The opinion of the court was delivered by: Conboy, J.
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.
Argued: February 16, 2012
The defendant, John Brooks, appeals his conviction, following a jury trial, for capital murder involving solicitation, capital murder in the course of a kidnapping, first degree murder (as an accomplice), and conspiracy to commit capital murder, in connection with the death of Jack Reid, Sr. See RSA 630:1, I(b), (c) (1996) (amended 2006, 2011); RSA 630:5 (1996); RSA 626:8 (Supp. 2004); RSA 630:1-a, I(a) (1996); RSA 629:3 (Supp. 2004). On appeal, he argues that the Superior Court (Lynn, C.J.) erred by: (1) permitting the State to authenticate documents by use of affidavits, rather than live testimony, in violation of his rights under the State and Federal Constitutions; (2) permitting an FBI agent to testify that the defendant's account may have been untruthful; (3) permitting the State to introduce a new opinion from the medical examiner during the trial; (4) failing to instruct the jury that it must determine the "predominating cause" of death, pursuant to State v. Seymour, 140 N.H. 736 (1996); (5) failing to instruct the jury that the solicitation variant of capital murder requires a finding that the defendant acted for his personal pecuniary gain; and (6) failing to instruct the jury that the kidnapping variant of capital murder requires a finding that the defendant intended to confine Reid to commit a crime other than murder. We affirm.
The jury could have found the following facts. See State v. Knight, 161 N.H. 338 (2011) (related proceeding). In September 2003, the Brooks family's belongings were stolen from a rental truck and trailer, which the family had loaded in preparation for their move from New Hampshire to Las Vegas. Although the Brookses suspected Jack Reid of the theft, they agreed not to give his name to the police; instead, the defendant told two friends of his son, Jesse - Andrew Carter and Michael Benton - that he wanted their help to kill Reid.
He met with Carter and Benton over the next several months to discuss how to "take care of" Reid, including possibly kidnapping him so that the defendant could find out the location of his property, and ultimately killing him. The defendant assured Carter and Benton that they would be "taken care of" if they helped him, and they were initially paid $5,000. However, their attempts on Reid's life in 2003 were unsuccessful. The defendant and Carter continued to discuss killing Reid into the fall of 2004.
In August 2004, the defendant, his wife Lorraine, and Jesse went to the Portsmouth office of the Federal Bureau of Investigation, where they reported their suspicions regarding Reid and provided Special Agent Laura Hanlon a written chronology of events that concerned them.
At some point, the defendant became acquainted with Joseph Vrooman and Robin Knight in Las Vegas. Sometime after June 10, 2005, he offered Vrooman $10,000 to help him kill Reid, and Vrooman agreed. The defendant and Vrooman then met at the defendant's Las Vegas home, joined by Jesse. They discussed obtaining a telephone with which to lure Reid to the property of Michael Connors, another New Hampshire acquaintance, and obtaining handcuffs, pepper spray, and a stun gun with which to subdue Reid. After this meeting, Vrooman obtained the handcuffs, pepper spray, and stun gun and brought them to the defendant's Las Vegas home, where they packaged the supplies and sent them to Connors in New Hampshire. On June 18, 2005, the defendant and Vrooman flew to New Hampshire, where Connors picked them up at the airport, bearing the unopened package of supplies as the defendant had instructed.
The next day, the defendant and Vrooman met Benton in Manchester. The defendant paid for Benton to purchase a prepaid cellular telephone with which to call Reid; Benton activated the telephone using the name "Charlie Was." They then drove to Connors's home. Although Connors told the defendant he did not want him to use his property, Vrooman testified that the defendant told him and Benton that they could use Connors's place.
Over the next week, the defendant and Vrooman, joined by Knight, purchased more supplies - a large black plastic tarp, duct tape, garbage bags, zip-ties, Saran Wrap, and gloves. They decided that Vrooman, Knight, and Benton would subdue Reid, and the defendant would be armed with his .22 caliber handgun in case anything went wrong.
On June 27, 2005, the date they had set for Reid to come to Connors's property for a fictitious job, the defendant, Vrooman, Benton, and Knight drove to the property. Once there, Benton testified, the defendant stated that he wanted Reid to know that "it's me that's doing this to him." To this end, they decided that they would confine Reid in a small closet area in the home's attached barn, after which the defendant would confront him and they would suffocate him using the Saran Wrap. However, Benton found a sledgehammer in the barn, so the plan became that Vrooman would push Reid into the closet, where Benton would hit him with the sledgehammer.
When Reid arrived at Connors's house, the defendant and Benton hid in the barn. Knight and Vrooman greeted Reid and led him down a hallway into the barn. After Vrooman pushed Reid into the closet, Benton hit him on the side of the head with the sledgehammer. Knight told Benton that Reid was not yet dead, and Benton struck two or three additional blows to Reid's forehead with the sledgehammer. Knight, Vrooman, and the defendant carried Reid, still breathing, from the closet to the black plastic tarp, which had been laid out on the barn floor. As Knight and Benton tried to clean up the blood, Vrooman told the defendant that Reid would not stop bleeding. Vrooman testified that the defendant said, "[S]top the heart, stop the bleeding," and struck Reid two or three times in the chest with the sledgehammer. The four men then emptied Reid's pockets, wrapped his body in the tarp, carried it out to the back of Reid's dump truck, and covered it with branches and rocks.
Vrooman and Knight drove Reid's truck to Massachusetts and left it in a Target Store parking lot. The defendant gave Benton $5,000. After returning to New Hampshire, the defendant and Vrooman threw the sledgehammer, handcuffs, and Reid's watch into a nearby river. They stopped by the home of Bert Seaver, a friend of the defendant, where they disposed of evidence. The following day, the defendant, Vrooman, and Knight returned to Connors's barn and replaced the walls and floor of the closet area where Reid had been killed.
On July 1, 2005, the defendant, Vrooman, and Knight returned to Las Vegas. There, the defendant paid Vrooman $2,500 in cash; over the next few months, Vrooman received an additional $10,000 from the defendant and Jesse. Vrooman was told that Knight had also been paid. In late July, the defendant sent Benton another $400 through Western Union. In early August, Benton telephoned Jesse to ask for more money so he could travel to Las Vegas, and received another $800 through Western Union.
At trial, the State introduced extensive documentary evidence, including telephone records, air travel records, insurance company records, Federal Express records, and Western Union records, as business records under New Hampshire Rule of Evidence 803(6), and authenticated the records through certifications from the records' custodians pursuant to New Hampshire Rule of Evidence 902(11). The defendant argues that allowing the records to be so authenticated violated his rights under the Sixth Amendment's Confrontation Clause and the New Hampshire Constitution. He challenges the trial court's ruling that the certifications of authenticity pursuant to Rule 902(11) were not testimonial, arguing that "the custodian affidavits did far more than 'authenticate' records as genuine copies of originals in the custodian's possession."
We review the defendant's Confrontation Clause challenges de novo. See United States v. Yeley-Davis, 632 F.3d 673, 678 (10th Cir. 2011), cert. denied, 131 S. Ct. 2172 (2011). Because the defendant has raised his claim under both the State and Federal Constitutions, we would normally address his State claim first. See State v. Ayer, 154 N.H. 500, 504 (2006). However, the defendant's arguments center upon his rights under the Federal Constitution: he contends that admitting the records through affidavits, rather than live testimony, was contrary to Crawford v. Washington, 541 U.S. 36 (2004), and its progeny, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). We will therefore first address his claim under the Federal Constitution.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Fourteenth Amendment renders the Confrontation Clause binding on the States. See Michigan v. Bryant, 131 S. Ct. 1143, 1152 (2011). Only "testimonial statements" cause a declarant to be a "witness" within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006) (quotations omitted). A witness is a person who "bear[s] testimony." Crawford, 541 U.S. at 51 (quotation omitted). "Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (quotations and brackets omitted).
"The crucial determination under Crawford as to whether an out-of-court statement violates the Confrontation Clause is whether it is 'testimonial' or not." State v. O'Maley, 156 N.H. 125, 131 (2007), overruled in part by Melendez-Diaz, 557 U.S. at 312-20; see also United States v. Mallory, 461 Fed. Appx. 352, 356 (4th Cir. 2012) ("the right of confrontation covers all testimonial statements that declarants would reasonably expect to be used prosecutorily" (quotation omitted)). "To be considered testimonial, the primary purpose of the statement must be 'to establish or prove past events potentially relevant to later criminal prosecution.'" Mallory, 461 Fed. Appx. at 356 (quoting Davis, 547 U.S. at 822).
"Business records are generally admissible, even without confrontation." Id.; see Bullcoming, 131 S. Ct. at 2714 n.6. "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because - having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial - they are not testimonial." Melendez-Diaz, 557 U.S. at 324. Statements that qualify as business records are not, however, non-testimonial per se. See O'Maley, 156 N.H. at 135. "Accordingly, under Melendez-Diaz, the relevant question in determining whether a business record is testimonial is whether it was created for the administration of an entity's affairs or for the purpose of establishing or proving some fact at trial." United States v. Hudson, 2011 U.S. Dist. LEXIS 126830 at *12 (E.D. La. 2011). "If the primary purpose of creating the record is not to prove a fact at trial, the admissibility of the records is the concern of state and federal rules of evidence, not the Confrontation Clause." Id. (quotation, brackets, and emphasis omitted).
Although the defendant argues that the State should have presented live testimony regarding the requirements of the business records rule, he conceded at oral argument that nearly all of the records admitted in the case were not testimonial. He contends, however, that some of the telephone records "were not records . . . that were maintained in the ordinary course of business by the phone company." We disagree. The defendant's argument relies upon the testimony of a witness who explained that the telephone records that were not billing records were nonetheless part of the telephone company's record system. See Yeley-Davis, 632 F.3d at 679 (finding that, although certain telephone records were not telephone bills, "[t]his does not mean . . . that these records were created simply for litigation - they were not. Rather, these records were kept for [the telephone company's] business purposes" and, therefore, were not testimonial). Because all of the telephone records, including the records that would not normally be provided to a subscriber, were "created for the administration of [the] entity's affairs and not for the purpose of establishing or proving some fact at trial," Melendez-Diaz, 557 U.S. at 324, they are not testimonial. See Mallory, 461 Fed. Appx. at 356 (FedEx record); Hudson, 2011 U.S. Dist. LEXIS 126830 at *12-*13 (telephone and financial records).
Unlike the records themselves, however, the certifications of the business records were created for the sole purpose of litigation - that is, to authenticate documents pursuant to Rule 902(11). See Hudson, 2011 U.S. Dist. LEXIS 126830, at *13-*14 (noting that business record certifications pursuant to Federal Rule of Evidence 902(11) could be described as affidavits prepared for litigation purposes); United States v. Hemphill, 514 F.3d 1350, 1358-59 n.2 (D.C. Cir. 2008) (same). Thus, we turn to the question of whether admission of the certifications violated the defendant's Confrontation Clause rights.
We note first that the defendant does not challenge the certifications' compliance with Rule 902(11). Rather, he challenges Rule 902(11)'s authentication procedure as incompatible with his confrontation rights. The Supreme Court, however, has distinguished an affidavit that is created for the purpose of providing evidence against a defendant (to which the right of confrontation would apply) from an affidavit merely authenticating an admissible record (an exception to confrontation requirements). See Melendez- Diaz, 557 U.S. at 322-23. It stated, "A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not . . . create a record for the sole purpose of providing evidence against a defendant." Id. Certifications under Rule 902(11) "are authentications of otherwise admissible records and do not themselves create new records. Accordingly, they are non-testimonial." Hudson, 2011 U.S. Dist. LEXIS 126830 at *16. "Consequently, Melendez-Diaz makes clear that the Sixth Amendment right to confront witnesses does not include the right to confront a records custodian who submits a Rule 902(11) certification of a record that was created in the course of a regularly conducted business activity." Mallory, 461 Fed. Appx. at 357; see United States v. Fajardo-Guevara, 2011 WL 6003840 at *2 n.1 (M.D. La. 2011) ("902(11) certifications are non-testimonial and do not implicate the Confrontation Clause").
The defendant insists that "the custodian affidavits did far more than 'authenticate' records as genuine copies of originals in the custodian's possession." He points out that an affidavit merely verifying that the records were true copies of those in the business's file would not suffice to authenticate the documents as business records. See United States v. Weiland, 420 F.3d 1062, 1076 n. 13 (9th Cir. 2005) ("Unlike public records admitted under Rule 803(8), records of a regularly conducted activity admitted under Rule 803(6) require additional foundation."). Indeed, Rule 902(11) provides that authentication requires the custodian or another qualified person to certify under oath that the record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. N.H. R. Ev. 902(11). Thus, the defendant argues, Rule 902(11) certifications provide "testimony about who made the records . . . and how the records were made," like the affidavits involved in Melendez-Diaz.
We agree with the courts that have ruled that Rule 902(11) certifications are distinguishable from the certificates at issue in Melendez-Diaz. See Hudson, 2011 U.S. Dist. LEXIS 126830 at *16-*17 n.5 ("Although a 902(11) certification goes beyond a simple statement that the record in issue is a record of the business in question, none of the courts to address the issue has found this to be an impediment to the use of these certifications under the Confrontation Clause."). The evidence at issue in Melendez-Diaz consisted of "three 'certificates of analysis,' . . . sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health," reporting the weight of bags of material seized by the police and stating that the bags "[had] been examined with the following results: The substance was found to contain: Cocaine." Melendez-Diaz, 557 U.S. at 308 (quotations omitted). In Melendez-Diaz, "not only were the affidavits 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' but under Massachusetts law the sole purpose of the affidavits was to provide 'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance." Melendez-Diaz, 557 U.S. at 311 (quoting Crawford, 541 U.S. at 52 & Mass. Gen. Laws, ch. 111, § 13).
The certifications in this case, however, served only as the foundation for the admission of the substantive evidence. The certifications themselves had minimal evidentiary value. See United States v. Kos, 2008 WL 5084006, at *3 (W.D.N.C. 2008) ("a business record certification does not serve independently as evidence in the case; rather, it serves merely to lay a foundation for the admission of business records" (quotations, brackets and ellipsis omitted)). Thus, we conclude that the admission of the records and the certifications did not violate the defendant's confrontation rights under the Federal Constitution.
The defendant argues that "[t]he New Hampshire right must be at least as extensive as the Confrontation Clause rights described in Crawford, Melendez-Diaz, and Bullcoming; however, given the greater precision of the New Hampshire Constitution, it should be interpreted as more expansive." "We have not, however, adopted the Crawford analysis as applicable in this State." State v. Munoz, 157 N.H. 143, 148 (2008). The defendant's assertion that the New Hampshire Constitution's Confrontation Clause protection is more expansive than the Crawford rule relies entirely upon our observation in State v. Peters, 133 N.H. 791, 794 (1991), that "[t]he language of the New Hampshire Constitution['s Confrontation Clause] is the more precise of the two, in that it explicitly provides what the Federal Constitution has been interpreted to mean." The defendant, however, does not offer argument under any standard other than the federal standard regarding the violation of his rights under the State Constitution, see Munoz, 157 N.H. at 148. Neither does he address the applicability of the Confrontation Clause test we have adopted - namely, that of Ohio v. Roberts, 448 U.S. 56 (1980). See State v. Ata, 158 N.H. 406, 409 (2009); Ayer, 154 N.H. at 511. We will not consider the admissibility of the records and ...