State v. Cook
| Decision Date | 20 December 2002 |
| Docket Number | No. 2000–193.,2000–193. |
| Citation | 813 A.2d 480,148 N.H. 735 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Lawrence COOK. |
Philip T. McLaughlin, attorney general (Elizabeth A. Dunn, attorney, on the brief and orally), for the State.
Michael J. Sheehan, of Concord, by brief and orally, for the defendant.
The defendant, Lawrence Cook, appeals his conviction on eight counts of aggravated felonious sexual assault, see RSA 632–A:2 (1996), and eight counts of felonious sexual assault, see RSA 632–A:3 (1996), following a jury trial in Superior Court (Mohl , J.). On appeal, the defendant argues: (1) the jury in his first trial effectively found him not guilty, making his second trial unconstitutional; (2) he was in custody at the time of his interrogation, requiring suppression of his statements; (3) the admission of photographs of the victim was unfairly prejudicial; (4) the trial court erred by not giving his requested jury instruction; and (5) the jury should not have been given a transcript, which was not admitted into evidence, during deliberations. We affirm.
The relevant facts follow. Upon receipt of a report concerning allegations that J.K., a minor female, had been sexually abused by the defendant, an investigating officer interviewed her. The officer obtained authorization for a "one-party intercept" of a telephone conversation between the victim and the defendant, during which the defendant made incriminating statements, became emotional and talked about killing himself.
Immediately after the conversation, two investigating officers traveled to the defendant's workplace at Pease Air National Guard Base to interview him. To arrange the interview, the officers called the head of security, Sergeant Sullivan, who told the defendant that there were police officers in the main foyer who wanted to talk to him, and that if he was ready Sullivan would direct or take him to them. The defendant met the officers and led them to a place where they could talk privately. One officer explained why they were there and told the defendant that he did not have to talk with them, but did not advise him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant expressed his willingness to talk. During the interview, he made several incriminating statements. After approximately thirty minutes, the defendant left the room to meet with his wife, who had arrived at the base. After consulting with her, he informed the officers that he had decided not to cooperate any further. The interview then ended and the officers left the base. The defendant was arrested one or two days later when he turned himself into the Rochester Police.
In September 1999, the defendant was tried on twenty-eight counts of aggravated felonious sexual assault and twenty-eight counts of felonious sexual assault alleging that he had committed four acts of assault each season, between the summer of 1990 and the fall of 1993. At trial, the victim testified that the assaults stopped after she told him "no" during a trip to New Jersey for a Thanksgiving holiday, but she could not remember which year. The defendant offered evidence that the only trip to New Jersey over a Thanksgiving holiday occurred in 1991, arguing that he was not guilty of any offenses alleged to have occurred after that date.
During deliberations, the jury sent a note to the judge stating: The court then determined that the jury had deadlocked and declared a mistrial. The defendant did not object.
After the mistrial, the jury foreman sent a letter to the prosecutor offering advice for the retrial, telling him, "The Thanksgiving trip to NJ (when the abuse ended)-[y]ou've got to clear the date up," because two jurors could not find when the assaults occurred beyond a reasonable doubt, while the timing "didn't matter" to the remaining jurors.
In November 1999, the defendant was retried on ten counts of aggravated felonious sexual assault and ten counts of felonious sexual assault alleging that he had committed four acts of assault each year from 1989 to 1993. The defendant filed a pre-trial motion to dismiss, arguing that a second trial would be unconstitutional in light of the foreman's letter. The motion was denied.
Immediately before trial, the defendant filed a motion to exclude photographs of the victim as she appeared in each year the conduct was alleged to have occurred. The trial court denied the motion.
At trial, the victim testified to the alleged conduct, while a defense witness, Pamela Cook, provided testimony that, if believed, would disprove the victim's accusations. During the jury charge, the trial court included an instruction that "the testimony of a victim of a sexual assault does not require corroboration." The defendant then asked the trial court to give the same instruction about Cook's testimony. The trial court refused.
Also during the jury charge, the trial court stated that the jury would have access to the tape of the one-party intercept that was played at trial and admitted into evidence as well as the tape transcript, which, while given to the jurors during trial as a guide, was never admitted into evidence. While the defendant had not objected to the use of the transcript during trial, he objected to the jurors' access to it during deliberations. The trial court noted the objection but allowed the transcript to go with the jury. The defendant was convicted on sixteen counts. This appeal followed.
The defendant first argues that his second trial violated the Double Jeopardy Clauses of both the New Hampshire and United States Constitutions. Under both the New Hampshire and United States Constitutions, a defendant is protected from multiple prosecutions for the same offense. See N.H. CONST. pt. I, art. 16 ; U.S. CONST. amend. V. We consider the defendant's argument first under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), federal decisions only for guidance. See id . at 233, 471 A.2d 347. Because, on the issue before us, federal law provides the defendant no greater protection than does the State Constitution, we will not undertake a separate federal analysis. See State v. Fitzgerald, 137 N.H. 23, 26, 622 A.2d 1245 (1993).
The trial court may declare a mistrial where a jury is genuinely deadlocked without prohibiting a retrial. See State v. Crate, 141 N.H. 489, 491–92, 686 A.2d 318 (1996). On appeal, the defendant argues that the jury was not genuinely deadlocked but had effectively found him not guilty. At trial, because the defendant asserted that he was not guilty of any offenses alleged to have occurred after the Thanksgiving holiday in 1991, the trial court instructed the jurors that the State was required to prove that each act occurred within the timeframe alleged. Pointing to the excerpt of the foreman's letter in which he states that two jurors found that the timeframes of the assaults were not proven by the State and that the timeframes "didn't matter" to the remaining jurors, the defendant argues that the jury had effectively found that the State failed to meet its burden of proof.
The defendant's argument fails, however, because the foreman's post-mistrial letter was not admissible evidence to impeach the mistrial. We recognize the well-established rule that the affidavit or testimony of a single juror is admissible in exculpation of himself, or to sustain a verdict, but is inadmissible where it is offered as a basis for setting the verdict aside. Bunnell v. Lucas, 126 N.H. 663, 668, 495 A.2d 1282 (1985). Thus, "evidence regarding the jurors' motives, beliefs, misunderstandings, intentions and the like is immaterial and may not be considered" in a motion to set aside a verdict. Kravitz v. Beech Hill Hosp., 148 N.H. 383, 387, 808 A.2d 34 (2002). While a mistrial is not a verdict, we will apply this rule where the mistrial directly results from the jurors' inability to reach a verdict because the conduct of the jury during deliberations is similarly at issue. Accordingly, we have no basis to conclude that the jury was not, in fact, deadlocked.
The defendant next argues that because he was in custody during his interrogation, the failure of the officers to read him his Miranda rights rendered his statements inadmissible. We address the defendant's State constitutional argument first, citing to federal law only as an aid to our analysis. Ball , 124 N.H. at 233, 471 A.2d 347. Because our State Constitution affords the defendant greater protection than does the Federal Constitution with regard to the defendant's rights under Miranda , we need not conduct a separate federal constitutional analysis. State v. Aubuchont, 147 N.H. 142, 146, 784 A.2d 1170 (2001).
"Before the defendant's statements made during a custodial interrogation may be used as evidence against him, the State must prove, beyond a reasonable doubt, that he was warned of his constitutional rights, that he waived those rights, and that any subsequent statements were made knowingly, voluntarily and intelligently." State v. Johnson, 140 N.H. 573, 577, 669 A.2d 222 (1995). However, where a person is not subject to a custodial interrogation, the defendant's right to Miranda warnings does not attach. State v. Carroll, 138 N.H. 687, 696, 645 A.2d 82 (1994).
Whether a defendant is in custody for purposes of Miranda is essentially a question of fact, and we will uphold the trial court's finding unless contrary to the manifest weight of the evidence or the result of an error of law. See id . A person is in custody if formally arrested or restrained to the degree...
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