State of New Hampshire v. Roger Dana

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Coos
No. 2019-0628
THE STATE OF NEW HAMPSHIRE
v.
ROGER DANA
Argued: November 16, 2021
Opinion Issued: March 10, 2022
John M. Formella, attorney general (Weston R. Sager, 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.
BASSETT, J. The defendant, Roger Dana, was convicted, following a jury
trial in the Superior Court (Bornstein, J.), of first degree murder, see RSA
630:1-a, I(b)(1) (2016), for which he received a sentence of life without the
possibility of parole. The defendant appeals his conviction, arguing that the
trial court erred by admitting hearsay evidence, and by failing to give the false-
exculpatory-statement jury instruction that the defendant requested. We
affirm.
I. Facts
The jury could have found the following facts. The defendant resided at
an apartment in Berlin with his girlfriend and the victim, their two-and-a-half-
year-old daughter. On the night of November 26, 2016, all three slept at the
apartment, along with the victim’s grandfather and his fiancée. On the
morning of November 27, the victim’s mother woke first. She made the victim
breakfast, changed the victim’s diaper, and observed that the victim had no
trouble eating and appeared uninjured. At 7:45 a.m., the mother left the
apartment to go to work, telling the defendant that she would return at 4:00
p.m. The victim’s grandfather and his fiancée were at the apartment until
approximately 9:00 a.m., and saw that the victim appeared “normal” and did
not have any bruising or bleeding. After they left, the victim and the defendant
were alone in the apartment.
Between 9:00 a.m. and 1:00 p.m., acquaintances of the defendant who
were in or around the apartment saw the victim and observed that she
appeared healthy and uninjured. Later, at approximately 2:30 p.m., the
defendant’s next-door neighbor heard a “cluster of loud noises” coming from
the apartment, including loud banging and the defendant’s voice.
Approximately forty-five minutes later, the defendant called the victim’s
grandmother. He told her that the victim had fallen off the bunk bed and had
died. The grandmother immediately called the victim’s mother and relayed
what the defendant had told her. Both rushed to the apartment.
The grandmother arrived first. When she entered the apartment, she
saw the defendant sitting on his bed and holding the victim. She observed that
the victim was “all banged up and black and blue” and was not breathing. The
defendant was crying and upset, and appeared drunk. He was not attempting
to resuscitate the victim. The victim’s mother arrived soon afterward, grabbed
the lifeless victim, and “tried to make [her] respond.” The victim’s arms were
limp, her eyes were glazed over, and she had cuts and bruises all over her
body.
The victim’s mother instructed the grandmother to call 911. Meanwhile,
the defendant “was just standing in the corner.” The defendant told the
victim’s mother and grandmother that he had given the victim a bath, put her
on the top bunk of her bed, and that, while he was turned around looking for
her clothes, she fell off the top bunk. According to the defendant, he was alone
with her when she fell.
At approximately 3:30 p.m., an officer arrived at the apartment. He saw
the victim’s mother in the doorway, holding the lifeless victim and crying for
help. The defendant “was just standing there very quiet, not saying anything,
not really doing anything,” looking “nervous.” The victim had bruising on her
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face and abdomen, no pulse, and cold skin, and she “looked like she had been
beaten severely.” Just as the officer was attempting CPR, paramedics arrived
and placed the victim in an ambulance. As the mother and grandmother left
for the hospital, the defendant asked where they were going. When the mother
told him they were going to the hospital, the defendant said “whatever,” and
walked back into his bedroom.
At the hospital, the treating physician noted that the victim had bruising
“everywhere, on her face, her ears, her chest, her back, her abdomen, her
pelvic area.” The back of the victim’s head was so severely injured that it “felt
like mush.” Her eyes were “fixed and dilated,” consistent with brain injury.
The doctor opined that the victim’s injuries were “[a]bsolutely not” consistent
“with a fall off of a bed.”
The victim was pronounced dead at 5:40 p.m. The medical examiner
who performed the autopsy of the victim confirmed that the injuries were not
consistent with a fall from a bunk bed because there were “way too many
injuries on all surfaces of her body, all surfaces of her head.” The examiner
observed injuries around the victim’s vagina, which she opined were caused by
a “penetrating” small object, such as a finger. She also saw extensive injuries
to the victim’s anus and rectum, which she opined were caused by forced
penetration, possibly by “a finger or fingers or a penis.” The autopsy concluded
that the victim’s cause of death was “blunt-impact injuries of [the] head and
abdomen.”
The next day, November 28, officers from the State’s Major Crimes Unit
executed a search warrant at the apartment. There, they discovered blood on
several surfaces and items throughout the apartment. They found the
defendant’s blood on a football jersey in his closet. The victim’s blood was
found on baby wipes in the trash and on her bed, and also on a child’s pajama
top that was wedged between the headboard of the defendant’s bed and the
wall.
The lead investigator interviewed the defendant twice: once in the early
morning of November 28, and again on November 29. The defendant provided
inconsistent accounts of the events leading up to the victim’s death, sometimes
saying that the victim fell off the top bunk, and other times saying that she fell
off the bottom bunk. The defendant also met with the victim’s mother. The
defendant told the mother that he put the victim in the bottom bunk — rather
than the top bunk, as he had previously told her — went back to his bedroom,
and then heard a thud. He also told her that, after returning to the victim’s
room, he saw the victim on the floor. In all of these accounts, the defendant
maintained that he was alone in the apartment with the victim when she was
injured.
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On December 2, the defendant was arrested, and he was later indicted
for first degree murder. See RSA 630:1-a, I(b)(1). Following a jury trial, the
defendant was convicted. This appeal followed.
II. Analysis
The defendant argues that the trial court erred by admitting hearsay
evidence, and by giving the jury an unduly narrow false-exculpatory-statement
instruction. We turn first to the defendant’s argument that, on two occasions,
the trial court erred when it admitted hearsay evidence.
A. The Grandmother’s Statements
Hearsay is defined as “a statement that . . . the declarant does not make
while testifying at the current trial or hearing,” which “a party offers in
evidence to prove the truth of the matter asserted in the statement.” N.H. R.
Ev. 801(c). Hearsay evidence is generally inadmissible, subject to certain well-
delineated exceptions. State v. Letendre, 161 N.H. 370, 372 (2011); N.H. R. Ev.
802. “We accord the trial court considerable deference in determining the
admissibility of evidence, and we will not disturb its decision absent an
unsustainable exercise of discretion.” Letendre, 161 N.H. at 372 (quotation
omitted). To demonstrate an unsustainable exercise of discretion, the
defendant must show that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. Id. at 372-73.
The defendant first argues that the trial court unsustainably exercised its
discretion when it admitted the grandfather’s fiancée’s testimony about a
phone call that she had with the grandmother. The grandmother called the
fiancée on November 28, approximately twenty-four hours after she learned of
the victim’s death. The fiancée testified that the grandmother was “crying” and
“very upset” when she called. The grandmother “talked about the bruises [the
victim] had on her body,” and said that the defendant “murdered [the victim],
beat her.” Over the defendant’s hearsay objection, the trial court admitted the
statements as excited utterances.1
The excited utterance exception to hearsay encompasses statements
“relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.” N.H. R. Ev. 803(2). The theory
underlying the excited utterance exception is that “the circumstances under
which the utterance was made afford a guarantee of truth in substitution for
that provided by oath and cross-examination.” State v. Bonalumi, 127 N.H.
485, 487 (1985). Therefore, the statement must be made “at a time when the
speaker was still in a state of nervous excitement produced by [the startling]
1 The defendant did not object to the statements on any other basis. We note that the declarant,
the grandmother, testified during the State’s case-in-chief.
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event, and before he had time to contrive or misrepresent.” Id. (quotation
omitted). “[T]o admit the testimony the trial judge must be satisfied that (1)
there was a sufficiently startling event or occurrence, and (2) the declarant’s
statements were a spontaneous reaction to the occurrence or event and not the
result of reflective thought.” Id. at 488.
On appeal, the defendant argues that the trial court erred when it
admitted the statements as excited utterances because: (1) the statements were
made twenty-four hours after the victim’s death; and (2) during the time
between the victim’s murder and the phone call, the grandmother engaged in
“complex activities” requiring “relatively careful thought,” which gave her “a
chance to consider her own culpability.” See State v. Woods, 130 N.H. 721,
726 (1988). The State counters that the trial court reasonably determined the
statements to be excited utterances because: (1) the grandmother was crying
and very upset during the phone call; (2) “the subject matter of her
conversation with the fiancée — the murder of her granddaughter — was
inherently distressing;” and (3) the grandmother “was continuing to suffer from
the severe emotional trauma associated with” the victim’s murder. The State
also asserts that, even if the trial court erred in admitting the testimony, the
error was harmless.
“The precise amount of time that may elapse before a statement loses its
spontaneity as an excited utterance evoked by a startling event and becomes a
mere narrative cannot be established by any absolute rule of law . . . .
[A]ccordingly, much must be left to the discretion of the trial court in admitting
or rejecting such testimony.” State v. Pennock, 168 N.H. 294, 302-03 (2015)
(quotation omitted). When deciding whether a statement is an excited
utterance, the trial court must consider, in addition to the time elapsed, “all
other circumstances surrounding the statements,” including the nature of the
exciting event and the declarant’s state of mind. State v. Plummer, 117 N.H.
320, 325 (1977).
We find State v. Woods instructive. In State v. Woods, we considered
whether a trial court erred when it admitted, as excited utterances, a child’s
statements to her mother about being assaulted the prior day. Woods, 130
N.H. at 723-24, 726. We held that the trial court erred when it admitted the
statements because, even though there was evidence that the child was
troubled by the decision to tell her mother about the assault, id. at 727, the
day that elapsed had provided the child with “simply too much time for
reflective thought,” and there was insufficient proof that she “was laboring
under such stress as to preclude a conscious statement,” id. at 726-27.
Here, as was the case in Woods, the twenty-four-hour gap between the
exciting event and the statements at issue extends well beyond the limits
established by our excited utterance precedents. In addition, during the
twenty-four hours between the victim’s death and the phone call, the
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grandmother “performed tasks requiring relatively careful thought,” such as
being interviewed by the police, giving the police her shirt for testing, and
allowing the police to search her phone. 2 Robert P. Mosteller et al.,
McCormick on Evidence § 272, at 395 (8th ed. 2020). Such “[p]roof . . .
provides strong evidence that,” by the time of the phone call, “the effect of the
exciting event had subsided.” Id.; cf. State v. Fischer, 165 N.H. 706, 711
(2013) (noting the trial court’s determination that “intervening events”
precluded admitting hearsay under the excited utterance exception).
Therefore, we hold it was an unsustainable exercise of discretion for the trial
court to admit the grandmother’s statements as excited utterances.
Although the testimony was admitted in error, we agree with the State
that the error was harmless beyond a reasonable doubt.
The harmless-error doctrine recognizes the principle that the central
purpose of a criminal trial is to decide the factual question of the
defendant’s guilt or innocence, and promotes public respect for the
criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.
State v. Edic, 169 N.H. 580, 588 (2017) (quotation omitted). To establish that
an error was harmless, the State must prove beyond a reasonable doubt that
the error did not affect the verdict. Id. An error may be harmless beyond a
reasonable doubt if the other evidence of the defendant’s guilt is of an
overwhelming nature, quantity, or weight and if the improperly admitted
evidence is merely cumulative or inconsequential in relation to the strength of
the State’s evidence of guilt. Id. at 588-89. In making this determination, we
consider the other evidence presented at trial as well as the character of the
erroneously admitted evidence itself. Id. at 589.
To convict the defendant of first degree murder, the State was required to
prove that the defendant knowingly caused the victim’s death “before, after,
while engaged in the commission of, or while attempting to commit felonious
sexual assault.” RSA 630:1-a, I(b)(1). There was substantial physical evidence
to establish that the victim was sexually assaulted, brutally beaten in the
course of that assault, and died as a result of her injuries.
We conclude, based upon a review of the record, that the evidence that
the defendant inflicted these injuries is of an overwhelming nature, and that
the grandmother’s statements were cumulative and inconsequential in relation
to the strength of the other evidence of guilt. See Edic, 169 N.H at 588-89.
The defendant, alone, had the opportunity to cause the victim’s death, as he
was alone in the apartment with her when she sustained her injuries. There
was also evidence that the defendant, alone, expressed a motive to kill the
victim. Approximately two weeks before the victim’s murder, the defendant
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said his life was like “jail” because “he couldn’t leave the house hardly . . . and he
had to be home all the time to watch [the victim],” and that “he might as well just
go do something to go to jail if he’s going to be treated like he’s in jail.” The
other evidence also included the defendant’s behavior after the victim was
injured, such as his decision to call the victim’s grandmother instead of the
police; his failure to attempt to resuscitate her; his refusal to go with the victim
to the hospital; and his nervous demeanor. In addition, there was evidence
from which the jury could have inferred that the defendant was conscious of
his guilt, including his inconsistent explanations for how the victim died, see
State v. Evans, 150 N.H. 416, 420 (2003), and evidence that he hid the victim’s
blood-stained pajama top, see Edic, 169 N.H. at 590.
Given this evidence, the grandmother’s statements were merely
cumulative and inconsequential. Even if the challenged testimony had not
been admitted, there was overwhelming evidence that the defendant killed the
victim. See State v. Peters, 162 N.H. 30, 38 (2011). Accordingly, we conclude
that the State has met its burden of proving that the error in admitting the
grandmother’s statements did not alter the verdict and was, therefore,
harmless beyond a reasonable doubt. See Edic, 169 N.H. at 588-92.
B. The Investigator’s Statements
The defendant next argues that the trial court erred when, during the
State’s re-direct examination of the lead investigator, it admitted testimony
about interviews the investigator conducted during the investigation. On direct
examination, the State asked the investigator questions about his investigation,
and on cross-examination, defense counsel attacked his investigation by
establishing that the investigator did not swab the grandmother’s hands or
search her home, and that the investigator did not personally search her or
three other individuals. On re-direct examination, the State inquired as
follows:
Q Defense counsel asked you about [four individuals]. Remember that?
A Yes.
Q Were the people they were with on November 27th interviewed?
A Yes, they were.
Q To account for their whereabouts?
A Yes.
Defense counsel objected and moved to strike the investigator’s responses,
arguing that they were inadmissible hearsay. The court overruled the objection
and admitted the testimony, reasoning that it was admissible non-hearsay
because no statement had been elicited. The defendant argues on appeal that
the testimony was hearsay and, therefore, inadmissible.
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We do not reach the merits of the defendant’s hearsay argument because
we agree with the State that, even if the trial court erred when it admitted the
investigator’s statements, any error was harmless. As described above, the
State presented overwhelming evidence of the defendant’s guilt. The
investigator’s responses could arguably have informed the jury that non-
testifying declarants had vouched for the whereabouts of the four named
individuals. However, even if the investigator’s responses did suggest to the
jury that none of the four named individuals were at the apartment when the
victim was injured, the defendant’s repeated statements that he was alone with
the victim in the apartment provided substantial evidence of that fact. See id.
at 592. Because the challenged testimony was cumulative and inconsequential
in relation to the strength of the State’s evidence of guilt, we hold that the trial
court’s error, if any, was harmless. See id. at 588-89.
C. False-Exculpatory-Statement Jury Instruction
We turn now to the defendant’s third claim of error. The defendant
argues that the trial court erred when it denied his request to broaden the
false-exculpatory-statement jury instruction to encompass individuals other
than the defendant.
At trial, the State requested that the court provide the jury with a false-
exculpatory-statement instruction. Such instructions permit the jury to infer
consciousness of guilt from evidence that the defendant had made a false
statement in order to demonstrate his innocence. See Evans, 150 N.H. at 420.
The defendant objected to the State’s requested instruction, and proposed a
different version of the false-exculpatory-statement instruction that would
apply not only to him, but also to other witnesses — specifically, one of the
defendant’s friends and the grandmother. The court overruled the defendant’s
objection and gave the following instruction:
[I]f you find that the [d]efendant intentionally made a statement or
statements tending to demonstrate his innocence, and the
statement or statements were later discovered to be false, then you
may consider whether the statements show a consciousness of
guilt and determine what significance, if any, to give to such
evidence. It is your decision as jurors as to whether false
exculpatory statements, if made, constituted or indicate
consciousness of guilt or nothing at all.
On appeal, the defendant does not challenge whether giving a false-
exculpatory-statement jury instruction was itself permissible; rather, he argues
that the trial court erred when it failed to give his version of the instruction.
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We have twice before rejected arguments similar to the defendant’s
argument in this case. See State v. Bruneau, 131 N.H. 104, 116-18 (1988);
Evans, 150 N.H. at 422. In both Bruneau and Evans, we held that the
defendants in those cases were not entitled to instructions about the false
exculpatory statements of other witnesses because “a factual argument that
tend[s] to indicate someone else [is] guilty” constitutes a “theory of the case,”
not a “theory of defense.” Bruneau, 131 N.H. at 117, 118; Evans, 150 N.H. at
422. Whereas “[a] requested charge on a party’s theory of defense must be
given if such theory is supported by some evidence,” State v. Aubert, 120 N.H.
634, 635 (1980) (emphasis added), whether to instruct the jury about the
defendant’s theory of the case “is an issue reserved to the trial court’s sound
discretion.” Evans, 150 N.H. at 422.
The defendant acknowledges that his requested instruction pertained
only to a theory of the case, not a theory of defense. However, he asks us to
revisit Bruneau and its progeny and reject the distinction between theories of
defense and theories of the case. We decline to do so. See id. (reaffirming the
distinction between theories of defense and theories of the case).
“We assume, without deciding, that it may be appropriate in some
instances for the jury to be instructed on the false exculpatory statements of
others,” id. at 422. However, like the defendant in Evans, the defendant here
has not demonstrated that the trial court unsustainably exercised its discretion
by failing to give the instruction. See id. at 422-24. Whether an instruction is
necessary in a particular case is an issue reserved to the trial court’s sound
discretion. Id. at 422. “We review the denial of a proposed instruction in the
context of the entire charge and all evidence presented at trial, reversing only if
the instructions did not adequately state the relevant law.” Id.
The trial court’s decision not to expand the false-exculpatory-statement
instruction was a sustainable exercise of discretion. All of the factors that
supported our decision in Evans are present here. The defendant had “ample
opportunity to present his theory and the jury was free to consider it.” Id. at
424 (quotation omitted). The defendant’s attorneys vigorously argued in their
opening and closing remarks that either the grandmother or the defendant’s
friend murdered the victim and, during trial, defense counsel had the
opportunity to cross-examine both individuals. Additionally, as in Evans, the
court’s other jury instructions included “extensive information to help the jury
evaluate witness credibility.” Id. Indeed, the jury in this case was given an
instruction — the same instruction that the jury in Evans was given — that
outlined “various factors for the jury to consider” when evaluating witness
credibility. Id. Therefore, viewing the jury instructions as a whole, we cannot
conclude that the jury was incapable of evaluating the defendant’s theory of the
case absent a false-exculpatory-statement instruction that pertained to
individuals other than him. See id.
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III. Conclusion
For the foregoing reasons, we affirm the defendant’s conviction for first
degree murder. Any issues that the defendant raised in his notice of appeal,
but did not brief, are deemed waived. State v. Scott, 167 N.H. 634, 643 (2015).
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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