2014-0791, The State of New Hampshire v. Jamie F. Letarte

denied his motion to vacate the verdict and schedu le a new trial. We affirm. cross - examination by defense counsel, s ee N.H. R. Ev. 608(b), and when it evidence to impeach the victim’s testimony on a collateral matter during her Court (Bornstein, J.) erred when it precluded him from introducing extrinsic II(a) (Supp. 2014) (amended 2015). On appeal, he argues that the Superior A:2, I(j) (2) (20 16), and one count of felony indecent exposure, see RSA 645:1, by a jury on one count of aggravated felonious sexual assault, see RSA 632 - DALIANIS, C. J. The defendant, Jamie F. Letarte, appeals his conviction

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

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney

No. 2014 - 0791 Co o s

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, Concor d, 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 p. 2 22 as 2

of people, including [making] . . . false allegations of sexual assault, false [the victim] doesn’t like the situation, she’ll go to extreme lengths to rid herself one out of the house.” Defense counsel asserted that “[t]here’s a pattern[;] [i]f police and tell them that [the witness] attempted to rape [her] and he will be the victim because she had told her mother that “all” she had to do “is call the accusing a family member of sexual assault “is not an unusual move” for the Defense counsel then continued his opening statement, repeating that

do that.” jury tomorrow morning. . . [where the witness] testifies..., we can certainly that, if the parties “want to have a further hearing out of the presen ce of the the extrinsic evidence would be admissible as well.” The trial court explained evidence in opening arguments is permissible and it would be anticipated that permissible and stated, that “at least at this point[,]. . . reference to such The trial court ruled that the proposed cross - examination was

denied it. witness, but also to introduce the witness’s testimony to impeach her if she not only to cross - examine the victim abo ut the alleged incident involving the probative of the victim’s credibility. D efense counsel explained that he sought inadmissible. Defense counsel countered that the proposed testimony was The State objected, arguing that the witness ’s proposed testimony was

have to do is say that [the witness] attempted to rape me.” to avoid being removed from the home, the victim said to her mother, “[A] ll I would also testify that, when he told her that she and her mother had to leave, cabinet had been broken into.” Acc ording to defense counsel, the witness “noticed that [the victim] appeared to be intoxicated” and “that his liquor jury that when the victim and her mother were staying at his house, he as “the witness.” Defense counsel explained that the witness would tell the another family member.” For ease of reference, we refer to the family member move for [the victim]” because she had “threatened to do the same thing to misconduct that day.” Defense counsel said that “this is . . . not an unusual sexually assaulting her “so she could deflect at tention from her own defense counsel told the jury that the victim had accused the defendant of The defendant was tried in October p. 2 2014. During his opening statement,

and, when she told him to stop, he masturbated in her presence. woke up in the early morning, she felt the defendant’s fingers inside her vagina intoxicated on alcohol that the defendant had provided them. When the vict im old, was having a friend sleep at her house. The victim and her friend became occurred in February p. 2 2012. The victim, who was then approximately 13 years biological father of the victim. The charges stem from an incident that The jury could have found the following facts. The defendant is the

I. Background p. 3 3

within” the El lsworth exception and was also inadmissible under Vandebogart. on the stand.” The trial court ruled that the witness ’s testimony did “not fit Vandebogart, 1 p. 3 39 N.H. 145, 165 - 67 (1994), to show that the victim “was lying defense counsel argued that the testimony was admissible under State v. accusation she threatened to make, it “would’ve been false.” Al ternatively, because he had submitted “clear proof” that, had the victim actually made the pursuant to the Ellsworth exception to Rule 608(b)’s bar to extrinsic evidence Defense counsel then argued that the witness ’s testimony was admissible

sexually molested her and they would take [him] out of the house.” “that all she needed to do was to call the police and tell them that [he] had saw t he victim and her mother talking and heard the victim tell her mother and she got very upset about it.” When the witness went into the kitchen, he testified that he told the victim that he “didn’t want her drinking in [his] home thought that she had broken into his liquor cabinet and stolen his liquor. He exception. The witness testified that he and the victim had fought because he jury’s presence, to determine whether the witness ’s testimony met that State’s continued objection, the trial court conducted a hearing, outside of the the proper lens through which to view the proposed testimony. Thus, over the The trial court preliminarily concluded that the Ellsworth exception was

sexual assault. N.H. 710, 718 - 19 (1998), and which applies to allegedly false allegatio ns of 608(b)’s bar to extrinsic evidence, which we adopted in State v. Ellsworth, 142 counsel countered that the witness ’s testimony fell within an exception to Rule occurred more than a year after the incident involving the defendant. Defense collateral issue rule). The State also observed that th e witness incident evidence”); see also State v. Hopkins, 1 p. 3 36 N.H. 272, 276 (1992) (explaining the supporting the witness’ credibility,. . . may not be proved by ext rinsic “[s]pecific instances of the conduct of a witness, for the purpose of attacking or collateral matter. See N.H. R. Ev. 608(b) (providing, in pertinent part, that because it constituted extrinsic evidence offered to impeach a witness on a ground that its admission violated New Hampshire Rule of Evidence 608(b) testimony. The State objected to the witness ’s proposed testimony on the whether the witness should be allowed to testify so as to impeach the victim’s The court then heard additional argument from the parties regarding

witness that she “would tell the police that he raped” her. that the witness had sexually assaulted her. She also denied telling the questioning by defense counsel, t he victim deni ed t hreatening to tell the police not involving the defendant. On cross - examination, however, in response to did not testify, about the witness incident or about any other alleged incident When the victim tes tified on direct examination, she was not asked, and

here.” allegations to either . . . the police or investigators, and that’s what’s going on p. 4 4

to determine whether we would have found differently,” but is only “to judgment made.” State v. Lambert, 1 p. 4 47 N.H. 295, 296 (2001). “Our task is not record establishes an objective basis sufficient to sustain t h e discretionary exercise of discretion standard of review, we determine only “whether the unreasonable to the prejudice of his case.” Id. In applying our unsustainable d emonstrate that the trial c ourt’ s decision was clearly untenable or 320 (2015). “For the defendant to prevail under this standard, he must unsustainable exercise of discretion standard. State v. Towle, 167 N.H. 315, review a trial court’s decision on the admissibility of evidence under our under the Ellsworth exception to Rule 608(b)’s bar to extrinsic evidence. We The defendant first asserts that the witness ’s testimony was admissible

A. Ellsworth Exceptio n

We addres s each argument in turn. on cross - examination; and (2) denied his motion to vacate and for a new trial. him from introducing the witness ’s testimony to impeach the victim’s testimony The defendant argues that the trial court erred when it: (1) precluded

II. Analysis

appeal followed. in admissible, the defendant could not claim to have been prejudiced. This and before the c ourt, ultimately, had ruled that the witness ’s t estimony was testimony to the jury in his opening statement b efore the State had objected court found that because defense counsel summarized the witness ’s proposed Following a hearing, the trial cour t denied the defendant’s motion. The

Constitution and the Fourteenth Amendment to the Federal Constitution. but also to a fair trial” pursuant to Part I, Article 15 of the New Hampshire [the] defense” and deprived the defendant of his right “not only to due process exception applied to the witness ’s testimony “worked a reversible prejudice to court’s “[i] nconsistent application” of its prior ruling that the Ellsworth in his cross - examination of the victim. Defense counsel argued that the trial “highlighted and stressed this evidence to the jury in opening statements” and be admissible pursuant to Ellsworth,” and, because of that reliance, had the trial court’s “statements that the evidence regarding . . . [the witness] would testimony. In the motion, d efense counsel reiterated that he had relied up on determination that the Ellsworth exception did not apply” to the witness ’s verdict and for a new trial based upon what he termed the court’s “last mi nute After the trial had concluded, the defendant filed a motion to vacate the

statement, cross - examining witnesses, and presenting the defense. representation . . . that this was an Ellsworth case” in crafting his opening objected to the ruling, explaining that counsel had “relied on . . . the Court’s A s a result, the witness was not called for the defense. Defense counsel p. 5 5

sexual assault] are similar, and the proffered evidence is highly probative of the such extrinsic evidence “should be admitted only where the allegations [of probative of a material issue.” Ellsworth, 142 N.H. at 719. We cautioned th at interpreted so strictly as to preclude the admission of extrinsic evidence that is sexual assault cases, Rule 608(b)’s bar to extrinsic evidence “should not be In Ellsworth, because of constitutional concerns, we explained that, in

the witness’s testimony on the point. See id. occasion, the cross - examiner cannot introduce extrinsic evidence to contradict evidence. See id. at 2 p. 5 51. If the witness denies having lied on the prior inquiry on cross - examination and prohibits proof of the lie through extrinsic the rule specifically limits the manner of eliciting this character evidence to therefore, her testimony should not be believed by the fact finder. See id. But witness has the character trait of being a liar (a propens ity to lie) and, witness about a prior instance of lying for the purpose of showing that the of Law & Feminism 243, 250 - 51 (1995). Rule 608(b) permits inquiry of the False Allegations of Rape: Fa lsus in Uno, Falsus in Omnibus?, 7 Yale Journal therefore, behaved in that way on a particular occasion. See Johnson, Prior showing that a person has a propensity to behave in a certain way, and, general prohibition against introducing character evidence for the purpose of One way to think of Rule 608(b) is that it is an exception to Rule 404(b)’s

untruthfulness. See N.H. R. Ev. 608(b). of a witness that is probative of that witness’s character for truthfulness or introduce extrinsic e vidence, such as calling other witnesses, to prove conduct as the witness gives it. Hopkins, 136 N.H. at 276. The examiner may not truthfulness or untruthfulness, the examiner, generally, must take the answer inquire into conduct that is probative of the witness’s character for (Emphases added.) Thus, u nder Rule 608(b), although a cross - examiner may

witness b eing cross - examined has testified. untruthfulness of another witness as to which character the untruthfulness, or (2) concerning the character for truthfulness or witness (1) concerning the witness’ character for truthfulness or or untruthf ulness, be inquired into on cross examination of the however, in the discretion of the court, if probative of truthfulness in Rule § 609, may not be proved by extrinsic evidence. They may, the witness’ credibility, other than conviction of crime as provided conduct of a witness, for the purpose of attacking or supporting Specific instances of conduct. Specific instances of the

Rule 608(b) provides, in pertinent part:

1 p. 6 69 N.H. 10, 21 (2016) (quotation and brackets omitted). as the trial court on the basis of the evidence before it.” Benoit v. Cerasaro, determine whether a reasonable person could have reached the same decision 6

& T. Lininger, The New Wigmore A Treatise on Evidence: Impeachment and evidence that the target witness made a factual error in his testimony.” R. Park contradiction. “Impeachment by contradiction refers to impeachment with Rule p. 6 608(b) case. Rather, it concerns impeachment of a witness by Vandebogart in the proper context. Strictly speaking, Vandebogart is not a Before addressing the merits of the defendant’s argument, we place

1. Vandebogart in Context

admissible u nder any other evidentiary rule. Notably, the defendant does not argue that the witness ’s testimony is evidence to impeach the testimony of the victim as to a collateral matter. that case as to a collateral matter, he should have been allowed to use extrinsic allowed to impeach with extrinsic evidence the testimony of the defendant in defendant’s argument to be that, just as the prosecution in Va ndebogart was presents an identical situation” to that in Vandebogart. We interpret the the defendant, and the defense in the place of the prosecution, this case defendant contends that “[b]ut for the substitution of the [victim] in the place of collateral issue s” on cross - examination. Vandebogart, 139 N.H. at 1 p. 6 65. The the State to “call a rebuttal witness to contradict the defendant’s testimony on in Vandebogart. In Vandebogart, we upheld the trial court’s decision to allow to rebut the victim’s testimony on cross - examination pursuant to our opinion The defendant next contends that the witness ’s testimony was admissible

B. Vandebogart

exploring the matter through cross - examination of the victim. court did not unsustainably exercise its discretion by limiting the defenda nt to her. That being the case, the Ellsworth exception does not apply, and the trial she ever carried out the threat by actually accusing him of sexually assaulting made the threat attributed to her by the witness, there is no suggestion that than they are to carry out such threats. Here, even assuming that the victim even less probative value. Arguably, people are more likely to make threats concerning a victim’s credibility, a mere threat to make such an accusation has value extrinsic evidence of a prior false accusation of sexual assault may have testimony did not concern such an accusation. Indeed, whatever probative to prior demonstrably false accusations of sexual assault. The witness’s excluding [it].” We disagree. Ellsworth is a narrow exception that applies only to the witness’s testimony, we “must find that the [trial] court erred in The defendant argues that “[b]ecause the Ellsworth [exception] applies”

Miller, 155 N.H. 24 p. 6 6, 250 (200 p. 7 7) (quotat ions omitted). which we have interpreted to mean “clearly and convincingly untrue.” State v. defendant must demonstrate that the allegations were “demonstrably false,” to introduce e xtrinsic evidence of prior allegations of sexual assault, the material issue of the complainant’s motives.” Id. We have since clarified that 7

Fonseca, 435 F.3d at 3 p. 7 75 (quotation omitted); see N.H. R. Ev. 403. delay, waste of time, or needless presentation of cumulative evidence.” confusion of th e issues, or misleading the jury, or by considerations of undue probative value is substantially outweighed by the danger of unfair prejudice, undermines the witness’s credibility, it may be excluded under Rule 403 “if its evidence that impeaches a witness by contradiction is relevant because it Greenidge, 495 F.3d at 99; ac cord Castillo, 181 F.3d at 1133. Thus, a lthough instance of impeachment by contradiction, engages in a Rule 403 analysis.” and Rule 60 7.” (footnotes omitted)). “The court, in deciding whether to allow an admissibilit y of contradiction evidence can be inferred from the relevance rules explicitly recognize contradiction as a basis for attacking credibility, the Practice and Procedure § 6096, at 655 (2007) (“While the Evidence Rules do not calling the witness,” N.H. R. Ev. 607. See C. Wright & V. Gold, 27 Federal credibility of a witness may be attacked by any party, includin g the party v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007), which provides that “[t] he “Impeachment by contradiction is permitted by Rule 607,” United States

ans wer under oath” (quotation omitted)). use of such evidence to impeach when a defendant gives “a knowingly false evidence] to impeach a witness’s general credibility” and is not directed at the 600 (1993) (explaining that Rule 608(b) “is directed at the use of [extrinsic rather the truthfu lness of the specific testimony”); State v. M ello, 13 p. 7 7 N.H. 597, because such evide nce does not attack the witness’ s general credibility, but evidence is permissible. . . when it directly contradicts a witness’ s testimony 113 2; s ee State v. Cannon, 146 N.H. 562, 567 (2001) (stating that “[e] xtrinsic is false, because [it is] contradicted by other evidence.” Castillo, 181 F.3d at contradiction permits courts to admit extrinsic evidence that specific testimony conduct to impeach a witness’ . . . gene ral veracity,” while “impeachment by Put another way, “Rule 608(b) prohibits the use of extrinsic evidence of

s ee Morgan, 648 F.3d at 1 p. 7 7 9. the use of extrinsic evidence to contradict specific testimony given under oath, N.H. R. Ev. 608(b) (emphasis added), impeac hment by contradiction concerns purpose of attacking or supporting the witness’. . . character for truthfulness,” evidence of “[s]pecific instances of the conduct of a witness” offered “for the (5th Cir. 1992) (same). Whereas Rule 608(b) concerns the use of extrinsic 1132 (9th Cir. 1999) (same); United States v. Lopez, 979 F.2d 1024, 1033 - 34 Rule of Evidence 608(b)); see also United States v. Castillo, 181 F.3d 112 9, M organ v. Covington TP., 648 F.3d 172, 179 (3d Cir. 2011) (discussing Federal Impeachment by contradiction is not covered by Rule 608(b). See

extrinsic evidence. Park & Lininger, supra at 19 p. 7 7. of another witness”; in other words, the contradiction is shown through Cir. 2006). “Most commonly, the contradiction is shown through the testimony witness’ lack of credibility.” United States v. Fonseca, 435 F.3d 369, 375 (D.C. Rehabilitation § 4.1, at 197 (201 2). It “is a well - recognized tool for exposing a p. 8 8

context of constitutional claims, federal courts have ruled that extrinsic “truly volunteered.” Castillo, 1 p. 8 81 F.3d at 1134 n.1. Additionally, in the applied to a witness’s cross - examination testimony when that testimony is By contrast, in other jurisdictions the opening - the - door exception may be

those collateral matters.” Je zdik v. State, 110 P.3d 105 p. 8 8, 1063 - 64 (Nev. 2005). trial to impeach the witness’ s credibility with extrinsic evidence relating to witness up and then allowing the very p arty that injected the matter into t he cross - examiner from injecting collateral matters into the trial by setting the 423, 430 (Or. 2005) (en banc). “The policy behind this rule is to prevent the Caruso v. State, 645 So. 2d 389, 394 - 95 (Fla. 1994); State v. Gibson, 113 P.3d witness’s cross - examination testimony as to a collateral matter. See, e.g., 68. In those jurisdictions, extrinsic evidence is inadmissible to impeach a witness’s testimony on direct examination. See Wright & Gold, supra at 667 - In some jurisdictions, the opening - the - door exception applies only to a

See Jones, 962 F.2d at 450; see also Mello, 137 N.H. at 601. issue, extrinsic evidence may be admissible to impeach her by contradiction. 450 (5th Cir. 1992). T hus, w hen a witness “opens the door” to a collateral matter. See id. at 665; see also Jones v. Southern Pacific R.R., 962 F.2d 4 4 7, use of extrinsic evidence to impeach a witness ’s testimony on a collateral T he opening - the - door doctrine is an exception to the general ban on the

661. witness was biased or lacked personal knowledge. See Wright & Gold, supra at grounds include proving a substantive fact in the case or proving that a United States v. Scott, 243 F.3d 1103, 1107 ( p. 8 8th Ci r. 2001). Such independent accord United States v. Schwyhart, 123 Fed. App’x 62, 66 (3d Cir. 2005); v. Bonner, 302 F.3d 776, 785 (7th Cir. 2002) (quotation and ellipsis omitted); the evidence must have an independent ground for admission.” United States Thus, generally speaking, “one may not contradict for the sake of contradict ion; Calhoun v. Ramsey, 408 F.3d 375, 382 (7th Cir. 2005) (quotation omitted). introduced into eviden ce for any purpose other than the contradiction.” “A matter is collateral if the impeaching fact could not have been

at 276. litigation of issues that are collateral to the case at hand.” Hopkins, 136 N.H. collate ral issue rule “is to avoid a ‘trial within a trial,’ that is, to avoid the contradicted was itself material to the case at hand”). “The objective” of the impeach is only admissible for contradiction where the prior testimony being 1995) (explaining that “largely for reasons of efficiency, extrinsic evidence to § 6096, at 659; see also United States v. Perez - Perez, 72 F.3d 224, 227 (1st Cir. through extrinsic evidence as to a collateral matter. See Wright & Gold, supra The general rule is that a witness may not be impeached by contradiction

2. Use of Extrinsic Evidence p. 9 9

had lied on prior occasions and, therefore, had the character trait of about his fiancée, and when he had last seen her — did not demonstrate that he examination — concerning how he got to know the witness, what he told her Vandebogart, the information elicited from the defendant on cross in that case did not actually fall within the specific prohibition of that rule. In Although we discussed Rule 608(b) in our decision, the evidence at issue

court’s decision to allow it. Id. at 165, 167. testimony on cross - examination as to collateral issues, we upheld the trial although the extrinsic evidenc e was offered to impeach the defendant’s his responses to questions asked on cross - examination.” Id. at 167. Thus, reason to distinguish the defendant’s statements on direct examination from 67. We said that, with regard to the opening - the - door doctrine, we saw “no cross - examination as to collateral matters. See Vandebogart, 13 p. 9 9 N.H. at 165 permit ted extrinsic evidence to impeach a criminal defendant’s testimony on In Vandebogart, we aligned ourselves with th ose jurisdictions that have

truly volunteered.” Castil lo, 181 F.3d at 1134 n.1. is clear that testimony on cross - examination” as to a collateral matter “was contradiction with extrinsic evidence is allowed “only in rare situations where it omitted). Accordingly, the rule in some jurisdictions is that impeachment by volunteers an irrelevant fact on direct examination. Id. at p. 9 933 (quotation examination or whether it is “volunteered,” similar to when a defendant to determine whether testimony is invited” by leading questions on cross on cross - examination.” Id. (quotation omitted). Moreover, “it is often difficult manipulate questions to trap an unwary witness into ‘volunteering’ statements intended purpose of rooting out perjury because opposing counsel may examination, impeachment by contradiction is far less likely to achieve its because “w hen the testimony to be contradicted is offered under cross grounds by Skilling v. United States, 561 U.S. 358 (2010). T his is, in part, v. Kincaid – Chauncey, 556 F.3d 923, 932 - 33 (9 th Cir. 200 9), abrogated on other witness’s cross - examination testimony on collateral matters. See United States Courts are cautious when allowing extrinsic evidence to impeach a

suggested by” the direct examination). s tatements he “made in response to proper cross - examination reasonably examination that he was not involved in drug smuggling and the similar with extrinsic evidence the criminal defendant’s testimony on direct matter, that the trial court did not err by allowing the government t o impeach Havens, 446 U.S. 620, 622 - 23, 626 - 27 (1 p. 9 980) (deciding, as a constitutional the Fourth Amendment to the Federal Constitution); see also United States v. 1996) (discussing the impeachment exception to the exclusionary rule under direct” examination. United States v. Morla – Tri nidad, p. 10 100 F.3d 1, 5 (1st Cir. cross - examination are “closely . . . connected with matters explored during examination testimony as to c ollateral matter s provided that the questions on evidence may be admissible to impeach a criminal defendant’s cross - 10

the witness incident was to demonstrate her “motive” to fabricate allegations of the defenda nt argues that the purpose of eliciting the victim’s testimony about defendant had sexually assaulted her. Ellsworth, 142 N.H. at 717. Although assault, she was also a liar when she alleged, “in great detail,” that the victim was a liar when she allegedly threatened to accuse the witness of sexual that she had a propensity to lie. The defense theory was that, because the assaulting her for the purpose of attacking her general credibility by showing about what he claimed was her threat to falsely accuse the witness of sexually within the terms of Rule 608(b). The d efendant cross - examined the victim evidence which the defendant sought to elicit from the victim falls squarely contrast to the cross - examination of the defendant in Vandebogart, the Moreover, this case is readily distinguishable from Vandebogart. In

impeachment. See Vandebogart, 139 N.H. at 167. that case, we merely upheld a trial court’s discretionary decis ion to allow such extrinsic evidence to impeach a witness’s testimony on cross - examination. In disagree that Vandebogart establishe s that a party has a “right” to present under Vandebogart, to present extrinsic evidence to impeach that denial.” We the police that the witness sexually assaulted her, “the defense had the right, T he defendant contends that, once the victim denied threatening to tell

3. Application to this Case

matter because the defendant does not argue otherwise. assume without deciding that the witness’s testimony concerned a collateral demonstrating that her testimony on cross - examination was fals e). We also entitled to impeach complainant’s testimony with extrinsic evidence 03 (20 p. 10 10) (not citing Vandebogart and concluding that defense counsel was not unsustainably exercised its disc retion), with State v. Kelly, 160 N.H. 190, 202 issue because the defendant failed to demonstrate that the trial court had testimony on cross - examination as to what appears to have been a collateral trial court ’s decision to limit a witness’s testimony offered to rebut the victim’s Compare Cannon, 146 N.H. at 566 - 67 (citing Vandebogart and upholding the evidence a victim’s testimony on cross - examination about a collateral issue. when, as in this case, a criminal defendant seeks to rebut with extrinsic For the purposes of this appeal, we assume that Vandebogart applies

but rather the truthfulness of his testimony.” Id. at 167. that the rebuttal evidence “did not attack the defendant’s general credibility, upholding the trial court’s decision to admit the extrinsic evidence, we wrote had lied in his trial testimony. We recognized this distinction when, in defendant was generally a liar; it would demonstrate directly that the defendant would not merely allow the jury to draw the circumstantial inference that the extrinsic evidence contradicting the testimony and, thus, proving its falsi ty untruthfulness. Id. at 165. Rather, if his testimony on those points was false, p. 11 11

trial court’s ultimate decision to correct its earlier, erroneous, provisional Blackmer, 149 N.H. 47, 49 (2003). For instance, he does not explain how the because he has not sufficiently developed it for our review. See State v. We decline to address the merits of the defendant’s argument, in part,

States Constitution.” Constitution and “the Fifth, Sixth, and Fourteenth Amendments to the United process and a fair trial, guaranteed by” Part I, Article 15 of the New Hampshire contends that the tria l court’s so - called “about - face violated [his] rights to due jury during his opening statement to produce the witness testi mony. He meant that his counsel was unable to deliver on the promise he made to the its initial ruling that the Ellsworth exception applies to the witness ’s testimony relied upon it. (Underlining omitted.) He ass erts that the court’ s correction of reversible error when it then “retract[ed] that permission” after the defense had witness’s] testimony subject to specified conditions,” the court committed defendant argues that “[h]aving initially ruled that the defense could elicit [the when it denied his motion to vacate the jury’s verdict and for a new trial. The We next consider the defendant’s assertion that the trial court erred

C. Motio n to Vacate Verdict and for a New Trial

destroyed”). freely admissible to contradict, the purpose of Rule 608(b) is utterly and . . . the witness denies the misconduct[,] . . . [i]f the extrinsic evidence is “a witness is questioned about alleged misconduct probative of untruthfulness with the admissibility of such evidence to prove untruthfulness,” so that when admissibility of misconduct evidence to contradict can be entwined logically Practice and Procedure § 6 p. 11 119, at 127 (2012) (observing that “[t]he evidence to impeach that testimony. See C. Wright & V. Gold, 28 Federal undermined the purposes of Rule 608(b) to allow him also to use extrinsic incident so as to attack her general character for untruthfulness, it would have the defendan t was allowed to cross - examine the victim about the witness In this case, the trial court reasonably could have decided that, because

refuse to do. credibility for truthfulness, we would render Rule 608(b) a nullity. This we i nquired into on cross - examination only because of its bearing on her general of extrinsic evidence to contradict the victim’s testimony about a matter Perez, 72 F.3d at 227. As noted previously, were we to permit the introduction from introducing extrinsic evidence to contradict her testimony. See Perez threat, Rule 608(b)’s prohibition came into play and prohibited the defendant pursue such cross - examination. But when the victim denied making the prior The trial court acted within its discretion in permitting the defendant to

victim’s alleged bad charac ter and predisposition or propensity to lie.” Id. sexual assault, the probative value of that evidence “necessarily involves the p. 12 12

HICKS, CONBOY, LYN N, and BASSETT, JJ., concurred.

h as n ot demonstrated reversible error. See id. submitted on appeal, and the applicable law, we conclude that the defendant the jury verdict and for a new trial, the defendant’s challenges to it, the record upon our review of the trial court’s ruling on the defendant’s motion to vacate the witness testimony. See Gallo v. Traina, 166 N.H. 737, 740 (2014). Based its earlier, provisional, erroneous ruling that the Ellsworth exception applied to demonstrating that the trial court committed reversible error when it corrected Moreover, a s the appealing party, the defendant has t he burden of

upon jury instruction requests before counsel argued to the jury). federal procedural rule requiring it to inform counsel of its proposed action whether the trial court committed reversible error by failing to comply with a comment); United States v. Smith, 629 F.2d 650 (10th Cir. 1980) (concerning (2011) (concerning whether defendant was prejudiced by prosecutor’s improper and are factually distinguishable. See State v. Demond - Surace, 162 N.H. 17 cases upon which the defendant relies in his brief are not due process ca ses to correct error or prevent inj ustice” (quotation omitted)). We note that the two question of the inherent power of the [trial court] to review its own proceedings Prods. v. Near, 152 N.H. 192, 203 (2005) (explaining that “[t]here can be no ruling constitutes a deprivation of due process. See Merrimack Valley Wood