2007-627, STATE OF NH v. TOMMY ROGERS

from inquiring about a witness’s bias. We affirm.

after the State refused to immunize defense witnesses, and in precluding him

kidnapping. O’Neill

conviction, arguing that the trial court erred in denying his motion to dismiss

See RSA 626:8 (2007); RSA 633:1 (2007). He appeals his

defendant, Tommy Rogers, was convicted of being an accomplice to DUGGAN, J. Following a jury trial in Superior Court (, J.), the

for the defendant. brief, and Stephanie Hausman, assistant appellate defender, of Concord, orally, Theodore Lothstein, assistant appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2007-627 editorial errors in order that corrections may be made before the opinion goes Hillsborough–northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Anderson by his nickname, “Little Cutter.” of you for me.” Throughout the car ride, the occupants of the car referred to

Cinco de Mayo was actually his friend from Boston “who came up to take care

accompanied him.

that he had been pulled over.

him how stupid he was for being set up, and that the man who punched him at got back in, he was sitting between Thorpe and Anderson. The defendant told his girlfriend, Ophelia Burnett, picked Tolson up in Burnett’s car. outside and put a gun to his side, telling him to get back in the car. When he

in an SUV. Tolson left the club, and the defendant, Burnett and Thorpe

feature that operates like a walkie-talkie. Anderson informed the defendant

was Dwan Anderson, then ran from the club and drove away with three women the head, causing him to fall to the floor. The man, whom Tolson later learned arriving, somebody he did not know came up behind him and punched him in While driving, the defendant “chirped” Anderson on his Nextel cell phone — a with Thorpe. The defendant drove and Burnett sat in the front passenger seat. offered to give Tolson a ride home. Tolson got into the rear of Burnett’s car

contacted Tolson and asked if he wanted to get a drink later that night at Cinco officer. Tolson testified that he expressed his desire to get home, and told the shower. That evening, while Tolson was visiting an ex-girlfriend, the defendant to hand over his money, take off his clothes and remove the gold caps from his asked for him, but was told Tolson would call him when he was out of the The defendant drove while Anderson held a gun to Tolson, ordering him

mixed drinks. He testified that approximately twenty or thirty minutes after

house. Before his brother and Champoux arrived, however, the defendant

The defendant stopped nearby and waited for Anderson to finish with the

While Tolson was showering, the defendant came to Champoux’s house and

where they met Kyle Thorpe, a friend of the defendant. Tolson had two or three During the fall of 2005, Tolson moved to Tennessee.

Tolson called his brother to arrange for a ride back to Champoux’s

arriving, they went to Angela Champoux’s house, where they planned to stay.

At Cinco de Mayo, Tolson, Burnett and the defendant sat at the bar, through, however, when Tolson was unable to pay half the recording costs. a song in the hopes of producing and promoting it. That arrangement fell the defendant, a self-described rapper and producer, who helped Tolson record

In March 2006, Tolson and his brother returned to Manchester. After

Matthew Tolson lived in Manchester. During that time, he became friends with The jury could have found the following facts. Until the fall of 2005, that was similar to that given by Tolson, except that Anderson said he had

p. 3 causing Tolson to follow. Anderson then gave an account of the kidnapping

concealed in the overhead screen of a DVD player.

bar, at which point Little Cutter would confront Tolson and then run outside, devised a plan in which the defendant and Burnett would bring Tolson to the planned to scare Tolson. Anderson said that Little Cutter and the defendant

station. A later search of the car revealed the defendant’s wallet, which was refused to have his handcuffs removed until after he was inside the police they would like to talk to him. Anderson said he would talk to the police, but

somebody named Little Cutter, whom Anderson pretended not to know,

development, where he awoke an elderly couple who called the police. the scene. He then heard the squeal of tires and ran to a nearby condo 3 such as changing directions, turning frequently and pulling into driveways. and observed what an officer described as counter surveillance maneuvers,

Anderson was Little Cutter, told him that he was not under arrest, but that

that he was at the club with the defendant, and that the defendant and

that he heard two or three gun shots, no evidence of gunfire was recovered at

left the apartment shortly thereafter. Unmarked police cars followed their SUV

who he was and arrested him. The officers, who did not then know that

which point Tolson was forced out of the car.

At the police station, in his first statement to the police, Anderson said

of a dumpster, at which point he took off running. Although Tolson testified naked, with a gun to his head. They then told Tolson to get into and then out on the trunk of the car, began laughing and Burnett took a picture of Tolson, Olivia, and pulled her over a few minutes later. The defendant and Anderson Burnett leave the defendant’s home in a Mercedes belonging to Burnett’s sister, police then set up surveillance at the defendant’s home. The police saw defendant started to give a false name, an officer told him they already knew exited the car; Anderson and the defendant were handcuffed. When the minutes, they arrived at an empty field and construction site in Litchfield, at occupants to exit the vehicle. The defendant, Anderson and Olivia Burnett all When the police eventually stopped the car, they instructed the

defendant told him that they had “picked out a nice spot.” They put his head

which he identified the defendant, Burnett, Thorpe and “Little Cutter.” The When the police arrived at the scene, they took Tolson’s statement, in

talking about, but that he was nonetheless forced to apologize. After several person’s head. Tolson testified that he had no idea what the defendant was Burnett, and asking if he knew what a nine millimeter handgun could do to a

Burnett and Thorpe asked, “[A]re we going to kill [him] or what,” and the

was, stating that Tolson never should have stolen money and a gun from teeth. As they drove, the defendant continued to tell Tolson how stupid he holding the gun to Tolson’s head against the trunk of the car.

p. 4 defendant, Burnett, Thorpe and Anderson laughed. Anderson denied, however, off the rest of his clothes and then told him to run into the woods naked as the out a nice spot.” When they arrived, they got out of the car, made Tolson take

about how Tolson had disrespected him, and stating that Burnett had “picked

Tolson, said “don’t even think of it” and told him to get back in the car.

influence of any narcotics or alcohol. throughout all three interviews Anderson did not appear to be under the said that the defendant drove to an unknown location, making comments would find drugs and a gun in the safe in the car. An officer testified that 4 gold teeth and a gun from Tolson, and made him take off his shirt. Anderson disrespected the defendant. Anderson told police that he took money, drugs,

Anderson had mentioned, which contained a nine millimeter handgun with an

reaching for what he thought was a gun. Anderson pointed his own gun at

from the defendant’s home and Olivia Burnett’s car, and told them that they

and money from Burnett while the defendant was away, and how Tolson had

Olivia Burnett’s cars. In the trunk of Olivia Burnett’s car, police found the safe executed search warrants for the defendant’s home as well as Ophelia and was called Little Cutter, and that Anderson had punched Tolson at the club. In addition to interviewing Anderson and the defendant, the police apartment for the evening. The defendant also told the police that Anderson walked to the defendant’s car, opened the rear passenger door and saw Tolson over, he met up with the defendant, Burnett, Thorpe and Tolson. He said he that he ran away before he could find the suspected gun. After being pulled

gun to Tolson’s head. He also asked the officers if they had recovered safes third time that day. In his third statement, Anderson admitted he had held a between the defendant and Tolson about how Tolson had allegedly taken a gun After collecting additional evidence, the police interviewed Anderson for a

brother for a short time, drove Thorpe home, and then returned to his own

and the defendant believed Tolson may have had a gun at Cinco de Mayo, but

Anderson said that once he was in the car, there was a conversation

previous night. He said that he drove Tolson home and spoke with Tolson’s

had happened to him. He told the police he had punched Tolson because he Little Cutter, broke down in tears and said that Tolson did not deserve what Cutter, he changed his story. In his second statement, he admitted he was When police told Anderson that the defendant had identified him as Little

Meanwhile, the defendant told the police that he had met with Tolson the

point, the police formally arrested Anderson. followed the car in an SUV and watched the events as a bystander. At that believe Anderson was intoxicated.

p. 5 Anderson to punch Tolson. Tolson offered to sell him cocaine, but was trying to “hustle” him, leading

testified that he did not observe any signs of impairment and had no reason to described Anderson as a “[n]ice kid, very polite and cooperative.” The officer was not speeding, driving erratically or crossing any lines. The officer

completely drunk.” He said that the defendant was not at the club, and that

questioned him in connection with the kidnapping the following afternoon.

Anderson testified that although Anderson was driving without headlights, he

let Tolson go without firing his gun.

drugs with Tolson. As he put it, “I was shroomed out, I was coked up, I was consumed mushrooms, a hallucinogenic drug, but could not recall taking any He stated that he inhaled roughly twenty lines of cocaine that night and approximately $1200 of cocaine that day, and was still high when police

plans when the defendant called him. Additionally, the officer who stopped originally planned on going home after being pulled over, but changed his Tolson while the defendant tried to calm him. Anderson said that he eventually SUV, or at her house earlier that evening. She also testified that Anderson had 5 and gold teeth. As they exited the car, Anderson said he kept the gun on and began taking things from Tolson, including a gun, cocaine, a cell phone

shared thirty shots of vodka with them, most of which he himself consumed. that he was afraid of the defendant. He also stated that he had used

testified that she had not seen him using drugs that night at the club, in the

and tried to calm Anderson down. Anderson said he told the defendant to drive

kidnapping. Anderson said that he went to Cinco de Mayo with three females, said that the defendant had no idea what was going on and took no part in the pressured and manipulated into saying what the police wanted to hear, and that statement, Anderson took full responsibility for the events that night and

In contrast, one of the women with Anderson that night, Shiloh Piper,

when the defendant arrived, the defendant had no idea what was happening into Burnett’s car before the defendant and the others arrived. He stated that then returned to the club, saw Tolson exiting, took out his gun and forced him

Anderson stated that during the earlier interviews with the police he felt receive a reduction in his prison term; the deposition was read to the jury. In

his headlights, and was forced to park the car because he had no license. He Anderson stated that he left the club, was pulled over for driving without

fourth statement in a deposition as part of an agreement with the State to

A year later, after pleading guilty to kidnapping Tolson, Anderson gave a

residue and a key, which they matched to a safe in the defendant’s home. obliterated serial number, ammunition, scales, what appeared to be cocaine club.

p. 6 Tolson get into an argument and saw Anderson punch Tolson and run from the back. He testified that while he was playing pool, he observed Anderson and club multiple times to sell drugs, and was counting money each time he came

threatening Tolson. The defendant testified that Anderson was out of control

cumulative. The trial court therefore denied the defendant’s motions. defendant invited him to accompany them.

through a rolled up dollar bill. The defendant also testified that Tolson left the

with what was produced, however, and at that point took out a gun and began

to the same facts, thus making the testimony of Thorpe and Burnett After Anderson told the defendant there would not be any more problems, the testified, Anderson explained that Tolson had tried to cheat him on a drug deal. bathroom together, and that he walked in and saw them snorting cocaine Anderson. They then went to meet Anderson, at which point, the defendant 6 testified that while he was at the club, he saw Anderson and Tolson go into the for the evening, and that he had no plans for meeting Anderson that night. He

Tolson for the rest of the “product” Tolson owed him. Anderson was unhappy

court also noted that Anderson, and, presumably, the defendant, would testify competing harms, their testimony would not be directly exculpatory. The trial Burnett would provide testimony relevant to the defendant’s defense of Champoux’s house to retrieve the rest of the “product” that Tolson owed

According to the defendant, Tolson had called him to see if he wanted to go out

The defendant testified that once Anderson entered the car, he asked be a little time, jail time.” to take care of him and he was going to pay him good and [there] was going to

motions to dismiss. The trial court concluded that although Thorpe and Before going to meet with Anderson, the defendant drove Tolson back to “chirp” from Anderson, telling the defendant that he had been pulled over. Tolson’s account, and largely similar to Anderson’s fourth statement. The defendant testified that after they left the club, he received a Nextel

Anderson had told her “he had a job to do and that [the defendant] was going

privilege and the State refused to immunize them, the defendant filed two

At trial, the defendant testified to a series of events vastly different from

Anderson’s girlfriends, also testified that a few days before the incident, care of it” because Tolson owed the defendant $450. Kilsis Javier, one of was because of [the defendant], that . . . [the defendant] wanted him to take

669 (1987). After the trial court found that they were justified in asserting the incrimination at separate Richards hearings. See State v. Richards, 129 N.H. Before trial, Burnett and Thorpe both asserted their privilege against self-

he thought “it was a setup” and that “the whole beef between him and [Tolson] Piper also testified that Anderson spoke to her from prison and said that directly exculpatory or would present a highly material variance from the tenor

p. 7 statutes, trial courts cannot grant immunity without a showing by the defendant that the testimony sought would be

guidance only.

request a trial court to order the witness to testify. Under the immunity application of a two-part test. First, “[n]o such violation will be recognized . . .

examination of Piper concerning her bias.

his claim under the New Hampshire Constitution, citing federal opinions for footnote in 1966. was first considered when then-Judge Burger postulated the concept in a

attorney general or county attorney, may grant a witness use immunity and 145 N.H. 718, 721 (2001) (quotation omitted). Our analysis requires deprive a defendant of due process on the facts of [his] case.” but to do as Anderson said. State v. Kivlin, “situations could arise in which to deny immunization from prosecution would testified that he was afraid for all of their lives and felt that he had no choice State refused to immunize Thorpe and Burnett; and (2) restricting his 1966), cert. denied, 388 U.S. 921 (1967). Since then, we have recognized that

See Earl v. United States, 361 F.2d 531, 534 n.1 (D.C. Cir. not argue that the denial violated his federal constitutional rights, we address

due process rights under the State Constitution. Because the defendant does The notion of a defendant’s right to obtain immunity for his witnesses dismiss after the State refused to immunize Thorpe and Burnett violated his N.H. 478, 481 (1995).

Pursuant to RSA 516:34 (2007), the State, with authorization from the

Thorpe were all terrified and pled with Anderson, asking him to stop. He argues that the trial court erred in: (1) denying his motion to dismiss after the See State v. Ball, 124 N.H. 226, 232–33 (1983).

and that the rest of them returned to the car and left.

The defendant argues that the trial court’s denial of his motion to

eventually stopping in Litchfield. The defendant testified that he, Burnett and After a six-day trial, a jury convicted the defendant. On appeal, he him directions as they went, telling him to stay away from a police station and defendant and told him to drive. The defendant testified that Anderson gave Anderson was laughing. He testified that Anderson eventually let Tolson go, of Tolson with his head on the trunk, but denied that anybody apart from to Anderson, attempting to calm him. He admitted that Burnett took a picture The defendant testified that after they exited the car, he continued to talk

When the defendant tried to talk to Anderson, Anderson pointed his gun at the and high on drugs, and that he could do nothing to calm Anderson down. their testimony cumulative.

p. 8 defendant had an agreement with Anderson to kidnap and terrorize Tolson. not place the defendant elsewhere or preclude the possibility that the testify that the defendant was trying to calm Anderson, their testimony could 8

Anderson’s deposition or the defendant’s presumed testimony, thus making

prosecutorial decisions . . . .”

defendant’s conviction. As the trial court noted, even if the witnesses could

Thorpe and Burnett were not expected to testify to any facts not presented in provided defendant with alibi or otherwise exculpated him). Furthermore, (affirming denial of immunity when proffered testimony would not have See Kivlin, 145 N.H. at 722-23; State v. Farrow, 118 N.H. 296, 306 (1978)

witnesses and ensures that the judiciary will not lightly interfere with

case. testimony was the sort of exculpatory evidence that would have prevented the defendant’s undisputed acts. defendant’s claim. We cannot say that Thorpe and Burnett’s proffered not outweigh the evidence presented by disinterested witnesses and the After a review of the record, we find that this standard is fatal to the

denied, 449 U.S. 1077 (1981). alternate justifications for defense witness immunity following Earl), cert. States v. Turkish, 623 F.2d 769, 772-77 (2d Cir. 1980) (discussing history and separation of powers concerns in conferring witness immunity); see also United

the possibility of cooperative perjury between defendants and their . . . State v. Winn, 141 N.H. 812, 816 (1997). This strict standard “reduces is only “highly material” when the variance is irreconcilable with the State’s U.S. 852 (1991). Furthermore, a variance from the tenor of the State’s evidence the testimony of Burnett and Thorpe would have been cumulative, and could as that he cannot obtain the evidence from another source), cert. denied, 502 showing that the testimony is material, exculpatory and not cumulative, as well Lefevre, 924 F.2d 434, 441-42 (2d Cir. 1991) (stating defendant must make 145 N.H. at 722; State v. MacManus, 130 N.H. 256, 259 (1987); see Blissett v. proffered testimony would have prevented the defendant’s conviction. Kivlin, meet a high burden. In conducting our review, we look to whether the directly exculpatory or of a highly material variance, requires the defendant to The first part of our analysis, whether the proffered testimony was

material variance” from the tenor of the State’s evidence. The State argues that events similar to those reiterated by the defendant, which presented a “highly The defendant argues that Thorpe and Burnett would have testified to

defendant a fair trial.” Kivlin, 145 N.H. at 721 (quotation and ellipses omitted). the executive branch’s refusal to immunize a defense witness denied the circumstances, we then decide whether, on the facts of the defendant’s case, “[i]f the defendant demonstrates that [his] case falls within these narrow of the State’s evidence.” State v. Monsalve, 133 N.H. 268, 270 (1990). Second, that Piper was testifying under subpoena, and that she was close to Anderson.

p. 9 State’s subsequent objection on the grounds that the jury was already aware you had to be arrested to come to court today?” The trial court sustained the On redirect, the defense attempted to impeach Piper, asking, “Isn’t it true that

defendant] wanted him to take care of it, over four hundred and fifty dollars.”

because of [the defendant], that he had to take care of it because [the recently. . . . That the whole beef between [Anderson] and [Tolson] was wit: “[Anderson] told me that he thought it was a setup when I talked to him

during the State’s cross-examination that the defendant had not expected, to

testifying on Monday. When Piper took the stand, she made damaging remarks warrant, causing Piper to be arrested; she spent a Sunday night in jail before result, the defense requested that the trial court issue a material witness

“critical defense witness,” she failed to appear and refused to cooperate. As a

evidence unavailable from other sources. his examination of Piper. When the defense originally subpoenaed Piper, a dismiss after the prosecution’s denial of immunity to defense witnesses. essentially the only factor considered when analyzing a trial court’s refusal to

defendant’s motion to dismiss.

bearing on defendant’s intent).

grants, nor did it deny immunity to defense witnesses with crucial, exculpatory The defendant next argues that the trial court erred in circumscribing

overreaching. Indeed, in federal courts, prosecutorial overreaching is not secure any of its evidence by means of immunity grant), II

For the foregoing reasons, we affirm the trial court’s denial of the immunity to defense witnesses violates defendant’s right to fair trial);

where prosecution refused to immunize witness with important testimony People v. Priester, 470 N.Y.S.2d 478, 480 (App. Div. 1983) (granting new trial

U.S. 999 (1975). Here, the State did not secure its evidence through immunity

refusal to confer immunity constituted prosecutorial misconduct or F.2d 492, 495 (7th Cir. 1974) (noting importance of fact that prosecution did 623 F.2d at 777 (same); United States v. Allstate Mortgage Corporation, 507

Cir. 1983) (stressing need for prosecutorial misconduct before denial of denied, 522 U.S. 975 (1997); United States v. Lord, 711 F.2d 887, 890-91 (9th could justify a court’s refusal to allow the prosecution to proceed.”), cert. cases of prosecutorial misconduct, the government’s refusal to grant immunity United States v. Mackey, 117 F.3d 24, 27 (1st Cir. 1997) (“[I]n certain extreme

Moreover, there is nothing in the record to suggest that the State’s

or of a highly material variance from the tenor of the State’s case. therefore, has failed to show that the proffered testimony is directly exculpatory harmless. p. 10 the jury’s verdict. Any error in excluding such testimony was therefore

allowing the defense to question Piper about her arrest would not have affected

overwhelming evidence of guilt, we conclude beyond a reasonable doubt that Anderson felt Tolson did not deserve what happened to him. In light of the statements to the police also suggested such an arrangement, and that

conviction beyond a reasonable doubt. Javier, for example, testified to an presented overwhelming alternative evidence to support the defendant’s BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred. enough to make the jury disbelieve her inculpatory testimony, the State

State’s evidence of guilt. we therefore restrict our analysis to the State Constitution. inadmissible evidence is merely cumulative or inconsequential in relation to the was harmless. defendant’s guilt is of an overwhelming nature, quantity, or weight and if the

examination, corollary, he has the right to impeach a witness’s credibility through cross- Even if the fact that Piper was arrested and spent a night in jail was

argue, however, that the ruling violated any of his federal constitutional rights; and night in jail was error. We agree with the State, however, that any error may be harmless beyond a reasonable doubt if the alternative evidence of the defense to question Piper about her potential bias stemming from her arrest evidence was inconsequential in relation to the State’s evidence. Id. An error as well as the character of the excluded evidence, including whether the its burden, we consider the strength of the State’s evidence presented at trial, State v. Fox, 150 N.H. 623, 624 (2004). In deciding whether the State has met proves beyond a reasonable doubt that the error did not affect the verdict. witnesses against him face to face, and to be fully heard in his defense.” As a v. Goodale, 144 N.H. 224, 232 (1999). Error is not harmless unless the State The State bears the burden of proving that an error was harmless. State

under Part I, Article 15 of the State Constitution. The defendant does not argues that the trial court’s restriction of his questioning violated his rights We assume, without deciding, that the trial court’s refusal to allow the for her to be angry with the defendant and lie about his participation. He of the witness’s possible biases, State v. Etienne, 146 N.H. 115, 117 (2001).

State v. Rodriguez, 136 N.H. 505, 508 (1992), including exposure

Part I, Article 15 provides that a defendant shall have a right “to meet the

fact that Piper had to be arrested before testifying because it provided a motive On appeal, the defendant argues that the jury was entitled to hear the