State of New Hampshire v. Roger Roy

On July 17, 2019, the State filed complaints charging the defendant with four counts of simple assault – domestic violence (DV) stemming from a crime that occurred on July 16, 2019. App. at 17-21. 1 On September 18, 2019, a Hillsborough County grand jury indicted the defendant on two counts of aggravated felonious sexual assault (AFSA), one count of second-degree assault, one count of robbery, and one count of criminal threatening with a deadly weapon – DV. Id. at 12-16. The indictments resulted from the same criminal actions as the complaints filed in July 2019. See id. at 12-21.

After a four-day jury trail, the defendant was convicted of criminal threatening with a deadly weapon – DV, and four counts of simple assault – DV. T4 at 730-33; App. at 16-20. The defendant was found not guilty of robbery, second-degree assault, and one count of AFSA. T4 at 730-33; App. at 12, 14-15. The other count of AFSA was dismissed after the State rested for insufficient evidence, which the State did not contest. See T3 at 604-05.

In March 2020, the court (Nicolosi, J.) sentenced the defendant to three to seven years at the State Prison, stand committed, for the criminal threatening with a deadly weapon – DV conviction. App. at 75-76. On two of the simple assault – DV convictions, the defendant was sentenced to twelve-month stand committed terms in the House of Corrections, to be served consecutive to each other, but concurrent to the State Prison sentence. Id. at 77-81. On the other two simple assault – DV convictions, the defendant was sentenced to twelve month terms in the House of Corrections, all of which was suspended for eight years. Id at 82-85. This Court affirmed the defendant’s conviction on direct appeal. See State v. Roy, 174 N.H. 622 (2021). In March 2022, the defendant filed a motion to set aside the verdicts, contending that the State knowingly used false testimony during his trial and failed to correct it. Id. at 86-89. The State objected. Id. at 90-96. On August 2, 2022, the court held a hearing on the motion. MH at 1-31. On November 16, 2022, the court issued a narrative order denying the defendant’s motion. AD at 1-18. This appeal followed.

On July 14, the victim picked up the defendant and a friend of his at a gas station on Bridge Street, and the three of them went back to the victim’s apartment to hang out. Id. at 176-79. After dinner, the victim and defendant dropped the defendant’s friend off and went back to the victim’s apartment. Id. at 179. The defendant spent the night at the victim’s apartment and the two had consensual sex. Id. 179, 194. On the morning of July 15, the victim received a phone call that the defendant became angry over. Id. at 180-81. The two spent the remainder of the day together, going out for something to eat later in the day and then retiring back to the victim’s apartment. Id. at 182-83. The victim and defendant returned to the victim’s bedroom, and an argument about the phone call that the victim received that morning ensued. Id. at 183.

The defendant began to hit the victim, punching and slapping her in the face. Id. at 183-84. The defendant also spit in the victim’s face, pulled her hair, and strangled her, and the assault “just continued all night long.” Id. at 184-85. At one point, the defendant “slammed” the victim onto the floor, causing her roommate to knock on the door and ask what was going on. Id. at 188. The victim “stayed quiet” because the defendant told her that if she opened the door, the defendant would kill her. Id. at 188-89. The defendant’s threats struck fear into the victim because she knew him to carry a gun and he reached for his waistband any time she tried to “get up or something.” Id. at 198-99.

The next day, July 16, the victim’s mother arrived to borrow the victim’s electronic benefits card. Id. at 189-90. The victim was scared to open the door because the defendant told her not to say anything, so she opened the door slightly “and just tossed the card out and closed the door.” Id. That morning, the defendant, the victim, Tiffany, and Tiffany’s son all went to Dunkin Donuts for breakfast, and the victim and the defendant went to the methadone clinic to get the victim’s methadone. Id. at 212-14. During the assault, the victim wanted to call the police, but the defendant would not allow her to access her cellphone, so she “just sat on [her] bed... crying.” Id. at 192. When the victim made attempts to leave during the days-long assault, the defendant wrestled her to the ground, hit her, and strangle her. Id. at 193. At one point during the assault, the defendant started “trying to kiss” the victim, but she was “so angry” at him and “kept kind of pushing him away.” Id. at 195. The victim “didn’t want to have sex with [the defendant].” Id. Nevertheless, the defendant “forced [her] to have sex with him.” Id. The defendant put a pillow over the victim’s face, undressed her, and “[p]ut his penis inside of [her].” Id. at 196-97. The defendant also used “[h]is hand” to touch her vagina “at one point.” Id. at 197.

At the end of the assault, the defendant strangled the victim until she was unconscious. Id. at 193. The victim did not know how long she was unconscious, but it felt like hours, and the defendant was gone when she came to. Id. When the victim awoke, she was dizzy and could not breathe or swallow normally. Id. at 200. The victim’s room was “trashed, ” and she was missing her phone, keys, bankcards, “like everything[ was] gone.” Id. The victim then went to her friend Tiffany’s room for help. Id. at 201-02. After going to the bank to cancel her bankcards, the victim went to the police and, subsequently, the hospital. Id. at 217-20. 2. Evidentiary Argument Before The Second Day Of Trial.

The victim’s direct examination began on the first day of trial and extended into the second day. See T1 at 2; T 2 at 245. Before the second day of trial began, the parties litigated whether certain text messages between the victim and the defendant could be offered by the defense as impeachment evidence. See T2 at 248-273; see App. at 29-68 (text messages). The text messages were meant to impeach the victim’s statement to police that she had a sense of “reluctance and trepidation” about meeting up with the defendant to hang out in July 2019. T2 at 250-51. Defense counsel asserted that the same was “flatly contradicted by the nature of the text messages.” Id.

The substance of the arguments as to the admissibility of the text messages is not pertinent to the issue on appeal. However, it is relevant to the issue on appeal that, during those arguments, the State represented that it had “gone over all those messages with [the victim]” and “told the Defense that [they] did so.” Id. 261. The State asserted that it told the defense that “when [the victim] first reviewed” the text messages, “she believed that they were from 2018.” Id.

Ultimately, the court ruled that the messages were relevant to the victim’s state of mind regarding her relationship with the defendant in July 2019. AD at 10. Accordingly, the court allowed the defense to cross- examine the victim using the messages, including showing a sexually provocative video and a picture that the victim sent to the defendant. Id. However, the court required “sexual banter” within the text messages to be redacted because that portion of the communications was more prejudicial to the victim than probative of any issue in the case. Id. 3. Victim’s Cross-Examination.

Defense counsel vigorously cross-examined all aspects of the victim’s testimony, but especially her testimony about how the meeting between the victim and the defendant in July 2019 came to be. See T2 at 278-420. On cross-examination, the victim testified that it was the defendant’s idea to meet up and talk about their relationship. Id. at 299- 300. The victim told police, and testified on cross, that she had feelings of reluctance and trepidation about meeting the defendant because of what had happened in the past. Id. at 299. To impeach that testimony, defense counsel confronted the victim with a series of text messages that were stamped with the month, day, and time on which they were sent, but not the year. Id. at 308-09; see App. at 29-68 (text messages). The text messages showed that the victim and the defendant communicated playfully and lovingly, and that the victim was just as eager to see the defendant as he was to see her. See id. at 317-330; AD at 8-9, 12-13; App. at 29-68. The victim agreed that the messages defense counsel showed her were between she and the defendant and were sent on July 13 and 14. Id. at 306-09. However, the victim testified that the messages were from July 2018, “when [she and the defendant] first got together.” Id. at 309-10. Defense counsel probed this claim intensely and at length, but the victim maintained her story that the text messages were from July 2018. Id. at 310-14, 317-330. To maintain that story, the victim “modified her testimony on the spot” and claimed that she picked the defendant up on July 13 around noon, not in the evening. T2 at 322-23; AD at 13 4. Evidence Corroborating Victim’s Direct Examination Testimony.

This case turned largely on the victim’s testimony. AD at 14. However, her testimony was corroborated by her roommate Tiffany, photographs of her injuries, descriptions of the victim’s emotional state, her actions in seeking law enforcement assistance and medical care, and the unexplained fact that the victim’s possessions were found on the defendant when he was arrested. AD at 14-15.

Tiffany testified that the last time she saw the victim before the police showed up to her apartment was when the victim “came running into [her] room... holding her throat” and “crying frantically.” T1 at 125-26.

Tiffany said the victim was “very distraught.” Id. at 129. Tiffany explained that aside from the first evening that the defendant was over, the victim and defendant were in her bedroom almost the entire time that the defendant was there. Id. at 129-30.

Tiffany also corroborated that the victim quickly interacted with her mother through a crack in her bedroom door. Id. at 133. Tiffany said that the victim did not open the door, and that was an unusual interaction between the victim and her mother. Id. at 133. Further, Tiffany testified to knocking on the victim’s bedroom door after hearing a loud bang and not getting an answer. Id. at 138-39. Tiffany figured that the defendant and victim must have been playing around or having sex, so she minded her business and did not continue to knock. Id.

Detective Jason Feliciano rode in the ambulance with the victim from the police station to the hospital. T1 at 68. During that trip, Detective Feliciano observed a bruise on the left side of the victim’s neck and a bruise on her chest where a dermal piercing had been removed, which the victim also testified to. T1 at 68, 237-38. Detective Feliciano also testified that the victim’s “voice was hoarse” and she was “distraught.” Id. at 68, 71. Detective Kevin O’Meara also visited the victim at the hospital and observed laying in a hospital bed crying with “bruising around her neck and on her chest area.” T2 at 439. The victim also “had a broken fingernail.” Id. Detective O’Meara photographed the victim’s injuries, which were entered as full exhibits at trial. T1 at 75; T2 at 440-41. Detective O’Meara also took photos of the victim’s bedroom, which were admitted into evidence. T2 at 443-45. Additionally, Detective O’Meara conducted an inventory search of the defendant when he was arrested. Id. at 448. That searched revealed that the defendant possessed the victim’s ATM and EBT cards, and the victim’s cell phone. Id. at 449.

The defendant agreed to an interview with Detective O’Meara and admitted that he had been with the victim “since Sunday, ” but stated that the victim was “fine when he left her.” Id. at 457-58. The defendant said that he had the victim’s cellphone because he was using it to go on Facebook. Id. at 459. The defendant also said that the victim let him use her EBT card earlier that day to go get water. Id. at 460. However, the defendant had no explanation for why he had the victim’s debit cards from two different banks. Id. at 460.

The trial on the July 2019 charges was held in February 2020. Id. At that trial, the victim testified that certain text messages she was confronted with were from July 2018, which the defendant asserted was

“clearly false.” Id. at 86-87. The defendant asserted that the prosecutors were either “aware, or imputed to be aware, of the false testimony, ” but “neither prosecutor moved to correct the record.” Id. at 87. The defendant was convicted at trial, and, during sentencing, the State moved to impose the suspended sentence resulting from the May 2018 case, as the State indicated it would during plea negotiations. Id. The defendant asserted that the prosecution thereby “confirmed on the record” that the prosecution was aware of the May 2018 case. Id.

Relying primarily on Napue v. Illinois, 360 U.S. 264 (1959) and State v. Yates, 137 N.H. 495 (1993), the defendant argued that his due process rights protected by the Fourteenth Amendment to the United States Constitution were violated. Id. at 87-88. The defendant argued that he had established: (1) that the victim’s testimony was false; (2) that the prosecution knew — either actually, constructively, or imputably — that the testimony was false; and (3) that the uncorrected false testimony materially prejudiced his case. Id. at 88. On the materiality prong, the defendant acknowledged that defense counsel “crossed” the victim “on the improbability of these texts being precisely one year earlier, ” but argued that “this is not the equivalent of exposing the lie.” Id. The State filed an objection in June 2022. Id. at 90-96. The State asserted that defense counsel provided the State with the relevant text messages in January 2020, “[a]lmost immediately prior to trial.” Id. at 91. The State submitted that “during the trial, and until the filing of the defendant’s motion to set aside the guilty verdicts, [the State] was not aware of the 2018 bail order, ” which established that the defendant was incarcerated at the time the victim testified the text messages were sent. Id.

Further, the State “was certainly not aware of... [the] implications” of the bail order during trial. Id. The State also noted that the “defendant was aware that he was incarcerated in July of 2018” and never offered that information before filing his motion to set aside the verdicts. Id. The State conceded that the victim’s testimony that the text messages were sent in July 2018 was false. Id. at 94. However, the State argued that it was not “necessarily” the case that the victim “testified falsely intentionally” and it was “reasonable to conclude that her memory was that of the messages occurring in 2018.” Id. at 92-93. In any event, the State disagreed that the prosecution “knew that [the victim’s] testimony was false during trial.” Id. at 93. The State argued that it was “not reasonable” to impute knowledge of the bail order from the May 2018 case onto the attorneys who prosecuted the July 2019 case. Id. The State contended that it was unreasonable to argue that, when a State’s witness was cross-examined on impeachment evidence provided by the defense, that the State was aware of the “exact dates and conditions of the defendant’s bail on an unrelated matter almost two years prior to the defendant’s trial in the [instant] case.” Id. at 93-94. The State also argued that the victim’s allegedly false testimony about the text messages being sent in July 2018 was not material to the jury’s verdict. Id. at 93. The State asserted that the fact that the victim allegedly testified falsely went to her credibility, and the victim had already been “cross-examined vigorously.” Id. The State observed that the text messages were sexual in nature and demonstrated the victim’s sexual interest in the defendant, and that the jury acquitted the defendant of AFSA, which was the charge “most related to the text messages in question.” Id.

“Obviously, ” the State contended, “the jury scrutinized [the victim’s] credibility in returning verdicts of not guilty.” Id. “Therefore, the testimony in question was not material to the guilty verdicts returned.” Id. On August 2, 2022, the court held a hearing on the motion. MH at 1-31. At the outset of the hearing, the court took judicial notice, with no objection from the State, of the bail orders from the May 2018 case and the State’s motion to impose in this case. Id. at 3, 5. Defense counsel argued that the text messages were provided to the State in discovery and the State therefore knew that the victim would be cross-examined about them. Id. at 9-10. Defense counsel acknowledged that the attorneys that prosecuted the July 2019 case were not involved with the May 2018 case. Id. at 10-11. However, counsel contended that “the State is [the] State is [the] State” and that knowledge of one case by one prosecutor could be imputed to other prosecutors in the same County Attorney’s Office. Id. at 11. Therefore, defense counsel asserted that the prosecutors in the July 2019 case knew the victim’s testimony was false “as a matter of law, ” even if not as a matter of fact. Id. For its part, the State acknowledged that “there was a pretrial argument about the admissibility of the text messages” and that, during that argument, one of the prosecutors stated that the victim told the prosecutor that she “believed that [the texts] were from 2018.” Id. at 15. The prosecutor stated that she “reviewed” the text messages “right prior to trial, ” but could not “remember exactly” what the victim said about them. Id. The State conceded that the defendant was incarcerated in July 2018, but maintained that the victim “believed” the text messages “were from 2018.” Id. at 19-20. Finally, the State reiterated that the victim underwent a lengthy and vigorous cross-examination, and the not guilty verdicts reflect that the jury closely considered the victim’s credibility. Id. at 24-26. Defense counsel responded that if the jury had been aware that the victim lied on the stand, “that would have influenced their assessment of her credibility.” Id. at 27. Counsel acknowledged that the victim’s credibility was questioned, but if “an outright lie” by the victim was exposed, then “that may have been the one thing that finally caused [the jury] to acquit [the defendant] on all the charges.” Id. Additionally, defense counsel argued that “burden shifting” is “not the test.” Id. Counsel argued that “to say that defense counsel could have known” that the testimony was false does not excuse the State’s obligation to correct the record when false testimony arises. Id. at 27-28. On November 16, 2022, the court issued an order denying the defendant’s motion to set aside the verdicts. AD at 1-18. Starting with whether the victim’s testimony was false, the court found the State’s argument that the victim “did not lie, but simply made a date error, ” was “not persuasive.” Id. at 12. The court explained that the July 2019 incident was not so long ago that the victim’s memory would have faded, and the incident involved “gross events, not small details that would have been easily confused or forgotten.” Id. The court found it “very unlikely” that the victim was so “inadvertently” mistaken as to the timeline of events. Id. at 12-13.

Additionally, the court observed that the content of the messages was loving, personal, and explicit, which undercut the victim’s assertion that these text messages originated before the victim and the defendant entering a relationship. Id. at 13. “Furthermore, the coincidence [was] just too great that on the very same date, two years in a row, [the victim] believed that” she and the defendant “had arrangements to meet on Bridge Street to go to [the victim’s] home and hang out.” Id. To support that possibility, the victim “modified her testimony on the spot about when they got together on Sunday – noon versus evening – and made claims that the texts were incomplete or fabricated.” Id.

The court next addressed whether the false testimony was material to the jury’s verdicts. Id. The court first noted that “the falsehood” did not “greatly benefit the State” and the probative value of the text message evidence as not particularly high. Id. at 14. However, the court acknowledged that, “had the perjury been exposed, the jury may have been more willing to disregard some or all of her testimony, ” and this “case turned largely on the word of [the victim].” Id. at 14-15. Notwithstanding that, the “jury obviously questioned [the victim’s] credibility to the extent her testimony did not carry the day on three of the most serious charges.” Id. at 15. The victim’s testimony about the text messages, even without exposing the perjury, “did not ring true” and the court found that it was “very likely the jury came to the same conclusion as did the Court as to the truthfulness of [the victim’s] statements.” Id.

The court said the materiality prong was “a very close call.” Id. However, the court was “not convinced that there [was] a reasonable likelihood that the false testimony and the lack of correction could have affected the verdict.” Id. The court stated that the false testimony “was tangential to the issues before the jury” and that the evidence “lost to the defense as a result of the falsehood was not such terribly compelling impeachment evidence or critical to the factual support of the crimes.” Id. at 15-16. Accordingly, the court found that the defendant had not satisfied the materiality prong. Id. at 16.

Finally, the court concluded that the prosecution did not know that the victim’s testimony was false during trial. Id. at 16-17. The court recognized that knowledge of favorable evidence known to one prosecutor can be imputed onto another prosecutor, even if the two prosecutors do not work in the same office. Id. at 16. However, the court observed that neither of the attorneys prosecuting the July 2019 case were involved with the May 2018 case, and they had no reason to review the 2018 case file “with a focus on [the defendant’s] bail status” in that case. Id. The court asserted that imputing knowledge between prosecutors “must be reasonable and tied to some basis to believe favorable evidence exists and will be found.” Id. Here, the May 2018 case “had no direct information pertaining to the [July 2019] case or the perjured testimony.” Id. at 16-17. Although the victim apparently informed the prosecutors that she believed the texts were from 2018, the court stated that “none of the lawyers or the Court expected [the victim’s] testimony to be anything other than that the messages were sent in 2019.” Id. at 17. Even if the prosecutor had come across the bail order while reviewing the May 2018 case file in preparation to file a motion to impose, there was “no reason such information would have been recorded or retained” by the prosecutor. Id. Further, even if the prosecutor “could have pulled the information from the recesses of her mind in the midst of trial, ” the connection between the bail order and the victim’s false testimony “still had to be made.” Id. “Indeed, ” it was the defendant who had “the best knowledge of his own recent 2018 detention, ” and even he “did not put two and two together and inform his lawyer that [the victim’s] testimony could easily be proven wrong.” Id. at 17-18.

“What the defendant conted[ed] should have occurred, [was] just too much to expect in the context of this case.” Id. at 18. Accordingly, the court ruled that the prosecution did not know that the victim’s testimony was false at the time of trial. Id.

The court did not err in denying the defendant’s motion to set aside the jury’s guilty verdicts because the false testimony at issue was not material to the verdict.

To prevail, the defendant must establish that: (1) the victim testified falsely; (2) the testimony was material to the verdict; and (3) the prosecutor knew at trial that the testimony was false. See Napue v. Illinois, 360 U.S. 264 (1959); State v. Yates, 137 N.H. 495, 498 (1993). The trial court concluded found that the victim’s testimony that the texts were sent in July 2018 was false. The State has not appealed that finding. The first Yates element has therefore been met. The trial court also found that the prosecutors did not know during trial that the victim’s testimony was false because the prosecutors did not know that the defendant was incarcerated in July 2018 and, therefore, could not have sent the texts at that time. In the State’s view, this finding alone does not establish whether the prosecution knew during trial that the testimony at issue was false. While the prosecution’s knowledge (or lack thereof) of the defendant’s incarceration is relevant to whether the prosecution knew that the victim’s testimony that the texts were sent in 2018 was false, the prosecution could have simultaneously known that the texts were sent in 2019 and not known that the defendant was incarcerated in 2018.

The trial court did not find as a matter of fact whether the prosecution knew during trial that the texts were sent in 2019. Without a factual finding on that question, the State is unable to assess on appeal whether the second Yates element has been met.

This analytical defect is of no consequence, however, because the victim’s false testimony was not material to the jury’s verdicts. As the trial court observed, defense counsel vigorously cross-examined the victim about the false assertion, substantially attacking and undermining her credibility, and the jury finding the defendant not guilty on three of the charges demonstrates that the jury closely scrutinized the victim’s credibility. Accordingly, “no prejudice resulted from [the victim’s] inaccuracy” and “therefore, ” there is “no basis for reversal.” State v. Briggs, 886 A.2d 735, 748, n. 3 (R.I. 2005).

Indeed, the State’s failure to correct the victim’s testimony arguably inured to the defendant’s benefit. Rather than the victim’s false testimony being exposed and corrected in a relatively sterile manner, such as through a stipulation and a corresponding jury instruction, defense counsel was able to expose the implausibility of the victim’s claim while simultaneously damaging her credibility generally through significant cross-examination regarding when the texts were sent. See T2 at 310-14, 317-330. Further, there was evidence that corroborated the victim’s version of events, such as the testimony of Tiffany and Detectives Feliciano and O’Meara. Photographs of the victim’s injuries and her bedroom, and the fact that the defendant was in possession of the victim’s belongings when he was arrested also corroborated the victim’s story. The jury was instructed that it was their job to determine witness credibility and that they could accept some portions of a witness’s testimony and reject others. The jury clearly did that in this case, and this Court should not invade the province of the jury by second guessing which portions of the victim’s testimony the jury decided to credit. Ultimately, the trial court correctly concluded that there was not a reasonable likelihood that exposing the testimony as false could have resulted in a different outcome. Accordingly, the victim’s false testimony was not material to the jury’s determination of guilt or innocence in this case, the third Yates element has not been met, and the trial court’s order should be affirmed.

On appeal, the defendant argues that the trial court erred by denying his motion to set aside the jury’s guilty verdicts. See DB at 16-37. The defendant contends that his right to due process under the Fourteenth Amendment to the United States Constitution was violated because the State knowingly offered false testimony and failed to correct that testimony, which materially prejudiced his case. See id. at 16, 19-22. To prevail on appeal, the defendant must establish that: (1) the victim testified falsely; (2) the testimony was material to the verdict; and (3) the prosecutor knew at trial that the testimony was false. See Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972); United States v. Alahmedalabdaloklah, 94 F.4th 782, 830 (9 Cir. 2024); State v. Yates, 137 N.H. 495, 498 (1993). If the State knew that false testimony was given, then the State had a constitutional obligation to correct the record regardless of whether the State solicited the false testimony, or the defendant also knew that the testimony was false. Napue, 360 U.S. at 269; Yates, 137 N.H. at 499-500.

This Court reviews questions of constitutional law de novo. S.D. v. N.B., 176 N.H. 44, 48 (2023). Nevertheless, when assessing a claim that the State knowingly used false testimony in a criminal trial, this Court affords deference to the trial court’s factual findings and credibility determinations. Yates, 137 N.H. at 498; see Giglio, 405 U.S. at 154; Napue, 360 U.S. at 269.

The trial court found that the victim’s testimony that the relevant text messages were sent in July 2018 was false. See AD at 12-13; App. at 94. The State has not appealed that finding. There is also no dispute that the prosecution did not correct the victim’s testimony that the relevant text messages were sent in 2018.

As to whether the prosecutor knew the victim’s testimony was false, the parties and the court below focused on the wrong question. The defendant’s motion to set aside the verdicts argued that the State knew during trial, either actually or by imputed knowledge, that the defendant was incarcerated in July 2018. See App. at 88. Understandably, then, the trial court analyzed whether the State knew during trial that the defendant was incarcerated in July 2018. See AD at 16-18. The court did not address the defendant’s “actual knowledge” argument, but ruled that knowledge of the bail order from the May 2018 case could not be imputed onto the prosecutors in this case. See id.

Whether the prosecutors knew that the defendant was incarcerated in July 2018 is certainly relevant, but it is not the central inquiry. The false testimony that went uncorrected was that the text messages were sent in July 2018, not July 2019. Accordingly, the ultimate question was whether the prosecutors knew or should have known during trial that the victim’s testimony to that extent was false. The court did not squarely address that question, likely because the defendant’s argument focused on the peripheral question of whether the prosecution knew that the defendant was incarcerated in July 2018. Nevertheless, it was possible for the prosecution not to know that the defendant was incarcerated in July 2018 and still know that the text messages were sent in July 2019.

As a result, the trial court did not determine as a matter of fact whether the prosecution knew or should have known that the text messages were sent in July 2019. Without such a finding, the State is unable to assess on appeal whether the third Yates element has been met. This analytical defect, however, is inconsequential because the trial court’s finding that the false testimony was not material to the verdicts was correct and should be affirmed.

Even if the prosecution knew or should have known that the victim’s testimony was false, a new trial is not “automatically require[d.]” Giglio, 405 U.S. at154. To obtain a new trial, the defendant must demonstrate that “the false testimony could... in any reasonable likelihood have affected the judgment of the jury....” Giglio, 405 U.S. at 154; see Mastracchi v. Vose, 274 F.3d 590, 601 (1st Cir. 2001); Yates, 137 N.H. at 499. In this case, the trial court correctly concluded that there was not a reasonable likelihood that the State’s failure to correct the victim’s testimony could have affected the jury’s verdict.

As an initial matter, the State’s failure to correct the victim’s testimony provided defense counsel an opportunity to laboriously probe the victim’s claim that the text messages were sent in 2018. See T2 at 310-14, 317-330. Had the State corrected the testimony quickly, no less than eighteen transcribed pages of cross-examination that was severely damaging to the victim’s credibility may have been made unavailable to defense counsel. Instead, there would have likely been a momentary correction, followed by some cross-examination, which may have left the jury to conclude that the victim was simply mistaken or confused and that the State corrected the issue promptly.

Thus, the defendant arguably benefited significantly from the State’s failure to correct the victim’s testimony because, rather than having the victim’s false testimony exposed in a sterile manner, defense counsel ably cross-examined the victim and made it quite easy to conclude that the texts were not sent in July 2018, while also undermining her credibility generally. See T2 at 310-14, 317-330. As the trial court stated, “it is very likely the jury came to the same conclusion as did the Court as to the truthfulness of her statements.” AD at 15. That the jury closely scrutinized the victim’s credibility and was skeptical of it is evidenced by the fact that the jury found the defendant not guilty of AFSA, robbery, and second- degree assault, strangulation.

In short, the defendant impeached the victim’s testimony that the texts were sent in July 2018 in a decidedly impactful way. Yet, the defendant still argues that the State violated its duty to correct false testimony and that the State’s failure warrants a new trial. “It is true that a prosecutor has a general duty to correct false testimony elicited from a state’s witness on cross-examination.” State v. Briggs, 886 A.2d 735, 748, n. 3 (R.I. 2005) (citation omitted). However, “[i]n light of [the] defendant’s successful impeachment of the witness, no prejudice resulted from [the victim’s] inaccuracy about” when the texts were sent. Id. Accordingly, the defendant’s claim of error “presents no basis for reversal.” Id. Similarly, as Justice Thayer observed in his dissent in Yates, in Napue and Giglio, “the defendant was unaware of the false testimony” and, therefore, “was unable to effectively cross-examine the witness because of the false testimony.” Yates, 137 N.H. at 501-02 (Thayer, J., dissenting). By contrast, in this case, the defendant was aware of when he and the victim exchanged text messages and, accordingly, his attorney was able to cross-examine the victim forcefully and effectively. Granting the defendant a new trial in these circumstances “allows defendants to sit on their rights and then claim they were somehow wronged by the judicial system.” Id. Additionally, despite the victim’s credibility issues, there was evidence to corroborate the victim’s story. See AD at 15. Tiffany testified that she heard a loud bang while the defendant and victim were in her bedroom. Further, she corroborated the victim’s account of the victim’s interaction with her mother and of the victim running into Tiffany’s bedroom frantically when she regained consciousness. Tiffany and Detective Feliciano testified that the victim was distraught. Detectives Feliciano and O’Meara testified to the injuries they observed on the victim. The jury saw photos of the victim’s injuries and of her bedroom. They heard that the defendant was found with the victim’s bank cards and no explanation for why he had them. The fact that the victim quickly sought to cancel her ATM cards and seek assistance from law enforcement and medical professionals also corroborated the victim’s testimony. Accordingly, the jury had good reason not to dismiss the victim’s testimony wholesale without carefully considering all of the evidence. The jury was instructed that it was their job to determine the credibility of the witnesses and that they could accept all, some, or none of a witness’s testimony. T3 at 689-90. The jury followed that instruction and, likely with the help of corroborating evidence, credited of the victim’s testimony to an extent sufficient to convict the defendant of DV simple assault and DV criminal threatening.

Based on the jury’s DV simple assault verdicts, they credited the victim’s testimony that the defendant slapped her in the face, pulled her hair, spit on her, and punched her. App. at 17-20. The DV criminal threatening conviction shows that the jury credited the victim’s testimony that the defendant said that he would kill her if she answered the door when Tiffany or her mother knocked, that she knew him to carry a gun, and that he reached for his waistband whenever she went toward the door. App. at 16. However, as previously discussed, the jury apparently did not credit the victim’s testimony related to the AFSA, robbery, or second-degree assault indictments. App. at 12, 14-15.

Defense counsel offered the jury several reasons to discredit the victim and the jury clearly did so to an extent. However, as they were instructed, the jury was free to credit some parts of the victim’s testimony and reject others, and the jury clearly did that as well. This Court should not invade the province of the jury by second guessing the jury’s credibility determinations.

Because this issue came to the trial court in a motion to set aside the verdict, the trial court was the factfinder for purposes of the defendant’s motion. Yates, 137 N.H. at 498. “In a trial like this, much of what occurred in the courtroom can be lost in the transcript.” United States v. Freeman, 650 F.3d 673, 681 (7th Cir. 2011). Unlike the trial court, this Court’s “understanding of the testimony and its impact is limited.” Id. This Court cannot “see the witnesses, and [has] no idea how the jury reacted to them[.]” Id. The trial court “had a feel for” “this case” that “can’t [be] replicat[ed]” on appeal and that should not get “lost in [this Court’s] review of her decision.” Id.

Accordingly, for those reasons, the trial court’s ruling that there was not “a reasonable likelihood that the victim’s false testimony and the lack of correction could have affected the verdict[s]” should be affirmed. AD at 16. It follows that, because the defendant has failed to demonstrate that he was prejudiced by the State’s failure to correct the victim’s false testimony, the trial court’s denial of the defendant’s motion to set aside the verdict was not in error and should be affirmed.

The trial court correctly concluded that the defendant was not prejudiced by the State’s failure to correct the victim’s false testimony. Accordingly, the State respectfully requests that this Honorable Court affirm the judgment below.

However, if this Court disagrees on the Yates materiality prong, then the State submits that this case should be remanded for the trial court to determine as a matter of fact whether the State knew or should have known during trial that the victim’s testimony was false in accordance with the third Yates element.

The State does not request oral argument. If oral argument is scheduled in this case, Sam Gonyea will present on behalf of the State.

I, Sam M. Gonyea, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 6, 970 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

August 9, 2024 /s/ Sam M. Gonyea Sam M. Gonyea

I, Sam M. Gonyea, hereby certify that a copy of the State’s brief shall be served on Thomas Barnard, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

August 9, 2024 /s/ Sam M. Gonyea Sam M. Gonyea