2008-287, State of New Hampshire v. Anthony Dilboy

The defendant, Anthony Dilboy, was convicted of two

brief and orally, for the defendant. ___________________________ Stephanie Hausman, assistant appellate defender, of Concord, on the

general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Nicholas Cort, assistant attorney reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address:

THE SUPREME COURT OF NEW HAMPSHIRE

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 564 U.S. __ (2011). June 28, 2011. Judgment vacated and case remanded for further consideration in light of Bullcoming v. New Mexico, New Hampshire Supreme Court Clerk’s note: Defendant's petition for certiorari granted by U.S. Supreme Court on p. 2 “crushed and snorted” the other two.

p.m. he knew what time it was, and he responded that it was about noon or 1:00

Portsmouth at the time of the accident, and had left at 10:00 a.m.

one Klonopin pill at approximately 9:00 the morning of the collision, and methadone, when he could not get heroin. He explained that he had swallowed two or three times a week and substituted other drugs, such as Klonopin and

was at the hospital. At approximately 3:30 p.m., Gould asked the defendant if

interviewing the defendant. He told Gould that he was on his way to

arrived. The officers conferred, and decided to arrest the defendant. Gould him to Wentworth Douglas Hospital. Shortly after Gould began interviewing the defendant, Officer Martinelli that day. The paramedics started an IV, took a blood sample, and transported when he had “snorted a couple of bags.” He said he used heroin approximately taking it to help with symptoms of heroin withdrawal. He denied using heroin

movements appeared slow.” The defendant fell asleep several times while he Gould testified that the defendant’s “speech was sluggish” and “his Gebers and David Martinelli. Gould arrived just before 3:00 p.m. and began

passenger-side of the Volvo, killing Vachon and his passenger, Alexander Bean. the intersection. Without slowing down, the defendant collided with the Turnpike in Dover. Mark Vachon, driving a Volvo sedan, was turning left at

not used it since March 5, approximately forty-eight hours before the collision, morning, explaining that although he did not have a prescription for it, he was The defendant also told Gould that he was addicted to heroin but had his way to Portsmouth to buy heroin. withdrawal. He stated that he had taken three Klonopin tablets at 9:00 that

interview the defendant, including Detective Brad Gould and Officers Daniel Several officers from the Dover Police Department went to the hospital to

high rate of speed at the intersection of Indian Brook Drive and the Spaulding

The defendant then left just before 2:00 p.m. He later told the police he was on the paramedics several times that he was addicted to heroin and suffering from within minutes. They found the defendant standing beside the truck. He told Members of the Dover Police and Fire Departments arrived on the scene

At approximately 2:10 p.m., the defendant drove through a red light at a

2006, the defendant arrived at a friend’s home to borrow her pick-up truck. The record reveals the following. At approximately 1:45 p.m. on March 7,

negligent homicide charges. We affirm. special verdict form, and (6) denied his motion to dismiss the class A felony days prior to the accident. p. 3 in the defendant’s urine was consistent with his having used heroin up to two

accident. He also stated that the presence of morphine, a metabolite of heroin,

having ingested three pills between 9:00 and 9:20 a.m. on the day of the amount of Klonopin in the defendant’s blood sample was consistent with his insufficient to quantify. Dr. Wagner testified that the detection of a trace

can also impair coordination, cognitive thinking, and vigilance, and cause

that the lab reliably detected drugs in the samples but in an amount

samples to the police station.

“less aware of [his] surroundings,” and can slow a person’s reaction time. It

defendant’s urine. Dr. Wagner explained that “trace” amounts of drugs meant

have a dry mouth.

He stated that Klonopin can make a person feel “more tired, lethargic” and be that can affect a person for up to six hours, or longer if the person snorts it. blood, and cocaine, a metabolite of cocaine, morphine, and Oxycodone in the quantifiable amount of a metabolite of cocaine in one sample of the defendant’s testing found a trace amount of Klonopin, trace amounts of cocaine, and a

samples, as well as the blood sample the paramedics earlier collected. He also apart, beginning at 6:33 p.m. Officer Gebers took custody of the four blood clothing, hair, and three additional blood samples, which were drawn one hour fell asleep again. Gebers testified that the defendant was cold and appeared to then waited for the hospital to discharge the defendant, during which time he the defendant swayed slightly and saw muscle tremors in his legs. The officers substances. He stated that Klonopin is a central nervous system depressant Dr. Wagner also described the physical and cognitive effects of these

the assistant laboratory director. Dr. Wagner testified that the laboratory

supplied. The police then obtained a search warrant for the defendant’s

the results During the second part of the one-leg stand, Martinelli noticed that

Forensics Toxicology Laboratory under the supervision of Dr. Michael Wagner, The five blood samples and urine sample were tested at the State Police

room, a hospital employee asked the defendant for a urine sample, which he defendant had invoked his right to counsel and while Gould was present in the approximately 4:45 p.m. Some time between 4:45 and 5:00, after the defendant, Martinelli administered field sobriety tests, while Gebers recorded At approximately 8:00 p.m., after the hospital finished treating the

the defendant at the hospital. The first blood sample was collected at Four additional blood samples and a urine sample were then taken from

rights. See Miranda v. Arizona, 384 U.S. 436 (1966). license suspension (ALS) rights. Gould then read the defendant his Miranda told him that he was under arrest, while Martinelli read him his administrative have been excluded under New Hampshire Rule of Evidence 404(b).

p. 4 evidence is “inherently prejudicial.” Finally, he argues the evidence should

other drugs when unable to get heroin, shows “an addictive profile.”

outweighed by the danger of unfair prejudice from its admission because such 4 argues that the probative value of the toxicology evidence was substantially about his recent drug use and his symptoms of heroin withdrawal. He next

person who ingests heroin two to three times a week, and who substitutes needless presentation of cumulative evidence.” misleading the jury, or by considerations of undue delay, waste of time, or outweighed by the danger of unfair prejudice, confusion of the issues, or

argues that the toxicology evidence was cumulative given the other evidence that the decision was clearly unreasonable to the prejudice of his case.”

ten days. Withdrawal may impair a user’s “decision-making process” and three days after using heroin, after which the symptoms decrease until up to relevant evidence “may be excluded if its probative value is substantially probable than it would be without the evidence.” N.H. R. Ev. 401. However, that is of consequence to the determination of the action more probable or less him on the two manslaughter charges. This appeal followed. Evidence is relevant if it has “any tendency to make the existence of any fact All evidence must be relevant to be admissible. N.H. R. Ev. 402.

248-49 (quotation omitted). because the amount of drugs found in the samples was too small. He also Id. at to prove he was “under the influence” or suffering the effects of withdrawal (2009) (quotation omitted). To meet this threshold, “the defendant must show admitted. The defendant argues that the toxicology evidence was not relevant unsustainable exercise of discretion.” State v. Dodds, 159 N.H. 239, 248 “We will not reverse the trial court’s admission of evidence absent an

explained that a user will experience peak withdrawal symptoms within one to

The defendant was found guilty on all four charges. The trial court sentenced

We first consider whether the toxicology evidence should have been

I. Toxicology Evidence nose, tremors, muscle cramps, chills, goose bumps, and leg cramps. He physiological changes in the body, including dry mouth, teary eyes, runny eight to twelve hours withdrawal may cause increased irritability and Before trial, the defendant filed several motions to suppress evidence.

withdrawal may begin within three to four hours after the last use. Within dizziness and blurred vision. He further testified that symptoms of heroin probative of when the defendant last ingested controlled drugs.

p. 5 fact, it was almost 3:30 p.m. Accordingly, the toxicology results were

at the hospital, the defendant thought that it was 12:00 or 1:00 p.m., when, in heroin, in fact, he did not pick up his friend’s truck until 1:45 p.m. Similarly, while he told the police that he left at 10:00 a.m. to go to Portsmouth to buy

cumulative. regarding when the defendant actually ingested drugs and, therefore, was not cumulative, the toxicology evidence was more probative than other evidence “trace” amounts of drugs. With respect to whether the evidence was

jury could have found that his sense of time was distorted. For instance,

amount of drugs in the defendant’s system, and explained what was meant by Dr. Wagner explained the laboratory’s methodology for determining the Klonopin on the morning of the accident, there was evidence from which the confused the jury because the analysis revealed only trace amounts of drugs, 5 defendant admitted to ingesting heroin two days before the accident and therefore, whether he was impaired at the time of the accident. Although the prejudicial” fails because, as the trial court found, “the urine test results ha[d]

ingested certain drugs and was under the influence of those drugs.

defendant contends that the presentation of the toxicology evidence could have

evidence was highly probative of when the defendant last ingested drugs and, defendant’s conclusory argument that evidence of drug use is “inherently

See State v. Kornbrekke, 156 N.H. 821, 827 (2008). Finally, the

toxicology results were relevant to show whether the defendant had recently the time of the collision. Thus, the trial court reasonably found that the the level of drugs in his system and the effects of withdrawal he was feeling at

value of the toxicology evidence outweighed its prejudicial impact. While the The trial court also could have reasonably determined that the probative its admission. The trial court reasonably could have determined that the is emotionally charged.”

The timing of his ingestion of Klonopin and heroin was crucial in determining

evidence was substantially outweighed by the danger of unfair prejudice from tendency to induce a decision . . . on some improper basis, commonly one that The defendant next contends that the probative value of the toxicology

evidence offered . . . is meant to be prejudicial.”

issue at trial was whether the defendant was under the influence of drugs. The defendant first argues that the evidence was not relevant. A central

Rather, the prejudice required to predicate reversible error is an undue

course, a mere detriment to [the objecting party’s case], in which sense all the case. State v. Jenot, 158 N.H. 181, 185 (2008). “Unfair prejudice is not, of to base its decision on something other than the established propositions in to punish, or trigger other mainsprings of human action that may cause a jury appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct Evidence is unfairly prejudicial if its primary purpose or effect is to or unreasonable.

p. 6 defendant give a urine sample.

prejudice, we conclude that the trial court’s ruling was not clearly untenable

speaking, a hospital staff person interrupted the interview to request that the

probative value was not substantially outweighed by the danger of unfair defendant’s propensity to use drugs, and the trial court found that its toxicology evidence was relevant, offered for reasons other than to prove the

plan, knowledge, identity, or absence of mistake or accident.”

Gould, however, continued to interview the defendant. While they were the defendant effectively invoked his right to counsel with this response. danger of unfair prejudice to the defendant. defendant responded, “[y]ou can talk to my lawyer.” The trial court ruled that rights. While Gould was reading the first line of the Miranda rights form, the arrested in his hospital room, Detective Gould advised him of his Miranda which coerced the victim during the assaults in question”). Because the denying his motion to suppress the urine test results. After the defendant was We next address the defendant’s argument that the trial court erred in

“other purposes, such as proof of motive, opportunity, intent, preparation, evidence of acts which constituted part of the crimes charged. II. Illegal Seizur e of Urine Sample person acted in conformity therewith,” such evidence may be admissible for is inadmissible “to prove the character of a person in order to show that the 2010).

See State v. Fandozzi, 159 N.H. __, __ (decided March 10,

probative value of the evidence must not be substantially outweighed by the

not evidence of “other crimes, wrongs, or acts” but “evidence of the very threat Kulikowski, 132 N.H. 281, 287 (1989) (evidence of threats or coercive behavior

defendant’s drug use was not evidence of “other crimes, wrongs, or acts,” but However, Rule 404(b) is inapplicable here because the evidence of the Rule of Evidence 404(b). Although “[e]vidence of other crimes, wrongs, or acts” 375-76 (2009).

there must be clear proof that the defendant committed the act; and (3) the for a purpose other than proving the defendant’s character or disposition; (2) 404(b). To be admissible under Rule 404(b): (1) the evidence must be relevant

propensity evidence that should have been excluded under New Hampshire Finally, the defendant argues that the toxicology evidence was

at 248. under New Hampshire Rules of Evidence 401, 402, and 403. Dodds, 159 N.H. unsustainably exercise its discretion by admitting the toxicology evidence For all of the above reasons, therefore, we hold that the trial court did not not a contested issue” at trial. See State v. Smalley, 151 N.H. 193, 200 (2004). minimal prejudicial effect [because] . . . the defendant’s past drug use [was] patient are confidential.

p. 7 2008). RSA 329:26 provides that communications between a physician and 7 “confidential communication” within the meaning of RSA 329:26 (amended that the hospital’s request for a urine sample from the defendant was a

providers can, in turn, provide complete and appropriate medical treatment.” motion to suppress.

superior court, it is not properly before us now.

conversation operates to destroy the privilege.

by requesting the urine sample in Gould’s presence. The defendant argues

fully divulge personal, and at times, embarrassing, information so their medical patient privilege, and the trial court did not err by denying the defendant’s analysis. Therefore, the request for the urine sample was not protected by the physicianthe urine was illegally seized and the court erred in admitting the results of its (Minn. 2006); People v. Di Lenola, 667 N.Y.S.2d 535, 535 (App. Div. 1997). the police would have otherwise sought a warrant for it. Therefore, he argues, 2010); State v. Gillespie, 710 N.W.2d 289, 298 (Minn. Ct. App.), review denied interrogation. Therefore, because the defendant did not raise this argument in Phoenix, No. CV-09-47-PHX-DGC, 2010 WL 716410, at *1 (D. Ariz. Feb. 24, not mention Detective Gould’s learning of the urine sample during an illegal presence destroyed the physician-patient privilege. See Al-Asadi v. City of did not have a warrant for it. The defendant’s motion for reconsideration did 308, 310 (1989). Because the defendant knew Gould was in the room, his

(2004). However, the presence of an extraneous third party during a privileged In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 440 been suppressed because the hospital violated his physician-patient privilege

179 (2005). The physician-patient privilege is meant to encourage “patients to between patients and their medical providers. State v. Sawtell, 152 N.H. 177, Traditionally, we have carefully guarded the confidential relationship other basis of knowledge that the urine sample existed, the State cannot prove

defendant argued that the urine sample was illegally seized because the police

We next turn to the defendant’s argument that the evidence should have

379, 386 (2009).

himself and hospital personnel. He contends that because the police had no learned of the urine sample as a result of a privileged communication between sample during the illegal interrogation. Second, he argues that the police the defendant did not raise it in superior court. In his motion to suppress, the of the urine test because of the illegal interrogation, is not preserved because The defendant’s first argument, that Detective Gould improperly learned

he argues that the seizure was illegal because the police learned of the urine The defendant argues that the urine sample was illegally seized. First, issue that’s involved in” sample analyses. p. 8 samples, or who performed the tests on the samples. unclear from the record who authored the results letters for the defendant’s Then, the laboratory issues a “results letter” about the sample at issue. It is

senior toxicologist,” and reviews the data, paperwork, comments, and “any would violate his right to confrontation. The trial court, relying upon

screen report and . . . a drug confirmation report” for a particular sample.

Although he does not test samples, Dr. Wagner is a “certifying scientist or and “evidence collection forms,” arguing that the admission of such testimony

positive results from the first test. The laboratory usually produces “a drug specific test to determine “the particular drugs that are present” based on any on samples: a screening test to look for families of drugs, and then a more

results are non-testimonial.”

development of [the] laboratories,” and reviews and testifies about lab results. blood and urine sample collection forms; (4) blood test results; (5) EMT reports” Wagner explained that, primarily, he manages lab employees, “oversee[s] the laboratory employees, are “civilian representatives of the state police.” Dr.

samples, and what kinds of samples it tests. The laboratory performs two tests Dr. Wagner explained how the laboratory receives, processes, and tests

“the transmittal slips, the blood sample collection forms, and the blood test

testifying to: (1) transmittal slips; (2) report of laboratory examination; (3) “evidence at the request of law enforcement,” and that he, along with the other Dr. Wagner testified that the laboratory conducts tests and analyzes

review to his claims under the Federal Confrontation Clause. results . . . are [not] accusations.”

permitted Dr. Wagner’s testimony about the blood test results, concluding that tests. The State counters that O’Maley,

results are testimonial under the recent United States Supreme Court case of Before trial, the defendant moved to “preclude the State’s experts from

156 N.H. 125, 131 (2007), cert. denied, 129 S. Ct. 2856 (2009).

Because the defendant relies solely upon the Federal Constitution, we limit our

Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J., concurring).

testimonial materials, such as affidavits, depositions, prior testimony, or

they were inadmissible absent the testimony of the analyst who performed the Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and contends that

violated the Federal Confrontation Clause. The defendant argues that the test Wagner’s testimony about the test results for his blood and urine samples We next address the defendant’s argument that the admission of Dr.

III. Confrontation Clause would be available for use at a later trial. p. 9 would lead an objective witness reasonably to believe that the statement

confessions; statements that were made under circumstances which

defendant took and heroin withdrawal on the defendant.

testimonial materials, such as affidavits, depositions, prior testimony, or prosecutorially; extrajudicial statements contained in formalized statements that declarants would reasonably expect to be used and physical effects, and the impact of the combination of the drugs the

for cross-examination.”

Ct. at 2531 (quotation omitted). The certificates also described the weight of substances” that identified the substances as cocaine. Melendez-Diaz, 129 S. analysis showing the results of the forensic analysis performed on . . . seized the defendant was unable to cross-examine, or similar pretrial also testified about the signs and symptoms of heroin withdrawal, its cognitive Melendez-Diaz considered the admissibility of “three certificates of Wagner opined as to when the defendant took the drugs at issue. Dr. Wagner long the drugs could remain in his body. Based upon the test results, Dr. at trial or, if the witness is unavailable, the defendant had a prior opportunity Id. at 51-52 (quotation, citations and ellipsis omitted).

him.”

affirmation made for the purpose of establishing or proving some fact.”

material such as affidavits, custodial examinations, prior testimony that ex parte in-court testimony or its functional equivalent -- that is,

testimonial statements: defendant on his body and mind depending on the mode of ingestion, and how testimony against a defendant is . . . inadmissible unless the witness appears In Crawford, the Court described the following as categories of

accused shall enjoy the right to be . . . confronted with the witnesses against testimonial is a question we review de novo. O’Maley, 156 N.H. at 138. Crawford, 541 U.S. at 51 (quotation omitted). Whether a statement is

N.H. at 131. “Testimony, in turn, is typically a solemn declaration or the Confrontation Clause is whether it is ‘testimonial’ or not.” O’Maley, 156 determination under Crawford as to whether an out-of-court statement violates

discussed these substances and the likely effects of the drugs taken by the 36, 51 (2004), the United States Supreme Court held that “[a] witness’s metabolite of cocaine, morphine, and Oxycodone in the defendant’s urine. He Melendez-Diaz, 129 S. Ct. at 2531. In Crawford v. Washington, 541 U.S. cocaine, and a metabolite of cocaine in the defendant’s blood, and cocaine, a The Sixth Amendment “provides that in all criminal prosecutions, the

samples. He testified that the laboratory found trace amounts of Klonopin, Dr. Wagner testified that he reviewed the test results for the defendant’s depositions, prior testimony, or confessions.” p. 10 as they are contained in formalized testimonial materials, such as affidavits,

the Confrontation Clause is implicated by extrajudicial statements only insofar

appear in person as part of the prosecution’s case.” may well qualify as nontestimonial records. documents at issue in this case are quite plainly affidavits,” which “fall within documents prepared in the regular course of equipment maintenance concurring) (quotation omitted). He joined the majority opinion “because the

opinion, wrote separately to note his continuing adherence to his “position that Justice Thomas, the only member of the majority to write a concurring

Id.

custody, authenticity of the sample, or accuracy of the testing device, must that anyone whose testimony may be relevant in establishing the chain of must (if the defendant objects) be introduced live. Additionally, are so crucial as to require evidence; but what testimony is introduced It is up to the prosecution to decide what steps in the chain of custody

and brackets omitted). the “go to the weight of the evidence rather than its admissibility.” Id. (quotation be available for use at a later trial,” and noted that under Massachusetts law Id. (quotation and citation omitted). “[G]aps in the chain of custody normally does not mean that everyone who laid hands on the evidence must be called.” the prosecution has the obligation “to establish the chain of custody . . . this precisely what a witness does on direct examination.” Id. at 2532 n.1. Although fact,” and were “functionally identical to live, in-court testimony, doing

The Court explicitly stated that it did “not hold, and it is not the case, the declarant before an officer authorized to administer oaths.” (quotation omitted). “quite plainly affidavits: declaration[s] of facts written down and sworn to by composition, quality, and the net weight of the analyzed substance.” Id. sole purpose of the affidavits was to provide prima facie evidence of the

would lead an objective witness reasonably to believe that the statement would The Court reasoned that the affidavits were “made under circumstances which

declaration or affirmation made for the purpose of establishing or proving some (quotation omitted). The certificates were “incontrovertibly a solemn

The Court held that the certificates were testimonial because they were

The analysts did not testify at trial. See id. certificates before a notary public “as required under Massachusetts law.” Id. Institute of the Massachusetts Department of Public Health swore to the the bags containing the substances. Id. Analysts at the State Laboratory through cross-examination.” p. 11 [the expert]” because the opinion is “an original product that can be tested 11

testing procedures and safeguards, and peer reviewing the testing analyst’s

whose considered opinion sheds light on some specialized factual situation.”

judgment” and applies his or her “training and experience to the sources before of expert opinion would provide an end run around

opinion was based violated Confrontation Clause), 932-34 (7th Cir. 2010) (expert testimony identifying substances, discussing performed by non-testifying analyst); United States v. Turner, 591 F.3d 928, marijuana and cocaine permissible even though based upon lab tests accuracy of tests performed by other analyst and identifying substances as medical examiner . . . contained in [an] autopsy report.” conduit or transmitter for testimonial hearsay, rather than as a true expert 2010) (expert testimony reviewing laboratory tests, reviewing and confirming otherwise testify about the underlying factual findings of [an] unavailable Hough, No. COA09-790, 2010 WL 702458, at *2, 5-6 (N.C. Ct. App. Mar. 2,

rely upon testimonial statements when the expert renders “an independent parrot out of court testimonial statements . . . directly to the jury in the guise review filed (2010). However, other courts have concluded that an expert may

(expert’s testimony disclosing statements in autopsy report upon which his to own opinions); see Wood v. State, 299 S.W.3d 200, 213 (Tex. App. 2009) N.E.2d 1014, 1029 (Mass. 2009) (expert witness’s testimony must be confined

Some courts have concluded that an expert witness may not “recite or

F.3d at 635 (quotation omitted).

404072, at *4 (N.D. Ind. January 25, 2010). “Allowing a witness simply to filed (2010); United States v. Alexander, Nos. 2:04-cr-71, 2:09-cv-294, 2010 WL without the testimony of the analyst.” The State argues that United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009), petition for cert. testimony, because it “applies whenever a forensic test result is admitted reasoning applies to the admission of the test results through Dr. Wagner’s

expert testimony based upon testimonial statements, and have concluded that In the wake of Melendez-Diaz, courts have considered the admissibility of

2034-DSF (CT), 2009 WL 2049991, at *1-2 (C.D. Cal. July 9, 2009). testimony similar to the testimony in this case. See Larkin v. Yates, No. CV 09- Crawford and relies upon decisions from other courts upholding expert not determine whether expert testimony like Dr. Wagner’s is prohibited by

laboratory analysts regarding the drug tests” – the defendant argues that its category of testimonial statements” – “ex parte out-of-court affidavits of Although acknowledging that Melendez-Diaz “addressed a narrow

Id. (Thomas, J., concurring) (quotation omitted). the core class of testimonial statements governed by the Confrontation Clause.” out of court testimonial statements,” p. 12 the defendant and heroin withdrawal on the defendant. Instead of “parrot[ing] physical effects, and the likely effects of the combination of the drugs taken by

testified about the signs and symptoms of heroin withdrawal, its cognitive and

body and as to when the defendant took the drugs. Finally, Dr. Wagner

opinion as to the effects of the drugs taken by the defendant on his mind and the defendant’s statements and the lab results, Dr. Wagner rendered his of cocaine, morphine, and Oxycodone in the defendant’s urine. Based upon 12

prior testimony, or confessions,” underscores the limited reach of contained in formalized testimonial materials, such as affidavits, depositions, Clause is implicated by extrajudicial statements only insofar as they are and a metabolite of cocaine in the defendant’s blood, and cocaine, a metabolite

someone other than the testifying expert”); Melendez-Diaz. As noted above, the trial court relied upon O’Maley in said regarding a supervising expert’s testimony about test results prepared by Finally, we address the continuing viability of O’Maley in the wake of

trial. confrontation and cross-examination. See Alexander, 2010 WL 404072, at *4. certificates at issue in Melendez-Diaz, Dr. Wagner was available for Diaz. Melendez-Diaz, 129 S. Ct. at 2543 (quotation omitted). Unlike the

violate the Federal Confrontation Clause. laboratory procedures and test results. Accordingly, his testimony did not concurring opinion, in which he reaffirmed his belief that “the Confrontation explained that the laboratory had found trace amounts of Klonopin, cocaine, had the opportunity to cross-examine him regarding his opinions as well as the 2010 WL 103823, at *2 (Ga. Ct. App. January 13, 2010). Justice Thomas’ defendant’s samples, Dr. Wagner testified that he reviewed the test results, and Carolina v. State, No. A09A2053, other issues that arise with samples. Specifically, with respect to the established that the admission of affidavits is erroneous “the same cannot be See Yates, 2009 WL 2049991, at *2 (although Crawford clearly technician or analyst who performed the scientific tests at issue must testify at Moreover, Melendez-Diaz simply did not determine whether the

Johnson, 587 F.3d at 635; Hough, 2010 WL 702458, at *6.

generated opinions based upon his review of the test results, and the defendant

Confrontation Clause. Dr. Wagner explained the procedures used and testing test results were testimonial, Dr. Wagner’s testimony did not violate the Federal We agree with the latter approach. Here, although we assume that the

Davis v. Washington, 547 U.S. 8 p. 13 13, 827-30 (2006). such testimony is admissible must be determined on a case-by-case basis. See those results may still be admissible. See Johnson, 587 F.3d at 635. Whether upon by the testifying expert may be testimonial, expert testimony based upon work admissible under Melendez-Diaz). Thus, although the test results relied scientific testing” may still be testimonial.

involving observations of the crime, and testimony based upon “neutral,

Clause rights.”

are no longer good law. portions of the analysis in O’Maley are inconsistent with Melendez-Diaz, they

observations, statements not made in response to police interrogation and not 126 S. Ct. at 2533-35. Melendez-Diaz concluded that contemporaneous analyst who conducted the test, did not violate the defendant’s Confrontation because they are not ‘accusatory’” or “conventional” witnesses. Melendez-Diaz, Diaz rejected the argument that “analysts are not subject to confrontation testimony at trial.” JD, 2010 WL 987026, at * 4 (D.N.H. March 17, 2010). Specifically, Melendezupon in O’Maley. See Silva v. Warden, N. H. State Prison, Civil No. 09-cv-388- In Melendez-Diaz, the majority rejected the arguments that we relied

testimony would have been almost identical to that of Dr. Wagner. Id. at 140. Dr. Wagner.” Id. Finally, we noted that, had the testing analyst testified, her reached and conveyed not through the nontestifying analyst’s report, but by the actual reported test result is deemed to be accusatory, this result was statement was prepared in a manner resembling

Id. at p. 13 139. The results were neutral, and, “to the extent that past events or the contemporaneous recordation of observable events.”

Wagner to give his opinion of the test results, absent the testimony of the

the technician’s statements on the form “were not a weaker substitute for live information on the form “was required by pertinent administrative rules,” and “the technician’s contemporaneous recordation of observable events.” Id. The Clause. We reasoned that the blood collection form was not an accusation, but

“whether the statement is an accusation.” Id. (quotation omitted).

(quotation omitted). We also considered two other factors: “whether the

statement is testimonial or not is whether it represents the documentation of (quotation omitted). We stated that “a crucial factor in determining whether a which an out-of-court statement is generated is the critical inquiry.” Id. at p. 13 138 In reaching this determination, we noted that “the circumstances under

Id. at p. 13 138-40.

Dr. Wagner’s testimony and the form were admissible under the Confrontation the . . . results,” and prepared the final report. Id. at 127. We concluded that although Dr. Wagner reviewed the test results, “calculated the reported value of N.H. at 127-28. The analyst who tested the blood in O’Maley did not testify, Confrontation Clause within the context of a DWI prosecution. O’Maley, 156 testimony about test results relating to the blood sample under the Federal considered the admissibility of a blood collection form and Dr. Wagner’s determining that the test results were non-testimonial. In O’Maley, we conduct that a law-abiding person would observe in the situation.

p. 14 known to him, his disregard constituted a gross deviation from the

also acts recklessly with respect thereto.

“recklessly” as follows:

must be of such a nature and degree that considering the circumstances defendant was aware of the risk and consciously disregarded it. The risk failed to become aware of the risk involved. The State must prove the

solely by reason of having voluntarily engaged in intoxication or hypnosis

After reading the elements of each manslaughter charge, the court defined influence of controlled drugs and/or while experiencing heroin withdrawal. result from his conduct because, in part, he drove his vehicle while under the

from his conduct. It is not enough for the State to prove the defendant

the situation. A person who creates such a risk but is unaware thereof 14 deviation from the conduct that a law-abiding person would observe in the circumstances known to him, its disregard constitutes a gross

because he was aware of and consciously disregarded the risk that death could

disregarded a substantial and unjustifiable risk that death would result challenge the preservation of the defendant’s arguments. slightly earlier in the trial.” From this, we assume that the State does not

conduct. The risk must be of such a nature and degree that, considering

intoxicated. which alleged that the defendant recklessly caused the deaths of the victims

Recklessly means the defendant was aware of and consciously

appears that the defendant did preserve this issue by a related objection

unjustifiable risk that the material element exists or will result from his when he is aware of and consciously disregards a substantial and that the jury could find that he was reckless because he was voluntarily intoxicated but unaware of the risk, and, therefore, he did not receive notice While instructing the jury, the court read the manslaughter indictments, grand jury did not charge that he was reckless because he was voluntarily

he did not preserve the issue for appeal,” the State also contends that “it

A person acts recklessly with respect to a material element of an offense

RSA 626:2, II(c) (2007) provides: the manslaughter indictments. Specifically, the defendant argues that the

Although the State argues that the defendant “effectively concedes that

of the manslaughter charge, because that instruction impermissibly amended jury that voluntary intoxication may satisfy the reckless mental state element Next, the defendant argues that the trial court erroneously instructed the

IV. Jury Instructions of the ‘statutory variants’ contained in the definition of ‘recklessly.’”

p. 15 intoxication. The State thus argues that the indictment correctly “charge[d] all

under any part of the statutory definition of recklessness, including voluntary the defendant received adequate notice that the State could prove recklessness that the defendant caused the deaths of the victims while under the influence,

defendant received notice that the State could attempt to prove that he was manslaughter without finding that defendant shot victim). Moreover, the

voluntarily engaged in intoxication or hypnosis,” and the indictment alleged

“cannot freely amend indictments brought on the oath of a grand jury.”

for automatic reversal.” by the grand jury substantively changes the offense and therefore is grounds the substance of an indictment, instructing the jury on an element not charged

amended indictment by instructing jury it could convict defendant of an offense.” offense”); cf. State v. Elliot, 133 N.H. 759, 765 (1990) (trial court impermissibly “creates such a risk but is unaware thereof solely by reason of having substantively amend the indictment by adding an element to the charged v. Bathalon, 146 N.H. 485, 489 (2001) (holding that “[t]he trial court did not from being convicted of a crime not charged in an indictment,” the court offense charged or adding an offense not charged by the grand jury. See State Here, the trial court did not amend the indictments by changing the

“Because an element of the offense charged is automatically considered part of

State v. Bean, 153 N.H. 380, 383 (2006) (quotation omitted).

amendment to an indictment “effects a change in the offense charged, or adds v. Glanville, 145 N.H. 631, 633 (2000) (quotation omitted). An impermissible because RSA 626:2, II(c) states that a person acts recklessly when he or she State indictment could be used to prove recklessness.” The State contends that, another, it put the defendant on notice “that any of the facts alleged in the Because Part I, Article 15 of the State Constitution “protects a defendant

would have done under those circumstances. manslaughter indictments that the defendant recklessly caused the death of a risk that was a substantial departure from what a law-abiding person The State argues that by alleging at the beginning of each of the

the statutory definition of “recklessly.” See RSA 626:2, II(c). The final sentence of this instruction is almost identical to the final sentence of

-- acts recklessly with respect thereto. reason of having been voluntarily engaged in intoxication also recklessly A person who creates such a risk, but is unaware thereof solely by

thoughtless, that’s not enough. You must find the defendant disregarded If you find the defendant’s actions were unreasonable and determining recklessness are:

p. 16 effects of heroin withdrawal. 16 under the influence of one or more controlled drugs and/or suffering the recklessness. The factual allegations that you can consider in had the right of way and was turning left . . . and at the time Dilboy was

indictments: and/or suffering the effects of heroin withdrawal.

you must reach a unanimous decision as to the acts that amount to through a red light on Indian Brook Drive and collided with a Volvo that

The court defined recklessly, and then discussed the factual allegations in the And at the time was under the influence of one or more controlled drugs Drove through a red light; Collided with a vehicle that had a right of way; The defendant drove a vehicle at an excessive rate of speed;

Although you do not need to find all of the factual allegations occurred, Dilboy did drive a Nissan pick-up truck at an excessive rate of speed unjustifiable risks that death could result from his conduct, Anthony that being aware of and consciously disregarding the substantial and “caused the death of another person”; and, second, that he “acted recklessly.” that the State must prove beyond a reasonable doubt; first, that the defendant The court then stated that manslaughter has “two parts or elements”

trial court overruled the defendant’s objection. manslaughter if the jury found that he committed all of the alleged acts. The The defendant objected, arguing that the jurors could only convict him of allegations contained in the indictments it found beyond a reasonable doubt.

recklessly cause[d] the deaths of [Alexander Bean and Mark Vachon] in

indictments, which alleged that the defendant: been charged with two counts of manslaughter. The court read the During its jury instructions, the court explained that the defendant had

element of the manslaughter charges to identify which, if any, of the factual intended to obtain special findings from the jury concerning the recklessness reversible error. The trial court informed the parties during trial that it We next consider whether the use of a special verdict form constituted

N.H. 693, 707-08 (1999). reckless because he was voluntarily intoxicated. See State v. Gonzalez, 143 form, in relevant part, posed the following questions to the jurors:

form in an unrelated fashion, and submitted the new form to the jury. The

guilty of manslaughter.” worry they’re just going to be drawn to the checklist. to determine whether or not the defendant acted recklessly and, therefore, [is] YES____

defendant drove a vehicle at an excessive rate of speed?

asserted that: 1. Do you unanimously find beyond a reasonable doubt that the

The trial court overruled the defendant’s objection, revised the special verdict

are: they have a separate set of instructions that you’ve given [them], but I unanimously all four of those -- find that the State has proven all four of those specific acts and make unanimous findings as to those. Among those tendency to be yes, yes, yes, yes, yes, and they have that set of forms and end - - and you will - - I’m going to ask you to consider each of those I do worry that when you give them a checklist-type form, there is a

charges and . . . in a position to answer to them.” Defense counsel also verdict form based upon “due process provisions of being full[y] apprised of the day. The next morning, the defendant reiterated his objection to the special The jury deliberated for a short period of time and then concluded for the

the defendant acted recklessly,” and that the jury did “not have to “find are these four areas that you’re going to consider in determining whether or not has charged constitutes reckless. And this is self-explanatory, and at the Following a bench conference, the court again instructed the jury that “[t]here

And whether he was under the influence of one or more controlled drugs. Passing through a red light; Colliding with a vehicle that had a right of way; The excessive rate of speed; unanimous.

under the manslaughter charge; as to the various acts which the State respect to the charges. Specifically, the unanimous findings as to - - [T]his verdict form is one which asks you to make specific findings with

Subsequently, the court explained the special verdict form to the jury:

none of the factual allegations occurred,” but that any such finding must be The trial court instructed the jurors that they could “find that one, some, all or was red.” The State thus argues that the p. 18 that it “allowed the jury to convict without finding that he knew the traffic light acted recklessly without finding that he was under the influence of drugs,” and

reversible error, but alternatively contends that the error was plain. 18

the crossed-out check. special verdict form was improper because it permitted the jury to find that he 4, but then crossed it out and wrote “Ignore” with an arrow pointing towards

separate response to indicate the verdict.” The defendant argues that this was

not plain error. us except under a plain error standard, and, that under Surette, its use was

The State contends that, at trial, the defendant “argued only that the after questions 1, 2, 3, and 5, and appeared to have checked “yes” for question

causation, the two elements of manslaughter; and (3) “the form contain[ed] no the form failed to require unanimity with respect to recklessness and verdict” because: (1) each question provided for only an affirmative answer; (2) that the form “impermissibly directed the jury’s deliberation towards a guilty Relying on State v. Surette, 130 N.H. 531 (1988), the defendant contends

The jury convicted the defendant on all four counts. The jury checked “yes”

YES____

caused the death of another? recklessly as defined in my instructions and that the reckless act you also find that act(s) sufficient to prove the defendant acted 5. If you have unanimously agreed on one or more of the acts above, do

YES____

drugs and/or suffering the effects of heroin withdrawal? the defendant was under the influence of one or more controlled 4. Do you unanimously find beyond a reasonable doubt that at the time

YES____

defendant collided with a vehicle that had the right of way? 3. Do you unanimously find beyond a reasonable doubt that the

YES____

defendant drove a vehicle through a red light? 2. Do you unanimously find beyond a reasonable doubt that the p. 19 Note, the jury with a list of charges to take into the deliberation room.

to the court.” Note,

Amendment right to have a jury make the ultimate determination of guilt.” here, should be distinguished from the more widespread practice of providing

objection” and gave the trial court the opportunity to correct any error.

verdict of guilty or not guilty, but simply finds certain facts and leaves the rest

guilty, no matter how overwhelming the evidence of guilt.”).

taking away the jury’s power to render a verdict, they violate the Sixth 1073, 1076 (E.D. Wis. 2001). Special findings, such as those used by the court verdict.” Note, supra at 263-64; see United States v. Acosta, 149 F. Supp. 2d yes.” The defendant thus alerted the trial court to the “substance of [his] additional information that accompanies, but does not replace, the general (quotation omitted), cert. denied, 547 U.S. 1144 (2006). Such findings “provide criminal trials.” United States v. Hedgepeth, 434 F.3d 609, 613 (3d Cir.) court, “[a] true special verdict is one where the jury does not render a general Instead, at issue here are special findings, which “are disfavored in

1969) (“In a criminal case a court may not order the jury to return a verdict of supra at 263; see United States v. Spock, 416 F.2d 165, 180 (1st Cir.

“[t]rue special verdicts are almost never used in criminal cases, because by Criminal Jury Trials, 21 Yale L. & Pol’y Rev. 263, 263 (2003). Accordingly, and that the checklist would prompt the jurors to answer “yes, yes, yes, yes, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in argued that the special verdict form would draw the jurors “to the checklist” verdict form improperly influenced the jury’s deliberations. The defendant parties use the term “special verdict” to describe the form used by the trial We now turn to the merits of the defendant’s argument. Although the

B. Special Findings to correct errors before they are presented to the appellate court.” Brum, 155 N.H. at 417.

We conclude that the defendant preserved his argument that the special

specific ground of objection.” Ericson, 159 N.H. at 386. Brum, 155 N.H. 408, 417 (2007). “The objection must state explicitly the

that ordinarily, trial courts should have an opportunity to rule upon issues and Ericson, 159 N.H. 379, 386 (2009). “The preservation requirement recognizes

general rule in this jurisdiction is that a contemporaneous and specific special verdict form improperly influenced the jury’s deliberations. “The We first consider whether the defendant preserved his argument that the

A. Preservation p. 20 20 trammel.”

specific case.”

guilt of a defendant.”

defendant to have the jury deliberate and apply the law free from judicial

tempering rules of law by common sense brought to bear on the facts of a 182. [findings] may have upon the jury’s ultimate conclusion.” Spock, 416 F.2d at “with the subtle, and perhaps, open, direct effect that answering special seminal case of United States v. Spock, the First Circuit expressed its concern

“Special [findings] have the unique capacity to proselytize the jury to the

United States v. Ogull, 149 F. Supp. 272, 278 (S.D.N.Y. 1957).

(quotation omitted). Ultimately, “[w]hat is sacrosanct . . . is the right of a confuse the jury, or shift or weaken the government’s burden of proof. United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998)

Special findings may also “partly restrict [the jury’s] historic function, that of detailed list of questions or explain its reasons.” Wilson, 629 F.2d at 443. power should not be attenuated by requiring the jury to answer in writing a “pose a genuine possibility of juror confusion”); sympathy for the government’s position. It has a general veto power, and this power to nullify: “a jury is entitled to acquit the defendant because it has no Spock, 416 F.2d at 180-81. Special interrogatories may also impede the jury’s return a number of subsidiary findings to support its general verdict.” Id.; see with the jury’s “right to render a general verdict without being compelled to United States v. Wilson, 629 F.2d 439, 442 (6th Cir. 1980). They can interfere

However, courts have noted that special findings have the potential to

n.41 (sentencing matters and treason cases). F.2d 886, 887-88 (2d Cir. 1988) (RICO prosecution); Spock, 416 F.2d at 183

(9th Cir. 1993) (requiring special interrogatories where facts introduced to jury supra at 269-80; see also, e.g., United States v. Delgado, 4 F.3d 780, 792 n.5 of factual matters, as well as mixed determinations of fact and law. See Note, denied, 540 U.S. 890 ( p. 20 2003). Courts use such findings to determine a variety Fed. Appx. 714, 717 (1st Cir. 2002) (quotation and ellipsis omitted), cert. permissible in federal criminal proceedings.” United States v. Iniro-Castro, 61 all special [findings] in criminal cases,” and that special findings “may be emphasized “that there is no mechanical per se rule of unconstitutionality for circumstances. Note, supra at 280. The First Circuit Court of Appeals has utilized or approved of special findings in criminal trials in limited 1973), all of the federal circuit courts and forty-six of the state courts have see Note, supra at 267-68, 280; State v. Osburn, 505 P.2d 742, 749 (Kan. Although a few jurisdictions do not use special findings in criminal trials,

findings form from checklist and summary of charges). States v. Gallishaw, 428 F.2d 760, 765 (2d Cir. 1970) (distinguishing special p. 21 “enables the jury to perform its generalized task first, responding to the

Permitting the jury to answer special findings after reaching a general verdict

were to be answered only if a general verdict of guilty had been reached.”).

charge on all facts of the case.” (collecting cases)).

may pose less of a risk for prejudice.

183 (“Nor is it an answer that . . . the jury was informed that [the questions]

integrated with the jury’s final deliberations following a full, adequate general prejudicial potential of special [findings] . . . might be . . . mitigated if they are guilty”), cert. denied, 469 U.S. 831 (1984); Simon, 398 A.2d at 866 (“The answered only in the event that the jury has agreed upon a general verdict of dissenting in part) (encouraging courts to submit special findings “to be Ruggiero, 726 F.2d 913, 928 (2d Cir.) (Newman, J., concurring in part and rest of the jury instructions. See Note, supra at 294; United States v. Special findings made by the jury after it renders a general guilty verdict

must avoid leading jurors down a path towards a guilty verdict). the questions. Commonwealth v. Licciardi has been initiated by the judge, and directed by him through the frame of, 443 N.E.2d 386, 390 (Mass. 1982) (special findings predeterminative of the jury’s verdict or assisted the court” (citations omitted)); The result may be accomplished by a majority of the jury, but the course benefited the defendant, were neither inherently prejudicial nor that special interrogatories have been approved “where the special findings 267; see, e.g., People v. Ribowsky, 568 N.E.2d 1197, 1201 (N.Y. 1991) (noting “impermissibly directs the course of the jury’s deliberation.” Note, supra at denied defendant’s right to impartial jury). (2d Cir. 1982). Ultimately, special findings are improper when their form

We consider the propriety of the special findings in conjunction with the

289, 291. need for a new trial, and promote certainty and efficiency. See Note, supra at 1127-28 (N.J. 1996). Special findings can facilitate appellate review, avoid the Ogando be led to vote for a conviction which, in the large, he would have resisted., 968 F.2d 146, 148-49 (2d Cir. 1992); State v. Diaz, 677 A.2d 1120, complex or confusing cases. Note, supra at 283, 287; see, e.g., United States v. However, special findings can also ensure jury unanimity and clarity in

deliberations by directing the jury down a path towards a guilty verdict” and Id.; see Surette, 130 N.H. at 535 (special verdict form “set the tone of the

to require an answer unfavorable to the defendant, a reluctant juror may formally catechized. By a progression of questions each of which seems than to approach it step by step. A juror, wishing to acquit, may be There is no easier way to reach, and perhaps force, a verdict of guilty manslaughter charge. p. 22 had the potential to direct the jury’s focus to the “reckless” element of the 22

one charge, it suggested “that the jurors were not so swayed by the inclusion of

impermissibly direct the jurors’ deliberations. count might have produced an acquittal or at least a hung jury.

answer only “yes” after each of the questions. Finally, the special findings form

(because jury found one special finding not proven and refused to convict on

However, the jury’s response to question 4 suggests that the form did not to some means and “no” to others, although unified consideration of the

required to prove”). using forms that “emphasize[ ] various elements of what the Government is

part). We also note that the special findings form gave options for the jury to Ruggiero towards a guilty verdict.”, 726 F.2d at 927 (Newman, J., concurring in part and dissenting in

to resolve its differences to the defendant’s disadvantage by saying “yes” ways an offense may be committed affords a divided jury an opportunity The possibility . . . exists that fragmenting a single count into the various deliberation.” Note, jury because they did not “impermissibly direct[ ] the course of the jury’s cert. denied, 464 U.S. 823 (1983). “reduced to a minimum the step by step process of determination of guilt”), 182; cf. United States v. Southard, 700 F.2d 1, 16 (1st Cir.) (two questions

questions to the jury and thus ran the risk of “directing the jury down a path standard). This inquiry is fact-specific and case-specific. factual allegations in the manslaughter indictments, they posed a number of and dissenting in part). Moreover, although the list of findings tracked the 434 F.3d at 613; Ruggiero, 726 F.2d at 928 (Newman, J., concurring in part a guilty verdict before completing the special findings form. See Hedgepeth, unsustainable exercise of discretion. used by the trial court were problematic: for example, the jury did not come to

unsustainably exercise its discretion in submitting the special findings to the In the case before us, we conclude that the trial court did not

at 867.

N.H. 295, 296 (2001) (explaining “unsustainable exercise of discretion” Balderas, 163 Fed. Appx. 769, 782 (11th Cir. 2005); cf. State v. Lambert, 147 United States v. Udeozor, 515 F.3d 260, 271 (4th Cir. 2008); United States v.

We review the trial court’s decision to use special findings for an

(Newman, J., concurring in part and dissenting in part). of the elements of an offense established.” Ruggiero, 726 F.2d at 928 [question] thereafter only if a guilty verdict reflects that the jury has found all p. 23 23

charged beyond a reasonable doubt,” then it “should find the defendant guilty.” them of it?

possessions belonging to the Squires with the purpose to deprive

jury must find the defendant not guilty if any one of the questions was inconsistent with Wentworth.” Surette, 130 N.H. at 535 (“By stating that the in conjunction with the special findings form did not “create[ ] an impression See State v. Wentworth, 118 N.H. 832, 838-39 (1978). The court’s instructions

that if it found the State “proved all the material elements of the offense Surette, 130 N.H. at 533. By contrast, here, the court twice instructed the jury purpose to exercise unauthorized control over property i.e.

(Guilty or Not Guilty) Surrette__________________________ of burglary. The jury finds the defendant John defendant not guilty of burglary. If any question is unanimously answered ‘ No,’ you must find the

(Yes or No)

Answer:________________________________ Squires dwelling at the time?

4. John Surrette entered the Squires dwelling at the time with the

(Yes or No) Bedford in the nighttime? Answer:________________________________ 3. The Squires dwelling was not open to the public at the time?

(Yes or No) Answer:________________________________

2. John Surrette was not licensed or privileged to enter the

(Yes or No) Answer:________________________________

enter the dwelling occupied by Donald and Margaret Squires in 1. John Surrette [sic] did, on or about March 7, 1986, purposely

Does the jury unanimously find beyond a reasonable doubt that:

submitted four special findings to the jury in a burglary trial: 130 N.H. at 535; cf. Lambert, 147 N.H. at 296. In Surette, the trial court the nature of the form, was an unsustainable exercise of discretion. Surette, failure to include the charge on the special findings form in conjunction with though the trial judge orally gave the “model charge” on reasonable doubt, the deliberation”). This case is unlike Surette where we concluded that, even the sentencing factors on the verdict slip that they could not engage in careful the effects of withdrawal constitutes being “under the influence” of drugs. p. 24 because he did not raise it at trial. The State also argues that suffering from

State contends that the defendant did not preserve his sufficiency argument

the special findings form would have aided appellate review. and that suffering from withdrawal was not enough to show he was “under the challenged the sufficiency of the evidence supporting that allegation on appeal,

from drug use does not constitute being under the influence of that drug. The under the influence of drugs; and (2) suffering from the effects of withdrawal defendant’s arguments that: (1) the evidence was insufficient to prove he was

the two negligent homicide charges, arguing that the indictments were vague contained in the indictments beyond a reasonable doubt, and the defendant

contemporaneous and specific objection below. defendant’s manslaughter convictions. We choose, however, to address the issue for appellate review, the defendant was required to make a

At the conclusion of the State’s evidence, the defendant moved to dismiss If the jury had found that the State proved only one of the factual allegations juror confusion. Second, the trial court attempted to facilitate appellate review. 233, 236 (2003). contained four different factual allegations and thus could conceivably create See State v. Wood, 150 N.H.

We first address the defendant’s sufficiency argument. To preserve this should happen to the negligent homicide convictions if we affirmed the class A felony negligent homicide charges. Neither party addressed what A. Sufficiency of the Evidence

mandated only in death penalty prosecutions.

allegations in the manslaughter indictments. The manslaughter indictments

Finally, we address whether the trial court erred in failing to dismiss the

alleged “which are found to exist”). (requiring jury to “return special findings identifying any aggravating factors”

Fed. Appx. at 717, and, in New Hampshire, special findings are statutorily limited circumstances, see, e.g., Hedgepeth, 434 F.3d at 613; Iniro-Castro, 61 First, it sought to ensure juror unanimity on at least one of the factual limited circumstances. As noted above, federal courts use special findings in urge trial courts not to use special findings in criminal cases except in special, While we affirm the trial court’s use of special findings in this case, we

In using the special findings form, the trial court had two primary goals.

defendant was guilty and the verdict must follow accordingly.”). answered ‘no,’ the form suggests that if all the answers were ‘yes,’ the attention, a crucial skill in operating a motor vehicle.

p. 25 risk-taking behavior, and a decrease in a person’s ability to divide his up to ten days later. These symptoms of withdrawal can include an increase in withdrawal one to three days after the last use, and then continuing symptoms

using it. In addition, he testified that a person may feel peak symptoms of

person can continue to feel the effects of heroin eight to twelve hours after that one be under the influence of drugs, and as Dr. Wagner testified at trial, a was “under the influence,” the State need prove only that the driver was resulting in an impaired driving ability. Rather, the language merely requires

symptoms of withdrawal from drug usage. We have held that to prove a driver intended to require a person to have controlled drugs present in their blood,

controlled drug may be proved by evidence that the defendant was suffering Nothing in the plain language of RSA 630:3, II indicates that the legislature

not see fit to include.

We hold, therefore, that the element of being “under the influence” of a while operating a propelled vehicle . . . he or she causes the death of another.” controlled drug or any combination of intoxicating liquor and controlled drug in consequence of being under the influence of intoxicating liquor or a

will not construe what the legislature might have said or add language it did

to its plain and ordinary meaning.

RSA 630:3, II provides that “[a] person is guilty of a class A felony when statute considered as a whole.” the final arbiters of the legislature’s intent as expressed in the words of the 986 A.2d at 612. question of law, which we review in the context of the overall statutory scheme and not in isolation. Id. at __, within the meaning of RSA 630:3, II. The interpretation of a statute is a Id. at __, 986 A.2d at 612. Finally, we interpret a statute usage does not constitute being “under the influence” of a controlled drug 612. Further, we interpret legislative intent from the statute as written and

language of the statute itself, and, if possible, construe that language according their terms and to promote justice. See RSA 625:3 (2007). We first look to the We construe provisions of the Criminal Code according to the fair import of

“did not afford the trial court the opportunity to correct an error it may have __, 986 A.2d 603, 612 (2009). “In matters of statutory interpretation, we are

We next address the defendant’s argument that withdrawal from drug

B. “Under the Influence”

consider it on appeal. Id. not properly preserve his sufficiency of the evidence argument, we will not

was insufficient evidence to prove he was under the influence. Therefore, he influence” of a controlled drug. At no point did the defendant argue that there for drugs. p. 26 rule for blood alcohol content does not mean a comparable measure must exist

evidence beyond trace amounts of drugs in his bloodstream. cannot be convicted of driving under the influence of drugs absent specific under the influence of intoxicating liquor.” Thus, he argues, a defendant

defendant’s blood. Simply because the legislature established an evidentiary

concentration of 0.03 or less is prima facie evidence that the defendant was not

that “[n]o person shall drive or attempt to drive a vehicle upon any way 26

the statute contains no comparable rule regarding the level of drugs in a However, although drugs and alcohol are contained within the same chapter, evidentiary rules concerning a minimum concentration of alcohol in his blood.

provides, in part, that “[e]vidence that there was, at the time alleged, an alcohol

prove he is under the influence. RSA 265-A:2, I (Supp. 2009) provides, in part,

BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred.

defendant’s interpretation of RSA 630:3, II. Kousounadis, 159 N.H. at __, 986 A.2d at 612, and we decline to adopt the blood alcohol content. He also cites RSA 265-A:11, I (Supp. 2009), which We do not add language the legislature did not see fit to include, person could not be convicted of driving under the influence of alcohol with no chapter 265-A, the chapter on alcohol or drug impairment, to argue that a there is no minimum requirement for levels of drugs in a defendant’s system to

or . . . [w]hile such person has an alcohol concentration of 0.08 or more.” The controlled drug or any combination of intoxicating liquor and controlled drugs; . . . [w]hile such person is under the influence of intoxicating liquor or any

analogous to driving under the influence of alcohol. He relies upon RSA Unlike the operating under the influence of alcohol statutes, however,

danger to others on a highway.”

The defendant argues that driving under the influence of drugs is

that “his normal physical coordination was impaired so as to render him a at 749. He was still suffering the “rebound effect” or “hangover effect” such apprehended, he was “physically impaired as a result of ingesting cocaine.” Id. cocaine was not “pharmacologically active” when the defendant was Super. Ct. App. Div. 2007). In Franchetta, the trial court found that while the Our position is supported by State v. Franchetta, 925 A.2d 745 (N.J.

ingestion of the drugs. in the statute limits such impairment to the time immediately following the impaired “to any degree.” State v. Wiggin, 151 N.H. 305, 309 (2004). Nothing