State v. Cook

• Decision Date: 25 June 1992
• Docket Number: Nos. 89-485,90-341,s. 89-485
• Citation: 610 A.2d 800,135 N.H. 655
• Parties: The STATE of New Hampshire v. Susan McLaughlin COOK.
• Court: New Hampshire Supreme Court

Page 800

610 A.2d 800

135 N.H. 655

The STATE of New Hampshire v. Susan McLaughlin COOK.

Nos. 89-485, 90-341.

Supreme Court of New Hampshire.

June 25, 1992.

John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, on the brief and orally, for defendant.

JOHNSON, Justice.

Following a jury trial, the defendant, Susan McLaughlin Cook, was convicted of conspiring with her ex-husband, Robert McLaughlin, Sr. ("Robert Sr."), to commit murder, of being an accomplice to murder, and of witness tampering. On appeal, the defendant argues that the Trial Court (Temple, J.) erred in making the following rulings: (1) that admission of out-of-court confessions made by Robert Sr., which inculpated her, did not violate N.H.R.Ev. 804(b)(3) or the defendant's confrontation rights under part I, article 15 of the State Constitution and the sixth amendment to the Federal Constitution; (2) that Robert Sr.'s psychiatric records were not discoverable for the purpose of determining the admissibility of his confessions; and (3) that a new trial was not required based on newly discovered, exculpatory evidence. For the reasons that follow, we affirm.

Robert Cushing was shot to death at his Hampton home on the night of June 1, 1988. In mid-July 1988, Robert McLaughlin, Jr. ("Robert Jr."), Robert Sr.'s twenty-five-year-old son, visited his father at his apartment. Robert Jr. had not seen his father for several months and was attempting to mend a troubled relationship. The two engaged in casual conversation until Robert Sr., according to Robert Jr.'s testimony, made the following confession implicating the defendant as an accomplice to Cushing's murder:

"[Robert Sr.] was going to shoot [Cushing] and he didn't care what happened to him, if he got caught for it or if he got killed.... And he went to [the defendant] and he told her about it, and she told him that he couldn't do it like that, that he had to come up with a better idea, that he had to come up with a better plan. So she told him that they had to disguise themselves. And she got him to put on a disguise, and herself. And then ... he went and got a shotgun; and [the defendant] ... walked out and got into the car ... on the driver's side. He got in on the passenger side. And [the defendant] drove to this place where this man lived and parked the car, and my father got out and went out into the yard. And then she drove down the road a ways and parked the car, and that she ran back to where he was there in the yard and she went to the side of the house and stood guard for him while he went up to the front door and shot Robert Cushing.... [He] and [the defendant] ran back to where she had parked the car.... She got in on the driver's side, again ... and he got in on the passenger side ... and they went to some place and got rid of the shotgun."

Shortly thereafter, the defendant, who was not present when Robert Sr. made the above confession to his son, entered the room. Robert Sr. informed the defendant that he had "told [Robert Jr.] everything" and reassured her that Robert Jr. could be trusted to keep the incident secret. The defendant, in response, articulated a similar version of the events which Robert Jr. testified to as follows:

"[M]y father came to her and told her that he was going to go out and kill Robert Cushing. And she told me that ... she thought ... that he'd have to have a better idea than that; ... that he had to come up with a plan.... [S]he told him, that they'd have to disguise themselves, and she ... told my father to dress in all black, to put on a black shirt, black pair of pants, a black hat.... [S]he had put on a pair of loose pants, a loose shirt and a pair of jogging sneakers, and she put her hair up.... [M]y father had gone and gotten his gun, and she had gone and gotten her karate staff ... and she had gone out to the car and my father followed her out, and ... she drove them to this place and parked the car and my father got out. And she said that she drove down the road and parked the car and ran back to where my father was. She said she got back to where he was and that she walked to the corner of the house; ... she stood there ... watching both ways while he walked up to the front door with the shotgun and shot Robert Cushing. She said after that they ran back to the car ... and that they rode around and that they got rid of the gun."

On August 26, 1988, Robert Sr. made a second confession inculpating the defendant. Victor DeMarco, a Hampton police officer and close friend, testified that the defendant called him and told him that Robert Sr. was "in real bad shape" and had "been drinking a real lot." DeMarco immediately drove to the McLaughlin apartment, where he found Robert Sr. in an "intoxicated" and "ragged" state. Shortly thereafter, according to DeMarco's testimony, Robert Sr. told DeMarco that he "whacked" Cushing. The defendant, who was not present, then entered the room, and Robert Sr. requested that she tell DeMarco about the Cushing murder. After expressing dismay that Robert Sr. had broken his promise not to tell anybody about the murder, the defendant told DeMarco that she had tried to stop Robert Sr. from committing the crime.

DeMarco then drove Robert Sr. to the Pease Air Force Base Hospital, leaving the defendant at the apartment. On the way to the hospital, Robert Sr. again confessed that he killed Cushing. When DeMarco responded that the police department's description of the murder suspect did not match Robert Sr.'s physical characteristics, Robert Sr. explained, "That must have been Sam [the defendant] they saw."

One week into the trial, when the State sought to introduce the testimony of Robert Jr. and DeMarco regarding the confessions, a lengthy hearing was held to determine whether Robert Sr.'s confessions to Robert Jr. and DeMarco, inculpating the defendant, were admissible under the confrontation provisions of the State and Federal Constitutions. At the conclusion of this hearing, the trial court ruled that Robert Sr.'s confessions to both Robert Jr. and DeMarco were sufficiently reliable to be admitted under the State and Federal Constitutions. The trial court also denied the defendant's motion to compel production of Robert Sr.'s psychiatric records, which the defendant asserted were necessary to determine the reliability of his inculpatory statements.

Several months after the defendant was convicted, but before Robert Sr.'s own trial, in which he admitted shooting Cushing and pled insanity, Robert Sr. wrote the defendant's attorney two letters which completely exculpated the defendant. The defendant moved for a new trial based on these letters. A hearing was held, and the motion was denied. The trial court reasoned, in part, that "in light of the evidence presented at trial ... the contents of the letters are not of such character that a different result would probably be reached upon another trial of these charges if these letters were admitted for the jury's consideration."

We first address the defendant's claim that Robert Sr.'s confessions constituted inadmissible hearsay evidence and did not fall within the statement against interest exception to the hearsay rule, N.H.R.Ev. 804(b)(3). The defendant argues that the exception does not extend to statements by a co-defendant that in culpate the defendant. This same claim was recently rejected in State v. Kiewert, 135 N.H. 338, 345, 605 A.2d 1031, 1036 (1992). In Kiewert, we held that Rule 804(b)(3) "permits the introduction into evidence of collateral statements contained within a declaration against penal interest inculpating the accused, which afford a reasonable assurance of trustworthiness." Id. at 345, 605 A.2d at 1035-36.

We recognize, however, "that evidence admitted under a state-created exception to the hearsay rule may nevertheless infringe constitutional rights." State v. Larochelle, 112 N.H. 392, 397, 297 A.2d 223, 226 (1972). As then-Justice Grimes stated "The right to confrontation is one of the basic safeguards of liberty. If it had not been intended that it should provide greater protection than that given by the hearsay rule as a mere rule of evidence subject to change or even elimination, there would have been no need to enshrine it in the Bills of Rights of both Constitutions."

Id. at 399, 297 A.2d at 232 (Grimes, J., dissenting). Thus, we must address the defendant's claim that Robert Sr.'s confessions, although properly admitted under Rule 804(b)(3), violated her confrontation rights pursuant to part I, article 15 of the New Hampshire Constitution and the sixth amendment to the Federal Constitution. See United States v. Harty, 930 F.2d 1257, 1263 (7th Cir.) (court determines admissibility under Rule 804(b)(3) and "retain[s] a separate Confrontation Clause analysis"), cert. denied, 502 U.S. 894, 112 S.Ct. 262, 116 L.Ed.2d 215 (1991). Because the Federal Constitution does not provide the defendant with greater protection in this area than she is entitled to under part I, article 15, we decide this case exclusively under the State Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the United States Supreme Court found that hearsay statements made in the context of prior judicial proceedings in which there had been an opportunity for cross-examination do not infringe a defendant's confrontation rights if: (1) the prosecution "produce[s], or demonstrates the unavailability of, the declarant whose statement it wishes to use against the defendant," id. at 65, 100 S.Ct. at 2538; and (2) the statement "bears adequate 'indicia of reliability,' " id. at 66, 100 S.Ct. at 2539. The general applicability of the analytical framework set out in Roberts, however, has been called into question. In United States v. Inadi, 475 U.S. 387, 106...