State v. Evans, No. 2002-287 (N.H. 12/30/2003), 2002-287
| Decision Date | 30 December 2003 |
| Docket Number | No. 2002-287,2002-287 |
| Parties | STATE OF NEW HAMPSHIRE v. CHAD EVANS. |
| Court | New Hampshire Supreme Court |
Peter W. Heed, attorney general (N. William Delker and Simon R. Brown, senior assistant attorneys general, on the brief, and Mr. Delker orally) for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Chad Evans, was convicted of reckless second-degree murder, see RSA 630:1-b (1996), five counts of second-degree assault, see RSA 631:2 (1996), endangering the welfare of a minor, see RSA 639:3, I (1996), and simple assault, see RSA 631:2-a (1996), following the death of twenty-one-month-old Kassidy Bortner, the daughter of his girlfriend, Amanda Bortner. He appeals, arguing that: (1) the Superior Court (T. Nadeau, J.) erroneously gave the jury a false exculpatory statement instruction; (2) the evidence on the second-degree murder charge was insufficient because it failed to eliminate the conclusion that Kassidy's babysitter, Jeffrey Marshall, killed her; and (3) the court erroneously admitted various of Amanda's statements under the excited utterance exception to the hearsay rule. See N.H. R. Ev. 803(2). We affirm.
The jury could have found the following facts. Amanda and the defendant began dating in June 2000. A month later, she and Kassidy moved into the defendant's Rochester home. Shortly thereafter, bruises started appearing on Kassidy. These bruises were caused by the defendant.
At first, the defendant bruised Kassidy only occasionally by forcibly grabbing her face out of frustration because Kassidy became jealous when Amanda was affectionate towards him. As time went on, his frustration with Kassidy grew.
In the month before she died, the defendant grabbed Kassidy's face hard as often as twice a week. He called her names such as "little bitch" and "f___ing retard." As frequently as three times a week, the defendant disciplined Kassidy by picking her up by the armpits and roughly placing her in front of a wall or in a corner. Once, he grabbed her by the back of the neck and tossed her against a closet door, banging her head against the door. Another time, when Kassidy resisted, he picked her up by the armpits and threw her on the bed. When Amanda intervened, he grabbed Kassidy's leg and then walked away, muttering that he wished Kassidy had never been born. On another occasion, to stop her from crying and screaming, the defendant pressed his finger on Kassidy's throat, hard enough to make her gag.
The defendant and Amanda made up false excuses to explain the obvious bruises on Kassidy's face, including that the defendant grabbed Kassidy's face to prevent her from falling off a trampoline. They also said that Kassidy was bruised because she was clumsy or because she accidentally bumped her head. Because of the bruises and her fear that Kassidy would be taken from her, Amanda refused to put Kassidy in day care. Instead, she asked her sister and her sister's boyfriend, Marshall, to baby-sit.
On November 8, 2000, the day before Kassidy died, Amanda dropped her off at her sister's and Marshall's home in Kittery, Maine, at around 1:30 or 2:30 p.m. When she dropped Kassidy off, Kassidy was fine, although a bit sleepy. She had a couple of scratches and a faded bruise on her face, but nothing more. Her behavior was normal. She spent the afternoon watching cartoons.
The defendant picked up Kassidy at around 5:00 p.m. Shortly thereafter, he called from his car to tell Marshall that "[t]he little bitch is acting weird again." He said that Kassidy was "kind of bobbin' around" in the car. An hour or so later, he again called Marshall and said that she fell on her face on the ground when he took her out of the car. Later that evening, the defendant called Marshall again and told him that while playing ball with his three-year-old son, Kassidy was hit by his son with a ball. During the conversation, the defendant became frantic, telling Marshall that Kassidy's eyes were in the back of her head, and yelling at her to wake up. He told Marshall that Kassidy was out cold. When Marshall suggested that the defendant take her to the hospital, the defendant said that she had "come out of it" and was fine.
The defendant also called Amanda to tell her about the incident. He told her that he did not want to baby-sit for Kassidy anymore because "[i]t seems like every time that I have her something happens where she hurts herself."
When Amanda came home that night, she and the defendant fought. At one point, the defendant grabbed her throat and pinned her against the couch, telling her to
The next morning, Amanda brought Kassidy to Marshall's house. Amanda lay Kassidy on a bed, looked at Kassidy's face, and then said to her sister, Kassidy's face was badly bruised; the bruises around her forehead looked like finger marks.
Kassidy appeared sick and in pain. Marshall and Amanda's sister were concerned about her and put her to bed. When they tried to rouse her, Kassidy whimpered and pulled away from them. Amanda's sister went to work and Marshall stayed at home with Kassidy, letting her sleep. At around 9:30 that morning, the defendant called and asked how Kassidy was doing. The defendant then told Marshall that he had received a call from the State because "someone had seen Kassidy at his house acting weird." The defendant was quite angry, telling Marshall that Amanda and "the little bitch [are] going to have to get out of my house."
At around 12:30 p.m., Marshall went to the bedroom to check on Kassidy and saw that she was unconscious, her eyes were in the back of her head, and she was making a gargling noise. While on the phone with 911, he tried to resuscitate her, but could not. Kassidy was taken by ambulance to a Maine hospital and pronounced dead on arrival.
An autopsy revealed that Kassidy died at approximately 12:30 p.m. from multiple blunt-force injuries that had caused bleeding and swelling in her brain, bleeding in the optic nerve, and internal bleeding in her abdomen. The medical examiner estimated that before she died, Kassidy received eight to ten blows to the head and at least two blows to the abdomen from a blunt force, such as a fist or a foot. Kassidy's fatal head injuries were inflicted sometime within the twenty-four hours preceding her death.
In addition to her fatal injuries, Kassidy had numerous bruises and multiple fractures in various stages of healing. Most of the bruises were between eight and twelve hours old. None of the bruises on Kassidy's face was consistent with being hit by a ball.
On the night of Kassidy's death, the police interviewed Amanda, her sister, Marshall and the defendant. The defendant told the police the trampoline story to explain how he had once bruised Kassidy's face. He also told them that she would sometimes "throw herself in the corner or throw herself into the wall" or run and "slam right into" a corner. He stated that Kassidy was "clumsy" and constantly walked into things like his coffee table. That night, Amanda and the defendant spoke by telephone. Crying, Amanda told the defendant, "[Y]ou killed my baby; I know you did this; you wanted her dead."
The defendant assigns two errors to the court's false exculpatory statement instruction. First, he argues that such an instruction constitutes an impermissible comment on the evidence. Second, he argues that even if the instruction is permissible, the court should have broadened it to include false exculpatory statements made by Marshall. We address each argument in turn.
The scope and wording of jury instructions is generally within the sound discretion of the trial court. State v. Lamprey, 149 N.H. 364, 366 (2003). We will not reverse unless the jury charge fails to cover fairly the legal issues in the case. See id. We do not review the challenged instructions in isolation; instead, we review them in the context of the entire charge and all of the evidence to determine whether the trial court adequately stated the relevant law. State v. Newell, 141 N.H. 199, 205 (1996). We interpret jury instructions as a reasonable juror would have understood them. Lamprey, 149 N.H. at 366.
The challenged instruction was as follows:
Evidence has been introduced regarding statements the defendant offered to explain certain bruising on Kassidy. If you find the defendant intentionally made statements tending to demonstrate his innocence, or to influence a witness, and that the statements are later discovered to be false, then you may consider whether the statements show a consciousness of guilt, and determine what significance, if any, to give to such evidence.
This instruction is similar to one which we approved in State v. Fischer, 143 N.H. 311, 318-20 (1999). In Fischer, we did not decide whether such an instruction constitutes improper comment on the evidence because this issue was not preserved for our review. Id. at 318. We now hold that where, as here, the instruction permits, but does not require, the jury to infer consciousness of guilt from false exculpatory statements, it is not an improper comment on the evidence. See State v. Marti, 143 N.H. 608, 616-17 (1999); see also State v. Cassell, 129 N.H. 22, 24 (1986). It is "merely a correct statement of law." Marti, 143 N.H. at 617.
Evidence that a defendant intentionally made an exculpatory statement that is later discovered to be false may constitute circumstantial evidence of consciousness of guilt. See United States v. Ingram, 600 F.2d 260, 262 (10th Cir. 1979). It is reasonable to infer consciousness of guilt from a defendant's false exculpatory statement because "an innocent person does not usually find it necessary to...
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