2009-508 The State of New Hampshire v. Jeffrey Marshall

Michael A. Delaney

No. 2009-508

Rockingham

Superior Court (Nadeau LYNN, J. The defendant, Jeffrey Marshall, appeals his convictions in the

Pamela E. Phelan

Fosher, several other adults, and the defendant were together at the Comfort The record supports the following. On October 21, 2007, Anthony

(2007). We affirm. see RSA 318-B:26, IX (2004), and receiving stolen property, see RSA 637:7 , J.) of dispensing a controlled drug – death resulting,

and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: 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 well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as arguments in turn. p. 2 portion of his trial was lost and could not be reconstructed. We address his both of his convictions must be vacated because the record of a necessary because it was against the weight of the evidence. Further, he contends that insufficient evidence; and (3) denying his motion to set aside the verdict offense; (2) denying his motion to dismiss because the State introduced death resulting because the indictment failed to allege all of the elements of the his pre-trial motion to dismiss the charge of dispensing a controlled drug – On appeal, the defendant argues that the trial court erred in: (1) denying 2

evidence as to causation. This appeal followed. the evidence, and arguing that the jury verdict was against the weight of the unsuccessfully moved to set aside the verdict, again arguing an insufficiency of IX. Subsequent to the jury finding him guilty on both charges, the defendant prove that the heroin caused Fosher’s death as required under RSA 318-B:26, the drug charge, arguing that the State had introduced insufficient evidence to resulting. At the close of all the evidence, he unsuccessfully moved to dismiss charges of receiving stolen property and dispensing a controlled drug – death The defendant was indicted by a Rockingham County grand jury on

defendant. pronounced dead at the hospital. Three days later, the police arrested the then left the Comfort Inn before police and paramedics arrived. Fosher was to the defendant, who also took a moneybag and a bag of leftover heroin. He Fosher was non-responsive. She took money out of Fosher’s pocket and gave it At 12:42 p.m. the next day, the defendant’s girlfriend called 911, as

big.” up the heroin into lines; the defendant commented that the lines looked “really bag of heroin. Due to his intoxicated state, Fosher had difficulty in breaking and “[l]ook over” Fosher, because Fosher could die from consuming the entire heroin, the defendant told another of the adults that she should “watch out for” drank that night. There was testimony, however, that, when giving Fosher the The defendant did not provide Fosher with any of the alcohol that he

some point. snorted an amount of heroin, as did some of the others, before passing out at alcohol. The defendant returned and gave Fosher a bag of heroin. Fosher get heroin. Fosher indicated that he wanted the heroin, and continued to drink defendant left to purchase cocaine, but later called to say that he could only an effort to get the cocaine, and Fosher gave him money to purchase it. The whether anyone could get cocaine for him. The defendant made some calls in very intoxicated. At some point during the evening, Fosher began asking drinking alcohol; Fosher had a case of beer and was described by others as Inn in Portsmouth to watch a Red Sox game. Several of the adults were p. 3 3

imprisonment for life or for such term as the court may order. For

ingestion of that substance, and may be sentenced to liable for a death which results from the injection, inhalation or drug analog thereof, in violation of RSA p. 3 318-B:2, I or I-a, is strictly . . . controlled drug classified in schedules I or II, or any controlled Any person who manufactures, sells, or dispenses . . . any

RSA p. 3 318-B:26, IX reads:

the specific charges against him. Id. contains the elements of the offense and enough facts to warn a defendant of indictment could have been more certain and comprehensive, but whether it MacElman, 154 N.H. p. 3 304, 313 (2006). The question is not whether the which a defendant may have committed the offense be identified. State v. plainly, substantially and formally, described to him.” See factual specificity, however, there is no additional requirement that the acts by shall be held to answer for any crime, or offense, until the same is fully and to identify the offense in fact. See id. Once a crime has been identified with Part I, Article 15 of the State Constitution provides that “[n]o subject indictment must include the elements of the offense with sufficient allegations enough merely to state the crime with which a defendant is being charged; the a second time for the same offense. See Alex C., 158 N.H. at 527. It is not to prepare for trial and at the same time protect him from being put in jeopardy of the offense with which he is charged with sufficient specificity to enable him To meet this constitutional standard, an indictment must inform a defendant forth therein the special statute, bylaw or ordinance on which it is founded.”). offense fully, plainly, substantially and formally, and it is not necessary to set (2001) (“An indictment, information or complaint is sufficient if it sets forth the

Alex C., 158 N.H. 525, 527 (2009). constitutional law and statutory interpretation, our review is de novo. In re arguments under the State Constitution. Because this is a question of S. Ct. p. 3 3020, 3034-35, 3035 n.13 (2010) (citing cases), we address only his Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007); see McDonald v. Chicago, 130 Fourteenth Amendment, and, thus, does not apply to the states, Gautt v. Grand Jury Clause of the Fifth Amendment has not been incorporated into the indictment that alleges all of the elements of the charged offense.” Because the issues implicate [his] constitutional rights to due process and a grand jury Fourteenth Amendments to the Federal Constitution, he contends that “[t]hese resulting. Citing Part I, Article 15 of the State Constitution and the Fifth and trial motion to dismiss the charge of dispensing a controlled drug – death The defendant first contends that the trial court erred in denying his pre-

p. 4 dispensing a proscribed controlled drug and a death resulted from injecting,

must have communicated to the defendant that he was charged with In this case, for the indictment to have been constitutionally sufficient, it

defined in this chapter.

of one as a drug enterprise leader or for any other offense

arising under this section shall not merge with a conviction

preclude or limit any prosecution for homicide. A conviction

another. Nothing in this section shall be construed to

consenting to the administration of the substance by

injection, inhalation or ingestion of the substance or by his

death by his purposeful, knowing, reckless or negligent

under this section that the decedent contributed to his own person’s liability. It shall not be a defense to a prosecution

of the substance or its effect, as to have a just bearing on the 4 which was unrelated to the injection, inhalation or ingestion (2) Too dependent upon conduct of another person

had to be alleged in the indictment. We disagree. contends that RSA 318-B:26, IX(a) and (b) constitute elements of the crime that on the [the defendant’s] liability.” RSA 318-B:26, IX(a), (b). The defendant or “too dependent upon conduct of another person . . . as to have a just bearing “too remote in its occurrence to have just bearing on [the defendant’s] liability” antecedent but for which” he would not have died or that his death was not not allege that Fosher’s inhalation or ingestion of the heroin was “an The defendant argues that the indictment was insufficient because it did

on the person’s liability; or (1) Too remote in its occurrence as to have just bearing

(b) The death was not:

the Statute in such case made and provided . . . .” ingested by, Anthony Fosher, 4. resulting in his death, contrary to the form of Anthony Fosher, 3. and, subsequently, said heroin was inhaled and/or Marshall knowingly, 2. dispensed a quantity of the controlled drug heroin to Dispensing Controlled Drug – Death Resulting . . . in that: 1. Jeffrey E. as it read, in pertinent part, that the defendant “committed the crime of

and an antecedent but for which the death would not have occurred; (a) The injection, inhalation or ingestion of the substance is

dispensing, or selling a substance is the cause of a death when:

purposes of this section, the person’s act of manufacturing, p. 5 5

39; see State v. Barton, 142 N.H. 391, 39 p. 5 5 (1997). defendant as a principal necessarily also alleges accomplice liability. Winward, 161 N.H. at 538- Even the words “in concert with” are not always required. An indictment that charges a 1 because it failed to set forth fully the applicable law of causation. See never held that an indictment for a results-defined crime was insufficient be set forth in an indictment sufficiently, it must be fully explained. We have element of the offense. use of the phrase “resulting in” apprised the defendant that causation is an We reject the defendant’s assertion that for the element of causation to controlled drug that the defendant dispensed. In the indictment at issue, the states that the victim’s death resulted from the victim’s ingestion of the 538-39 (2011), so too is an indictment under RSA 318-B:26, IX sufficient if it 1 defendant acted “in concert with” another, see State v. Winward, 161 N.H. 533, indictment is sufficient to charge accomplice liability if it merely states that a knowingly caused death of victim was sufficient). Similarly, just as an Darcy, 121 N.H. 220, 223 (1981) (manslaughter indictment alleging defendant

causation, that is, “death resulting,” has been met. constitute the law to be applied when determining whether the element of criminal liability may attach under this statute. RSA 318-B:26, IX(a) and (b) legal and proximate causation, “the law of causation -- i.e. proved, but rather explain further the kind of causation required before Regardless of whether a criminal statute specifically sets forth tests for properly viewed, RSA 318-B:26, IX(a) and (b) are not additional “elements” to be the existence of a causal link from the criminal act to the death.”). Thus, the crime of manslaughter. The State must prove, beyond a reasonable doubt, (1996); State v. Soucy, 139 N.H. 349, 3 p. 5 53 (1995) (“Causation is an element of see also Lamprey, 149 N.H. at 366; State v. Seymour, 140 N.H. 736, 746 misdemeanor.” Rogers v. State, 232 P.3d 1226, 1235 (Alaska Ct. App. 2010); proof of causation, from first-degree murder down to the most minor result for purposes of the criminal law -- applies to all offenses that require define when a defendant’s conduct will be deemed to have ‘caused’ a particular

formulations of “proximate” causation. See id. § 2.03(2)(b), (3)(b). (198 p. 5 5). RSA 318-B:2 p. 6 6, IX(b) sets forth one of the Model Penal Code’s formulation of “but-for” causation. Model Penal Code § 2.03(1)(a), at 253 364, 366 (2003). RSA 318-B:26, IX(a) sets forth the Model Penal Code’s Criminal Law § 6.4(a), at 466 (2d ed. 2003); see also State v. Lamprey, 149 N.H. “proximate” cause of the prohibited result. See 1 W. LaFave Substantive this, the defendant’s conduct must be both the “but-for” cause and the ingesting the controlled drug). For criminal liability to attach in crimes such as cause a specified result to occur (the victim’s death from injecting, inhaling or conduct (manufacturing, selling or dispensing a controlled drug), but also must To violate RSA 318-B:26, IX, a defendant must not only engage in certain 6

http://www.constitutionproject.org/pdf/34.pdf, at 52 n.107 (observing that Although Apprendi Reform of Sentencing Systems: A Background Report, an open question. See The Constitution Project, Principles for the Design and principle applies to other sentence enhancement factors or facts related thereto is (criticizing Almendarez-Torres, but declining to overrule it). Whether this recidivism need not be alleged in indictment); Apprendi, 530 U.S. at 489-90 States, 523 U.S. 224, 228 (1998) (sentence enhancement factors related to factors must be charged in indictment). But cf. Almendarez-Torres v. United (noting that federal courts uniformly have held that capital-sentence aggravating factors must be alleged in an indictment. See LaFave, supra § 19.3(a), at 252 upon Apprendi ’s reasoning, lower courts have ruled that certain sentencing

(observing that challenge to indictment was not before Apprendi In Apprendi court). n.3; see also 5 W. LaFave & a., Criminal Procedure § 19.2(e), at 239 (3d ed. 2007) sentence-enhancing factor from his indictment. See Apprendi, 530 U.S. at 477 in that case did not challenge his sentence based upon the omission of the in fact, the holding of Apprendi, nor could it have been given that the defendant than prior criminal convictions, had to be alleged in an indictment. This was not, in Apprendi, the United States Supreme Court held that sentencing factors, other reasonable doubt.” In Ouellette, 145 N.H. at 491, we erred when we stated that the fact of a prior conviction, “must be submitted to a jury, and proved beyond a the penalty for a crime beyond the prescribed statutory maximum,” other than under the Sixth Amendment to the Federal Constitution “any fact that increases

, 530 U.S. at 490, the United States Supreme Court held that

in State v. Ouellette, 145 N.H. 489, 491 (2000), may have engendered. a misreading of Apprendi v. New Jersey, 530 U.S. 4 p. 6 66 (2000), which our decision enhancement must be charged in the indictment.” His argument is based upon enacting a sentencing enhancement, the elements essential for invoking the The defendant asserts that “[e]ven if RSA 318-B:26[,] IX is viewed as

(2007) (setting forth requirements for accomplice liability). offense. State v. Duran, 158 N.H. 14 p. 6 6, 151 (2008); see RSA 626:8, III, IV offense; and (3) the accomplice shared the requisite mental state for the accomplice’s acts solicited, aided or attempted to aid another in committing the that: (1) the accomplice had the purpose to make the crime succeed; (2) the prove accomplice liability the State must prove, beyond a reasonable doubt, need only allege that he was the principal or acted “in concert” with another, to While to charge a defendant with accomplice liability an indictment, at most, doubt. Again, this is similar to establishing liability in the accomplice context. for causation set forth in RSA 318-B:26, IX(a) and (b) beyond a reasonable State concedes, to establish causation, the State must prove the requirements prove that the defendant’s act resulted in the victim’s death. Rather, as the However, this does not mean that to prove causation, the State need only statute] in that his death was too dependent on his alcohol consumption.” p. 7 Fosher’s ingestion of the heroin was the cause of his death pursuant to [the 318-B:26, IX], the evidence here was insufficient to support a finding that Marshall’s liability.” He continues, “Under the proper interpretation of [RSA dependent on Fosher’s alcohol consumption as to have a just bearing on burden of proving beyond a reasonable doubt “that the death was not too insufficient evidence. Specifically, he argues that the State failed to meet its motion to dismiss at the close of all the evidence because the State introduced 7 The defendant next contends that the trial court erred in denying his

defendant was not insufficient under the State Constitution.

circumstances, therefore, we conclude that the indictment against the the jury, and found to exist by proof beyond a reasonable doubt. Under these defendant caused Fosher’s death – was charged in the indictment, submitted to violated. The assumed enhancement factor – that the heroin dispensed by the conviction, to be alleged in an indictment. Here, however, this rule was not deciding, that the State Constitution requires any fact, other than a prior Nevertheless, for the purposes of this appeal, we will assume, without

was, thus, merely dicta. See id. stated the aggravating factor. Id. at 590. Our reference to Ouellette in Polk Although in Ouellette indictment, we disagreed, noting that the complaint against the defendant beyond the prescribed statutory maximum must be alleged in an indictment. principle that any fact, other than a prior conviction, must be alleged in an fact, other than a prior conviction, that increases the penalty for a crime Id. at 588. While the defendant asserted that our decision violated the that this was a material element that required proof of a culpable mental state. It is also an open question whether, under the State Constitution, any enforcement officer by increasing speed. Polk, 155 N.H. at 586. We disagreed mental state with respect to the element of attempting to elude pursuit by a law was whether the complaint was insufficient because it did not allege a culpable indictment was required at all. Ouellette, 145 N.H. at 490. In Polk, the issue enhancement factor had to be alleged in an indictment, but whether an dicta. In Ouellette, the issue was not whether a particular sentencing intimated that this was the law under the State Constitution, we did so only in

in on this ongoing debate. Federal Grand Jury Clause does not apply to the states; thus, we need not weigh factors must be alleged in the indictment”). As observed previously, however, the indictment, . . . it is so far unclear whether these new element-like sentencing while “it is clear that ‘elements’ of a federal crime must be alleged in the p. 8 State v. Flodin

isolation.

State v. Dodds

State and examine each evidentiary item in context, not in

language of the statute to discern legislative intent. include. Absent an ambiguity, we will not look beyond the

still consider the evidence in the light most favorable to the

might have said nor add words that it did not see fit to

conclusions except guilt. Under this standard, however, we

meaning. . . . We will neither consider what the legislature RSA 318-B:26, IX provides that a person who dispenses heroin is strictly

is solely circumstantial, it must exclude all rational

construe that language according to its plain and ordinary we look to the language of the statute itself, and, if possible, death was not . . . [t]oo remote in its occurrence as to have just bearing on the statute considered as a whole. When interpreting statutes, the defendant’s act of dispensing the heroin is the cause of death when “[t]he relevant to the circumstances of this case, subparagraph IX(b)(1) provides that found guilt beyond a reasonable doubt. When the evidence antecedent but for which [Fosher’s] death would not have occurred.” As is the cause of death when the “inhalation or ingestion of the [heroin] is an subparagraph IX(a) provides that the defendant’s act of dispensing the heroin resulting.” Specifically, and as relevant to the circumstances of this case, and IX(b)(2), language explaining the causation element of the offense, “death previously noted, paragraph IX also provides, in subparagraphs IX(a), IX(b)(1), liable for a death that results from the inhalation or ingestion of that drug. As

the fair import of their terms and to promote justice.”). of the legislature’s intent as expressed in the words of the (2007) (“All provisions of [the Criminal Code] shall be construed according to In matters of statutory interpretation, we are the final arbiters

, 159 N.H. 239, 244 (2009) (citations omitted); cf. RSA 625:3 from it in the light most favorable to the State, could have

N.H. 182, 185 (2011). of a statute is a question of law, which we review de fact, viewing all of the evidence and all reasonable inferences novo. State v. Rivera, 162 this issue requires our interpretation of RSA 318-B:26, IX. The interpretation

, 159 N.H. 358, 362 (2009) (quotation omitted). Resolution of

evidence, the defendant must prove that no rational trier of To prevail upon his challenge to the sufficiency of the

established. motion to dismiss based upon the sufficiency of the evidence is well Our standard of review of the trial court’s denial of the defendant’s and toxicology, testified that the combination of alcohol and heroin causes p. 9 death. David Nierenberg, M.D., the defense’s expert in clinical pharmacology that Fosher’s inadequate breathing led to brain damage, coma and, ultimately, brain activity and, in turn, a person’s “drive to breathe.” She further testified

both substances are central nervous system depressants, which suppress little bit of alcohol, and it’s that much more compelling.” She testified that heroin by itself is probably sufficient to explain [Fosher’s] death, then add a the result of the toxic effects of heroin and [alcohol].” She testified: “The performed the autopsy on Fosher’s body and determined that his “death was Jennie Duval, M.D., the New Hampshire Deputy Chief Medical Examiner,

not apply in this case. Consequently, the jury could have found that the “too dependent” exception did (definition of “unrelated” includes “discrete, disjoined, separate”). connected by reason of an established or discoverable relation”), 2507 (unabridged ed. 2002) (definition of “related” includes “having relationship : of alcohol as to have a just bearing on the defendant’s liability. See ingested. See, e.g., Webster’s Third New International Dictionary 1916 that Fosher’s death was not “too dependent” upon Fosher’s own consumption consumption was related to the effect of the heroin, which he inhaled or ordinary meaning, the jury could have found that Fosher’s alcohol The defendant argues that the State failed to present sufficient evidence IX(b)(2)). Construing the language of the statute according to its plain and ANN. § 2C:35-9b(2)(b), containing virtually identical language to RSA 318-B:26, subparagraph IX(b)(2) may refer to the decedent. A.2d 1283, 1289-90 (N.J. Super. Ct. App. Div. 1989) (construing N.J. STAT. assume, without deciding, that the “of another person” language in a just bearing on the defendant’s liability. See a third party, other than the defendant and the decedent. Consequently, we State in Interest of A.J., 556 to the inhalation or ingestion of the heroin or the effect subparagraph IX(b)(2) includes the decedent, or if it is intended to refer only to of the heroin, as to have dependent upon his own conduct, and note that neither party questions whether the phrase “of another person” in that conduct must have been unrelated 318-B:26, IX to apply in this case, however, Fosher’s death must have been too [heroin] or its effect, as to have a just bearing on the [defendant’s] liability.” We B:26, IX(b)(2). For the “too dependent” exception to the strict liability of RSA of another person which was unrelated to the . . . inhalation or ingestion of the the cause of death when “[t]he death was not . . . [t]oo dependent upon conduct RSA 318provides, in pertinent part, that the defendant’s act of dispensing the heroin is As relevant to the circumstances of this case, subparagraph IX(b)(2)

further address them. evidence was insufficient to satisfy these two subparagraphs, we need not [defendant’s] liability.” Because the defendant does not now contend that the related p. 10 statute did not apply in this case because Fosher’s consumption of alcohol was IX(b)(2), the jury could have found that the “too dependent” exception of the concerning subparagraph IX(b)(1). Based on our construction of subparagraph evidence to satisfy subparagraph IX(a) of the statute, and made no argument In sum, the defendant has conceded that the State introduced sufficient

as well to produce a fatal outcome.” would have died from that dose of heroin by itself, and it required the alcohol Dr. Nierenberg testified, “[I]t is extremely unlikely, extremely unlikely that he

be alive. Certainly the alcohol by itself, he would be alive. although unlikely, it’s possible that heroin by itself, he might

against the weight of the evidence as to this causation element.” that the heroin was the cause of Fosher’s death, so the jury’s “verdict was evidence. Specifically, he argues that the evidence was insufficient to prove motion to set aside the verdict, because it was against the weight of the Next, the defendant contends that the trial court erred in denying his

I can’t measure the contribution of the alcohol. I think,

438 (2009). to amend the statute as it sees fit. See, e.g., State v. McKeown, 159 N.H. 434, the legislature did not intend this interpretation of RSA 318-B:26, IX, it is free defendant’s act of dispensing heroin to Fosher caused his death. Of course, if heroin ingestion. Consequently, a rational juror could have found that the testified: death resulted from his consumption of alcohol and the related effect of his conclusively determine that the heroin alone caused Fosher’s death. Dr. Duval from it in the light most favorable to the State, could have found that Fosher’s the interaction of heroin and alcohol. Neither expert, however, was able to rational trier of fact, viewing all of the evidence and all reasonable inferences Dr. Nierenberg concurred with Dr. Duval’s opinion that Fosher died from Fosher’s consumption of alcohol played in his death, we cannot say that no Given our interpretation of the statute, and regardless of the precise role that worked together to cause his inadequate breathing that precipitated his death. to the effect of the heroin, in that the consumed alcohol and the heroin

morning he died, Fosher was purple and gasping for air. dramatically increases the risk of death. A witness testified that, on the amount of heroin to a patient who is already intoxicated with alcohol eventual sedation and slow breathing. He further testified that introducing any

central nervous system depression, which entails grogginess, sleepiness, and p. 11 State v. Spinale

court’s judgment. immaterial. In the doubtful cases we should defer to the trial would have reached the same or a different result is exercise of discretion. . . . Whether we, sitting as trial judges, was made without evidence or constituted an unsustainable is narrower. We will uphold the trial court’s decision unless it weight of the evidence, our scope of review of such a decision ruling upon a motion to set aside the verdict as against the

Because the trial court has greater discretion when

clearly failed to give the evidence its proper weight.

court should not disturb the jury’s findings unless the jury where a miscarriage of justice may have resulted. The trial the evidence preponderates heavily against the verdict and power to grant a new trial only in exceptional cases in which

should exercise its discretion with caution and invoke its before the trial court may set it aside. Thus, the trial court

. . . [T]he jury verdict must be an unreasonable one

. . . .

no reasonable jury could return.

verdict conclusively against the weight of the evidence is one determine whether a rational juror could have found guilt, a

than the other. Thus, in contrast to sufficiency where we

credible evidence supports one side of an issue or cause determination of the trier of fact that a greater amount of

but depends on its effect in inducing belief. It is basically a

amount of evidence. It is not determined by mathematics,

controlled drug with death resulting; the defendant did not object to those case. The trial court instructed the jury by defining the crime of dispensing a the defendant’s act of dispensing heroin to Fosher caused his death in this We have already determined that a rational juror could have found that evidence is its weight in probative value, not the quantity or

not relevant to the question of sufficiency. The weight of the

brackets, ellipses, and emphases omitted). depends upon the particular circumstances and is generally, 156 N.H. 456, 465-66 (2007) (quotations, citations,

that of sufficiency. The weight given to any evidence

of the evidence is a somewhat more subjective concept than judgment is against the weight of the evidence. The weight evidence, a trial court may nevertheless conclude that the

Although a verdict may be supported by sufficient not the cause of death. p. 12 A. Dr. Barbieri testified that the level of heroin alone was adopt the following facts as part of the record[:]

possible. The defendant moved for the trial court to court for the limited purpose of reconstructing the record to the extent receipt of brief memoranda from the parties, we remanded the case to the trial that a portion of the proceedings in this matter was not recorded. Following Subsequent to our acceptance of the defendant’s appeal, we were notified 12 Dr. Barbieri responded, “That’s right. I cannot say that.”

[Fosher would] be dead, right? any medical degree of certainty, if it was just the heroin that [A]nd this is the question, Doctor. I mean, you can’t say to

Constitution, Ball

question by defense counsel on cross-examination was: Barbieri’s cross-examination, however, were not recorded. The only recorded testimony on direct examination for the State. The first seven minutes of Dr. director at NMS Labs, provided approximately thirty-four minutes of expert Edward Barbieri, Ph.D, a forensic toxicologist and assistant laboratory

We first address the defendant’s due process claim under the State cannot satisfy his burden of showing that he was prejudiced by the omission. essential to the defendant’s ability to brief his arguments; consequently, he rights to due process.” The State counters that the missing testimony is not prejudices [his] ability to perfect his appeal in violation of his constitutional Amendments to the Federal Constitution, he contends that “[t]o do otherwise Part I, Article 15 of the State Constitution and the Fifth and Fourteenth necessary portion of his trial was lost and could not be reconstructed. Citing vacated, and his case remanded for a new trial, because the record of a id. at 232-33. The defendant next contends that both of his convictions must be

, 124 N.H. at 231, citing federal opinions for guidance only, V

defendant’s motion was an unsustainable exercise of discretion. return. Consequently, we cannot say that the trial court’s denial of the determination of guilt in this case was a verdict that no reasonable jury could JD, 2010 WL 987026 (D.N.H. Mar. 17, 2010). We cannot say that the jury’s N.H. 96, 100 (2008), habeas corpus denied, Silva v. Warden, No. 09-CV-388assume the jury followed the trial court’s instructions. See State v. Silva, 158 We assume, without deciding, that the jury instructions were correct, and we instructions, nor has he argued on appeal that the instructions were incorrect. p. 13 Barbieri’s testimony is correct, however, we have already found that there was Even if we were to assume that the defendant’s contention regarding Dr.

the alcohol, Fosher would have died. than once, that he could not say to any degree of medical certainty that but for defendant also characterized Dr. Barbieri as agreeing, when questioned more evidence that Fosher’s death was the result of heroin and alcohol. The defendant characterized Dr. Barbieri’s testimony as being consistent with the

In State v. Jenot

unsuccessfully moved to dismiss the charges against him. There, the State first points to the close of all the evidence, when the defendant sufficient guidance to glean that content from the existing transcript. The content of Dr. Barbieri’s non-recorded testimony, thus providing this court with The State contends that, during trial, both parties characterized the

State’s objection “more accurately reflects the overall testimony of Dr. Barbieri.” recollection of the testimony,” and it noted that paragraph thirteen of the defendant’s motion, “as the request does not comport with the Court’s seven minutes of Dr. Barbieri’s cross-examination. Further, it denied The trial court determined that it was not possible to reconstruct the missing

Dr. Barbieri. A certainty that the doctor never testified to. statements but eliminates the certainty that they attribute to

292 F.3d at 97 n.6 (quotation omitted). the points that the defense is trying to cover in its two sufficient completeness to permit proper consideration of his claims.” Smith, but only requires that a criminal appellant be provided with a record of Circuit noted that “due process does not require a full verbatim trial transcript, record.” Jenot, 158 N.H. at 183; see Smith, 292 F.3d at 97. In Smith, the First specific prejudice to his appeal resulting from the incompleteness of the federal circuits that, in order to obtain a new trial, a “defendant must show be persuasive, we agreed with the State and the majority rule among the Court of Appeals in United States v. Smith, 292 F.3d 90, 98 (1st Cir. 2002), to Jenot, 158 N.H. 181, 183 (2008). Finding the reasoning of the First Circuit reversal, in accordance with a minority view among federal circuits. State v. appellate counsel, the loss of the transcript from the first day of trial required that he’d (Fosher) be dead. . . . This statement alone covers, the defendant argued that, because he obtained new say with any medical degree of certainty, if it was just heroin,

What Dr. Barbieri did agree on was that he could not

The State’s objection included paragraph thirteen, which read:

cause of death. That it was not one or the other. B. That he agreed that both alcohol and heroin was the p. 14 14

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

Constitution under these circumstances, see As the State Constitution provides at least as much protection as the Federal specific prejudice to his appeal resulting from the incompleteness of the record. under the State Constitution, as he has not carried his burden of showing In sum, we conclude that the defendant was not denied due process

stolen property. See Affirmed cross-examination testimony has any relevance to his conviction for receiving. has the defendant demonstrated, or even argued, how Dr. Barbieri’s missing 292 F.3d at 97, we reach the same result under the Federal Constitution. “[g]iven the relevance of such testimony to [his] appeal.” At no time, however, Barbieri’s testimony requires that this court vacate both of his convictions, Jenot, 158 N.H. at 183-84; Smith, Finally, we note the defendant’s argument that the absence of Dr.

briefed are deemed waived).

absence of a complete record of Dr. Barbieri’s cross-examination testimony. the defendant has shown specific prejudice to his appeal resulting from the sufficient evidence to support the verdict. Consequently, we cannot say that