State v. Bouchard

BROCK, C.J., concurring specially: I agree with the majority that the trial court did not abuse its discretion and that the defendant’s conviction should be affirmed. I write to express my belief, however, that the defendant’s arguments concerning the admission of Officer Race’s testimony were not properly preserved for appeal. I would not, therefore, address those arguments in the opinion. Prior to trial, the defendant moved to exclude any statements contained in Officer Race’s report because the defense did not receive the report until well after the discovery deadline in violation of Superior Court Rule 98. The motion was granted. At trial, Officer Race was allowed to testify concerning the statements, as the defendant had opened the door to such testimony. In his brief, the defendant relies upon the Rule 98 violation, arguing that the statements caused both surprise and unfair prejudice. The State argues that the defendant did not preserve the issue for appeal as he did not contemporaneously object to the testimony at trial. The majority states that a contemporaneous objection was unnecessary as the defendant’s pretrial motion preserved the issue, including arguments based on consequences of the Rule 98 violation, citing State v. McLaughlin, 135 N.H. 669, 672 , 610 A.2d 809, 811 (1992). The analysis fails to recognize that the defendant’s pretrial motion was granted. At trial, the defendant raised no objection, contemporaneous or otherwise, to the testimony. Cf. State v. Simonds, 135 N.H. 203, 205 , 600 A.2d 928, 929 (1991). The trial court originally excluded the statements from the State’s case in chief on the basis of a Rule 98 violation. The trial court did not reverse its Rule 98 ruling at trial. Rather, it admitted the evidence as prior inconsistent statements of the defendant after he opened the door. The defendant’s pretrial motion did not abrogate his obligation to raise a contemporaneous objection in order to afford the trial court an opportunity to correct any error it may have made, see State v. Eldredge, 135 N.H. 562, 564 , 607 A.2d 617, 618 (1992), especially where, as here, the evidence was being offered on different grounds. The defendant argues in his brief for the first time that the admission of Officer Race’s statements violated New Hampshire Rule of *587 Evidence 403. The State argues that the defendant did not preserve the issue for appeal as he did not make a Rule 403 argument in his pretrial motion nor did he make a contemporaneous objection on such ground at trial. I find this argument to be persuasive. I fail to see a difference between this situation and that concerning the defendant’s Rule 608(b) argument. There, the defendant argued that questions focusing on his possession of “green vegetative matter” violated New Hampshire Rule of Evidence 608(b). The majority decided not to address this argument as the defendant failed to specifically argue Rule 608 in his motion in limine, and he made no contemporaneous objection on such ground at trial. The appropriate analysis here is identical to that employed earlier. The defendant’s pretrial motion to exclude Officer Race’s statements was based solely on Superior Court Rule 98. Rule 403 was not mentioned either at that time or during trial. Even if I were to agree that the defendant’s pretrial motion preserved his Rule 98 argument on appeal, I do not agree that the defendant’s pretrial argument based on Rule 98 “impliedly” informed the trial court of, and preserved for appeal, an argument based on any other rule designed to prevent unfair prejudice. See, e.g., N.H. R. Ev. 608(b). I would not address the Rule 403 argument as the defendant has not preserved it for appeal. See State v. VanDerHeyden, 136 N.H. 277, 282 , 615 A.2d 1246, 1249 (1992). Thayer, J., joins in the special concurrence.