Justia.com Opinion Summary: Defendant John Stowe appealed his convictions of making a false report to law enforcement and of unsworn falsification, arguing that the Superior Court erred when it: (1) limited his cross-examination of a crucial State witness; (2) denied his request for a curative instruction on the State's misstatements of law made during closing argument; and (3) denied his motion to dismiss the unsworn falsification complaint. In 2005, John Deere
Company was authorized to repossess a tractor that Defendant had financed through it. John Deere was unsuccessful because the tractor was not at the expected location. Defendant claimed that he did not know what happened to the tractor. During a subsequent court hearing, the trial court ordered Defendant to file a police report indicating that the tractor had been stolen. Upon review, the Supreme Court found the evidence presented against Defendant at trial was sufficient to support his convictions.
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2010-383
THE STATE OF NEW HAMPSHIRE
v.
JOHN STOWE
Submitted: June 16, 2011
Opinion Issued: September 22, 2011
Michael A. Delaney, attorney general (Thomas E. Bocian, assistant
attorney general, on the brief), for the State.
Dorothy E. Graham, assistant appellate defender, of Concord, on the
brief, for the defendant.
LYNN, J. The defendant, John Stowe, appeals his convictions of false
report to law enforcement, RSA 641:4, and of unsworn falsification, RSA 641:3,
arguing that the Superior Court (McHugh, J.) erred when it: (1) limited his
cross-examination of a crucial State witness; (2) denied his request for a
curative instruction on the State’s misstatements of law made during closing
argument; and (3) denied his motion to dismiss the unsworn falsification
complaint. We affirm the false report conviction and reverse the unsworn
falsification conviction.
We recite the facts drawn from the record. In 2005, John Deere
Company was authorized to repossess a tractor that the defendant had
financed through it. John Deere was unsuccessful in doing so, however,
because the tractor was not at the expected location. The defendant claimed
that he did not know what happened to the tractor. During a subsequent court
hearing, the trial court ordered the defendant to file a police report indicating
that the tractor had been stolen.
In February 2006, the defendant told a Derry police officer that he had
left the tractor on his lawn in the spring or summer of 2005 for John Deere to
take possession of it, went on a business trip, and discovered it was gone when
he returned home. He told the officer that he had assumed that John Deere
repossessed it. The defendant completed a written statement, and the officer
explained that a false report would result in “consequences.” The form itself
contained the following notification: “I understand that false written
statements made herein are punishable pursuant to RSA 641:3, unsworn
falsification.”
During the time frame relevant to this case, the defendant worked for
Frederick Nixon, who owned a demolition company. The defendant and Nixon
had developed a close friendship, and socialized frequently. On September 6,
2006, Brian Dunn, also an employee of Nixon, contacted the police regarding
suspicions he had about a tractor he had transported to one of Nixon’s work
sites. Dunn informed the police of the tractor’s location and provided a
photograph of it. The police obtained a search warrant but discovered that the
tractor was no longer there. They left a copy of the warrant at the work site.
About a week later, the tractor was located in some woods behind a towing
yard in Derry. The police matched the tractor’s VIN numbers with that of the
tractor that the defendant had reported as stolen.
In January 2007, the investigating officer briefly spoke with Nixon, then
interviewed him in March of that year. Subsequently, the defendant was
charged with one count of giving a false report to law enforcement and one
count of unsworn falsification. At trial, he unsuccessfully moved to dismiss the
unsworn falsification charge. The jury found him guilty on both counts. This
appeal followed.
I
The defendant first argues that the trial court erred in limiting his crossexamination of Nixon, thereby violating his rights to confrontation under Part I,
Article 15 of the State Constitution and the Sixth and Fourteenth Amendments
of the Federal Constitution. He sought to cross-examine Nixon about events
that purportedly demonstrated Nixon’s bias and hostility towards him, and
2
about an alleged prior false statement Nixon had made to the police. We
conclude that the defendant has failed to establish error.
We first consider the defendant’s constitutional arguments under the
State Constitution, referring to federal decisions only for guidance. See State v.
Ball, 124 N.H. 226, 231-33 (1983). “The opportunity to impeach a witness’s
credibility through cross-examination is an incident of rights guaranteed by
part I, article 15 of the State Constitution.” State v. Brum, 155 N.H. 408, 416
(2007) (quotation omitted); see State v. Etienne, 146 N.H. 115, 117 (2001) (right
to cross-examine adverse witnesses in criminal cases is fundamental). Crossexamination provides the defendant a right to meet the witnesses against him
face to face, and be fully heard in his defense. N.H. CONST. pt. I, art. 15;
Etienne, 146 N.H. at 118. This includes the right to expose the possible biases
of witnesses. Etienne, 146 N.H. at 118.
The trial court has “broad discretion to fix the limits of proper areas of
cross-examination, including attacks upon a witness’s credibility.” Brum, 155
N.H. at 416. The trial court, however, “may not completely deny a defendant
the right to cross-examine a witness upon a proper matter of inquiry and must
permit sufficient cross-examination to satisfy a constitutional threshold.” Id.
“Once a defendant has been permitted a threshold level of inquiry the
constitutional standard is satisfied, and the [trial court’s] limitation of crossexamination thereafter is measured against an unsustainable exercise of
discretion standard.” Id. (quotation and ellipsis omitted). “Thus, when the
record reveals that a threshold level of inquiry was allowed, we will uphold the
trial court’s decision limiting the scope of further cross-examination unless the
defendant demonstrates that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” Id. (quotation omitted).
There is no doubt that Nixon was a key State witness. He testified that
the defendant had allowed him to use the tractor for several projects during
2005 and 2006. He also testified that the defendant had asked him to keep it
parked on the side of his house to prevent detection, explaining that he did not
want his ex-wife to learn about the tractor. According to Nixon, some time in
2006, the defendant asked him to change the tractor’s location so his ex-wife
could not discover it. Nixon complied, moving it to a friend’s home. At some
point, the tractor was repaired at Nixon’s workplace and then moved to a work
site in North Conway where the defendant was managing a job.
Nixon testified that after the police attempted to seize the tractor in
September 2006, he was “horrified” that police officers had been searching one
of his company’s job sites. He contacted the defendant, who told him that the
court had required him to report it as stolen. Nixon explained that the
defendant discouraged him from calling the police by telling him that he might
be charged with grand larceny. Nixon did not contact the police, but moved the
3
tractor to yet another location and then told the defendant, “I’m all done with
this.” The defendant had some friends again move the tractor, and the police
later seized it. In March 2007, Nixon informed the police of the defendant’s
involvement with the tractor.
Testifying on his own behalf, the defendant maintained that he had
parked the tractor on his lawn in the spring or summer of 2005 and had not
seen it since. He assumed that John Deere had retrieved it while he was away
from his home, and also posited that Nixon or two of his other friends may
have taken it because all three had asked to borrow it. He denied Nixon’s
account of the defendant’s involvement with the tractor throughout 2005-2006.
To establish Nixon’s bias against him and motive to lie to the police, the
defendant sought to cross-examine him about events that occurred around the
time Nixon gave his statement to the police, including a physical confrontation
between them, criminal threatening complaints the defendant had filed against
Nixon, and the fact that the defendant had testified at Nixon’s divorce and
custody proceeding where Nixon’s income and finances were at issue. To
further challenge Nixon’s credibility, the defendant sought to elicit testimony
that Nixon had lied to a police officer during the investigation of a criminal
threatening complaint against him. The State objected, arguing that the
defendant had an adequate opportunity to cross-examine Nixon on his
credibility by questioning him at length about inconsistent statements he had
made in prior court proceedings. It also contended that the “bad blood”
between the two men was not in dispute, and testimony on specific events
underlying their hostilities would be irrelevant, be a waste of time, cause
confusion of the issues, and constitute “a trial within a trial.” The State also
argued that if the defendant elicited testimony on the specific instances of
conduct, he would open the door to testimony that he had embezzled from
Nixon, which was part of the basis of the hostilities.
The trial court denied the defendant’s request, determining that it would
not allow a “trial within a trial,” and that the defendant had “adequate
confrontation” regarding Nixon’s bias and motive, as well as the State’s
presentation of his character as not “an angel.” It ruled that the character of
both the defendant and Nixon, including “their disdain and dislike for one
another,” was not disputed by the State and was “crystal clear in the jury’s
mind,” and that the details formulating their disdain were “totally irrelevant,
[would] run the risk of undue prejudice” and would distract the jury from the
criminal charges before it.
We first consider whether the defendant was permitted a threshold level
of inquiry regarding Nixon’s bias against him and motive for casting him “as a
thief and a liar.” See Brum, 155 N.H. at 416. Clearly, Nixon’s bias and motive
as grounds for impeachment were relevant to the defense, but the State
4
correctly argues that these issues were not in dispute. On direct examination,
the State elicited testimony from Nixon that around the time he talked to the
police about the defendant’s involvement with the tractor, he had a “falling out”
with the defendant. Defense counsel reiterated the point on crossexamination, eliciting testimony that when Nixon first learned the police were
looking for the tractor in September 2006, he did not inform them of the
defendant’s involvement with the tractor for three months, but, after the
relationship between the two men “[broke] down,” he contacted the police.
Nixon agreed on cross-examination that there was “no love lost between [the
two men] at [the] point” when he contacted the police. On re-direct, the State
asked several questions establishing that Nixon and the defendant had been
close friends, and on re-cross, Nixon agreed that at the time he first contacted
the police in January 2007, he and the defendant “despised each other” and
“weren’t speaking.”
On this record, we conclude that the defendant was permitted an ample
threshold level of inquiry on Nixon’s bias and motive. The record supports the
trial court’s finding that the hostility between the men was obvious to the jury;
indeed, the trial court remarked that the demeanor of the witnesses regarding
their disdain for one another was apparent during their testimony. That the
trial court restricted the defendant from inquiring about the specific underlying
events giving rise to the hostilities does not equate to precluding him from
engaging in a threshold inquiry on the matters of bias and motive. We
conclude that the trial court’s decision did not “impermissibly limit the
defendant’s ability to effectively impeach the principal witness against him at
trial in violation of Part I, Article 15 of the New Hampshire Constitution.” State
v. Miller, 155 N.H. 246, 254 (2007) (quotation omitted). The defendant makes
the identical arguments under the Federal Confrontation Clause, without
engaging in a separate federal analysis. But see id. at 255-56. Thus, we reach
the same result under the Federal Constitution. We note that the defendant
does not argue that the trial court’s decision was clearly untenable or
unreasonable to the prejudice of his case, and, thus, we do not review the trial
court’s ruling on that basis.
With respect to the alleged false statement Nixon made to an
investigating police officer, the defendant argues that it is a specific instance of
dishonesty that was admissible under New Hampshire Rule of Evidence 608(b),
and that the trial court’s ruling was an unsustainable exercise of discretion
which denied him the opportunity to make a threshold level of inquiry to
discredit Nixon, contrary to Part I, Article 15 of the New Hampshire
Constitution and the Sixth and Fourteenth Amendments to the Federal
Constitution. Assuming, without deciding, that his argument was preserved
for appellate review, we conclude that the defendant has failed to demonstrate
error.
5
Rule 608(b) permits a cross-examiner to inquire into conduct that is
probative of the witness’s character for truthfulness or untruthfulness. Miller,
155 N.H. at 249. Generally, however, the examiner must take the answer as
the witness gives it. Id. Rule 608(b) prohibits the examiner from introducing
“extrinsic evidence, such as calling other witnesses, to rebut the witness’s
statements.” State v. Hopkins, 136 N.H. 272, 276 (1992). “The objective is to
avoid a trial within a trial; that is, to avoid the litigation of issues that are
collateral to the case at hand.” Miller, 155 N.H. at 249.
When exercising its discretion under Rule 608(b), the trial court must
also consider Rule 403. Brum, 155 N.H. at 412. “The overriding protection of
Rule 403 requires that probative value not be outweighed by danger of unfair
prejudice, confusion of issues, or misleading the jury.” Id. (citing reporter’s
notes to Rule 608(b)) (quotation omitted). 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. Miller, 155 N.H. at 249. 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.
The defendant points to the following evidence he sought to use to crossexamine Nixon:
During a prior hearing in district court, [the investigating
police officer] testified that in the course of investigating Stowe’s
criminal threatening complaint against Nixon, Nixon denied
making the threatening calls to the defendant . . . . Nixon testified
at a prior hearing . . . that he did in fact tell [the officer] that he
made phone calls to [the defendant], but that he did not make a
criminal threat.
Essentially, the defendant wanted to question Nixon about the investigating
officer’s testimony at the prior court proceeding that Nixon denied making any
phone calls to the defendant, and about Nixon’s prior statement that he
admitted to making non-threatening phone calls. However, the trial court
could have found that the purported discrepancy between Nixon’s initial
statement to the police and his later testimony at the court proceedings was
ambiguous, thereby making the probative value marginal. Moreover, the
record demonstrates that the defendant was permitted to cross-examine Nixon
on numerous alleged inconsistencies between his testimony at trial and
statements he made under oath at a prior court proceeding and to the police.
We conclude that the defendant has failed to establish that the trial court’s
decision precluding him from questioning Nixon regarding his statements to
the investigating officer was clearly untenable or unreasonable to the prejudice
of his case. See State v. Kornbrekke, 156 N.H. 821, 824-25 (2008); see also
6
Brum, 155 N.H. at 413. We similarly reject the defendant’s argument that the
trial court violated his State constitutional rights by denying him the
opportunity to make a threshold level of inquiry on a proper matter of inquiry;
that is, Nixon’s untruthfulness. See Brum, 155 N.H. at 416; Miller, 155 N.H. at
254. The defendant makes the identical arguments under the Federal
Confrontation Clause, without engaging in a separate federal analysis. But see
Miller, 155 N.H. at 255-56. Thus, we reach the same result under the Federal
Constitution.
II
The defendant next argues that the trial court violated his rights to due
process and a fair trial under Part I, Article 15 of the State Constitution and
the Fifth and Fourteenth Amendments to the Federal Constitution by failing to
give a curative instruction when the State misstated the law to the jury. He
contends that during its closing argument, the State misstated the law in two
material respects: (1) it “told the jury that it could use the fact that [the
defendant] was charged with an offense involving dishonesty as a basis to
assess his credibility”; and (2) it “conveyed that [the jury] could find [the
defendant] guilty if it found [his] testimony not credible[,] . . . relieving the
prosecution of its burden to prove each element of the offense beyond a
reasonable doubt.” We first consider the defendant’s constitutional arguments
under the State Constitution, referring to federal decisions only for guidance.
See Ball, 124 N.H. at 231-33.
The defendant points to the following excerpts of the State’s closing:
Isn’t what this case really comes down to, the defendant’s
credibility? After all, isn’t he the one charged with lying here, lying
to the police, making a false written statement, making a false oral
statement to the police? Walking into Officer Jackson that day and
flat out lying. That’s what it’s about.
....
We talked about credibility. Defense counsel, again, it’s all
about Nixon and Leavitt. Well, wasn’t it really all about the
defendant? Isn’t that what we’re here to decide? After all, he’s
charged with lying. And might it be pertinent, his credibility,
whether or not you thought he was telling the truth up there on
that stand? Whether or not he is to be believed?
(Emphases added.) He particularly relies upon the emphasized language to
argue that the State “erroneously plac[ed] evidentiary value on [the defendant’s]
arrest and charge.”
7
To support his argument that the State impermissibly shifted the burden
of proof to him, he points to the following statements in the State’s closing:
The defendant wants you to believe . . . that his best friend,
good friend Jay Nixon steals out of his front yard, steals this
tractor, this piece of equipment he thinks is worth ten, fifteen
grand, and manages thereafter to hide it from him for a year and a
half. That’s his story. To find him not guilty, you have to believe
that story.
(Emphasis added.) Again, he particularly relies upon the emphasized
language. In objecting to the State’s closing, the defendant requested that the
trial court re-instruct the jury that (1) the charging instruments were not
evidence of guilt, and (2) the burden of proof rested with the State. The trial
court rejected the defendant’s characterization of the State’s closing argument,
and denied his request for re-instruction, ruling that the jury instructions
previously given adequately covered the legal issues that the defendant
identified.
“A prosecutor has great latitude in closing argument to both summarize
and discuss the evidence presented to the jury and to urge the jury to draw
inferences of guilt from the evidence.” State v. DiNapoli, 149 N.H. 514, 520
(2003) (quotation and ellipsis omitted). However, certain improper comments
made by a prosecutor during closing statements may implicate a criminal
defendant’s due process rights. See State v. Parker, 142 N.H. 319, 322 (1997);
cf. State v. Watkins, 148 N.H. 760, 769 (2002) (curative instruction appropriate
where prosecutor “blatantly misstated the law”). Assuming, without deciding,
that the defendant raised a constitutional argument before the trial court, see
DiNapoli, 149 N.H. at 520, we conclude that the defendant has failed to
establish that the trial court erred in refusing his request to re-instruct the
jury.
We agree with the trial court that the State’s closing remarks did not
communicate to the jury that the charging instruments had evidentiary value.
Rather, the purpose of the challenged remarks, when taken in context, was to
counter defense counsel’s attempt to deflect the jury’s focus from the
defendant’s credibility, and urge the jury to refocus on that issue. The State
pointed out only that the defendant was the person who stood charged with
making false statements to the police, and emphasized that the jury’s “job . . .
[was] to determine [whether the defendant] was lying that day [that he reported
his tractor as stolen].” It did not tell the jury that it could use the fact that the
defendant was charged with crimes as evidence of guilt.
Further, the State did not impermissibly shift the burden of proof to the
defendant. Viewed in context, the State was remarking on the credibility
8
contest between Nixon and the defendant, two key witnesses who had testified
to diametrically opposed accounts of the defendant’s involvement with the
tractor in 2005 and 2006. We reject the defendant’s characterization of the
State’s remarks as somehow communicating to the jury that if it disbelieved
the defendant, it could find him guilty without regard to whether the State
established guilt beyond a reasonable doubt based on the evidence presented.
Throughout the State’s closing, it argued the defendant’s guilt based upon the
evidence it presented that the defendant knew where the tractor was when he
reported it to the police as stolen.
Moreover, we note that before closing arguments, the trial court
instructed the jury that: (1) when reaching a verdict, it was required to follow
and apply the law given to it by the court; (2) the mere fact that a defendant
has been charged with a crime or crimes was not evidence of guilt and could
not influence the jury’s decision in reaching a verdict; (3) if counsel made
statements about the law that differed from the judge’s instructions, the jury
was “duty bound” to follow the judge’s instructions; (4) all defendants in
criminal cases are presumed innocent, and the State had the burden of proving
each element of the charged crime beyond a reasonable doubt; and (5) the jury
had to decide the credibility of the witnesses. We conclude that the State did
not misstate the law in its closing and that the defendant failed to establish
that the trial court erred when it refused to re-instruct the jury on the law
covered during the general instructions. The defendant makes the identical
arguments under the Federal Confrontation Clause, without engaging in a
separate federal analysis; thus, we reach the same result under the Federal
Constitution.
III
Finally, the defendant argues that the trial court erred in denying his
motion to dismiss the unsworn falsification charge because the facts alleged in
the complaint, and the evidence presented against him, cannot sustain a
conviction under RSA 641:3, I, as a matter of law. The defendant contends
that the form he completed (which provided notice that false written statements
are punishable under RSA 641:3 for unsworn falsification) was not generated
by an entity “authorized by law” to produce forms with such notification. See
RSA 641:3, I. According to the defendant, because no statutory provision or
administrative rule “specifically authorizes municipal police to create forms
that make false written statements of suspects or witnesses punishable under
unsworn falsification,” the evidence proffered by the State did not give rise to
an offense under RSA 641:3, I. The State agrees with the defendant and
requests that we reverse the defendant’s conviction on the unsworn
falsification charge. We agree with the parties’ interpretation of the statute.
9
Our standard for statutory construction is well-established. To
determine the meaning of a statute, we first examine its language and ascribe
the plain and ordinary meaning to the words used. State v. Lamy, 158 N.H.
511, 515 (2009); see RSA 21:2 (2000). We interpret legislative intent from the
statute as written and will neither consider what the legislature might have
said nor add language that the legislature did not see fit to include. Lamy, 158
N.H. at 515. We also interpret a statute in the context of the overall statutory
scheme and not in isolation. Id. Our goal is to apply statutes in light of the
legislature’s intent in enacting them and the policy sought to be advanced by
the entire statutory scheme. State v. Jennings, 159 N.H. 1, 3 (2009). RSA
641:3, I, is a provision within the Criminal Code; we therefore construe it
according to the “fair import of its terms and to promote justice.” RSA 625:3
(2007). We are the final arbiters of the legislative intent as expressed in the
words of the statute considered as a whole. Jennings, 159 N.H. at 3 (quotation
omitted).
RSA 641:3, I, provides: “A person is guilty of a misdemeanor if . . . [h]e
or she makes a written or electronic false statement which he or she does not
believe to be true, on or pursuant to a form bearing a notification authorized by
law to the effect that false statements made therein are punishable . . . .”
(Emphasis added.) The phrase “notification authorized by law” plainly
indicates that notification on a form, warning that false statements are
punishable as unsworn falsification, must be “authorized by law.” In other
words, if such a form’s notification is not “authorized by law,” the State has no
power under RSA 641:3, I, to subject a person to criminal prosecution for
making a false statement on or pursuant to the form.
Several statutory provisions authorize prosecution for unsworn
falsification of persons who make false statements on or pursuant to a form
bearing such notification. For example, RSA 260:42, II (Supp. 2010) expressly
provides, “A transporter[ ] [of motor fuel or products] license may be obtained
by filing an application with the commissioner, on such form as the
commissioner may prescribe. Falsification of the application shall be subject to
prosecution for unsworn falsification.” (Emphasis added.) Similarly, RSA 417A:3-b (2006) requires applicants seeking automobile insurance coverage to
“sign a statement of residency . . . form prescribed by the insurance
department,” RSA 417-A:3-b, III, and provides, “A person who falsely attests to
the statement of residency . . . shall be subject to prosecution for unsworn
falsification under RSA 641:3, and, upon conviction, to imposition of the
maximum fine without suspension or diminution, along with other penalties
authorized by law,” RSA 417-A:3-b, I.
The State concedes that it is unaware of any provision of law authorizing
municipal police to create forms which state that making false written
statements on the form is punishable as unsworn falsification under RSA
10
641:3, I. Therefore, while it is a crime to deceive and to provide false
information to a police officer, see RSA 641:3, II (2007); RSA 641:4 (2007), the
defendant’s unsworn falsification conviction under RSA 641:3, I, must be
reversed.
Affirmed in part; and reversed
in part.
DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.
11
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