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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2020-0025
THE STATE OF NEW HAMPSHIRE
v.
MARK BOULTON
Argued: April 14, 2021
Opinion Issued: September 30, 2021
Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, senior
assistant attorney general, on the brief and orally), for the State.
Rudolph Friedmann, LLP, of Boston, Massachusetts (William A. Korman
on the brief and orally), for the defendant.
BASSETT, J. The defendant, Mark Boulton, appeals convictions,
following a jury trial, on four counts of aggravated felonious sexual assault, see
RSA 632-A:2, IV (2016), and one count of misdemeanor sexual assault, see
RSA 632-A:4, I(b) (Supp. 2020). He argues that the Superior Court (Ignatius,
J.) erred by: (1) denying his request to enter portions of the transcript of his
interview with police into the record; and (2) allowing a witness for the State to
offer expert testimony while testifying as a lay witness. We affirm.
The following facts are undisputed or supported by the record. In 2016,
a 15-year-old child reported that she had been sexually assaulted by the
defendant. The Moultonborough Police Department investigated the
allegations. A detective in the department interviewed the defendant, and the
department prepared a transcript of the interview.
At trial, the State called the detective as a witness. On direct
examination, the detective testified regarding his interview with the defendant,
but the State did not offer the transcript of the interview into evidence, nor did
it use the transcript to refresh the detective’s memory. The defendant objected
to the detective’s testimony, arguing that he was mischaracterizing the
interview. The trial court overruled the objection, observing that the defendant
was free to cross-examine the detective if he believed that the detective was
mischaracterizing the interview.
On cross-examination, the defendant sought to have the detective read
portions of the interview transcript into the record. The State objected. The
defendant responded that he was entitled to read portions of the transcript into
the record because the State had provided an incomplete and misleading
account of the interview. See N.H. R. Ev. 106.
The trial court sustained the objection. The court ruled that, because
the State had only questioned the detective regarding the interview, without
introducing any portion of the transcript, the defendant was not entitled to
introduce the transcript in order to correct any misleading impression. Rather,
the court stated, the defendant could use the transcript to refresh the
detective’s memory or impeach specific answers. At the close of the State’s
case, the defendant asked the court to reconsider its prior ruling. The
defendant requested that the court “allow the defense to enter into evidence the
entirety of [the defendant’s] statements” from the interview in regard to certain
topics that the detective had testified to. The court denied the motion.
At trial, the State also called as a witness the Moultonborough police
officer who had led the department’s investigation in the case. On direct
examination, the State asked the officer to explain the role of a Child Advocacy
Center in a criminal investigation when a child is interviewed. The defendant
objected, arguing that, because the officer was not testifying as an expert, she
should not be allowed to testify as to how she had been “trained . . . to speak
with children.” The trial court overruled the objection, explaining that the
officer could answer the question because it would provide the jury with
background information about how a child sexual assault investigation
generally proceeds. Shortly thereafter, the State asked the officer how many
child sexual abuse investigations she had led. The defendant again objected,
arguing that that information was irrelevant. The court overruled the
objection, stating that the answer would provide appropriate background
information regarding the officer’s training and experience.
2
During cross-examination, the defendant asked the officer whether it is
standard practice when conducting an investigation to interview witnesses as
soon as possible after an event. The officer responded that witnesses
sometimes need time to “process” an event before discussing it. On redirect
examination, the officer was asked to expand on her answer:
Q You talked a little bit, at the beginning of that cross [-
examination], about giving people time to process. Counsel [for the
defendant] had asked you questions about immediately
interviewing witnesses and alleged victims. And you started to talk
a little bit about processing. What do you mean by that?
A When a traumatic event occurs -- and we know this, you
know, essentially, from our training and how to approach, you
know, if we’re at a --
The defendant objected, arguing that the officer was “not testifying as an
expert, so I don’t think she gets to talk about processing, internal mind, all of
that stuff.” The trial court overruled the defendant’s objection. This exchange
between the State’s counsel and the officer followed:
Q Counsel [for the defendant] had asked you questions
about how it’s -- the protocol or the procedure is to interview
people right away. And your response, if I understand you
correctly -- correct me if I’m wrong -- was that not always and that
sometimes people need to process. Was that your answer?
A Yeah, many --
Q Can you just --
A -- many times they do, yes.
Q Right. Explain that.
A Yeah. I -- I was saying, before, that, you know, a police-
involved shooting, for example, we would never interview the officer
involved or officers, you know, right site on scene, you know, three
minutes after it happened: what did you see; what did you -- I
mean, often, they’ll take a quick statement from them. By that, I
mean, like, how many shots do you think you fired, and go from
there, go home, rest. They seize the firearm.
My training with working with child advocacy centers and
forensic interviewing, you know, they alway[s] -- we just constantly
are saying, disclosure is a process. And a traumatic event, as we
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know, can -- you know, for anyone, just a general, you know, like,
you go through a tough time, you lose a parent or something, no
matter what age you are, and you become depressed, that’s a
reaction to that. And it’s hard to process information on the event
and whatnot.
And it does take time, and you remember little things.
And that’s why it’s important and we often do go back and talk to
people, sometimes informally. Like I said, it’s not, you know,
always, like, oh, push play, you know, record. For victims and
suspects, yes, we -- there are certain things in place. But other
than that, no.
The jury convicted the defendant, and this appeal followed.
On appeal, the defendant argues that the trial court erred when it ruled
that he was not entitled to enter portions of the transcript of his interview with
the detective into the record. He also argues that the trial court erred when it
allowed the officer, who was testifying as a lay witness, to provide expert
testimony regarding forensic interviewing.
“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. Plantamuro, 171 N.H. 253, 255 (2018). “When we
determine whether a trial court has sustainably exercised its discretion, we are
really deciding whether the record establishes an objective basis sufficient to
sustain the discretionary judgment made.” State v. Gonzalez, 170 N.H. 398,
407 (2017) (quotation omitted). “Our task is not to determine whether we
would have found differently, but is only to determine whether a reasonable
person could have reached the same decision as the trial court on the basis of
the evidence before it.” Plantamuro, 171 N.H. at 255. To show that the court’s
ruling is not sustainable, the defendant must demonstrate that the decision
“was clearly untenable or unreasonable to the prejudice of his case.” State v.
Lambert, 147 N.H. 295, 296 (2001) (quotation omitted).
We first address the defendant’s argument that the trial court erred when
it ruled that he was not entitled to enter portions of the interview transcript
into the record. The defendant argues that the State created a misleading
impression when, through the detective, it elicited testimony as to selected
portions of the defendant’s statements during the interview. The defendant
contends that the jury was left with the impression that his responses were
more inculpatory than they actually were. He argues that, pursuant to Rule
106 of the New Hampshire Rules of Evidence, he had a right to introduce
excerpts from the transcript into the record to correct the misleading
impression created by the detective’s testimony. We disagree.
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Rule 106, Remainder of or Related Writings or Recorded Statements,
provides as follows:
(a) If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at the
time, of any other part — or any other writing or recorded
statement — that in fairness ought to be considered at the same
time.
(b) A party has a right to introduce the remainder of an
unrecorded statement or conversation that his or her opponent
introduced so far as it relates:
(1) to the same subject matter; and
(2) tends to explain or shed light on the meaning of the part
already received.
N.H. R. Ev. 106. Rule 106 codifies New Hampshire’s common law doctrine of
completeness, which provides that a party “has the right to introduce the
remainder of a writing, statement, correspondence, former testimony or
conversation that his or her opponent introduced so far as it relates to the
same subject matter and hence tends to explain or shed light on the meaning
of the part already received.” State v. Lopez, 156 N.H. 416, 421 (2007)
(quotation omitted); see State v. Mitchell, 166 N.H. 288, 293 (2014). The
doctrine “exists to prevent one party from gaining an advantage by misleading
the jury.” Lopez, 156 N.H. at 421 (quotation omitted). The goal of the doctrine
is “to correct misleading impressions by omission.” Mitchell, 166 N.H. at 294.
“The trial court has discretion under Rule 106 to determine whether fairness
requires admission of remaining parts [of a conversation] or related
documents.” State v. Botelho, 165 N.H. 751, 760 (2013) (quotations omitted).
Although the defendant argues that portions of the transcript should
have been admitted into evidence under Rule 106, he does not specify whether
he advances this argument under paragraph (a) or (b). We will analyze his
argument under both paragraphs.
By its express terms, paragraph (a) applies only if a party “introduces all
or part of a writing or recorded statement.” N.H. R. Ev. 106(a). We note that
this language is identical to the language in Federal Rule of Evidence 106. See
Fed. R. Evid. 106. Here, on direct examination, the detective testified based on
his memory of the interview, and the State did not refer to the interview
transcript when it questioned him. We agree with federal courts applying
Federal Rule of Evidence 106 that, under such circumstances, a party has not
introduced a “writing or recorded statement” — i.e., the transcript — and
therefore the opposing party does not have a right to introduce the transcript in
5
order to correct any misleading impression. See United States v. Garcia, 530
F.3d 348, 350-54 (5th Cir. 2008) (ruling that the defendant could not introduce
the transcript of his interview with a government agent in response to the
agent’s testimony, when the agent only “testif[ied] as to his memory of the
conversation,” and the jury “did not hear or read quotations” from the
transcript); see also United States v. Pendas-Martinez, 845 F.2d 938, 939, 943-
45 (11th Cir. 1988) (ruling that, although defense counsel inadvertently read
an isolated line from a report during cross-examination, the government did
not have the right to introduce the entire report in response because defense
counsel’s use of the report was not “so extensive as to be tantamount to
introduction of the report into evidence”). Here, because the State neither used
nor referred to the interview transcript when it questioned the detective, and it
did not introduce the transcript into evidence, we conclude that the trial court
sustainably exercised its discretion under paragraph (a). See N.H. R. Ev.
106(a).
To the extent that the defendant also argues that the interview was an
unrecorded statement or conversation under paragraph (b) and that the trial
court erred when it prevented him from introducing the remainder of that
conversation, we disagree. By eliciting testimony regarding the detective’s
conversation with the defendant, the State arguably introduced part of an
“unrecorded statement or conversation.” N.H. R. Ev. 106(b). However, the trial
court did not prevent the defendant from “introduc[ing] the remainder” of the
conversation. Id. Here, the trial court did not prevent the defendant from
eliciting testimony regarding other portions of the interview through cross-
examination. Rather, he was barred from introducing portions of the
transcript. Nevertheless, consistent with Rule 106(b), the defendant had the
opportunity to cross-examine the detective regarding the entire interview, and
to use the transcript to refresh the detective’s memory and impeach specific
answers, thereby correcting any misleading impression that may have arisen as
a result of the detective’s testimony on direct. See N.H. R. Ev. 106 Reporter’s
Notes (explaining that an adverse party may “present related parts of
conversations by way of cross-examination”). As the State observes, the trial
court did not prevent the defendant from providing further context to the
interview; it merely prohibited him from introducing the transcript to do so.
Because the defendant had the opportunity to cross-examine the detective and
to use the interview transcript to correct any misleading impression, we
conclude that the trial court sustainably exercised its discretion when it ruled
that the defendant did not have the right to introduce parts of the transcript
into the record. See N.H. R. Ev. 106(b).
We now turn to the defendant’s second argument: that the trial court
erred when it allowed the officer, who was testifying as a lay witness, to provide
expert testimony. The defendant asserts that the court allowed the officer to
provide improper expert testimony on three occasions: when the officer
explained the role of a Child Advocacy Center in an investigation; described
6
how many child sexual abuse investigations she had led; and testified that
witnesses sometimes need time to “process” traumatic events before being
interviewed, and that based on her training “working with child advocacy
centers and forensic interviewing, . . . we just constantly are saying, disclosure
is a process.” Although the defendant argues that all of this testimony is
expert testimony, he focuses his argument almost exclusively on the officer’s
testimony as to the third topic. Accordingly, we will also focus our analysis on
that testimony.
The defendant argues that this testimony constitutes expert testimony
because it is based on the officer’s specialized training and experience, and its
purpose was “to explain why [the victim] may have taken time to disclose what
had happened to her, as well as why there may be inconsistencies in the
retelling of the allegations of sexual assault.” The State counters that the
testimony is not expert testimony because the average juror is familiar with the
concept of “processing” a startling or traumatic event, and the officer’s
testimony did not, in fact, explain why the victim may have delayed reporting
the assaults or made inconsistent statements. We agree with the State.
Rule 701 of the New Hampshire Rules of Evidence provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical or other specialized
knowledge within the scope of Rule 702.
N.H. R. Ev. 701. Expert testimony involves “matters of scientific, mechanical,
professional or other like nature, which requires special study, experience, or
observation not within the common knowledge of the general public.” State v.
DePaula, 170 N.H. 139, 153 (2017) (quotation omitted).
First, we disagree with the defendant’s argument that, merely because
the officer’s testimony is based on her training and experience, we should deem
her testimony to be expert testimony. Testimony based upon a witness’s
personal knowledge gained through employment is admissible as lay testimony,
so long as the witness does not testify to scientific or technical processes which
an average lay person would not be able to comprehend. See id. at 154-55
(concluding that custodians of cell phone records could provide lay testimony
regarding the range of cell towers based upon personal knowledge gained
through their employment). “[I]ndividuals can present limited lay testimony
7
regarding matters which, if discussed in detail, would require expert
testimony.” Id. at 154. For example, a police officer may testify as a lay
witness regarding his or her administration of a field sobriety test measuring
rapid eye movement, notwithstanding the fact that the average lay person has
never administered such a test, and despite the fact that testimony explaining
the underlying medical reasons for the eye movement would be expert
testimony. See State v. Cochrane, 153 N.H. 420, 421-24 (2006). Similarly, an
officer may testify as a lay witness regarding his or her use of a radar gun to
measure a vehicle’s speed, even though testimony explaining the underlying
mechanisms of a radar gun would be expert testimony because those
mechanisms are “not common knowledge.” Id. at 424 (citing State v. Caswell,
146 N.H. 243, 248 (2001)).
These cases demonstrate that a witness’s testimony is not expert
testimony simply because it is based upon personal knowledge that the witness
would not have had absent his or her employment. See DePaula, 170 N.H. at
154-55; Cochrane, 153 N.H. at 423-24. Personal observations made through a
witness’s employment may well be observations that any lay person would “be
capable of” making, at least with “some training.” Cochrane, 153 N.H. at 423.
Even if the witness’s testimony incorporates some degree of professional
knowledge, what is material is whether the testimony encompasses “highly
technical or specialized . . . information,” id. at 424, or simply “elementary
concepts” that an average juror would be able to understand, DePaula, 170
N.H. at 155.1
Here, the officer was asked to explain why, under certain circumstances,
it is preferable to allow a witness to “process” an event before interviewing the
witness. The officer gave a lengthy response which, taken as a whole, conveyed
that traumatic events can be difficult to recall and discuss, and that it is
sometimes easier for a witness to do so after the witness has had some time to
reflect. The officer’s reference to her experience with disclosure by child
victims was offered in passing as one example of this point. The officer also
gave the example of losing a parent, which unquestionably is an experience
within the common knowledge of the general public. We have little trouble
1 We note that we observed in State v. Gonzalez, 150 N.H. 74, 77-80 (2003), that
testimony by a social worker and a police officer during a sexual assault trial about their
observations and conclusions made during their employment regarding the frequency of victim
denials and delayed disclosures respectively was improper expert testimony from lay witnesses
because their observations “required specialized training, experience and skill not within the
ken of the ordinary person,” id. at 79 (quotation omitted); see also State v. Tierney, 150 N.H.
339, 345, 347-48 (2003) (relying on Gonzalez in concluding that the trial court erred in
allowing certain expert testimony but reversing defendant’s sexual assault convictions on other
grounds). However, as we explain below, Gonzalez does not control the outcome in this case
because the testimony here was of a different nature, was offered for a distinct purpose, and
was elicited in a different procedural context than that in Gonzalez.
8
concluding that the average juror is familiar with the notion that a person
might be better able to remember and discuss certain traumatic events after
some time has passed since the event occurred. On its face, the officer’s
testimony is not “highly technical or specialized” and therefore is not expert
testimony. Cochrane, 153 N.H. at 424. For similar reasons, we are not
persuaded by the defendant’s argument that the officer’s testimony explaining
the role of a Child Advocacy Center and describing how many child sexual
abuse investigations she had led is expert testimony because it is based on her
training and experience. Like the officer’s testimony about “processing”
traumatic events, this testimony does not contain “highly technical or
specialized . . . information,” id., but rather provides general background
information that the average lay person is able to understand, see id. at 421-
24; DePaula, 170 N.H. at 152-55.
Nor are we persuaded by the defendant’s second argument that the
officer’s testimony about “processing” was expert testimony because it was
offered to explain why the victim may have delayed reporting the sexual
assaults and offered inconsistent accounts of the assaults. The defendant
relies on State v. Gonzalez, 150 N.H. at 78-79, in support of this argument.
However, the defendant’s reliance on Gonzalez is misplaced.
In Gonzalez, the defendant was charged with sexual assault. Id. at 75.
At trial, as part of its case-in-chief, the State called a social worker and a
detective as lay witnesses. Id. The State elicited testimony from both
witnesses regarding their training and experience interviewing victims of sexual
abuse. Id. at 75, 78. Based on that training and experience, the social worker
testified that it is not unusual for victims to deny that they have been abused
or to recant allegations, and the detective testified that victims do not typically
report assaults at the time they occur. Id. The defendant objected to the
testimony of both witnesses at trial, arguing that the testimony was improper
expert testimony, but the trial court admitted the testimony. See id. at 75-76.
The defendant made the same argument on appeal, and we agreed, concluding
that the testimony of both witnesses was expert testimony but that the court’s
error in admitting it was harmless. Id. at 77-80.
We emphasized that the State had offered the testimony to explain the
behavior of victims regarding disclosure, observing that this was expert
testimony because it educated the jury as to how victims frequently delay
reporting abuse, provide inconsistent accounts of abuse, and recant
allegations. Id. at 78-79. We noted that, because delayed disclosure or
inconsistent accounts by a victim may be puzzling or appear counterintuitive to
lay observers, “expert testimony may be permitted to educate the jury about
apparent inconsistent behavior by a victim following an assault and to ‘provide
useful information that is beyond the common experience of an average juror.’”
Id. at 78 (quoting State v. MacRae, 141 N.H. 106, 109 (1996)) (brackets
9
omitted). The purpose of the testimony was to explain the potentially
counterintuitive behavior that sexual assault victims may sometimes display,
so that the jury could better assess the victim’s credibility. See id. at 75.
Here, unlike in Gonzalez, the officer’s testimony was not offered by the
State during direct examination to educate the jury about how victims
generally address the issue of disclosure. Rather, the testimony was
precipitated by defense counsel’s cross-examination of the officer: defense
counsel attempted to discredit the police department’s investigation in this
case by asking the officer several questions about standard investigation
procedures, and then trying to establish that the department had not followed
those procedures. As part of that strategy, defense counsel asked the officer,
“And another basic proper procedure is to try to do interviews in close as time
as possible to an event, right?” The officer disagreed, explaining that the
timing of interviews varies by case, and that “sometimes it is beneficial,
actually, to wait for a person to process that information before we speak with
them.” On redirect, the State simply provided the officer an opportunity to
further explain that answer, and she gave the response at issue. Thus,
although the officer’s passing reference on redirect to disclosure being a
“process” for victims arguably touches upon the issue of delayed disclosure, the
statement was offered to explain the police department’s investigation
procedures, rather than the behavior of victims. The officer’s brief allusion to
disclosure being a “process” for victims is very different from the testimony in
Gonzalez, in terms of the purpose for which it was offered, the context in which
it was elicited, and the degree to which it addresses the issue of disclosure by
victims. Cf. id.
In sum, we conclude that the trial court sustainably exercised its
discretion when it ruled that the defendant was not entitled to enter portions of
the interview transcript into the record and when it admitted the officer’s
testimony as permissible lay testimony. All issues raised in the defendant’s
notice of appeal, but not briefed, are deemed waived. See State v. Stanin, 170
N.H. 644, 652 (2018).
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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