State v. Legere

Decision Date15 October 2008
Docket NumberNo. 2007–396.,2007–396.
CourtNew Hampshire Supreme Court
Parties The STATE of New Hampshire v. Christopher LEGERE.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief, and N. William Delker, senior assistant attorney general, orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

Christopher Legere, by brief, pro se.

GALWAY, J.

The defendant, Christopher Legere, was convicted following a jury trial in Superior Court (McGuire, J.) of the second degree murder of John Denoncourt. See RSA 630:1–b, I(a), I(b) (2007). He appeals, arguing that the trial court erred in admitting the testimony of various witnesses. We affirm.

The following facts appear in the record. During the overnight hours of June 24–25, 2006, Denoncourt rode his motorcycle to the Three Cousins Pizza and Bar (Three Cousins) in Manchester. When he arrived he encountered William Hill and Tracey Beardsell outside. Shortly thereafter an argument ensued when Hill asked to ride Denoncourt's motorcycle, but Beardsell objected because she was concerned about his intoxication. Also, Beardsell and Denoncourt began arguing after she told him that she was concerned about his shirt and that he ought not wear it inside Three Cousins. Denoncourt was wearing what was known as a "support shirt," with symbols indicating sponsorship of the Hells Angels motorcycle club. Three Cousins was known as a meeting place for members of a rival group, The Outlaws. Also, Three Cousins had a standing policy prohibiting support shirts and similar clothing. The defendant was a member of the Outlaws. Denoncourt did not remove his shirt.

At some point, the arguments outside attracted the attention of those inside Three Cousins, and numerous people, including the defendant, exited the bar. Outside the bar a melee began, though it is not clear who was involved. During this fight, several gunshots were fired, one of which struck Denoncourt in the chest. Denoncourt ran, but after approximately 350 feet he collapsed and died. Immediately thereafter, Beardsell ran into Three Cousins and announced that everyone should leave because the Hells Angels would be coming. The bar quickly emptied, and some witnesses reported seeing the defendant depart in a white sport-utility vehicle.

The defendant was subsequently indicted on two alternative counts of second degree murder. Following a jury trial, the defendant was convicted on both counts. This appeal followed.

I. Statements of Cheryl Diabo

The defendant contends that the trial court erred in permitting the introduction of a statement to the police by an eyewitness, Cheryl Diabo, in violation of his rights under the State and Federal Constitutions. During trial, the State moved in limine for the admission of Diabo's June 25, 2006 statement to the police in which she identified the defendant from a photographic line-up, as well as her recorded interview with the police on July 24, 2006. The State sought to admit these statements because Diabo claimed to have no current memory of the shooting or her interactions with the police. Her memory loss was alleged to be a result of emotional trauma resulting from the unrelated murder of her boyfriend, Mark McManus, some months after Denoncourt's death. The defendant objected to the admission of both statements.

The trial court convened a hearing on the motion at which Diabo confirmed that she had lost her memory of Denoncourt's shooting and her subsequent interactions with police. Diabo's psychiatrist, Dr. Elizabeth Blencowe, testified that Diabo did not have "true" memory problems, and that continued treatment might aid in the recovery of her memory. Dr. Blencowe also opined that while she believed Diabo was not "deliberately or consciously trying to portray herself as not having memory," she could not give a professional opinion on whether Diabo was being "completely truthful" about her memory loss.

Following this hearing, the trial court issued an order stating, in part, that it was "not convinced that [Diabo] does not have a present memory of the circumstances surrounding John Denoncourt's murder." Therefore, the trial court did not permit the State to introduce the July 24 recorded interview. The trial court, however, did permit the State to introduce Diabo's statement of identification during the photographic line-up, but only through the police.

In front of the jury, Diabo testified consistently with her testimony at the earlier hearing. After giving some background testimony, Diabo averred that she had no memory of the events surrounding Denoncourt's murder and that despite reviewing her earlier statements, her memory had not been restored. During cross-examination, the defendant asked only two questions, both seeking information about whether Diabo had been threatened. She answered both questions. The State then, through Detective Joseph Mucci of the Manchester Police Department, introduced evidence that Diabo had identified the defendant in a photographic line-up, that she was nervous about cooperating, and that she had stated she feared retaliation. On appeal, the defendant contends that the introduction of Diabo's statement of identification violated the State and Federal Constitutions. We deal first with the defendant's claim under the State Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347 (1983).

The defendant contends that admitting Diabo's statement of identification violated his confrontation rights under the New Hampshire Constitution, as well as the New Hampshire Rules of Evidence. While the United States Supreme Court has recently modified its Confrontation Clause analysis, see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we have not adopted, and neither party argues that we should adopt, Crawford as applicable to claims under the State Constitution. Instead, we have applied the analysis in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See State v. Munoz, 157 N.H. 143, 148, 949 A.2d 155 (2008) ; State v. Ayer, 154 N.H. 500, 511, 917 A.2d 214 (2006), cert. denied, ––– U.S. ––––, 128 S.Ct. 63, 169 L.Ed.2d 52 (2007). As neither party argues for the imposition of a different standard, we confine our analysis to the Roberts standard.

Under Roberts, a prior statement of an unavailable hearsay declarant is admissible if it bears adequate "indicia of reliability," or if there is a showing of particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Reliability "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id.

Here, the defendant argues that Diabo was unavailable, but that her out-of-court statement did not fall within New Hampshire Rule of Evidence 801(d)(1)(C), which he concedes is a firmly rooted hearsay exception. As noted by the defendant, his claims under the constitution and the rules of evidence overlap: "Thus, if Evidence Rule 801(d)(1)(C) does not cover the statement, the [trial] court erred in admitting it both under the Rules of Evidence and under the New Hampshire Constitution. Conversely, if that rule covers the statement, Legere's State constitutional claim and his evidence rule claim alike would fail."

Even if we assume that Diabo was unavailable, we would conclude that Diabo's statement falls within a firmly rooted hearsay exception. Rule 801(d)(1)(C) of the New Hampshire Rules of Evidence provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. This rule "requires only an opportunity for cross-examination; this requirement is satisfied if the declarant testifies and is available for cross-examination, regardless of whether the declarant is actually cross-examined." State v. Delgado, 137 N.H. 380, 382, 628 A.2d 263 (1993). "Application of Rule 801(d)(1)(C) ... does not hinge on a contradiction between a witness's in-court and out-of-court statements; it turns on the existence of a statement of identification." Id. at 382–83, 628 A.2d 263. The rule is intended "to address situations where a memory loss makes it impossible for the witness to testify about details of the events underlying an earlier identification." Id. at 383, 628 A.2d 263 (quotations and ellipses omitted). "Admitting only those portions of the prior identification that mirrored a witness's in-court testimony would likely compound confusion created by omissions or inconsistencies in the witness's in-court testimony, and frustrate the purpose of the rule." Id.

Here, Diabo made an earlier statement of identification, and was produced for cross-examination at trial. The defendant, therefore, had the opportunity to cross-examine her, thus satisfying the rule, regardless of whether she was actually cross-examined.

Citing People v. Learn, 371 Ill.App.3d 701, 309 Ill.Dec. 276, 863 N.E.2d 1173 (2007), the defendant argues that because Diabo's memory loss was more acute than that of the declarant in Delgado, Delgado is not controlling. We do not agree. First, nothing in Delgado defines a point at which a witness's memory loss, or professed memory loss becomes so pronounced as to render a prior identification inadmissible. As regards Learn, the rule of evidence at issue there was significantly different from Rule 801(d)(1)(C), making any meaningful comparison difficult. See Learn, 309 Ill.Dec. 276, 863 N.E.2d at 1178. Additionally, the court in Learn determined that the witness did not "testify" as contemplated by the rule because she did not testify meaningfully to any background information before beginning to cry and then not answering any more questions. Id. Here, in contrast, Diabo did testify to background information and was...

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