State v. Bennett , 144 N.H. 13 ( 1999 )

BRODERICK, j.

After a jury trial in Superior Court (Abramson, J.), the defendant, Eric Bennett, was convicted of manslaughter, RSA 630:2, 1(b) (1996). On appeal, he argues that the trial court erred by excluding: (1) evidence of the circumstances surrounding his taped statement to the police; (2) excerpts from his taped statement to the police; (3) evidence of the victim’s prior conduct; and (4) testimony of his expert and certain cross-examination of the State’s expert. We affirm.

I

On August 3, 1996, the defendant went to a bar with some friends, including his former girlfriend, Jennifer Bohl. Around 11:15 p.m., the group proceeded to Bohl’s house, where the intoxicated defendant passed out or fell asleep. While he was unconscious, Bohl and some of the others attended a party in a nearby town, where they were joined by Doug Goodman. Upon returning to Bohl’s house, Goodman woke the defendant, whom he knew, and explained that they were taking him home. The defendant eventually got into the back seat of Bohl’s car. Bohl drove while Goodman sat in the front passenger seat.

At some point, the defendant grabbed Goodman around the neck with his left arm and held him against the seat. Bohl pulled the car over, and the defendant screamed for her to call the police. When a local police officer arrived approximately ten minutes later, she made three demands that the defendant release his hold on Goodman. He refused to do so until the officer drew her gun. Goodman died as a result of the defendant’s choke hold. An autopsy revealed that his hyoid bone had been fractured.

Following his arrest, the defendant waived his Miranda rights and gave a taped statement. He was charged with second degree murder, RSA 630:1-b, 1(b) (1996), and convicted by a jury of the lesser-included offense of manslaughter. This appeal followed.

II

We first address the defendant’s argument that the trial court erred by excluding evidence of the circumstances surrounding his taped statement to the police. Specifically, he argues that he should have been permitted to introduce testimony that he voluntarily waived his Miranda rights.

Prior to trial, the court granted the State’s motion to exclude the defendant’s statement as inadmissible hearsay. See N.H. R. EV. 802. The defendant makes no claim that the State attempted to introduce his taped statement at trial and the defendant did not testify. He sought, however, to establish through the cross-examination of an interrogating officer that he waived his Miranda rights and voluntarily gave the statement, arguing the evidence was “relevant to his state of mind of innocence.”

We conclude that the circumstances surrounding the defendant’s taped statement were not relevant. Cf. State v. Guyette, 139 N.H. 526, 529, 658 A.2d 1204, 1206 (1995). To be relevant, evidence must have a “tendency to make the existence of any fact that is of consequence to the determination of [an] action more probable or less probable than it would be without the evidence.” N.H. R. EV. 401. Absent evidence of the substance of the defendant’s statement, the circumstances surrounding it were not probative of the defendant’s innocence.

Even assuming that the defendant voluntarily made the statement, the trial court did not abuse its discretion in excluding such evidence because of its potential to mislead the jury. Cf. State v. Leroux, 133 N.H. 781, 784, 584 A.2d 778, 780 (1990). Evidence that the defendant waived his Miranda rights and voluntarily spoke to the police would allow him to project a cooperative and candid image, while avoiding the substance of his statement and the rigors of cross-examination concerning it. With only a part of the puzzle before it, the jury could not have reasonably determined whether the defendant was being cooperative and honest or merely protecting his self-interest when he spoke to the police. Accordingly, we conclude that the circumstances surrounding the defendant’s statement were not relevant to his asserted innocence, or if relevant, potentially misleading, and therefore properly excluded by the trial court.

We are not persuaded by the defendant’s reliance on Crane v. Kentucky, 476 U.S. 683 (1986), to establish his claim that excluding evidence of the circumstances of his statement violated his due process rights under the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986) (claim limited to Federal Constitution where State Constitution not specifically invoked on appeal). In Crane, the prosecution relied almost entirely on the defendant’s confession to secure a conviction, and the defendant sought to introduce evidence of the circumstances surrounding it to undermine its reliability. Crane, 476 U.S. at 685. Here, however, the defendant’s statement was never introduced so that evidence of the circumstances surrounding it were not necessary to explain its context. Therefore, the defendant’s federal due process claim is without merit. Cf. State v. Ellsworth, 142 N.H. 710, 718-19, 709 A.2d 768, 773-74 (1998) (due process rights may trump evidentiary rules but defendant must first make threshold showing of probity to justify admission of testimony).

Ill

The defendant next argues that the trial court erred by not permitting him to introduce portions of his taped statement. Specifically, he contends that two excerpts from his statement, “what did he die from” and “I remember going somewhere where I’m not supposed to be going in the middle of the night with somebody that’s not supposed to be there,” should have been admitted.

The State argues that the defendant did not preserve this issue for appellate review. We disagree. At a pretrial hearing on the State’s motion in limine to exclude the defendant’s taped statement in its entirety, the defendant argued that he “might want to introduce” the referenced excerpts. The trial court responded, “My inclination is they’re hearsay. But that’s just to let you know where I’m going. I will take it on a question by question basis at trial . . . .” Subsequently, however, the court issued a written order declaring the excerpts proposed for admission to be hearsay. The State contends that the defendant’s proffer and the court’s written ruling were not sufficient to preserve the issue for appellate review because the court invited the defendant to request reconsideration at trial and he failed to do so.

Under New Hampshire Rule of Evidence 103(b)(1), a contemporaneous and specific objection at trial is required to preserve an issue for appellate review. See State v. McMinn, 141 N.H. 636, 642, 690 A.2d 1017, 1021 (1997). The rule 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). A motion in limine affords an opportunity for the trial court to rule on the admissibility of evidence prior to trial and for counsel to devise trial strategy accordingly. 2 R. McNamara, New Hampshire Practice, Criminal practice AND PROCEDURE § 712, at 161 (1997). A definitive ruling by the trial court on a motion in limine sufficiently preserves for appellate review the particular issue presented to the trial court. See State v. McLaughlin, 135 N.H. 669, 672, 610 A.2d 809, 811 (1992) (defendant’s pretrial motion in limine to exclude evidence adequate to preserve issue for appellate review, and contemporaneous objection at trial not required). Here, the defendant’s proffer was sufficient to alert the trial court to his argument, and the court’s written order demonstrates that the court considered it and ruled on it. Cf. State v. King, 136 N.H. 674, 677, 621 A.2d 921, 922 (1993) (issue preserved where trial court understood and addressed substance of relatively vague objection).

Whether the statements were properly excluded as hearsay is an issue for the trial court, and its ruling will not be disturbed on appeal unless it was clearly erroneous. State v. Robidoux, 139 N.H. 657, 660, 662 A.2d 268, 271 (1995). “Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.” Simpkins v. Snow, 139 N.H. 735, 737, 661 A.2d 772, 774 (1995) (quotation omitted); see N.H. R. EV. 801(c). “Hearsay is inadmissible unless it falls within one of the exceptions provided in the rules of evidence.” Simpkins, 139 N.H. at 737, 661 A.2d at 774.

With respect to the first remark, “what did he die from,” the defendant argued at the pretrial hearing that it is

not hearsay because there’s nothing in that statement that is asserting the truth of any certain matter. In fact, our position on that would be it would back[ ]up our accident defense because [the defendant] wasn’t even aware that he had choked this man to death as is the State’s position. He did not realize that he was using the amount of force that would cause an individual to die. And his statement, his question, what did he die from, would corroborate our position on that point.

As a preliminary matter, the defendant points to no applicable legal authority for his conclusory assertion on appeal that a question cannot be hearsay. CF. N.H. R. EV. 801(a)(2), 802 (nonverbal conduct intended as an assertion may be excluded as hearsay). Based on the defendant’s proffer, we cannot say that the trial court’s exclusion of the statement as hearsay was clearly erroneous. In the context of this case, the defendant’s inquiry as to the cause of Goodman’s death is equivalent to an assertion that he did not know what caused it. The defendant sought to introduce his query to prove that he was, in fact, unaware of the manner of Goodman’s death. Therefore, the query was actually being offered for its truth and was properly excluded.

With respect to the second remark, “I remember going somewhere where I’m not supposed to be going in the middle of the night with somebody that’s not supposed to be there,” the defendant sought to introduce it to show a fearful state of mind. Based on his proffer, we cannot say that the trial court erred in concluding that it, too, was hearsay. It is apparent that the statement was being offered to prove that the defendant did not know what was going on while he was riding in Bohl’s car in order to establish that he was fearful.

The defendant argues that the trial court erred by failing to consider whether an exception to the hearsay rule applied. Presumably, the defendant is referring to the “state of mind” exception to the hearsay rule, see N.H. R. EV. 803(3). We conclude, however, that the statement does not fall within this exception. Rule 803(3) provides that hearsay may be admitted if it is “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed . . . The defendant’s remark, made several hours after his arrest, was a “statement of memory or belief” as to what he recalled or thought at the time he was in Bohl’s car. “Narratives of past facts or expressions of one’s understanding of what has happened do not show present intention and are incompetent hearsay.” Simpkins, 139 N.H. at 738, 661 A.2d at 775 (quotation and brackets omitted); see American Employers Ins. Co. v. Wentworth, 90 N.H. 112, 116-17, 5 A.2d 265, 268 (1939) (declarations as to past mental state of declarant are hearsay); 6 J. WIGMORE, WlGMORE ON EVIDENCE § 1714, at 90 (Chadbourn rev. 1976). Therefore, the trial court did not err by excluding it.

IV

We turn next to the defendant’s argument that he should have been allowed to present evidence of the victim’s behavior and activities on the day he died, prior to his contact with the defendant or Bohl. The defendant contends that he should have been permitted to present testimony that Goodman was aggressive earlier that day to justify his fear of the victim. The defendant also argues that he should have been permitted to present testimony that Goodman was “unmistakably intoxicated” to impeach Bohl’s testimony that Goodman did not appear drunk and that she was “very shocked” to learn later that he was highly intoxicated.

Before trial, the State sought to exclude evidence of Goodman’s prior conduct. The trial court ruled that the defendant’s proffered testimony constituted inadmissible prior bad acts and was not relevant to the defendant’s state of mind because there was no evidence that he was even aware of Goodman’s earlier behavior. The defendant does not argue that he had any contact with Goodman earlier that day, or that he was even aware of Goodman’s prior conduct. Moreover, the defendant did not claim that his actions were justified by self-defense; rather, he asserted that Goodman’s death was accidental. Accordingly, the trial court did not abuse its discretion in excluding evidence of Goodman’s prior aggressive conduct.

The defendant’s contention that Goodman’s earlier behavior was relevant to impeach Bohl’s testimony that the victim was not highly intoxicated is equally without merit. We agree with the State that there was ample other evidence to demonstrate Bohl’s knowledge of Goodman’s intoxication, and therefore testimony of Goodman’s earlier behavior, even if improperly excluded, would have been merely cumulative. The defendant introduced evidence that Goodman’s blood alcohol level was .30 at the time of his death and impeached Bohl’s testimony on cross-examination by establishing that Goodman demonstrated slurred speech and a staggered gait in her presence.

The defendant also argues that he should have been permitted to cross-examine Bohl about Goodman’s prior conduct to demonstrate her motive to lie. We agree with the State, however, that the defendant failed to demonstrate how the excluded evidence would have served that purpose. ✓

The defendant additionally argues that Goodman’s conduct was relevant to explain how he developed a blood alcohol level of .30. Our review of the record, however, reveals that the only argument preserved concerned Goodman’s actual blood alcohol level, rather than the circumstances by which he achieved it.

V

The defendant’s final argument is that the trial court should not have excluded the testimony of his expert nor prohibited cross-examination of the State’s expert on the use and perceived danger of choke-hold restraints.

Before trial, the State sought to exclude the proposed evidence, contending that it was irrelevant and not a proper subject of expert testimony. At a hearing on the State’s motion, the defense expert testified that police officers employed two basic choke-hold methods, the “arm bar hold” and the “lateral vascular neck restraint,” and that accidental deaths have resulted from both types. He also testified that the “arm bar hold” was no longer used by some police departments because it presented a risk of death and that the lateral vascular hold method should be used only in accordance with strict standards. He opined that the average citizen would not likely be aware of the dangers associated with these restraints. The trial court granted the State’s motion to exclude any testimony from the defense expert, reasoning that it would not assist the jury in deciding the issue of intent, that the expert’s theory of lack of public awareness was based on questionable data, and that several of his opinions were a matter of common sense. At trial, the court also precluded the defendant from cross-examining the State’s expert on choke-hold restraints because such cross-examination would have related to the issue of intent.

The defendant asserts that the trial court’s rulings were erroneous because the proffered evidence was probative of his mental state and necessary to educate the jury about the dangers of choke holds and the public’s limited awareness of those dangers. He also contends that the evidence was admissible to rebut the inference that the degree of force used by him evidenced an intent to kill the victim.

A trial court may permit expert testimony by a qualified witness if the witness’s “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” State v. Cavaliere, 140 N.H. 108, 109, 663 A.2d 96, 98 (1995). We conclude that the trial court’s decision to exclude this evidence was not an abuse of its discretion. State v. Girmay, 139 N.H. 292, 295, 652 A.2d 150, 152 (1994).

Testimony regarding law enforcement’s views on the propriety of various choke-hold restraints had no bearing on the defendant’s mental state. The defendant points to no evidence that he had any training as a police officer or any experience in using choke holds. Moreover, the defendant points to no evidence suggesting that he was aware of how police departments viewed the use of choke holds, how police officers were trained in the use of such holds, or that such information was available to the public. Therefore, the trial court did not abuse its discretion in concluding that law enforcement views on choke holds had no relevance to the defendant’s mental state. See N.H. R. EV. 401.

Moreover, the evidence was unnecessary to rebut an inference that the amount of force used by the defendant evidenced an intent to kill. The defendant was not charged with acting intentionally, nor does the defendant point to any evidence in the record reflecting an attempt by the State to create that inference. Rather, because the defendant was charged with acting recklessly, the State argued that given the amount of force necessary to break Goodman’s hyoid bone, the defendant must have known there was a substantial risk that his conduct would result in Goodman’s death. See RSA 626:2(c) (1996) (“A person acts recklessly . . . when he is aware of and consciously disregards a substantial and unjustifiable risk . . . .”). The trial court did not abuse its discretion in allowing the State to present evidence of the degree of force used by the defendant to prove that he acted recklessly. Cf. State v. Seymour, 140 N.H. 736, 744, 673 A.2d 786, 793, cert. denied, 117 S. Ct. 146 (1996) (evidence of degree of force relevant to prove defendant acted with requisite mental state).

The defendant also argues that his expert should have been allowed to educate the jury about the dangers of choke holds and the public’s limited awareness of those dangers. Even assuming such testimony were relevant, it is not admissible unless the trial court finds that the expert is qualified to offer it and that it will aid the jury. See State v. Caplin, 134 N.H. 302, 306, 592 A.2d 188, 191 (1991).

Although the court found that the defendant’s expert had impressive credentials, it ruled that his proffered testimony was based on questionable data. We agree. The record reflects that the expert’s conclusions were based on observations of children at play, televised wrestling matches, and movie scenes, and that he did not rely on any surveys or authoritative sources reflecting “citizen awareness” of choke holds.

We find the defendant’s remaining arguments to be either so vague or so insubstantial as to be without merit, warranting no further discussion, see Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).

Affirmed.

THAYER, J., with whom HORTON, J., joined, concurred specially; the others concurred.