State v. Edic

169 N.H. 580

154 A.3d 147

The STATE of New Hampshire

v.William EDIC

No. 2015–0329

Supreme Court of New Hampshire.

Argued: September 14, 2016

Opinion Issued: January 31, 2017

Joseph A. Foster, attorney general (Peter Hinckley, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, William Edic, appeals his conviction, following a jury trial in Superior Court (McNamara, J.), on one count of second degree murder and one count of falsifying physical evidence. See RSA 630:1–b, I(b) (2016); RSA 641:6, I (2016). On appeal, the defendant challenges various evidentiary rulings made at trial. We affirm.

The record supports the following facts. The charges against the defendant stem from events occurring on July 26, 2010, at the New Hampshire State Prison where the defendant and the victim were then incarcerated. The second degree murder indictment alleged that the defendant, acting in concert with and aided by another inmate, Thomas Milton, "recklessly cause[d] the death of [the victim] under circumstances manifesting an extreme indifference to the value of human life by striking [the victim] repeatedly in the head and face areas." The falsifying physical evidence indictment alleged that the defendant, acting in concert with and aided by Milton and/or others, "believing that an official law enforcement investigation into the ... attack on [the victim] was about to be instituted, destroyed, concealed, and/or removed items, to wit, blood evidence and cleaning materials, including towels and similar cloths, with a purpose to impair their availability in such investigation." After a trial, the jury found the defendant guilty on both counts.

On appeal, the defendant argues that the trial court erred in prohibiting him from: (1) introducing three audio recordings of telephone calls made by other inmates at the New Hampshire State Prison; (2) questioning another inmate about that inmate's prison disciplinary history; and (3) calling certain correctional officers to testify at trial. The defendant asserts that the trial court erroneously relied upon New Hampshire Rule of Evidence 608(b) in excluding the three audio recordings, and that the exclusion of the recordings violated his state and federal constitutional rights to due process, confrontation, and to present all proofs favorable. See N.H. CONST. Pt. I, Art. 15 ; U.S. CONST. Amends. V, VI, XIV. As to the other inmate's prison disciplinary history, the defendant challenges the trial court's rulings that the inmate's disciplinary history was beyond the scope of redirect examination, and that the inmate did not open the door to his disciplinary record. With respect to the correctional officers' testimony, the defendant contends that the trial court misapplied Rule 608(b) in excluding the officers' testimony, and, alternatively, that the State opened the door to it.

As an initial matter, the State asserts that a number of the defendant's arguments are not preserved. Specifically, the State argues that: (1) the defendant's Rule 608(b) argument is not preserved as it relates to the first two audio recordings; (2) the defendant's constitutional arguments relating to the recordings are not preserved; and (3) the defendant's Rule 608(b) argument is not preserved as it relates to the correctional officers' testimony.

"The general rule in this jurisdiction is that a contemporaneous and specific objection is required to preserve an issue for appellate review." State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014 (2003) (quotation omitted). "This rule, which is based on common sense and judicial economy, recognizes that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court." Id. (quotation omitted).

Based upon our review of the record, we conclude that the defendant failed to preserve the following arguments: (1) his argument that the trial court erroneously applied Rule 608(b) to preclude him from introducing the second recording; (2) his constitutional arguments relating to the first and second recordings; and (3) his due process argument relating to the third recording. Because the record demonstrates that the defendant did not raise these arguments in the trial court, they are not preserved for our review. We, accordingly, decline to consider these arguments in the first instance on appeal. See id.; see also State v. Alexander, 143 N.H. 216, 220, 723 A.2d 22 (1998) (determining that defendant's constitutional argument not preserved for appellate review where defendant did not specifically assert constitutional challenge before trial court).

We conclude that the defendant's remaining arguments are preserved, and consider the following issues in turn: (1) the defendant's evidentiary arguments relating to the third audio recording; (2) the defendant's argument that exclusion of the third recording violated his state and federal constitutional rights to confrontation and to present all proofs favorable; and (3) collectively, the defendant's evidentiary arguments relating to the exclusion of the first recording, the limitation of cross-examination of an inmate about his prison disciplinary history, and the exclusion of the correctional officers' testimony.

I. Exclusion of Third Recording—Evidentiary Argument

The third audio recording is of a conversation between State witness William Morel, an inmate at the New Hampshire State Prison whose testimony implicated the defendant in the July 26, 2010 incident, and an investigator. The defendant sought to admit this recording at trial to demonstrate that Morel received a benefit—specifically, a reduction in his inmate classification—in exchange for providing testimony against the defendant. The State objected, and the trial court sustained the State's objection.

"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. Stowe, 162 N.H. 464, 470, 34 A.3d 678 (2011). "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.

On appeal, the defendant argues that the trial court erred in excluding this audio recording under Rule 608(b). Rule 608(b) provides, in relevant part:

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 proved 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 ... concerning the witness' character for truthfulness or untruthfulness ....

This rule "permits a cross-examiner to inquire into conduct that is probative of the witness's character for truthfulness or untruthfulness."

Stowe, 162 N.H. at 470, 34 A.3d 678. "Generally, however, the examiner must take the answer as the witness gives it." Id. This is because the rule "prohibits the examiner from introducing extrinsic evidence, such as calling other witnesses, to rebut the witness's statements." Id. (quotation omitted).

The defendant contends that Rule 608(b) applies only to a general attack on a witness's character for truthfulness or untruthfulness. He claims that the third recording evidences Morel's motive to provide testimony rather than his general character for truthfulness or untruthfulness, and that, therefore, Rule 608(b) did not bar introduction of the recording at trial. In response, the State contends that the trial court's ruling precluding the defendant from introducing the recording was proper.

The State also suggests that, in addition to relying upon Rule 608(b), the trial court ruled that the third audio recording was inadmissible hearsay. See N.H. R. Ev. 801(c) (" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); N.H. R. Ev. 802 ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority."). Based upon our review of the record, we agree that the trial court made such a ruling. The defendant does not challenge this basis for the trial court's ruling on appeal. Because the trial court's hearsay ruling provided a secondary basis for the exclusion of the third recording from trial—one which the defendant did not appeal—we uphold the court's decision to exclude the recording without addressing the merits of the defendant's argument under Rule 608(b). Cf. Koor Communication v. City of Lebanon, 148 N.H. 618, 624, 813 A.2d 418 (2002) (upholding trial court's grant of summary judgment without addressing merits of plaintiff's argument where trial court articulated second basis for ruling and plaintiff did not properly challenge secondary basis on appeal).

II. Exclusion of Third Recording—Constitutional Arguments

The defendant next argues that the trial court's exclusion of the third recording violated his state and federal constitutional rights to confrontation, and to present all proofs favorable. See N.H. CONST. Pt. I, Art. 15 ; U.S. CONST. Amends. V, VI, XIV. We first address the defendant's claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). Part I, Article 15 of the State Constitution provides, in pertinent part: "Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel." N.H. CONST. Pt. I, Art. 15.

The defendant argues that the trial...