132 N.H. 674 | N.H. | 1990
Memorandum Opinion
The defendant was convicted, after a jury trial, of being a felon in possession of a firearm, in violation of RSA 159:3 (Supp. 1988). He appeals the Superior Court’s {Nadeau, J.) ruling granting the State’s pre-trial motion to exclude his anticipated cross-examination of one of the State’s witnesses, Irene Blanchard. The defendant pro se also contends that the court in three instances abused its discretion in refusing to allow him to introduce various forms of evidence. We cannot say that the court abused its discretion in the latter three instances, but because we find that the court misapplied the applicable rule of evidence in regard to the defendant’s anticipated cross-examination of Blanchard, we reverse the conviction.
In preparation for trial, the court considered a number of evidentiary matters with counsel. At that time, the State moved to prevent the defendant from impeaching Blanchard by inquiring into an event unrelated to this charge, in which Blanchard, a year before trial, allegedly misappropriated $600 of her employer’s money that was intended for her use on a business trip. The court granted the motion, on the ground that the incident was not probative of Blanchard’s truthfulness. The court stated that it was exercising its discretion under New Hampshire Rule of Evidence 608(b) and that an inquiry into Blanchard’s use of the money would lead to a trial within a trial, waste time and confuse the jury, and that the testimony would be unduly prejudicial to the State. The defendant asserts that the court abused its discretion in refusing to allow the defendant to cross-examine a key prosecution witness about a prior incident allegedly showing untruthfulness.
New Hampshire Rule of Evidence 608(b), upon which the court relied, allows specific instances of conduct to be inquired into on cross-examination, in the discretion of the court, if they are probative of truthfulness or untruthfulness, but forbids the use of extrinsic evidence to prove such instances of conduct. N.H. R. Ev. 608(b). “It is New Hampshire practice to allow inquiry into collateral issues by cross-examination for impeachment purposes; however, the cross-examiner must take the answer and may not call other witnesses to rebut it.” State v. Brooks, 126 N.H. 618, 623, 495 A.2d 1258, 1262 (1985).
The trial court disallowed inquiry of Blanchard concerning the alleged misappropriation, not only because the court did not perceive the incident to be probative of truthfulness, but also because the court feared the inquiry would lead to a trial pertaining to the use of the $600. This concern was ungrounded given the explicit prohibition on the use of extrinsic evidence under Rule 608(b). Because the rule allows inquiry into conduct probative of
Finally, the defendant pro se contends that the court erred in three other instances. He argues, first, that the court erred in excluding an affidavit offered by the defendant to impeach Blanchard’s testimony and to exculpate him in regard to possession of the gun, on the ground that the affidavit was not probative of trustworthiness. See N.H. R. Ev. 804(b)(3) (statement exposing declarant to criminal liability and offered to exculpate accused is not admissible unless corroborating circumstances indicate statement’s trustworthiness). Next, he asserts error in excluding opinion testimony offered under New Hampshire Rule of Evidence 608(a), allowing opinion testimony concerning a witness’ character for truthfulness or untruthfulness, again to impeach Blanchard’s testimony, on the basis that the offered opinion was not probative of Blanchard’s truthfulness. The defendant, lastly, contends that the court erred in refusing to allow him to compel the attendance of a key witness at trial, upon the ground that if the witness testified he would violate his fifth amendment right against self-incrimination. In light of the trial record, showing that, with the exception of the court’s improper exclusion of inquiry into Blanchard’s alleged misappropriation, the defendant had an opportunity to fully and fairly present his defense, we cannot say the court erred in exercising its discretion as it did in these three instances.
Reversed.
All concurred.