State v. Mendola

• Decision Date: 23 July 2010
• Docket Number: No. 2009–010.,2009–010.
• Citation: State v. Mendola, 8 A.3d 127, 160 N.H. 550 (N.H. 2010)
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Katherine MENDOLA.

160 N.H. 550

8 A.3d 127

The STATE of New Hampshire

v.Katherine MENDOLA.

No. 2009–010.

Supreme Court of New Hampshire.

Argued: June 15, 2010.

Opinion Issued: July 23, 2010.

Michael A. Delaney, attorney general(Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DALIANIS, J.

The defendant, Katherine Mendola, was convicted by a jury of criminal solicitation to commit murder, seeRSA 629:2(2007);RSA 630:1(2007).On appeal, she argues that the Superior Court(Nadeau, J.) erred when it failed to instruct the jury on entrapment, excluded evidence that her sometimes boyfriend had abused her, and admitted evidence that she wanted two additional people to be killed.We affirm.

The jury could have found the following facts.The woman the defendant sought to have killed was the wife of her workers' compensation lawyer.She first hired this attorney in late 2004 or early 2005.Over time, she developed romantic feelings for him, which she expressed by calling him repeatedly and by saying inappropriate things to him, such as referring to her cleavage, describing herself as "young,""hot," and "sexy," and telling him that she would make "the best wife in the whole wide world."Between September 1 and November 1, 2007, the defendant called her attorney 458 times.In one of her many visits to his office, the defendant embraced him and told him that she wanted to have a romantic relationship with him.Although he demurred, the defendant told others that they had kissed.

The defendant talked about her attorney to her friends "all the time," telling them that she loved him and wanted to marry him.She said that her attorney yearned to be with her, but that he did not want to disrupt his marriage.The defendant then sought to break up her attorney's marriage.

At first, she tried magic spells that she ordered from witchcraft websites.When these did not work, she sought to hire someone to kill her attorney's wife.

She first asked T. Thomas Austin, who lived at the same campground as the defendant.In the summer of 2007, she twice asked Austin to "eliminate" her attorney's wife because she was in love with her attorney and wanted to marry him.Austin declined.She then asked Daniel Cloutier, with whom she sometimes lived, if he knew of someone who could do the job.Although Cloutier initially did not take the defendant seriously, he became concerned that she might be capable of hurting someone when she threatened him with a knife because he left a mess in the bathroom.

Cloutier contacted agents from the drug task force for the New Hampshire Attorney General in October 2007.Ten years earlier, he had been an informant for the task force for approximately one year.Cloutier told two task force agents that he had a roommate who wanted to hire an assassin to kill the wife of a man with whom she was having an affair.The agents spoke with the state police, and, as a result, State Trooper Christopher Huse was assigned to pose as a hit man.Huse first met with Cloutier, who told him that the defendant was his roommate and that she wanted a hit man to kill her attorney's wife.Huse told Cloutier to tell the defendant that he knew someone who would contact her about the job.The defendant seemed "overjoyed" when Cloutier told her this.

On November 16, 2007, Huse called the defendant, posing as a hit man, and asked if she were still interested in his services, to which she said, "Yes, I am."When the defendant told Huse that she'd rather talk in person, he told her that they would meet in New Hampshire and that he would call her when he was "ready."Huse told the defendant that "business is gonna be taken care of," to which she said, "I appreciate that," and laughed.

Huse called the defendant again on November 19, 2007.The defendant told him that nobody knew "about this" except Cloutier and that when she and Huse met she was planning to wear "a hood and sunglasses so [she wouldn't] be recognizable."She told Huse that where they were going for the hit was within a twenty-minute ride from Manchester, but was "out in the middle of nowhere so nobody is gonna see nothing."She told Huse not to worry because she had "directions to where we're going" and that she had "thought, like, ten steps ahead here."Huse asked the defendant if she still "want[ed] to do this," to which she replied, "I'm very serious about this."They agreed to meet that afternoon in Manchester.

Later that day, Huse and the defendant met in the parking lot of a Wendy's restaurant in Manchester.The defendant told Huse that she thought this was "funny" because "[t]he name of [the wife] is Wendy."The defendant told Huse that she'd "been waiting for this for five years."When Huse asked why she had not hired him earlier, she said: "I just found out about you....If I had known about you a year ago, ... I would have jumped on this sooner."She explained that she had been asking Cloutier for a month to "get this done."

The defendant further explained that she"kn[e]w what [she was] doing" because she had talked to a well-known psychic who had told her: "You need to get rid of this woman.I'm not going to tell you specifically how.You know how.You need to get rid of her."When Huse again asked the defendant if this was what she wanted to do, she said that she was a "hundred and million percent" sure that it was.

The defendant reiterated that she"want[ed] this done really bad," explaining, "I want [the wife] out so that I [can] get married and I am in a lot better situation and ... he has money and ... [h]e wants to be with me.He doesn't want her.She sucks his money, and, you know, she needs to go."The defendant said that "when things settle down" and her attorney "gets over all ... that's just happened,"she would "move in with him."She told Huse that when she married her attorney, she would be able to pay Huse more.The defendant told Huse that she was "going [to] reward [him] handsomely" and that she had "a thousand dollars in cash for [him] to get the job done."Huse explained that a thousand dollars might suffice if the defendant merely wanted Wendy to be hurt, to which the defendant replied: "I want her dead."Huse explained that for a killing, the defendant would need to pay him an additional three or four thousand dollars, to which the defendant said: "I got ya."She told Huse that she could give him a thousand dollars now, but that "[t]he guy's a lawyer.He's got to be cool....He doesn't know about this....When things go the way I want them to go, she's going to be out, I'm going to be in.I can have more money for you later."Huse repeated: "I just want to make sure that we're on [t]he same page....That this first payment of the thousand dollars to kill her isn't just the only payment; there's going to be more."The defendant agreed.

Huse asked the defendant whether there was "[a]nything specific that [she] want[ed]," to which she replied: "I want her dead and I want it to look like an accident...."She explained that her attorney's wife "needs to die....She can't be like hurt or injured or like in a hospital.She needs to be down and out."She suggested that Huse "yell out, ‘Wendy,’ to see if she turns," and then "shoot her."She told Huse that her attorney "usually leaves work around 3:00, 3:30," so that the "best time to do it" was "in the morning."She suggested that Huse "somehow stalk" her attorney's wife and "figure out when she leaves the house every day or wait for her to come out of the house ... [a]nd then you got to shoot her."When Huse asked whether the defendant wanted the woman to be shot in the chest or the head, the defendant said: "The head's the best because ....[p]eople rarely survive head shot gun wounds....We want her gone, so do it in the head, if you can."

The defendant then expressed her concern that, because she called her attorney's office "all the time" and wrote love letters to him, she could be a suspect in his wife's death.She explained that she hoped that Huse would tell her "when this is going to take place" so that she could "hop on a plane and go down to Florida and disappear for [a] while."

After the defendant met with Huse, she returned to her home and told Cloutier, excitedly, "[I]t's definitely going down."Some days later, Huse called the defendant and asked her to meet him so that she could identify her attorney's wife in a photo that he had obtained.Huse and the defendant agreed to meet in Milford, where the police arrested her.

At trial, defense counsel told the jury in his opening statement that this case was about "the control carefully, methodically and purposely" wielded over the defendant by Cloutier.The defendant's theory of the case, as explained in defense counsel's opening statement, was that Cloutier physically, verbally and sexually abused her for many years, and then, because he wanted to be rid of her, set her up to be arrested for solicitation of murder."Comply or die," is what defense counsel said Cloutier told the defendant.But for Cloutier's "abuse, ... threats and ... manipulati[on],"the defendant"would not have stepped into [Huse's] truck."As defense counsel explained, the defendant"was not predisposed to do this.She only did it because she was forced to comply or die."Consistent with this theory, the defendant testified that Cloutier told her that he would kill her if she did not do as he said.She testified that Cloutier told her that he wanted to be rid of her and "was going to be an informant and set [her] up with the drug task force."

The defendant first argues that the trial court erred when it failed to instruct the jury on entrapment.We review the trial court's decision not to give a jury instruction for an unsustainable exercise of discretion.State v. Ayer,154 N.H. 500, 514, 917 A.2d 214(2006), cert. denied,552 U.S. 834, 128 S.Ct. 63, 169...