011-230, State of New Hampshire v. Dianna Saunders

Michael A. Delaney

where a case involves both direct and circumstantial evidence, the evidence she argues that the trial court erred when it: (1) instructed the jury that,

misapplication of property, RSA 637:10 (2007); RSA 637:11, I(a). On appeal,

No. 2011-230 Strafford

unauthorized taking, RSA 637:3 (2007); RSA 637:11, I(a) (2007), and theft by conspiracy to commit murder, RSA 629:3 (2007); RSA 630:1-a, I(a), theft by to first degree murder, RSA 626:8, III(a) (2007); RSA 630:1-a, I(a) (2007), , of Boston, Massachusetts, on the brief and orally,, J.), the

defendant, Dianna Saunders, appeals her convictions for being an accomplice LYNN, J. Following a jury trial in Superior Court (Wageling

defendant. and Jeffrey Karp ___________________________, of Newburyport, Massachusetts, on the brief, for the Robert L. Sheketoff THE SUPREME COURT OF NEW HAMPSHIRE

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

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the plan to kill King went through, she would go to Texas for only a few months

Neither Derek nor Roy wanted her to move. The defendant told Derek that, if

At that time, the defendant and King were planning to move to Texas.

still had the money.

because they were having problems. The defendant reminded Derek that Roy

defendant, who told him that she needed his help and wanted King gone his friend, Mazzone, who owned three guns. Derek also spoke with the $8,000 to have King killed because King was abusive. Derek then spoke with

Around January p. 2 2008, Roy told Derek that the defendant had given him

defendant’s trial. He testified to the following. being an accomplice to second-degree murder and agreed to testify at the

defendant in a conspiracy to murder King. He subsequently pleaded guilty to

interviewed Derek. Derek implicated his father as well as Mazzone and the

On August 31, Sergeant William Breault of the Dover Police Department

Mazzone owned a green Jeep Grand Cherokee with Massachusetts plates.

Point Road around 6:30 p.m. on August p. 2 29. Police later determined that

third neighbor reported seeing a green Jeep Cherokee parked off Old Dover and heading down Old Dover Point Road around 6:30 p.m. on August p. 2 29. A Massachusetts license plates parked off Old Dover Point Road on August 28

Another neighbor saw an unfamiliar green Jeep Grand Cherokee with

husband, Roy Saunders (Roy). Scott Mazzone and Derek Saunders (Derek), the son of the defendant’s ex-

walking through King’s yard and into the woods. He recognized the men as

house. That evening, between 5:30 and 7:30 p.m., McLaskey saw two men

5:30 p.m. King borrowed McLaskey’s garden hose and then went back to his property, saw King working in his yard on the afternoon of August p. 2 29. Around Dale McLaskey, whose backyard abutted the defendant’s and King’s

shallow cuts on his body and a deep cut on his neck. defendant shared. King had died of a gunshot to the head. He also had found the defendant’s boyfriend, David King, dead in the home that he and the

in the basement of 81 Old Dover Point Road in Dover. Dispatched paramedics

Dover Emergency Dispatch and reported an unconscious male, not breathing,

On August p. 2 29, 2008, a woman who identified herself as “Dianna” called

to search the home. We affirm. search of her home; and (3) did not address the constitutionality of the warrant guilt; ( p. 2 2) found that the defendant consented to a general rather than a limited does not have to exclude all rational conclusions other than the defendant’s would call Derek and tell him when to come to the house. p. 3 told Derek that she would call Roy and let him know the time, and that Roy

the next day, when she would absent herself from the house. The defendant

defendant confirmed that she still wanted King killed and suggested five o’clock Derek and Mazzone drove to her house in Mazzone’s green Jeep Cherokee. The with the defendant to make sure that she still wanted to have King killed.

Nine days later, on the evening of August 28, Derek and Mazzone met

the defendant to use only $220,000 of the funds in the account. went to the police on August 19, 2008, and explained that he had authorized

been withdrawn six or seven weeks after they had been deposited. Meredith

Meredith attempted to withdraw money and discovered that the funds had

defendant were the only named signatories. Two or three months later, wired over $440,000 into a joint checking account on which Meredith and the The bank increased Meredith’s reverse mortgage and, in October 2007,

Meredith – when the property sold in August 2008. The buyer would reimburse her for the renovations – and she would reimburse the money to renovate a property in Dover for which she had a ready buyer.

reverse mortgage and lend her the money. She told Meredith that she needed

Neddick property. Eventually, the defendant asked Meredith to increase the defendant and King socially, and King did maintenance work on the Cape Maine. After his wife died in the summer of 2006, Meredith started seeing the

Meredith took out a reverse mortgage on a house he owned in Cape Neddick,

the defendant helped him sell his property in Concord. Around the same time,

A doctor named William Meredith testified that in the summer of 2006,

the defendant to “the authorities.”

well as to buy a house in Texas. King told England that he was going to report

was using the money for living expenses and to pay her mortgage in Dover as defendant had talked a doctor into taking out a home equity loan, and that she the same time, in late July or early August 2008, King told her that the

was alone in the house and that “everything was all set to go.” On the way to

Rose England, the mother of King’s three children, testified that around

On August 29, 2008, Derek spoke with Roy, who confirmed that King

muffle the sound of the gunshot. of Mazzone’s guns, they would shoot King in the basement of his house so as to

before putting the plan into action, Derek and Mazzone decided that, using one

Eventually, Roy received the money back from the defendant. About a month it was going to be done.” Discussions about the plan continued, however. money to the defendant, and told Derek that he and the defendant “didn’t think

discussed the plan no more than six times. At some point, Roy returned the and then return to New Hampshire. According to Derek, he and the defendant crime charged beyond a reasonable doubt.” State v. Parker p. 4 Constitutions. “Due process requires that the State prove each element of the

court violated her rights to due process under the State and Federal The defendant first argues that the jury instructions given by the trial

property. This appeal followed.

conspiracy, theft by unauthorized taking, and theft by misapplication of charges on which she was indicted: accomplice to first degree murder, she was arrested in July 2009. Following trial, she was convicted of the four

In September 2008, the defendant moved to Texas, where she lived until

warrant to search the defendant’s home. agreed verbally and in writing. Dover police also obtained and executed a

asked for her permission to search the home and vehicles. The defendant

Detective Harrington explained the investigation process to the defendant and Shortly thereafter, Dover Police Detective Janine Harrington arrived.

passenger seat and was not handcuffed.

basement. Gebers escorted her to his police cruiser. She sat in the front

Gebers that she had gone to the store, come home, and found King in the found the defendant, with whom he was acquainted. The defendant told arrive, followed by Dover Police Officer Daniel Gebers. Inside the basement, he

The defendant called 911 around 7:12 p.m. Paramedics were the first to

Mazzone left New Hampshire. Jeep, Derek called the defendant and told her not to return home until he and

way, Derek noticed a neighbor sitting in a lawn chair. After returning to the

226, 231-33 (1983). and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. the neck. Derek and Mazzone left the house and headed to the woods. On the charged.”). We first address the defendant’s claim under the State Constitution went downstairs to the basement. Mazzone shot King and then stabbed him in doubt of every fact necessary to constitute the crime with which he is Point Road and entered the house through an open rear sliding door. They protects the accused against conviction except upon proof beyond a reasonable (1997); In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause

When they arrived in Dover, Derek and Mazzone parked off Old Dover

food. defendant said that she and a friend were renting a movie and shopping for

that she was out of the house and that “everything was still a go.” The the defendant’s and King’s house, Derek called the defendant to make sure p. 5 5

offense and reverse only if the instructions did not fairly cover the

In a case where both direct and circumstantial evidence is

instructions adequately and accurately explain each element of the

not The defendant argues that by instructing the jury that the evidence does

State v. McDonald jury, in clear and intelligible language, the rules of law applicable to the case.” “[T]he purpose of the trial court’s charge is to state and explain to the

reasonable doubt.” lowered the State’s burden of proof to something less than “beyond a the evidence in the case. We determine whether the jury reasonable juror would have understood them, and in light of all by interpreting the disputed instructions in their entirety, as a

facts found as a result of reasonable inferences. evidence, I believe that my instruction is appropriate in New Hampshire.” you may draw reasonable inferences [from] facts proved and from Whether you are considering direct or circumstantial evidence,

conclusion that she was not guilty. This, the defendant argues, impermissibly

When reviewing jury instructions, we evaluate allegations of error

, 163 N.H. 11 p. 5 5, 126 (2011) (quotation omitted). case lends itself . . . to a finding that there was direct and circumstantial

provided is based on specific case law in New Hampshire. . . . [B]ecause this above, the trial judge stated: “The circumstantial evidence instruction that I

effect instructed the jurors to convict her even if they still harbored a rational have to exclude all rational conclusions other than guilt, the trial court in defendant is guilty of [sic facts and circumstances which tend to show whether the

of a crime beyond a reasonable doubt. When the defendant objected to the portion of the instruction emphasized equally acceptable and may be sufficient to establish the elements direct or circumstantial evidence. Both types of evidence are rational conclusions other than the defendant’s guilt. offered for a conviction, the evidence does not have to exclude all

as an eyewitness. Circumstantial evidence is proof of a chain of

There is no distinction between the weight to be given either

to have personal knowledge of facts about the crime charged, such evidence. Direct evidence is the testimony of a person who claims There are two types of evidence, direct and circumstantial

The trial court instructed the jury as follows: p. 6 6

credibility issues differently. On the other hand, where solely circumstantial

support a rational conclusion other than guilt if the jury had resolved

fact could find guilt beyond a reasonable doubt, even if the evidence would objectively review the record to determine whether any including the jury’s credibility determinations, is such that a rational trier of circumstantial evidence, a sufficiency challenge must fail if the evidence, When considering a challenge to the sufficiency of the evidence, “we

State v. Graham The challenged instruction was apparently taken from our decisions in credibility determinations. That is, where the proof involves both direct and designed to elucidate the State’s burden of proof in a criminal trial.

except guilt.” Graham

task assigned to the jury. As explained below, in this case no such fit existed. solely on circumstantial evidence is because of the jury’s role in making statements were made and whether that same context appropriately “fits” the evidence claims, it is completely out of place as an instruction to the jury instructions; rather, consideration must be given to the context in which the

circumstantial evidence, the evidence need not exclude all rational conclusions in the light most favorable to the State.” Spinale doubt . . . considering all the evidence and all reasonable inferences therefrom

exclude all rational conclusions other than guilt in a case that does not rely omitted); Graham the law in the context of our standard of review for addressing sufficiency of the, 142 N.H. at 3 p. 6 60. The reason a sufficiency analysis need not contained within our decisions cannot simply be incorporated into jury demonstrating that the evidence was insufficient to prove guilt.” Id. (quotation and citation omitted). It is “[t]he defendant [who] bears the burden of

could have found the essential elements of the crime beyond a reasonable

State v. Davidson

at 4 p. 6 64 (quotation omitted). While this statement is an accurate recitation of this regard serves to demonstrate an important point: statements of the law, 142 N.H. at 360 (quotation omitted); Spinale, 156 N.H. rational conclusions other than the defendant’s guilt.” The trial court’s error in evidence is offered for a conviction, the evidence does not have to exclude all (2007). In both cases, in addressing challenges to the sufficiency of the

, 142 N.H. 357 (1997), and State v. Spinale, 15 p. 6 6 N.H. 456

exercise of discretion. trial court’s decisions on these matters for an unsustainable within the sound discretion of the trial court, and we review the

instructed the jury that, “[i]n a case where both direct and circumstantial We conclude that the trial court erred as a matter of law when it

, 1 p. 6 63 N.H. 462, 472 (2012) (quotations and citations omitted).

necessary, and the scope and wording of jury instructions, are issues of law in the case. Whether a particular jury instruction is p. 7 7

conclusions based on probabilities of low degree. trier of facts may leap logical gaps in the proof offered and draw unwarranted element of the charged offense beyond a reasonable doubt. State v. decrease a danger legitimately associated with circumstantial evidence – that the drawn from evidence equivocal at best. Careful review of such cases is needed to McLeod, 326 N.E.2d 905, 906 (Mass. 19 p. 7 75). Webster, 59 Mass. 295, 312 (5 Cush.) (1850), overruled on other grounds by Commonwealth v. Ke nnedy, 391 N.E.2d at 290-291 (citations and quotation omitted); see also Commonwealth v.

are based not on the evidence presented, but rather on unsupported assumptions supervision is necessary to ensure that the jury does not make inferences which tends to be more complex, and is thus more subject to error. Hence, close judicial In a circumstantial evidence case, in contradistinction, the reasoning process innocent and the requirement that the State bear the burden of proving each although no less difficult task of determining which witnesses are telling the truth. depend on inference, and is more likely to be faced with the relatively less complex, based on direct evidence. However, in such a case, the jury has less need to suggest, of course, that a jury need not carefully analyze the evidence in a case complex of interrelated information which is presented in evidence. This is not to be drawn not merely from each separate piece of evidence, but from the whole and close analysis of the evidence and determine what inferences can and should proven, if at all, by circumstantial evidence only, the jury must attempt a careful which the jury is superbly suited. Where, however, the defendant’s guilt is to be normally concerned primarily with assessing the credibility of witnesses, a role for process than do cases based on direct evidence. In the latter situation, the jury is often require the jury to undertake a more complex and problematical reasoning [C]ases involving circumstantial evidence must be closely reviewed because they criminal trial juries: be instructed in a criminal case include the presumption that the defendant is discussed the entanglements in logic and reason that circumstantial evidence may create for evidence sufficiently supported the defendant’s conviction and, in deciding that it did, the court is wholly inapposite to the burden of proof that the jury must actually apply one of guilt. In People v. Kennedy, 391 N.E.2d 288 (N.Y. 19 p. 7 79), the court considered whether the based solely on circumstantial evidence comes down to whether the sole rational conclusion is Our deferential standard of review, which assumes such determinations are part and parcel of direct evidence. By contrast, a sufficiency challenge involved, we must consider, as part of the evidence, the jury’s credibility determinations because 1 In a challenge to the sufficiency of evidence, where both direct and circumstantial evidence are

Wentworth, 118 N.H. 832, 838-39 (19 p. 7 78). Injecting the challenged language conclusion. circumstances is of sufficient strength that guilt is the sole rational

reaching a verdict. The pertinent legal propositions as to which the jury must

factual findings and credibility determinations necessary to support its verdict,

McCue, 134 N.H. 94, 104 (1991). conviction if it excludes all other rational conclusions.”); accord State v. this State that circumstantial evidence may be sufficient to support a

State v. Bird, 122 N.H. 10, 1 p. 7 7 (1982) (“It is well established in 1 See

credibility resolutions in favor of the State, the inferential chain of evidence is at issue, the critical question is whether, even assuming all charge.” Cupp v. Naughten 8

p. 8 less than “beyond a reasonable doubt.” Victor challenged instruction as allowing it to convict the defendant based on proof times. There is no reasonable likelihood that the jury understood the State v. Hall Constitution in the context of a due process challenge to jury instructions. judged in artificial isolation, but must be viewed in the context of the overall be sufficient to exclude all rational conclusions other than guilt. circumstantial, trial courts should continue to instruct the jury that circumstantial evidence must 2 Of course, in a case where the evidence regarding one or more elements of a crime is solely resulting conviction violates due process.” Cupp

resulting conviction violates due process.” Cupp than guilt. under the Federal Constitution as we do under the State Constitution. Id. the State’s burden of proof beyond a reasonable doubt approximately twenty, 148 N.H. 394, 398 (2002). Accordingly, we reach the same result

Constitution is at least as protective of the defendant’s rights as the Federal State’s burden of proof that we announced in Wentworth each element of the crime charged beyond a reasonable doubt, the State the well-established proposition that a single instruction to a jury may not be The trial court read verbatim to the jury the model instruction on the instruction on the validity of respondent’s conviction, we accept at the outset As both the State and Federal Constitutions require the State to prove violation of her right to due process. “In determining the effect of this

that “the ailing instruction by itself [did not] so infect[] the entire trial that the

Over the course of the proceedings, the jury heard the correct instruction on

to meet the Winship standard.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). jury understood the instructions to allow conviction based on proof insufficient risks confusing the jury, we disagree that this risk automatically amounts to a constitutional question . . . is whether there is a reasonable likelihood that the Although we agree with the defendant that the challenged instruction

court failed to isolate and cure a particular ailing instruction, but rather evidence, trial courts should not include in instructions to the jury language Belkner, 117 N.H. 462, 471 (1977). “[T]he question is not whether the trial defendant is innocent. Therefore, in a criminal case that includes direct, 414 U.S. 141, 146-47 (1973), adopted in State v. notwithstanding the jury’s determination that there is a rational conclusion the

2

the State’s burden because it suggests that a conviction may be warranted into an instruction on the burden of proof risks confusing the jury and diluting scene.

p. 9 her home rather than a search limited to photographing and documenting the The trial court found that the defendant consented to a general search of

State v. Pinder 9

property documented as a crime scene rather than searched. We disagree. extend or how the police reasonably construed his consent.

purse,” as evidence admitted at trial. of her exchange with Detective Harrington is that she consented to having her may be stated as how far the defendant intended the consent to contents, the contents of the plastic bin in the living room, and the contents of the defendant’s suppressed is found in footnote 13 of her brief, wherein she lists “the cordless phone, desk drawer The defendant argues that the only objectively reasonable interpretation 3 The only specification of the fruits of the search which the defendant claims should have been

been given by the consent. The question of the scope of consent warrantless search, they have no more authority than they have (2006). When the police are relying upon consent as a basis for their the defendant had consented to it.” State v. Livingston, 153 N.H. 399, 408 was objectively reasonable for the officers conducting the search to believe that granted, we ask whether under the circumstances surrounding the search, it to . . . search the [property].” State v. Coyman “To determine whether a search has exceeded the scope of the permission

, 126 N.H. 220, 224 (1985) (quotations and citations omitted).

Hampshire Constitution, citing federal cases only to aid in our analysis. See

(quotation omitted).

(quotation omitted). “One such exception exists where the officer has consent a judicially crafted exception.” State v. LaBarre, 160 N.H. 1, 7 (2010) searches are per se unreasonable unless they fall within the narrow confines of unreasonable searches and seizures. “Under Part I, Article 19, . . . warrantless Part I, Article 19 of the New Hampshire Constitution protects against

Ball, 124 N.H. at 232.

309 (2003). Again, we first address the defendant’s claim under the New facts determined by the superior court.” State v. Denoncourt, 149 N.H. 308, court’s order on a motion to suppress is de novo, except as to any controlling CONST. pt. I, art. 19; U.S. CONST. amend. IV. “Our review of the superior the evidence that the police gathered when they searched her home.3 See N.H. Next, the defendant argues that the trial court should have suppressed

search her home and the vehicles located on the premises was free,

photos, try to determine what happened, and she said that was fine. She said court finds that Defendant’s consent allowing the police to fully

examination: “I said we would have to go into the house, look around, . . . take consent form. . . . Based on the totality of the circumstances, the believe that she was granting a limited search by signing the credible evidence before the court that Defendant was [led] to

the following testimony, which Detective Harrington gave on direct In arguing that her verbal consent was limited, the defendant relies upon home or the vehicles found within the premises, nor is there any

for anything that could help.” consent form does not limit the scope of the search of Defendant’s

that the police needed to search the vehicles because “[they] were just looking between Defendant and the police was calm and polite. The go into the vehicles that were on the property.” She explained to the defendant house and vehicles, and then signed the form. The exchange would voluntarily give [the police] consent to go into the residence, as well as to understood it [and] granted the police permission to search her

Harrington that she did. Detective Harrington then asked the defendant “if she explained its meaning. Defendant verbally indicated that she

what Detective Harrington was saying and verbally indicated to Detective showed Defendant the consent to search form, read it aloud, and everything, take photos and whatnot.” The defendant appeared to understand home, as the investigation/search was ongoing. Det. Harrington into the house, try to see what happened inside the house, try to document signed the release, she was told that she could not return to her

that the police “would have to investigate what happened, . . . would have to go happened to King and why. In fact, many hours after Defendant

explained the investigation process to the defendant. She told the defendant the police would be looking for anything that would explain what take pictures of the scene. She also explained to Defendant that premises to check for other people in the home or vehicles and

front passenger seat of Officer Gebers’s car. Upon introducing herself, she Detective Harrington testified that she first saw the defendant in the Harrington told Defendant that they were going to search the These findings are supported by the record.

Contrary to Defendant’s contentions, the court finds that Det.

were present at the home and taking photographs of the scene.

police would only be searching to determine if other individuals [The defendant] asserts that Det. Harrington told her that the that the defendant did not limit the scope of the search . . . .” Livingston p. 11 court after weighing the testimony, we will not disturb the trial court’s finding

reasonable person could have come to the same conclusion as did the trial

vehicles, “we defer to the trial court’s determination of credibility. Because a finding that the defendant consented to a general search of her home and Insofar as the trial court relied on Detective Harrington’s testimony in

revoke the consent to search the residence and vehicles.

search was ongoing and the defendant was with Detective Harrington, did she Neither when she signed the form nor in the next six or seven hours, when the

threats or promises of any kind.

This written permission is being given freely and voluntarily without

search.

I understand that I may revoke my consent at any time during the

I understand that I do not have to consent to this search.

81 Old Dover Point Rd. in Dover . . . .

located at: Department to conduct a search of my . . . vehicle/premises . . . I, Dianna Saunders, 10/24/08, hereby authorize the Dover Police 11

defendant signed the consent-to-search form, which states, search warrant was unconstitutionally overbroad and lacked specificity. to read the form and, if she did not have any questions, to sign it. The that she understood the form. Detective Harrington then asked the defendant

search of her home, we do not need to address her third argument, that the it to the defendant word for word, and filled it out. The defendant indicated

N.H. 449, 455 (2009). Having found that the defendant consented to a general not voluntary, she did not brief this issue, thus waiving it. State v. Kelley consent, she took out a consent-to-search form, explained what it meant, read, 159 Detective Harrington testified that, upon obtaining the defendant’s verbal Although the defendant argued to the trial court that her consent was

N.H. at 408 (citation omitted).

of the house and the vehicles on the premises.

demonstrated that she subsequently gave written consent for a general search defendant’s initial verbal consent could be construed as limited, the evidence okay for officers to go in there to take photographs.” Even assuming that the

defendant] said it would be okay to go into the house. She verbally said it was it was okay.” On cross-examination, Detective Harrington testified that “[the p. 12 12

.

in her notice of appeal but did not brief. Kelley We also deem waived the remaining questions that the defendant raised

State Constitution.

DALIANIS, C.J.