id. “Rather, the prejudice required to predicate reversible error is an undue which sense all evidence offered by the prosecution is meant to be prejudicial. detriment to a defendant from the tendency of the evidence to prove guilt, in Nightingale, 160 N.H. 569, 574 (2010). Unfair prejudice is not, of course, mere part of the tape that you have just heard is only being admitted for the purpose instruction at the defendant’s request, informing the jury that “the question the State played the redacted recording at trial, the court gave a limiting

defendant’s motion. Further redaction took place by mutual agreement. After of eliciting a relevant response from the defendant.” It otherwise denied the a risk that a jury may use the officer’s factual assertions for an improper,

p. 9 or belief are not admissible to prove the truth of the matters stated; (2) there is

emerge from the cases: (1) an officer’s statements communicating information have not reached consensus, we agree with the defendant that three principles for the purpose of giving opinion testimony at trial.”). Although these courts

error”), with State v Castaneda, 715 S.E.2d 290, 294 (N.C. Ct. App 2011) (“The

‘accusations’ by interrogators are an interrogation technique and are not made

error have been hesitant to consider such introduction alone to be reversible

interrogation, relating to witness credibility. Compare Lanham, 171 S.W.3d at

statements have held them admissible based on the rationale that such

“even the courts that have recognized introduction of this type of evidence as evidentiary rules in these various states differ significantly,” but noting that issue, it is quite difficult to synthesize a majority rule, especially given that the

the admissibility at trial of statements, previously recorded during police however, have examined the issue or a variant thereof. See, e.g., Dubria v. It is not clear to what extent there exists a majority view on the issue of

majority of appellate courts of other jurisdictions that have considered such

comment upon the credibility of other witnesses.” State v. Lopez, 156 N.H. 26-27 (stating, “[t]hough various courts across the country have addressed this

interrogation bearing on witness credibility. Several other jurisdictions, 1193, 1202-06 (Wyo. 2010). Curtiss, 250 P.3d 496, 508 (Wash. Ct. App. 2011); State v. Sweet, 234 P.3d it requires a witness to testify to things outside of her or his knowledge.” State 1999); State v. Demery, 30 P.3d 1278, 1281-85 (Wash. 2001) (en banc); State v. (Mo. 1993) (en banc); Com. v. Kitchen, 730 A.2d 513, 521-22 (Pa. Super. Ct. 171 S.W.3d 14, 23-28 (Ky. 2005); State v. O’Brien, 857 S.W.2d 212, 221-22 2002); State v. Elnicki, 105 P.3d 1222, 1225-30 (Kan. 2005); Lanham v. Com., 67 (Colo. App. 2005); State v. Cordova, 51 P.3d 449, 453-57 (Idaho Ct. App. have adopted a “broad prohibition on questions requiring a witness to P.3d 111, 119-21 (Ariz. 2008) (en banc); People v. Lopez, 129 P.3d 1061, 1065interview concerning C.A.’s motive to lie. We note that, in the trial context, we Smith, 224 F.3d 995, 1000-03 (9th Cir. 2000) (en banc); State v. Boggs, 185 We first consider the interrogating officers’ statements during the

A. “Motive to lie” statements previously addressed the admissibility of police officers’ statements during an v. Parker, 160 N.H. 203, 213 (2010) (quotation omitted). We have not

obligation to determine the credibility of witnesses, and is not probative in that was clearly untenable or unreasonable to the prejudice of his case.” State v. prohibition). “We reasoned that such questioning interferes with the jury’s exercised unsustainable discretion, the defendant must show that the ruling 416, 424 (2007) (rejecting a case-by-case approach in favor of a broad

Jordan, 148 N.H. 115, 117 (2002). that the defendant was lying,” Lanham, 171 S.W.3d at 27, but, rather, is p. 10 whether he or she is telling the truth), other officers, a prosecutor, or the jury –

other witnesses. Cf. Lopez, 156 N.H. at 424. Nevertheless, we recognize that

the officer is not trying to convince anyone – not the defendant (who knows

suspect.” Odeh v. State, 82 So. 3d 915, 920 (Fla. Dist. Ct. App. 2011), review prohibition against witness testimony at trial that opines upon the credibility of and an investigating officer giving an opinion during the interrogation of a between an investigating officer giving an opinion as testimony before a jury, thus urging him or her to tell the truth.” Id. Thus, we conclude that a

jury. See Cordova, 51 P.3d at 455-56. believe him.”). We are persuaded, however, that “[b]y making such comments, defendant, are not necessarily also admissible at trial for consideration by the certain tactics, which may be permissible for purposes of interrogating a

recorded interview does not implicate the same concerns that underlie our

We agree with the courts that have found that “there is a difference shown in other ways); Kitchen, 730 A.2d at 521 (analogizing interviewer’s the officer recognizes the holes and contradictions in the defendant’s story, evidence and noting that “context” for defendant’s shifting stories could be engaging in “an interrogation technique aimed at showing the defendant that

defendant or another witness. See Elnicki, 105 P.3d at 1229 (holding that concerns as a witness’s trial testimony regarding the credibility of the excluded interrogation statements, reasoning that they implicated the same officer to testify that he told the defendant during questioning that he did not officer to testify directly that he does not believe the defendant and allowing the (Wash. Ct. App. 2003) (“We find no meaningful difference between allowing an personal opinion as to defendant’s guilt); State v. Jones, 68 P.3d 1153, 1155 statements regarding defendant’s truthfulness to a prosecutor’s inadmissible suspect’s answers, see, e.g., Cordova, 51 P.3d at 455. Further, “[a]lmost all of necessary context without which the jury cannot appreciate the meaning of the

made a possibly false exculpatory statement). officer’s statements in videotaped interrogation are inadmissible opinion visibly changed when the conversation turned to the murders” and defendant

Lanham, 171 S.W.3d at 27; see also State v. Cassavaugh, 161 N.H. 90, 102-03 noted that they provide a necessary context for the defendant’s responses.” 140, 147-48 (S.D. 2007). We recognize that some courts have disagreed and comments are such an integral part of the interrogation, several courts have denied, 81 So. 3d 415 (Fla. 2012); see also, e.g., State v. Zakaria, 730 N.W.2d

the court; and (3) in some circumstances, the officer’s statements provide substantive purpose, which risk may be reduced by a limiting instruction from

(2010) (finding police interview highly probative where “defendant’s demeanor

questioning is a legitimate, effective interrogation tool. And because such the courts that have considered the issue recognize that this form of order to prompt the defendant to expand on, or retract, his explanations; they p. 11 His statements and questions also challenged the defendant’s explanations in explain why C.A. would be motivated to be untruthful about their relationship.

right assessment.” During these exchanges, DeAngelis asked the defendant to

and that they wanted to hear both sides of the story so they could “make the they had conflicting information, that the truth was “somewhere in the middle,” At the time of these exchanges, the officers had already told the defendant that A: She might not know either. Q: Well, what’s, what’s going to happen to her though?

A: OK, that’s bringing responsibility back onto herself. consensual relationship I got involved in. stops her from just saying, no, you know, that was, that was a her and, and talked to her about this, what is her motivation, what Q: Why, well, when I called her up out of the blue, when I located A: Which is inaccurate and incorrect.

Q: Ok. same story now that was used at that time. and obviously she in order to continue with her story line, use the

the events and be able to think clearly about what transpired. So probably become clearer. So then you would be able to associate the memory once you think about something for a time will 11 A: And then now, like I say it’s been twelve years but as you say she’s now an adult. Q: I could, I could see that. I could see that if she was fifteen, responsibility of what would be due to her off of her, onto me. A: Well, as I stated earlier, I think it’s to pass the, any of the motivation for her to lie. Q: I’m not, I guess you don’t, do you understand I don’t see the . . . .

Q: For, for what? responsibility for any of this. A: I don’t know. To get herself off the hook so wouldn’t claim Q [DeAngelis]: Ok, why would she lie?

following exchanges:

questions about C.A.’s motive to lie. The trial court allowed the jury to hear the We first consider the probative value of the officers’ statements and truth here, ok? This alleges physical force by you on [C.A.]. OK?

p. 12 important, I think, to make sure that we’re all talking about the

you and [C.A.] happened. It alleges, and this is where it’s alleges a different version of events of how the intercourse between report. It’s much longer. It does not come from the Pastor. And it

There was two reports to DCYF back in ’97. This is a second

conversation again or basically why this is being revisited again. why we’re having this conversation, why this is, you’re having this 12 Q. (DEANGELIS) Ok. This is probably going to make it clear why,

probative value. See Nightingale, 160 N.H. at 575. The risk of undue prejudice

unfair prejudice,” N.H. R. Ev. 403, he has not demonstrated that the trial

DCYF report. The defendant objects to the admission of two portions: the defendant’s recorded interview, concerning the anonymously filed 1997 We next consider the probative value of the other challenged portions of

B. Anonymous DCYF report

defendant from admission of this evidence substantially outweighed its

is a legitimate ground for inquiry). Even Kitchen, a landmark case for the view the challenged statements was “substantially outweighed by the danger of Because the defendant has not established that the probative value of

improper basis, commonly one that is emotionally charged.” Nightingale, 160 information for the fact finder to consider. See, e.g., United States v. Akitoye, carry an “undue tendency to induce a decision against the defendant on some questions and statements to the defendant regarding C.A.’s credibility do not

discretion. recorded interrogation, distinguishes between officers’ inadmissible statements court’s admission of these exchanges was an unsustainable exercise of Next, we consider whether the danger of unfair prejudice to the

inquiry does not call for an opinion, but for articulable facts” and witness bias explanations of C.A.’s actions and her alleged bias.

N.H. at 574.

emotion, the inquiry into a witness’s bias provides important and legitimate A.2d at 522. We agree with the trial court’s implicit finding that the officers’ on credibility and questions as to motive that invite an answer. Kitchen, 730

that a jury should not hear an officer’s “vouching” statements during a

lie about you?’” “could appropriately have been allowed,” because “such an and statements are, therefore, probative as context for the defendant’s question,” the question, “‘Do you know of any reason why [the witness] would did not express the officer’s opinion of C.A.’s credibility. DeAngelis’s questions 923 F.2d 221, 223-25 (1st Cir. 1991) (“Unlike a ‘was-the-witness-lying’

from such “reason to lie” questions is minimal: unlike an improper appeal to about the content of the anonymously filed DCYF report. p. 13 Other than these passages in the recording, the jury at trial heard nothing Q: She confided in people back in ’97.

A: Right.

Q: She’s talked to people back then.

A: . . . to somebody? Q: But gave me an independent report. A: But she provided this information . . . .

Q: No, she’s, she didn’t have access to that, that DCYF report.

A: So she’s recalling what she gave for information back then? neighbor. Q: Ok? Could be a family member. Could be a friend. Could be a A: Right. [C.A.] talked to back then. it’s not [C.A.]. Ok? They got this information from somebody who indication and her report of who she is without giving her name,

anonymous party who indicates in her report that she’s, by her Q: (DEANGELIS) The pastor on one, the second one is an Q: (FORD) The pastor.

A: Ok, who (unintelligible) to DCYF?

Q: Yes, but it’s not from her. It’s from DCYF. A [the defendant]: But there was something produced in 1997? Later in the interview, the following exchange occurred: alleges. . . . had sex with her against her will. Ok? That’s what this report You lock the door and you pushed her onto the couch. And you

mother’s apartment. You came over, she says she let[ ] you in.

sex with her, by force, ok? The second incident happened at her yourself upon her. You pulled her in the back seat and you had gave her driving lessons and on one of those occasions, you forced

She is alleging that you, that there were two incidents. That you

reached out to you because we have conflicting information. Ok? And that is one of the main reasons why we have to, why we consent. That’s a statutory rape. This would be a forcible rape.

old enough, do you know what I’m saying? She’s not old enough to She’s alleging a rape not, not a statutory because people are not p. 14 State v. Yates, 152 N.H. 245 (2005), the defendant further argues that the

reason the case had been reopened and the defendant reinterviewed. Citing in the interrogation room,” and that the existence of such a report was the very second report existed; DeAngelis’s words implied that a copy of it was present

the defendant urges, by the fact that “the jury could have little doubt that the

bolstered C.A.’s credibility to his prejudice. Such prejudice was compounded, two incidents of forcible rape, consistent with her trial testimony, significantly referred to by DeAngelis, purporting to establish that C.A. had indeed disclosed

how much the police knew,” and, therefore, probative of his guilt.

disclose to anyone in 1997. According to the defendant, the DCYF report

characterizes the defendant’s statements and questions as “trying to determine that disclosure, and who had made the 1997 report to DCYF. The State person was a good Samaritan, what the status of the case had been prior to the defense argued was inconsistent with forcible rape was C.A.’s failure to

forward and when, whether that person was a church member, whether that with having been forcibly raped, as she testified at trial. One of the behaviors credibility. The defendant argued that C.A. did not act in 1997 consistently in resolving a dispute at the heart of the defense’s case – that of C.A.’s

asked whether the case had been reopened because someone had come points out that after learning of the anonymous DCYF report, the defendant 2010, and what that person had told the police about the incidents.” The State The prejudice the defendant alleges stems from the report’s significance

C.A. had talked to in 1997, who had started talking about the incidents in

guilt. themselves or reveal anything useful about the defendant’s consciousness of

report,” the defendant’s responses show “that he was trying to figure out who reflecting a “developing comprehension of the claimed existence of such a probative of his consciousness of guilt. The State argues that rather than claimed existence of such a report,” and do not respond to the allegations

context for the defendant’s shifting accounts and lack of candor, which were defendant’s statements “reflect only [his] developing comprehension of the excerpt, the defendant also argues that it lacks probative value because the little probative value to counter their significant prejudice. As to the second

The State responds that the statements about the DCYF report provided

rather than to any DCYF report, so statements about the DCYF report added

effect. limiting instruction was inadequate to purge the statements of their prejudicial defendant denied. He argues that his denial related to C.A.’s allegations, understand the nature of the alleged conduct – forcible rape – that the because the reference to a 1997 DCYF report was not necessary for the jury to

The defendant argues that the officers’ statements lack probative value interview that gave context to [the defendant’s] answers. They were not the

shown to the jury. Id.

trustworthiness,” the detective’s “statements were questions in a pre-trial detection.” Id. The court concluded that these statements lent the officer an officers’ statements that one of the officers was an “expert in deception

officers’ interrogation statements accusing the defendant of lying. Id. at 455. necessary to provide a context for the answers given by the suspect.”); see also comments in the version of the interrogation recording played for the jury is the DCYF report did “suggest[ ] evidence . . . not presented at trial.” Dubria,

Cordova’s answers, and, therefore, they should have been redacted rather than aura of special reliability and that they were not necessary to give context to

enforcement officers often carries an aura of special reliability and However, the court distinguished these interrogation techniques from the evidence or theories of the case that were not presented at trial.” Id. at 1001. P.3d 449, 455. In that case, the Court of Appeals of Idaho held admissible 224 F.3d at 1001. Our case is thus more akin to Cordova. See Cordova, 51 when a suspect’s story shifts and changes. We also agree that retaining such (quotation omitted; emphasis added). Here, DeAngelis’s statements referring to therefore did not affect the fundamental fairness of the trial. Id. at 1001- 02 probative value. See Nightingale, 160 N.H. at 575. The distinctions between types of statements that carry any special aura of reliability,” and they from the limited admission of this evidence substantially outweighed its We next consider whether the danger of unfair prejudice to the defendant

The Ninth Circuit went on to note that, although the “testimony of law

interview’ . . . . There was nothing in [the detective’s] statements that suggested before the trial court. See State v. McLaughlin, 135 N.H. 669, 672 (1992). what the state appellate courts quite properly described as an ‘unremarkable doctrine, we decline to address this argument because the State did not raise it jury. See Dubria, 224 F.3d 995. In Dubria, the “tape and transcript show[ed] Hampshire Rule of Evidence 801(d)(1)(B) and the specific contradiction interrogation are a legitimate, even ordinary, interrogation technique, especially prejudicial effect of submitting the statements about the DCYF report to the this case and the Ninth Circuit’s analysis in Dubria illustrate the potentially statements by the defendant, they have probative value. See Lanham, 171

guilt.” State v. Bean, p. 15 153 N.H. 380, 387 (2006). Thus, because DeAngelis’s answers” constitute at least some “evidence of the defendant’s consciousness of We agree with the State that the defendant’s “inconsistent and evasive 221-22. Dubria, 224 F.3d at 1001-02; Lopez, 129 P.3d at 1066; O’Brien, 857 S.W.2d at

contained in the DCYF report were substantively admissible pursuant to New S.W.3d at 27 (“We agree that such recorded statements by the police during an Although the State argues in the alternative that C.A.’s statements

statements about the anonymous DCYF report provide context for these not to take it for that and it’s not being admitted for that.

p. 16 the question was accurate or not accurate, there’s no way – you’re elicit a response from the Defendant. Whether the information in decision of the questioner to ask a question in a particular way to

is no – we’re not to take it for anything other than, it was a

And you are not to take those statements for the truth. There

There were all kinds of statements in those questions.

asking the questions thought or believed. There were questions.

people said. There were statements made about what the person the questions, there were statements made about what other whatever evidentiary value you want to use them for. In terms of

However, we find significant the Dubria court’s ruling that “even if it was

answers. You can consider the answers of the Defendant for

should not have been admitted. statements therefore posed a substantial danger of unfair prejudice, and

interrogation in the courtroom, there are questions. There are

jury would understand them as evidence bolstering C.A.’s credibility. The

In this interview, as in many interviews, in fact, as in the

following instruction:

in the interview room with the officers, carried a significant potential that the truth, the statements specifically referring to the report, which was apparently again.” Thus, although DeAngelis’s statements were not admitted for their

Here, after the jury heard the redacted recording, the trial court gave the

of those comments amounted to harmless error); Lopez, 129 P.3d at 1066 comments without a limiting instruction,” court nonetheless found admission

we’re having this conversation . . . or basically why this is being revisited

a type suggested in Dubria . . . would alleviate any concern for potential unfair

admitted and that it was error for the district court to admit other officer

admitted at trial and was the reason DeAngelis gave the defendant for “why prejudice. The ostensibly official report to which DeAngelis referred was not prejudice”). statements about the anonymous DCYF report posed a danger of unfair

minimizing “the subject of victim credibility and using a limiting instruction of (recognizing the potential for jury confusion and advising courts that

officer’s comments that he is an expert in deception detection were improperly Id. at 1002; cf. Cordova, 51 P.3d at 456 (“[h]aving concluded that the second statements, any error was cured by the judge’s two cautionary instructions.” error to admit the tapes and transcripts without redacting [the detective’s]

We agree with the defendant that allowing the jury to hear the officers’ admitted at trial. “Juries are presumed to follow instructions.” Yates, p. 17 included any assertions about the anonymous DCYF report that was not

consider the officers’ statements for their truth. These statements The court’s instructions properly informed the jurors that they could not evidence. Id. at 252. Here, in contrast, the redacted recording contained purpose you wish. terms of the responses, of course, you can use them for any which the interviewer was seeking to elicit a response. You – in

unfairly prejudicial. Unlike in Yates, where the jury was told to disregard

“nothing left on the tape for it to consider” except for cumulative 17

that’s said in those questions, simply that they were a means by questions posed by Detective [DeAngelis] as mere questions and not as case.” In Yates, we found that the trial court erred in allowing a jury to

behavior that were not cumulative of other evidence and that were not

prejudice because a jury that followed the instructions would find

potentially unfair prejudice to the defendant. Yates, 152 N.H. at 252-53. truth; may or may not be true, but not for the truth of anything jury had to simply do what it is asked to do all the time – consider the required the jury to disregard information “crucial to the resolution of the nearly all of the recorded material presented at trial, see id., here, “the

a wealth of evidence in the form of the defendant’s statements and

We found that two limiting instructions were inadequate to cure the

hear evidence that possessed minimal probative value and created being – of eliciting a response from the Defendant, but not for the at this time. You can take the questions solely for the purpose of cured the prejudice because to follow the instruction would have instruction. I just want to remind you of that limiting instruction Yates. He appears to argue that the jury instruction could not have We are not persuaded by the defendant’s argument pursuant to prompt and thorough instructions. been admitted, we conclude that the error was cured by the court’s Thus, although the statements about the DCYF report should not have influenced, we presume that the jury followed the court’s instructions.”). Curtiss, 250 P.3d at 508 (“Absent evidence that the jury was unfairly cautionary instruction is presumed to have cured prejudicial impact.”); 152 N.H. 252; see also Dubria, 224 F.3d at 1002 (“Ordinarily, a

I remind you when you heard it in the courtroom I gave a limiting

during deliberations, the trial court gave the following limiting instruction: Further, in granting the jury’s request to listen to the recording of the interview context, what elicited a particular response of the Defendant. heard is only being admitted for the purpose of you hearing the So it’s only – the question part of the tape that you have just p. 18 18

evidence.” Dubria, 224 F.3d at 1002. Given the probative value of the

DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

A f f i r m e d . upon undue prejudice). see also Nightingale, 160 N.H. at 574-75 (standard for reversal based instructions given by the court, reversal is not warranted. See, e.g., id.; officers’ questions and statements and the prompt and thorough limiting