State v. Ayer

• Citation: 917 A.2d 214,154 N.H. 500
• Decision Date: 07 December 2006
• Docket Number: No. 2004–510.,2004–510.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Daniel AYER, Sr.

154 N.H. 500

917 A.2d 214

The STATE of New Hampshire

v.Daniel AYER, Sr.

No. 2004–510.

Supreme Court of New Hampshire.

Argued: Sept. 27, 2006.

Opinion Issued: Dec. 7, 2006.

Rehearing Denied Jan. 30, 2007.

Kelly A. Ayotte, attorney general (Simon R. Brown, senior assistant attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

Daniel E. Ayer, Sr., by brief, pro se.

GALWAY, J.

The defendant, Daniel Ayer, Sr., appeals his conviction for first-degree murder, see RSA 630:1–a, following a jury trial in Superior Court (Hampsey, J.). We affirm.

The jury could have found the following facts. Beginning in 1998, the New Hampshire Division for Children, Youth and Families (DCYF) became involved with the defendant's family, and in July 1999, Family Counselor Mark Rowland of the Nashua Children's Home was assigned to the defendant's case. On August 20, 1999, Rowland was scheduled to meet with the defendant's family. When Rowland arrived that day, the defendant was leaving in his truck. He informed Rowland that he did not want to meet and that he hoped Rowland would leave. The defendant then left the property but remained in the immediate area. Rowland did not leave. When the defendant returned a few minutes later, Rowland told the defendant that he would not leave. The defendant then shot Rowland in the head and fled in his truck. Rowland later died from the gunshot wound

.

Within minutes of the shooting, Officer Martin Matthews of the Nashua Police Department received a radio dispatch about the shooting and rushed to the scene. Immediately after he arrived, emergency medical personnel arrived and began treating Rowland. As soon as the scene was secured, Matthews was ordered to begin investigating this urgent situation. He scanned the area for potential witnesses to the shooting and for anyone who might know where the shooter was. His attention was drawn to a woman, later identified as Joan Ayer, the defendant's wife, who was standing near the scene, crying hysterically. As Matthews approached Mrs. Ayer, but before he asked any questions, she blurted out, "He had said that morning that he was going to shoot him," and, "he'd been sitting across the street in his truck all morning waiting for him." Matthews asked to whom Mrs. Ayer was referring and she responded that it was her husband. When asked who her husband was, Mrs. Ayer identified the defendant. She then described the defendant's truck and informed Matthews that the defendant had access to firearms.

Matthews conveyed Mrs. Ayer's description of the defendant's vehicle to his dispatcher, who then issued an alert to other officers. Shortly thereafter, Officers Matthew Eskridge and Scott Anderson saw the defendant's truck. The officers stopped the truck and arrested the defendant without incident. While arresting the defendant, the officers noticed firearms and ammunition in his truck. One of the firearms was later determined to be the murder weapon. The defendant was transported to the Nashua Police Department for booking. Approximately forty minutes elapsed from the time the original dispatch was sent until the defendant was booked at the police station.

At the police station, the defendant waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and gave a formal statement to police. He stated that he felt he had been harassed by DCYF and other agencies for some time and that when Rowland arrived at his home and would not leave, he "snapped." He also stated that he had been contemplating making a "demonstration" for some time and that a "demonstration" was necessary to make DCYF and others heed his complaints and concerns.

In 2003, the defendant was convicted of first-degree murder. That conviction was reversed on appeal. See State v. Ayer, 150 N.H. 14, 834 A.2d 277 (2003). Upon retrial, the defendant was again convicted of first-degree murder. This appeal followed.

On appeal, the defendant argues that the trial court erred by: (1) permitting the State to introduce Mrs. Ayer's statements to Officer Matthews; (2) permitting the State to introduce evidence of the firearms and ammunition found in his truck; (3) failing to allow him to present evidence on, and have jury instructions regarding, certain defenses and lesser offenses; (4) appointing counsel for him when he desired to proceed pro se; (5) partially denying a motion to suppress and failing to find that he invoked his right to counsel during booking; (6) only partially suppressing his statement to Nashua police officers; and (7) denying pretrial motions to suppress regarding items seized from his truck as the fruits of unlawfully obtained statements. We address each argument in turn.

I. Mrs. Ayer's Statements to Officer Matthews

The defendant first argues, based upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that because Mrs. Ayer did not testify at his trial, the State should not have been permitted to introduce her statements to Officer Matthews. The defendant contends that admitting Mrs. Ayer's statements violated his right to confrontation under the New Hampshire and United States Constitutions. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amends. VI, XIV. Because the defendant has raised his claim under the State and Federal Constitutions, we would normally address his State claim first. See State v. Dedrick, 132 N.H. 218, 226, 564 A.2d 423 (1989). However, in this case, the defendant has raised an issue under the Federal Constitution and has not enunciated either a State standard different from the Federal one or a reason to adopt such a standard; we will therefore address his claim under the Federal Constitution first. Id.

In Crawford, the defendant was arrested for stabbing a man who, he claimed, attempted to rape his wife. Crawford, 541 U.S. at 38, 124 S.Ct. 1354. The defendant's wife was interrogated at the police station, and gave a taped statement about the incident. Id. at 38–39, 124 S.Ct. 1354. At trial, the defendant's wife did not testify. Id. at 40, 124 S.Ct. 1354. The State, therefore, sought to introduce her tape-recorded statement. Id. The defendant objected on the ground that introducing the tape would violate his Sixth Amendment right to confrontation. Id.

In ruling that the admission of the taped statement violated the "Sixth Amendment's guarantee that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him", id. at 38, 124 S.Ct. 1354 (quotations and ellipsis omitted), the Court overruled, in part, a line of cases beginning with Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under the Roberts analysis, certain out-of-court statements could be admitted if the declarant was unavailable and the statements fell within a "firmly rooted" exception to the rule against hearsay, or if they bore particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. In rejecting the Roberts formulation as it pertained to testimonial statements, the Court stated, "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ " Crawford, 541 U.S. at 61, 124 S.Ct. 1354. Accordingly, the Court ruled that testimonial statements of a declarant absent from trial would only be admitted when the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Id. at 59, 124 S.Ct. 1354. The Court did not alter the Roberts analysis pertaining to the admissibility of nontestimonial statements. See, e.g., Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) ("[U]nless [the] statements qualify as ‘testimonial,’ Crawford is inapplicable and Roberts continues to apply.").

Under Crawford, "a declarant's ‘testimonial’ out-of-court statement is not admissible under the Confrontation Clause unless (1) the declarant testifies, or (2) the defendant had a prior opportunity for cross-examination and the declarant is unavailable, or (3) the evidence is admitted for purposes other than establishing the truth of the matter asserted." United States v. Maher, 454 F.3d 13, 19–20 (1st Cir.2006). Therefore, "[a]ssuming the declarant does not testify and is in fact available, and/or there was no prior opportunity for cross-examination of the declarant, Crawford claims will usually turn on one of two issues. First, was the out-of-court statement testimonial? Second, if so, is it admissible for reasons other than the truth of the matter asserted?" Id. at 20. Resolution of the matter before us turns on the first issue.

In Crawford, the Supreme Court did not define what statements qualify as testimonial. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Instead, the Court listed, for illustrative purposes, various types of statements that fall within the "core class" of testimonial statements. With only the Supreme Court's illustrations to guide them, however, state and federal courts developed numerous, and often conflicting, analyses for determining which evidence is testimonial and therefore subject to Crawford. See, e.g., Flores v. State, 121 Nev. 706, 120 P.3d 1170, 1177 (2005). Recently, in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court clarified the definition of testimonial statements.

Davis involved two consolidated cases. In the first, Davis v. Washington, a woman made a 911 call during the course of a domestic disturbance with her former boyfriend. Id. at 2270–71. The victim gave numerous statements to the 911 operator about her assailant during and immediately after the assault. Id. at 2271. When police arrived a few minutes later, they observed the victim's shaken state, her fresh injuries and her frantic efforts to collect her...