defendant’s brief getman, schulthess...state of new hampshire supreme court 2010-0262 state of new...
TRANSCRIPT
STATE OF NEW HAMPSHIRE SUPREME COURT
2010-0262
STATE OF NEW HAMPSHIRE v
JESSE T. BROOKS
Appeal From A Final Judgment Of The Rockingham County Superior Court
DEFENDANT’S BRIEF
Andrew R. Schulman, Esq. (NH Bar 2276) Clara E. Lyons (NH Bar 20054) GETMAN, SCHULTHESS & STEERE, P.A. 3 Executive Park Drive, Suite 9 Bedford, New Hampshire 03110 (603) 634-4300 (603) 626-3647 (fax) [email protected]
William H. Kettlewell, Esq. Pro Hac Vice Maria R. Durant, Esq. Pro Hac Vice
DWYER & COLLORA, LLP 600 Atlantic Avenue Boston, MA 02210 (617) 371-1000 Counsel for defendant Jesse T. Brooks Fifteen minutes of oral argument requested, Andrew R. Schulman, Esq. to argue
i
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii
TEXT OF RELEVANT AUTHORITIES ....................................................................................... v
New Hampshire Rules Of Evidence, Rule 803(5) .......................................................... vi
New Hampshire Rules Of Evidence, Rule 612 .............................................................. vi
QUESTIONS PRESENTED ........................................................................................................... 1
STATEMENT OF THE CASE ....................................................................................................... 2
STATEMENT OF THE FACTS .................................................................................................... 3
I. The Murder: June 27, 2005........................................................................................... 3
II. The Alleged Beginning of the Conspiracy: September 30, 2003 ................................. 3
III. Carter and Benton: September 30, 2003 ..................................................................... 4
IV. October, 2003 .............................................................................................................. 5
V. November 1st Through 6th 2003 .................................................................................... 7
VI. November 7-8, 2003 .................................................................................................. 10
VII. November 8, 2003 to June, 2005 .............................................................................. 12
VIII. June, 2005 - Las Vegas ........................................................................................... 13
IX. June, 2005—New Hampshire .................................................................................... 15
X. After The Murder ........................................................................................................ 16
XI. Vrooman’s And Benton’s Credibility ........................................................................ 17
SUMMARY OF ARGUMENT .................................................................................................... 19
ARGUMENT ................................................................................................................................ 21
I. DENNIS CHAMBERLAIN’S 2007 AND 2008 ACCOUNTS OF A CONVERSATION HE HAD IN 2003 WERE IMPROPERLY ADMITTED AS PAST RECOLLECTION RECORDED ..................................................................... 21
A. Governing Standard And Standard Of Review ............................................... 21
ii
B. The Nature and Importance of Dennis Chamberlain's HearsayStatements .......................................................................................... 21
C. At Trial Chamberlain Had No Memory Of Jesse Brooks
Talking About Jack Reid ................................................................................ 23 D. The Statements Introduced To The Jury ......................................................... 24 E. The Admission Of This Hearsay Was Error Because
The Prior Statements Were Not Made “At Or Near” The Time Of The 2003 Conversation ............................................................. 24
F. The Admission Of This Hearsay Was Error Because
The 2003 Conversation Was Not Fresh In The Witness’ Mind ................................................................................................................ 26
G. The Admission Of This Hearsay Was Error Because
The State Did Not Demonstrate That The Prior Statements Were Accurate .............................................................................. 30
II. DENNIS CHAMBERLAIN WAS NOT COMPETENT TO TESTIFY .................... 31
III. JESSE BROOKS WAS DENIED A SPEEDY TRIAL .............................................. 34
A. Standard Of Review ........................................................................................ 34 B. Governing Standards ....................................................................................... 34 C. Relevant Procedural Facts ............................................................................... 35 D. The Trial Court Erred In Concluding That (A) Jesse
Brooks’ Speedy Trial Demands Did Not Weigh “Heavily” In His Favor; (B) There Was No Prejudice Resulting From The Lengthy Delay; And (C) The Overall Balancing Of The Factors Favored The State .................................... 37
CONCLUSION ............................................................................................................................. 42
REQUEST FOR ORAL ARGUMENT ........................................................................................ 42
CERTIFICATE OF SERVICE ..................................................................................................... 43
ADDENDUM ............................................................................................................................... 44
Order Of April 6, 2009 (denying motion to dismiss) ...................................................... A-1
iii
TABLE OF AUTHORITIES
Cases
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) .......................... 35, 37, 38 Brown v. State, No. 05-07-01706-CR, 2009 WL 1153412 (Tex. App. April 30, 2009) .............. 26 Cain v. Smith, 686 F.2d 374 (6th Cir. 1982) ................................................................................ 38 Calandra v. Norwood, 438 N.Y.S.2d 381, 81 A.D.2d 650 (N.Y.App. Div. 1981) ....................... 27 Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th Cir. 1985), cert denied 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986)……………..…..……...25 Commonwealth v. Delbridge, 855 A.2d 27, 578 Pa. 641 (Pa. 2003) ........................................... 32 Hernandez v. State, 31 So.3d 873, 35 Fla. L. Weekly D618 (Fla. Dist. Ct.App. 2010) ............... 30 Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998) ........................................................... 26 Martinez v. Superior Court, 629 P.2d 502, 29 Cal.3d 574 (Cal. 1981) ........................................ 40 Ringgold v. State, 367 A.2d 35, 34 Md.App. 286 (Md. Ct. Spec. App. 1976) ............................. 30 Ruffin v. State, 663 S.E.2d 189, 284 Ga. 52 (Ga. 2008), cert denied 129 S.Ct. 1330, 173 L.Ed.2d 603 (2009) .......................................................................................................... 39 Salcik v. Tassone, 603 N.E.2d 793, 236 Ill.App.3d 548 (Ill.App. Ct.1992) ................................. 26 State v. Aikens, 135 N.H. 569, 607 A.2d 948 (N.H. 1992) .......................................................... 31 State v. Allen, 150 N.H. 290, 837 A.2d 324 (N.H. 2003). ............................................................ 39 State v. Beltran, 153 N.H. 643, 904 A.2d 709 (N.H. 2006) .......................................................... 21 State v. Briere, 138 N.H. 617 (N.H. 1994). .................................................................................. 32 State v. Colbath, 130 N.H. 316, 540 A.2d 1212 (N.H. 1988) ................................................. 35, 40 State v. Cole, 118 N.H. 829, 395 A.2d 189 (N.H. 1978) .............................................................. 41 State v. Cotell, 143 N.H. 275, 722 A.2d 507 (N.H. 1998) ............................................................ 40 State v. Day, 529 A.2d 1333, 12 Conn.App. 129 (Conn. App. Ct. 1987) .................................... 26
iv
State v. Horak, 159 N.H. 576 (N.H. 2010) ................................................................................... 31 State v. Hungerford, 142 N.H. 110, 697 A.2d 916 (N.H. 1997) ................................................... 32 State v. Iacavone, 85 N.H. 207, 155 A. 701 (N.H. 1931) ............................................................. 26 State v. Lamarche, 157 N.H. 337, 950 A.2d 172 (N.H. 2008) ............................................... 37, 39 State v. Langone, 127 N.H. 49, 498 A.2d 731 (N.H. 1985) ....................................... 34, 35, 37, 41 State v. Legere, 157 N.H. 746, 958 A.2d 969 (N.H. 2008), cert denied 129 S.Ct. 1623, 173 L.Ed.2d 1005 (2009) .............................................................................. 21 State v. Legere, No. 06-S-1741-2, 2007 WL 6080723, (Hillsborough County Superior Court, North, Feb. 12, 2007) .................................................................................... 25 State v. Locke, 139 N.H. 741, 663 A.2d 602 (N.H. 1995) ............................. 19, 21, 25, 26, 27, 30 State v. Locke, 149 N.H. 1, 813 A.2d 1182 (N.H. 2002) cert denied 538 U.S. 1043, 123 S.Ct. 2096, 155 L.Ed.2d 1079 (2003) ..................................................... 34 State v. Maynard, 137 N.H. 537, 629 A.2d 1345 (N.H. 1993) ..................................................... 37 State v. McManus, 990 A.2d 1229 (R.I. 2010) ............................................................................. 26 State v. Rippy, 626 A.2d 334 (Me. 1993) ..................................................................................... 32 State v. Stow, 136 N.H. 598, 620 A.2d 1023 (N.H. 1993) ..................................................... 35, 37 State v. Vento, 533 A.2d 1161 (R.I. 1987) ................................................................................... 30 TWN, Inc. v. Michel, 131 P.3d 882, 546 Utah Adv. Rep. 19 (Utah Ct. Ap. 2006) ................ 25, 28 United States v. Calloway, 505 F.2d 311 (D.C. Cir. 1974) .......................................................... 38 United States v. Graham, 128 F.3d 372 (6th Cir. 1997) ............................................................... 39 United States v. Kelly, 402 F.3d 39 (1st Cir. 2005)...................................................................... 34 United States v. Lewis, 954 F.2d 1386 (7th Cir.1992) ................................................................. 27 United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) ...................... 38 United States v. Patterson, 678 F.2d 774 (9th Cir.1982), cert denied 459 U.S. 911, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982) ............................................................. 27
v
United States v. Senak, 527 F.2d 129 (7th Cir.1975), cert denied 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976) ........................................................................ 28, 29, 30 United States v. Smith, 197 F.3d 225 (6th Cir.1999) ....................................................... 27, 28, 31 United States v. Sollars, 979 F.2d 1294 (8th Cir. 1992), cert denied 507 U.S. 1037, 113 S.Ct. 1864, 123 L.Ed.2d 484 (1993) ....................................................... 27 Varela v. Previti, 406 N.Y.Supp.2d 830, 406 N.Y.S.2d 830 (N.Y.App.Div. 1978) ..................... 27
Statutes
RSA 630:1, I ................................................................................................................................. 36
Rules
Fed.R.Evid. 803(5) ........................................................................................................................ 27
N.H.R.Ev. 601(b) .................................................................................................................... 20, 32
N.H.R.Ev. 612 ............................................................................................................................... 29
N.H.R.Ev. 613 ............................................................................................................................... 29
N.H.R. Ev. 801(d)(1) .................................................................................................................... 29
N.H. R. Ev. 802 ............................................................................................................................. 29
N.H.R. Ev. 803(5) ......................................................................... 19, 21, 24, 25, 26, 27, 29, 30, 31
Treatises
4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence (1st ed. 1975)……………………….........................................................................………...25 McCormick's Evidence §§ 281, 283 (6th Ed. Supp. 2010) ............................................... 25, 27, 30
Constitutional Provisions
N.H. Const., Part 1, Art. 14 ..................................................................................................... 20, 35
U.S. Const. Amend. VI ........................................................................................................... 20, 35
TEXT OF RELEVANT AUTHORITIES
vi
New Hampshire Rules Of Evidence, Rule 803(5)
The statements, records and documents specified in 803(1) through 803(24) are not excluded by the hearsay rule, even though the declarant is available as a witness.... (5) Recorded Recollection 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.
* * *
New Hampshire Rules Of Evidence, Rule 612
(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules. (b) Incompetence of a witness. A person is not competent to testify as a witness if the court finds that the witness lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.
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QUESTIONS PRESENTED
I. WERE STATEMENTS THAT THE WITNESS DENNIS CHAMBERLAIN MADE IN 2007 AND 2008 PROPERLY ADMITTED AS “PAST RECOLLECTION RECORDED” WHEN:
(A) THE EVENT DESCRIBED IN THE STATEMENTS
OCCURRED IN 2003; AND (B) THE WITNESS COULD NOT SAY THAT THE PRIOR
STATEMENTS WERE ACCURATE?
Preserved by oral objection and argument, T,1049-1051, and oral ruling, T,1051.1
II. WAS THE WITNESS DENNIS CHAMBERLAIN COMPETENT TO
TESTIFY WHEN, AS A RESULT OF BRAIN CANCER SURGERY:
(A) HE HAD A NEAR COMPLETE LACK OF MEMORY
REGARDING THE MOST IMPORTANT EVENT HE WAS ASKED TO RELATE, AND
(B) HE OTHERWISE SUFFERED FROM SIGNIFICANT AND
DEBILITATING SHORT TERM AND LONG TERM MEMORY DEFICITS?
Preserved by oral motion, T,946, ruling, T,969 and objection T,974. III. WAS THE DEFENDANT JESSE BROOKS DENIED A SPEEDY
TRIAL IN VIOLATION OF PART 1, ARTICLE 14 OF THE NEW HAMPSHIRE CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION?
Preserved by written motion, A,7 and written ruling, A39.
1The trial court record is cited as follows: “T” refers to the sequentially paginated sixteen
volume transcript of the jury trial held from October 27 to November 20, 2009. “A” refers to the two volume Appendix to this Brief.
2
STATEMENT OF THE CASE
Defendant Jesse Brooks was indicted for conspiracy to commit murder. A,1. He
requested the earliest possible trial date, see, A,87, and later demanded a speedy trial. A,72-73.
After his trial was continued, first on the State’s motion, A,78-84, and then by the court sua
sponte, A,94, Jesse Brooks moved to dismiss the indictment for lack of a speedy trial. A,7.
A,39-38. The trial court denied the motion. A,48. Jesse Brooks was brought to trial thirty-two
months after his arraignment, and after serving approximately twenty months in pretrial
detention.
The final eight-month delay was due in large part to what the trial court described as “the
State budget crisis.” A,41. The second scheduled trial date was lost because a codefendant’s
scheduled trial, which the State wished to conclude before defendant’s, was cancelled due to
budget constraints. A,41. The length of the ensuing delay was caused by a combination of “the
State budget crisis” and the trial judge’s schedule. A,41.
Five or six months before trial, a key prosecution witness named Dennis Chamberlain
underwent brain surgery to remove four cancerous tumors. T,945,974. Chamberlain suffered
debilitating memory loss following the surgery. Over objection, the trial court found the witness
competent and allowed him to testify. T,969-970.
Chamberlain testified to a lack of memory concerning an important conversation that he
had with Jesse Brooks in 2003. Over objection, the trial court admitted a prior unsworn
statement that the witness gave to the police in 2007 and testimony he gave in a codefendant’s
case in 2008 as “past recollection recorded.” A,1054, 1057, 1059. See, N.H.R. Ev. 803(5).
Jesse Brooks was convicted and sentenced to the maximum term of fifteen to thirty years
in prison, stand committed. A,6. This appeal follows.
3
STATEMENT OF THE FACTS I. The Murder: June 27, 2005
Jack Reid lived in a trailer in Londonderry and was self-employed as a trash hauler and
mover. T, 1858. On June 29, 2005, Reid’s adult children called the police because they could
not find him. T,1866. Several days later, the police discovered Reid’s body in the back of his
truck in a parking lot in Saugus, Massachusetts. T,1898.
Reid had been murdered on June 27, 2005. See, T,1964, 2584, 3034. He died from
multiple skull fractures, T,2947-2950, 2977, and also suffered a flailed chest. T,2963-2964.
Jesse Brooks never contested that Reid was murdered after codefendants Michael Benton,
Joseph Vrooman, Robin Knight and John Brooks lured him to a barn in Deerfield. T,3034
(defendant’s closing). Benton, who had been lying in wait with a sledge hammer, struck Reid
twice on his head as he entered the barn. T,1266. Vrooman then sat on Reid’s knees, attempting
to bind his legs with plastic zip ties. T,1266. He stopped because Knight noticed that Reid was
not yet dead. T,1266. Benton picked up the sledge hammer to “finish it” and hit Reid two or
three more times in the front of the head. T,1266.
The men wrapped Reid’s body in tarps, T,2476, put the body in his truck, T,2478, and
left the truck abandoned in a parking lot in Saugus, T,1275, where it was discovered days later.
T,1898.
II. The Alleged Beginning of the Conspiracy: September 30, 2003
The State alleged that Jack Reid was murdered in June, 2005 because John Brooks (Jesse
Brook’s father) thought he stole some property almost two years earlier. See, T, 322, 1144,
2367. John Brooks was a New Hampshire businessman who started and sold a successful
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medical supply business. T,161, 1110-1111, 1134. By late September, 2003, John Brooks and
his wife relocated their principal residence to Las Vegas. T,121.
John Brooks hired Jack Reid to help pack two moving vans. T,182, 853. Reid spent
September 29, 2003, working with John Brooks, his wife and her sister, brother-in-law and
nephew packing the vans. T,851-853. Another relative (by marriage)—the witness who is at the
heart of this appeal, Dennis Chamberlain—was also present during the packing. T, 990-991. At
the end of the day, the moving vans were left in the parking lot of John Brooks’ warehouse in
Manchester. T,857.
When John Brooks returned early the following morning, he discovered that one of the
trucks had been stolen. T,121, 858. Evidence was presented at trial that John Brooks jumped to
the conclusion that Jack Reid was responsible for the theft. T,863-964, 1129.
Jesse Brooks (the defendant in this case) was 27 years old and living in California when
his father’s moving van was stolen. T,156-59, 639-40. On September 30, 2003, he was
thousands of miles from New Hampshire, where he had grown up. T,1474-75.
III. Carter and Benton: September 30, 2003 Jesse Brooks learned of the theft on the morning of September 30, 2003. On that
morning, Jesse Brooks called his high school friend, Andrew Carter, and asked him to go to the
warehouse to help father. T,306-07. Jesse Brooks did not mention the theft or Jack Reid during
this call. T, 310, 1693. Carter previously worked for John Brooks’ company for approximately
two years, T,161, and he performed snowplowing and other odd jobs for John Brooks and his
wife over the years. T,291-311.
Carter went to the warehouse on September 30 with Michael Benton. T,169-72. At the
time, Benton worked for Carter, who had a small landscaping business. T,165-66. Benton was
5
working with Carter when Jesse Brooks called Carter on the morning of the theft but he did not
participate in the phone call. T,1693. Benton also knew Jesse Brooks from high school, T,1104,
and had also once worked for John Brooks’ business. T,1109.
Carter and Benton testified that when they arrived at the warehouse John Brooks told
them that he believed that Jack Reid had stolen his fully packed moving van. T,179,182,1131-
1132. According to Benton and Carter, John Brooks then asked them to kill Reid. T,184-
185,1131-32. Carter recalled that John Brooks said he would pay them for the murder. T,184-
185. Neither Carter nor Benton took John Brooks seriously at the time. T,317-321; 1450. They
believed the situation would “blow over.” T,317-321.
Later that day, however, John Brooks gave Carter and Benton a shotgun and shells,
which, they testified, he wanted them to “use on Jack Reid.” T,1139-1140. Shortly thereafter,
according to Carter and Benton, John Brooks gave them $5,000 for “supplies” for the murder. T,
434, 1147-49.
IV. October, 2003
Benton and Carter both testified that during several meetings in October, 2003, John
Brooks said he wanted them to kill Jack Reid. T,191-93;1144-1147. No witness suggested that
Jesse Brooks participated in or had knowledge of these conversations among John Brooks, Carter
and Benton. In fact, Jesse Brooks remained in California until early November, 2003. T,332,
475-1476. He had no discussions with Carter or Benton about Jack Reid prior to that time.
T,332, 1464, 1469.
On several occasions during October, Benton approached Reid’s trailer unannounced and
late at night. T,339-345, 1151-1157. Each time, Carter drove and dropped off Benton, who
walked through the woods toward the trailer in dark clothing, wearing face paint and the wrong
6
sized shoes so that any footprints would not be traced to him. T,1154-1158, 1168-1169. He
carried the shotgun that John Brooks had given him. T,1155,1169. Each time, Benton “would
sneak around [Reid’s] property [and] look to see if [Reid] was outside, which he never was.”
T,1170. On at least one night, Benton approached the trailer and, came within four feet of it.
T,1170. On the last occasion, Benton lay on the ground with the shotgun and contemplated
throwing a rock at the trailer to lure Reid outside. T,1171.
After several trips, Benton and Carter stopped going to Reid’s trailer. T,1174. Benton
testified that, by the end of October, 2003, he was not “really up for” continuing. T,1174. Carter
testified that he did not want Reid killed in the first place and that he and Benton stopped going
to Reid’s trailer because “there’s just no way we’re going to get involved in something like this.”
T,342, 345-349. Carter and Benton did not communicate this to John Brooks. T,349.
Carter and Benton gave unclear testimony about their intentions in going to Reid’s trailer
in October, 2003. Benton first said he went to Reid’s trailer to kill him, T,1153, 1158, but later
testified he had “no intention of hurting Mr. Reid” and “never would have shot him with any
shotgun.” T,1497. Benton then testified that his trips to Reid’s trailer were a “charade.”
T,1462. Carter initially told the jury that he and Benton were surveilling the trailer simply “to
see if Jack Reid was around,” T,210, but later testified that Benton “was supposed to murder”
Reid. T,211.
Regardless of what was going through Carter’s and Benton’s minds, nobody spoke to
Jesse Brooks about their late night excursions.2
2 T,1175 (“Q: [To Benton]: So during this time period when you and Andrew Carter
were trying out these various plans and talking about the plans that you’ve told us about, did you have any conversations with Jesse Brooks? A: No.”); T,350 (Q: [To Carter]: ...Do you recall ever communicating and talking to Jesse Brooks about what was going on? A: I don’t recall
7
V. November 1st Through 6th 2003 Jesse Brooks joined his parents in Las Vegas for a cousin’s wedding on November 1,
2003. During the wedding, John Brooks took the groom’s father, Rod Chamberlain, aside and
said that he thought Rod’s brother, Dennis Chamberlain, who was also at the wedding, had been
involved in the theft in New Hampshire. T,882, 911. John Brooks refused to shake Dennis
Chamberlain’s hand or otherwise acknowledge his presence at the wedding. T,909.
Jesse Brooks was present at the wedding and tried to smooth things over and make light
of the tense situation between his father and Dennis Chamberlain. T,911. Unlike his father,
Jesse did not seem concerned about the theft at all. T,911.
Jesse Brooks travelled to New Hampshire late on November 3, 2003. T, 444, 1474.
Although Benton testified that he had no conversations with Jesse Brooks in October, T,1175,
Benton claimed that Jesse Brooks came back to New Hampshire because he was tired of hearing
his father talk about Jack Reid and he wanted to “handle the problem.” T,1176. Carter and
Benton testified that shortly after Jesse’s arrival, they told him about their discussions with John
Brooks and their activities during October. T,226, 229, 1469. Benton and Carter gave
conflicting testimony as to Jesse Brooks’ reaction.
-On the one hand, Benton testified that Jesse Brooks’ interest was in getting Reid to
admit the theft, so that the property could be found. T,1496-1497. At this point in his testimony,
Benton swore that Jesse Brooks wished for this father to “get off” his obsession with Jack Reid
and move on with his life. T,1499. Benton testified that Jesse Brooks was “tired of it and if he
thought he could get the stuff back, that would be the end of it.” T,1495. On the other hand,
specifically. Q: When you say you don’t recall specifically, do you have any memory of it? A: No.”).
8
Benton made diametrically opposed prior statements suggesting that Jesse Brooks was “pretty
upset that [Carter] and myself had failed at our attempts to get Jack Reid,” T,1178-1180, that “it
was go time,” and “that we should probably just try to kill him.” T,1183.
-Carter testified that he told Jesse Brooks “what [John Brooks] had asked us to do,” but
could not remember Jesse Brooks’ response. T,226, 229, 231. On a prior occasion, Carter
testified that Jesse “had obviously talked” with his father and that they “were on the same page.”
T.229, 231.
Benton and Carter both testified that during this timeframe (between November 3 and 6,
2003), they went with Jesse Brooks to Dennis Chamberlain’s Salem, New Hampshire home.
T,233, 1185. As recounted below, the State presented Chamberlain’s “past recollection
recorded” in an effort to prove that Jesse Brooks made incriminating statements during this visit
that referenced Jack Reid. Because the admissibility of this “past recollection recorded” is a
central issue on appeal, the visit to Chamberlain’s house is described in some detail.
Both Benton and Carter recalled the visit to Chamberlain’s house as “real nice,” and
“very hospitable.” T,1187, 1486. Jesse Brooks had “an excellent relationship” with
Chamberlain, who he knew “[s]ince he was a baby.” T,1064. He would “swing by” and visit
Chamberlain and his mother “every time” he was in New Hampshire. T.1064-65, 1070.
The only conversation Benton recalled concerning Reid during the visit was that Jesse
Brooks asked Chamberlain if he thought Reid had been involved in the theft, and Chamberlain
said “no.” T,1187. Carter did not recall any of the conversation at Chamberlain’s house.
T,233.3
3 Benton did not remember if he and Carter left Jesse Brooks and Chamberlain at any
point during the visit. T,1187-88, 1486-87. Carter recalled that he and Benton went outside to smoke cigarettes. T,233.
9
Chamberlain, who underwent brain cancer surgery five or six months before the trial,
T,938, 967, 979-80, was unable to recall much of what was said during this visit. T,1038-1041.
At trial, Chamberlain testified that Jesse Brooks asked “if I stole anything” and “did I know
anybody that did any stealing.” T,1038-1039. Chamberlain recalled that he denied knowing
anything about the theft. T,1038-39.
Chamberlain did not recall any mention of Jack Reid during this visit. T,1038. He had a
vague recollection that Jesse Brooks said “he had a gun, some money, and a ticket—not a ticket,
passport.” T,1039. After the State showed him a prior statement, Chamberlain testified that
Jesse Brooks said he had “ten grand” in his pocket. T,1040. However, Chamberlain did not
testify that these references to money, a gun and a passport had anything to do with Jack Reid.
After the State made additional, unsuccessful attempts to refresh Chamberlain’s
recollection, T,1040-1046, the trial court admitted as “past recollection recorded,” and over
objection, the following unsworn, ex parte statement that Chamberlain gave to the police on
March 30, 2007:
... Anyway, [Jesse Brooks] starts talking and he says to me, uh, how long have you known Jack Reid, did Jack Reid say anything to you about stealing this or, you know, grabbing the truck or not, and then he’s leaving, you know, asked me questions, did I know anything about Jack Reid taking the truck. And I told him absolutely not. And I didn’t even really, you know, knew where he was going and, uh, at the time he was telling me, uh, did it, you know, he was going to do something about it, he had ten grand in his pocket. .... He 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.
10
T,1056-57 (emphasis added). The court also admitted September 15, 2008 testimony by
Chamberlain at John Brooks’ trial that Jesse Brooks said “that he can fly out of the country in a
heartbeat if he had to.” T, 1059.
Dennis Chamberlain also had a face-to-face meeting with John Brooks in New
Hampshire in early November, 2003. T,892. This meeting was arranged by Chamberlain’s
brother who was concerned about the tension between John Brooks and Chamberlain at the
wedding in Las Vegas. T,886-889, 892. At this meeting, outside a convenience store,
Chamberlain apparently convinced John Brooks that he had nothing to do with the theft. T,892.
Chamberlain he observed one of John Brooks’ cars with Jesse Brooks in the back seat. T,1029.
When the vehicle approached, John Brooks shook his head and told the driver to “keep going.”
T,1031. According to Chamberlain, John Brooks said the occupants of the vehicle were
“watching his back.” T,1033. Chamberlain grew concerned and left the area. T,1031.
VI. November 7-8, 2003
Late on November 7, 2003, Jesse Brooks and his soon-to-be fiancée arrived at a home in
Derry owned by John Brooks and his wife. T,565, 692-693, 1188-1189. Benton and Carter
showed up at the house shortly before midnight. T,373, 692-693, 1507-1508. John Brooks was
staying in a separate downstairs apartment at the time. T,565, 693. Sometime after midnight,
John Brooks came upstairs and soon began “ranting and raving,” T,239, about the theft of his
property and Jack Reid. T,694-695.
Jesse Brooks, his fiancée, Benton, Carter and John Brooks all left for Reid’s trailer.
T,697-698.4 It was close to 1:00 a.m. when they arrived. T,503. Jesse Brooks and Benton got
out of Carter’s car and walked up the driveway to the trailer. T,1195-1197. Benton claimed that
4 Benton testified that John Brooks was not in the car during the ride to the trailer.
T,1195. Carter and Jesse Brooks’ fiancée testified that John Brooks was present. T,235, 583.
11
Jesse kicked the side of the trailer and that he and Jesse Brooks then hid behind a vehicle.
T,1194. Reid appeared with a firearm, saw a man and fired several shots. T,94, 505-507. The
man ran away with his bare hands in the air and yelled out the name “Jack.” T,507,518. The
police did not recover a firearm or other weapon during a search of the area. T,524. Jesse
Brooks and Benton ran away. T,595,1199. Reid then called the police. T,503-504.
The witnesses’ testimony conflicted regarding their purpose in going to Reid’s trailer:
-Carter testified for the State—under oath and with immunity, T,155—that the purpose of
the trip was to talk to Reid, not to harm him. T,234. He told the jury that Jesse Brooks
responded to his father’s ranting about Reid by saying, “Dad, I’m just going to go down there
and talk to him. You want to know what’s going on, I’m going to go down there and talk to
him.” T,239. Carter and Jesse Brooks both knew Reid and Jesse Brooks had known him for
years. T,310, 1833-1834. Carter insisted that this trip to Reid’s trailer had nothing to do with his
earlier trips in October and “was not part of a plot to kill Jack Reid.” T,396.
-Jesse Brooks’ fiancée also testified that they intended to question Reid, not kill him.
T,578. She speculated the worst that could happen was that Reid might get tied up. T,580. She
said Jesse Brooks was annoyed with his father’s late night rant. T,685. According to her, Jesse
Brooks said they were “going to question him to see if he stole the property.” T,685. She did
not think she was participating in a murder plot. T,834.
-Benton testified that Jesse Brooks was concerned because “nothing had been getting
done” about Reid and he suggested “go[ing] over there to Jack Reid’s trailer.” T,1189. Benton
claimed that he and Jesse Brooks wanted to “get Jack Reid to come out ... and assault him,”
T,1189, not that they planned to kill him that night. T,1189. See also, T,1510 (“I believe we
12
were going there to hurt Mr. Reid.” (emphasis added)). Benton agreed that they went there on a
“whim,” without a plan, T,1198, because it was “a spur of the moment thing.” T,1499, 1509.
-Benton also testified that he and Jesse changed into dark clothes and brought a baseball
bat and flashlight with them to defend themselves. T,1195-1197, 1520. Benton was contradicted
by both Carter and the fiancée, neither of whom recalled the bat, the flashlight or Benton or Jesse
changing clothes. T,396, 408-409, 584, 688-702. Although Benton said he dropped the bat in
the woods, the police searched the area and did not find a bat or flashlight. T,1202-1203, 1530.
In any event, both Carter and the fiancée testified that when Jesse Brooks returned from
Jack Reid’s trailer he was angry at his father. Jesse yelled at his father, “I almost just got killed
because of you.” T,591-592. Carter said that Jesse Brooks came back “pissed off,” because
Reid shot at him, T,484, and “agreed with his father” about Jack Reid that night. T,241. Carter
recalled, however, that several months later Jesse Brooks said he was getting on with his life and
had put the incident behind him. T,491.
VII. November 8, 2003 to June, 2005 No further schemes involving Jack Reid were discussed by anybody associated with John
Brooks for more than a year and a half after the incident at Reid’s trailer on November 7-8, 2003.
See T,35 (State’s Opening: “This conspiracy went into hibernation.”); T,1215 (Benton testifying
that he did nothing to pursue Reid for almost two years). None of the fifty overt acts alleged in
the indictment occurred during this lengthy time period. A,1-5.
Jesse Brooks remained friends with Carter and Benton. Carter visited him for a week in
California in January, 2004, T,612, and again that summer at Jesse Brooks’ parents’ home in
New Castle, New Hampshire. T,491. During the latter visit, Jesse Brooks said he was getting on
with his life and did not want any further involvement with Jack Reid. T,491. During this
13
period, Jesse Brooks also remained in regular phone contact with Benton, T,1585, 1716-1726,
1761, 2238, with no evidence that the two discussed Jack Reid. John Brooks had continuing and
independent, but less frequent, phone contact with Benton. T,1715, 1544, 1546, 1718, 1720,
1721, 1557.
The only arguable evidence that suggested Jesse Brooks’ continuing interest in the theft
of his fathers’ property during this time period came from a witness named Michael Small.
Small worked for John Brooks, T,1829-1830. He testified that, in December, 2004 or January,
2005, Jesse Brooks said “they have a pretty good idea who stole” their property and “they would
get their day” T,1827. However, Small previously told the police that John Brooks, not his son,
made the comment about the thieves “get[ting] their day.” T,1837-1839.
VIII. June, 2005—Las Vegas
Joseph Vrooman, a laborer who worked for John Brooks in Las Vegas, T,2347, 2353,
testified as a State’s witness for three days about events that occurred in June, 2005, T,2340-
2768. Vrooman claimed to have heard certain statements, described below, that he alleged were
made by, to and about Jesse Brooks. Vrooman’s credibility—and in particular his veracity
regarding these statements—was a central issue at trial. See, e.g., T,3038, 3062, 3071 (Defense
closing challenging Vroomans credibility both in general, and based on his personal interest,
motives to fabricate, prior statements and inconsistencies between his testimony and
documentary evidence.).
Vrooman testified that in early June, 2005, John Brooks asked if he’d like to earn
$10,000 in return for helping to kill Reid. T,2365, 2367. Vrooman said he agreed to assist with
the murder both for the promised $10,000 and because “if we went and did something like this
together...I’d probably always have a job, be connected to [John] somehow.” T,2367. Vrooman
14
alleged that John Brooks said that either he or Jesse Brooks would pay him and, from this,
Vrooman testified that he inferred that Jesse Brooks was part of the conspiracy. T,2377.
Vrooman accused Jesse Brooks of being present at a meeting at John Brooks’ home in
Las Vegas during which the three of them allegedly spoke about killing Jack Reid. T,2378-
2379.5 According to Vrooman, Jesse Brooks expressed gratitude that Vrooman would assist
with the scheme, saying “you don’t know what this means to our family.” T,2381. Vrooman
told the jury that Jesse Brooks then participated in a discussion about planning and paying for the
homicide.6 T,2383-2387. According to Vrooman, at this meeting Jesse Brooks said that “Mike”
in New Hampshire was expecting a call from John Brooks. T,2380.
Vrooman was impeached with an interview he gave to the police in 2006 during which he
admitted to his involvement in the murder. T,2643-2644, 2762. During that interview Vrooman
directly accused John Brooks. T,2761. However, when asked whether Jesse Brooks had any
knowledge of the plot, Vrooman said that Jesse Brooks was only aware that he and John Brooks
were going to New Hampshire to “talk to [Reid].” T,2762. Vrooman also admitted during his
testimony that, prior to the alleged meeting with John Brooks and Jesse Brooks in Las Vegas,
5Vrooman was confronted with evidence of travel records on cross-examination suggesting that the alleged meeting could not have happened when Vrooman claimed. T,2679-2683. He was also impeached as to the alleged statements made by Jesse Brooks during this meeting based on his prior inconsistent statements.
6 At trial, as distinct from his prior statements, Vrooman told the jury that Jesse Brooks suggested hitting Reid in throat with a metal flashlight (although a flashlight was not used and Reid was never hit in the throat), T,2387; advised John Brooks to wear a bullet proof vest because Reid carried a gun (although there was no evidence such a vest was worn), T,2383; offered to take money out of his account so that there would not be a large withdrawal from John Brooks account (there was evidence of large cash withdrawals only from John Brooks’ account), T,2380-2381, 2996-2998, Trial Ex. Cx9; T,2380-2381; asked Vrooman to make sure nothing happened to John Brooks, T,2383; discussed the possibility of bringing John Brooks’ .22 caliber firearm to New Hampshire for self- protection, T,2383; and spoke about the possibility of getting a “throwaway” phone from his girlfriend’s brother (although Jesse never arranged for the phone), T,2387-2388.
15
John Brooks told him that he wanted Jesse Brooks “nowhere near” this and wanted him “having
no part” of it. T,2378. Vrooman’s accusations concerning Jesse Brooks’ knowledge of and
participation in planning the murder were repeatedly challenged on cross-examination based on
various prior statements Vrooman made to authorities, which varied in substance and scope from
his trial testimony.
IX. June, 2005—New Hampshire
Vrooman and John Brooks flew to New Hampshire on June 18, 2005. T,2397, 2429.
Once in New Hampshire, John Brooks introduced Vrooman to Benton, T,2405, and involved
Knight in the plan. T,2415. At various times and locations, the four men discussed luring Reid
to the Deerfield barn and purchased supplies. T,1225-1230, 2423,2427. Jesse Brooks was not in
New Hampshire and was not part of these discussions or preparations.
According to Vrooman, in the days before Jack Reid’s death, John Brooks called Jesse
Brooks (who was still in Las Vegas) to say when the murder would happen. T,2442. Vrooman
alleged that he overheard John Brooks instructing Jesse Brooks by phone to take his mother out
to dinner and use a credit card that day. T,2442. Vrooman claimed that after the murder, John
Brooks called Jesse Brooks to say “it was done” and to see if his son followed this instruction.
T,2497-2498. Vrooman was the only witness to testify about these alleged calls. No evidence of
telephone or credit card records corroborating Vrooman’s story was presented.
Benton had remained in phone contact with Jesse Brooks through June, 2005. T,1215-
1216, 1243, 1577, 1580-1581, 1587-1587-1588, 1733-1734, 1739. Benton testified that Jesse
Brooks called him sometime in June and said that John Brooks “was coming back to New
Hampshire to take care of the problem that we had, in reference to Jack Reid.” T,1216.
However, when Benton first described the call to the police, he did not accuse Jesse Brooks of
16
mentioning Jack Reid’s name. T,1562. Benton also acknowledged that he and John Brooks each
had the other’s phone number and that they could and did call each other whenever they wanted.
T,1560-62.
Benton testified that he also spoke by telephone with Jesse Brooks later in June, after
John Brooks and Vrooman had met with him (but before Reid’s death). T,1243-44. According
to Benton, Jesse Brooks asked him if John Brooks had contacted him, T,1243-44, told him that
John Brooks would take care of him, and asked Benton what he thought about Joe, meaning
Vrooman, T,1299-1300. Benton was the only witness to the contents of these calls.
X. After The Murder
After Reid’s murder on June 27, 2005, see, pp. 3-4 above, Benton, Vrooman, Knight, and
John Brooks met in Las Vegas to plan a “cover story.” Jesse Brooks was neither present at the
meeting nor part of these efforts. T,2489, 2495, 2161, 2563.
Several weeks after the murder, Benton received a wire transfer of $400. T,1281-1283.
He initially testified that he asked Jesse Brooks for money to pay “some bills,” T,1281-1282, but
later testified that it was John Brooks, not Jesse Brooks, whom he spoke with and who wired him
the money, which had nothing to do with the murder. T, 1608-1609.
In August 2005, Benton asked for money to travel to Las Vegas, where he stayed for two
weeks. T,1285, 1289-1290. Benton also testified that one night at John Brooks’ home in Las
Vegas, Benton told Jesse Brooks, “I killed that man for your family,” to which, according to
Benton, Jesse Brooks replied “I know.” T,1312, 1614. Benton previously told police that Jesse
Brooks at the time merely “hinted around that he knew what [had] happened.” T,1615.
Vrooman testified that he received three payments from Jesse Brooks in addition to the
money he received from John Brooks. T,2512-2515. According to Vrooman, each time Jesse
17
Brooks merely said “thanks” and handed him $1,000 or $1,500. T,2512-2515. However,
Vrooman earlier gave two different accounts to the police, both of which differed from his
testimony: (a) first he said that John Brooks gave him money, without mentioning Jesse Brooks,
and (b) he later said that Jesse Brooks only gave him money on two occasions. T,2648-2651,
2688-2689.
XI. Vrooman’s And Benton’s Credibility
Vrooman’s credibility was challenged at trial. In return for his testimony, he was given a
plea agreement that made him parole eligible after just 17 ½ years. T,2624. He testified that he
knew could have been prosecuted for capital murder and could have been sentenced for that
offense. T,2614-2615. Vrooman also thought Jesse Brooks could provide him “leverage” in
negotiating with the prosecution for the best plea agreement for himself. T,2619-2623. In a
recorded jail phone call with a friend, Vrooman boasted that without him the State “doesn’t get
one guy,” which he acknowledged meant Jesse Brooks. T,2620. The defense argued that if
Vrooman would kill a man he did not know for $10,000, he was certainly capable of perjuring
himself when more was at stake.
Benton’s credibility was also challenged. Like Vrooman, Benton escaped a capital
murder conviction and sentence by agreeing to testify against Jesse Brooks. T,1422. His plea
agreement called for a thirty-three year minimum term (but see, RSA 651:20), meaning that he
purchased with his testimony the opportunity to leave prison with decades of his life ahead of
him. T,1422. Additionally, while the events of this case were unfolding he was at “the very
worst” of a drug addiction, with a “daily routine” of intravenous cocaine use, marijuana use, and
binge drinking up to a half case a beer. T,1219, 1566-15567.
18
Based substantially on this evidence, the defendant Jesse Brooks was convicted of
conspiracy to commit murder.
19
SUMMARY OF ARGUMENT
I. Dennis Chamberlain’s 2007 and 2008 hearsay statements concerning a conversation he
had with Jesse Brooks in 2003 were improperly admitted as past recollection recorded under
N.H.R.Ev. 803(5). This evidence—that Jesse Brooks said he had $10,000, a passport and a nine
millimeter that he was not afraid to use in connection with Jack Reid—suggested that Jesse
Brooks wanted to see Jack Reid dead. The only other witnesses to say this were Joseph
Vrooman and Michael Benton, and their credibility as codefendants-turned-informers was the
dispositive question at trial. Thus, Chamberlain’s hearsay statements corroborated Vrooman’s
and Benton’s accusations and buttressed their credibility in a way that no other witness or exhibit
did. This could well have made the difference in the jury’s determination of Vrooman’s and
Benton’s credibility and, in turn, the jury’s ultimate decision on guilt or innocence.
Chamberlain’s hearsay statements did not qualify as “past recollection recorded” because
they were not made “at or near” the time of his 2003 conversation with Jesse Brooks, as required
by State v. Locke, 139 N.H. 741, 743 (1995). The use of the “at or near” language in Locke
indicates that New Hampshire continues to follow the traditional “strict” approach under which
one of the central guarantors of trustworthiness of “past recollection recorded” is that the hearsay
statement be recorded close in time to the event it memorializes. Even if this court abandons the
“at or near” approach in favor of the more flexible approach used by the trial court, the 3½ and 5
year gaps in this case would be longer than any reported decision has yet allowed. Furthermore,
Chamberlain did not say the 2003 conversation was still fresh in his mind when he made his
2007 and 2008 statements; he only said that his memory was better then than it was at trial.
Finally, Chamberlain could not say that the unsworn, ex parte 2007 statement was
accurate, as required by Locke and N.H.R.Ev. 803(b)(5). The best he could say, in response to
20
the prosecutor’s foundational questions, was that he tried to be accurate but made the statement
during a long police interview and “might have got confused a few times here and there.”
T,1053.
II. Dennis Chamberlain was not competent to testify. N.H.R.Ev. 601(b). Five or six
months before trial, he had brain surgery that significantly damaged his long term and short term
memory. As a result, he lacked sufficient capacity to remember things he was called to testify
about, including the 2003 conversation described above. Despite both substantial witness
preparation prior to trial and considerable efforts to refresh his recollection at trial, this witness
was unable to narrate under oath from memory.
III. Jesse Brooks was denied his right to a speedy trial, as guaranteed by Part 1, Article
14 and the Sixth Amendment. There was a 32-month delay between arraignment and trial. He
was held in jail without bail for 20 months. After indictment, he sought the earliest possible trial
date. When the State successfully moved to continue the trial, he objected and asserted his right
to a speedy trial. Later the court sua sponte continued the case because a codefendant’s case,
which the State wished to try first, was continued due to the cancellation of jury trial dates for
budgetary reasons. In the words of the trial judge, this continuance lasted almost eight months
“[b]ecause of the State budget crisis and the transfer of the case” from one judge to another.
A,41. During this budget- driven delay, the witness Dennis Chamberlain became effectively
unavailable for cross examination due to memory loss following brain surgery.
21
ARGUMENT
I. DENNIS CHAMBERLAIN’S 2007 AND 2008 ACCOUNTS OF A CONVERSATION HE HAD IN 2003 WERE IMPROPERLY ADMITTED AS PAST RECOLLECTION RECORDED
A. Governing Standard And Standard Of Review
Over objection, the trial court admitted statements the witness Dennis Chamberlain made
in 2007 and 2008 about a conversation he had with Jesse Brooks in 2003. These statements were
read to the jury by the prosecutor as “past recollection recorded,” under N.H.R.Ev. 803(5).
As explained below, “[t]o be admissible under this rule, a 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. Locke, 139 N.H. at 743 (1995) (emphasis added). A trial court’s
determination of these elements is reviewed under the “unsustainable exercise of discretion”
standard. See, e.g., State v. Legere, 157 N.H. 746, 764 (2008); State v. Beltran, 153 N.H. 643
(2006).
B. The Nature And Importance Of Dennis Chamberlain’s Hearsay Statements
This case turned on the credibility of two witnesses who each testified for the better part
of three days. By agreeing to testify against Jesse Brooks, Joseph Vrooman and Michael Benton
avoided facing capital murder charges and the possibility of a death sentence or life without
parole. T,1422, 2624. Relying on their plea bargains, they described how they murdered a man
for cash.
22
Vrooman claimed that Jesse Brooks took part in a planning meeting and funneled at least
part of Vrooman’s fee to him. T,2380-2388, 2512-2515. Benton claimed that Jesse Brooks went
to Reid’s trailer in 2003 to assault him, T,1189, said that John Brooks would “take care of” him
financially after the murder, T,1299, gave him some money, T,1285, and helped at least
minimally to orchestrate a collective defense. T,1264-1265. A jury that believed their testimony
beyond a reasonable doubt would be all but required to convict Jesse Brooks.
Conversely, a jury that had some doubt as to Vrooman’s and Benton’s veracity, as to
their accounts related to Jesse Brooks at least, would lack independent evidence for a conviction.
The only other alleged conspirator who testified was Andrew Carter and he swore that (a) his
involvement in all matters relating to Jack Reid ended in 2003 or shortly thereafter and (b) to his
knowledge, Jesse Brooks was never part of a plot to commit murder. See, e.g., T,396, 421.
Beyond this, the jury was given only circumstantial flotsam and jetsam completely consistent
with innocence. After all, there was no dispute that Jesse Brooks had ongoing relationships with
his father and his high school friends.
In judging Vrooman’s and Benton’s credibility, the jury necessarily considered whether
their testimony “seemed consistent or inconsistent with the testimony of other witnesses.”
T,3130 (jury charge). In this respect, Dennis Chamberlain played an important, supporting role:
He was the only other witness the State found, from the date of Reid’s death in June, 2005 until
the jury trial four and a half years later, who suggested that Jesse Brooks wanted to see Jack Reid
dead.7
7 Carter testified that Jesse Brooks was “pissed off” on the night that Reid shot at him in
2003, T,484,241, and that he momentarily “agreed with his father” about Reid. T,241. However, Carter was also clear that Jesse Brooks’ transitory anger passed within a matter of weeks and that Jesse Brooks put everything relating to Jack Reid behind him. T,491.
23
Chamberlain’s hearsay statements—and those statements alone—supported Vrooman’s
and Benton’s accusations. In those statements, Chamberlain said that Jesse Brooks visited him
circa November, 2003 and said: “[W]e know Jack [Reid] took the truck. ... 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.” T,1056-1057. Chamberlain also said that, during this same conversation about Reid,
Jesse Brooks boasted he could “fly out the country if he had to.” T,1059. Since Chamberlain
(a) had no potential criminal liability; (b) did not testify in reliance on a plea bargain, and (c) had
no discernable motive to fabricate a serious accusation against Jesse Brooks, his veracity was not
in question. Accordingly, the statements in bold font above may have literally made the
difference between guilt and innocence.
C. At Trial Chamberlain Had No Memory Of Jesse Brooks Talking About Jack Reid
Chamberlain did not actually testify to either of the statements in bold font above.
Indeed at trial he did not recall Jesse Brooks saying anything about Jack Reid in 2003. See,
T,1038:
Q: And did he talk about Jack Reid at all? A: I don’t believe he did. I don’t remember. Q: You don’t remember? A: No.
After some prompting, Chamberlain recalled that Jesse Brooks said he had “a gun, some money,
and a ticket—not a ticket, passport,” T,1039, but he never recalled any mention of Jack Reid in
connection with those items. T,1039-1041.
The prosecutor then showed Chamberlain the transcript of his March 30, 2007 (see,
T,981) interview with the police. T,1040. Even after reviewing his prior statements,
24
Chamberlain testified that he had no present recollection of Jesse Brooks even mentioning Jack
Reid. T, 1040 (“Q: Does that refresh your memory about him telling you what he was going to
do... A: Not really. I don’t know what I’m reading here.”); T,1043 (“Q: Okay. Now, reading
that last answer, does that refresh your memory about what he said about Jack Reid? A: Not
really. Q: Do you remember what you read here, sir? A: Yeah. ... .... Q: After reading that, do
you recall him saying anything—saying that to you about Jack Reid? A: Not really. Q: You
don’t recall it? A: No.”).
Chamberlain’s overall lack of memory was neither an act nor the result of recalcitrance.
Five or six months before trial, he underwent surgery to remove several cancerous brain tumors.
T, 938, 967, 979-80. The surgery led to significant problems with his long term and short term
memory. T,939.
D. The Statements Introduced To The Jury Over objection, the trial judge then allowed the prosecutor to read the statements in bold
font to the jury as past recollection recorded under N.H.R.Ev. 803(5). T,1054, 1058. The
prosecutor read from transcripts of (a) an interview Chamberlain gave to the police on March 30,
2007, three and half years after his November, 2003 meeting with Jesse Brooks, T,981, 1057,
and (b) testimony Chamberlain gave in John Brooks’ trial on September 15, 2008, five years
after the fact. T,982, 1059.
E. The Admission Of This Hearsay Was Error Because The Prior Statements Were Not Made “At Or Near” The Time Of The 2003 Conversation
N.H.R.Ev. Rule 803(5) governs the admission of past recollection recorded. That Rule
provides for the admission of:
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
25
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.
The admission of evidence under the Rule is justified because “a contemporary, accurate record
is inherently superior to a present recollection subject to the fallability of human memory.”
Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565, 1583 (6th Cir. 1985) (quoting
4 Weinstein's Evidence, (1st ed. 1975)¶ 803(5) [01] at 803-158).
In State v. Locke, 139 N.H. at 743, this court construed Rule 803(5)’s “freshness”
requirement narrowly, holding that to be admissible, the recorded statement must be made at or
near the time of the event. See also, State v. Legere, No. 06-S-1741-2, 2007 WL 6080723, *2
(Hillsborough County Superior Court, North, Feb. 12, 2007) (Maguire, J) (citing Locke and
holding that the prior statement must have been made “at or near the time of the event,” to be
admissible).8
New Hampshire thus uses the traditional “strict” formulation under which one of the
central guarantors of trustworthiness—substituting, as it were, for (a) cross-examination and
confrontation; (b) the oath; and (c) live testimony before a jury—is that the prior statement be
recorded close in time to the event it memorializes. See, McCormick’s Evidence (6th Ed. Supp.
2010) § 281 (noting that some jurisdictions adhere to the “older strict formulation that requires
the writing to have been made or recognized as correct ‘at or near the time’ of the events
recorded”); TWN, Inc. v. Michel, 131 P.3d 882, 887 (Utah Ct. Ap. 2006) (distinguishing the
8The Attorney General’s office took the position in the trial court in Legere that this
court’s decision in Locke requires the State to prove that the witness’ prior statement was made “at or near the time of the event.” See, State v. Legere, Hillsborough County Superior Court North, 06-S-1741/2, State’s Motion In Limine (February 5, 2007), published at 2007 WL 6097527.
26
“traditional approach” that employs the “at or near” requirement from the more “liberal”
approach described below); State v. Iacavone, 85 N.H. 207 (1931) (applying the traditional “at or
near” approach in the case of a witness who wrote a vehicle registration number on cardboard
contemporaneously with viewing it during a robbery); State v. Day, 529 A.2d 1333, 1336-1337
(Conn.App. Ct. 1987) (excluding a statement made twenty days after the event); Salcik v.
Tassone, 603 N.E.2d 793 (Ill. App. Ct.1992) (excluding a statement made three months after the
event); State v. McManus, 990 A.2d 1229, 1235 (R.I. 2010) (using “at or near” language to
describe the elements under an identically worded rule of evidence); Johnson v. State, 967
S.W.2d 410, 416 (Tex.Crim.App. 1998) (same); Brown v. State, No. 05-07-01706-CR, 2009
WL 1153412 (Tex. App. April 30, 2009) (applying same and admitting grand jury testimony
made six weeks from the date of the event).
The hearsay statements in this case were made three and a half years and five
years after Chamberlain’s November, 2003 conversation with Jesse Brooks. Under any
reasonable construction of the phrase, these statements were not made “at or near” the
time of conversation. For that reason alone, the trial court’s decision to admit the
statements as substantive evidence was an unreasonable exercise of discretion and must
be reversed.
F. The Admission Of This Hearsay Was Error Because The 2003 Conversation Was Not Fresh In The Witness’ Mind
Looking solely at the text of Rule 803(5), and not at this court’s decision in
Locke, the trial court ruled that the “at or near” requirement is not part of New
Hampshire law. See, T,1050. The trial court then held that Chamberlain’s 2007 and
2008 statements were admissible because his 2003 conversation with Jesse Brooks was,
in the words of the Rule, “fresh in his mind.” T,1050, 1054. Even if the trial court
27
applied the correct standard—which it did not because Locke is recent, authoritative and
controlling case law to the contrary—it was still error to admit Chamberlain’s statement.
As the trial court noted, Rule 803(5) speaks of the need to ensure that the event
memorialized in the recorded statement was “fresh” in the witness’ memory at the time of
the statement. The advisory committee notes to the identical federal rule (FED. R.EVID.
803(5)) state that, “No attempt is made...to spell out the method of establishing
the...contemporaneity... leaving [it] to be dealt with as the circumstances of the particular
case might indicate.” Seizing on this language, some courts have allowed the admission
of statements made months after the fact. See e.g., United States v. Smith, 197 F.3d 225,
231 (6th Cir.1999) (15 months); United States v. Patterson, 678 F.2d 774, 779 (9th
Cir.1982) (10 months); United States v. Lewis, 954 F.2d 1386, 1392-94 (7th Cir.1992)
(six months); United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir. 1992) (two
months); But see, Calandra v. Norwood, 438 N.Y.S.2d 381, 383 (N.Y.App. Div. 1981)
(“In the instant case, that apparent trustworthiness was diminished by the 4½ month gap
between the accident and the statement. While there is no rigid rule as to how soon after
the event the statement must have been made...under the circumstances at bar the delay
was too great.); Varela v. Previti, 406 N.Y.Supp.2d 830 (N.Y.App.Div. 1978) (excluding
statement made 15 month after the event). Even under this flexible approach, “the period
of time between the event and the making of the memorandum or record is a critically
important factor.” MCCORMICK §281.
Undersigned counsel has not found any reported decision from any jurisdiction
which approved of the admission of a statement made three and half years after the event
it describes. The longest period of delay consistent with “freshness” in any reported
28
decision is three years, United States v. Senak, 527 F.2d 129 (7th Cir.1975), and the next
longest appears to be fifteen months. 9 See, Smith, 197 F.3d at 231. In Senak, the court
conceded that it was “unaware of any cases where this amount of time [three years] has
been involved,” 527 F.2d at 141, but found the “unusual” circumstances of the case
supported a finding that the event described was “fresh” in the witness’ memory at the
time of the statement. 527 F.2d at 141. Those circumstances included the fact that the
underlying event was memorable and the witness made significant efforts at the time of
the prior statement to (a) demonstrate his good recall of the event and (b) ensure the
accuracy of his statement. 527 F.2d at 142.
In contrast, in this case the foundation for “freshness” is entirely absent.
Chamberlain was never asked whether he had a good memory of the 2003 conversation at
the time he gave his 2007 and 2008 statements. Instead, he was only asked whether his
memory was better in 2007 and 2008 then at the time of trial. T,1052. Because
Chamberlain had an extremely limited memory at the time of trial, to say that his memory
was “better” one or two years earlier proves little.
Even under the liberal approach approved in Senak, “freshness” is an objective,
not a comparative concept. Indeed, if the substantive requirement that an event still be
“fresh” in the witness’ mind were replaced by a procedural ritual requiring counsel to
inquire whether the witness’ memory was “better” in the past, then the hearsay exception
for “past recollection recorded” would apply to virtually any prior statement made by any
witness. This would result in a blurring, if not the elimination of the carefully calibrated
9 See, TWN, Inc. v. Michel, 131 P.3d at 888 (“[I] it appears that no reported federal case
has found a recollection to be fresh where it was recorded more than three years after the actual event.”).
29
distinctions between unsworn prior inconsistent statements which are not admitted for
their truth, see, N.H.R.Ev. 613, 801(d)(1) and 802, and prior statements that may be used
only to refresh the witness’ memory but not otherwise described to the jury, see,
N.H.R.Ev. 612, and past recollection recorded which is admissible for its truth in lieu of
live testimony from the witness. N.H.R.Ev. 803(5).
Further, the State did nothing to establish that the 2003 conversation made a deep
impression on Chamberlain. Chamberlain was a member of Jesse Brook’s extended
family and he knew Jesse Brooks. He did not testify that he was scared of Jesse Brooks.
In fact, he testified that Jesse Brooks visited his home each time Jesse came to New
Hampshire, just as he did in November 2003. T,1064-65, 1070. Jack Reid was not
murdered until almost two years after the 2003 conversation. Therefore, in the absence of
some affirmative statement from Chamberlain that he kept the conversation fresh in his
mind for three and half years, it would be unreasonably speculative to assume that he did
so.
Finally, the portions of the 2007 and 2008 statements that were introduced at trial
did not include any statements from Chamberlain demonstrating that he believed the
2003 conversation was still fresh in his mind.
For all of these reasons, even if this court were to cast aside the “at or near
requirement” and follow the approach in Senak, it would still have to conclude that the
trial court’s decision to admit Chamberlain’s 2007 and 2008 statements was an
unreasonable exercise of discretion.
30
G. The Admission Of This Hearsay Was Error Because The State Did Not Demonstrate That The Prior Statements Were Accurate
Rule 803(5) and Locke also required the State to prove that Chamberlain’s 2007 and
2008 statements were accurate reflections of his knowledge. This foundational requirement
would be even more important were this court to discard the traditional “at or near” test in favor
of the more flexible approach used in Senak and the other federal cases cited above. The
ultimate goal under either approach is to ensure that the hearsay statement is “an accurate
recordation of the event to which the memory related.” Senak, 527 F.2d. at 141. See also,
MCCORMICK §283 (“The witness must acknowledge at trial the accuracy of the statement. An
assertion of its accuracy in the acknowledgment line of a written statement or such an
acknowledgment made previously under oath is not sufficient.”); State v. Vento, 533 A.2d 1161
(R.I. 1987) (excluding witness’ testimony at bail hearing as past recollection recorded because
she could not vouch for its accuracy); Hernandez v. State, 31 So.3d 873 (Fla.Dist. Ct.App. 2010)
(excluding taped phone conversation as past recollection recorded because the witness was
unable or unwilling to attest to its accuracy); Ringgold v. State, 367 A.2d 35, 39 (Md.Ct.Spec.
App. 1976) (“The witness must be able to assert now that the record correctly represented his
knowledge and recollection at the time of making.”).
The State completely failed to prove this foundational requirement with respect to
Chamberlain’s 2007 interview. When asked directly if he was “accurate and truthful during that
taped interview,” Chamberlain initially responded “I pretty much think I was.” T,982. Later
when asked if the transcript of the interview was accurate Chamberlain said “More or less I
would think, yeah,” T,1043, “but it could be wrong in some places.” T,1044. Finally, he was
asked, for the specific purpose of laying a foundation under Rule 803(5), if he gave “truthful and
31
accurate information about...the visit of Jesse Brooks to your home.” T,1052. Chamberlain’s
response was:
I believe I was there quite a while and I might have got confused a few times here and there, but I believe I tried.
T,1053. Some courts have relied on an inferential proof of accuracy based on the specific facts at
issue. See e.g. Smith 197 F.3d at 230-231 (witness said she did not lie or intend to lie when she
gave her statement, but otherwise did not vouch for its accuracy). Even if there were some
justification to relax the requirement that a recorded recollection be accurate, there is clearly no
basis to do so in a case which is already an extreme outlier due to the unprecedented length of
time that passed between the event and the statements.
For the foregoing reasons, the trial court’s decision to admit Chamberlain’s 2007
statement under N.H.R.Ev. 803(5) was an unsustainable exercise of discretion and must be
reversed.
II. DENNIS CHAMBERLAIN WAS NOT COMPETENT TO TESTIFY As noted above, Dennis Chamberlain testified several months after undergoing brain
cancer surgery. When the impact on his memory and testimonial capacity became apparent, the
trial court excused the jury and held an evidentiary witness competency hearing. T,945. The
court then found that Chamberlain was competent. T,969, 979. The defense objected to this
ruling. T,974.
Standard Of Review: A trial court’s determination of witness competency will be
reversed if it is an unsustainable exercise of discretion. State v. Horak, 159 N.H. 576, 579
(2010); State v. Aikens, 135 N.H. 569 (1992). Because much depends on the trial court’s first-
32
hand observations of the witness, its conclusion of witness competency is entitled to considerable
deference. State v. Briere, 138 N.H. 617 (1994).
Governing Standards: N.H.R.Ev. 601(b) provides that “A person is not competent to
testify as a witness if the court finds that the witness lacks sufficient capacity to observe,
remember and narrate as well as understand the duty to tell the truth.” (emphasis added). As the
Rule makes clear, a witness is incompetent if, due to a medical condition or for some other
reason, he cannot remember the events for which he is called to testify. See, e.g., State v.
Hungerford, 142 N.H. 110, 117-118 (1997) (excluding “recovered memory” testimony in part
due to questions of witness competency); State v. Rippy, 626 A.2d 334 (Me. 1993) (eleven-year
old child was incompetent to testify to an incident that occurred when she was four due her lack
of memory); Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) (witness competency hearing
is required if there is an issue of a “tainted” child memory in a sexual abuse case).
Dennis Chamberlain Was Not Competent Due To An Impaired Memory: Dennis
Chamberlain was able to relate some of the background events of his life. See, 936-948. He
recalled where he lived, how long he lived there, who he lived with, what he previously did for
work, and the names of his relatives. Id. However, after just a few minutes on the stand, he
admitted that his brain cancer surgery left him “confused,” and that while he had “good days and
bad days,” he was “not having a good day at all” in court. T,939, 965-66, 1060-61. From that
point forward, he continually and repeatedly pled “confusion” and a lack of memory.10
10T,949 (“I’m really having a hard time putting that together right now.”); T,955 (“I’m a
little confused right now”); T,965 (“feeling a little confused today”); T,965 (“I’m not having a good day today at all”); T,1027 (“I’m a little confused right now”); T,1034-35 (“I’m getting confused now. Getting a little confused reading all this stuff.”); T,1043 (“It’s confusing”); T,1052-53 (“It’s tough right now. I’m having a tough time.”); T,068 (“I’ll be on a road where I’ve been driving now for forty years and I’ve known all my life, and I don’t know where I’m at sometimes.”); T,943 (“A lot of stuff I – you know, I remember a lot of stuff, and some stuff just
33
Chamberlain did not know why he had been subpoenaed to testify. T,947-948. At the
start of his competency hearing he said he could not really remember anything he spoke to the
police about because “that was so long ago, you know.” T,948. In response to a leading
question he recalled meeting with the prosecutors to go over his testimony for “today’s trial.”
T,949. In response to another leading question he agreed that the prosecutors asked him the
same questions they had asked at the John Brooks trial. T,949. Chamberlain said that this
helped because “there’s a lot of things I don’t remember” and he couldn’t simply answer “off the
top of my head.” T,949-950. Yet despite all of this preparation, handling and practice, he still
expressed bewilderment when asked if he knew why he had been called to the stand. T,947-948.
At one point he referred to Jesse Brooks as John Brooks. T,1029-1030. He initially
testified that he did not know, in 2003, that John Brooks had moved to Las Vegas, even though
he had been present on September 29, 2003 while the moving vans were packed. T,983, 1064.
At one point he could not remember the name of his last employer (where he had worked before
his surgery). T,981, 937-938. At another, he could not remember Jack Reid’s name, referring to
him as “the fellow that got shot—got killed, whatever.” T,988.
Chamberlain had some recollection of his interactions with John Brooks at the wedding
in Las Vegas in 2003, T,938, and his meeting with John Brooks a few days later in New
Hampshire, T,955-960. However, as explained above, he had next to no recall of what Jesse
Brooks said during their conversation in 2003.
As recounted above, the State repeatedly tried, without success, to refresh his recollection
with the transcripts of his 2007 police interview and 2008 testimony. Repeatedly, Chamberlain’s
memory was not refreshed by his previous statements on the same topics. T.1006-07, 1018-19, goes through my mind and stuff, you know what I mean?”); T.950 (“[T]here’s a lot of things I don’t remember.”).
34
1022-23, 1025-26, 1027-28, 1032-33, 1033-35, 1041, 1041-45, 1045-46. Eventually the
prosecutor remarked that Chamberlain was “in a sense unavailable,” had “no memory,” and did
not even “have a memory when he reads it on the page, you know, from one second to the next.
He reads it and forgets it immediately.” T,1046.
In summary, as a result of his brain surgery, Dennis Chamberlain’s memory of the events
at issue, including his meeting with Jesse Brooks in 2003, was so badly impaired that the trial
court’s decision to allow him to testify was an unsustainable exercise of discretion. 11
III. JESSE BROOKS WAS DENIED A SPEEDY TRIAL
A. Standard Of Review In reviewing a trial court’s denial of a motion to dismiss an indictment for lack of a
speedy trial, this court applies the “clearly erroneous” standard to the trial court’s factual
findings and considers the trial court’s rulings of law de novo. State v. Locke, 149 N.H. 1, 7
(2002). The trial court’s ultimate decision, based on its balancing of the relevant factors, should
be reversed if it is an unsustainable exercise of discretion. See, e.g., United States v. Kelly, 402
F.3d 39, 41 (1st Cir. 2005) (In reviewing speedy trial rulings in criminal cases, “we review the
trial court's rulings of law de novo, its factual findings for clear error, [citation omitted] and its
ultimate ruling for abuse of discretion.”).
B. Governing Standards The State and federal constitutional right to a speedy trial protects three interests:
“freedom from oppressive pretrial incarceration, freedom from undue anxiety or concern, and
prevention of impairments to the defense.” State v. Langone, 127 N.H. 49, 52 (1985), construing
11Dennis Chamberlain’s entire trial testimony, including that given outside of the
presence of the jury to determine his competency, is included in Volume II of the Appendix to this Brief.
35
N.H. Const. Pt 1, Art. 14 and U.S. Const. Amend. VI. In determining whether a defendant has
been denied a speedy trial, New Hampshire courts balance four factors: “(1) the length of the
delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and
(4) the prejudice to the defendant caused by the delay.” State v. Stow, 136 N.H. 598, 602
(1993); see also Langone, 127 N.H. at 55 (courts “put[] substantial emphasis on the last two of
the factors” (citation omitted)). No factor is either “necessary or sufficient,” and all four factors
“must be considered together with such other circumstances as may be relevant.” Barker v.
Wingo, 407 U.S. 514, 533 (1972).12
C. Relevant Procedural Facts Jesse Brooks was arraigned on a district court complaint for conspiracy to commit
murder, and released on bail conditions, on February 5, 2007.13 A,49-51. He was indicted for
conspiracy to commit capital murder on November 9, 2007. A,61. As the State later
acknowledged, A,87, Jesse Brooks thereafter consistently requested “the earliest trial date
possible.”
On January 31, 2008, the Superior Court scheduled Jesse Brooks’ jury trial for January
19, 2009. A,65. At the of time of this scheduling order, Jesse Brooks’ trial was slated to occur
before the trial in the case of codefendant Robin Knight.
On February 29, 2008, the Superior Court granted the State’s motion to revoke bail and
incarcerated Jesse Brooks pending trial. A,68. Shortly thereafter, on March 5, 2008, the State
obtained a superseding indictment with a larger time frame, a new legal theory and new factual
12The state and federal constitutional provisions establishing the right to a speedy trial are
construed the same and are, therefore, subject to the same analysis. State v. Colbath, 130 N.H. 316, 319 (1988).
13With Jesse Brooks’ assent, the time for the State to obtain an indictment was extended.
A,52,56-57,60.
36
allegations.14 A,69. Jesse Brooks accordingly moved to obtain new pretrial deadlines, but
expressly sought to maintain his scheduled January 2009 trial date and explicitly “assert[ed] his
rights to a speedy trial.” A,72-73.
The State opposed the defense motion and, in addition, moved to postpone the trial by
three months to April 2009. A,78-80. The State also proposed that the trial order be switched so
that the Knight trial would proceed first. A,81. Although both Knight and Jesse Brooks sought
to keep the existing trial order (with Jesse Brooks being tried before Knight) and trial dates,
A,83-84, and although Jesse Brooks formally objected to the State’s motion, A,90, the State
continued to press its proposal. A,86-89. The Superior Court granted the State’s request and,
over objection, continued Jesse Brooks’ trial until March 2009 to follow Knight’s. A,93.
In December 2008, the trial court sua sponte transferred this case to a new judge. A,49.
The court then continued the trial for an additional eight months to October 26, 2009. A,94.
One reason for this delay, cited by the trial judge, was that Knight’s February, 2009 trial was
continued after all jury trials for that month were cancelled due to “the State budget crisis.”15
A,41. Another reason cited by the court was that the same budget constraints limited the future
dates available for the Knight and Jesse Brooks trials. A,41. Additionally, while the trial judge
cited her own schedule as a final reason for the delay, this in turn may have also been budget
related due to the fact that the Superior Court lacked a full complement of judges. A,94. At the
14The original indictment charged conspiracy with reference to the solicitation provision
of the capital murder statute. The superseding indictment added reference to the kidnapping provision of that statute, RSA 630:1, I(b). The time frame in the original indictment was from April 1 to June 27, 2005. The time frame in the superseding indictment was expanded approximately 18 months from September 30, 2003 through June 27, 2005.
15Knight’s trial was postponed to May 2009.
37
chambers conference that preceded the court’s order, counsel for Defendant again asserted his
speedy trial rights.
Jesse Brooks was finally brought to trial on October 27, 2009, T,1, thirty-two months
after he was arrested and arraigned.16 A,49-51.
D. The Trial Court Erred In Concluding That (A) Jesse Brooks’ Speedy Trial Demands Did Not Weigh “Heavily” In His Favor; (B) There Was No Prejudice Resulting From The Lengthy Delay; And (C) The Overall Balancing Of The Factors Favored The State
Jesse Brooks’ Speedy Trial Demands Weighed “Heavily” In His Favor: In assessing the
four Langone/Barker factors, the trial court properly determined that the 32-month span from
Jesse Brooks’ arraignment to trial was “presumptively prejudicial.” A,43. See, Stow, 136 N.H.
at 602 (delay longer than nine months warrants “examination of the remaining three factors”).
The court also properly concluded that the entire delay following the originally scheduled trial
date “weighed against the State.” A,44 (Order, citing State v. Maynard, 137 N.H. 537, 539
(1993)). Finally, the court properly ruled that Jesse Brooks’ “multiple assertions of his right to a
speedy trial ... weigh[ed] in his favor.” A,44-45.
The trial court erred, however, in finding that these speedy trial assertions did not weigh
“heavily” in the defendant’s favor because Jesse Brooks first asserted his rights fifteen months
after his arraignment. A,44 (Order, citing State v. Lamarche, 157 N.H. 337, 344 (2008)). The
court ignored that, following his indictment and before the scheduling of the initial January 2009
trial date, Jesse Brooks consistently sought “the earliest trial date possible,” as the State
previously acknowledged. A,87 (State’s Motion for Revised Trial Schedule).
16 On February 4, 2009, the State obtained a second superseding indictment for conspiracy to commit murder (rather than conspiracy to commit capital murder). This indictment alleged numerous additional overt acts in furtherance of the alleged conspiracy. The trial was not delayed, and the case management order was not altered as a result of the second superseding indictment.
38
More significantly, the trial court ignored the fact that Jesse Brooks’ bail was revoked in
February 2008, A,68, just prior to the speedy trial assertion that the court cited. The purpose of
the “speedy trial guarantee” largely is “to minimize the possibility of lengthy incarceration prior
to trial.” United States v. MacDonald, 456 U.S. 1, 8 (1982). Evaluating a defendant’s assertions
of speedy trial rights thus depends heavily on whether the defendant was detained. See Cain v.
Smith, 686 F.2d 374, 384 (6th Cir. 1982) (“the rights of speedy trial and bail protect roughly the
same interests”); United States v. Calloway, 505 F.2d 311, 316 (D.C. Cir. 1974) (defendant’s
failure to assert speedy trial rights “until the very eve of trial” did not weight against him where
he had, throughout fifteen months of pretrial detention, pressed for release on bail).17
Accordingly, for the reasons set forth above, Jesse Brooks’ multiple speedy trial demands
during his twenty months of pretrial detention are a weighty consideration, and the trial court’s
conclusion to the contrary is both clearly erroneous and an unsustainable exercise of discretion.
Jesse Brooks Was Prejudiced By The Lengthy Pretrial Delay: The court also erred in
concluding that the delay in Defendant’s trial caused him no prejudice. Most notably, the delay
in the trial impaired his defense because it rendered Dennis Chamberlain—in the State’s
words—effectively “unavailable” for cross-examination at trial. Chamberlain’s ex parte police
interview and his testimony at a co-defendant’s trial were introduced as past recollection
recorded, in lieu of his live testimony, to prove the contents of Chamberlain’s 2003 conversation
with Jesse Brooks. As argued above, this evidence supported the State’s theory of guilt and was
anything but cumulative. See Barker, 407 U.S. at 534 (unavailability of witness and significant
lapses of memory potential grounds for prejudice). The trial court denied Jesse Brooks’ motion
17 “Whether and how a defendant asserts his right is closely related to the other factors .... The more serious the deprivation, the more likely a defendant is to complain.” Barker, 407 U.S. at 531-32. “[O]bviously the disadvantages for the accused who cannot obtain his release are ... more serious.” Id. at 532.
39
to dismiss for want of a witness who “suffered loss of memory ... that would give rise to actual
prejudice.” A,46. By trial, however, Chamberlain had become precisely such a witness.
Chamberlain’s effective unavailability differed vastly from a mere “dimming” of
memory. Cf. State v. Allen, 150 N.H. 290, 295 (2003). His brain surgery just five or six months
before trial—and months after the original trial date—denied the defense a meaningful
opportunity to confront Chamberlain on cross-examination. See United States v. Graham, 128
F.3d 372, 376 (6th Cir. 1997) (reversing denial of speedy trial motion where witness’ memory
loss “interfered with effective cross-examination”).18
Defendant was also substantially prejudiced by his twenty months of pretrial detention
under unique circumstances. Defendant had never previously been incarcerated, and was
detained only on the charges in this case. Cf. Lamarche, 157 N.H. at 344 (pretrial detention
mitigated where defendant was incarcerated on other charges as well); accord Ruffin v. State,
663 S.E.2d 189, 196 (Ga. 2008) (twenty-six months “is an exceptionally long time to keep a
presumptively innocent person in jail on the strength of nothing more than a grand jury’s finding
of probable cause ....”). By December 2008, Defendant had already been in detention for nine
months and was only three months from his then-scheduled trial date when the court again
postponed his trial—and extended his detention—an additional seven months.19
Moreover, Jesse Brooks endured his twenty-month pretrial detention under circumstances
unlike those of any other case in recent New Hampshire history. The Jack Reid case achieved a
18Defense counsel, in objecting to Chamberlain’s competency, specifically cited
impairment to defendant’s confrontation right. T,945; see Graham, 128 F.3d at 376 ( “[T]he defense was clearly prejudiced by a lessened ability to probe the details of the witnesses’ recollection.”); Id. at 375 (“One of the fundamental elements of a fair trial is the right of the accused to cross-examine the witnesses against him.”).
19 Defendant’s trial was twice postponed while he was in pretrial detention.
40
rare level of infamy among criminal cases in New Hampshire. See, A,98, 230 (the Eagle
Tribune listing the John Brooks trial third among “Top 10 news stories of 2008 in N.H.”). Jesse
Brooks thus endured throughout the 32 months between his arraignment and trial a mountain of
inflammatory, prejudicial, and even incorrect pretrial publicity that surpassed, both in volume
and kind, “that normally endured by criminal defendants.” Cf. State v. Cotell, 143 N.H. 275, 283
(1998) (citing Colbath, 130 N.H. at 320); see generally, A,115-158 (Appendix to Motion To
Change Venue, including numerous news articles)20 The press attendant to the capital murder
case against Jesse Brooks’ father was unprecedented; John Brooks’ historic capital murder trial
was tracked in the press with Internet updates and “Twitter” reports throughout certain
days. This prejudicial publicity saturated the community beginning in 2006 and throughout the
trials of John Brooks in 2008 and Robin Knight in 2009. See Martinez v. Superior Court, 629
P.2d 502, 505 (Cal. 1981) (noting, in issuing mandate for change of venue, that “[t]he element of
sensationalism, always present in reporting of events concerning a capital case, became all the
more pronounced in the instant case by the ‘preview’ of the events that unfolded in the trial of
codefendant .... and caused extreme prejudice to petitioner”). The near daily reports in local,
regional, and even national newspapers, as well as television news and Internet news sources,
was laden with emotion, see, e.g., A,222 (“The emotional toll was apparent on Reid’s children,
who wept through the grueling details” of the State’s death-penalty closing arguments), and,
even in the context of co-defendants’ trials, often focused on Jesse Brooks, see, e.g., A,226
(reporting comments by Jack Reid’s son in penalty phase of John Brooks’ trial that, “My father
is that voice you often hear asking, ‘How could you get your own son involved in such a
20As indicated in the compact disc that contains only a fraction of news articles related to
the Reid Murder and that is attached to the Appendix (which disc was not part of the trial court record), the intense news media focus on this case continued throughout Jesse Brooks’ trial, and has continued after his conviction.
41
mess?’’). By the time Jesse Brooks’ case proceeded to trial, 32 months after his arraignment, the
prejudice he had suffered from this avalanche of press was irreversible.
Accordingly, for the reasons set forth above, the trial court’s conclusion that Jesse Brooks
did not suffer prejudice as a result of the pretrial delay was clearly erroneous. Its ultimate
conclusion that the relevant factors weighed in favor of the State was an unsustainable exercise
of discretion. For this reason, the trial court’s denial of Jesse Brooks’ motion to dismiss must be
reversed and his conviction for conspiracy to commit murder should be vacated and dismissed.
See Langone, 127 N.H. at 55 (reversing conviction based on speedy trial violation); State v.
Cole, 118 N.H. 829, 831-32 (1978) (same).
42
CONCLUSION
This court should reverse the trial court’s ruling denying the motion to dismiss for lack of
a speedy trial and vacate the defendant’s conviction. Alternatively, this court should reverse the
defendant’s conviction and order a new trial.
Respectfully Submitted,
_______________________________________ Andrew R. Schulman, Esq. (NH Bar 2276) Clara E. Lyons, Esq. (NH Bar 20054) GETMAN, SCHULTHESS & STEERE, P.A. 3 Executive Park Drive, Suite 9 Bedford, New Hampshire 03110 (603) 634-4300 (603) 626-3647 (fax) [email protected]
William H. Kettlewell, Esq. Pro Hac Vice Maria R. Durant, Esq. Pro Hac Vice
DWYER & COLLORA, LLP 600 Atlantic Avenue Boston, MA 02210 (617) 371-1000 Counsel for defendant Jesse T. Brooks *Counsel of record acknowledge the assistance of Massachusetts attorney Justin O’Brien, of the firm of DWYER & COLLORA, LLP, who, while not admitted pro hac vice, participated significantly in the overall preparation of the brief.
REQUEST FOR ORAL ARGUMENT
The defendant requests an oral argument. An oral argument will prove helpful to the court because the factual complexity of the case and the nature of the legal issues presented.
43
CERTIFICATE OF SERVICE
I, Andrew R. Schulman, hereby certify that I have served Assistant Attorney Generals Janice Rundles, Esq. and Michael Lewis, Esq. with two copies of this brief and the accompanying two volume appendix by hand delivery on December 21, 2010 to their offices at 33 Capitol Street, Concord, NH 03301. ___________________________ Andrew R. Schulman
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ADDENDUM
Superior Court Order Of April 6, 2009 (denying Motion To Dismiss) ...................................... A-1