2009-892 The State of New Hampshire v. Todd Peters

Michael A. Delaney

No. 2009-892

Hillsborough-northern judicial district

(Abramson two counts of first-degree murder following a jury trial in Superior Court DALIANIS, C.J. The defendant, Todd Peters, appeals his convictions on

Christopher M. Johnson

reasonable doubt. State has met its burden of proving that these errors were harmless beyond a because we conclude that even if the trial court erred in these respects, the of the records for Cellco Partnership d/b/a Verizon Wireless. We affirm evidence of alternative perpetrators and to exclude the testimony of the keeper Trial Court (O’Neill, J.) erred when it denied his motions in limine to introduce

, J.). See RSA 630:1-a, I(a) (2007). On appeal, he argues that the

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 apartment on the morning of the murders. p. 2 that she was “sure” that the photograph was of the man whom she saw in her the defendant in a photo array containing six photographs, telling the police walking out of the living room, carrying a bat. Riley’s daughter later identified saw a white man in his mid-thirties, whom she recognized as the defendant, up to Riley’s screams. She got out of bed and, when she reached the kitchen, the victims were asleep on their sofa. Shortly thereafter, Riley’s daughter woke angry.” Armed with a baseball bat, he went to the victims’ apartment where When the defendant emerged from his son’s room, he appeared “visibly

with the victims and Tardiff. was sleeping over, confirmed the defendant’s son’s account of the encounters but left when Tardiff came outside with a metal pole, screaming. A friend, who son and his friends went inside the victims’ and Tardiff’s apartment building the defendant’s son’s friends, leaving a red mark on his face. The defendant’s that day, as Tardiff and Riley drove by, Tardiff threw a water bottle at one of and that King threw a rock, which hit him in the leg. He also said that earlier neighbor. The defendant’s son told him that the victims were threatening him in the neighborhood with the victims and with Jennifer Tardiff, the victims’ His son explained and then told the defendant about problems he was having to his son’s room, woke him up, and asked him why he quit the football team. to Annemarie’s Manchester apartment. When they arrived, the defendant went returning to Weare, the defendant, along with Dwayne, drove in Delane’s SUV defendant returned, approximately two or three hours later. Soon after defendant from the apartment. Dwayne remained with Delane until the Delane’s brother, Dwayne, arrived just as the police were escorting the

and the police drove the defendant to Concord. occurred, they separated the two; Delane remained in the couple’s apartment, the police were called. Although the police determined that no crime had Delane Demers, with whom he lived in Weare. Their argument escalated, and alcohol that he was “probably drunk” and had been arguing with his girlfriend, On the night before the murders, the defendant had been drinking enough The victims were murdered in the early morning of October 11, 2008.

football league in which the son played and for which she was a cheerleader. then twelve-year-old daughter knew the defendant and his son from a local defendant’s ex-wife and the mother of his then eleven-year-old son. Riley’s in Manchester, approximately one block from Annemarie Peters, the Riley and Timothy King, who lived together with their children on Valley Street The jury could have found the following facts. The victims were Edith

A. Murders

I. Background vehicle parked, one of the occupants exited for a short period of time. When p. 3 occupants driving into the parking lot at approximately 5:13 a.m. After the confirmed Dwayne’s account. The video shows a four-door SUV with two The videotape from a surveillance camera in the Walgreen parking lot

defendant’s Weare apartment. offered to drive, and the two switched places; Dwayne drove back to the that he could not drive anymore and “just . . . needed to sit there.” Dwayne when he returned, the defendant was in the driver’s seat. The defendant said Store in Concord. The defendant parked the vehicle, Dwayne exited again, and When the defendant returned to the SUV, he drove to a Walgreen Drug

been removed. the vehicle.” When Dwayne returned to the SUV, he noticed that the bat had Dwayne exited the vehicle while the defendant “took off walking to the rear of turned onto a paved road near Drew Pond and parked in front of the pond. The defendant then drove the SUV past his Weare apartment again,

had been stolen, Delane called the police. apartment he shared with Delane. Seeing her SUV pass by and thinking that it police vehicles had arrived. The defendant next drove to Weare, past the but soon drove back past the victims’ apartment where rescue personnel and The defendant first drove to an ex-girlfriend’s apartment in Manchester,

grip on the steering wheel,” the defendant then drove off. in the back seat and saw a baseball bat on the seat. With “a white-knuckled “[T]here was a guy and a girl, and I think one of them’s dead.” Dwayne looked started the SUV and said, “I think I just killed someone.” He explained, the defendant had parked in front of Annemarie’s apartment. The defendant Dwayne “to run and get the F out of there.” They ran to Delane’s SUV, which way toward a nearby alley, the defendant came running out of it and told Annemarie’s apartment, he went outside to look for him. As Dwayne made his

Meanwhile, when Dwayne realized that the defendant had left

the defendant, whom she knew from cheerleading practice. appearance and then said that she was “seventy-five percent sure” that he was kitchen,” holding a baseball bat. She gave a detailed description of the man’s bedroom, and saw the defendant standing “where the living room meets the screaming very loudly. She immediately jumped out of bed, walked out of her that she had been asleep and had been awakened by the sound of her mother When they interviewed her at the scene, Riley’s daughter told the police

approximately four o’clock in the morning. room and called 911. The police arrived about one minute later, at still holding the bat. Riley’s daughter found both bloodied victims in the living The defendant walked past Riley’s daughter and exited the apartment, spoke to Dwayne, who told them about the bat. Although the police were p. 4 On October 11, as part of their investigation of the murders, the police

place. When the defendant spoke with his father, he denied this conversation took

[Son]: I love you too.

[Defendant]: Alright I love you.

[Son]: I know that. [Defendant]: No you didn’t. You didn’t see me buddy, ok?

[Son]: That’s when I, I woke up -- when you left.

[Defendant]: No you didn’t.

[Son]: I said I seen you leave.

[Defendant]: Huh?

[Son]: Oh-I seen you leave.

[Defendant]: I wasn’t even there that night.

[Son]: I know.

[Defendant]: All right? I didn’t do this.

[Son]: Yep.

okay? [Defendant]: Ok. I am sorry I am here buddy but I didn’t do this,

as follows: the murders occurred. The defendant’s conversation with his son was, in part, and father. The defendant told his son that he was not in Manchester when in Manchester during those hours. A couple of weeks later, he called his son with him during the early morning hours of October 11, and that he was never Dwayne had picked him up in Concord on the evening of October 10 and was After his arrest, the defendant telephoned Delane and told her that

Eventually, the defendant returned to the apartment and was arrested. to speak with him. The defendant sent a text message in reply, “Don’t BS me.” defendant to tell him that he was not under arrest and that the police wanted out.” Delane showed the message to the police, and, at their request, called the message from the defendant saying, “I will be at the dam until [the] shit clears defendant, but could not find him. As they searched, Delane received a text asked to enter the apartment. Once inside, the police searched for the about her stolen SUV. They asked Delane to speak to them outside, and then police arrived at the defendant’s apartment, responding to Delane’s earlier call home, and the defendant walked into the apartment. A few minutes later, the exchanged words about him taking her SUV, at which point Dwayne left for Dwayne saw his sister, Delane, outside on the balcony. She and the defendant When Dwayne and the defendant arrived at the defendant’s apartment,

parking lot. this person returned, the two occupants switched places, and the SUV left the p. 5 The defendant also moved in

evidence to impeach. perpetrators and, thus, did not give the defense an opportunity to use the State did not call any of the people whom the defendant alleged were possible motives to lie. The evidence was not admitted at trial, however, because the

some of the evidence to cross-examine witnesses about their biases and B. Motions in Limine other people had a motive to kill the victims, but that the defendant could use The trial court ruled that the evidence was inadmissible to show that

indicated that it intended to call this witness to testify about “call detail keeper of the records for Cellco Partnership d/b/a Verizon Wireless. The State

by a baseball bat. medical examiners testified that the injuries were consistent with being struck 1996). enough to tear the skin and lift off a flap off the surface of the skull.” The Defendant to Suggest That Someone Else Is Guilty, 63 Tenn. L. Rev. 917 (1995autopsy of Riley’s body testified that the force used to cause her injuries “was Made It Look So Easy !”: The Admissibility Of Evidence Offered By A Criminal cause the extent of his injuries. The medical examiner who conducted the perpetrators to the victims’ murders. See generally McCord, “But Perry Mason autopsy of King’s body testified that it “would [have] take[n] a lot of force” to inadmissible because it did not directly connect any of the other alleged was provoked to kill them.” The State contended that the evidence was skull and injuries to the brain. The medical examiner who conducted the were homicides by blunt injuries to the head that resulted in fractures of the Before trial, the defendant moved in persons supports the defense because it makes it likely that another person Autopsies performed on the victims’ bodies confirmed that their deaths engaged in a pattern of violent, threatening and illegal behavior towards other yours, wait till tonight.” The defendant argued: “Evidence that the victims murders, Annemarie tried to run Riley off the road and later said, “You’ll get that occurred closer in time to the murders, such as that on the day before the pedophile. The defendant also sought to introduce evidence about incidents he fought with “Paul Frederick,” spreading a rumor that Frederick was a Archibault over $5.00,” and that approximately one month before the murders, approximately two months before the murders, King “was in a fight with Victor neighbors. For instance, the defendant sought to introduce evidence that to aggressive, hostile or illegal behavior involving the victims and various

officer contacted the police, who retrieved it. game conservation officer saw it floating in the pond four days later. The unable to find the bat in Drew Pond when they first looked for it, a fish and p. 6 II. Harmless Error

This appeal followed. The jury convicted the defendant on two first-degree murder charges. Assuming, arguendo even if the trial court erred in these respects, any error was harmless. records and testimony of the keeper of those records. The State counters that killed the victims and when it allowed the State to introduce the call detail presenting evidence that would have substantiated his claim that someone else The defendant argues that the trial court erred when it barred him from 6

these errors were harmless beyond a reasonable doubt. record, we conclude that the State has satisfied its burden of proving that perpetrator evidence and admitting the cell phone evidence, after reviewing the

required and that a Daubert 803(6). The trial court further ruled that expert witness testimony was not the business records exception set forth in New Hampshire Rule of Evidence The trial court ruled that the cell phone records were admissible under

and admissible only through expert witness testimony. See 650 Elm Street in Manchester. The defendant argued that the call detail records were scientific in nature 3:35 a.m. on October 11 and that the call connected through a tower located at testified that an outgoing call was placed from the defendant’s cell phone at but could offer lay testimony about the cell phone detail records. See records were received into evidence, and the keeper of the cell phone records The State countered that the keeper of the records need not be an expert, hearing was unnecessary. At trial, the call detail

abrogated on other grounds by State v. Thorpe, 783 N.W.2d 749 (Neb. 2010). records themselves. See State v. Robinson, 724 N.W.2d 35, 68-69 (Neb. 2006), contended that the Daubert standard did not apply to the cell phone detail State, 980 So. 2d 1126, 1130-32 (Fla. Dist. Ct. App. 2008). The State further

(adopting Daubert standard). (1993); Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 614 (2002) reliability. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 technology upon which they are based does not meet the Daubert standard of also argued that the records should be excluded as unreliable because the 991 A.2d 172, 198 (Md. Ct. Spec. App.), cert. denied, 415 Md. 43 (2010). He

from the homicide scene. tower located at 650 Elm Street in Manchester, approximately one-half mile before the murders, and that the call was transmitted by way of a cell phone that the defendant placed a call at 3:35 a.m., approximately twenty minutes Dwayne’s cell phones. The State contended that the call detail records showed records” relating to phone calls allegedly made from the defendant’s and were committed, Dwyane saw an aluminum bat in the backseat of Delane’s p. 7 apartment holding a silver and black baseball bat. Shortly after the murders to the murder weapon. Riley’s daughter saw the defendant in the victims’ Further, the alternative evidence included evidence linking the defendant

someone. . . . [T]here was a guy and a girl, and I think one of them’s dead.” the F out of here.” The defendant then confessed: “I think I just killed him running from the apartment’s direction and heard him yell, “run and get Shortly after the defendant was seen in the victims’ apartment, Dwayne saw

The alternative evidence also included the defendant’s confession.

Annemarie’s apartment. left his son’s room looking “agitated,” “upset,” and “visibly angry.” He then left hit his friend in the face with a water bottle. Upon hearing this, the defendant defendant’s son told him that King had pelted him with a rock and Tardiff had a motive for killing the victims. Shortly before the murders took place, the The alternative evidence also included testimony that the defendant had

practice. She identified him again in a photographic array and in court. immediately recognized the defendant because she knew him from cheerleading walked out of the living room where the victims lay covered in blood. She on the night of the murders, she saw the defendant, holding a bat while he immediately after the murders were committed. Riley’s daughter testified that hundred percent” sure that the defendant was in the victims’ apartment It also included the testimony of Riley’s daughter that she was “a

the victims’ deaths. See the State had to prove, beyond a reasonable doubt, that he purposely caused For the jury to convict the defendant of the first-degree murder charges,

murders, near the time of the murders. that the defendant was in Manchester, approximately one block from the defendant’s son and his friend, and another person at Annemarie’s apartment) of the defendant’s guilt included the testimony of four witnesses (Dwayne, the

excluded evidence itself. See id. at 416. presented at trial as well as the character of the erroneously admitted or at 416-17. In making this determination, we consider the alternative evidence relation to the strength of the State’s evidence of guilt. See Gordon, 161 N.H. improperly admitted or excluded is merely cumulative or inconsequential in of an overwhelming nature, quantity, or weight, and if the evidence that was beyond a reasonable doubt if the alternative evidence of the defendant’s guilt is N.H. 410, 416-17 (2011) (admitting evidence). An error may be harmless and exclusion of evidence. See id. (excluding evidence); State v. Gordon, 161 N.H. 115, 118 (2001). This standard applies to both the erroneous admission reasonable doubt that the error did not affect the verdict. State v. Etienne, 146 To establish that an error was harmless, the State must prove beyond a his motion in p. 8 the murders, the alternative perpetrator evidence the defendant proferred in Affirmed compared to the evidence of the defendant’s motive and opportunity to commit was at or near the crime scene around the time of the murders. In addition, Even if it had not been admitted, there was ample evidence that the defendant

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred. 8

Against this evidence, the cell phone evidence was merely cumulative.

doubt. has met its burden of proving that any error was harmless beyond a reasonable police at a dam near his apartment. See committed. Based upon our review of the record, we conclude that the State where the defendant was eventually arrested, after having hidden from the occurred. Another was in her apartment with others when the murders were and Dwayne drove to Manchester, Weare, Concord, and then back to Weare, of the alleged perpetrators was elsewhere in Manchester when the murders defendant was conscious of his guilt. For several hours after the murders, he no such evidence about any of the alleged alternative perpetrators. In fact, one killing at least one person, and was seen with the murder weapon, there was defendant was at the crime scene around the time of the murders, confessed to

limine was inconsequential. Whereas there was evidence that the

evidence of consciousness of guilt). 543 S.E.2d 5, 12 (Ga. 2001) (defendant’s attempt to influence witness is Finally, the alternative evidence included evidence showing that the murders: “No you didn’t. You didn’t see me buddy, ok?” See Nguyen v. State, response to the son’s statement that he had seen the defendant the night of the exculpatory statements later discovered to be false). He told his son, in Evans, 150 N.H. 416, 420 (2003) (consciousness of guilt may be evidenced by that he was not in Manchester on the night of the murders. See State v. arrested, the defendant telephoned his girlfriend and his son, insisting to both (2005) (consciousness of guilt may be evidenced by flight). After he was

was discovered floating in the pond approximately four days later. to the vehicle, he noticed that the bat was no longer there. An aluminum bat defendant “took off walking to the rear of the vehicle.” When Dwayne returned SUV. When they arrived at Drew Pond, Dwayne exited the vehicle while the