State v. Brooks

• Decision Date: 30 October 2012
• Docket Number: No. 2008–875.,2008–875.
• Citation: 56 A.3d 1245,164 N.H. 272
• Parties: The STATE of New Hampshire v. John BROOKS.
• Court: New Hampshire Supreme Court

164 N.H. 272

56 A.3d 1245

The STATE of New Hampshire

v.John BROOKS.

No. 2008–875.

Supreme Court of New Hampshire.

Argued: Feb. 16, 2012.

Opinion Issued: Oct. 30, 2012.

As Modified on Denial of Reconsideration Nov. 28, 2012.

Michael A. Delaney, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State.

Hinckley, Allen & Snyder LLP, of Concord (Christopher H.M. Carter and Danielle L. Pacik on the brief), and Foley Hoag LLP, of Boston, Massachusetts (Martin F. Murphy on the brief and orally), for the defendant.

CONBOY, J.

The defendant, John Brooks, appeals his conviction, following a jury trial, for capital murder involving solicitation, capital murder in the course of a kidnapping, first degree murder (as an accomplice), and conspiracy to commit capital murder, in connection with the death of Jack Reid, Sr. See RSA 630:1, I(b), (c) (1996) (amended 2006, 2011); RSA 630:5 (1996); RSA 626:8 (Supp.2004) ; RSA 630:1–a, I (a) (1996); RSA 629:3 (Supp.2004). On appeal, he argues that the Superior Court (Lynn, C.J.)erred by: (1) permitting the State to authenticate documents by use of affidavits, rather than live testimony, in violation of his rights under the State and Federal Constitutions; (2) permitting an FBI agent to testify that the defendant's account may have been untruthful; (3) permitting the State to introduce a new opinion from the medical examiner during the trial; (4) failing to instruct the jury that it must determine the "predominating cause" of death, pursuant to State v. Seymour, 140 N.H. 736, 673 A.2d 786 (1996) ; (5) failing to instruct the jury that the solicitation variant of capital murder requires a finding that the defendant acted for his personal pecuniary gain; and (6) failing to instruct the jury that the kidnapping variant of capital murder requires a finding that the defendant intended to confine Reid to commit a crime other than murder. We affirm.

I. Facts

The jury could have found the following facts. See State v. Knight, 161 N.H. 338, 13 A.3d 244 (2011) (related proceeding). In September 2003, the Brooks family's belongings were stolen from a rental truck and trailer, which the family had loaded in preparation for their move from New Hampshire to Las Vegas. Although the Brookses suspected Jack Reid of the theft, they agreed not to give his name to the police; instead, the defendant told two friends of his son, Jesse—Andrew Carter and Michael Benton—that he wanted their help to kill Reid. He met with Carter and Benton over the next several months to discuss how to "take care of" Reid, including possibly kidnapping him so that the defendant could find out the location of his property, and ultimately killing him. The defendant assured Carter and Benton that they would be "taken care of" if they helped him, and they were initially paid $5,000. However, their attempts on Reid's life in 2003 were unsuccessful. The defendant and Carter continued to discuss killing Reid into the fall of 2004.

In August 2004, the defendant, his wife Lorraine, and Jesse went to the Portsmouth office of the Federal Bureau of Investigation, where they reported their suspicions regarding Reid and provided Special Agent Laura Hanlon a written chronology of events that concerned them.

At some point, the defendant became acquainted with Joseph Vrooman and Robin Knight in Las Vegas. Sometime after June 10, 2005, he offered Vrooman $10,000 to help him kill Reid, and Vrooman agreed. The defendant and Vrooman then met at the defendant's Las Vegas home, joined by Jesse.

They discussed obtaining a telephone with which to lure Reid to the property of Michael Connors, another New Hampshire acquaintance, and obtaining handcuffs, pepper spray, and a stun gun with which to subdue Reid. After this meeting, Vrooman obtained the handcuffs, pepper spray, and stun gun and brought them to the defendant's Las Vegas home, where they packaged the supplies and sent them to Connors in New Hampshire. On June 18, 2005, the defendant and Vrooman flew to New Hampshire, where Connors picked them up at the airport, bearing the unopened package of supplies as the defendant had instructed.

The next day, the defendant and Vrooman met Benton in Manchester. The defendant paid for Benton to purchase a prepaid cellular telephone with which to call Reid; Benton activated the telephone using the name "Charlie Was." They then drove to Connors's home. Although Connors told the defendant he did not want him to use his property, Vrooman testified that the defendant told him and Benton that they could use Connors's place.

Over the next week, the defendant and Vrooman, joined by Knight, purchased more supplies—a large black plastic tarp, duct tape, garbage bags, zip-ties, Saran Wrap, and gloves. They decided that Vrooman, Knight, and Benton would subdue Reid, and the defendant would be armed with his .22 caliber handgun in case anything went wrong.

On June 27, 2005, the date they had set for Reid to come to Connors's property for a fictitious job, the defendant, Vrooman, Benton, and Knight drove to the property. Once there, Benton testified, the defendant stated that he wanted Reid to know that "it's me that's doing this to him." To this end, they decided that they would confine Reid in a small closet area in the home's attached barn, after which the defendant would confront him and they would suffocate him using the Saran Wrap. However, Benton found a sledgehammer in the barn, so the plan became that Vrooman would push Reid into the closet, where Benton would hit him with the sledgehammer.

When Reid arrived at Connors's house, the defendant and Benton hid in the barn. Knight and Vrooman greeted Reid and led him down a hallway into the barn. After Vrooman pushed Reid into the closet, Benton hit him on the side of the head with the sledgehammer. Knight told Benton that Reid was not yet dead, and Benton struck two or three additional blows to Reid's forehead with the sledgehammer. Knight, Vrooman, and the defendant carried Reid, still breathing, from the closet to the black plastic tarp, which had been laid out on the barn floor. As Knight and Benton tried to clean up the blood, Vrooman told the defendant that Reid would not stop bleeding. Vrooman testified that the defendant said, "[S]top the heart, stop the bleeding," and struck Reid two or three times in the chest with the sledgehammer. The four men then emptied Reid's pockets, wrapped his body in the tarp, carried it out to the back of Reid's dump truck, and covered it with branches and rocks.

Vrooman and Knight drove Reid's truck to Massachusetts and left it in a Target Store parking lot. The defendant gave Benton $5,000. After returning to New Hampshire, the defendant and Vrooman threw the sledgehammer, handcuffs, and Reid's watch into a nearby river. They stopped by the home of Bert Seaver, a friend of the defendant, where they disposed of evidence. The following day, the defendant, Vrooman, and Knight returned to Connors's barn and replaced the walls and floor of the closet area where Reid had been killed.

On July 1, 2005, the defendant, Vrooman, and Knight returned to Las Vegas. There, the defendant paid Vrooman $2,500 in cash; over the next few months, Vrooman received an additional $10,000 from the defendant and Jesse. Vrooman was told that Knight had also been paid. In late July, the defendant sent Benton another $400 through Western Union. In early August, Benton telephoned Jesse to ask for more money so he could travel to Las Vegas, and received another $800 through Western Union.

II. Confrontation Clause

At trial, the State introduced extensive documentary evidence, including telephone records, air travel records, insurance company records, Federal Express records, and Western Union records, as business records under New Hampshire Rule of Evidence 803(6), and authenticated the records through certifications from the records' custodians pursuant to New Hampshire Rule of Evidence 902(11). The defendant argues that allowing the records to be so authenticated violated his rights under the Sixth Amendment's Confrontation Clause and the New Hampshire Constitution. He challenges the trial court's ruling that the certifications of authenticity pursuant to Rule 902(11) were not testimonial, arguing that "the custodian affidavits did far more than ‘authenticate’ records as genuine copies of originals in the custodian's possession."

We review the defendant's Confrontation Clause challenges de novo. See United States v. Yeley–Davis, 632 F.3d 673, 678 (10th Cir.2011), cert. denied, ––– U.S. ––––, 131 S.Ct. 2172, 179 L.Ed.2d 951 (2011). Because the defendant has raised his claim under both the State and Federal Constitutions, we would normally address his State claim first. See State v. Ayer, 154 N.H. 500, 504, 917 A.2d 214 (2006). However, the defendant's arguments center upon his rights under the Federal Constitution:

he contends that admitting the records through affidavits, rather than live testimony, was contrary to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny, Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, –––U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We will therefore first address his claim under the Federal Constitution.

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Fourteenth Amendment renders the Confrontation Clause binding on the States. See Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 1152, 179 L.Ed.2d 93 (2011). Only "testimonial statements" cause a declarant to be a "witness" within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (quotations omitted). A witness is a person who "bear[s] testimony." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (...