State of New Hampshire v. Mark Boulton ( 2021 )


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    THE SUPREME COURT OF NEW HAMPSHIRE
    ___________________________
    Carroll
    No. 2020-0025
    THE STATE OF NEW HAMPSHIRE
    v.
    MARK BOULTON
    Argued: April 14, 2021
    Opinion Issued: September 30, 2021
    Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, senior
    assistant attorney general, on the brief and orally), for the State.
    Rudolph Friedmann, LLP, of Boston, Massachusetts (William A. Korman
    on the brief and orally), for the defendant.
    BASSETT, J. The defendant, Mark Boulton, appeals convictions,
    following a jury trial, on four counts of aggravated felonious sexual assault, see
    RSA 632-A:2, IV (2016), and one count of misdemeanor sexual assault, see
    RSA 632-A:4, I(b) (Supp. 2020). He argues that the Superior Court (Ignatius,
    J.) erred by: (1) denying his request to enter portions of the transcript of his
    interview with police into the record; and (2) allowing a witness for the State to
    offer expert testimony while testifying as a lay witness. We affirm.
    The following facts are undisputed or supported by the record. In 2016,
    a 15-year-old child reported that she had been sexually assaulted by the
    defendant. The Moultonborough Police Department investigated the
    allegations. A detective in the department interviewed the defendant, and the
    department prepared a transcript of the interview.
    At trial, the State called the detective as a witness. On direct
    examination, the detective testified regarding his interview with the defendant,
    but the State did not offer the transcript of the interview into evidence, nor did
    it use the transcript to refresh the detective’s memory. The defendant objected
    to the detective’s testimony, arguing that he was mischaracterizing the
    interview. The trial court overruled the objection, observing that the defendant
    was free to cross-examine the detective if he believed that the detective was
    mischaracterizing the interview.
    On cross-examination, the defendant sought to have the detective read
    portions of the interview transcript into the record. The State objected. The
    defendant responded that he was entitled to read portions of the transcript into
    the record because the State had provided an incomplete and misleading
    account of the interview. See N.H. R. Ev. 106.
    The trial court sustained the objection. The court ruled that, because
    the State had only questioned the detective regarding the interview, without
    introducing any portion of the transcript, the defendant was not entitled to
    introduce the transcript in order to correct any misleading impression. Rather,
    the court stated, the defendant could use the transcript to refresh the
    detective’s memory or impeach specific answers. At the close of the State’s
    case, the defendant asked the court to reconsider its prior ruling. The
    defendant requested that the court “allow the defense to enter into evidence the
    entirety of [the defendant’s] statements” from the interview in regard to certain
    topics that the detective had testified to. The court denied the motion.
    At trial, the State also called as a witness the Moultonborough police
    officer who had led the department’s investigation in the case. On direct
    examination, the State asked the officer to explain the role of a Child Advocacy
    Center in a criminal investigation when a child is interviewed. The defendant
    objected, arguing that, because the officer was not testifying as an expert, she
    should not be allowed to testify as to how she had been “trained . . . to speak
    with children.” The trial court overruled the objection, explaining that the
    officer could answer the question because it would provide the jury with
    background information about how a child sexual assault investigation
    generally proceeds. Shortly thereafter, the State asked the officer how many
    child sexual abuse investigations she had led. The defendant again objected,
    arguing that that information was irrelevant. The court overruled the
    objection, stating that the answer would provide appropriate background
    information regarding the officer’s training and experience.
    2
    During cross-examination, the defendant asked the officer whether it is
    standard practice when conducting an investigation to interview witnesses as
    soon as possible after an event. The officer responded that witnesses
    sometimes need time to “process” an event before discussing it. On redirect
    examination, the officer was asked to expand on her answer:
    Q You talked a little bit, at the beginning of that cross [-
    examination], about giving people time to process. Counsel [for the
    defendant] had asked you questions about immediately
    interviewing witnesses and alleged victims. And you started to talk
    a little bit about processing. What do you mean by that?
    A When a traumatic event occurs -- and we know this, you
    know, essentially, from our training and how to approach, you
    know, if we’re at a --
    The defendant objected, arguing that the officer was “not testifying as an
    expert, so I don’t think she gets to talk about processing, internal mind, all of
    that stuff.” The trial court overruled the defendant’s objection. This exchange
    between the State’s counsel and the officer followed:
    Q Counsel [for the defendant] had asked you questions
    about how it’s -- the protocol or the procedure is to interview
    people right away. And your response, if I understand you
    correctly -- correct me if I’m wrong -- was that not always and that
    sometimes people need to process. Was that your answer?
    A Yeah, many --
    Q Can you just --
    A -- many times they do, yes.
    Q Right. Explain that.
    A Yeah. I -- I was saying, before, that, you know, a police-
    involved shooting, for example, we would never interview the officer
    involved or officers, you know, right site on scene, you know, three
    minutes after it happened: what did you see; what did you -- I
    mean, often, they’ll take a quick statement from them. By that, I
    mean, like, how many shots do you think you fired, and go from
    there, go home, rest. They seize the firearm.
    My training with working with child advocacy centers and
    forensic interviewing, you know, they alway[s] -- we just constantly
    are saying, disclosure is a process. And a traumatic event, as we
    3
    know, can -- you know, for anyone, just a general, you know, like,
    you go through a tough time, you lose a parent or something, no
    matter what age you are, and you become depressed, that’s a
    reaction to that. And it’s hard to process information on the event
    and whatnot.
    And it does take time, and you remember little things.
    And that’s why it’s important and we often do go back and talk to
    people, sometimes informally. Like I said, it’s not, you know,
    always, like, oh, push play, you know, record. For victims and
    suspects, yes, we -- there are certain things in place. But other
    than that, no.
    The jury convicted the defendant, and this appeal followed.
    On appeal, the defendant argues that the trial court erred when it ruled
    that he was not entitled to enter portions of the transcript of his interview with
    the detective into the record. He also argues that the trial court erred when it
    allowed the officer, who was testifying as a lay witness, to provide expert
    testimony regarding forensic interviewing.
    “The trial court has broad discretion to determine the admissibility of
    evidence, and we will not upset its ruling absent an unsustainable exercise of
    discretion.” State v. Plantamuro, 
    171 N.H. 253
    , 255 (2018). “When we
    determine whether a trial court has sustainably exercised its discretion, we are
    really deciding whether the record establishes an objective basis sufficient to
    sustain the discretionary judgment made.” State v. Gonzalez, 
    170 N.H. 398
    ,
    407 (2017) (quotation omitted). “Our task is not to determine whether we
    would have found differently, but is only to determine whether a reasonable
    person could have reached the same decision as the trial court on the basis of
    the evidence before it.” Plantamuro, 171 N.H. at 255. To show that the court’s
    ruling is not sustainable, the defendant must demonstrate that the decision
    “was clearly untenable or unreasonable to the prejudice of his case.” State v.
    Lambert, 
    147 N.H. 295
    , 296 (2001) (quotation omitted).
    We first address the defendant’s argument that the trial court erred when
    it ruled that he was not entitled to enter portions of the interview transcript
    into the record. The defendant argues that the State created a misleading
    impression when, through the detective, it elicited testimony as to selected
    portions of the defendant’s statements during the interview. The defendant
    contends that the jury was left with the impression that his responses were
    more inculpatory than they actually were. He argues that, pursuant to Rule
    106 of the New Hampshire Rules of Evidence, he had a right to introduce
    excerpts from the transcript into the record to correct the misleading
    impression created by the detective’s testimony. We disagree.
    4
    Rule 106, Remainder of or Related Writings or Recorded Statements,
    provides as follows:
    (a) If a party introduces all or part of a writing or recorded
    statement, an adverse party may require the introduction, at the
    time, of any other part — or any other writing or recorded
    statement — that in fairness ought to be considered at the same
    time.
    (b) A party has a right to introduce the remainder of an
    unrecorded statement or conversation that his or her opponent
    introduced so far as it relates:
    (1) to the same subject matter; and
    (2) tends to explain or shed light on the meaning of the part
    already received.
    N.H. R. Ev. 106. Rule 106 codifies New Hampshire’s common law doctrine of
    completeness, which provides that a party “has the right to introduce the
    remainder of a writing, statement, correspondence, former testimony or
    conversation that his or her opponent introduced so far as it relates to the
    same subject matter and hence tends to explain or shed light on the meaning
    of the part already received.” State v. Lopez, 
    156 N.H. 416
    , 421 (2007)
    (quotation omitted); see State v. Mitchell, 
    166 N.H. 288
    , 293 (2014). The
    doctrine “exists to prevent one party from gaining an advantage by misleading
    the jury.” Lopez, 156 N.H. at 421 (quotation omitted). The goal of the doctrine
    is “to correct misleading impressions by omission.” Mitchell, 166 N.H. at 294.
    “The trial court has discretion under Rule 106 to determine whether fairness
    requires admission of remaining parts [of a conversation] or related
    documents.” State v. Botelho, 
    165 N.H. 751
    , 760 (2013) (quotations omitted).
    Although the defendant argues that portions of the transcript should
    have been admitted into evidence under Rule 106, he does not specify whether
    he advances this argument under paragraph (a) or (b). We will analyze his
    argument under both paragraphs.
    By its express terms, paragraph (a) applies only if a party “introduces all
    or part of a writing or recorded statement.” N.H. R. Ev. 106(a). We note that
    this language is identical to the language in Federal Rule of Evidence 106. See
    Fed. R. Evid. 106. Here, on direct examination, the detective testified based on
    his memory of the interview, and the State did not refer to the interview
    transcript when it questioned him. We agree with federal courts applying
    Federal Rule of Evidence 106 that, under such circumstances, a party has not
    introduced a “writing or recorded statement” — i.e., the transcript — and
    therefore the opposing party does not have a right to introduce the transcript in
    5
    order to correct any misleading impression. See United States v. Garcia, 
    530 F.3d 348
    , 350-54 (5th Cir. 2008) (ruling that the defendant could not introduce
    the transcript of his interview with a government agent in response to the
    agent’s testimony, when the agent only “testif[ied] as to his memory of the
    conversation,” and the jury “did not hear or read quotations” from the
    transcript); see also United States v. Pendas-Martinez, 
    845 F.2d 938
    , 939, 943-
    45 (11th Cir. 1988) (ruling that, although defense counsel inadvertently read
    an isolated line from a report during cross-examination, the government did
    not have the right to introduce the entire report in response because defense
    counsel’s use of the report was not “so extensive as to be tantamount to
    introduction of the report into evidence”). Here, because the State neither used
    nor referred to the interview transcript when it questioned the detective, and it
    did not introduce the transcript into evidence, we conclude that the trial court
    sustainably exercised its discretion under paragraph (a). See N.H. R. Ev.
    106(a).
    To the extent that the defendant also argues that the interview was an
    unrecorded statement or conversation under paragraph (b) and that the trial
    court erred when it prevented him from introducing the remainder of that
    conversation, we disagree. By eliciting testimony regarding the detective’s
    conversation with the defendant, the State arguably introduced part of an
    “unrecorded statement or conversation.” N.H. R. Ev. 106(b). However, the trial
    court did not prevent the defendant from “introduc[ing] the remainder” of the
    conversation. 
    Id.
     Here, the trial court did not prevent the defendant from
    eliciting testimony regarding other portions of the interview through cross-
    examination. Rather, he was barred from introducing portions of the
    transcript. Nevertheless, consistent with Rule 106(b), the defendant had the
    opportunity to cross-examine the detective regarding the entire interview, and
    to use the transcript to refresh the detective’s memory and impeach specific
    answers, thereby correcting any misleading impression that may have arisen as
    a result of the detective’s testimony on direct. See N.H. R. Ev. 106 Reporter’s
    Notes (explaining that an adverse party may “present related parts of
    conversations by way of cross-examination”). As the State observes, the trial
    court did not prevent the defendant from providing further context to the
    interview; it merely prohibited him from introducing the transcript to do so.
    Because the defendant had the opportunity to cross-examine the detective and
    to use the interview transcript to correct any misleading impression, we
    conclude that the trial court sustainably exercised its discretion when it ruled
    that the defendant did not have the right to introduce parts of the transcript
    into the record. See N.H. R. Ev. 106(b).
    We now turn to the defendant’s second argument: that the trial court
    erred when it allowed the officer, who was testifying as a lay witness, to provide
    expert testimony. The defendant asserts that the court allowed the officer to
    provide improper expert testimony on three occasions: when the officer
    explained the role of a Child Advocacy Center in an investigation; described
    6
    how many child sexual abuse investigations she had led; and testified that
    witnesses sometimes need time to “process” traumatic events before being
    interviewed, and that based on her training “working with child advocacy
    centers and forensic interviewing, . . . we just constantly are saying, disclosure
    is a process.” Although the defendant argues that all of this testimony is
    expert testimony, he focuses his argument almost exclusively on the officer’s
    testimony as to the third topic. Accordingly, we will also focus our analysis on
    that testimony.
    The defendant argues that this testimony constitutes expert testimony
    because it is based on the officer’s specialized training and experience, and its
    purpose was “to explain why [the victim] may have taken time to disclose what
    had happened to her, as well as why there may be inconsistencies in the
    retelling of the allegations of sexual assault.” The State counters that the
    testimony is not expert testimony because the average juror is familiar with the
    concept of “processing” a startling or traumatic event, and the officer’s
    testimony did not, in fact, explain why the victim may have delayed reporting
    the assaults or made inconsistent statements. We agree with the State.
    Rule 701 of the New Hampshire Rules of Evidence provides:
    If a witness is not testifying as an expert, testimony in the form
    of an opinion is limited to one that is:
    (a) rationally based on the witness’s perception;
    (b) helpful to clearly understanding the witness’s testimony or to
    determining a fact in issue; and
    (c) not based on scientific, technical or other specialized
    knowledge within the scope of Rule 702.
    N.H. R. Ev. 701. Expert testimony involves “matters of scientific, mechanical,
    professional or other like nature, which requires special study, experience, or
    observation not within the common knowledge of the general public.” State v.
    DePaula, 
    170 N.H. 139
    , 153 (2017) (quotation omitted).
    First, we disagree with the defendant’s argument that, merely because
    the officer’s testimony is based on her training and experience, we should deem
    her testimony to be expert testimony. Testimony based upon a witness’s
    personal knowledge gained through employment is admissible as lay testimony,
    so long as the witness does not testify to scientific or technical processes which
    an average lay person would not be able to comprehend. See 
    id. at 154-55
    (concluding that custodians of cell phone records could provide lay testimony
    regarding the range of cell towers based upon personal knowledge gained
    through their employment). “[I]ndividuals can present limited lay testimony
    7
    regarding matters which, if discussed in detail, would require expert
    testimony.” 
    Id. at 154
    . For example, a police officer may testify as a lay
    witness regarding his or her administration of a field sobriety test measuring
    rapid eye movement, notwithstanding the fact that the average lay person has
    never administered such a test, and despite the fact that testimony explaining
    the underlying medical reasons for the eye movement would be expert
    testimony. See State v. Cochrane, 
    153 N.H. 420
    , 421-24 (2006). Similarly, an
    officer may testify as a lay witness regarding his or her use of a radar gun to
    measure a vehicle’s speed, even though testimony explaining the underlying
    mechanisms of a radar gun would be expert testimony because those
    mechanisms are “not common knowledge.” 
    Id. at 424
     (citing State v. Caswell,
    
    146 N.H. 243
    , 248 (2001)).
    These cases demonstrate that a witness’s testimony is not expert
    testimony simply because it is based upon personal knowledge that the witness
    would not have had absent his or her employment. See DePaula, 170 N.H. at
    154-55; Cochrane, 153 N.H. at 423-24. Personal observations made through a
    witness’s employment may well be observations that any lay person would “be
    capable of” making, at least with “some training.” Cochrane, 153 N.H. at 423.
    Even if the witness’s testimony incorporates some degree of professional
    knowledge, what is material is whether the testimony encompasses “highly
    technical or specialized . . . information,” id. at 424, or simply “elementary
    concepts” that an average juror would be able to understand, DePaula, 170
    N.H. at 155.1
    Here, the officer was asked to explain why, under certain circumstances,
    it is preferable to allow a witness to “process” an event before interviewing the
    witness. The officer gave a lengthy response which, taken as a whole, conveyed
    that traumatic events can be difficult to recall and discuss, and that it is
    sometimes easier for a witness to do so after the witness has had some time to
    reflect. The officer’s reference to her experience with disclosure by child
    victims was offered in passing as one example of this point. The officer also
    gave the example of losing a parent, which unquestionably is an experience
    within the common knowledge of the general public. We have little trouble
    1 We note that we observed in State v. Gonzalez, 
    150 N.H. 74
    , 77-80 (2003), that
    testimony by a social worker and a police officer during a sexual assault trial about their
    observations and conclusions made during their employment regarding the frequency of victim
    denials and delayed disclosures respectively was improper expert testimony from lay witnesses
    because their observations “required specialized training, experience and skill not within the
    ken of the ordinary person,” 
    id. at 79
     (quotation omitted); see also State v. Tierney, 
    150 N.H. 339
    , 345, 347-48 (2003) (relying on Gonzalez in concluding that the trial court erred in
    allowing certain expert testimony but reversing defendant’s sexual assault convictions on other
    grounds). However, as we explain below, Gonzalez does not control the outcome in this case
    because the testimony here was of a different nature, was offered for a distinct purpose, and
    was elicited in a different procedural context than that in Gonzalez.
    8
    concluding that the average juror is familiar with the notion that a person
    might be better able to remember and discuss certain traumatic events after
    some time has passed since the event occurred. On its face, the officer’s
    testimony is not “highly technical or specialized” and therefore is not expert
    testimony. Cochrane, 153 N.H. at 424. For similar reasons, we are not
    persuaded by the defendant’s argument that the officer’s testimony explaining
    the role of a Child Advocacy Center and describing how many child sexual
    abuse investigations she had led is expert testimony because it is based on her
    training and experience. Like the officer’s testimony about “processing”
    traumatic events, this testimony does not contain “highly technical or
    specialized . . . information,” id., but rather provides general background
    information that the average lay person is able to understand, see id. at 421-
    24; DePaula, 170 N.H. at 152-55.
    Nor are we persuaded by the defendant’s second argument that the
    officer’s testimony about “processing” was expert testimony because it was
    offered to explain why the victim may have delayed reporting the sexual
    assaults and offered inconsistent accounts of the assaults. The defendant
    relies on State v. Gonzalez, 150 N.H. at 78-79, in support of this argument.
    However, the defendant’s reliance on Gonzalez is misplaced.
    In Gonzalez, the defendant was charged with sexual assault. Id. at 75.
    At trial, as part of its case-in-chief, the State called a social worker and a
    detective as lay witnesses. Id. The State elicited testimony from both
    witnesses regarding their training and experience interviewing victims of sexual
    abuse. Id. at 75, 78. Based on that training and experience, the social worker
    testified that it is not unusual for victims to deny that they have been abused
    or to recant allegations, and the detective testified that victims do not typically
    report assaults at the time they occur. Id. The defendant objected to the
    testimony of both witnesses at trial, arguing that the testimony was improper
    expert testimony, but the trial court admitted the testimony. See id. at 75-76.
    The defendant made the same argument on appeal, and we agreed, concluding
    that the testimony of both witnesses was expert testimony but that the court’s
    error in admitting it was harmless. Id. at 77-80.
    We emphasized that the State had offered the testimony to explain the
    behavior of victims regarding disclosure, observing that this was expert
    testimony because it educated the jury as to how victims frequently delay
    reporting abuse, provide inconsistent accounts of abuse, and recant
    allegations. Id. at 78-79. We noted that, because delayed disclosure or
    inconsistent accounts by a victim may be puzzling or appear counterintuitive to
    lay observers, “expert testimony may be permitted to educate the jury about
    apparent inconsistent behavior by a victim following an assault and to ‘provide
    useful information that is beyond the common experience of an average juror.’”
    Id. at 78 (quoting State v. MacRae, 
    141 N.H. 106
    , 109 (1996)) (brackets
    9
    omitted). The purpose of the testimony was to explain the potentially
    counterintuitive behavior that sexual assault victims may sometimes display,
    so that the jury could better assess the victim’s credibility. See 
    id. at 75
    .
    Here, unlike in Gonzalez, the officer’s testimony was not offered by the
    State during direct examination to educate the jury about how victims
    generally address the issue of disclosure. Rather, the testimony was
    precipitated by defense counsel’s cross-examination of the officer: defense
    counsel attempted to discredit the police department’s investigation in this
    case by asking the officer several questions about standard investigation
    procedures, and then trying to establish that the department had not followed
    those procedures. As part of that strategy, defense counsel asked the officer,
    “And another basic proper procedure is to try to do interviews in close as time
    as possible to an event, right?” The officer disagreed, explaining that the
    timing of interviews varies by case, and that “sometimes it is beneficial,
    actually, to wait for a person to process that information before we speak with
    them.” On redirect, the State simply provided the officer an opportunity to
    further explain that answer, and she gave the response at issue. Thus,
    although the officer’s passing reference on redirect to disclosure being a
    “process” for victims arguably touches upon the issue of delayed disclosure, the
    statement was offered to explain the police department’s investigation
    procedures, rather than the behavior of victims. The officer’s brief allusion to
    disclosure being a “process” for victims is very different from the testimony in
    Gonzalez, in terms of the purpose for which it was offered, the context in which
    it was elicited, and the degree to which it addresses the issue of disclosure by
    victims. Cf. 
    id.
    In sum, we conclude that the trial court sustainably exercised its
    discretion when it ruled that the defendant was not entitled to enter portions of
    the interview transcript into the record and when it admitted the officer’s
    testimony as permissible lay testimony. All issues raised in the defendant’s
    notice of appeal, but not briefed, are deemed waived. See State v. Stanin, 
    170 N.H. 644
    , 652 (2018).
    Affirmed.
    HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
    10
    

Document Info

Docket Number: 2020-0025

Filed Date: 9/30/2021

Precedential Status: Precedential

Modified Date: 12/31/2021