State v. Dana
| Decision Date | 10 March 2022 |
| Docket Number | 2019-0628 |
| Citation | 175 N.H. 27,280 A.3d 251 |
| Parties | The STATE of New Hampshire v. Roger DANA |
| Court | New Hampshire Supreme Court |
John M. Formella, attorney general (Weston R. Sager, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Roger Dana, was convicted, following a jury trial in the Superior Court (Bornstein, J.), of first degree murder, see RSA 630:1-a, I(b)(1) (2016), for which he received a sentence of life without the possibility of parole. The defendant appeals his conviction, arguing that the trial court erred by admitting hearsay evidence, and by failing to give the false-exculpatory-statement jury instruction that the defendant requested. We affirm.
The jury could have found the following facts. The defendant resided at an apartment in Berlin with his girlfriend and the victim, their two-and-a-half-year-old daughter. On the night of November 26, 2016, all three slept at the apartment, along with the victim's grandfather and his fiancée. On the morning of November 27, the victim's mother woke first. She made the victim breakfast, changed the victim's diaper, and observed that the victim had no trouble eating and appeared uninjured. At 7:45 a.m., the mother left the apartment to go to work, telling the defendant that she would return at 4:00 p.m. The victim's grandfather and his fiancée were at the apartment until approximately 9:00 a.m., and saw that the victim appeared "normal" and did not have any bruising or bleeding. After they left, the victim and the defendant were alone in the apartment.
Between 9:00 a.m. and 1:00 p.m., acquaintances of the defendant who were in or around the apartment saw the victim and observed that she appeared healthy and uninjured. Later, at approximately 2:30 p.m., the defendant's next-door neighbor heard a "cluster of loud noises" coming from the apartment, including loud banging and the defendant's voice. Approximately forty-five minutes later, the defendant called the victim's grandmother. He told her that the victim had fallen off the bunk bed and had died. The grandmother immediately called the victim's mother and relayed what the defendant had told her. Both rushed to the apartment.
The grandmother arrived first. When she entered the apartment, she saw the defendant sitting on his bed and holding the victim. She observed that the victim was "all banged up and black and blue" and was not breathing. The defendant was crying and upset, and appeared drunk. He was not attempting to resuscitate the victim. The victim's mother arrived soon afterward, grabbed the lifeless victim, and "tried to make [her] respond." The victim's arms were limp, her eyes were glazed over, and she had cuts and bruises all over her body.
The victim's mother instructed the grandmother to call 911. Meanwhile, the defendant "was just standing in the corner." The defendant told the victim's mother and grandmother that he had given the victim a bath, put her on the top bunk of her bed, and that, while he was turned around looking for her clothes, she fell off the top bunk. According to the defendant, he was alone with her when she fell.
At approximately 3:30 p.m., an officer arrived at the apartment. He saw the victim's mother in the doorway, holding the lifeless victim and crying for help. The defendant "was just standing there very quiet, not saying anything, not really doing anything," looking "nervous." The victim had bruising on her face and abdomen, no pulse, and cold skin, and she "looked like she had been beaten severely." Just as the officer was attempting CPR, paramedics arrived and placed the victim in an ambulance. As the mother and grandmother left for the hospital, the defendant asked where they were going. When the mother told him they were going to the hospital, the defendant said "whatever," and walked back into his bedroom.
At the hospital, the treating physician noted that the victim had bruising "everywhere, on her face, her ears, her chest, her back, her abdomen, her pelvic area." The back of the victim's head was so severely injured that it "felt like mush." Her eyes were "fixed and dilated," consistent with brain injury
. The doctor opined that the victim's injuries were "[a]bsolutely not" consistent "with a fall off of a bed."
The victim was pronounced dead at 5:40 p.m. The medical examiner who performed the autopsy of the victim confirmed that the injuries were not consistent with a fall from a bunk bed because there were "way too many injuries on all surfaces of her body, all surfaces of her head." The examiner observed injuries around the victim's vagina, which she opined were caused by a "penetrating" small object, such as a finger. She also saw extensive injuries to the victim's anus and rectum, which she opined were caused by forced penetration, possibly by "a finger or fingers or a penis." The autopsy concluded that the victim's cause of death was "blunt-impact injuries of [the] head and abdomen."
The next day, November 28, officers from the State's Major Crimes Unit executed a search warrant at the apartment. There, they discovered blood on several surfaces and items throughout the apartment. They found the defendant's blood on a football jersey in his closet. The victim's blood was found on baby wipes in the trash and on her bed, and also on a child's pajama top that was wedged between the headboard of the defendant's bed and the wall.
The lead investigator interviewed the defendant twice: once in the early morning of November 28, and again on November 29. The defendant provided inconsistent accounts of the events leading up to the victim's death, sometimes saying that the victim fell off the top bunk, and other times saying that she fell off the bottom bunk. The defendant also met with the victim's mother. The defendant told the mother that he put the victim in the bottom bunk — rather than the top bunk, as he had previously told her — went back to his bedroom, and then heard a thud. He also told her that, after returning to the victim's room, he saw the victim on the floor. In all of these accounts, the defendant maintained that he was alone in the apartment with the victim when she was injured.
On December 2, the defendant was arrested, and he was later indicted for first degree murder. See RSA 630:1-a, I(b)(1). Following a jury trial, the defendant was convicted. This appeal followed.
The defendant argues that the trial court erred by admitting hearsay evidence, and by giving the jury an unduly narrow false-exculpatory-statement instruction.
We turn first to the defendant's argument that, on two occasions, the trial court erred when it admitted hearsay evidence.
Hearsay is defined as "a statement that ... the declarant does not make while testifying at the current trial or hearing," which "a party offers in evidence to prove the truth of the matter asserted in the statement." N.H. R. Ev. 801(c). Hearsay evidence is generally inadmissible, subject to certain well-delineated exceptions. State v. Letendre, 161 N.H. 370, 372, 13 A.3d 249 (2011) ; N.H. R. Ev. 802. "We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion." Letendre, 161 N.H. at 372, 13 A.3d 249 (quotation omitted). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. at 372-73, 13 A.3d 249.
The defendant first argues that the trial court unsustainably exercised its discretion when it admitted the grandfather's fiancée's testimony about a phone call that she had with the grandmother. The grandmother called the fiancée on November 28, approximately twenty-four hours after she learned of the victim's death. The fiancée testified that the grandmother was "crying" and "very upset" when she called. The grandmother "talked about the bruises [the victim] had on her body," and said that the defendant "murdered [the victim], beat her." Over the defendant's hearsay objection, the trial court admitted the statements as excited utterances.1
The excited utterance exception to hearsay encompasses statements "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." N.H. R. Ev. 803(2). The theory underlying the excited utterance exception is that "the circumstances under which the utterance was made afford a guarantee of truth in substitution for that provided by oath and cross-examination." State v. Bonalumi, 127 N.H. 485, 487, 503 A.2d 786 (1985). Therefore, the statement must be made "at a time when the speaker was still in a state of nervous excitement produced by [the startling] event, and before he had time to contrive or misrepresent." Id. (quotation omitted). "[T]o admit the testimony the trial judge must be satisfied that (1) there was a sufficiently startling event or occurrence, and (2) the declarant's statements were a spontaneous reaction to the occurrence or event and not the result of reflective thought." Id. at 488, 503 A.2d 786.
On appeal, the defendant argues that the trial court erred when it admitted the statements as excited utterances because: (1) the statements were made twenty-four hours after the victim's death; and (2) during the time between the victim's murder and the phone call, the grandmother engaged in "complex activities" requiring "relatively careful thought," which gave her "a chance to consider her own culpability." See State v. Woods, 130 N.H. 721, 726, 546 A.2d 1073 (1988). The State counters that the trial court reasonably determined the statements to be excited utterances because: (1) the grandmother was crying and very upset during...
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