State v. Cassavaugh

• Decision Date: 10 November 2010
• Docket Number: No. 2009–342.,2009–342.
• Citation: 12 A.3d 1277,161 N.H. 90
• Parties: The STATE of New Hampshirev.Kirkman J. CASSAVAUGH, III.
• Court: New Hampshire Supreme Court

161 N.H. 90
12 A.3d 1277

The STATE of New Hampshire
v.
Kirkman J. CASSAVAUGH, III.

No. 2009–342.

Supreme Court of New Hampshire.

Argued: June 23, 2010.Opinion Issued: Nov. 10, 2010.

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Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.CONBOY, J.

[161 N.H. 93] After a jury trial in Superior Court ( Smukler, J.), the defendant, Kirkman J. Cassavaugh, III, was convicted of first degree murder in the death of Jeremy Huard, RSA 630:1–a, I(a) (2007), and second degree murder in the death of Jennifer Huard, RSA 630:1–b, I(a) (2007). The defendant appeals, arguing that the trial court erred by: (1) admitting evidence that he previously threatened to kill Jennifer; (2) admitting evidence that he terminated his initial interview with the police; and (3)

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admitting evidence of a second police interview from which statements he made invoking his right to be silent had been redacted. We affirm.

A jury could have found the following facts. During the summer of 2006, the defendant and Jennifer Huard were involved in a romantic relationship. The defendant and Jennifer's brother, Jeremy Huard, were friends. The three often engaged in drug use together at the defendant's trailer, which was situated on land owned by his grandparents. The defendant and Jennifer often argued, however, and the relationship was troubled.

During that summer, Krystal Sanborn made a telephone call to Jennifer during which she overheard a man yelling at Jennifer in a voice filled with rage. She heard the man call Jennifer a “whore” and say he was “going to f.....g kill her.” Jennifer explained to Sanborn that it was the defendant who was yelling and that they often fought.

In September 2006, Jennifer moved her belongings out of the defendant's trailer and into her father's home. However, both she and Jeremy [161 N.H. 94] remained in contact with the defendant. On the night of September 19, 2006, the defendant, Jeremy, and several acquaintances were at the defendant's trailer consuming drugs. After the acquaintances had departed, Jennifer called the defendant asking to be picked up from a house in Franklin. Together the defendant and Jeremy drove to pick her up.

During the car ride back to the defendant's trailer, the defendant and Jennifer argued. The argument continued after they arrived at the trailer, waking Marc Thomson, who lived in a recreational vehicle nearby. Thomson looked out his window to see the defendant punching Jeremy and throwing him to the ground. Thomson yelled to the defendant, “Don't kill him, Kirk.” He got dressed and when he again looked out his window he observed the defendant dragging Jennifer by her feet out the door of the trailer.

Shortly thereafter, the defendant knocked on Thomson's door and told Thomson that he had “killed them.” He asked for Thomson's help in dragging the bodies to the back of his trailer in order to burn them. Thomson responded that burning the bodies at night would attract attention and instead offered to help by warming up his car. Thomson then drove away, leaving the defendant at the property. Later that morning, Thomson reported to the police what had taken place. Based on Thomson's report, the police obtained permission from the defendant's grandparents to search the property. They found both bodies in debris piles behind the defendant's trailer.

Autopsies revealed that Jennifer died within seconds of suffering a gunshot wound to her chest, while Jeremy died of multiple stab wounds and contributing gunshot wounds. Jennifer also sustained a second gunshot wound to her shoulder and there had been bleeding under the skin on the back of her head that was consistent with having been dragged down stairs. Jeremy suffered twelve stab wounds, as well as gunshot wounds to his face, back and buttocks. Marks on Jeremy's neck were consistent with having been strangled. Jeremy also sustained a forehead injury, which was consistent with having been struck with the butt end of a rifle. His body had abrasions that were likely caused after death and which were consistent with his body having been dragged.

According to forensic reports, Jennifer's blood appeared in numerous areas of the

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defendant's kitchen. Jeremy's blood was found on the defendant's carpet, floor mat and walls. The defendant's bare footprint was discovered on the floor mat, which was covered in Jeremy's blood.

There were bullet holes in the front door of the defendant's trailer, in a wall beside the refrigerator, and in the defendant's refrigerator door. A bullet removed from Jennifer's body was identified as having been fired from a rifle seized from the defendant's trailer. A second bullet, discovered in the trailer, was identified as having been fired from the same rifle. The [161 N.H. 95] defendant's finger and palm prints were the only prints discovered on the rifle. The bullet holes found in the refrigerator had been freshly filled with caulking and a tube of the same caulking was discovered in the defendant's trash.

Police conducted interviews with the defendant both before and after the discovery of the bodies. In the initial interview, the defendant did not appear surprised or concerned to learn that Jeremy and Jennifer were missing. He characterized Jennifer as a “miserable bitch,” and stated that she and Jeremy left his house on foot at approximately 4:00 a.m. that morning, after he engaged in an argument with Jennifer. When the police began to press the defendant about whether he had killed either Jennifer or Jeremy, however, his demeanor changed. His breath quickened, he slumped in his chair, and he began to look “sickly,” although he continued to deny any involvement in the killings. He then asked to end the interview and the interview was terminated.

Police conducted a second interview after the victims' bodies were found. The defendant was read his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which he waived, and he agreed to speak with the officers. After the conversation turned to his potential involvement in the murders of Jennifer and Jeremy, however, the defendant invoked his right to remain silent. He was subsequently arrested. While in the booking area the defendant was agitated and spontaneously exclaimed, “I didn't kill them. They attacked me.” Later, he made the unprompted statement, “This all stemmed from me being kicked in the balls and being pushed into my ... TV.”

The defendant was indicted on six counts of murder in the deaths of Jeremy and Jennifer Huard. Specifically, he was charged with one count of first degree murder and two alternative counts of second degree murder with respect to each victim. Before trial, the State successfully moved, over the defendant's objection, to admit the testimony of Krystal Sanborn, as well as portions of the transcripts and videotaped recordings of the two police interviews of the defendant. On appeal, the defendant challenges the admission of all that evidence.

I. Witness Testimony

We first consider the admission of Krystal Sanborn's testimony. Prior to trial, the State moved to admit, in its case-in-chief, Sanborn's testimony that she heard the defendant threaten to kill Jennifer. The defense objected. After an evidentiary hearing, the trial court ruled that the evidence was admissible under New Hampshire Rule of Evidence 404(b).

[161 N.H. 96] “The purpose of Rule 404(b) in a criminal trial is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs.” State v. Bassett, 139 N.H. 493, 496, 659 A.2d 891 (1995). Rule 404(b) provides:

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Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

N.H. R. Ev. 404(b). A three-part test has been established for determining the admissibility of evidence under Rule 404(b): “(1) the evidence must be relevant for a purpose other than proving the defendant's character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant.” State v. Beltran, 153 N.H. 643, 647, 904 A.2d 709 (2006). “The State bears the burden of demonstrating the admissibility of prior bad acts.” Id. Nevertheless, “[i]n ruling on the admissibility of evidence under Rule 404(b), the trial court exercises its sound discretion, and we will find error only if the defendant can show that the ruling was clearly untenable or unreasonable to the prejudice of his case.” Bassett, 139 N.H. at 496, 659 A.2d 891 (citation omitted).

The defendant challenges the admissibility of the statement under the first and third prongs of the Rule 404(b) test, arguing that the testimony was irrelevant except to improperly show his propensity to commit violence and that the prejudice to his case substantially outweighed the probative value of the evidence. The State counters that the evidence was admissible because it was relevant to prove the defendant's intent and because its probative value outweighed any prejudicial effect.

To meet its burden under the first prong of the Rule 404(b) test, the State must “specify the purpose for which the evidence is offered and articulate the precise chain of reasoning by which it will tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character or propensity.” Beltran, 153 N.H. at 647, 904 A.2d 709. “To be relevant [to...