State v. BotelhoState v. Botelho
The defendant, Jessica Botelho, appeals her convictions of manslaughter, see RSA 630:2, 1(b) (2007); negligent homicide, see RSA 630:3,1 (2007); and reckless conduct, see RSA 631:3, I (2007), following a jury trial in Superior Court (Garfunkel, J.). She argues that the trial court erred: (1) by admitting into evidence the name and description of a particular website that she visited while leaving her children unattended in her bathtub; and (2) by excluding certain portions of a recorded police interview. We affirm.
The jury could have found the following facts. On July 13, 2010, the defendant lived in a second-story apartment with her two sons, W.B., who was twelve months old, and T.P., who was two years old. At approximately 4:00 p.m., the defendant ran a bath for the two boys. At some point, she left the children alone in the bathtub with the water “stopped” and approximately two to three inches of water in the bathtub. She then left the apartment and went to an outdoor porch, where she used her laptop computer to connect to the internet. She later told police that T.P. knew how to turn on the bathtub faucet on his own.
The defendant gave conflicting accounts to police and other witnesses about the nature and length of her computer use, but admitted that she “posted [a] blog” on a
After some time, T.P. approached the defendant to tell her that W.B. was “sleeping swimming.” The defendant rushed to the bathroom, where she discovered W.B. in the bathtub with the faucet running. The defendant gave conflicting accounts to police about whether W.B. was lying on the bottom of the bathtub or floating. She turned off the faucet, retrieved W.B. from the bathtub, and attempted CPR. Unable to find her telephone, she ran downstairs with W.B. — leaving behind T.P., who had returned to the bathroom — and asked her downstairs neighbors for help. One of the neighbors called 911 at around 5:00 p.m. while the defendant and another neighbor resumed CPR attempts. A neighbor and his friend drove the defendant and W.B. to the emergency room, where they arrived at approximately 5:12 p.m. Meanwhile, two neighbors retrieved T.P. from the bathtub, which was half-full but draining, and found that the bathroom floor was covered with water. A detective later determined that it took approximately eighteen minutes to fill the bathtub with the faucet at full volume, and approximately six minutes to drain it.
W.B.’s treating physician found that he had sustained irreversible neurological injury and brain damage as a result of oxygen deprivation. The doctor explained that this type of injury typically occurs “starting around seven minutes of low oxygen delivery” following the initial stages of drowning. After a consultation between the doctor, the defendant, and W.B.’s father, W.B. was removed from life support on July 20, resulting in his death. A medical examiner determined that he had died from complications related to a “near drowning.”
Prior to trial, the defendant filed a motion in limine “to exclude all evidence pertaining to the specific web addresses [she] visited during the days leading up to [the] incident,” including myfreeimplants.com. In so doing, she offered to stipulate that no one else had used her computer on July 13. Following two hearings, the trial court determined that “the probative value of such evidence [was] not substantially outweighed by the danger of unfair prejudice” and denied the motion. The court advised that it would ask a question during voir dire to determine whether potential jurors “[held] personal views about breast augmentation that would prevent [them] from being impartial.” At trial, the court ordered the redaction of specific references to the defendant’s correspondence with men on myfreeimplants.com and noted that counsel had agreed to redact two other descriptions of the website that could be construed as sexual in nature.
The court also approved, after two hearings, a motion in limine filed by the State to exclude portions of a videotaped police interview of the defendant that the State had offered against her. The parties had agreed to exclude certain portions of the
At trial, the State mentioned myfreeimplants.com by name twice in its opening statement and six times in its closing argument. Additionally, the State elicited more than forty direct references to the website during its direct examination of a computer forensic expert, who testified about the defendant’s web browsing history before and at the time of W.B.’s near drowning. An exhibit detailing this history was comprised largely of web addresses associated with myfreeimplants.com. Finally, there were several references to the website in the redacted video of the defendant’s police interview.
A jury found the defendant guilty of manslaughter, negligent homicide, and reckless conduct. On the manslaughter charge, the court sentenced the defendant to the New Hampshire State Prison for five to ten years, stand committed. On the reckless conduct charge, the court sentenced the defendant to a concurrent term of one to three years. The court held sentencing in abeyance on the negligent homicide charge, an alternative theory to manslaughter for W.B.’s death, pending appeal. This appeal followed.
I. Admission of Website Information
The defendant argues on appeal that the trial court erred by admitting evidence relating to myfreeimplants.com. She argues that the website’s identifying information should have been excluded because: (1) it was not relevant; and (2) if it was relevant, any “probative value [was] substantially outweighed by the danger of unfair prejudice.” N.H. R. Ev. 403.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.H. R. Ev. 401; State v. Jenot,
Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Unfair prejudice is not, of course, mere detriment to the objecting party’s case, in which sense all evidence offered is meant to be prejudicial. Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision on some improper basis, commonly one that is emotionally charged.
Jenot,
The defendant first argues that evidence relating to myfreeimplants.com was not relevant. She argues that the website’s identifying information was not relevant to establishing her interest in the site because the “distinguishing characteristic” of her admissions regarding her use of the site “was how frequently [she] visited the
Even if the website information was relevant, the defendant argues, any probative value was substantially outweighed by the danger of unfair prejudice. She argues that the State’s repeated references to myfreeimplants.com created a risk that jurors would form negative “moral conclusions” about her that had “no bearing on a fair assessment of whether she acted recklessly or negligently.” In particular, she argues that jurors were “invited” to conclude that she solicited money “to advance a selfish interest” in breast augmentation surgery that presumably was “non-essential [and] sexually-oriented.” References to the website, she argues, “did not just place jurors in a position to judge [her] degree of inattention; [they] invited jurors to conclude that [she] was narcissistic and to judge her, in part, on that basis.”
Under the unique circumstances of this case, we need not determine whether admission of the website information was error under New Hampshire Rules of Evidence 401 and 403, because even if it was erroneous, the error was harmless. See State v. Enderson,
The evaluation of whether this standard has been achieved involves consideration of the alternative evidence presented at trial and of the character of the inadmissible evidence itself. An error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant’s guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State’s evidence of guilt.
State v. Vandebogart,
The defendant was convicted of manslaughter, see RSA 630:2, 1(b); negligent homicide, see RSA 630:3,1; and reckless conduct, see RSA 631:3, I. To convict the defendant of the applicable variant of manslaughter, the State had to prove beyond a reasonable doubt that she recklessly caused the death of another. RSA 630:2, 1(b). Proof of the applicable variant of negligent homicide required the State to show that she negligently caused the death of another, RSA 630:3, I, though demonstrating that she recklessly caused such death was sufficient, see RSA 626:2, III (2007). Finally, proof of reckless conduct required the State to show that she recklessly engaged in conduct that placed or may have placed another in danger of serious bodily injury. RSA 631:3, I. A person acts “recklessly” when “[she] is aware of and consciously disregards a substantial and unjustifiable risk,” and the risk is “of such a nature and degree that, considering the circumstances known to [her], its disregard constitutes a gross deviation from the conduct that a law-abiding person
Here, the alternative evidence of the defendant’s guilt was overwhelming. See Enderson,
The defendant’s conflicting, and self-serving, statements about the amount of time she spent on the computer do not diminish the overwhelming nature of the evidence that she left her children unattended for an extended period of time. In addition to the computer forensic evidence, the water level in the bathtub before and after W.B.’s near drowning was strong circumstantial evidence that W.B. and T.P. spent an extended period of time there alone. The defendant stated that the water was “stopped” when she left the bathroom, and that, upon her return, she turned off the faucet when she found the water running. Two neighbors testified that, by the time they retrieved T.P. from the bathtub several minutes later, the bathtub was draining but was still half-full, and the floor was wet. The evidence suggests that the bathtub overflowed with water either before or shortly after the defendant retrieved W.B. Even if T.P. had turned on the faucet immediately after the defendant left her children alone in the bathtub, and even if T.P. again turned on the faucet immediately after the defendant went downstairs with W.B. to get help, the defendant would have had to leave her children unattended for a significant period of time in order for the bathtub to fill up, overflow, and begin to drain.
The evidence showed that the defendant was “aware of and consciously disregarded]” the risk to her children. RSA 626:2, II(c); see Belonga,
Finally, the evidence showed that the defendant’s reckless conduct “cause[d]” WB.’s death, RSA 630:2,1(b), :3,1, and placed T.P. “in danger of serious bodily injury,” RSA 631:3, I. The medical examiner testified that W.B. died from complications resulting from near drowning, and W.B.’s treating physician testified that W.B.’s injuries evidenced near drowning. The evidence also showed that the defendant placed T.P. “in danger of serious bodily injury,” RSA 631:3,1, when she left him in the bathtub with W.B. Moreover,
We also conclude that references to myfreeimplants.com throughout the trial were inconsequential in relation to the strength of the evidence of guilt. See Enderson,
Furthermore, evidence relating to myfreeimplants.com was limited to web addresses and short descriptions, and the trial court excluded potentially salacious content such as references to men with whom the defendant corresponded regarding breast implants. Although the State referred to the website by name six times in its closing argument, creating a risk of unfair prejudice, its name and description were not directly linked to establishing the defendant’s guilt. Compare State v. Thibedau,
Given the strength of the State’s alternative evidence, the relatively inconsequential nature of the disputed evidence, and the manner in which the State used the disputed evidence, we are persuaded, beyond a reasonable doubt, that evidence relating to myfreeimplants.com did not affect the verdict. See Thibedau,
II. Exclusion of Police Interview
The defendant next argues that the trial court erred by excluding certain portions of her police interview. Specifically, she argues that she should have been able to introduce, under the doctrine of completeness, two sections of the interview that the State removed when it offered a redacted form of the interview as an admission by a party-opponent. See N.H. R. Ev. 801(d)(2)(A). We accord the trial court considerable discretion in its decision to admit or exclude evidence and thus will not disturb its decision absent an unsustainable
The doctrine of completeness is a common law rule recognized by this court under which
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.
Warren,
The common law rule is partially codified by New Hampshire Rule of Evidence 106, which expressly applies to writings and recorded statements. See id. at 636-37; see also Beech Aircraft Corp. v. Rainey,
Here, the police interview was a “recorded statement,” and thus the defendant’s effort to introduce “any other part” of the statement falls under Rule 106. The redacted interview offered by the State constituted an admission by a party-opponent under New Hampshire Rule of Evidence 801(d)(2)(A). Under Rule 801(d)(2)(A), “a party’s own statements are not hearsay when offered against that party regardless of whether or not those statements give rise to a reasonable inference of guilt.” Belonga,
By contrast, the excluded portions of the interview that the defendant sought to introduce were not admissible as non-hearsay because these statements were offered by the defendant rather than against her. See United States v. Marin,
A. First Disputed Section
The defendant argues that the first disputed section of the interview
The trial court did not err in excluding this section. It noted that, over the course of the nearly two-hour interview, the defendant made multiple “emotional” responses, including “periods of crying and near hysterics.” Moreover, on several occasions she used the phrase, “my poor boy,” apparently mourning W.B., which phrase was also contained in the disputed section. In fact, she used this same phrase several seconds earlier in the admitted portion of the interview, immediately following her expression of doubts over the timeframe. Admission of an additional, identical utterance in order to show the defendant’s “emotional response” at this juncture of the interview neither “explain[s] [nor] shed[s] light on the meaning of the part already received.” Warren,
In addition, the defendant’s statements about her qualities as a mother do not serve to prevent a “misleading impression” regarding the amount of time she admitted to spending on the computer. Keith,
Finally, admission of the first disputed section is not compelled, as the defendant argues, merely because it “eonflict[s]” with other portions of the interview. Over the course of the interview, the defendant gave multiple explanations regarding her time spent on the computer, ranging from assertions that she spent only a short amount of time, to expressions of confusion and disbelief, to an acknowledgment that she made a “mistake” and may have spent more time on the computer than she initially thought. These responses are already in conflict. Admitting the first disputed section, which offers no direct response to the question of how long the defendant spent on the computer, would not have “prevent[ed] [a] misleading impression . . . from taking root.” Keith,
B. Second Disputed Section
The defendant also argues that a second disputed section, which contains both an insistence that she “didn’t do this” and an “emphatic narrative regarding her concern for T.P.,” her surviving child, should have been admitted under the doctrine of completeness. The defendant argues that this section, comprising under two pages of the interview transcript, reflects her “exasperation with the detective
The trial court did not err in excluding this section. Again, the defendant misconstrues statements about her concern for her children — here, her surviving son — as bulwarks against “misleading impression[s]” throughout the redacted interview. Keith,
Next, the defendant argues that excluding both disputed sections “prevented” what would have been “a counterbalance” to the prejudice caused by admitting evidence relating to myfreeimplants.com. She argues that the concern she displayed for her children in both sections would have counteracted the impression, created by her use of the website while leaving her children unattended, that she was a “shallow, unconcerned parent.” In addition, she argues that by excluding these sections, the court created “gaps in the conversation” during which “the jury would expect a response from an innocent person.”
The exclusion of both sections did not prejudice the defendant because she expressed concern for her children at several other points throughout the admitted portion of the interview. In addition, we disagree with the defendant’s characterization of the disputed sections as places at which “the jury would expect a response from an innocent person.” The disputed sections do not follow direct questions about the defendant’s guilt, and thus the redaction of her responses did not create a misimpression of guilt.
Thus, we conclude that the court’s exclusion of the two disputed sections of the police interview was neither clearly untenable nor unreasonable to the prejudice of the defendant’s case. See Warren,
Affirmed.