2019-0628, State of New Hampshire v. Roger Dana

affirm. exculpatory - statement jury instruction that the defendant requested. We trial court erred by admitting hearsay evidence, and by failing to give the false possibility of parole. The defendant appeals his conviction, arguing that the 630:1 - a, I(b)(1) (2016), for which he received a sentence of life without the trial in the Superior Court (Bornstein, J.), of first degree murder, see RSA BASSETT, J. The defendant, Roger D ana, was convicted, following a jury

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. John M. Formella, attorney general (Weston R. Sager, assistant attorney

No. 2019 - 0628 Coos

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

not really doing anything,” looking “nervous.” The victim had bruising on her help. The defendant “was just standing there very quiet, not saying anyt hing, the victim’s mother in the doorway, holding the lifeless victim and crying for At approximately 3:30 p.m., an officer arrived at the apartment. He saw

with her when she fell. her clothes, she fell off the top bunk. According to the defendant, he was alone on the top bunk of her bed, and that, while he was turned around look ing for victim’s mother and grandmother that he had given the victim a bath, put her the defendant “was just standing in the corner.” The defendant told the The victim’s mother instructed the grandmother to call 911. Meanwhile,

body. limp, her eyes were glazed over, and she had cuts and bruises all over her the lifeless victim, and “tried to make [her] respond.” The victim ’s arms were to resuscitate the vict im. The victim’s mother arrived soon afterward, grabbed defendant was crying and upset, and appeared drunk. He was not attempt ing the victim was “all banged up and black and blue” and was not breathing. The saw the defendant si tting on his bed and holding the victim. She observed that The grandmother arrived first. When she entered the apartment, she

what the defendant had told her. Both rushed to the apartment. died. The grandmother immediately called the victim’s mother and relayed grandmother. He told her that the victim had fallen off the bunk bed and had Approximately forty - five minutes later, the defendant called the victim’s the apartment, including loud banging and the defendant’s voice. defendant’s next - door neighbor heard a “cluster of loud noises” coming from appeared healthy and uninjured. Later, at approximately p. 2 2:30 p.m., the were in or around the apartment saw the victim and observed that she Between 9:00 a.m. and 1:00 p.m., acquaintances of the defendant who

were alone in the apartment. not have any bruising or bleeding. After they left, the victim and the defendant approximately 9:00 a.m., and saw that the victim appeared “normal” and did p.m. The victim’s grandfather and his fiancée were at the apartment until apartment to go to work, tel ling the defendant that she would return at 4:00 trouble eating and appeared uninjured. At 7:45 a.m., the mother left the breakfast, changed the victim’s diaper, and ob served that the victim had no morning of November p. 2 27, the victim’s mother woke first. She made the victim apartment, along with the victim’s grandfather and his fiancée. On the year - old daughter. On the night of November 26, 2016, all three slept at the an apartment in Berlin with his girlfriend and the vi ctim, their two - and - a - half - The jury could have found the following facts. T he defendant resided at

I. Facts p. 3 3

injured. maintained that he was alone in the apartment with the victim when she was room, he saw the victim on the floor. In all of these accounts, the defendant and then heard a thud. He also told her that, a fter returning to the victim’s than the top bunk, as he had previously told her — went back to his bedroom, defendant told the mother that he put the victim in the bottom bunk — rather off the bottom bunk. The defendant also met with the victim’s mother. The saying that the victim fell off the top bunk, and other times saying that she fell inconsistent accounts of the events leading up to the victim ’s death, sometimes mo rning of November 28, and again on November 29. The defendant provid ed The lead investigator interviewed the defendant twice: once in the early

wall. top that was wedged between the headboard of the defendant’s bed and the found on baby wipes in the trash and on her bed, and also on a child’s pajama defendant’s blood on a football jersey in his closet. The victim’s blood was several surfaces and items throughout the apartment. They found the executed a search warrant at the apartment. There, they discovered blood on The next day, Novem ber 28, officers from the State’s Major Crimes Unit

abdomen.” that the victim ’s cause of death was “blunt - impact i njuries of [the] head and penetration, possibly by “a finger or fingers or a penis.” The autopsy concluded to the victim’s anus and rectum, which she opined were caused by forced a “penetrating” small object, such as a finger. She also saw extensive injuries observed injuries around the victim’s vagina, which she opined were caused by injuries on all surfaces of her body, all surfaces of her head.” The examiner consistent with a fall from a bunk bed because there were “way too many who performed the autopsy of the victim confirmed that the injuries were not The victim was pronounced dead at 5:40 p.m. The medical examiner

“with a fall off of a bed.” The doctor opined that the victim’s injuries were “[a]bsolutely not” consistent like mush.” Her eyes were “fixed and dilated,” consistent with brain injury. pelvic area.” The back of the victim ’s head was so severely injured that it “felt “everywhere, on her face, her ears, her chest, her back, her abdomen, her At the hospital, the treating physician noted that the victim had bruising

walked back into his bedroom. told him they were going to the hospital, the defendant said “w hatever,” and for the hospital, the defendant asked where they were going. When the mother and placed the victim in an ambulance. As the mother and grandmother left beate n severely.” Just as the officer was attempting CPR, p aramedics arrived face and abdomen, no pulse, and cold skin, and she “looked like she had been p. 4 4

the grandmother, testified during the State’s case - in - chief. The defendant did not object to the statements on any other basis. We note that the declarant, 1

speaker was still in a state of nervous excitement produced by [the startling] p. 4 485, 487 (1985). Therefore, the statement must be made “at a time when the that provided by oath and cross - examination.” State v. Bonalumi, 127 N.H. which the utterance was made afford a guarantee of truth in substitution for underlying the excited utterance exception is that “the circumstances under the stress of excitement that it caused.” N.H. R. Ev. 803(2). The theory “relating to a startling event or condition, made while the declarant was under The excited utterance exception to hearsay encompasses statements

statement s as excited utterance s. 1 beat her.” Over the defendant’s hearsay objection, the trial court admitted the victim] had on her body,” and said that the defendant “murdered [the victim], “very upset” when she called. The grandmother “talked about the bruis es [the the victim’s death. The fiancée testified that the grandmother was “crying” and fiancée on November 28, approximately twenty - four hours after she learned of phone call that she had with the grandmother. The grandmother called the di scretion when it admitted t he grandfather’s fiancée ’s testimony about a The defendant first argues that the trial court unsustainably exercised its

unreasonable to the prejudice of his case. Id. at 372 - 73. defendant must show that the trial court’ s ruling was clearly untenable or omitted). To demonstrate an unsustainable exercise of discretion, the unsustainable exercise of discretion.” Letendre, 161 N.H. at 372 (quotation admissibility of evidence, and we will not disturb its decision absent an 802. “We accord the trial court considerable deference in determining the delineated exceptions. State v. Letendre, 161 N.H. 370, 372 (2011); N.H. R. Ev. Ev. 801(c). Hearsay evidence is generally inadmissible, subject to certain well evidence to prove the truth of the matter asserted in the statement.” N.H. R. while testifying at the current trial or hearing,” which “a party offers in Hearsay is defined as “a statement that . . . the declarant does not make

A. The Grandmother’s Statement s

the trial court erred when it admitted hearsay evidence. instruction. We turn first to the defendant’s argument that, on two occasions, evidence, and by giving the jury an unduly narrow false - exculpatory - statement The defendant argues that the trial court erred by admitting hearsay

II. Analysis

defendant was convicted. This appeal followed. for first degree murder. See RSA 630:1 - a, I(b)(1). Following a jury trial, the On December 2, the defendant was arrested, and he was later indicted p. 5 5

twenty - four hours between the victim’s death and the phone call, the established by our excited utterance precedents. In addition, d uring the exciting event and the statement s at issue extends well beyond the limits Here, as was the case in Woods, t he twenty - four - hour gap between the

under such stress as to preclude a conscious statement,” id. at 726 - 27. reflective thought,” and there was insufficie nt proof that she “was laboring day that elapsed had provided the child with “simply too much time for troubled by the decision to tell her mother about the assault, id. at 727, the statement s because, even though there was evidence that the child was N.H. at 723 - 24, 726. We held that the trial court erred when it admitted the statements to her mother about being assaulted the prior day. Woods, 130 whether a trial court erred when it admitted, as excited utterances, a child’s We find State v. Woods instructive. I n State v. Wood s, we considered

320, 32 p. 5 5 (1977). exciting event and the declarant’s state of mind. State v. Plummer, 117 N.H. other circumsta nces surrounding the statements,” including the nature of the utterance, the trial court must consider, in addition to t he time elapsed, “all (quotation omitted). When deciding whether a statement is an excited or rejecting such testimony.” State v. Pennock, 168 N.H. 294, 302 - 03 (2015) [A]ccordingly, much must be left to the discretion of the trial court in admitting mere narrative cannot be establis hed by any absolute rule of law.. . . spontaneity as an excited utterance evoked by a startling event and becomes a “The precise amount of time that may elapse before a statement loses its

error was harmless. also asserts that, even if the trial court erred in admitting the testimony, the the severe emotional trauma associated with” the victim’s murder. The S tate inherently distressing;” and (3) the grandmother “was continuing to suffer from conversation with the fiancée — the murder of her granddaughter — was and very upset during the phone call; (2) “the subject matter of her statements to be excited utterances because: (1) the grandmother was crying 726 (1988). The State counters that the trial court reasonably determined the chance to consider her own culpability.” See State v. Woods, 130 N.H. 721, “complex activities” requiring “relatively careful thought,” which gave her “a between the victim’s murde r and the phone call, the grandmother engaged in made twenty - four hours after the victim’s death; and (2) during the time admitted the statement s as excited utterance s becaus e: (1) the statement s were On appeal, the defendant argues that the trial court erred when it

result of reflective thought.” Id. at 488. statements were a spontaneous reaction to the occurrence or event and not the there was a sufficiently startling event or oc currence, and (2) the declarant’ s omitted). “[T] o admit the testimony the trial judge must be satisfied that (1) event, and before he had time to contrive or misrepresent.” Id. (quotation p. 6 6

victim. Approximately two weeks before the victim’s murder, the defendant was also evidence that the defendant, alone, expressed a motive to kill the was alone in the apartment with her when she sustained her injuries. T here T he defendant, alone, had the opportunity to cause the victim’s death, as he to the strength of the other evidence of guilt. See Edic, 1 p. 6 69 N.H at 588 - 89. the grandmother’s statements were cumulative and inconsequential in relation the defendant inflicted these injuries is of an overwhelming nature, and that We conclude, base d upon a review of the record, that the evidence that

course of that assault, and died as a result of her injuries. to establish that the victim was sexually assaulted, brutally beaten in the sexual assault.” RSA p. 6 630:1 - a, I(b)(1). There was substantial physical evidence while engaged in the commission of, or while attempting to commit felonious prove that the defendant kn owingly caused the victim’s death “before, after, To convict the defendant of first degree murder, the State was required to

erroneously admitted eviden ce itself. Id. at 589. consider the other evidence presented at trial as well as the character of the the State’s evidence of guilt. Id. at 588 - 89. In making this determination, we evidence is merely cumulative or inconsequential in relation to the strength of overwhelming nature, quantity, or weight and if the improperly admitted reasonable doubt if the other evidence of the defendant’ s guilt is of an the e rror did not affect the verdict. Id. An error may be harmless beyond a an error was harmless, the State must prove beyond a reasonable doubt that State v. Edic, 1 p. 6 69 N.H. 580, 588 (2017) (quotation omitted). To establish that

than on the virtually inevitable presence of immaterial error. criminal process by focusing on the underlying fairness of the trial rather defendant’s guilt or innocence, and promotes public respect for the purpose of a criminal trial is to decide the factual question of the The harmless - error doctrine recognizes the principle that the central

that the error was harml ess beyond a reasonable doubt. Although the testimony was admitted in error, we agree with the State

court to admit the grandmother’s statements as excited utterances. Therefore, we hold it was an unsustainable exercise of discretion for the trial precluded admitting hearsay under the excited utterance exception). (2013) (noting the trial court’s determination that “intervening events” exciting event had subsided.” Id.; cf. State v. Fischer, 1 p. 6 65 N.H. p. 7 706, 711 provides strong evidence that,” by the time of the phone call, “the effect of the McCormick on Evidence § 272, at 395 (8th ed. 2020). Such “[p]roof . . . allowing the police to search her phone. 2 Robert P. Mosteller et al., being interviewed by the police, giving the police her shirt for testing, and grandmother “performed tasks requiring relatively careful thought,” such as 7

the testimony was hearsay and, therefore, inadmissible. because no statement had been elicited. The defendant argues on appeal that and admitt ed the testimony, reasoning that it was admissible non - hearsay arguing that they were inadmissible hearsay. The court overruled the objection Defense counsel objected and moved to strike the investigator ’s responses, A Yes. Q To account for their whereabouts? A Yes, they were. Q Were the people they were with on November 2 p. 7 7th interviewed? A Yes. Q Defense counsel asked you about [four individuals]. Remember that?

follows: three other individuals. On re - direct examination, the State inquired as search her home, and that the investigator did not personally search her or establishing that the investigator did not swab t he grandmother ’s hands or and on cross - examination, defense counsel attacked h is investigation by examination, the State asked the investigator questions about his investigation, about interviews the investigator conduct ed during the investigation. On direct State’s re - direct examination of the lead investigator, it admitted testimony The defendant next argues that the trial court erred when, during the

B. The Investigator’s Statements

harmless beyond a reasonable doubt. See Edic, 169 N.H. at 588 - 92. grandmother ’s statement s did not alter the verdict and was, therefore, that the State has met its burden of proving that the error in admitting the victim. See State v. Peters, 162 N.H. 30, 38 (2011). Accordingly, we conclude been admitted, there was overwh elming evidence that the defendant killed the cumulative and inconsequential. Even if the challenged testimony had not Given this evidence, the grandmother’s statement s w ere merely

blood - stained pajama top, see Edic, 169 N.H. at 590. State v. Evans, 150 N.H. 416, 420 (2003), and e vidence that he hid the victim’s his guilt, including his inconsistent explanations for how the victim died, see from which the jury could have inferred that the defendant was conscious of to the hospital; and hi s nervous demeanor. In addition, there was evidence police; his failure to attempt to resuscitate her; his refusal to go with the victim injured, such as his decision to call the victim’s grandmother instead of the other evidence also included the defendant’s behavior after the victim was go do something to go to jail if he’s going to be treated like he’s in jail.” The had to be hom e all the time to watch [the victim],” and that “he might as well just said his life was like “jail” because “he co uldn’ t leave the house hardly . . . and he p. 8 8

that the trial court erred when it failed to give his version of the instruction. exculpatory - statement jury ins truction was itself permissible; rather, he argues On appeal, the defendant does not challenge whether giving a false -

consciousness of guilt or nothing at all. exculpatory statements, if made, constituted or indicate evidence. It is your decision as jurors as to whether false guilt and determine what significance, if any, to give to such may consider whether the statements show a consciousness of statement or statements were later discovered to be false, then you statements tending to demonstrate his innocence, and the [I]f you find that the [d]efendant intentionally made a statement or

object ion and gave the following instruction: defendant’s friends and the grandmother. The court over ruled the defendant’s apply not only to him, but also to other witnesses — specifically, one of the different version of the false - exculpatory - statement instruction that would The defendant objected to the State’s request ed instructio n, and proposed a statement in order to demonstrate his innocence. See Evans, 150 N.H. at 420. consciousness of guilt from evidence that the defendant had made a false exculpatory - statement instruction. Such instructions permit the jury to infer At trial, the State requested that the court provide the jury with a false -

than the defendant. false - exculpatory - statement jury instruction t o encompass individuals other argues that the trial court erred when it denied his request to broaden the We turn now to the defendant’s third claim of error. The defendant

C. False - Exculpatory - Statement Jury Instruction

court’s error, if any, was harmless. See id. at 5 p. 8 88 - 8 p. 9 9. in relation to the strength of the State’s evidence of guilt, we hold that the trial at 592. B ecause the challenged testimony was cumulative and inconsequential the victim in the apartment pr ovided substantial evidence of that fact. See id. victim was injured, the defendant’s repeated statements that he was alone with jury that none of the four named individuals were at the apartm ent when the individu als. However, even if the investigator ’s response s did suggest to the testifying declarants had vouched for the whereabouts of the four named investigator ’s response s could arguably have informed the jury that non - State presented overwhelming evidence of the defendant’s guilt. The investigator’s statements, any error was harmless. As described above, the we agree with the State that, even if the trial court erred when it admitted the We do not reach the merits of the defendant’s hearsay argument because 9

individuals other than him. See id. case absent a false - exculpatory - statement instruction that pertained to conclude that the jury was incapable of evaluating the defendant’s theory of the credibility. Id. Therefore, viewing the jury i nstructions as a whole, we cannot outlined “various factors for the jury to consider” when evaluating witness instruction — the same instruction that the jury in Evans was given — that evaluate witness credib ility.” Id. Indeed, the jury in this case was given an court’s o ther jury instructions included “extensive information to help the jury opportunity to cross - examine both individuals. Additionally, as in Evans, the friend murdered the victim and, during trial, defense counsel had the opening and closing remarks that either the grandmother or the defendant ’s 424 (quotation omitted). The defendant’s attorneys vigorously argued in their opportunity to present his theory and the jury was free to consider it.” Id. at supported our decision in Evans are present here. T he defendant had “ample instruction was a sustainable exercise of discretion. All of the factors that The trial court’s decision not to expand the false - exculpatory - statement

the instructions did not adequately state the relevant law.” I d. context of the entire charge and all evidence presented at trial, reversing only if discretion. Id. at 422. “We review the denial of a proposed instruction in the necessary in a particular case is an is sue reserved to the trial court’ s sound by fa iling to give the instruction. See id. at 422 - 24. Whether an instruction is has not demonstrated that the trial court unsustainably exercised its discretion others,” id. at 422. However, like th e defendant in Evans, the defendant here instances for the jury to be instructed on the false exculpatory statements of “We assume, without deciding, that it may be appropriate in some

distinction between theories of defense and theories of the case). defense and theories of the case. We decline to do so. See id. (reaffirming the revisit Bruneau and its progeny and reject the distinction between theor ies of only to a theory of the case, not a theory of defense. However, he asks us to The defendant acknowledges that his requested instr uction pertained

discretion.” Evans, 150 N.H. at 422. defendant’s theory of the case “is an issue reserved to the trial court’s sound 634, 635 (1 p. 9 980) (emphasis added), whether to instruct the jury about the given if such theory is supported by some evidence,” State v. Aubert, 120 N.H. 422. Whereas “[a] requested charge on a party’s theory of defense must be not a “theory of defense.” Bruneau, 131 N.H. at 117, 118; Evans, 15 0 N.H. at tend[s] to indicate someone else [is] guilty” constitutes a “theory of the case,” exculpatory statements of other witnesses because “a factual argument that defendant s in those cases were not entitled t o instruction s about the false Evans, 150 N.H. at 422. In both Bruneau and Evans, we held that the argument in this case. See State v. Bruneau, 131 N.H. p. 10 104, 116 - 18 (1988); We have twice before rejected arguments similar to the defendant’s 10

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

but did not brief, are deemed waived. State v. Scott, 167 N.H. 634, 643 (2015). degree murder. Any issues that the defendant raised in his notice of appeal, For the foregoing reasons, we affirm the defendant’s conviction for first

III. Conclusion