The defendant, Kenneth Hopkins, was convicted, after a jury trial, of ten counts of aggravated felonious sexual assault and one count of felonious sexual assault. He argues that the Superior Court (Hollman, J.) erred by denying him the opportunity to return to the witness stand to present surrebuttal evidence. We affirm.
The defendant married his first wife, Jean, in August 1969. Their marriage was shaky and in late 1978 or early 1979 they decided to
Two subjects of dispute at trial are relevant to this appeal. The first was the manner in which the defendant’s daughter came to live with him. The State provided evidence that the defendant contrived the phony disappearance of his daughter from her mother’s home, causing neighbors and police to believe that she had run away or been abducted. The second dispute concerned the nature of the defendant’s relationship with his foster daughter. In the summer of 1983, when the defendant’s two children moved in with him, he was living with his foster child, Diane. The State presented testimony showing that the defendant and Diane were caught sharing a bed in the fall of 1983. The defendant married Diane in 1986.
At trial, during the defense case-in-chief, the defendant denied that he had arranged for his daughter to disappear from her mother’s house and denied that he had been sleeping with his foster daughter. After the defense rested, the court allowed the State to call a rebuttal -witness, the defendant’s mother, Marie Trainor. The State’s direct examination of Ms. Trainor was narrow, focusing on these two disputed issues. First, Ms. Trainor testified that she took part, apparently unwittingly, in the defendant’s scheme to have his daughter disappear from her mother’s house. Second, Ms. Trainor testified that in late 1983, while the defendant and Diane were visiting her, she caught the two sleeping together in her guest room.
In his cross-examination, the defendant attacked Ms. Trainor’s credibility by introducing specific instances of conduct that might tend to show she was biased against him. The testimony he elicited showed that the relationship between mother and son had been deteriorating for several years. Ms. Trainor testified about hostile remarks between herself and the defendant, their discussing stolen clothing over the dinner table, the defendant’s threats to kill her, the defendant’s failure to repay an auto loan, Ms. Trainor’s possible abuse of prescription drugs, and the defendant’s habit of taping phone conversations with his family. The defendant succeeded in showing bias but his victory was Pyrrhic; Ms. Trainor’s testimony
After Ms. Trainor testified, the defendant requested that the court allow him to return to the witness stand. He argued that Ms. Trainor’s remarks on cross-examination constituted new evidence that he was entitled to rebut. The trial court held that the testimony at issue did not constitute evidence raised by the State and that the defendant had broken “new ground” at his own risk.
The defendant appeals the denial of the opportunity for surrebuttal. The State argues that the defendant did not properly preserve this issue for appeal because the defendant’s offer of proof was too general. We disagree. As the State points out, trial court error cannot be based on the improper exclusion of evidence unless the party wishing to enter the evidence makes an offer of proof. State v. Saulnier,
The control of the order of interrogation of witnesses and the admissibility of evidence is committed to the sound discretion of the trial judge. See, e.g., Super. Ct. Rs. 67, 69, 70; N.H. R. Ev. 611(a), (b); State v. Torrence,
The trial court has discretion to allow inquiry during cross-examination into specific instances of conduct for the limited purpose of impeaching the witness’s credibility. N.H. R. Ev. 608(b); State v. Hurlburt,
The defendant confuses collateral issues with new issues. The type of new issues needed to allow rebuttal are those issues relevant to the case at trial and that the party could not reasonably have presented or opposed during its case-in-chief. See People v. White,
The defendant appears to argue that the introduction of prejudicial evidence can make otherwise inadmissible evidence admissible. The term “opening-the-door” is used to describe situations in which a misleading advantage gained by the opposing party may be countered with previously suppressed or otherwise inadmissible evidence. State v. Crosman,
Affirmed.
All concurred.
