2009-342, State of New Hampshire v. Kirkman J. Cassavaugh, III

After a jury trial in Superior Court (Smukler

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silent had been redacted. We affirm. second police interview from which statements he made invoking his right to be Stephanie Hausman terminated his initial interview with the police; and (3) admitting evidence of a that he previously threatened to kill Jennifer; (2) admitting evidence that he defendant appeals, arguing that the trial court erred by: (1) admitting evidence murder in the death of Jennifer Huard, RSA 630:1-b, I(a) (2007). The the death of Jeremy Huard, RSA 630:1-a, I(a) (2007), and second degree defendant, Kirkman J. Cassavaugh, III, was convicted of first degree murder in

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as suffered twelve stab wounds, as well as gunshot wounds to his face, back and p. 2 of her head that was consistent with having been dragged down stairs. Jeremy wound to her shoulder and there had been bleeding under the skin on the back contributing gunshot wounds. Jennifer also sustained a second gunshot gunshot wound to her chest, while Jeremy died of multiple stab wounds and Autopsies revealed that Jennifer died within seconds of suffering a

in debris piles behind the defendant’s trailer. the defendant’s grandparents to search the property. They found both bodies taken place. Based on Thomson’s report, the police obtained permission from at the property. Later that morning, Thomson reported to the police what had help by warming up his car. Thomson then drove away, leaving the defendant that burning the bodies at night would attract attention and instead offered to the bodies to the back of his trailer in order to burn them. Thomson responded Thomson that he had “killed them.” He asked for Thomson’s help in dragging Shortly thereafter, the defendant knocked on Thomson’s door and told

defendant dragging Jennifer by her feet out the door of the trailer. got dressed and when he again looked out his window he observed the him to the ground. Thomson yelled to the defendant, “Don’t kill him, Kirk.” He looked out his window to see the defendant punching Jeremy and throwing waking Marc Thomson, who lived in a recreational vehicle nearby. Thomson Jennifer argued. The argument continued after they arrived at the trailer, During the car ride back to the defendant’s trailer, the defendant and

defendant and Jeremy drove to pick her up. defendant asking to be picked up from a house in Franklin. Together the consuming drugs. After the acquaintances had departed, Jennifer called the defendant, Jeremy, and several acquaintances were at the defendant’s trailer contact with the defendant. On the night of September 19, 2006, the trailer and into her father’s home. However, both she and Jeremy remained in In September 2006, Jennifer moved her belongings out of the defendant’s

and that they often fought. her.” Jennifer explained to Sanborn that it was the defendant who was yelling She heard the man call Jennifer a “whore” and say he was “going to f.....g kill during which she overheard a man yelling at Jennifer in a voice filled with rage. During that summer, Krystal Sanborn made a telephone call to Jennifer

argued, however, and the relationship was troubled. situated on land owned by his grandparents. The defendant and Jennifer often often engaged in drug use together at the defendant’s trailer, which was The defendant and Jennifer’s brother, Jeremy Huard, were friends. The three the defendant and Jennifer Huard were involved in a romantic relationship. A jury could have found the following facts. During the summer of 2006, p. 3 The defendant was read his Miranda Police conducted a second interview after the victims’ bodies were found.

killings. He then asked to end the interview and the interview was terminated. began to look “sickly,” although he continued to deny any involvement in the demeanor changed. His breath quickened, he slumped in his chair, and he defendant about whether he had killed either Jennifer or Jeremy, however, his engaged in an argument with Jennifer. When the police began to press the left his house on foot at approximately 4:00 a.m. that morning, after he characterized Jennifer as a “miserable bitch,” and stated that she and Jeremy surprised or concerned to learn that Jeremy and Jennifer were missing. He discovery of the bodies. In the initial interview, the defendant did not appear Police conducted interviews with the defendant both before and after the

respect to each victim. Before trial, the State successfully moved, over the first degree murder and two alternative counts of second degree murder with Jeremy and Jennifer Huard. Specifically, he was charged with one count of The defendant was indicted on six counts of murder in the deaths of same caulking was discovered in the defendant’s trash. found in the refrigerator had been freshly filled with caulking and a tube of the and palm prints were the only prints discovered on the rifle. The bullet holes was identified as having been fired from the same rifle. The defendant’s finger seized from the defendant’s trailer. A second bullet, discovered in the trailer, removed from Jennifer’s body was identified as having been fired from a rifle wall beside the refrigerator, and in the defendant’s refrigerator door. A bullet There were bullet holes in the front door of the defendant’s trailer, in a

the balls and being pushed into my . . . TV.” made the unprompted statement, “This all stemmed from me being kicked in and spontaneously exclaimed, “I didn’t kill them. They attacked me.” Later, he subsequently arrested. While in the booking area the defendant was agitated and Jeremy, however, the defendant invoked his right to remain silent. He was the conversation turned to his potential involvement in the murders of Jennifer 436 (1966), which he waived, and he agreed to speak with the officers. After

the floor mat, which was covered in Jeremy’s blood. carpet, floor mat and walls. The defendant’s bare footprint was discovered on areas of the defendant’s kitchen. Jeremy’s blood was found on the defendant’s According to forensic reports, Jennifer’s blood appeared in numerous

dragged. likely caused after death and which were consistent with his body having been been struck with the butt end of a rifle. His body had abrasions that were Jeremy also sustained a forehead injury, which was consistent with having buttocks. Marks on Jeremy’s neck were consistent with having been strangled. outweighed any prejudicial effect. p. 4 was relevant to prove the defendant’s intent and because its probative value the evidence. The State counters that the evidence was admissible because it that the prejudice to his case substantially outweighed the probative value of irrelevant except to improperly show his propensity to commit violence and first and third prongs of the Rule 404(b) test, arguing that the testimony was The defendant challenges the admissibility of the statement under the

N.H. R. Ev.

accident. preparation, plan, knowledge, identity, or absence of mistake or

conviction based on evidence of other crimes or wrongs.” State v. Bassett defendant is tried on the merits of the crime as charged and to prevent a 4 “The purpose of Rule 404(b) in a criminal trial is to ensure that the

purposes, such as proof of motive, opportunity, intent, conformity therewith. It may, however, be admissible for other the character of a person in order to show that the person acted in

omitted). unreasonable to the prejudice of his case.” Bassett, 139 N.H. at 496 (citation if the defendant can show that the ruling was clearly untenable or 404(b), the trial court exercises its sound discretion, and we will find error only Id. Nevertheless, “[i]n ruling on the admissibility of evidence under Rule State bears the burden of demonstrating the admissibility of prior bad acts.” prejudice to the defendant.” State v. Beltran, 153 N.H. 643, 647 (2006). “The probative value of the evidence must not be substantially outweighed by its Evidence of other crimes, wrongs, or acts is not admissible to prove there must be clear proof that the defendant committed the act; and (3) the for a purpose other than proving the defendant’s character or disposition; (2) I. Witness Testimony admissibility of evidence under Rule 404(b): “(1) the evidence must be relevant

404(b). A three-part test has been established for determining the

under New Hampshire Rule of Evidence 404(b). an evidentiary hearing, the trial court ruled that the evidence was admissible she heard the defendant threaten to kill Jennifer. The defense objected. After trial, the State moved to admit, in its case-in-chief, Sanborn’s testimony that We first consider the admission of Krystal Sanborn’s testimony. Prior to

N.H. 493, 496 (1995). Rule 404(b) provides:

admission of all that evidence. interviews of the defendant. On appeal, the defendant challenges the portions of the transcripts and videotaped recordings of the two police defendant’s objection, to admit the testimony of Krystal Sanborn, as well as p. 5 Similarly, in State v. Sawtell require evidence at trial.” Pepin an element of the crime to be proven by the State, it is sufficiently at issue to We have held that “[w]hen intent is not conceded by the defense, and it is

I(a) (2007), and he did not stipulate to intent. Thus, pursuant to the statute, the defendant was charged with first degree murder pursuant to RSA 630:1-a,

probative of defendant’s intent to intimidate and terrorize victim). threats in several cases. For example, in State v. Pepin (1993) (prior threats against victim admissible to prove assault because We have considered the issue of intent with respect to a defendant’s prior similar circumstances. Id. at 182; see State v. Richardson, 138 N.H. 162 prior acts involved the same parties, a similar weapon, and occurred under prior threats to the victim with a gun were relevant to prove intent because the dispute.” Id admitting evidence of his prior threats to the victim. We held that evidence of was charged with first degree murder, argued that the trial court erred by committed the murders, the issue of intent was not an issue “actually in

gratification). sexual contact with victim admissible to show intent to touch victim for sexual victim’s state of mind); State v. Simonds, 135 N.H. 203, 207 (1991) (prior threatening charges because probative of defendant’s motive and intent and (2002) (prior threat against victim admissible to prove harassment and criminal to cause her death or bodily injury. Id.; see State v. Brewster, 147 N.H. 645 that when the defendant later assaulted the victim, he did so with the purpose something he disliked.” Id. at 278. Therefore, it was more probable than not charged offenses; i.e., his efforts to intimidate the victim when she did because it was “directed at the same victim and in a similar context as the The defendant argues that because his defense was that someone else threat was relevant to the defendant’s intent to commit the charged crime kill the victim should have been inadmissible at trial. We held that the prior first degree assault. He argued that evidence of his prior threat to shoot and the defendant was charged with, among other crimes, attempted murder and

admitted. We disagree.

. Therefore, he contends, the testimony should not have been

nexus.” Id. at 647-48. constituting the crime charged and not so remote in time as to eliminate the prior bad acts must be in some significant way connected to material events character or propensity.” Beltran, 153 N.H. at 647. “To be relevant [to intent], actually in dispute, without relying upon forbidden inferences of predisposition, precise chain of reasoning by which it will tend to prove or disprove an issue must “specify the purpose for which the evidence is offered and articulate the To meet its burden under the first prong of the Rule 404(b) test, the State p. 6 State v. Yates

emotionally charged.

defendant on some improper basis, commonly one that is

error is an undue tendency to induce a decision against the prejudicial. Rather, the prejudice required to predicate reversible

sense all evidence offered by the prosecution is meant to be

from the tendency of the evidence to prove his guilt, in which Unfair prejudice is not, of course, a mere detriment to a defendant

something other than the established propositions in the case.

human action that may cause a jury to base its decision on

provoke its instinct to punish, or trigger other mainsprings of

to appeal to a jury’s sympathies, arouse its sense of horror, Evidence is unfairly prejudicial if its primary purpose or effect is

substantially outweighed its probative value. The defendant next argues that the prejudicial effect of the testimony 6

(quotation and citation omitted). “Particularly pertinent to determining this probative worth of evidence under Rule 404(b).” Pepin, 156 N.H. at 278 deference to the trial court’s determination in balancing prejudice and

, 152 N.H. 245, 249-50 (2005). “We accord considerable

between it and the charged event. See her murder and was thus not so remote in time as to eliminate the nexus Moreover, the threat was delivered to Jennifer just two months prior to

Sanborn as relevant to prove intent. court properly exercised its discretion when it permitted the testimony of actions were deliberate and premeditated. Accordingly, we hold that the trial the defendant intended to kill Jennifer when he shot her, and whether his the defendant. Evidence of the prior threat therefore went directly to whether threat was made during the course of a heated argument between Jennifer and circumstances similar to the events on the night of Jennifer’s death; that is, the proximate for threat to be relevant). Further, the threat was made under (concluding that threat made three years before charged event was sufficiently eliminate the nexus between them); State v. Allen, 128 N.H. 390 (1986) threat made five months before charged event was not so distant in time as to

that purpose. defendant’s specific intent to kill Jennifer and the prior threat was relevant for 630:1-a, II (2007). Accordingly, the State was required to establish the acts in furtherance of that object were deliberate and premeditated.” RSA “that the actor’s conscious object is the death of another, and that his act or stipulated to the relevant element of the charged crime). “Purposely” means in general, State may not introduce Rule 404(b) evidence where defendant has 630:1-a, II (2007); State v. Glodgett, 144 N.H. 687, 691-93 (2000) (finding that the State was required to prove that the defendant acted purposely. RSA into which he has led the trial court, intentionally or unintentionally.” State v. p. 7 invited error doctrine precludes the defendant from availing himself “of error cannot now argue for a plain error analysis. Thus, the State asserts that the stated she had no objection to the admission of this evidence, the defendant

The State counters that precisely because defense counsel affirmatively

the defendant relies on the plain error rule in support of his argument. interview. Because trial counsel did not object to admission of the evidence, his initial police interview in which he expressed his desire to terminate the In State v. Richard erroneously admitted that portion of the transcript and videotaped recording of

II. Transcript and Videotaped Recording of First Police Interview 7

subjugate[] the interests of justice to the demands of a procedural mechanism.” discretionary remedy from the appellate court’s panoply of options and from undertaking plain error review. To hold otherwise would “remove[] any request a limiting instruction, he cannot complain of error. See recently determined that the invited error doctrine does not preclude a court issue a limiting instruction during Sanborn’s testimony; because he failed to, 160 N.H. ___, ____ (decided October 6, 2010), we We reject the defendant’s contention that the trial court erred in failing to Goodale We next consider the defendant’s argument that the trial court, 144 N.H. 224, 227 (1999). We disagree with this assertion.

801(d)(2)(A). independently admissible as an admission by a party-opponent under Rule consider the State’s contention that the defendant’s prior threat was Ericson, 159 N.H. 379, 389 (2009). In light of the above rulings, we need not

to the trial of this matter, the probative value was significant.” State v. Ayer Rule 404(b). defendant’s intent. “[B]ecause the issue of the defendant’s intent was central its discretion when it admitted evidence of the defendant’s prior threat under As noted above, the prior threat to kill Jennifer was relevant to the 2010). Accordingly, we hold that the trial court did not unsustainably exercise its probative value.” State v. Nightingale, 160 N.H. ____, ____ (decided July 23, conclude that the evidence was so inflammatory as to substantially outweigh defendant threatened to kill Jennifer may have been prejudicial, “we cannot v. Jordan, 148 N.H. 115, 118 (2002). Although Sanborn’s testimony that the testimony was brief and “not so unduly emotional as to inflame a jury.” State prejudice substantially outweighs the testimony’s probative value. Sanborn’s 154 N.H. 500, 513 (2006). Further, we do not find that the danger of unfair

serious dispute.” Id. at 27 p. 8 8-79. balance is whether the evidence is relevant to prove an issue that is actually in 8

1996), Commonwealth v. Habarek, 520 N.E.2d 1303 (Mass. 19 p. 8 88), and United jurisdictions, most notably Commonwealth v. Waite, 665 N.E.2d 982 (Mass. police tactics. In support of this argument, the State cites cases from other interview in order to prevent confusion or alarm over potentially improper proper for the trial court to allow evidence that the defendant terminated the right to silence, there are such concerns. Thus, the State asserts that it was engaged in an extensive interrogation session with police before invoking his The State argues that the instant case is distinguishable from Remick to explain himself. The State argues that where, as here, the defendant has conclude that the police had failed to allow the defendant adequate opportunity cessation in the questioning, or that the jury might, as a result, improperly was no concern in Remick that a jury might be confused by an abrupt Amendment privilege against self-incrimination). Thus, the State argues, there and wouldn’t talk to me,” constituted a violation of the defendant’s Fifth defendant to ask him what happened, and at that point he just closed his eyes police officer’s testimony in the State’s case-in-chief that he “went over to the single question from police. Remick testify, is unconstitutional.” State v. Remick, 149 N.H. at 746-47 (concluding that a court.” Sup. Ct. R. because there the defendant asserted his right to silence prior to answering a arrest silence in the State’s case-in-chief, in which the defendant does not though it was not brought to the attention of the trial court or the supreme right to remain silent. It is well-settled law in this jurisdiction that “use of pre-, “A plain error that affects substantial rights may be considered even trial court erred when it admitted evidence of the defendant’s invocation of his silence is evidence of guilt.” Id Turning to the first prong of the plain error test, we conclude that the. at 1568. prosecution on the accused's silence or instructions by the court that such reason of the Fourteenth Amendment, forbids either comment by the application to the Federal Government, and in its bearing on the States by (1989). In Coppola, the court stated that “the Fifth Amendment, in its direct silence in Coppola v. Powell, 878 F.2d 1562 (1st Cir.), cert denied, 493 U.S. 969 noted in Remick, we find instructive the First Circuit’s analysis of pre-arrest

federal plain error analysis in applying our plain error rule. Id. at 4 p. 8 89-90. integrity or public reputation of judicial proceedings.” Id. We have looked to affect substantial rights; and (4) the error must seriously affect the fairness, error: “(1) there must be an error; (2) the error must be plain; (3) the error must otherwise result.” State v. Russell, 159 N.H. 475, 489 (2009). To find plain limited to those circumstances in which a miscarriage of justice would

court committed plain error. Id. at ___ (quotation omitted). Accordingly, we will consider whether the trial p. 9 9

defendant’s substantial rights and that it does not warrant reversal. Accordingly, we conclude that the evidentiary error did not affect the freshly caulked and a tube of caulking was found in the defendant’s trash. were found in the defendant’s trailer. Bullet holes in the refrigerator had been finger and palm prints were the only prints on the gun. Bullets from the gun The gun used to shoot the victims was discovered in the defendant’s home. His The defendant’s bare footprint was found on a mat covered in Jeremy’s blood. prejudicial, i.e. substantial rights, the defendant must demonstrate that the error was defendant’s trailer. Their blood was found throughout the defendant’s trailer. “[T]o satisfy the burden of demonstrating that an error affected Later that day, the victims were discovered in debris piles behind the killing the victims and asked his neighbor for help in disposing of the bodies. attack Jeremy and drag Jennifer out of the trailer. The defendant admitted victims in the early morning hours before the murders. His neighbor saw him previously threatened to kill her. He admitted that he was home alone with the We next consider whether the error was plain. Russell defendant and Jennifer had a tumultuous relationship and the defendant had remain silent did not affect the outcome of the proceeding. As noted above, the evidence against the defendant, admission of his invocation of his right to 156 N.H. 416, 425 (2007). We conclude that, in light of the overwhelming

, that it affected the outcome of the proceeding.” State v. Lopez,

Waite

third prong of the plain error analysis. Id. we conclude that it did not affect the defendant’s substantial rights under the We need not decide this issue because even assuming that the error was plain,

including his specific request to terminate that interview. This was error. transcript and videotaped recording of the defendant’s initial police interview, prosecution. The State simply introduced into evidence, in its case-in-chief, a the defendant take the stand and subject himself to impeachment by the counsel created confusion at trial that would necessitate clarification. Nor did at 66. Here, however, there is no assertion that either the defendant or his the credibility of a defendant who chose to testify at trial. Williams, 556 F.2d Williams concerns testimony elicited from a police officer in order to impeach because defense counsel created confusion by raising the topic at trial). N.E.2d at 1306 (concluding that evidence of pre-arrest silence was admissible police and thus played a role in creating the confusion at trial); Habarek, 520 silence was admissible because the defendant initiated his confession with Waite, 665 N.E.2d at p. 9 988 (finding that evidence of a defendant’s pre-arrest to clarify that confusion, including evidence that the defendant terminated it. created confusion over a police interview, the State is entitled to offer evidence

and Habarek stand for the proposition that where the defense has

We find these cases distinguishable. States v. Williams, 556 F.2d 65 (D.C. Cir.), cert. denied, 431 U.S. p. 9 972 (1977). homicide, including his attempts to conceal the killings as well as p. 10 The state correctly asserts that a defendant’s conduct after a

worth for an unsustainable exercise of discretion. Sawtell by its prejudicial effect. The trial court explained: We review the trial court’s determination in balancing prejudice and probative property, the probative value of the evidence was not substantially outweighed defendant lying to the police about what they would find on a search of his turned to the murders, and because the interview appeared to reveal the

presentation of cumulative evidence. because the defendant’s demeanor visibly changed when the conversation In ruling on the motion to exclude, the trial court determined that

considerations of undue delay, waste of time, or needless

confusion of the issues, or misleading the jury, or by is substantially outweighed by the danger of unfair prejudice, probative value. We disagree. concludes that the prejudicial effect of the evidence substantially outweighs its evidence, and amounts to little more than “casual conversation.” Thus, he silent. He further argues that most of the interview contains no inculpatory which could have led the jury to infer that he asserted his right to remain The defendant contends that the redacted interview ended abruptly,

Although relevant, evidence may be excluded if its probative value

misled or confused the jury. We address each argument in turn. needlessly cumulative of other evidence presented at trial; and (3) it could have (1) the evidence was minimally probative and highly prejudicial; (2) it was The defendant posits three arguments based on Rule 403 considerations:

Rule 403 states:

case. State v. Santiago, 159 N.H. 753, 757 (2010). must show that it was clearly untenable or unreasonable to the prejudice of his demonstrate that the trial court’s decision is not sustainable, the defendant Hampshire Rule of Evidence 403. We disagree., 152 N.H. at 181. To would be redacted. The defendant argues that this was error under New that the portion in which the defendant asserted his Fifth Amendment privilege its entirety. The trial court ruled it would admit evidence of the interview, but police interview. Prior to trial, the defendant moved to exclude the interview in erroneously admitted the transcript and videotaped recording of his second Finally, we consider the defendant’s argument that the trial court

III. Transcript and Videotaped Recording of Second Police Interview on the specific details of that interview. Because the defendant does not argue p. 11 interview was highly probative of the defendant’s consciousness of guilt based

consciousness of guilt. We disagree. We have concluded that the second interview were sufficient to evidence his demeanor as it pertained to a testimony and the admission of the videotaped recording of the first police of other evidence presented at trial. Specifically, he argues that police

probative. See conclude that the trial court did not err in finding the second interview highly statement to be dishonest and therefore probative of his guilt. Accordingly, we bullet holes and the victims’ bodies were discovered, a jury could find this presence at his property on the day of the interview, where visible blood stains, you said you were going to tell me.” In light of the defendant’s admitted think we found?” The defendant replied, “I don’t know, but that’s just what searched his property. The police then asked the defendant, “What do you second interview, the police informed the defendant that a forensic team had blood stains throughout the defendant’s home. During the course of the after the murders and found the victims’ bodies, as well as bullet holes and The defendant also argues that this evidence was needlessly cumulative As noted above, a forensic team searched the defendant’s property soon

would cause the jury to decide the case on improper grounds.” We agree. do not rise to the level of unfair prejudice because they contain nothing that The trial court concluded that, “[w]hile the statements may be prejudicial, they

evidence. prejudice did not substantially outweigh the highly probative value of the incrimination, we find no error in the trial court’s determination that the including speculation that the defendant invoked his privilege against selfspeculation on the part of the jury as to why the interview ended abruptly, are highly probative.

defendant’s case. Although there may have been some potential for admission of the redacted interview was minimally prejudicial to the credibility and consciousness of guilt. Therefore, the statements As to prejudice, we conclude the trial court did not err in concluding that during this interview. This purported action relates directly to

supporting the state’s claim that the defendant lied to police infer consciousness of guilt from a defendant’s false exculpatory statement.”). link in the state’s case. The jury is also entitled to hear evidence through his statements and demeanor with police is an important State v. Evans, 150 N.H. 416, 420 (2003) (“It is reasonable to of first-degree murder. As such, insight into the defendant’s mind

degree murder. . . . The state must establish intent as an element

to consider in determining whether the defendant committed first any statements he makes, are facts that the jury will be instructed p. 12 12

DALIANIS, DUGGAN and HICKS, JJ., concurred.

argument, the defendant cites State v. Philbrook of his statements was unduly confusing to the jury. In support of this The defendant’s final argument regarding this evidence is that admission

N.H. at 420. the jury was entitled to consider as to consciousness of guilt. See Evans, 150 guilty. Here, the evidence consists of the defendant’s own statements, which attorney’s statements, that the defendant’s own attorney believed him to be unsustainable exercise of discretion because the jury might infer, based on the speaking with his attorney. We held that admission of the statement was an Philbrook concerned admission of the defendant’s statement that he fled after is error to admit it under Rule 403. We find Philbrook to be inapplicable here. the proposition that when evidence of flight creates an improper impression, it

the evidence from the first police interview. do not conclude that evidence of the second police interview is cumulative of that a similar conversation occurred during his first interview with police, we