State v. Brooks

162 N.H. 570

34 A.3d 643

The STATE of New Hampshire

v.Jesse BROOKS.

No. 2010–262.

Supreme Court of New Hampshire.

Argued: June 15, 2011.Opinion Issued: Oct. 27, 2011.

Michael A. Delaney, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State.

Getman, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman and Clara E. Lyons on the brief, and Mr. Schulman orally), and Dwyer & Collora, LLP, of Boston, Massachusetts (William H. Kettlewell and Maria R. Durant on the brief), for the defendant.

HICKS, J.

The defendant, Jesse Brooks, appeals his conviction of conspiracy to commit murder, see RSA 629:3, I, IV (2007); RSA 630:1, I(b), (c) (2007). He argues that the Trial Court ( Nadeau, J.) erred by allowing the State to introduce prior recorded statements of a witness and by finding that witness competent to testify. He also challenges the trial court's denial of his pre-trial motion to dismiss for lack of a speedy trial. We affirm.

The jury could have found the following facts. In September 2003, the defendant's parents were moving from New Hampshire to Las Vegas, Nevada. On September 29, the defendant's father, John Brooks (John), loaded two motorcycles into a trailer to move them from a warehouse on Tinker Avenue in Londonderry. The next morning, John discovered that the trailer had been stolen. He suspected that Jack Reid, whom he had hired to help him pack, had committed the theft.

Later that morning, the defendant, who was living in California, called his friend, Andrew Carter, and asked him to go to the warehouse to help his father. Carter went to the warehouse with Michael Benton, who was also a friend of the defendant. When they arrived, John told them about the theft and that he suspected Reid. He stated that he wanted Reid killed and asked if they would help him. That day or the day after, John gave Carter and Benton a shotgun and shells, which he said he wanted used on Reid. Over the next month, he gave them $5,000 for supplies for the murder.

On November 1, 2003, the defendant's cousin was married in Las Vegas. At the wedding, John told the defendant's uncle, Roderick Chamberlain (Roderick), that he suspected Roderick's brother, Dennis Chamberlain (Dennis), of being involved in the theft.

A few days later, the defendant traveled to New Hampshire. During his visit, he, Carter and Benton visited Dennis at his home in Salem. The defendant spoke with Dennis about the theft (the November 2003 conversation). Dennis testified that the defendant asked him if he had had anything to do with the theft and “did [he] know anybody that did any stealing or anything.” Dennis replied, “[A]bsolutely not.” The defendant said that he was going to look around and see if he could find his father's property, and also stated that he had a gun, some money, and a passport. Benton testified that the defendant asked Dennis if he thought Reid was involved in the theft, and Dennis indicated that he did not think that was possible.

Later during the defendant's visit, Carter drove the defendant, Benton, John, and the defendant's former girlfriend to Reid's house at approximately 1:00 a.m. and dropped the defendant and Benton off. The defendant had a “mag light” flashlight and Benton had an aluminum baseball bat. Benton testified that they planned to use these items to hit Reid. Benton stayed behind a truck while the defendant went to one side of Reid's house and kicked it. Reid came out of his house and fired gunshots. A few minutes later, he called the police. The defendant and Benton left and later met at the defendant's family home. Subsequently, the defendant, John, Carter, and Benton decided to stop pursuing Reid for a while because he had called the police. After this incident, the defendant returned to California and John returned to Las Vegas.

In June 2005, the defendant called Benton and asked if John could get in touch with him because John was going back to New Hampshire to take care of his problem with Reid. Benton agreed. Around the same time, John recruited Joseph Vrooman to assist in killing Reid. The defendant, John, and Vrooman met at John's house in Las Vegas where they made plans to carry out the murder. The defendant indicated that Benton would be expecting a call from John once he got to New Hampshire. He told Vrooman that Reid carried a gun, that he wanted his father to wear a bullet-proof vest, and he wanted Vrooman to make sure that his father did not get hurt. The defendant also suggested ways to subdue Reid.

On or about June 18, John and Vrooman flew to New Hampshire. Over the next few days, John met with Vrooman, Benton and Robin Knight, another friend of John's from Las Vegas, to plan the murder. During that week, John telephoned the defendant two times, once telling him the date they planned to kill Reid and instructing him to use his credit card to take his mother out to dinner that day.

On June 27, 2005, John, Benton, Vrooman and Knight lured Reid to a farmhouse in Deerfield and murdered him. See State v. Knight, 161 N.H. 338, 339–40, 13 A.3d 244 (2011) (describing the murder). Immediately following the murder, John gave Benton $5,000, and told him there would be more money later. Later that night, John telephoned the defendant to ask if he had taken his mother out to dinner and used his credit card as instructed. He also indicated that the murder had been committed and said that he would talk with the defendant when he returned to Las Vegas.

On July 1, John, Vrooman and Knight flew back to Las Vegas. Upon their return, John gave Vrooman $2,500 and said that he still owed him more. Over the next year, the defendant and John gave Vrooman a total of approximately $10,000.

In late July 2005, Benton asked John for money. John told Benton to call the defendant and, when he did, the defendant wired him $400. In August, Benton again asked the defendant for money to go to Las Vegas and the defendant wired him $800. While in Las Vegas, Benton told the defendant that he “killed [Reid] for your family.” The defendant responded that he knew. Phone records, surveillance video, and other evidence found after the murder led the police to the defendant, John, Benton, Vrooman and Knight. On February 5, 2007, the defendant was arraigned for conspiracy to commit murder.

At trial, the State called Dennis to testify. During his testimony, Dennis stated that he had recently had surgery for brain cancer, which affected his memory. The court conducted a competency hearing and found Dennis to be a competent witness. During Dennis's testimony, the State was permitted to introduce portions of two prior recorded statements Dennis made as recorded recollections under New Hampshire Rule of Evidence 803(5).

On appeal, the defendant argues that the trial court erred in admitting the two prior recorded statements Dennis made and in finding that Dennis was competent to testify. He also argues that he was denied the right to a speedy trial as guaranteed by the State and Federal Constitutions.

I. Recorded Recollections

The defendant first argues that the trial court erred in allowing the State to introduce two prior statements under the recorded recollection exception to the hearsay rule. The recorded recollection exception to the hearsay rule allows into evidence:

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his or her memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and may be received as an exhibit unless the court, in its discretion, finds that such admission is unduly cumulative or prejudicial.

N.H. R. Ev. 803(5). To be admissible under this exception, the recorded statement must meet the following foundational requirements:

(1) the witness once had firsthand knowledge about the event; (2) the witness now lacks sufficient memory of the event to testify fully and accurately; (3) the recorded statement was made at or near the time of the event when the witness had a clear and accurate memory of it; and (4) the recorded statement accurately reflects the witness's knowledge.

State v. Reid, 161 N.H. 569, 572, 20 A.3d 298 (2011) (quotation omitted).

During the course of Dennis's direct examination, the State questioned him about the November 2003 conversation. Dennis was able to remember some portions of the conversation but not others. Over objection, the trial court permitted the State to read into the record the following portion of a taped statement Dennis made to the Salem Police Department in 2007 regarding the 2003 conversation:

[The defendant] kind of looked me in the face and he says, well, we know Jack took the truck. I think it was we know Jack took the truck, or something like that, something in some words in effect like that. And he pointed to his jacket. He says, I got ten grand, my passport and a nine millimeter, and I'm not afraid to use it. And that was it.

(Quotation omitted.) Shortly thereafter, the trial court allowed the State to introduce a statement Dennis made at John's 2008 trial that, during the November 2003 conversation, the defendant told him “that [the defendant] c [ould] fly out of the country in a heartbeat if he had to.”

Relying solely upon Rule 803(5), the trial court found that the State had met its “burden demonstrating that these statements [we]re admissible” as recorded recollections, noting that Dennis testified that the November 2003 conversation was “fresh in his mind at the time” he made the statements. The defendant contends that this was error because the 2007 and 2008 statements were not made at or near the time of the November 2003 conversation. The State disagrees but argues that even if the trial court erred, the error was harmless beyond...