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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-northern judicial district No. 2007-396 THE STATE OF NEW HAMPSHIRE v. CHRISTOPHER LEGERE Argued: September 11, 2008 Opinion Issued: October 15, 2008 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.

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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 (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 (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 (1980). See State v. Munoz, 157 N.H. 143, 148 (2008); State v. Ayer, 154 N.H. 500, 511 (2006), cert. denied, 128 S. Ct. 63 (2007). As neither party argues for the imposition of a different standard, we confine our analysis to the Roberts standard.

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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. 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 outof-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 crossexamination 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 (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. 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 (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, 863 N.E.2d 1173 (Ill. App. Ct. 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

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there was significantly different from Rule 801(d)(1)(C), making any meaningful comparison difficult. See Learn, 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 available for cross-examination and thus satisfied the requirements of the rule. See Delgado, 137 N.H. at 382-83. For these reasons, we conclude that Diabo's prior statement of identification fell within a firmly rooted hearsay exception and, therefore, its admission did not violate the rules of evidence or the State Constitution. Relying upon Crawford, the defendant next contends that the introduction of Diabo's identification violated his right to confrontation secured by the Sixth Amendment to the United States Constitution. In Crawford, the United States Supreme Court stated that the Confrontation Clause's "ultimate goal is to ensure reliability of evidence" and that this reliability was to "be assessed in a particular manner: by testing in the crucible of crossexamination." Crawford, 541 U.S. at 61. To preserve the goal of reliable evidence tested by cross-examination, the Supreme Court held that testimonial statements of witnesses absent from trial are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59. Here, it is undisputed that Diabo's identification was testimonial, and that the defendant had no prior opportunity to cross-examine her about it. Accordingly, the admissibility of her statements depends upon whether, despite her physical appearance at trial, Diabo was, in effect, "unavailable" as pertains to a federal Confrontation Clause analysis. Because this is an issue of first impression in New Hampshire, we look to the guidance of other jurisdictions. See State v. O'Maley, 156 N.H. 125, 134 (2007). Recently, the Supreme Court of Minnesota addressed this issue on similar facts. In State v. Holliday, 745 N.W.2d 556 (Minn. 2008), the defendant was charged with shooting and killing another man. Id. at 560. At trial, the State called A.A. to testify regarding information he gave in interviews with the police and the prosecution. Id. at 561. After taking the stand, A.A. claimed no memory of his prior discussions. Id. He recalled only that he had talked with someone in the prosecutor's office, but could not remember the substance of that conversation. Id. The contents of A.A.'s statements were then introduced into evidence through other witnesses. Id. The defendant argued that admitting A.A.'s statements violated the Confrontation Clause. Id. at 564-65. In conducting a thorough analysis of Crawford, the court noted that "[l]anguage from the Supreme Court's Crawford decision indicates that the admission of a witness's prior statements does not

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violate the Confrontation Clause where the witness appears for crossexamination and claims that he or she cannot remember either making the statements or the content of the statements." Id. at 565. Specifically, it relied upon the conclusion in Crawford that "when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court." Crawford, 541 U.S. at 59 n.9 (quotations and citations omitted); see Holliday, 745 N.W.2d at 565. The Minnesota court noted that the Supreme Court's conclusion that the Confrontation Clause does not bar the admission of prior testimonial statements as long as the declarant is present at trial to defend or explain it could be interpreted to mean that the declarant must actually defend or explain the prior statement. Holliday, 745 N.W.2d at 565. We agree, however, with the Minnesota court's conclusion that this interpretation both ignores the fact that the [Supreme] Court's language still focuses on presence and ability to act without requiring that the record show the declarant actually did defend or explain the statement, and is at odds with the Court's more explicit assertion that when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Id. at 565-66 (quotations and citation omitted). The Minnesota court relied, as have other courts, see, e.g., State v. Pierre, 890 A.2d 474, 499-500 (Conn.), cert. denied, 547 U.S. 1197 (2006), upon a line of United States Supreme Court cases beginning with California v. Green, 399 U.S. 149 (1970). In Green, the Supreme Court reversed the California Supreme Court's decision to exclude, on Confrontation Clause grounds, the testimony of a witness present at trial, but who claimed not to recall the relevant events. Id. at 151-52, 164. In so ruling, it stated that "where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem." Id. at 162. Following Green, in Delaware v. Fensterer, 474 U.S. 15, 20 (1985), the Supreme Court, after referencing Justice Harlan's concurrence in Green that "[g]enerally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish," concluded that:

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the assurances of reliability our cases have found in the right of cross-examination are fully satisfied in cases such as this one, notwithstanding the witness' inability to recall the basis for his opinion: the factfinder can observe the witness' demeanor under cross-examination, and the witness is testifying under oath in the presence of the accused. Thus, the Court concluded that the prosecution's expert witness testimony was admissible even though he had forgotten the basis for his professional opinion. Id. at 16. The Court concluded that: The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony. Id. at 21-22. In United States v. Owens, 484 U.S. 554, 564 (1988), the Supreme Court held that the Confrontation Clause was not "violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification." Relying upon Fensterer, the Court stated that the opportunity for effective cross-examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory. Id. at 559 (citation omitted). "The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee." Id. at 560. Crawford neither overruled nor undermined either Fensterer or Owens. See State v. Price, 146 P.3d 1183, 1191 (Wash. 2006); State v. Real, 150 P.3d 805, 807-08 (Ariz. Ct. App. 2007). Indeed, it specifically relied upon Green in concluding that a declarant's appearance at trial removes all Confrontation

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Clause constraints on the use of prior testimonial statements. Crawford, 541 U.S. at 59 n.9. As such, Green, Fensterer and Owens remain good law. Other jurisdictions considering the issue have also concluded that memory loss does not render a witness unavailable for Confrontation Clause purposes. In Pierre, the Supreme Court of Connecticut noted: "The defendant's argument equates a declarant's inability or unwillingness to remember prior statements made to the police with a general unavailability from cross-examination in its entirety." Pierre, 890 A.2d at 498. The court was not persuaded by the defendant's argument and concluded that although the witness claimed no memory of his prior statements, he was, nonetheless, available because he was placed on the stand, under oath and responded willingly to questioning. Id. at 501-02. Likewise, the Supreme Judicial Court of Maine has concluded that "a witness is not constitutionally unavailable for purposes of Confrontation Clause analysis when a witness who appears and testifies is impaired." State v. Gorman, 854 A.2d 1164, 1177 (Me. 2004) (citation omitted), cert. denied, 544 U.S. 928 (2005). Thus, a witness who claimed a lack of memory as well as a potential for delusional thoughts due to medication was not deemed unavailable. Id. Accordingly, like most courts that have considered the issue, we conclude that when a witness is presented for cross-examination, the Confrontation Clause does not bar the admission of a prior statement. Accord, e.g., Price, 146 P.3d at 644, 650; Real, 150 P.3d at 808; Johnson v. State, 878 A.2d 422, 428-29 (Del. 2005); People v. Gunder, 59 Cal. Rptr. 3d 817, 823-24 (Ct. App. 2007); People v. Sharp, 825 N.E.2d 706, 713 (Ill. App. Ct. 2005). But see People v. Learn, 863 N.E.2d at 1179. The defendant urges us to distinguish Green, Fensterer, and Owens on the grounds that: (1) there is good reason to doubt the genuineness of Diabo's claim of memory loss; (2) her claim of memory loss is factually distinguishable from Owens; and (3) there are no "realistic weapons" with which to attack Diabo's statement. See Owens, 484 U.S. at 560. First, the defendant argues that "[t]he falsity of Diabo's claim of memory loss brings this case within the rule of cases finding no adequate opportunity to cross-examine when a witness, properly or otherwise, simply refuses to answer questions at trial." See, e.g., Douglas v. Alabama, 380 U.S. 415, 420 (1965). However: The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity

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to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement's credibility. Gunder, 59 Cal. Rptr. 3d at 823-24. Moreover, "[t]he feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the witness unavailable." Fowler v. State, 829 N.E.2d 459, 466 (Ind. 2005), cert. denied, 547 U.S. 1193 (2006); see also United States v. Keeter, 130 F.3d 297, 302 (7th Cir. 1997) (witness feigning amnesia during trial still subject to cross-examination), cert. denied, 523 U.S. 1034 (1998). Regardless of the authenticity of Diabo's claim of memory loss, because she was present at trial and subject to whatever cross-examination the defense wished to attempt, the jury had the opportunity to assess her credibility and, by extension, the credibility of her earlier statement. Second, the defendant argues that because Diabo's memory loss is more acute than that in Owens, this case is distinguishable from it. While Diabo's claim of memory loss is more severe than in Owens, we are not persuaded that a contrary result is compelled by that difference. Remembering that a prior statement was made, yet not recalling the reasons for it or the circumstances leading up to it, imparts little, if any, information about the veracity of the declarant that could not otherwise be established or challenged by crossexamination. Thus, we do not agree that the severity of Diabo's memory loss requires a departure from Owens. Finally, the defendant contends that, in Owens, the defense had "realistic weapons," Owens, 484 U.S. at 560, with which to dispute the reliability of the out-of

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