State v. Kerwin , 144 N.H. 357 ( 1999 )

HORTON, J.,

dissenting: It is reasonable to assume that the trial court was acting within its discretion when it denied the State’s pretrial motion to admit the evidence regarding the prior sexual assault. The State’s offer was made in a vacuum before the evidence at trial was developed and the substantial delay in reporting was established. I agree with the majority that it was obvious from the context and content of the challenged statement at trial that the defendant was the person being named as the earlier rapist. The majority does not analyze the need for the evidence but holds that the prejudice is so extreme that it was unjust to allow the case to continue to verdict. It rejects our longstanding deference to the trial court, a court uniquely in the position to determine the prejudicial effect of the evidence.

I think that this mistrial ruling was within the broad discretion of the trial court. State v. Sammataro, 135 N.H. 579, 582, 607 A.2d 135, 136 (1992). Although the evidence was a surprise and not subject to pre-admission scrutiny at the point when it was given, I would hold that it would have been admissible for the limited purpose of explaining the delay in reporting. It would have been relevant under New Hampshire Rule of Evidence 401 and, if properly limited, would have been more probative than prejudicial under New Hampshire Rule of Evidence 403. We have been sensitive to the proof problem involving delay in reporting sexual crimes, such delay being counter-intuitive and crying for explanation. See State v. Cressey, 137 N.H. 402, 411-12, 628 A.2d 696, 702-03 (1993). Thus, the evidence would be highly probative. Taken without the limiting instruction, the evidence is also highly prejudicial and is strongly infected with overtones of propensity. But all such evidence is tainted with propensity and can only be admitted for a non-propensity purpose. N.H. R. Ev. 404(b). The trial court acknowledged this problem and gave a well-structured limiting instruction, limiting the evidence’s use to explanation of the victim’s action and clearly eliminating propensity as a consideration. When a jury is properly instructed, we presume that those instructions are followed, State v. Collins, 138 N.H. 217, 220, 637 A.2d 153, 155 (1994), and an analysis of prejudice incorporates the same doctrine, State v. Bouchard, 138 N.H. 581, 585-86, 643 A.2d 963, 966 (1994).

I would hold that the trial court was within its discretion in denying the motion for mistrial during testimony and similarly within its discretion in denying a mistrial or curative instruction during argument. Therefore, I respectfully dissent and would affirm the trial court.