State v. Kiewert , 135 N.H. 338 ( 1992 )

Thayer, J.

The defendant was convicted on two counts of burglary, RSA 635:1, II, for which he was sentenced to an extended term of imprisonment, RSA 651:6,1(c), and a shorter concurrent term. On appeal, he raises the following issues: (1) whether the Superior Court (Hollman, J.) erred in admitting a statement by an unavailable declarant to the declarant’s wife under the statement against penal interest exception to the hearsay rule; (2) whether the phrase “in excess of one year” contained in RSA 651:6,1(c) is meant to modify the word “sentences” or relates instead to the period of imprisonment; and (3) whether a letter from the department of corrections is sufficient to prove that the defendant has twice previously been imprisoned on sentences in excess of one year, and is therefore eligible for application of an extended sentence term. We affirm.

The facts elicited at trial include the following. On February 20, 1989, Dewanda Gokey and her husband, Richard Gokey, drove to the defendant’s residence. All three individuals then drove in search of Dianna Shonk’s home in Peterborough, where the defendant said they could find money. Upon locating the residence, the defendant and Mr. Gokey entered the house while Mrs. Gokey waited in the car. About fifteen to twenty minutes later, the defendant and Mr. Gokey returned to the car carrying a “stereo-type box,” old coins, and marijuana. Dianna Shonk arrived home that evening to find a side door open, her house a mess, and her tape player and a bag of coins missing. At trial, she identified as her property a stereo player and a bag of coins which Mrs. Gokey had turned over to the police.

On February 28,1989, Mrs. Gokey again drove her husband to the defendant’s residence. The defendant told them he was “ready to do another job” and suggested that they burglarize Dianna Shonk again. On the way to Shonk’s residence, the Gokeys’ car developed problems. They decided to drive to Keene to the house of a friend of the defendant, where they could borrow the friend’s truck and follow the Gokeys’ car home.

On the way to Keene, the defendant pointed out a house just off Route 101 in Dublin and said that the occupant owed him money and that he wanted to get even with him. The defendant stated, however, that he would need to cover his face if he took any action against the person because he would be recognized otherwise. The defendant played with a .357 magnum revolver as they drove.

When they arrived in Keene, the defendant borrowed his friend’s truck. The defendant and Mr. Gokey got into the truck and began to follow Mrs. Gokey in her car. Soon thereafter, in the car’s rear view mirror, Mrs. Gokey observed the truck drive off in the opposite direction. Mrs. Gokey subsequently discovered that the handgun had been removed from the car.

That same evening, Charles Pillsbury was working late in his home in Dublin with his secretary, when two men entered his apartment. One of the men, later identified at trial as Mr. Gokey, was carrying a gun and the other was wearing a paper bag over his head with slits for his eyes and mouth. The man with the gun demanded money and, when Pillsbury said he did not have any, struck him on the head with the gun. The two men left after taking Pillsbury’s wallet and the secretary’s pocketbook.

At trial, both Pillsbury and his secretary identified the gunman from a photograph of Mr. Gokey. Pillsbury testified that he had once employed the defendant for about three weeks and that the defendant had been to his residence every day during that period. Pillsbury could not identify the defendant as the man who wore the bag over his face.

At approximately 11:30 p.m. that same night of February 28,1989, Mr. Gokey telephoned his wife and told her that he and the defendant had just committed an assault and robbery and that he was on the run and would not be coming home anymore. At approximately 1:15 the next morning, the defendant called his friend in Keene to report that “Rick” had stolen the truck. In turn, the friend reported the theft to the police.

At 2:45 a.m., the truck was pulled over by the police. When the police approached the truck they found Mr. Gokey alone, bleeding from several head wounds. He had apparently commuted suicide immediately after he stopped the truck. In the cab of the truck, the police found a .357 magnum revolver, a paper bag with holes cut in it, and Pillsbury’s wallet.

Prior to trial, the State filed a motion to admit testimony in which it sought to introduce the testimony of Mrs. Gokey concerning the statement made to her by her husband when he telephoned her on the night of February 28. The trial court held an evidentiary hearing at which, in addition to the facts set forth above, the following evidence was elicited.

Mrs. Gokey testified concerning the events of February 28, including the telephone call from her husband. She acknowledged on cross-examination that she had not mentioned her husband’s reference to the defendant’s involvement when she reported his statement to the police on three occasions.

The defendant’s fiancee, Regina McCarthy, testified that once, when Mr. Gokey was angry with the defendant for failing to keep an appointment, he expressed a desire for revenge against him. She also testified that Mrs. Gokey told her about the phone call from Mr. Gokey and that he had said that he had just committed a crime and was on the run, but she did not mention anything about a robbery or the defendant’s involvement.

Based upon the testimony offered, the trial court found Mr. Gokey’s statement was trustworthy and reliable and met the requirements for admissibility as a statement against penal interest.

The first issue raised by the defendant on appeal is whether the trial court erred in admitting Mr. Gokey’s statement to his wife under the statement against penal interest exception to the hearsay rule, New Hampshire Rule of Evidence 804(b)(3). As a preliminary matter, the defendant argues that the question of the against-interest nature of the statement, as opposed to its factual trustworthiness, is one of law for this court. We have clearly stated in the past, however, that whether a statement is hearsay or admissible under a hearsay exception is a question for the trial court. See State v. Richards, 129 N.H. 669, 674, 531 A.2d 338, 341-42 (1987); State v. Mallar, 127 N.H. 816, 819, 508 A.2d 1070, 1071 (1986). This includes a finding that the statement is in fact against penal interest, and we will uphold the trial court’s finding unless clearly erroneous.

New Hampshire Rule of Evidence 804(b)(3) provides as follows:

“(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which ... at the time of its making... so far tended to subject the declarant to civil or criminal liability,... that a reasonable person in this position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

N.H. R. Ev. 804(b)(3). The rule thus permits an out-of-court statement to be admitted at trial when: (1) the declarant is shown to be unavailable; and (2) the statement is against the declarant’s penal interest. Id.; see United States v. Alvarez, 584 F.2d 694, 699 (5th Cir. 1978). If offered by the defendant to exculpate himself, there is an additional requirement that the statement be corroborated by circumstances clearly indicating its trustworthiness. N.H. R. Ev. 804(b)(3). The justification for this exception to the hearsay rule ‘“rests upon the assumption that one does not make statements that would damage [oneself] unless the statement is true.’” United States v. Palumbo, 639 F.2d 123, 127 (3d Cir.) (quoting United States v. Bailey, 581 F.2d 341, 345-46 & n.4 (3d Cir. 1978)), cert. denied, 454 U.S. 819 (1981).

The statement at issue in the case before us is that made by Mr. Gokey to his wife to the effect that he and the defendant had just committed a robbery and assault and that he, the declarant, would not be coming home. The unavailability of the declarant in this case is not disputed. He committed suicide on March 1, 1989.

The defendant argues that the statement was not against the declarant’s penal interest because a reasonable person would not think he was subjecting himself to criminal liability by speaking confidentially to his wife. He contends that such disclosures do not tend to subject the declarant to criminal liability because of the marital confidential communications privilege. We note at the outset that New Hampshire Rule of Evidence 804 “adopts the Federal Rule 804.” N.H. R. EV. 804 (reporter’s notes). We will, therefore, look to federal cases interpreting Federal Rule of Evidence 804 to assist us in construing the New Hampshire rule.

Rule 804(b)(3) clearly sets forth an objective standard for determining the against-interest nature of the statement. See also State v. Woodman, 125 N.H. 381, 384, 480 A.2d 169, 171 (1984). This standard was adopted for practical reasons; because the initial threshold requirement for the application of the rule is that the declarant be unavailable, there will rarely be evidence of what the declarant thought. As we recognized in Woodman, however, the court is not precluded “from making an inquiry into the declarant’s subjective state of mind.” Woodman supra. To the extent that evidence of the declarant’s subjective intent exists, therefore, we will give that due weight. See Woodman supra.

The against-penal-interest aspect of Rule 804(b)(3) “does not require that the declarant be aware that the incriminating statement subjects him to immediate criminal prosecution.” United States v. Lang, 589 F.2d 92, 97 (2d Cir. 1978). Rather, the focus of the rule is on whether the incriminating statement “tended to subject the declarant to ... criminal liability... [so] that a reasonable person in this position would not have made the statement unless the person believed it to be true.” N.H. R. Ev. 804(b)(3). The statement at issue in this case was an express confession. Confessing to the commission of a crime certainly “tend[s] to subject the declarant to ... criminal liability,” id., regardless of the existence of a marital privilege. See United States v. Katsougrakis, 715 F.2d 769, 778 (2d Cir. 1983) (statements to wife tended to subject declarant to criminal liability and such marital communications were corroborated by other evidence), cert. denied, 464 U.S. 1040 (1984); Proposed Fed. R. Evid. 505, Advisory Committee Note, 56 F.R.D. 244, 245-46 (1972) (reject ing adoption of privilege for confidential communications because marital conduct would not be affected by privilege of which parties in all likelihood are unaware); E. CLEARY, MCCORMICK ON EVIDENCE § 86, at 201 (3d ed. 1984) (“the contingency of courtroom disclosure would almost never ... be in the minds of the parties in considering how far they should go in their secret conversations”); Note, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communication Privilege, 56 Ind. L.J. 121, 136 (1980) (few couples are aware of the marital communication privilege). A reasonable declarant would recognize the disserving effect of a confession. There is no evidence in the record of the declarant’s subjective state of mind mandating a contrary result.

Furthermore, the confidential marital communications privilege only operates to exclude testimony at trial. See N.H. R. Ev. 504 (“neither [spouse] shall be allowed to testify against the other as to any statement, conversation,... or other communication made to the other”). The privilege does not ensure that the statement will not be repeated to the police or anyone else, and nothing in the rule prevents such a disclosure. In fact, in the case before us, Mrs. Gokey repeated part of her husband’s incriminating statement to the defendant’s fiancee shortly after receiving the telephone call from him.

Because the declarant is unavailable and, therefore, not subject to cross-examination at trial, the essential requirement for admissibility of such out-of-court statements is that they be reliable. The relationship of the declarant and the witness as husband and wife enhanced the reliability of the statement which is, on its face, clearly against the declarant’s penal interest. See Chambers v. Mississippi, 410 U.S. 284, 300 (1973) (close relationship between witness and declarant adds assurance of veracity); United States v. Lang, 589 F.2d at 97 (declarant’s statement to individual believed to be a confederate held sufficiently reliable); United States v. Barrett, 539 F.2d 244, 249-52 (1st Cir. 1976) (affirming reliability of inculpatory statement made to acquaintance at card game).

The defendant also argues that that part of the declarant’s statement which incriminated the defendant is not against the declarant’s penal interest and, therefore, is inadmissible hearsay. The defendant contends that “the intrinsic assumptions regarding the trustworthiness and reliability of the statement as applied to the declarant are inapplicable when the statement is used to incriminate another person.” For the following reasons we disagree and hold that New Hampshire Rule of Evidence 804(b)(3) permits the introduction into evidence of collateral statements contained within a declaration against penal interest inculpating the accused, which afford a reasonable assurance of trustworthiness.

This court has previously addressed the issue of the admissibility of a statement against the unavailable declarant’s penal interest which exculpates the defendant. See State v. Richards, 129 N.H. 669, 531 A.2d 338; State v. Winders, 127 N.H. 471, 503 A.2d 798 (1985); State v. Woodman, 125 N.H. 381, 480 A.2d 169. The issue of admissibility as it relates to statements which inculpate the defendant and are offered into evidence by the State under the statement against penal interest exception to the hearsay rule is, however, one of first impression for this court. Cf. State v. Marcoux, 101 N.H. 294, 295, 140 A.2d 575, 576 (1958) (co-conspirator’s declarations implicating the defendant made after the common enterprise had ended constitute inadmissible hearsay); State v. Clapp, 94 N.H. 62, 63-64, 46 A.2d 119, 120 (1946) (same); State v. Larkin, 49 N.H. 39, 44 (1869) (same). But see State v. Mallar, 127 N.H. 816, 819, 508 A.2d 1070, 1072 (1986) (declarant’s statement that tended to both exculpate and inculpate the defendant admitted at trial under declaration against penal interest exception).

The Reporter’s Notes to New Hampshire Rule of Evidence 804 indicate that the rule is consistent with New Hampshire decisions “evidencing a trend away from bright line distinctions and toward a more flexible and ‘intelligent unification of ways to get useful and reliable hearsay evidence through the hearsay barrier.’” N.H. R. Ev. 804 (reporter’s notes) (quoting Maguire, Hearsay Obscurity—Glimmers of Daylight, 3 N.H.B.J. 145, 146 (1961)). To adopt the defendant’s argument that statements implicating the defendant in criminal activity must be excluded at trial is directly contrary to the object of admitting necessary, “reliable hearsay evidence.” Id.

When a defendant uses a declaration against penal interest to exculpate himself, the New Hampshire rule requires “corroborating circumstances clearly indicating] the trustworthiness of the statement.” See N.H. R. Ev. 804(b)(3). The federal rule contains an identical provision, and “courts have interpreted the rule as implicitly imposing a similar requirement where the government uses the hearsay to inculpate [the defendant].” United States v. Seeley, 892 F.2d 1, 2 (1st Cir. 1989); see, e.g., United States v. Casamento, 887 F.2d 1141, 1170 (2d Cir. 1989), cert. denied, 110 S. Ct. 1138, 2175 (1990); United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988); United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986); United States v. Riley, 657 F.2d 1377, 1382-83 (8th Cir. 1981); United States v. Alvarez, 584 F.2d at 700-01.

The drafters of Federal Rule 804(b)(3) “left to the courts the task of delineating prerequisites to the admissibility of inculpatory against-interest hearsay.” United States v. Alvarez, 584 F.2d at 700. In turn, admissibility has been held to require an evaluation of corroborating circumstances which indicate the trustworthiness of the statement, including the circumstances in which the declarant made the statement and the declarant’s incentive to speak truthfully. See United States v. Casamento supra; United States v. Boyce supra. Of course, “‘the traditional surety of reliability’ of the out of court declarant is ‘the statement’s contravention of the declarant’s interest,”’ United States v. Fields, 871 F.2d 188, 192 (1st Cir. 1989) (quoting United States v. Alvarez, 584 F.2d at 701), and, as we have explained, Gokey’s statement that he and the defendant had committed a burglary was plainly against Gokey’s penal interest.

The content of the declarant’s statement was corroborated by other evidence in the case, recounted at length above. Additionally, the circumstances surrounding the declarant’s statements which collaterally inculpated Kiewert made them eminently trustworthy. The declarant made the statements shortly after he committed the crime. He made them to his wife who was with her husband and the defendant shortly before they committed the burglary, knew of their plans to engage in criminal activity, and had participated with them in a similar crime a few days earlier. There is nothing in the record to indicate that he had a motive to lie to his wife. His wife was unconnected to law enforcement officials. Compare United States v. York, 933 F.2d 1343, 1362 (7th Cir. 1991) (speaking to acquaintance unconnected to law enforcement was alone a sufficient circumstance surrounding the making of the statement to ensure trustworthiness) with United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990) (declarant’s statement inculpating defendant in drug trafficking made to law enforcement officials after discovering he had sold drugs to undercover police officer held unreliable). The purpose behind the declarant’s statement to his wife was to explain to her the reason he was not coming home. There is nothing in the record to indicate that the declarant’s statements were self-serving or an attempt to shift blame from himself to another. See York, 933 F.2d at 1363 (fear of unreliability stems from possibility that statements are actually self-serving and made only to shift blame to another); cf. United States v. Love, 592 F.2d 1022, 1024-25 (8th Cir. 1979) (statement admitting guilt and implicating another person made while in custody may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest).

Any suggestion that the declarant’s wife had a reason to fabricate that portion of the statement implicating the defendant is an issue of her credibility. See United States v. Casamento, 887 F.2d at 1170; United States v. Katsougrakis, 715 F.2d at 777. The defendant was “free to question [her] before the jury, to test [her] recollection, [and]... to expose [her] demeanor.” United States v. Seeley, 892 F.2d at 3. Examining the record, we conclude that the trial court did not err in ruling that the statement was admissible under New Hampshire Rule of Evidence 804(b)(3).

The defendant argues, alternatively, that admission of the declarant’s statement denied the defendant his right to confront and cross-examine an adverse witness, contrary to part I, article 15 of the New Hampshire Constitution and the sixth amendment to the United States Constitution. The defendant concedes in his brief that the constitutional issue was not raised before the trial court, but contends that it was nonetheless properly preserved for appellate review by his hearsay objection. We recognize that the standards for admission of declarations against interest that implicate the accused and the confrontation clause are somewhat intertwined. However, “‘[d]espite the superficial similarity between the evidentiary rule and the constitutional clause, [we] [are] not . . . eager to equate them.’” State v. Larochelle, 112 N.H. 392, 395, 297 A.2d 223, 225 (1972) (quoting Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436 (1966)); see also Mollar, 127 N.H. at 819, 508 A.2d at 1072. We will not review on appeal constitutional issues not presented below. See State v. Dellorfano, 128 N.H. 628, 632-33, 517 A.2d 1163, 1166 (1986).

The second issue raised by the defendant on appeal is whether the trial court erred when it interpreted RSA 651:6,1(c) to require that, for the extended term of imprisonment statute to apply, the defendant have been twice actually imprisoned for a period in excess of one year. RSA 651:6, 1(c) reads:

“I. If a court finds that a convicted person is 18 years of age or older, he may be sentenced according to paragraph II if the court also finds, and includes such findings in the record, that:

(c) He has twice previously been imprisoned, in this State or in any other jurisdiction, on sentences in excess of one year. . . .”

The defendant contends that this provision requires a sentencing court to find that a defendant has twice previously been imprisoned on sentences with a minimum term of one year, not that the defendant has twice previously been imprisoned for more than one year on a sentence.

The State contends that the trial court’s interpretation of the statute was correct and argues that, because it is unclear whether the minimum or the maximum term would constitute the “sentence” for purposes of applying the extended term statute, the defendant’s construction of the language results in an ambiguous statute. We disagree and hold that “in excess of one year” modifies the word “sentences” and that the “sentence” which governs for purposes of applying the statute is the maximum term. “The word ‘sentence’ when unmodified by the words ‘maximum’ or ‘minimum’ necessarily refers only to the maximum sentence for that is the legal sentence. The minimum sentence is merely an administrative notice by the court to the parole board that the question of parole might, at its expiration, properly be considered.” Commonwealth v. Glover, 397 Pa. 543, 547, 156 A.2d 114, 117 (1959); accord Commonwealth v. Kalck, 239 Pa. 533, 541-42, 87 A. 61, 64 (1913); see State v. Elbert, 125 N.H. 1, 16, 480 A.2d 854, 863 (1984) (the specification of minimum and maximum terms is required to determine parole eligibility and duration).

We held in State v. Gosselin, 117 N.H. 115, 122, 370 A.2d 264, 270 (1977) that “[imposition of an extended term of imprisonment under RSA 651:6, 1(c) is dependent on proof of previous periods of imprisonment.” The State suggests that if proof of prior sentences is all that is required to impose an enhanced sentence, there would be no need to establish the prior incarcerations, in contradiction to Gosselin. This argument, however, overlooks the express requirement in the statute that the sentencing court find that the defendant “has twice previously been imprisoned.” The findings the court must make under subparagraph (c) of the statute are two-fold: (1) two prior imprisonments, resulting from, (2) sentences in excess of one year. See State v. Heald, 120 N.H. 319, 324, 414 A.2d 1288, 1291 (1980) (State’s evidence that defendant had been sentenced on seven occasions to incarceration for a period greater than one year met the requirements of RSA 651:6,1(c)). Interpreting the clause “in excess of one year” to apply to the period of incarceration specified in the prison sentence is consistent with the grammatical structure of the sentence. If the legislature had intended that the language “in excess of one year” modify the actual period of incarceration, that language would appear closer to the word “imprisoned” rather than immediately following the word “sentences.”

Documents before the sentencing court established that in 1981 the defendant was convicted of robbery and sentenced to a term of one and one-half to five years at the State Prison. He was incarcerated under that sentence from November 3, 1981, to October 14, 1983, when he was paroled. He was incarcerated again on May 16, 1984, for violation of his parole. On August 27, 1984, the defendant was convicted of receiving stolen property and sentenced to a term of one to two years, stand committed, with six months suspended from the minimum. This sentence was to be served concurrently with that for the parole violation. The defendant was released from prison on February 9, 1986.

Although the sentencing court misconstrued the statute as requiring two prior incarcerations for periods in excess of one year, we hold that the court’s error was harmless, as the record supports application of the enhanced term based on the interpretation we have adopted. The defendant was twice previously imprisoned on sentences in excess of one year. Because the maximum term controls, we reject the defendant’s argument that the second sentence of one to two years, with six months suspended from the minimum, could not be used as a basis for an enhanced sentence.

The third issue raised by the defendant is whether an uncertified prison record documenting the time periods of defendant’s prior incarcerations is sufficient to support the sentencing court’s finding of two prior periods of incarceration. The defendant objects to the document as hearsay and contends that he was deprived of his right to confront the author.

New Hampshire Rule of Evidence 1101(d)(3) provides that the rules of evidence do not apply in sentencing proceedings, thus permitting hearsay evidence to be admitted. The defendant argues that this was “more than a mere sentencing hearing” because the court was required to make specific factual findings before applying the extended term sentencing statute. Because the defendant does not dispute the accuracy of the information contained in the record, his contention is without merit. See Eutsey v. State, 383 So. 2d 219, 225-26 (Fla. 1980); State v. Rodrigue, 127 N.H. 496, 500, 506 A.2d 299, 303 (1985) (judge exercises wide discretion in choosing evidence on which to rely in imposing sentence). Moreover, the defendant made only a general hearsay objection at the sentencing proceeding. Such an objection did not encompass an assertion of his right of confrontation and, therefore, the issue is not preserved for appeal. See State v. Dellorfano, 128 N.H. at 632-33, 517 A.2d at 1166.

For the above reasons, we affirm the defendant’s convictions and his sentences.

Affirmed.

JOHNSON, J., concurred specially; HORTON, J., concurred; BROCK, C.J., and Batchelder, J., dissented.