Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2004-510 THE STATE OF NEW HAMPSHIRE v. DANIEL AYER, SR. Argued: September 27, 2006 Opinion Issued: December 7, 2006 Kelly A. Ayotte, attorney general (Simon R. Brown, senior assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. Daniel E. Ayer, Sr., by brief, pro se. GALWAY, J. The defendant, Daniel Ayer, Sr., appeals his conviction for first-degree murder, see RSA 630:1-a, following a jury trial in Superior Court (Hampsey, J.). We affirm. The jury could have found the following facts. Beginning in 1998, the New Hampshire Division for Children, Youth and Families (DCYF) became involved with the defendant's family, and in July 1999, Family Counselor Mark Rowland of the Nashua Children's Home was assigned to the defendant's case.

On August 20, 1999, Rowland was scheduled to meet with the defendant's family. When Rowland arrived that day, the defendant was leaving in his truck. He informed Rowland that he did not want to meet and that he hoped Rowland would leave. The defendant then left the property but remained in the immediate area. Rowland did not leave. When the defendant returned a few minutes later, Rowland told the defendant that he would not leave. The defendant then shot Rowland in the head and fled in his truck. Rowland later died from the gunshot wound. Within minutes of the shooting, Officer Martin Matthews of the Nashua Police Department received a radio dispatch about the shooting and rushed to the scene. Immediately after he arrived, emergency medical personnel arrived and began treating Rowland. As soon as the scene was secured, Matthews was ordered to begin investigating this urgent situation. He scanned the area for potential witnesses to the shooting and for anyone who might know where the shooter was. His attention was drawn to a woman, later identified as Joan Ayer, the defendant's wife, who was standing near the scene, crying hysterically. As Matthews approached Mrs. Ayer, but before he asked any questions, she blurted out, "He had said that morning that he was going to shoot him," and, "he'd been sitting across the street in his truck all morning waiting for him." Matthews asked to whom Mrs. Ayer was referring and she responded that it was her husband. When asked who her husband was, Mrs. Ayer identified the defendant. She then described the defendant's truck and informed Matthews that the defendant had access to firearms. Matthews conveyed Mrs. Ayer's description of the defendant's vehicle to his dispatcher, who then issued an alert to other officers. Shortly thereafter, Officers Matthew Eskridge and Scott Anderson saw the defendant's truck. The officers stopped the truck and arrested the defendant without incident. While arresting the defendant, the officers noticed firearms and ammunition in his truck. One of the firearms was later determined to be the murder weapon. The defendant was transported to the Nashua Police Department for booking. Approximately forty minutes elapsed from the time the original dispatch was sent until the defendant was booked at the police station. At the police station, the defendant waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and gave a formal statement to police. He stated that he felt he had been harassed by DCYF and other agencies for some time and that when Rowland arrived at his home and would not leave, he "snapped." He also stated that he had been contemplating making a "demonstration" for some time and that a "demonstration" was necessary to make DCYF and others heed his complaints and concerns. In 2003, the defendant was convicted of first-degree murder. That conviction was reversed on appeal. See State v. Ayer, 150 N.H. 14 (2003).

2

Upon retrial, the defendant was again convicted of first-degree murder. This appeal followed. On appeal, the defendant argues that the trial court erred by: (1) permitting the State to introduce Mrs. Ayer's statements to Officer Matthews; (2) permitting the State to introduce evidence of the firearms and ammunition found in his truck; (3) failing to allow him to present evidence on, and have jury instructions regarding, certain defenses and lesser offenses; (4) appointing counsel for him when he desired to proceed pro se; (5) partially denying a motion to suppress and failing to find that he invoked his right to counsel during booking; (6) only partially suppressing his statement to Nashua police officers; and (7) denying pretrial motions to suppress regarding items seized from his truck as the fruits of unlawfully obtained statements. We address each argument in turn. I. Mrs. Ayer's Statements to Officer Matthews The defendant first argues, based upon Crawford v. Washington, 541 U.S. 36 (2004), that because Mrs. Ayer did not testify at his trial, the State should not have been permitted to introduce her statements to Officer Matthews. The defendant contends that admitting Mrs. Ayer's statements violated his right to confrontation under the New Hampshire and United States Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. Because the defendant has raised his claim under the State and Federal Constitutions, we would normally address his State claim first. See State v. Dedrick, 132 N.H. 218, 226 (1989). However, in this case, the defendant has raised an issue under the Federal Constitution and has not enunciated either a State standard different from the Federal one or a reason to adopt such a standard; we will therefore address his claim under the Federal Constitution first. Id. In Crawford, the defendant was arrested for stabbing a man who, he claimed, attempted to rape his wife. Crawford, 541 U.S. at 38. The defendant's wife was interrogated at the police station, and gave a taped statement about the incident. Id. at 38-39. At trial, the defendant's wife did not testify. Id. at 40. The State, therefore, sought to introduce her taperecorded statement. Id. The defendant objected on the ground that introducing the tape would violate his Sixth Amendment right to confrontation. Id. In ruling that the admission of the taped statement violated the "Sixth Amendment's guarantee that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him", id. at 38 (quotations and ellipsis omitted), the Court overruled, in part, a line of cases

3

beginning with Ohio v. Roberts, 448 U.S. 56 (1980). Under the Roberts analysis, certain out-of-court statements could be admitted if the declarant was unavailable and the statements fell within a "firmly rooted" exception to the rule against hearsay, or if they bore particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66. In rejecting the Roberts formulation as it pertained to testimonial statements, the Court stated, "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of `reliability.'" Crawford, 541 U.S. at 61. Accordingly, the Court ruled that testimonial statements of a declarant absent from trial would only be admitted when the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Id. at 59. The Court did not alter the Roberts analysis pertaining to the admissibility of nontestimonial statements. See, e.g., Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) ("[U]nless [the] statements qualify as `testimonial,' Crawford is inapplicable and Roberts continues to apply."). Under Crawford, "a declarant's `testimonial' out-of-court statement is not admissible under the Confrontation Clause unless (1) the declarant testifies, or (2) the defendant had a prior opportunity for cross-examination and the declarant is unavailable, or (3) the evidence is admitted for purposes other than establishing the truth of the matter asserted." United States v. Maher, 454 F.3d 13, 19-20 (1st Cir. 2005). Therefore, "[a]ssuming the declarant does not testify and is in fact available, and/or there was no prior opportunity for crossexamination of the declarant, Crawford claims will usually turn on one of two issues. First, was the out-of-court statement testimonial? Second, if so, is it admissible for reasons other than the truth of the matter asserted?" Id. at 20. Resolution of the matter before us turns on the first issue. In Crawford, the Supreme Court did not define what statements qualify as testimonial. Crawford, 541 U.S. at 68. Instead, the Court listed, for illustrative purposes, various types of statements that fall within the "core class" of testimonial statements. With only the Supreme Court's illustrations to guide them, however, state and federal courts developed numerous, and often conflicting, analyses for determining which evidence is testimonial and therefore subject to Crawford. See, e.g., Flores v. State, 120 P.3d 1170, 1177 (Nev. 2005). Recently, in Davis v. Washington, 126 S. Ct. 2266 (2006), the Supreme Court clarified the definition of testimonial statements. Davis involved two consolidated cases. In the first, Davis v. Washington, a woman made a 911 call during the course of a domestic disturbance with her former boyfriend. Id. at 2270-71. The victim gave numerous statements to the 911 operator about her assailant during and immediately after the assault. Id. at 2271. When police arrived a few minutes later, they observed the victim's shaken state, her fresh injuries and her frantic efforts to collect her belongings

4

in order to leave. Id. When her attacker, Davis, was tried for the assault, the victim did not testify and the State sought to introduce her statements to the 911 operator. Id. The Supreme Court of Washington held that some of the statements to the 911 operator were nontestimonial and thus not barred by Crawford, and that admitting any statements which were testimonial was harmless. Id. at 2271-72. In the second case, Hammon v. Indiana, police responded to a report of a domestic disturbance. Id. at 2272. Upon arriving, the police found a woman, Amy, sitting on the front porch of her home. Id. She informed the police that nothing was wrong, but that they could, nonetheless, enter. Id. Once inside, the police noticed signs of a physical altercation and sought to question Amy as well as a man found inside, the defendant. Id. The police took the two people into separate rooms and questioned them about what had happened. Id. After hearing Amy's account of how the defendant had attacked her, the police had her fill out a "battery affidavit." Id. At the defendant's trial, Amy did not appear and the State, over the defendant's objection, introduced her oral statements to the officers and her statements in the battery affidavit. Id. The Indiana Supreme Court held that her oral statements were admissible as excited utterances and were not testimonial so as to be barred by Crawford. Id. at 2273. The Indiana Supreme Court found that the battery affidavit was testimonial, but that its admission was harmless. Id. In addressing these cases, the United States Supreme Court noted that "[a] critical portion of th[e] holding [in Crawford], and the portion central to resolution of the two cases now before us, is the phrase `testimonial statements'" because "[o]nly statements of this sort cause the declarant to be a `witness' within the meaning of the Confrontation Clause." Id. Accordingly, the Court stated: Without attempting to produce an exhaustive classification of all conceivable statements--or even all conceivable statements in response to police interrogation--as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. The Court made sure "not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial." Id. at 2274 n. 1.

5

This is so because "[t]he Framers were no more willing to exempt from crossexamination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Id. Thus, "even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Id. Applying its new definition of testimonial statements to the facts of Davis, the Supreme Court held that the victim's statements to the 911 operator were nontestimonial. Id. at 2276-77. The Court noted that the victim was speaking about events as they happened and immediately afterward as opposed to describing past events, any reasonable listener would realize that the victim was facing an ongoing emergency, the questions asked and answered were relevant to the resolution of the ongoing emergency, and the victim gave frantic answers in an environment that was not tranquil or safe. Id. In sum, the victim in Davis "simply was not acting as a witness; she was not testifying." Id. at 2277. Conversely, in evaluating Hammon, the Court found that Amy's oral statements and those in the affidavit were testimonial. Id. at 2278. In Hammon, as in Crawford, there was no ongoing emergency, there was no immediate threat to Amy or anyone else, and the purpose of the officers' questioning was to determine what had happened at some point in the past. Id. According to the Court, "[o]bjectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime . . . ." Id. In comparing the statements in Hammon to those in Crawford, the Court found that: Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial. Id. The Court also noted: Although we necessarily reject the Indiana Supreme Court's implication that virtually any "initial inquiries" at the crime scene will not be testimonial, we do not hold the opposite--that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that officers called to investigate need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible

6

danger to the potential victim. Such exigencies may often mean that "initial inquiries" produce nontestimonial statements. But in cases like this one, where Amy's statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were "initial inquiries" is immaterial. Id. at 2279 (italics, brackets, quotations and citations omitted). In the wake of Crawford and Davis, we are left with a two-step analysis for determining whether an unavailable declarant's statements may be admitted at trial. First, it must be determined whether the statements at issue are testimonial under the Crawford and Davis criteria. If the statements are testimonial, then it must be determined whether the declarant is, in fact, unavailable, and whether there has been a prior opportunity to cross-examine, or whether the statements are admissible for some reason other than their truth. If the statements are not testimonial, the second step is to determine if the statements are admissible under Roberts. With the above framework of Crawford and Davis in mind, we turn to the issue presented. Whether a statement is testimonial under Crawford and Davis is a legal conclusion which is determined by an objective analysis of the primary purpose of the interrogation which produced the disputed statement. Davis, 126 S. Ct. at 2273. Thus, although we defer to the trial court's determination of historical facts, we review its legal conclusion that Mrs. Ayer's statements were nontestimonial de novo. See State v. Allen, 150 N.H. 290, 292 (2003). During trial, the defendant objected to Officer Matthews' testimony about Mrs. Ayer's declarations that "He had said that morning that he was going to shoot him," and, "he'd been sitting across the street in his truck all morning waiting for him." Although the trial court did not have the benefit of Davis, it ruled that Mrs. Ayer's statements were not testimonial and thus not subject to Crawford. The trial court also found that the statements were admissible hearsay because they qualified as excited utterances. We agree with the trial court that the statements were not testimonial and were otherwise admissible. Because the declarant, Mrs. Ayer, was not the victim of the charged crime, we note that Davis is not precisely on point. However, it is sufficiently analogous to inform our analysis. As quoted above: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the

7

circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis, 126 S. Ct. at 2273. For the purpose of resolving this matter, we assume, without deciding, that by approaching Mrs. Ayer, Officer Matthews "interrogated" her, as the term is used in Crawford. Crawford, 541 U.S. at 53 n. 4 ("We use the term `interrogation' in its colloquial, rather than any technical legal, sense."). Therefore, the relevant inquiry under Davis is whether the primary purpose of this interrogation was to enable police assistance to meet an ongoing emergency. At the point that Matthews' interrogation began, he knew only that a shooting had occurred just moments before. He did not know whether the perpetrator was still in the immediate area or whether he would return to the area. Nor did he know whether the perpetrator was armed, or whether any potential witnesses or other members of the public were or would become targets. In short, Matthews did not know anything about the perpetrator that would indicate whether the violence had ended or whether it might continue there or elsewhere. Thus, obtaining information about the perpetrator would enable Officer Matthews to address an existing threat to his safety and the safety of others. Furthermore, it was in a chaotic, non-tranquil setting filled with police, medical personnel and other bystanders, that Matthews approached a woman who was, like the victim in Davis, distraught, crying and hysterical, and who might have seen the shooting or might know the whereabouts of the perpetrator. Without any prompting, Mrs. Ayer offered the statements objected to by the defendant and then gave information about the perpetrator, including the fact that he had continued access to firearms. Here, as in Davis, Matthews' interrogation, objectively viewed, was primarily for the purpose of resolving an ongoing emergency. The information Matthews obtained permitted him to know with whom he was dealing so that he could assess the situation, the threat to his safety, and the possible danger to other potential victims. See Davis, 126 S. Ct. at 2279. His initial inquiries thus resulted in the provision of information that enabled officers immediately to end a threatening situation. Id. As such, they were the type of initial inquiries that the Supreme Court identified as likely to produce nontestimonial statements. Id. Under these facts, we hold that the circumstances objectively indicate that the primary purpose of Matthews' interrogation was to enable police assistance to meet an ongoing emergency and, therefore, Mrs. Ayer's initial statements were not testimonial as defined in Crawford and Davis.

8

The defendant argues that the "ongoing emergency" language of Davis ought to be read narrowly. He contends that because Rowland had been shot and the gunman had fled, the emergency had abated and the police were primarily investigating past events. We do not read Davis so narrowly. Viewed objectively, as required by Davis, the interrogator knew that an armed assailant, who had just shot an unarmed individual in public in broad daylight, was loose, and could have remained in the immediate vicinity or could have gone elsewhere in search of other victims. The emergency created by the shooting had not necessarily ended merely because more shots had not yet been fired. See State v. Camarena, 145 P.3d 267, 275 (Or. Ct. App. 2006) (although defendant had left the scene of an assault, the fact that he could easily return meant that the emergency had not ended); State v. Alvarez, 143 P.3d 668, 674 (Ariz. Ct. App. 2006) ("Although the criminal activity that resulted in [the victim's] injuries and the ensuing charges against [the defendant] had ended, the emergency that those events set in motion was very much ongoing."). We do not believe that under these circumstances

Download 2004-510, STATE OF NH v. DANIEL AYER, SR..pdf

New Hampshire Law