2008-875, State of New Hampshire v. John Brooks

The defendant, John Brooks, appeals his conviction,

(Martin F. Murphy on the brief and orally), for the defendant. Danielle L. Pacik ___________________________ on the brief), and Foley Hoag LLP, of Boston, Massachusetts Hinckley, Allen & Snyder LLP and 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 22 as had instructed. p. 2 up at the airport, bearing the unopened package of supplies as the defendant

defendant and Vrooman flew to New Hampshire, where Connors picked them

supplies and sent them to Connors in New Hampshire. On June 18, 2005, the brought them to the defendant’s Las Vegas home, where they packaged the meeting, Vrooman obtained the handcuffs, pepper spray, and stun gun and

handcuffs, pepper spray, and a stun gun with which to subdue Reid. After this

Michael Connors, another New Hampshire acquaintance, and obtaining They discussed obtaining a telephone with which to lure Reid to the property of and Vrooman then met at the defendant’s Las Vegas home, joined by Jesse.

Vrooman $10,000 to help him kill Reid, and Vrooman agreed. The defendant

and Robin Knight in Las Vegas. Sometime after June 10, 2005, he offered At some point, the defendant became acquainted with Joseph Vrooman

written chronology of events that concerned them.

their suspicions regarding Reid and provided Special Agent Laura Hanlon a

Portsmouth office of the Federal Bureau of Investigation, where they reported In August 2004, the defendant, his wife Lorraine, and Jesse went to the

discuss killing Reid into the fall of 2004.

Reid’s life in 2003 were unsuccessful. The defendant and Carter continued to helped him, and they were initially paid $5,000. However, their attempts on defendant assured Carter and Benton that they would be “taken care of” if they

could find out the location of his property, and ultimately killing him. The

“take care of” Reid, including possibly kidnapping him so that the defendant He met with Carter and Benton over the next several months to discuss how to – Andrew Carter and Michael Benton – that he wanted their help to kill Reid.

his name to the police; instead, the defendant told two friends of his son, Jesse

Although the Brookses suspected Jack Reid of the theft, they agreed not to give State v. Seymour

intended to confine Reid to commit a crime other than murder. We affirm.

loaded in preparation for their move from New Hampshire to Las Vegas. belongings were stolen from a rental truck and trailer, which the family had jury that it must determine the “predominating cause” of death, pursuant to N.H. 338 (2011) (related proceeding). In September 2003, the Brooks family’s opinion from the medical examiner during the trial; (4) failing to instruct the account may have been untruthful; (3) permitting the State to introduce a new The jury could have found the following facts. See, 161

the kidnapping variant of capital murder requires a finding that the defendant acted for his personal pecuniary gain; and (6) failing to instruct the jury that solicitation variant of capital murder requires a finding that the defendant

, 140 N.H. 736 (1996); (5) failing to instruct the jury that the

Constitutions; (2) permitting an FBI agent to testify that the defendant’s live testimony, in violation of his rights under the State and Federal and replaced the walls and floor of the closet area where Reid had been killed.

p. 3 following day, the defendant, Vrooman, and Knight returned to Connors’s barn

Bert Seaver, a friend of the defendant, where they disposed of evidence. The handcuffs, and Reid’s watch into a nearby river. They stopped by the home of to New Hampshire, the defendant and Vrooman threw the sledgehammer,

Target Store parking lot. The defendant gave Benton $5,000. After returning

Vrooman and Knight drove Reid’s truck to Massachusetts and left it in a

dump truck, and covered it with branches and rocks.

Reid’s pockets, wrapped his body in the tarp, carried it out to the back of Reid’s

three times in the chest with the sledgehammer. The four men then emptied defendant said, “[S]top the heart, stop the bleeding,” and struck Reid two or the defendant that Reid would not stop bleeding. Vrooman testified that the

the barn floor. As Knight and Benton tried to clean up the blood, Vrooman told

breathing, from the closet to the black plastic tarp, which had been laid out on

with the sledgehammer. Knight, Vrooman, and the defendant carried Reid, still yet dead, and Benton struck two or three additional blows to Reid’s forehead side of the head with the sledgehammer. Knight told Benton that Reid was not

the barn. After Vrooman pushed Reid into the closet, Benton hit him on the

the barn. Knight and Vrooman greeted Reid and led him down a hallway into When Reid arrived at Connors’s house, the defendant and Benton hid in

where Benton would hit him with the sledgehammer.

in the barn, so the plan became that Vrooman would push Reid into the closet, suffocate him using the Saran Wrap. However, Benton found a sledgehammer attached barn, after which the defendant would confront him and they would

decided that they would confine Reid in a small closet area in the home’s

wanted Reid to know that “it’s me that’s doing this to him.” To this end, they

to the property. Once there, Benton testified, the defendant stated that he property for a fictitious job, the defendant, Vrooman, Benton, and Knight drove On June 27, 2005, the date they had set for Reid to come to Connors’s

caliber handgun in case anything went wrong. Benton would subdue Reid, and the defendant would be armed with his .22 zip-ties, Saran Wrap, and gloves. They decided that Vrooman, Knight, and

purchased more supplies – a large black plastic tarp, duct tape, garbage bags,

Over the next week, the defendant and Vrooman, joined by Knight,

defendant told him and Benton that they could use Connors’s place.

defendant he did not want him to use his property, Vrooman testified that the

Was.” They then drove to Connors’s home. Although Connors told the which to call Reid; Benton activated the telephone using the name “Charlie The defendant paid for Benton to purchase a prepaid cellular telephone with

The next day, the defendant and Vrooman met Benton in Manchester. p. 4 We review the defendant’s Confrontation Clause challenges de

possession.” ‘authenticate’ records as genuine copies of originals in the custodian’s testimonial, arguing that “the custodian affidavits did far more than

ruling that the certifications of authenticity pursuant to Rule 902(11) were not

on the States. See him.” The Fourteenth Amendment renders the Confrontation Clause binding accused shall enjoy the right . . . to be confronted with the witnesses against

Clause and the New Hampshire Constitution. He challenges the trial court’s

The Sixth Amendment provides: “In all criminal prosecutions, the

proving some fact.” Id

Crawford testimony, was contrary to Crawford v. Washington meaning of the Confrontation Clause. Davis v. Washington

authenticated violated his rights under the Sixth Amendment’s Confrontation claim first. See Evidence 902(11). The defendant argues that allowing the records to be so 4 certifications from the records’ custodians pursuant to New Hampshire Rule of

a solemn declaration or affirmation made for the purpose of establishing or

, 541 U.S. at 51 (quotation omitted). “Testimony, in turn, is typically II. Confrontation Clause (2006) (quotations omitted). A witness is a person who “bear[s] testimony.”

he contends that admitting the records through affidavits, rather than live, 547 U.S. 813, 821 Vegas, and received another $800 through Western Union. “testimonial statements” cause a declarant to be a “witness” within the

Hampshire Rule of Evidence 803(6), and authenticated the records through

address his claim under the Federal Constitution. Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). We will therefore first progeny, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and

defendant’s arguments center upon his rights under the Federal Constitution: Benton telephoned Jesse to ask for more money so he could travel to Las State v. Ayer, 154 N.H. 500, 504 (2006). However, the

131 S. Ct. 2172 (2011). Because the defendant has raised his claim under United States v. Yeley-Davis, 632 F.3d 673, 678 (10th Cir. 2011), cert. denied, Express records, and Western Union records, as business records under New novo. See telephone records, air travel records, insurance company records, Federal At trial, the State introduced extensive documentary evidence, including

defendant sent Benton another $400 through Western Union. In early August, Jesse. Vrooman was told that Knight had also been paid. In late July, the months, Vrooman received an additional $10,000 from the defendant and

Vegas. There, the defendant paid Vrooman $2,500 in cash; over the next few On July 1, 2005, the defendant, Vrooman, and Knight returned to Las of the telephone company’s record system. See p. 5 that the telephone records that were not billing records were nonetheless part

not for the purpose of establishing or proving some fact at trial,” Melendez-

defendant’s argument relies upon the testimony of a witness who explained

to a subscriber, were “created for the administration of [the] entity’s affairs and

in the ordinary course of business by the phone company.” We disagree. The that some of the telephone records “were not records . . . that were maintained

telephone records, including the records that would not normally be provided business purposes” and, therefore, were not testimonial). Because all of the they were not. Rather, these records were kept for [the telephone company’s] as to whether an out-of-court

Diaz, 557 U.S. at 324, they are not testimonial. See Mallory, 461 Fed. Appx. at

records admitted in the case would not be testimonial. He contends, however, gave testimony establishing that they were business records, nearly all of the at oral argument that if the records had been sponsored by a live witness who testimony regarding the requirements of the business records rule, he conceded Although the defendant argues that the State should have presented live “[t]his does not mean . . . that these records were created simply for litigation – (finding that, although certain telephone records were not telephone bills,

affairs or for the purpose of establishing or proving some fact at trial.” United

later criminal prosecution.’” Mallory statement must be ‘to establish or prove past events potentially relevant to nontestimonial per (quotation omitted)). “To be considered testimonial, the primary purpose of the proving some fact at trial – they are not testimonial.” Melendez-Diaz omitted). administration of an entity’s affairs and not for the purpose of establishing or not the Confrontation Clause.” Id exception to the hearsay rules, but because – having been created for the. (quotation, brackets, and emphasis admissibility of the records is the concern of state and federal rules of evidence, Id primary purpose of creating the record is not to prove a fact at trial, the “Business records are generally admissible, even without confrontation.” States v. Hudson, 2011 U.S. Dist. LEXIS 126830 at *12 (E.D. La. 2011). “If the

is testimonial is whether it was created for the administration of an entity’s Melendez-Diaz, the relevant question in determining whether a business record

at 324. Statements that qualify as business records are not, however, statements that declarants would reasonably expect to be used prosecutorily”, 557 U.S.

generally admissible absent confrontation not because they qualify under an .; see Bullcoming, 131 S. Ct. at 2714 n.6. “Business and public records are

547 U.S. at 822).

Appx. 352, 356 (4th Cir. 2012) (“the right of confrontation covers all testimonial Melendez-Diaz, 557 U.S. at 312-20; see also United States v. Mallory, 461 Fed. not.” State v. O’Maley, 156 N.H. 125, 131 (2007), overruled in part by statement violates the Confrontation Clause is whether it is ‘testimonial’ or “The crucial determination under Crawford admissible record (an exception to confrontation requirements). See

p. 6 the documents as business records. See were true copies of those in the business’s file would not suffice to authenticate

conducted activity; and (C) was made by the regularly conducted activity as a knowledge of those matters; (B) was kept in the course of the regularly

confrontation would apply) from an affidavit merely authenticating an

possession.” He points out that an affidavit merely verifying that the records

of the matters set forth by, or from information transmitted by, a person with

purpose of providing evidence against a defendant (to which the right of Supreme Court, however, has distinguished an affidavit that is created for the 6 authentication procedure as incompatible with his confrontation rights. The

‘authenticate’ records as genuine copies of originals in the custodian’s The defendant insists that “the custodian affidavits did far more than

under oath that the record: (A) was made at or near the time of the occurrence authentication requires the custodian or another qualified person to certify require additional foundation.”). Indeed, Rule 902(11) provides that 803(8), records of a regularly conducted activity admitted under Rule 803(6) 1062, 1076 n. 13 (9th Cir. 2005) (“Unlike public records admitted under Rule

nontestimonial.” Hudson compliance with Rule 902(11). Rather, he challenges Rule 902(11)’s records and do not themselves create new records. Accordingly, they are

Confrontation Clause”). La. 2011) (“902(11) certifications are nontestimonial and do not implicate the 357; see United States v. Fajardo-Guevara, 2011 WL 6003840 at *2 n.1 (M.D. course of a regularly conducted business activity.” Mallory, 461 Fed. Appx. at who submits a Rule 902(11) certification of a record that was created in the confront witnesses does not include the right to confront a records custodian “Consequently, Melendez-Diaz makes clear that the Sixth Amendment right to

Certifications under Rule 902(11) “are authentications of otherwise admissible record for the sole purpose of providing evidence against a defendant.” Id the certifications violated the defendant’s Confrontation Clause rights.. provide a copy of an otherwise admissible record, but could not . . . create a Diaz, 557 U.S. at 322-23. It stated, “A clerk could by affidavit authenticate or

documents pursuant to Rule 902(11). See

(D.C. Cir. 2008) (same). Thus, we turn to the question of whether admission of litigation purposes); United States v. Hemphill, 514 F.3d 1350, 1358-59 n.2 Federal Rule of Evidence 902(11) could be described as affidavits prepared for 126830, at *13-*14 (noting that business record certifications pursuant to

records were created for the sole purpose of litigation – that is, to authenticate Unlike the records themselves, however, the certifications of the business

(telephone and financial records). 356 (FedEx record); Hudson, 2011 U.S. Dist. LEXIS 126830 at *12-*13 as extensive as the Confrontation Clause rights described in Crawford other than the federal standard regarding the violation of his rights under the p. 7 The defendant argues that “[t]he New Hampshire right must be at least mean.” The defendant, however, does not offer argument under any standard

explicitly provides what the Federal Constitution has been interpreted to not violate the defendant’s confrontation rights under the Federal Constitution.

minimal evidentiary value. See substance was found to contain: Cocaine.” Melendez-Diaz 7 stating that the bags “[had] been examined with the following results: The

Confrontation Clause.”). The evidence at issue in Melendez-Diaz Constitution[’s Confrontation Clause] is the more precise of the two, in that it Thus, we conclude that the admission of the records and the certifications did v. Peters, 133 N.H. 791, 794 (1991), that “[t]he language of the New Hampshire expansive than the Crawford rule relies entirely upon our observation in State New Hampshire Constitution’s Confrontation Clause protection is more State v. Munoz, 157 N.H. 143, 148 (2008). The defendant’s assertion that the have not, however, adopted the Crawford analysis as applicable in this State.” the admission of the substantive evidence. The certifications themselves had New Hampshire Constitution, it should be interpreted as more expansive.” “We The certifications in this case, however, served only as the foundation for Health,” reporting the weight of bags of material seized by the police and Melendez-Diaz, and Bullcoming; however, given the greater precision of the

substance.” Melendez-Diaz this to be an impediment to the use of these certifications under the Massachusetts law the sole admission of business records” (quotations, brackets and ellipsis omitted)). as evidence in the case; rather, it serves merely to lay a foundation for the are distinguishable from the certificates at issue in Melendez-Diaz (W.D.N.C. 2008) (“a business record certification does not serve independently

at the State Laboratory Institute of the Massachusetts Department of Public & Mass. Gen. Laws, ch. 111, § 13).

evidence of the composition, quality, and the net weight’ of the analyzed of the business in question, none of the courts to address the issue has found purpose of the affidavits was to provide ‘prima facie believe that the statement would be available for use at a later trial,’ but under under circumstances which would lead an objective witness reasonably to (quotations omitted). In Melendez-Diaz, “not only were the affidavits ‘made We agree with the courts that have ruled that Rule 902(11) certifications, 557 U.S. at 308

“three ‘certificates of analysis,’ . . . sworn to before a notary public by analysts

certification goes beyond a simple statement that the record in issue is a record Hudson, 2011 U.S. Dist. LEXIS 126830 at *16-*17 n.5 (“Although a 902(11)

how the records were made,” like the affidavits involved in Melendez-Diaz. 902(11) certifications provide “testimony about who made the records . . . and regular practice. N.H. R. Ev. 902(11). Thus, the defendant argues, Rule opinion about the credibility of another witness.” See

p. 8 trial judge should not permit the prosecution to ask a witness to express an asserts that “the admission of this evidence violated the cardinal rule that a the truth of the matters stated during the discussion with Hanlon. Second, he

The State bears the burden of proving that an error is harmless. State v. The State argues that any error in admitting the testimony was harmless. to the FBI was admitted only as evidence of the defendant’s intent, and not for

was not relevant because Lorraine Brooks’s extensive testimony about her visit

are clearly untenable or unreasonable to the prejudice of a party’s case.” State unsustainable exercise of discretion standard and reverse only if the rulings to do so. didn’t have a full ring of truth to it.” He first argues that the opinion testimony witness’s trial testimony, we conclude that the trial court erred in allowing her stories that [the Brookses] were telling [her] seemed not only odd, but perhaps 8 impression of the veracity of a prior report by the Brookses rather than of a with the Brooks family was “peculiar and kind of odd,” and that “parts of the

defendant’s guilt is of an overwhelming nature, quantity or weight and if the the error. Id. An error may be harmless if the alternative evidence of the witnesses.” Lopez determined, beyond a reasonable doubt, that the verdict was not affected by Pseudae, 154 N.H. 196, 202 (2006). An error is harmless only if it is

“We review challenges to a trial court’s evidentiary rulings under our

203, 213 (2010) (quotation omitted). Thus, although Hanlon testified as to her State to elicit the opinion of FBI Special Agent Hanlon that her conversation comment upon the credibility of other witnesses.” State v. Parker, 160 N.H. exception to Lopez ’s “broad prohibition on questions requiring a witness to II. FBI Agent’s Opinion, 156 N.H. at 423. We have also declined to create an questioning interferes with the jury’s obligation to determine the credibility of to opine upon the credibility of other witnesses is error because such v. Wamala, 158 N.H. 583, 586 (2009). We have held that “requiring a witness

witness to comment on credibility of other witnesses). 416, 423-24 (2007) (adopting a broad prohibition on questions requiring a The defendant next argues that the trial court erred by permitting the

See

Hampshire Constitution. rather than live testimony violated his rights under Part I, Article 15 of the New not established that admitting the records by means of custodians’ affidavits Munoz, 157 N.H. at 148. Accordingly, we conclude that the defendant has records and their certifications under a standard the defendant has not argued. (2009); Ayer, 154 N.H. at 511. We will not consider the admissibility of the Ohio v. Roberts, 448 U.S. 56 (1980). See State v. Ata, 158 N.H. 406, 409 applicability of the Confrontation Clause test we have adopted – namely, that of State Constitution, see Munoz, 157 N.H. at 148. Neither does he address the flight records showing that the defendant had traveled from Manchester, New p. 9 with him and learned of other potential witnesses. The police then obtained

Connors’s address. In late July 2005, police visited Connors’s home to speak

27-28 the name “Charlie,” the number of the “Charlie Was” telephone, and The logbook removed from Reid’s truck listed on the pages dated June

home he owned in Derry.

call placed to the telephone from a landline in the defendant’s name from a shown by the records of the “Charlie Was” telephone that was not to Reid was a telephone activated June 19, 2005, in the name of “Charlie Was.” The only call

number were retrieved, it was found to be the number of a pre-paid cellular

the number associated with “Charlie Was.” When the records pertaining to this 27. Reid’s telephone records showed that the last call he made that day was to Management facility in Londonderry showed Reid alive at 2:13 p.m. on June

Sienna mini-van. Testimony established that a videotape from a Waste

Motor vehicle records showed that the defendant owned a beige 2004 Toyota

Reid’s truck and get into a 2004 or 2005 gold or tan Toyota Sienna mini-van. Target store where Reid’s dump truck had been left showed two men leave Testimony indicated that the June 27, 2005 surveillance video from the

home, and by DNA analysis. gathered at the scene of the murder and from the river near the defendant’s corroborated by a forensic examination of the body, by physical evidence

was killed, how he was killed, and what was done with his body was

Benton’s and Vrooman’s testimony about the specific location where Reid

defendant’s intention to lure Reid to his property and kill him.

Connors, Seaver, and Lorraine Brooks. Connors also testified about the

murder, and the destruction of evidence after the murder was corroborated by

meetings before the murder, supplies gathered with which to commit the corroborated Benton’s testimony. Vrooman’s and Benton’s testimony about further the plot, and about the events surrounding the murder itself,

killing of Reid. His testimony about the planning and purchasing of supplies to

so, and corroborated Benton’s testimony that the defendant participated in the defendant recruited him in 2005 to help kill Reid and offered him money to do participated with him in the murder of Reid. Vrooman testified that the

numerous discussions about how to carry out the plan, and ultimately

defendant wanted Reid killed, offered money to have him killed, engaged in evidence of the defendant’s guilt is overwhelming. Benton testified that the that the verdict was not affected by the admission of Hanlon’s opinion. The

We conclude that the State has established beyond a reasonable doubt

well as the character of the inadmissible evidence. See id. was harmless, we consider the alternative evidence of guilt presented at trial as strength of the State’s evidence of guilt. Id. In determining whether an error inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State’s evidence of guilt.” Id

p. 10 determine whether it “is merely cumulative or inconsequential in relation to the defendant’s guilt, we consider the character of the inadmissible evidence to In addition to the overwhelming nature of the alternative evidence of the

visiting there at the relevant time. corroborated by Vrooman’s and Lorraine Brooks’s confirmation that he was testimony that some of those funds were used to travel to Las Vegas was

testimony about receiving money from the defendant and Jesse. Benton’s

about relevant air travel. Western Union records corroborated Benton’s records corroborated testimony by Connors, Vrooman, and Lorraine Brooks about a package of supplies sent from Las Vegas to New Hampshire. Airline

of the State’s evidence of guilt. of Hanlon’s opinion was minimal, and inconsequential in light of the strength

Express records corroborated testimony by Connors, Benton, and Vrooman

family’s account. Thus, despite the error, any prejudice caused by admission

about telephone contacts among the conspirators at pertinent times. Federal

and Carter – was thus met, regardless of Hanlon’s opinion of the Brooks the defendant presented himself to the FBI and provided the names of Benton them.” The purpose for which the defense proffered the evidence – to show that

Telephone records corroborated Benton’s, Carter’s, and Vrooman’s testimony with which to contact Reid was corroborated by records of that purchase. Benton’s and Vrooman’s testimony about the purchase of the telephone

that may be – you know, at some point may be charged with investigating

conspiracy are not likely to provide their identities to a law enforcement agency of a conspiracy because . . . a jury could find people who are involved in a reasoning that the testimony was admissible “because it undermines the theory

consistent with that of Reid. and later examination of the floorboards confirmed the presence of blood smears leading from the hallway outside the closet to an open area in the barn,

hearsay objection, to the entire content of the family’s discussion with Hanlon,

identified as being consistent with Reid’s. Luminol testing revealed blood

murder. The trial court allowed Lorraine Brooks to testify, over the State’s the defendant’s actions were inconsistent with a longstanding plan to commit not admitted for the truth of the Brookses’ statements, but rather to show that

replaced, the ceiling had not, and it contained a small spatter of blood later found that, while it appeared that the walls and floor of the closet had been December 2006, State Police executed a search warrant in Connors’s barn and

inconsequential. The conversation between the Brooks family and the FBI was

defendant had mailed from Las Vegas had been thrown into the river. Also in

the river, corroborating Vrooman’s statement that the handcuffs he and the In December 2006, two halves of a pair of handcuffs were recovered from

Robin Knight. Hampshire, to Las Vegas, Nevada, on July 1, 2005, with Joseph Vrooman and originally disclosed, reasoning: “[T]his new disclosure of the doctor is a very p. 11 Dr. Evans about the potential contribution of rocks to the “blunt force trauma”

of inflicting blunt force trauma.” The trial court allowed the State to question

contained in the disclosed reports, was “[e]ssentially just that rocks are capable only testimony the State planned to elicit from Dr. Evans, outside of that The State countered that there was no new or undisclosed opinion, since the

exclude any opinion from Dr. Evans that had not been previously disclosed. Before Dr. Evans took the stand, defense counsel asked the trial court to

been on top of the body prior to its discovery.

of the body and it was suggested to him that rocks might have

the autopsy, he was informed that rocks were found in the vicinity Richard Evans, he informed me that he believes that at the time of It is my recollection that during a recent conversation with Dr.

notified defense counsel by e-mail as follows:

On the day that Dr. Evans was scheduled to testify, counsel for the State

Reid in the chest with a sledgehammer.

inconsistent with Vrooman’s anticipated testimony that the defendant struck

murder, casting Dr. Evans’s evaluation of the victim’s rib injuries as testimony as a tool to attack the credibility of Vrooman’s account of the injuries.” The defense opening statement employed Dr. Evans’s anticipated

they had been inflicted or how but rather that they were blunt force trauma

the nature of the chest injuries was such that he couldn’t tell specifically why Dr. Evans’s deposition, available to both parties, “he testified extensively that postmortem putrefaction.” At trial, the State informed the trial court that at

perimortem fractures, body discovered wrapped in plastic and severe

violence of undetermined etiology with evaluation complicated by multiple

death certificate, which described the cause of Reid’s death as “homicidal conducted Reid’s autopsy. The State produced Dr. Evans’s autopsy report and expert, Dr. Richard Evans, the Massachusetts medical examiner who

Pursuant to Rule 98, the State timely disclosed, as its cause-of-death

prejudiced by admission of the opinion evidence. that the court unsustainably exercised its discretion in finding that he was not

Rule 98, rather than the version in effect at the time of trial. Second, he argues

He contends first that the trial court erred by applying former Superior Court State to introduce a new opinion from the medical examiner during the trial. The defendant next argues that the trial court erred by permitting the

III. Medical Examiner’s Opinion

harmless beyond a reasonable doubt.

admission of Hanlon’s opinion regarding the Brookses’ statements was Because the evidence of the defendant’s guilt was overwhelming, the p. 12 Super. Ct. R. statements of experts, as well as a summary of each expert’s qualifications.” examinations, scientific tests or experiments, or any other reports or

unsustainable exercise of discretion.” State v. Gamester “We will not reverse the trial court’s admission of evidence absent an

copies, prior to trial, of all “results or reports of physical or mental of the facts and opinions matter on which the expert is expected to testify, state a summary

provided discovery “is incomplete, inaccurate or misleading.” p. 12 Super. Ct. R. report contain all of the opinions regarding which the expert may be called the State had provided to the defense, nor did it “mandate that an expert’s

expert witnesses. Rather, it merely required the State to provide the defendant experience relevant to his area of expertise, state the subject 12

as additional materials are generated or if a party learns that previously

p. 12 Super. Ct. R. not require the State to summarize the testimony of the experts whose reports

98(A)(2)(i) (2004). In Gamester, we held that former Rule 98 did account for the injuries.”

replied, “The constellation of the two sets of events would in my opinion constellation of chest injuries you observed during the autopsy?” Dr. Evans

Superior Court Rule 98 did not include the above requirements concerning 98(H); see shall provide a brief summary of the expert’s education and also State v. Pelletier, 149 N.H. 243, 250 (2003). By contrast, former For each expert witness included on the list of witnesses, the state

“parties are under a continuing obligation to supplement” discovery responses part:

98(C)(1) (emphasis added). Rule 98(H) further provided that

copy of any expert report relating to such expert. significant degree by the nondisclosure.” State v. Roldan and a summary of the grounds for each opinion, and provide a

The version of Rule 98 in effect at the time of trial provided, in relevant

(2004) (quotation omitted).

violation, actual prejudice exists if the defense has been impeded to a 159 N.H. 239, 248-49 (2009) (quotation omitted). “In the context of a discovery point after the victim was deceased someone tossed several rocks weighing decision was clearly unreasonable to the prejudice of his case.” State v. Dodds, . . . very close in time to when his heart stopped beating and then at some exercise of discretion is unsustainable, the defendant must show that the struck the victim in the chest several times with [the handheld sledgehammer] respect to alleged discovery violations.” Id. “To show that the trial court’s (2003). “This same standard applies to review of the trial court’s decision with

new thing.” In response to the State’s hypothetical question, “If someone had marginal difference. It’s not something that’s, you know, sort of a completely p. 13 IV. “Predominating Cause” Instruction

discretion in allowing admission of the testimony.

result of the nondisclosure, or that the trial court unsustainably exercised its

role therein. The defendant thus has not established actual prejudice as a Evans’s determination of the cause of death, or the evidence of the defendant’s on Reid’s body may have contributed to his chest injuries did not alter Dr.

the compressive chest injury. The tardy disclosure that the placement of rocks was clearly unreasonable to the prejudice of his case.” Dodds defendant has nonetheless failed to demonstrate that the trial court’s “decision

that he had not formulated an opinion as to whether rocks were the cause of defendant’s request for a jury instruction on “predominating cause” pursuant be consistent with the compressive chest injury. Dr. Evans specifically testified contribution of rocks to the decedent’s chest injury violated Rule 98. The The defendant next argues that the trial court erred by rejecting the of Dr. Evans, the defense suggested other possible instrumentalities that might

without deciding, that the admission of Dr. Evans’s opinion about the possible both parties had long known were found with the body. On cross-examination of discretion in allowing Dr. Evans’s opinion is unsustainable. We assume, We next turn to the defendant’s argument that the trial court’s exercise

degree by the nondisclosure.” State v. Stickney upon an undisclosed opinion “Actual prejudice exists if the defense has been impeded to a significant specifically asked whether defense counsel was being taken by surprise based court attempted to determine the essence of the defendant’s objection, and

cause of the previously disclosed “blunt force trauma” – that is, the rocks that Here, the nondisclosure was limited to Dr. Evans’s opinion of one possible consideration of whether the State had produced the underlying facts, 148 N.H. 232, 236 (2002).

248-49 (quotation omitted). legal analysis. After allowing defense counsel extensive argument, the trial, 159 N.H. at

amendments, Rule 98 did not require the State to disclose “all of the opinions

erroneously applied the former rule. He bases this assertion on what he characterizes as the trial court’s. Accordingly, we do not agree that the trial court

The record does not support the defendant’s reading of the trial court’s

(emphasis added). regarding which the expert may be called upon to testify at trial.” Id.

formed the basis of Dr. Evans’s opinion, and the fact that, prior to the 2004

obligation to disclose its expert’s opinions in conformity with the current Rule.” before Rule 98 was amended, and erroneously relieved the State of its The defendant first argues that “the trial court appeared to apply the law

upon to testify at trial.” State v. Lavoie, 152 N.H. 542, 545 (2005). and an accomplice.” State v. Doucette p. 14 the indictment is ordinarily sufficient to charge a defendant as both a principal “Under New Hampshire law, the ‘acting in concert with’ language used in

and aided by another.”

Reid’s death by striking him with a blunt object while “acting in concert with degree murder indictment likewise charged Brooks with purposely causing actual or attempted kidnapping, by striking Reid with a blunt object. The first-

and aided by another,” knowingly caused Reid’s death while engaged in an in clear and intelligible language, the rules of law applicable to the case.” State “The purpose of the trial court’s charge is to state and explain to the jury,

death by striking him with a blunt object. See

second capital murder indictment charged that Brooks, “acting in concert with pecuniary gain in exchange for their participation in causing the death.” The the issues of law in the case. See death of Jack Reid, Sr., he offered one or more of said individuals some form of against the defendant”). instructions are within the sound discretion of the trial court. See each element of the offense, bearing in mind that the scope and wording of jury

the defendant solicited, aided or attempted to aid another in causing Reid’s 14

366 (2003) (“Reversal of a jury verdict is unwarranted when a jury charge fairly

exercise of discretion, and reverse only if the instructions did not fairly cover individuals “to cause his death . . . . in that, with the purpose to cause the review the trial court’s decisions on these matters for an unsustainable of accomplice liability also would be sufficient to support the conviction[] id. We

determine whether the jury instructions adequately and accurately explained them, and in light of all the evidence in the case.” Id. (quotation omitted). We instructions in their entirety, as a reasonable juror would have understood instructions, we evaluate allegations of error by interpreting the disputed with a blunt object. Or it could have proven accomplice liability; that is, that have proven that the defendant himself caused Reid’s death by striking him v. O’Leary, 153 N.H. 710, 712 (2006) (quotation omitted). “When reviewing jury State had two options for proving capital and/or first-degree murder. It could

cause the death of Jack Reid, Sr., by criminally soliciting” one or more One capital murder indictment charged that Brooks “did knowingly charged as both principal and accomplice, “evidence supporting each element 539 (2011); see also State v. Young, 159 N.H. 332, 340 (2009) (where defendant

indictments charged the defendant as both a principal and an accomplice, the

actions were the legal cause of Reid’s death. We disagree.

have been based upon the erroneous conclusion that the defendant’s physical instruction, he contends, the jury’s verdict on the murder indictments may or the defendant’s blows to Reid’s chest. Without a “predominating cause” determine whether Reid’s death was caused by Benton’s blows to Reid’s head to Seymour. He asserts that, as to the murder indictments, the jury had to sequence unbroken by superseding or intervening cause. The p. 15 contributed to the death of Reid in natural and continuous only that the defendant’s conduct substantially and materially

death; rather, the State must prove beyond a reasonable doubt

to be the sole cause of death or the last acts which produce the To be a legal cause of death, the defendant’s acts do not have

the death follows as a natural, direct and immediate consequence.

and a substantial factor from which the death flows – from which death is a cause without which the death would not have occurred, bringing about the death of Reid. In other words, a legal cause of

defendant’s criminal conduct was a direct and substantial factor in

that the State must prove beyond a reasonable doubt that the

To show that the defendant caused the death of Reid means

accomplice liability. See defendant does not contest that the instructions accurately stated the law on

“causation” as follows:

Knight, and/or Benton” in the criminal activity with the requisite intent. The

defendant had caused Reid’s death. The instructions defined the element of

Benton,” and “that the defendant solicited, aided or attempted to aid Vrooman, individuals: The defendant; Robin Knight; Joseph Vrooman; and/or Michael elements” of the crime “were committed by one or more of the following

alternative murder counts, each of which required the State to prove that the The court then instructed the jury on the elements of the three

defendant guilty, it must “find beyond a reasonable doubt that all of the

he had personally performed each step in the commission of the crime.”

instructed the jury as to each of the three murder counts that, to find the

and that “an accomplice is just as guilty if the crime is in fact committed as if RSA 626:8. he did not personally perform all of the conduct which constitutes the crime,” were erroneous – explained that “a person may be convicted of a crime even if

(Emphasis added). Specifically addressing accomplice liability, the court

which the death of Reid was caused. State is not required to prove the manner in which or the means by

Its instructions on accomplice liability – which the defendant does not argue

apply when more than one person is accused of being a participant in a crime.” was charged, the trial court instructed the jury “as to the principles of law that Before addressing the elements of the crimes with which the defendant

covers the issues and law of a case.”). p. 16 The interpretation of a statute is a question of law, which we decide de

that only the person solicited must act for his own personal pecuniary gain.

of whether he solicited the death or was the person solicited. The State argues

statute requires proof that he acted “for his personal pecuniary gain” regardless by another for his personal pecuniary gain.” The defendant argues that the soliciting a person to cause said death or after having been criminally solicited

murder if he knowingly causes the death of . . . [a]nother by criminally

intent. State v. Formella

unwarranted. See cover the issues and law of this case, and reversal of the jury verdict is death. Therefore, “predominating cause” language was not required to fairly RSA 630:1, I(c) provides in pertinent part, “A person is guilty of capital

own pecuniary gain. not see fit to include.” State v. Drake

so, we first look to the plain language of the statute to determine legislative

defendant’s blows to Reid’s chest were the “predominating cause” of Reid’s light of the policy sought to be advanced by the entire statutory scheme. State

the solicitation variant of capital murder, the defendant must have acted for his what the legislature might have said or add language that the legislature did

fair import of [its] terms and to promote justice.” RSA 625:3 (2007). In doing context of the overall statutory scheme and not in isolation. See id. expressed in the words of a statute considered as a whole. State v. Gallagher v. Lamy, 158 N.H. 511, 515 (2009). Accordingly, we interpret a statute in the

of all three charges regardless of whether Benton’s blows to Reid’s head or the is to apply statutes in light of the legislature’s intent in enacting them, and in defendant was charged as an accomplice, the jury could have found him guilty, 155 N.H. 169, 174-75 (2007). Our goal which or the means by which the death of Reid was caused. Because the of RSA 630:1, I(c). He argues that the statute requires that to be convicted on “We interpret legislative intent from the statute as written and will not consider will not look beyond the language of the statute to discern legislative intent. Id.

157 N.H. 421, 422 (2008). We construe the Criminal Code “according to the

interpretation, we are the final arbiter of the intent of the legislature as novo. See State v. Brown, 155 N.H. 590, 591 (2007). In matters of statutory

properly instructed the jury, the State was not required to prove the manner in The defendant next argues that the trial court erred in its interpretation

V. Solicitation Variant and the Requirement of “Personal Pecuniary Gain”

jury to find that the defendant himself delivered the mortal blow. As the court supported by the indictments or the law. None of the indictments required the blows to Reid’s chest rather than Benton’s blows to Reid’s head – is not

indictments, the jury had to find that Reid’s death was caused by Brooks’s The defendant’s premise – that to convict Brooks on the murder under his control with a purpose to:

defined in RSA 633:1.” RSA 633:1 (Supp. 2002), in turn, provides: commission of, or while attempting to commit kidnapping as that offense is

legislature failed to articulate its intent unambiguously.” In re Alex C. rule of lenity serves as a guide for interpreting criminal statutes where the

knowingly causes the death of . . . [a]nother before, after, while engaged in the

The defendant’s argument under the rule of lenity is unavailing. “[T]he

RSA 630:1, I(b) provides that “[a] person is guilty of capital murder if he

committing a crime other than murder. We disagree.

prove that the defendant intended to confine Reid for the purpose of

court’s interpretation of RSA 630:1, I(c). hire them, regardless of their motivation. Accordingly, we agree with the trial 17 severe penalties on hired killers who act for mercenary motives and those who

doctrine, to prove the kidnapping variant of capital murder, the State had to interpretation of RSA 630:1, I(b). He asserts that, pursuant to the merger The defendant finally argues that the trial court erred in its

unclear, is inapplicable. See kill. Further, this interpretation is logically sound in that it imposes equally statute so as to increase the statutory penalty where the legislature’s intent is

others more remote.” Id

used to beget one.” (quotations omitted)). purpose which requires a different interpretation.” Mt. Valley Mall Assocs. v. (“Lenity thus serves only as an aid for resolving an ambiguity; it is not to be ambiguous, rule of lenity applies); State v. Bailey, 127 N.H. 811, 814 (1986) statutory analysis if statute is ambiguous; if both statute and history are

unambiguous, the rule of lenity, which forbids interpretation of a criminal N.H. 231, 239 (2010) (quotation omitted). Because we find the legislative intent

antecedent unless there is something in the subject matter or dominant as grammatical construction that a modifying clause is confined to the last construction, the ‘last antecedent rule,’ is the general rule of statutory as well

This rule of statutory construction supports applying the qualifying phrase “for Singer, Statutes and Statutory Construction § 47.33, at 487-89 (7th ed. 2007).

omitted). “Therefore, qualifying phrases are to be applied to the words or Municipality of Conway, 144 N.H. 642, 652 (2000) (quotation and citation

solicit and those who are solicited. “One established rule of statutory The plain language of RSA 630:1, I(c) creates two categories: those who merely incidental to another crime.” People v. McEathron p. 18 kidnapping based upon acts that fall within the definition of that crime but are The merger doctrine, in this context, “prohibits a conviction for

murder.” reasonable doubt that the confinement of Reid was not merely incidental to the purpose of the confinement, but “the evidence must establish beyond a

could be the murder itself, the court agreed that the murder itself could be the In response to a jury question regarding whether the predicate crime

accomplish the killing.

some appreciable period of time beyond that necessary to

Reid, the confinement was contemplated or expected to last for

Or, two, that if the only objective of the confinement was to kill

namely, the terrorizing of Reid;

an objective in addition to or independent of the killing of Reid, One, that the confinement of Reid was designed to accomplish

court instructed, the jury had to unanimously agree either:

must find the defendant not guilty of this charge.” In order to convict, the

the killing occurred, then this element of the crime has not been met and you the confinement was only expected to be a momentary or passing event before if you find that Reid was only confined for the purpose of killing him, and that

the confinement could not be merely incidental to the murder: “In other words,

engage in the confinement of Reid.” The court further instructed the jury that

caused Reid’s death “before, after, while engaged in, or while attempting to terrorize Reid or to commit a crime against Reid,” and that the defendant attempted to confine Reid . . . with the conscious object or specific intent to

the jury that the elements of the crime included that the defendant “confined or

this language, based upon RSA 633:1, I(c) and I(d), the trial court instructed concluded that “the crime of kidnapping does not include conduct involving a defendant, in concert with others, caused Reid’s death. In accordance with impression in New Hampshire. A significant majority of state courts have purpose to terrorize him and/or to commit a crime against him,” and that the

251 (App. Div. 2011). The application of this doctrine presents an issue of first another or others, did knowingly confine [Reid] under his control with a, 926 N.Y.S.2d 249, The indictment charged that the defendant, “acting in concert with

(d) Commit an offense against him.

(c) Terrorize him or some other person; or

(b) Avoid apprehension by a law enforcement official; or

(a) Hold him for ransom or as a hostage; or have such significance, the purpose

p. 19 to have independent significance from the crime of murder, and that in order to word “incidental.” The defendant argues that the confinement of Reid needed support conviction. The issue before us, therefore, turns on the meaning of the

based on the totality of the circumstances.” State v. R.A. or support kidnapping as a separate crime is a fact-specific determination

kidnapping “incidental” to the commission of the murder would not suffice to

See “Whether restraint and movement are merely incidental to another crime

The parties appear to agree, and the jury instructions reflect, that a

Reid’s death (namely, to terrorize Reid), see

element of the offense that the State must prove beyond a reasonable doubt. capital murder charge based upon kidnapping, since the kidnapping is an of time beyond that necessary to accomplish the killing.” As a threshold matter, we consider the merger doctrine to apply to a confinement was contemplated or expected to last for some appreciable period elements each of which must be established beyond a reasonable doubt.”). RSA 633:1, I(c); or (2) “the degree. It is, however, a separate and distinct statutory crime having specific either: (1) the confinement was designed to accomplish something other than law when it instructed that, in order to convict, the jury had to agree that than the murder. The State maintains that the trial court accurately stated the

underlying crime.” Id the restraint involved is merely incidental to the commission of a separate,

1980) (“kidnapping is a specific element of aggravated murder in the first other felonies.” State v. Goodhue defined in RSA 633:1”); see also State v. Green, 616 P.2d 628, 634 (Wash. commission of, or while attempting to commit kidnapping as that offense is causes the death of . . . [a]nother before, after, while engaged in the Id RSA 630:1, I(b) (“[a] person is guilty of capital murder if he knowingly the restraint necessary to complete another crime, such as assault or robbery.”

361, 368 (1996) (collecting cases). conviction, and the severe sanctions accompanying such a conviction, when Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R.5th 283, Annotation, Seizure or Detention for Purpose of Committing Rape, Robbery, or

rest on “unlawful confinements or movements incidental to the commission of majority of jurisdictions, and now hold that a kidnapping conviction cannot . at 1108, 1119 n. 30 (collecting cases). We agree with the view taken by the

that forms the basis of that conviction is no greater in severity or duration than hold that “a kidnapping conviction may be sustained even when the restraint

unlikely that the legislature intended to expose an accused to a kidnapping underlying these cases, “they share a common theme, namely, that it is (collecting cases). Despite the varying statutory language and analyses against the victim.” State v. Salamon, 949 A.2d 1092, 1119 (Conn. 2008) restraint that is merely incidental to the commission of some other crime p. 20 Goodhue

murder, regardless of the nature of the restraint. He would have us inseparable from another crime,” or rather “a crime in itself.” McEathron

ignores the “totality of the circumstances” analysis Green

of harm. detention created a significant danger or increased the victim’s risk ‘merely incidental.’” R.A. defendant’s risk of detection; and whether the movement or

kidnapping anytime the victim was restrained to facilitate a intrusion necessary and integral to another crime, . . . simultaneous and

did not commit kidnapping,

takes place to facilitate another crime does not by itself render that restraint merger doctrine. See assistance; whether the movement or detention lessened the confinement – does not accord with other jurisdictions’ interpretations of the

mandates. Under [the defendant’s] reasoning, there could be no which require analysis of whether the restraint constituted “a minimal interpretation comport with the fairness purposes of the merger doctrine, than that which is necessary to commit the other crime”). Nor does such an that, if he restrained the victim solely for the purpose of killing him, then he

We agree with the Washington courts that “simply because the restraint movement or confinement prevented the victim from summoning totality of the circumstances or any factor other than the purpose of the the crime was facilitated by the confinement; whether the N.Y.S.2d at 251 (quotations omitted). was not inherent in the nature of the underlying crimes; whether

prevent the victim’s liberation for a longer period of time or to a greater degree a kidnapping in conjunction with another crime, a defendant must intend to

for a purpose other than the underlying murder without consideration of the The defendant’s reading of the statute – requiring the confinement to be whether evidence of the seizure, detention, or movement was or

, 833 A.2d at 865.

McEathron

supportable, courts have considered various factors, including In determining whether a separate kidnapping conviction was

, 926 N.Y.S.2d at 251 (brackets and quotations omitted).

independent criminal responsibility may not fairly be attributed to them.” substantive crime could not have been committed without such acts and that of the victim was so much the part of another substantive crime that the that determination, our guiding principle is whether [the] defendant’s restraint at *3 (Wash. Ct. App. 2005); see also p. 20 Goodhue, 833 A.2d at 866. “In making p. 21 A f f i r m e d

instruction.

beyond that necessary to accomplish the killing.” We find no error in this

was contemplated or expected to last for some appreciable period of time or, if the purpose of the confinement was to kill Reid, whether “the confinement as to whether the defendant confined Reid for the purpose of terrorizing him,

DALIANIS, C.J., and HICKS, J., concurred.

The trial court’s instructions to the jury required a unanimous decision

Id

.

the murder itself. view all the events leading up to the murder as merely incidental to