THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. William DeGroot, the court on September 21, 2018, issued the following order: The defendant, William DeGroot, appeals his convictions for aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2012). He argues that the Trial Court (Delker, J.) erred in: (1) failing to disqualify his trial counsel and to declare a mistrial after his counsel moved a Bible in the victim s bedroom during the view taken by the jury; (2) allowing a sexual assault nurse examiner (expert) to testify about the victim s statements to her; and (3) limiting the admission of evidence of the victim s alleged dishonesty. We affirm. We briefly summarize the record before us. The defendant was charged with sexually assaulting the victim on several occasions in the victim s family home. On the day after the victim disclosed the assaults to her parents, they took her to the hospital where she was examined by the expert. On the first day of trial, the jury took a view of the victim s home. The prosecutor later discovered that a school picture of the victim s sister that was on the kitchen counter had been turned face down and a Bible in the victim s room had been moved. In a colloquy with the trial judge, defense counsel, who is not defendant s appellate counsel, admitted that he had moved the Bible and turned the photograph over. When the trial court asked the prosecutor what relief he sought, the prosecutor expressed indecision, explaining that defense counsel s actions could be considered falsifying. The court took a recess after which the prosecutor advised the court that he did not intend to elicit testimony about the Bible. Defense counsel reported to the court that, after conferring with another lawyer, he did not believe that the circumstances required a mistrial. Defense counsel also reported that he had discussed the matter with the defendant who told him that he did not want a mistrial and he wanted defense counsel to continue as his lawyer. The court then ruled: [W]hatever the consequences of [defense counsel s] conduct may be, is something that I will deal with at a later point in time, but I don t think that it will affect [defense counsel s] ability to continue to represent the Defendant in this case. And so I m not going to declare a mistrial and we will continue the trial. The defendant was subsequently convicted on seven counts of aggravated felonious sexual assault. On appeal, the defendant first argues that the trial court was obliged to disqualify the offending attorney and declare a mistrial. The defendant contends that, because his trial counsel faced possible discipline for tampering with the evidence, he had a conflict with the defendant and the conflict was unwaivable.

2 When a trial court becomes aware of a potential or actual conflict of interest relating to defense counsel s representation of a criminal defendant, it must conduct an inquiry on the record to investigate the extent of any conflict. State v. Gonzalez, 143 N.H. 693, 706 (1999). The inquiry is prophylactic; it is not constitutionally mandated. Id. To obtain relief, the defendant must establish that an actual conflict adversely affected his lawyer s performance, although he need not demonstrate prejudice. Id. To establish a conflict, the defendant must demonstrate some plausible alternative defense or strategy that might have been pursued and that the alternative defense was inherently in conflict with the attorney s other loyalties or interests. Cf. State v. Mountjoy, 142 N.H. 648, 652 (1998). Although the defendant s appellate counsel cites federal cases to support his contention that the trial court was required to disqualify defense counsel and to declare a mistrial, those case are distinguishable. This is not a case where the defendant s trial counsel had previously represented a potential prosecution witness, see United States v. Alfonzo-Reyes, 592 F.3d. 280 (1st Cir. 2010). Nor was the outcome of the defendant s criminal trial in this case relevant to any discipline that the trial court would consider. See Mathis v. Hood, 937 F.2d 790, (2d Cir. 1991) (defense counsel s unexplained two-and-one-half-year delay in filing appeal brief created conflict of interest because reversal of defendant s conviction could have exposed counsel to liability since [defendant] would have spent years in prison on an erroneous conviction. ). Indeed, despite the impermissible conduct of defense counsel at the view, we are unable to discern how counsel s conduct adversely affected his performance at trial. Nor has the defendant identified any adverse effect. Accordingly, he has failed to meet his burden. See Gonzalez, 143 N.H at 706. The defendant next argues that the trial court erred in allowing the sexual assault nurse examiner (SANE) expert to testify about the victim s statements and to explain that not all sexual assaults produce visible physical injury. We review challenges to a trial court s evidentiary rulings under our unsustainable exercise of discretion standard and reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party s case. State v. Breest, 169 N.H. 640, 651 (2017). In determining whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. Id. Prior to trial, the defendant filed a motion in limine seeking to limit the expert s testimony. That motion is not contained in the record before us. We do, however, have a transcript of the hearing and briefly summarize the argument presented to the trial court. Although the defendant agreed that the witness was qualified to testify as an expert SANE nurse, he sought to exclude the following testimony: (1) based upon her interview with and examination of the victim she had no reason to believe that the child was not abused ; (2) the results of her examination were consistent with the child being sexually abused ; and (3) none of the 60 to 70 children between the ages of 6 and 10 that she had examined 2

3 after they disclosed sexual assault by digital penetration exhibited any signs of physical trauma. The trial court ruled that the expert would not be allowed to offer an opinion that the fact that the victim had no physical signs of sexual abuse is consistent with a child being sexually abused. The court further ruled that she would be allowed to testify, as the defense has conceded, that, based upon her experience, absence of physical signs of abuse would not be unexpected in a case of alleged digital penetration. At trial, the expert testified about her experience and her examination of the victim. Defense counsel advised the court that he was not moving to exclude all of her testimony, I m only moving to exclude any statements from the [victim] or certainly for their substance. After the State adduced additional testimony, the trial court found that the expert had met with the victim for the purpose of medical diagnosis and treatment. See N.H. R. Ev. 803(4). The court also instructed the jury as follows: So, ladies and gentlemen, a moment ago this witness testified about certain statements that [the victim] made to her about what she told about the events. That testimony is not admissible. It s stricken from the record. So statements about who she told, that portion of it, should not be considered by you in your deliberations in this case. The defendant argues on appeal that the expert s testimony: (1) unfairly bolstered the testimony of other witnesses; (2) lacked reliability; (3) was substantially more prejudicial than probative; and (4) tended to vouch for the credibility of the victim. The defendant does not identify specific testimony but rather argues that the State failed to demonstrate that her testimony would be helpful to the jury. The jury was charged with determining whether the defendant sexually assaulted the victim. Accordingly, testimony that absence of physical signs of abuse would not be unexpected in a case of digital penetration was relevant. See N.H. R. Ev After reviewing the expert s limited testimony and the limiting instruction given by the trial court, we are not persuaded by the defendant s claims of error. We conclude that the trial court s discretionary rulings are sustainable. See Breest, 169 N.H. at 651. Citing both New Hampshire Rule of Evidence 608 and his state and federal constitutional rights to confrontation, the defendant next argues that the trial court erred in limiting the admission of extrinsic evidence of the victim s dishonesty. Prior to trial, he filed a motion in limine seeking to cross-examine the victim and to introduce extrinsic evidence about two incidents to prove [her] previous incidents of falsehood. The first incident allegedly took place when the victim was playing in her backyard and asked the boyfriend of the defendant s daughter to be pushed on the swings. When the boyfriend told her that she would have to wait for her turn, she allegedly falsely accused him of hitting her. The second incident took place at a family gathering where the victim s aunt 3

4 observed the victim and her cousin near the aunt s open tote bag. The aunt perceived that the children may be about to do something, approached them, and spoke to both children. According to the aunt, the victim immediately placed the blame for the incident on her cousin. The trial court ruled that the defendant could cross-examine the victim about the backyard incident but that he could not introduce extrinsic evidence about it. The court rejected the defendant s request to cross-examine the victim and to introduce extrinsic evidence about the tote bag incident, describing it as an incident where the children were seen sort of hovering over a bag at some family gathering and concluding that it was not probative of truthfulness. A trial court has broad discretion to determine the scope of crossexamination and the admissibility of evidence. State v. Aldrich, 169 N.H. 345, 348 (2016). We review the court s decision on these issues to determine whether its exercise of discretion is sustainable. State v. Letarte, 169 N.H. 455, 461 (2016). To prevail under this standard, the defendant must demonstrate that the trial court s decision was clearly untenable or unreasonable to the prejudice of his case. Id. When we apply our unsustainable exercise of discretion standard of review, we determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. Id. At the time of the defendant s trial in October 2014, Rule 608 provided: (a) Opinion and reputation of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness credibility, other than conviction of crime as provided in Rule 609, may not be provided by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or any other witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility. 4

5 When asked at trial by defense counsel whether the defendant s daughter sometimes came to the house with a boyfriend, the victim responded, I don t remember. She also testified that she did not remember an incident where she was hit while she was on the swings. As we have previously observed, Rule 608(b) permits a cross-examiner to inquire into conduct that is probative of the witness character for truthfulness or untruthfulness. State v. Miller, 155 N.H. 246, 249 (2007). Generally, the examiner must take the answer as the witness gives it. Id. The defendant argues that although the trial court has broad discretion to fix the limits of cross-examination, it may not completely deny a defendant the right to cross-examine a witness on a proper matter of inquiry. Here, the court permitted the defendant to cross-examine the victim regarding the swing incident. With respect to the tote bag incident, the defendant has not persuaded us that the trial court erred in concluding that it was not probative of truthfulness. As the State notes, the proffered testimony was simply that the victim and her cousin were near the tote bag when the victim s aunt perceived that the children may be about to do something inappropriate, not that the children had in fact done anything inappropriate. Moreover, as the trial court noted, to the extent that the victim placed blame for the incident on her cousin, there is no evidence to suggest that the cousin was not the person who instigated it. We find no error in the trial court s rulings regarding cross-examination. As for the exclusion of extrinsic evidence of the swing incident, the trial court recognized that while such evidence is not admissible under Rule 608(b), in some cases a defendant s rights to due process or confrontation under the State or Federal Constitutions may require inquiry into allegations of prior false accusations. The court ruled, however, that in this case the defendant had not established that the alleged false accusation was demonstrably false. See State v. Abram, 153 N.H. 619, (2006). Moreover, the court ruled that, even if it had been so established, the swing incident was not so similar to the accusations against the defendant as to require that he be allowed to present extrinsic evidence to prove it. The trial court s ruling is consistent with our analysis in Abram, and the defendant has failed to persuade us that the court unsustainably exercised its discretion. Affirmed. HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred. Eileen Fox, Clerk 5