2004-095, STATE OF NH v. MICHELLE L. LAVOIE (BYRON)

Smith, were out drinking at a bar. In the early morning hours of July 13, On the evening of July 12, 2003, the defendant and the victim, Derran

State negligently failed to preserve her blood samples. We affirm. (4) failing to set aside the verdicts or suppress all blood test results because the defenses; (3) failing to instruc t the jury on the defense of competing harms; and her blood alcohol concentration (BAC); (2) striking her notice of affirmative arguing that the court erred in: (1) allowing an expert witness to testify about defendan t appeals from various rulings by the Superior Court (Mohl, J.), was convicted of one count of manslaughter. See RSA 630:2, I(b) (1996). The DUGGAN, J. Following a jury trial, the defendant, Michelle L. Lavoie,

and orally, for the defendant. Andre w Winters, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 20 04 - 095 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

unre liable. his testimony on the grounds that it was not properly disclosed and was to testify about the defendant’s BAC at the time of the crash. She challenges The defendant first argues that the trial court erred in allowing Dr. Novak

This appeal followed. on the manslaughter conviction and vacated the negligent homicide conviction. manslaughter and negligent homicide. The trial court sentenced the defendant The defendant was subsequently convicted on the alternative theories of

defendant’s BAC was . p. 2 25 at th e time of the incident. expert forensic toxicologist, Dr. Alex Novak, testified that, in his opinion, the admitted into evidence at trial. Based upon these test results, the State’s Trooper El a in the hospital. The results of the other three blood draws were Prior to trial, the trial court suppressed the two blood draws ordered by

a fifth blood draw. At that time, her BAC was .04. search warrant for the defendant’s blood and she was taken to the hospital for be sent to the state laboratory for testing. Later that day, the police obtained a police investigative purposes. Trooper Ela directed that all four blood samples was . p. 2 22. State Police Trooper Bruce Ela ordered two additional blood draws for blood was taken once more a t the hospital for medical purposes and her BAC tested for medical purposes. The defendant’s BAC was .26. At 7:55 a.m., her ambulance on the way to the hospital, the defendant’s blood was drawn to be The defendant was taken to the hospital. At 5:35 a.m., in the back of the

could not stand on her own. her feet. Keaton carried the defendant back to the accident scene because she caught up with her. The defendant fell down and Keaton tried to help her to for the defendant to come out and then went into the woods and eventually spoke with other witnesses, the defendant ran into the woods. Keaton yelled observed the defendant crying hysterically next to Smith’s body. While Keaton Wolfeboro Police Sergeant Christopher Keaton arrived on the scene and

were un able to revive Smith. up again, turned the ignition off and went over to Smith. Emergency personnel hitting Smith and pinning him against a tree. The defendant backed the van The defendant backed the van up and then drove forward at a faster speed, conversion van. The defendant accelerated forward, nudging him with the van. Outside, Smith was standing in front of the defendant’s 1987 Dodge

time later, the defendant and Smith left Labrie’s house. defend ant also drank one or two beers and may have had some tequila. Some visiting, Labrie and Smith drank beer and tequila and smoked marijuana. The p. 2 200 p. 3 3, the defendant and Smith went to visit their friend, Marc Labrie. While 3

known body weight and the defendant’s admitted consumption of four beers. The expert based his estimate of the defendant’s BAC on the defendant’s police officer was approximately .10, with a margin of error of .02. Id. at 47 p. 3 3. the expert testified that the defendant’s BAC at the time he was stopped by the Dahood, the defendant refused to t ake a blood test. Id. at 472. Nonetheless, We find that Dahood is distinguishable from the present case. In

alcohol the defendant ingested and the defendant’s burn - off rate. defendant consumed alcohol, the defendant’s body weight, the amount of 475 (1999), Dr. Novak was required to know or reasonably inf er the time the extrapolation testimony to be admissible under State v. Dahood, 14 p. 3 3 N.H. 471, 98 N.H. 298, 299 - 300 (1953). The defendant argues, however, that for time. Chalmers v. Harris Motor s, 104 N.H. 111, 112 - 13 (1962); State v. Baron, a certain time, an expert can calculate the estimated blood alcohol at an earlier We have recognized that based upon the results of a blood alcohol test at

the defendant ’s BAC at the time of the incident was unreliable. We disagree. The defendant next argues that Dr. Novak’s extrapolation testimony of

this satisfies the requirements of former Rule 98. See id. witness and provided the defense with the blood test results. Under Gamester, Here, the State notified the defense that Dr. Novak would be called as a

expert may be called upon to testify at trial. Id. mandate that an expert’s report contain all of the opinions regarding which the experts whose reports the State has provided to the defense. Nor does it former Rule 98 does not require the State to summarize the testimony of the qualifications.” In State v. Gamester, 149 N.H. 475, 479 (200 p. 3 3), we held that reports or statements of experts, as well as a summary of each expert’s physical or mental examinations, scientific t ests or experiments, or any other State to provide the defendant prior to trial copies of all “results or reports of Former Superior Court Rule 98(A)(2)(i) (2004) (amended 2004) requires the by extrapolation, estim ate the defendant’s BAC at the time of the incident. and his report did not give the defense adequate notice that at trial he would, The defendant argues that the State’s pre - trial disclosure of Dr. Novak

excluding expert opinion. Id. at 286. nondisclosure. Id. at 287. The trial co urt has wide discretion in admitting or prejudice exists if the defense has been impeded to a significant degree by the prejudice of his case. Id. In the context of a discovery violation, actual must demonstrate tha t the ruling was clearly untenable or unreasonable to the (200 p. 4 4). To show that the trial court’s decision is not sustainable, the defendant unsustainable exercise of discretion. State v. Roldan, 151 N.H. 28 p. 3 3, 286 We will uphold a trial court’s decision to admit evidence absent an 4

the brake but accidentally pressed the accelerator. On October 16, 2 003, six the defendant claimed that she ran to her van and thought she was pressing was in a semi - comatose state. In addition, the defendant’s mother stated that pressuring her for three - way sex, they spike d her drinks with Visine and she defendant said that, on the night of the incident, Smith and Labrie were that, during a telephone interview, the defendant’s mother reported that the the State provi ded the defense with a letter in which the prosecutor advised basis of lack of notice under Superior Court Rules 98 and 101. That same day, motion seeking to bar evidence at trial of any Criminal Code defenses on the At the final pretrial conference on October 9, 2003, the State filed a

limitations for filing a notice of defense “for good cau se shown”). defenses. See Super. Ct. R. 101 (allowing the trial court to extend the time the State, she has established good cause for filing a late notice of affirmative (200 p. 4 4). Rather, she argues that becau se she received untimely discovery from required thirty days. See Super. Ct. R. 98(B)(1) (2004) (amended 2004), 101 There is no dispute that the defendant did not file her notice within the

Id. review of the trial court ’s decision with respect to alleged discovery violations. an unsustainable exercise of discretion. Id. This same standard applies to N.H. at p. 4 478. We will not reverse the trial court’s admission of evidence absent evidenc e is generally within the trial court’s sound discretion. Gamester, 149 defendant’s notice of affirmative defenses as untimely. The admissibility of The defendant next argues that the court erred in striking the

111 (1975). this record, preclude its admissibility. See State v. Arsenault, 115 N.H. 109, assumptions are matters which affect the weight of the evidence bu t do not, on N.H. at 112 - 13; Baron, 98 N.H. at 300. Any other unknown data or be absorbed. We find this extrapolation testimony reliable. See Chalmers, 10 p. 4 4 rate and the amount of alcohol in the defendant’s stomach that would not yet Dr. Novak considered the time elapsed, the average “social drinker” burn - off the defendant’s BAC at the time of the accident. In making this calculation, Here, Dr. Novak utilized a later blood test BAC measurement to calculate

overruled in part by State v. Landry, 131 N.H. 6 p. 5 5, 66 (1988). person’s BAC. Id. at p. 4 475; see State v. Wheeler, 120 N.H. 496, 498 (1980), mathematical formula to calculate a person’s BAC without any blood test of the previous holding in State v. Wheeler that approved the general use of the expert’s extrapolation testimony on the facts presented, we reaffirmed our that each beer contained. Id. Although we reversed the admission of the the estim ate, including the number of ounces and the percentage of alcohol consumed the beers. Id. The expert also made several assumptions in making Id. The expert, however, had no information as to when the defendant 5

conduct is urgently necessary, there is no reasonable lawful alternative and the (noting that a competing harms defense is only available if the otherwise illegal defense to manslaughter. See State v. O’Brien, 132 N.H. p. 5 587, 590 (1989) law, this minimal evidence is insufficient to support a competing harms subject to unwanted sexual advances by Smith. We find that, as a matter of The defendant asserts that this was consistent with a theory that she was proposed three - way sex and the defendant was turned off by the sugg estion. sounding “like a woman being raped.” In addition, Labrie testified that Smith a woman screaming hysterically. The neighbor described the screaming as she heard a dog barking, sounds of people arguing, a series of bangs and then The defendant points to a neighbor’s testimony that early that morning,

defining the offense charged.” standards of reasonableness, the harm sought to be prevented by the statute desirability and urgency of avoiding such harm outweigh, according to ordinary believes to be necessary to avoid harm to himself or another is justifiable if the RSA 627:3 provides in pertinent part that “[c]onduct which the actor

than a minutia or scintilla of evidence. Id. of that defense. Id. By “some evidence,” we mean that there mus t be more specific defense if there is some evidence to support a rational finding in favor p. 5 569. The trial court must grant a defendant’s requested jury instruction on a jury instruction for an unsustainable exercise of d iscretion. Chen, 148 N.H. at of this affirmative defense. We review the trial court’s decision not to give a even though we have upheld the trial court’s order striking defendant’s notice the jury on the defense of com peting harms. We will address this argument The defendant next argues that the trial court erred in failing to instruct

attempted sexual assault on the issue of her mental state. defendant could introduce evidence pertaining to the alleged sexual assault or late notice of affirmative defenses. Moreover, the trial court ruled that the notice. Accordingly, the defendant has not established good cause for filing a the defense was reasonably available to the defendant well before she filed the that the State might call her mother as a witness. T hus, the factual basis for made to her mother. In addition, the defendant had been notified previously the October 9, 2003 letter solely concerned statements the defendant allegedly Chen, 148 N.H. p. 5 565, 569 (2002). The information provided to the defense in court’s application of Rules 98 and 101 was justified in this case. See State v. by an overly technical application of the rules of court, we find that the trial Although t he discovery of truth in criminal proceedings should not suffer

p. 6 627:3 (1996), or, in the alternative, self - defense, RSA 627:4(II)(c) (1996). intent to pursue one of two statutory defenses at trial: competing harms, RSA days before trial, the defendant responded with a notice under Rule 101 of her 6

See Bruce, 147 N.H. at 40. decide whether the State acted in good faith and without culpable negligence. evidence was material and that its loss prejudiced her. Thus, we must only defendant does not argue that, in the absence of culpable negligence, the not destroyed because she filed a motion to preserve all physical evidence. The was in custody; and (3) was obligated to ensure that the blood samples were (2) provided a street address to the State laboratory even though the defendant failed to comply with the notification requirements unde r RSA 2 p. 6 65:86, I (2004); The defendant argues that the State was culpably negligent in that it: (1)

been destroyed after the thirty days had expired. own analysis of the samples completed, but was informed that the samples had was also returned. At some later point, the defendant attempted to have her 2002, another notice was sent to the defendant’s driver’s license address that Correction, but was returned, marked, “Attempted - Not Known.” On October 7, No Address.” A notice was then sent to the Straff ord County House of notice was sent to the same address, but was returned, stamped, “Moved, Left accepted by her father on August 31, 2002. On September 19, 2002, a second certified mail to the address on the defendant’s driver’s license and was they would be destroyed. On August 20, 2002, the first notice was sent by sent to the defendant stating that she had thirty days to pick up the samples or samples were sent to the State laboratory for testing. Multiple notices were Trooper Ela, twice by the hospital and once pursuant to a warrant. All five The defendant’s blood was drawn five times, twice at the direction of

evidence that would probably have led to a verdict in her favor. Id. guilty, and that its loss prejudiced h er by precluding the introduction of the degree that its introduction would probably have led to a verdict of not claim any relief unless she demonstrates that the lost evidence was material, to N.H. 37, 40 (2001). If the State carries that burden, the defendant may not prejudice the defendant, and without culpable negligence. State v. Bruce, 147 that it acted both with good faith, in the sense that it was free of any intent to resulted in a denial of due process, the State has the burden to demonstrate In determining whether the loss of apparently relevant evidence has

CONST. pt. I, art. 15. negligence violated her due process rights under the State Constitution. N.H. failed to preserve the defendant’s blood samples. She argues that the State’s aside the verdicts or suppress all blood test results when the State negligen tly Lastly, the defendant argues that the trial court erred in failing to set

reasonableness, the harm sought to be prevented by the violated statute). harm sought to be avoided outweighs, accord ing to ordinary standards of p. 7 7

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

to set aside the verdicts or suppress all blood test results. without culpable negligence. A ccordingly, the trial court did not err in failing simply ignore court orders, we find that the State acted in good faith and reasonably believed it was complying with statutory requirements and did not th at is censorious, faulty or blamable.”). Because the State at all times negligence, mere neglect, or the failure to use ordinary care – it is negligence 90, 95 (1993) (“Culpable negligence is something more than ordinary more, does not amount to culpable negligence. See State v. Giordano, 138 N.H. The destruction of the blood samples may constitut e negligence but, without notice or preservation of the samples. The record supports the State’s beliefs. preserve evidence imposed upon it any additional obligations regarding either addition, the State did not be lieve that the defendant’s general request to the applicable notice requirements prior to destroying the samples. In negligence in destroying the samples. The State believed that it complied with We find that the State acted in good faith and without culpable