State v. Roberts

• Decision Date: 25 March 1993
• Docket Number: No. 91-211,91-211
• Citation: 136 N.H. 731,622 A.2d 1225
• Parties: The STATE of New Hampshire v. Russell A. ROBERTS.
• Court: New Hampshire Supreme Court

Page 1225

622 A.2d 1225

136 N.H. 731

The STATE of New Hampshire v. Russell A. ROBERTS.

No. 91-211.

Supreme Court of New Hampshire.

March 25, 1993.

John P. Arnold, Atty. Gen. (Charles T. Giacopelli, Asst. Atty. Gen., on the brief and orally), for State.

Shaheen, Cappiello, Stein & Gordon, Concord (Andru H. Volinsky, on the brief and orally), for defendant.

JOHNSON, Justice.

After a jury trial in the Superior Court (Mohl, J.), the defendant, Russell A. Roberts, was convicted of three counts of witness tampering under RSA 641:5 (1986). We consider the merits of: (1) whether the trial court lacked territorial jurisdiction over a witness tampering count alleging acts that occurred in Canada; (2) whether admission of hearsay statements made by a decedent to a drug counselor and a psychologist was improper under New Hampshire Rule of Evidence 803(4) or violated the defendant's confrontation rights; (3) whether the trial court violated the defendant's confrontation rights or abused its discretion by allowing a witness to assert the privilege against self-incrimination on cross-examination, even though the witness had not asserted the privilege in a pretrial deposition; and (4) whether the trial court should have excluded evidence of the defendant's homosexual relationship with the target of his acts of witness tampering. We affirm.

The defendant's witness tampering convictions arose out of his relationship with Gregory Bryar, II, a seventeen-year-old witness identified in underlying indictments charging the defendant with obscenity, prostitution, and conspiracy to acquire cocaine. The defendant offered a car, money, and an apartment in Canada to induce Bryar to avoid testifying for the State in the underlying prosecutions.

Sometime before March 1987, the defendant, who was about forty-three years old, met Bryar, who was a high school sophomore. Bryar had a history of drug and alcohol abuse. Testimony at trial indicated that the defendant offered Bryar drugs and money in exchange for sex.

In March 1987, the State Police began investigating the relationship between Bryar and the defendant. In April 1987, the district court found Bryar to be delinquent and ordered him to enter the Nathan Brody Chemical Dependency Center (Nathan Brody). At Nathan Brody, Bryar was diagnosed as suffering from drug and alcohol dependency and was treated for substance abuse. During his thirty-day residential treatment at Nathan Brody in April and May 1987, Bryar participated in private therapy with Claire Trottier, an alcohol and drug counselor. The probation officer who brought Bryar to Nathan Brody had alerted Trottier to the ongoing investigation into Bryar's relationship with the defendant. During sessions with Trottier, Bryar admitted to having had sexual relations with the defendant, and to having received cocaine and money for cocaine from the defendant in exchange for sex.

In early May 1987, Bryar contacted the police about his relationship with the defendant. In late May, the State Police searched the defendant's home and arrested him for drug possession and obscenity. In June 1987, the defendant was indicted on charges including prostitution (transporting Bryar to engage in sex for consideration), obscenity (showing an explicit film to a minor male child identified by Bryar's birthdate), and conspiracy (providing Bryar money and transportation to acquire cocaine). All of these indictments identified Bryar as a witness.

In early September 1987, the defendant, Bryar, and Bryar's friend Scott Shedd went to Montreal. Shedd heard the defendant offer Bryar an apartment in Canada to enable him to avoid testifying in the pending "case" against the defendant. Shedd also heard the defendant offer Bryar money and a car so that Bryar would change his testimony. There is evidence that the defendant purchased a car in September 1987. He originally noted that he was buying it for Bryar, but later changed the title application to reflect his own ownership.

In October 1987, Bryar was arrested for attempted extortion from the defendant and was placed in a residential treatment program at Beech Hill Hospital (Beech Hill). At Beech Hill, Bryar was diagnosed as suffering from psychological disorders related to his relationship with the defendant. Bryar participated in private therapy with Dr. Kathleen Bollerud, a psychologist. During sessions in October and November 1987, Bryar discussed with Bollerud his relationship with the defendant and expressed anger and confusion over the defendant's inducements not to testify. Bryar met with a police officer while he was at Beech Hill.

In December 1987, the defendant was indicted on witness tampering charges for attempting to induce Bryar to change his testimony or to elude process by offering him a car, money, and an apartment in Canada. Bryar was not available to testify at the witness tampering trial, and all of the underlying cases were ultimately nol prossed because Bryar killed himself in 1988.

In a pair of pretrial rulings after Bryar's death, the Superior Court (O'Neil, J.) accepted a waiver of privilege by the administrator of Bryar's estate and found under New Hampshire Rule of Evidence 803(4) that Trottier and Bollerud could testify to Bryar's statements revealing the defendant's provision of drugs or money for sex and concerning the defendant's promises of a car, money, and an apartment. The Trial Court (Mohl, J.) did not alter these rulings.

I. Territorial Jurisdiction

We first consider whether the trial court lacked territorial jurisdiction over an indictment charging that believing "an official proceeding was pending or about to be initiated," the defendant attempted to induce Bryar "to elude legal process ... by taking [him] to Canada and offering to rent an apartment in Canada." The record indicates that the defendant offered to rent an apartment in Canada for Bryar, so that he could avoid testifying. The defendant argues that the trial court lacked territorial jurisdiction because the indictment charged acts that occurred in Canada.

The defendant raised his jurisdictional argument in a motion to dismiss after the State rested. This motion was denied. The defendant renewed his argument in a post trial motion to dismiss, which was also denied.

Under the State criminal code, territorial jurisdiction is defined, for purposes of this discussion, as follows: "[A] person may be convicted under the laws of this state for any offense committed by his own conduct" if "[c]onduct occurring outside this state constitutes an attempt to commit an offense under the laws of this state and the purpose is that the offense take place within this state." RSA 625:4, I(b) (1986).

The criminal act prosecuted under the witness tampering statute and charged in the indictment at issue is the attempt "to induce or otherwise cause a person" to "[e]lude legal process," with the belief that an "official proceeding ... is pending or about to be instituted." RSA 641:5, I(c) (1986). The record clearly shows that the defendant knew that an official proceeding was pending against him, prior to the September 1987 trip to Canada, because he had been indicted in June 1987 and had entered not guilty pleas.

We find the defendant's jurisdictional argument unavailing. Whether the defendant's attempt to induce or otherwise cause Bryar to elude legal process took place in New Hampshire, in Canada, or both, is of no consequence. The fact remains that the defendant was attempting to pervert New Hampshire's system of justice by distorting the fact finding function of our courts. The witness tampering statute "protects an important public interest in discovering the truth in official proceedings and investigations." State v. Kilgus, 125 N.H. 739, 745, 484 A.2d 1208, 1213 (1984). The defendant's conduct, wherever it took place, was intended to frustrate the discovery of the truth in New Hampshire. See Pennington v. State, 308 Md. 727, 746, 521 A.2d 1216, 1225 (1987). We hold that the trial court properly denied the defendant's motions because the defendant's conduct vested territorial jurisdiction in this State under RSA 625:4, I(b) as a matter of law.

II. Hearsay

Bryar's statements, which were admitted through testimony of Trottier and Bollerud for the truth of their assertions, constitute hearsay. N.H.R.Ev. 801. The statements at issue concern the defendant's identity and the promises he made to induce Bryar to elude process or testify falsely. The defendant contends that admission of this hearsay violated his right of confrontation under the State and Federal Constitutions, and that the trial court erred in admitting the hearsay under New Hampshire Rule of Evidence 803(4). We analyze the constitutional question first because we assume that the constitutional requirement that there be "particularized guarantees of trustworthiness," see State v. Cook, 135 N.H. 655, 662, 610 A.2d 800, 802 (1992) (quotation omitted), is more rigorous than the requirement in New Hampshire Rule of Evidence 803(4) that there be "circumstances indicating" the "trustworthiness" of the hearsay statements.

Consistent with State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 351 (1983), we analyze the constitutional claims advanced by the defendant by considering first whether admitting the hearsay statements in this case violated the defendant's right of confrontation under part I, article 15 of the State Constitution. Part I, article 15 prevents the admission of "hearsay implicating a person other than the declarant" unless there are " 'particularized guarantees of trustworthiness.' " Cook, 135 N.H. at 662, 610 A.2d at 804 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)); see also State v. McLaughlin, 135 N.H. 669, 673, 610 A.2d 809, 811 (1992). This requirement ensures that " 'adversarial testing would add little' " to the reliability of the hearsay. Cook, 135 N.H. at 662, 610 A.2d at 804 (quoting ...