State v. Kiewert

• Decision Date: 20 March 1992
• Docket Number: No. 89-586,89-586
• Citation: 135 N.H. 338,605 A.2d 1031
• Parties: The STATE of New Hampshire v. Arthur KIEWERT.
• Court: New Hampshire Supreme Court

Page 1031

605 A.2d 1031

135 N.H. 338

The STATE of New Hampshire v. Arthur KIEWERT.

No. 89-586.

Supreme Court of New Hampshire.

March 20, 1992.

John P. Arnold, Atty. Gen. (Ann M. Rice, Atty., on the brief, and Michael D. Ramsdell, Asst. Atty. Gen., orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, on brief and orally, for defendant.

THAYER, Justice.

The defendant was convicted on two counts of burglary, RSA 635:1, II, for which he was sentenced to an extended term of imprisonment, RSA 651:6, I(c), and a shorter concurrent term. On appeal, he raises the following issues: (1) whether the Superior Court (Hollman, J.) erred in admitting a statement by an unavailable declarant to the declarant's wife under the statement against penal interest exception to the hearsay rule; (2) whether the phrase "in excess of one year" contained in RSA 651:6, I(c) is meant to modify the word "sentences" or relates instead to the period of imprisonment; and (3) whether a letter from the department of corrections is sufficient to prove that the defendant has twice previously been imprisoned on sentences in excess of one year, and is therefore eligible for application of an extended sentence term. We affirm.

The facts elicited at trial include the following. On February 20, 1989, Dewanda Gokey and her husband, Richard Gokey, drove to the defendant's residence. All three individuals then drove in search of Dianna Shonk's home in Peterborough, where the defendant said they could find money. Upon locating the residence, the defendant and Mr. Gokey entered the house while Mrs. Gokey waited in the car. About fifteen to twenty minutes later, the defendant and Mr. Gokey returned to the car carrying a "stereo-type box," old coins, and marijuana. Dianna Shonk arrived home that evening to find a side door open, her house a mess, and her tape player and a bag of coins missing. At trial, she identified as her property a stereo player and a bag of coins which Mrs. Gokey had turned over to the police.

On February 28, 1989, Mrs. Gokey again drove her husband to the defendant's residence. The defendant told them he was "ready to do another job" and suggested that they burglarize Dianna Shonk again. On the way to Shonk's residence, the Gokeys' car developed problems. They decided to drive to Keene to the house of a friend of the defendant, where they could borrow the friend's truck and follow the Gokeys' car home.

On the way to Keene, the defendant pointed out a house just off Route 101 in Dublin and said that the occupant owed him money and that he wanted to get even with him. The defendant stated, however, that he would need to cover his face if he took any action against the person because he would be recognized otherwise. The defendant played with a .357 magnum revolver as they drove.

When they arrived in Keene, the defendant borrowed his friend's truck. The defendant and Mr. Gokey got into the truck and began to follow Mrs. Gokey in her car. Soon thereafter, in the car's rear view mirror, Mrs. Gokey observed the truck drive off in the opposite direction. Mrs. Gokey subsequently discovered that the handgun had been removed from the car.

That same evening, Charles Pillsbury was working late in his home in Dublin with his secretary, when two men entered his apartment. One of the men, later identified at trial as Mr. Gokey, was carrying a gun and the other was wearing a paper bag over his head with slits for his eyes and mouth. The man with the gun demanded money and, when Pillsbury said he did not have any, struck him on the head with the gun. The two men left after taking Pillsbury's wallet and the secretary's pocketbook.

At trial, both Pillsbury and his secretary identified the gunman from a photograph of Mr. Gokey. Pillsbury testified that he had once employed the defendant for about three weeks and that the defendant had been to his residence every day during that period. Pillsbury could not identify the defendant as the man who wore the bag over his face.

At approximately 11:30 p.m. that same night of February 28, 1989, Mr. Gokey telephoned his wife and told her that he and the defendant had just committed an assault and robbery and that he was on the run and would not be coming home anymore. At approximately 1:15 the next morning, the defendant called his friend in Keene to report that "Rick" had stolen the truck. In turn, the friend reported the theft to the police.

At 2:45 a.m., the truck was pulled over by the police. When the police approached the truck they found Mr. Gokey alone, bleeding from several head wounds. He had apparently committed suicide immediately after he stopped the truck. In the cab of the truck, the police found a .357 magnum revolver, a paper bag with holes cut in it, and Pillsbury's wallet.

Prior to trial, the State filed a motion to admit testimony in which it sought to introduce the testimony of Mrs. Gokey concerning the statement made to her by her husband when he telephoned her on the night of February 28. The trial court held an evidentiary hearing at which, in addition to the facts set forth above, the following evidence was elicited.

Mrs. Gokey testified concerning the events of February 28, including the telephone call from her husband. She acknowledged on cross-examination that she had not mentioned her husband's reference to the defendant's involvement when she reported his statement to the police on three occasions.

The defendant's fiancee, Regina McCarthy, testified that once, when Mr. Gokey was angry with the defendant for failing to keep an appointment, he expressed a desire for revenge against him. She also testified that Mrs. Gokey told her about the phone call from Mr. Gokey and that he had said that he had just committed a crime and was on the run, but she did not mention anything about a robbery or the defendant's involvement.

Based upon the testimony offered, the trial court found Mr. Gokey's statement was trustworthy and reliable and met the requirements for admissibility as a statement against penal interest.

The first issue raised by the defendant on appeal is whether the trial court erred in admitting Mr. Gokey's statement to his wife under the statement against penal interest exception to the hearsay rule, New Hampshire Rule of Evidence 804(b)(3). As a preliminary matter, the defendant argues that the question of the against-interest nature of the statement, as opposed to its factual trustworthiness, is one of law for this court. We have clearly stated in the past, however, that whether a statement is hearsay or admissible under a hearsay exception is a question for the trial court. See State v. Richards, 129 N.H. 669, 674, 531 A.2d 338, 341-42 (1987); State v. Mallar, 127 N.H. 816, 819, 508 A.2d 1070, 1071 (1986). This includes a finding that the statement is in fact against penal interest, and we will uphold the trial court's finding unless clearly erroneous.

New Hampshire Rule of Evidence 804(b)(3) provides as follows:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which ... at the time of its making ... so far tended to subject the declarant to civil or criminal liability, ... that a reasonable person in this position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

N.H.R.Ev. 804(b)(3). The rule thus permits an out-of-court statement to be admitted at trial when: (1) the declarant is shown to be unavailable; and (2) the statement is against the declarant's penal interest. Id.; see United States v. Alvarez, 584 F.2d 694, 699 (5th Cir.1978). If offered by the defendant to exculpate himself, there is an additional requirement that the statement be corroborated by circumstances clearly indicating its trustworthiness. N.H.R.Ev. 804(b)(3). The justification for this exception to the hearsay rule " 'rests upon the assumption that one does not make statements that would damage [oneself] unless the statement is true.' " United States v. Palumbo, 639 F.2d 123, 127 (3d Cir.) (quoting United States v. Bailey, 581 F.2d 341, 345-36 & n. 4 (3d Cir.1978)), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981).

The statement at issue in the case before us is that made by Mr. Gokey to his wife to the effect that he and the defendant had just committed a robbery and assault and that he, the declarant, would not be coming home. The unavailability of the declarant in this case is not disputed. He committed suicide on March 1, 1989.

The defendant argues that the statement was not against the declarant's penal interest because a reasonable person would not think he was subjecting himself to criminal liability by speaking confidentially to his wife. He contends that such disclosures do not tend to subject the declarant to criminal liability because of the marital confidential communications privilege. We note at the outset that New Hampshire Rule of Evidence 804 "adopts the Federal Rule 804." N.H.R.Ev. 804 (reporter's notes). We will, therefore, look to federal cases interpreting Federal Rule of Evidence 804 to assist us in construing the New Hampshire rule.

Rule 804(b)(3) clearly sets forth an objective standard for determining the against-interest nature of the statement. See also State v. Woodman, 125 N.H. 381, 384, 480 A.2d 169, 171 (1984). This standard was adopted for practical reasons; because the initial threshold requirement for the application of the rule is that the declarant be unavailable, there will rarely be evidence of what the declarant thought. As we recognized in Woodman, however, the court is not precluded "from making an inquiry into the declarant's subjective state of mind." Wood...