Appeal from the District Court of Wells County, Southeast Judicial District, the Honorable James M. Bekken, Judge.
The opinion of the court was delivered by: Crothers, Justice.
Opinion of the Court by Crothers, Justice.
[¶1] Aron Nichols appeals from a district court judgment entered after a jury found him guilty of two counts of murder for the April 6, 2007 deaths of Donald and Alice Willey. Tamara Sorenson appeals from a district court judgment entered after jury found her guilty of two counts of accomplice to the murders. We affirm both judgments, concluding Nichols' confrontation rights were not violated, the district court did not erroneously deny Nichols' requested jury instruction, the court did not err in denying Nichols' motion to suppress evidence, Sorenson's due process rights were not violated and sufficient evidence exists to support Sorenson's convictions.
[¶2] In 1999, Sorenson and Andrew Willey had a child together. Andrew Willey died in an accident in 2002, and Sorenson later began dating Nichols. Andrew Willey's death resulted in a settlement of over $2 million, which was placed in a trust for the child. Donald Willey and Sorenson were two of the trust's four trustees.
[¶3] After Andrew Willey's death, Sorenson allowed his parents, Donald and Alice Willey, to have visitation with the child. In 2006, Sorenson tried to stop the visitation, but the Willeys filed a petition for visitation with the court, and the court entered a judgment granting visitation. Nichols told several people he was upset with the Willeys and wanted to kill them. After the Willeys had visitation with the child in March 2007, Sorenson accused the Willeys of sexually abusing the child. On March 21, 2007, the child was admitted to Prairie St. John's, a psychiatric and chemical dependency center because Sorenson thought the child was depressed and had behavioral issues stemming from alleged sexual abuse by the Willeys. The child was discharged on April 6, 2007.
[¶4] The Willeys spoke with the child by phone at 6:53 p.m. on April 6, 2007. Sorenson and Nichols also talked to each other by phone throughout that evening. At 7:11 p.m., after the child's phone call with the Willeys, Sorenson called Nichols' cell phone and spoke to him until around 8:30 p.m. Nichols called Sorenson at 8:34 p.m., and they talked for 21 minutes. The calls from Nichols' cell phone were transmitted through a Carrington cellular phone tower not far from the Willeys' residence near Sykeston in rural Wells County. On the evening of April 6, 2007, the Willeys were shot and killed with a .45 caliber gun in their home, and the house was set on fire. Evidence indicated that the fire was burning by 11:30 p.m. and that the Willeys were dead before the fire began. Evidence showed the fire was started in the basement and the fire burned the entire residence. Nichols called Sorenson from his cell phone at 11:41 p.m., and the call was again transmitted through the Carrington cellular phone tower. Nichols had purchased a .45 caliber handgun in February 2007, and purchased ammunition for the gun on April 6, 2007. Nichols' .45 caliber handgun was not recovered, and Nichols told law enforcement officers he sold it shortly after the Willeys were killed because Sorenson told him to.
[¶5] On April 13, 2007, a law enforcement officer accompanied a sanitation worker while trash was collected from a residence Nichols and Sorenson shared in Fargo. The trash was collected on the normal garbage day, and the garbage bags were placed near the curb in front of the house next to a mailbox, which was close enough to the street that the postal worker could reach the box from the street. The law enforcement officer did not obtain a warrant before collecting the trash. Items collected from the trash, including a container for .45 caliber ammunition, a note about the Willeys and mail addressed to Nichols and Sorenson, were used to secure a search warrant for the residence.
[¶6] On April 18, 2007, law enforcement officers searched the Nichols- Sorenson residence and found a notebook on the kitchen table containing firefighter training notes including information about how fire behaves, a jacket with heat damage and a computer printout of a newspaper article about the fire at the Willey residence. The officers also found mason jars containing moth balls and a liquid substance that appeared to be gasoline, .45 caliber shell casings, and ammunition and loaded guns in the master bedroom.
[¶7] During an April 19, 2007 search of Nichols' vehicle, law enforcement officers found a hand drawn diagram of the Willey residence, with directions to the residence on the back. Nichols had never been inside the Willey residence before April 6. A handwriting expert testified it was "highly likely" Sorenson wrote the labels on the diagram of the Willey's house.
[¶8] On April 19, 2007, law enforcement officers searched Sorenson's father's property with his consent. Nichols and Sorenson had been shooting a .45 caliber weapon on the property on April 7, 2007. Bullets found during the search matched bullets removed from the Willeys' bodies and were fired from the same weapon. Sorenson's father testified no other .45 caliber weapon had been fired on his property. Shell casings found in the Willey residence were consistent with shell casings found on Sorenson's father's property and with shell casings found at the Nichols-Sorenson residence.
[¶9] In April 2007, Nichols was charged with two class AA felony murders for the Willeys' deaths. In June 2007, Sorenson was charged with two counts of accomplice to murder for allegedly aiding Nichols in the murders.
[¶10] After Sorenson was charged, Nichols wrote a letter, in which he admitted he shot Alice and Donald Willey and started the fire at the Willey residence. The letter also stated that Sorenson was not involved in the murders and that Nichols did not want her punished for a crime she did not commit. Nichols wrote other letters stating that he would sacrifice himself for Sorenson.
[¶11] In September 2007, Nichols moved to suppress evidence from the search of the trash from his residence. Nichols argued his Fourth Amendment right to be free from unreasonable searches and seizures was violated because law enforcement officers did not have a warrant to search the trash, the trash was within the curtilage of his home and he had a reasonable expectation of privacy. After an evidentiary hearing, the district court denied Nichols' motion to suppress, finding Nichols did not have a reasonable expectation of privacy in the trash and the officers did not need a search warrant because the trash was set out on the berm for pickup.
[¶12] In February 2008, Rolland Rust, a polygraph examiner, conducted a polygraph examination of Sorenson. The State did not have notice of the examination and was not present during the examination. Sorenson gave notice of her intent to call Rust as an expert witness, and on February 28, 2008, Sorenson filed a motion in limine to admit expert evidence about polygraph testing and the polygraph results at trial. At a February 29, 2008 hearing, the court considered whether an evidentiary hearing was necessary for the polygraph issue. The parties submitted briefs and other supporting materials on the issue. The court heard further arguments on the issue at a March 12, 2008 hearing and took the issue under advisement. During the trial, the court denied Sorenson's motion to admit the polygraph results and expert testimony.
[¶13] As part of the State's response to a discovery request, phone calls recorded while Sorenson and Nichols were in jail were disclosed, including calls between Sorenson and Nichols and between Sorenson and other family members. In February 2008, Nichols filed a motion in limine to exclude evidence of the calls, arguing they violated his Sixth Amendment confrontation rights because the calls were testimonial hearsay statements that were not subject to cross-examination. The court denied his motion concluding his confrontation rights were not violated and the statements were admissible. The telephone recordings and transcripts of the recordings were admitted at trial.
[¶14] A jury trial was held in March 2008. Nichols presented evidence including testimony from a clinical psychologist, that he was acting under the influence of extreme emotional distress at the time of the murders. The psychologist testified that Nichols has a serious mental disorder and is paranoid, but that he knew what he was doing and was criminally responsible. The psychologist also testified to Nichols' belief that the Willeys abused Sorenson's child and that that may have set him off. The State also called a psychologist, who agreed that Nichols was mentally ill but was criminally responsible for his conduct. The State's psychologist also testified that Nichols main motive for the murder was his belief the Willeys abused the child, that the act was premeditated and that Nichols acted purposefully, with the intent to do the acts and with the requisite state of mind for the alleged offenses. Nichols requested a jury instruction making extreme emotional disturbance an element of the crime and placing the burden of proof on the State. The court refused to give the requested instruction. The court instructed the jury that it must first determine Nichols' guilt for the murders and, if the jury found Nichols guilty, that it was required to find whether Nichols acted under the influence of extreme emotional disturbance for which there was a reasonable excuse. The jury found Nichols guilty of both counts of murder and that he did not act under the influence of an extreme emotional disturbance. The jury also found Sorenson guilty of both counts of accomplice to murder.
[¶15] Nichols argues the district court erred in admitting hearsay statements because those statements were not subjected to cross- examination and violated his Sixth Amendment confrontation rights. Nichols contends the recorded phone conversations between Sorenson and him and those between Sorenson and other family members are testimonial statements and may be admitted into evidence only if the declarant is unavailable and a prior opportunity for cross-examination existed.
[¶16] This Court applies a de novo standard of review when reviewing an alleged violation of a constitutional right. State v. Blue, 2006 ND 134, ¶ 6, 717 N.W.2d 558. The Confrontation Clause of the U.S. Const. amend. VI, states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." In Crawford v. Washington, 541 U.S. 36, 68 (2004), the United States Supreme Court held the Sixth Amendment prohibits the admission of testimonial hearsay against the accused, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. The Confrontation Clause does not apply to non-testimonial hearsay. Id. See also Davis v. Washington, 547 U.S. 813, 821 (2006) (only testimonial statements cause the declarant to be a "witness" within the meaning of the Sixth Amendment). The Supreme Court did not define what a testimonial statement is, but said there are three "formulations" of the "core class of `testimonial statements:'" "ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pre-trial statements that declarants would reasonably expect to be used prosecutorially; extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Crawford, at 51-52 (internal quotation marks and citations omitted).
[¶17] Although the Court did not define what a testimonial statement is, it said, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51. At a minimum, testimonial statements include prior testimony at a preliminary hearing, testimony before a grand jury, testimony at a former trial and police interrogations. Id. at 68. Most of the statements covered by one of the hearsay exceptions, such as business records or statements in furtherance of a conspiracy, are not testimonial. Id. at 56. Non- testimonial hearsay is subject to traditional limitations on hearsay and not the Confrontation Clause. Davis, at 821.
[¶18] Nichols claims the recorded phone conversations are "undoubtedly" testimonial statements because they are "statements obtained from verbal or written comments made by each of the respective Defendants." However, he cites no authority to support his claim.
[¶19] Other courts considering similar arguments have held that out-of- court statements by an individual to a friend, family member or cellmate are non-testimonial statements. See United State v. Wright, 536 F.3d 819, 823 (8th Cir. 2008) (deceased victim's statement to witness was non-testimonial); United States v. Jordan, 509 F.3d 191, 201 (4th Cir. 2007) (alleged co-conspirator's statements to friend are not testimonial); United States v. Lee, 374 F.3d 637, 645 (8th Cir. 2004) (co-defendant's statements to his mother were not testimonial); State v. Hughes, 191 P.3d 268, 276 (Kan. 2008) (co-defendant's confession to cellmates were not testimonial); State v. Ransom, 207 P.3d 208, 220 (Kan. 2009) (out-of-court statement by alleged accomplice that the police had the wrong lead, made while defendant and accomplices were watching a ...