Argued: May 7, 2015
Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Vincent Cooper, appeals his convictions, following a jury trial, for armed robbery and conspiracy to commit armed robbery. See RSA 636:1 (2007); RSA 629:3 (2007). He argues that the Superior Court (Tucker, J.) erred by allowing the State to play an audio recording of a 911 telephone call at trial, and by allowing the State, in closing argument, to comment on a fact not in evidence and to misstate the burden of proof. We affirm.
The defendant's convictions arise out of an armed robbery that occurred in Dover on July 26, 2010. The defendant was charged with armed robbery, in that, he, acting "in concert with David McLeod and/or Warren Griffen, in the course of committing a theft from [the victim], knowingly use[d] physical force on [the victim] and [the victim] was aware of such force and McLeod was actually armed with or reasonably appeared to the victim to be armed with a deadly weapon, a firearm." The defendant was also charged with conspiracy to commit armed robbery in that, with the purpose that the crime of robbery be committed, he agreed with McLeod and/or Griffen "to commit or cause the commission of such crime" and "at least one of the following overt acts was committed by one of the [conspirators] in furtherance of the conspiracy": (1) the defendant "drove McLeod and [Griffen] to [the victim's] residence to rob [the victim] of prescription pills"; (2) the defendant "provided McLeod with a firearm" upon arriving at the victim's residence; (3) "McLeod robbed [the victim]"; and (4) the defendant drove McLeod and Griffen away "after McLeod returned from the robbery."
At trial, the State sought to introduce into evidence the audio recording of a 911 telephone call made by the victim. The defendant objected, arguing that the victim's statements were inadmissible hearsay and that, because the victim was not available to testify at trial, their admission would violate his constitutional right to confront the witnesses against him. The trial court ruled that the statements were admissible as excited utterances and that their admission did not violate the defendant's right to confront the witnesses against him. Thereafter, the State played the 911 recording for the jury.
During the 911 call, the victim told the operator that somebody with a gun and pepper spray had "just tried to break in the house." The victim was unable to identify the suspect, but stated that he was wearing a "[blue] bandana, black hat, " and "black pants." He also told the operator that "[t]hey were driving a tan Crown Vic, I think, or something" and described the vehicle's direction of travel after the incident. The victim said that the suspect had pepper sprayed him, but that the victim "had a stick, and . . . started whacking [the suspect]." The victim stated that his eyes were burning from the pepper spray and told the operator that he needed to go to wash his face. At that point, the operator told the victim that an ambulance was on its way and the call ended.
The State also presented the testimony of McLeod. McLeod testified to the following: On July 26, 2010, he met with the defendant and Griffen in the parking lot of his then-girlfriend's apartment. The defendant was driving a recently purchased "tan Buick" with temporary license plates. Griffen told McLeod that he wanted to rob the victim and that McLeod was going to do it. The defendant then drove them to the victim's apartment to rob the victim of pills. When they arrived, the defendant took out a gun and handed it to McLeod, and told him "just do it and get it over with."
McLeod then ran to the victim's apartment and "tried to barge in, " but the victim "had a two by four" that he "shoved . . . at the door . . . [and] got the door closed." Before the victim closed the door, McLeod tried to pepper spray him; however, at some point, McLeod dropped the can of pepper spray. McLeod then ran down the stairs and, as he did so, he dropped the gun. He picked up the gun and ran back to the car. When he got into the car, the defendant was in the driver's seat and Griffen was in the front passenger seat. The defendant then drove McLeod back to his then-girlfriend's apartment.
McLeod also testified that, in exchange for his testimony against the defendant, he received immunity from prosecution for his involvement in the robbery as well as a more lenient sentence on other unrelated charges, including a separate robbery that occurred the same night as the robbery for which the defendant was charged.
During the State's closing argument, the prosecutor argued that the jury should not discredit McLeod's testimony simply because he received a reduced sentence on the other robbery charge in exchange for his testimony in this case. The prosecutor stated that other witness statements and physical evidence supported McLeod's testimony. For example, the prosecutor told the jury that Griffen's fingerprints were found on evidence located near the scene of a car crash that occurred shortly after the other robbery involving McLeod. However, in fact, there was no evidence admitted at trial that Griffen was the source of the fingerprints. The prosecutor also discussed the concept of reasonable doubt, telling the jury: "It doesn't mean beyond any doubt, and ...