2011-809, State of New Hampshire v. David McLeod

remand. intercept ion, see RSA 570 - A:6 (2001). We reverse in part, vacate in part, and testimony and to suppress an audio - recording of a one - party telephonic J.) granting motions of the defendant, David McLeod, to preclude certain expert CONBOY, J. The State appeals orders of the Superior Court (Wageling,

on the brief and orally, for the defendant. Step hanie C. Hausman, senior assistant appellate defender, of Concord,

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Janice K. Rundles, senior assistant

No. 2011 - 809 Cheshire

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, Concor d, 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 p. 2 22 as 2

that she saw low flames around the couch, did not rememb er coughing, and smoking a cigarette but that she rarely smoked in the bedroom. She stated started the fire. Walker stated that she did not know whether she had been Walker. A police officer told her that the police suspected the defendant had After receiving this information, Norton and the police again interviewed

denied involvement in the fire. going up to [Bussieres’s] to get some coke and torch the place.” T he defendant Another witness stated that the defe ndant commented before the fire, “I’m c ompany.” Several other witnesses recounted hearing similar statements. the defendant said, “How’d I do[?] [M] ake sure you go to the insurance had impl icated the defendant in starting the fire. O ne witness told officers that Thereafter, the Keene Police Department reported that certain witnesses

the cause of the fire was “smoking materials.” initial interviews with Walker, Norton reached the preliminary conclusion that could not put out the fire, she ra n out of her apartment. Based, in part, on the and looked at the bed, however, she “just saw flames.” After realizing that she bathroom, where she filled a coffee pot with water. When she left the bathroom her hands, bu t the flames intensified. She stated that she walked to the nearby wall completely engulfed in flames. She tried to put out the fire with asleep with a burning cigarette, and that she awoke to find her bed and the When first interviewed by police, she stated that she assumed she fell

started. to where she saw flames when she awoke, and how she believed the f ire o fficers and Fire Investigator Thomas Norton, Walker gave differing accounts as in her apartment. Over the course of s everal interviews with Keene p olice In the early morning hours of Janua ry 14, Walker awoke to find flames

heavily during the night. January 13 and midnight, and went to her own apartment. Walker drank nearby. Walker returned from Colburn’s apartment between 11 p.m. on party between 7 p.m. and 9 p.m. to visit Linda Colburn, a friend who lived hosted a party, attended by b oth Walker and the defendant. Walker left the On the night before the fire, Ed Bussieres, who lived on the first floor,

inhalation. the fire; however, four members of a family living in the building died of smoke Walker. Walker and several other occupants of the building were unharmed by January 14, 1989. The fire began in the second floor apartment of Sandra case arises from a fire that occurred at an apartment building in Keene on The following facts are derived from the record. Thi s heretofore “cold”

I. Facts and Procedural History p. 3 3

“accepted scientific methodology in formulating and testing their hypotheses.” analysis. The defendant also argued that the State’s experts did not apply “vague, ambiguous and inconsistent” a s to be an unreliable basis for scientific hearsay statements. The defendant argued that Walker’s statements were so Co x, and Pijaca on the ground that their opinions are based up on Walker’s B efore trial, the defendant moved to preclude the testimony of Norton,

II. Expert Testimony

second degree murder, see RSA 6 p. 3 30:1 - b, I(b) (2007). cause of the fire. In July 2010, the defendant was indicted on four counts of Cox’s opinions and report, and agreed with his conclusions as to the origin and act with an open flame, rather than a smoldering cigarette. Pijaca reviewed to the couch only. H e agreed that the fire was caused by a human incendiary origin of the fire was the area of the bed and the couch, but could not narrow it applicable scientific standards of reliabi lity. Cox further concluded that the definitive treatise to which fire investigators look in order to comply with the Investigations (NFPA 921), which was developed after 1989. NFPA 921 is the the Nation al Fire Protection Agency’s Guide for Fire and Explosion and conclusions were consistent with the current scientific method outlined in investigate Norton’s conclusions. Cox determined that Norton’s methodology Because fire science had changed since 1989, Cox agreed to review and

inc idents. Cox and John Pijaca. ATF is the primary federal agency that investigates fire States Alcohol, Tobacco and Firearms Bureau (ATF): Special Agent s Andrew including the couch. T he Cold Case Unit hired two experts from the United died and some of the evidence related t o the fire was lost or destroyed, reinvestigated the fire. Prior to the initiation of the new investigation, Walker In 2010, some twenty - one years later, the State ’s Cold Case Unit

charges against the defendant. the fire. Following the grand jury ’s invest igation, the State did not pursue The State then assembled a grand jury for the purpose of investigating

“smoking materials.” caused it to ignite. He ruled out the possibility the fire was caused by “incendiary act” – that is, that the introduc tion of an open flame to the couch ultimately concluded that the fire started on the couch and was t he result of an much smoke that he had to stop the experiment after six minutes. Norton H e applied a f lame to a piece of stuffing from Walker’s couch, which created so Norton went back to the scene, and conducted a “controlled burn test.”

barely knew what was going on around her and that she was “very hazy.” that her eyes were burning a little bit, but not badly. She also said that she p. 4 4

would violate the [d]e fend ant’s [Confrontation Clause] rights.” The trial court t estimonial statements, allowing the experts to testify about the st atements that “[b]ecause the experts’ opinions were not independent from Walker’s statements under the Rules of Evidence or NFPA 921. Instead, it concluded The trial court did not rule that the experts improperly relied up on Walk er’s precluding admission of the State’s experts’ opinions and Walker’s statements. Following the evidentiary hearings, t he trial court issued an order

inconsistent. Norton conceded on cross - examination that some of Walker ’s statements were

would cause injury or death. amounts of smoke and carbon monoxide are produced[,] which over an hour to erupt into flames. During this time[,] large materials fire starting in a couch stuffed with cotton fib[ers] takes stage of burning, for a cigarette fire, she describes. Smoking smoke inhalation and burns. The reason for this is the advanced expected that Walker would have succ [u] mbed or suffered from [I]f the fire were the result of smoking materials[,] it would be

resulted from an open flame. According to Norton: physical condition in ruling out a “smoldering fire” and concluding that the fire T he experts testified that they took into account Walker’s statements and

the field to rely up o n witness statements. component of fire investigation. Norton testified that it is common practice in investigation, and that it provides that witness interviews are a necessary an investigator to consider witness statements at every step of the and their prior training and experience. They testified that NFPA 921 requires physical evidence, such as burn patterns at the scene; field tests; fire studies; fire, they relied up on: witn ess statements; reported witness demeanor; testified that in arriving at their conclusions as to the cause and origin of the Pijaca testified and were subject to cr oss - examination. In relevant part, the y The trial court he ld evidentiary hearings at which Norton, Cox, and

Constitutions. confront witnesses against hi m as guaranteed by the Federal and State Walker’s statements, arguing that their introduction would violate his right to testimony of its experts. Th e defendant sought to preclude the introduction of T h e State moved, in limine, to admit Walker’s statements through the

New Hampshire Rules of Evidence p. 4 402, 403, 702, and 703. The State objected. P art I, Article 1 p. 5 5 of the New Hampshire Constitution; RSA 516:29 - a (2007); and to the Sixth and Fourteenth Amendments to the United States Constitution; Finally, t he defendant asserted that the opinions were in admissible pursuant 5

such challenge involves eliciting Walker’s statements. defendant is free to challenge those opinions on cross - examination, even if examinations, the experts may nonetheless offer their opinions, and the Walker’s statements are not admissibl e through the experts’ direct and not for the “truth” of the statements. Alternatively, the State argues that if because they will be offered only to explain the bases of the experts’ opinions, testimonial statements ar e admissible through the experts’ direct examinations The State advances a two - part argument. First, it asserts that Walker’s

e ntered by the State substantively against the defendant. See id. cross - examine Walker before her death; thus, her statements may not be p. 5 541 U.S. 36, 68 (2004). Here, the defendant did not have a n opportunity to a prior opportunity to cross - examine the witness. See Crawford v. Washington, an absent witness only when the witness is unavailable and the defendant had The State may admit against a d efendant the “testimonial statements” of

are testimonial. prosecution.” Id. at 822. Here, t he State concedes that Walker’s statements establish or prove past events potentially relevant to later criminal circumstances indica te “that the primary purpose of the interrogation is to 821 (2006). A statement in response to interrogation is “testimonial” when meaning of the Confrontation Clause.” Davis v. Washington, p. 5 547 U.S. 813, [testimonial] statements... cause the declarant to be a ‘witness’ within the on the States.” Michigan v. Bryant, 131 S. Ct. 1143, 1152 (2011). “Onl y him.” “The Fourteenth Amendment renders the [Confrontation] Clause binding accused shall enjoy the right . . . to be confronted with the witnesses against The Sixth Amendment provides: “In all criminal prosecutions, the

State’s argument s under the Federal Constitution. Id. at 278 - 79. the defendant’s rights under the Federal Constitution, we first address the Brooks, 164 N.H. 272, 278 (2012). Because the parties’ arguments center on p. 5 516:29 - a. We review Confrontation Clause challenges de novo. State v. opinions inadmissible under the New Hampshire Rules of Evidence and RSA violate the defendant’s right s to confrontation, and by also find ing the experts’ that the trial court erred by concluding tha t allowi ng its experts to testify would in criminal cases), t he State appealed the trial court’s ruling. The State argues Pursuant to RSA 606:10 (2001) (permitting certain appeals by the State

and RSA p. 5 51 p. 6 6:29 - a, I(a). facts or data to support their conclusions, as required b y the Rules of Evidence T he court found that without Walker’s statements, the e xperts lacked sufficient placed in an untenable position of having to introduce the statements himself.” the experts’ statements’ accuracy and rel iability, the “[d]efendant [would] be a threshold level of inquiry of the experts, and in order to “get to the heart” of reasoned that without Walker’s statements, the defendant could not engage in 6

its experts. See Wi lliams, 132 S. Ct. at 22 p. 6 68 - 69. permitted to introduce Walker’s statements through the direct examination of that the defendant’s confrontation rights would be violated were the State expert’s opinion is offered for the truth of the matter asserted”). Thus, we agree an out - of - court statement that is disclosed to the fact - finder as the basis for an P.3d 435, 439 - 40 (N.M. 2013) (reading Williams to support the principle “that Kaye & a., supra § 4.11.6, at 24 (Supp. 2012); see also State v. Navarette, 294 A Treatise on Evidence: Expert Evidence § 4.10.1, at 196 - 97 (2d e d. 2011)); see Id. at 2268 - 69 (Kagan, J., dissenting) (quoting D. Kaye & a., The New Wigmore:

implausible,” “nonsense,” and “sheer fiction.” fa ctfinder evaluate an expert’s opinion “very weak,” “factually “basis evidence” comes in not for its truth, but only to help the modern treatise on evidence variously calls the idea that such out - of - court statement on which it relies. That is why the principal witness’s c onclusion, the factfinder must assess the truth of the it is probably true; if not, not. So to determine the validity of the on its truth. If the statement is true, then the conclusion based on for a conclusion, because the statement’s utility is then dependent expert or otherwise, repeats an out - of - court statement as the basis The situation could not be more different when a witness,

at 225 p. 6 6 - 57, 2268 - 70. T he dissent explained: supporting the basis of an expert’s opinion is not offered for its truth. See id. and the four dissenting Justices rejected the plurality’s rationale that evidence asserted. Id. at 2235 - 36. Justice Tho mas, however, in his concurring opinion, used to support the expert’s opinion and not for the truth of the matter See id. at 2228 - 31. T he plurality concluded that the testimonial evidence was profil e matched a similar DNA profile generated by a non - testifying scientist. Court upheld the admission of expert testimony that the defendant’s DNA Williams v. Illinois, 132 S. Ct. 2221 (2012). In Williams, a plurality of the We reject this argument in light of the Supreme Court’s recent opinion in

(2012). 92 (10th Cir. 2010), judgment vacated by Pablo v. United States, 133 S. Ct. 5 p. 6 6 right to confrontation. See, e.g., United States v. Pablo, 625 F.3d 1285, 1291 truth of the assertions in the statements and, thus, do not violat e a defendant’s admitted to support an expert ’s conclusions are not offered to establish the courts have relied up on this statement to conclude that testimonial statements matter asserted.” Id. at 60 n.9. The State also cites several cases in which testimonial statements for purposes other than establishing the truth of the Supreme Court noted, “The [Confrontation] Clause... does not bar the use of As to the first part o f its argument, the State cites Crawford, in which the p. 7 7

Id. One of the analysts at the lab oratory, Curtis Caylor, prepared a report and sent to the New Mexico Department of Health, Scie ntific Laboratory Division. influence of liquor (DW I). A sample of the defendant’s blood was drawn and 2 p. 7 705, 2710 (2011), the defendan t was arrested for driving while under the “testimonial statements” of others. I n Bullcoming v. New Mexico, 131 S. Ct. extent to which an expert, in rendering an opinion, may testify about Since Crawford, the United States Supreme Court has considered the

dec larants. the extent to which an expert may rely on testimonial statements of unavai lable 541 U.S. at 68. Crawford does not, however, offer guidance on the question of relating the testimonial statements of an unavailable declarant. See Crawford, applicable to lay witnesses. Crawford prohibits lay witnesse s from simply the opinions of experts, however, requires a different analysis than that “testimonial statements” under Crawford. The import of those statements on R. Ev. p. 7 705. F requently, “facts or data” relied upon by experts will qualify as reason therefor without prior disclosure of the underlying facts or data.” N.H. Further, “[t] he expert may testify in terms of opinion or inference and give

be admissible in evidence. opinions or inferences upon the s ubject, the facts or data need not reasonably relied upon by experts in the particular field in forming known to the expert at or before the hearing. If of a type bases an opinion or inference may be those perceived by or made The facts or data in the particu lar case upon which an expert

Evidence p. 7 703 provides: the parameters of permissible expert testimony. New Hampshire Rule of This case illuminates the intersection of the right to confrontation and

satisfied tha t the State has preserved the argument for review. in chief.” The trial court then addressed the State’s argument. Thus, we are it will achieve [its] purpose by not introducing [Walker’s statements] in its case 311, 318 (1999). Here, the trial court stated, “The State appears to argue that given an opportunity to correct the asserted error. State v. Fischer, 143 N.H. that the trial court is made aware of the substance of an objection and thus this argument below. The purpose of our preservation requirement is to ensure As a preliminary matter, t he defendant maintains th at the State waived

opinion [can be] circumscribed.” We agree. opinion, “the expert’s ability to recount the underlying basis for his or her should be excluded. Rather, so long as the expert can proffer a relevant not admissible on direct examination does n ot mean that the expert’s o pinion The State contends t hat merely because a witness’s testimonial statements are T he State ’s alternative argument, however, stands on a d ifferent footing. p. 8 8

create evidence for use at trial, see id. at 2242 - 44. Thus, Wi lliams is not primary purpose of the report was not to accuse a particular individual or to evidence was not introduced for its truth, id. at 2236, 2239 - 40; and the constitute a Confrontation Clause v iolation for two independent reasons: the 30, 2236. The plurality concluded that admission of the evidence did not evidence during the direct examination of the testifying expert. See id. at 2229 of the r eport prepared by the non - testifying scientist was admitted into 132 S. Ct. at 2233, it did not, in fact, do so. Rather, in Williams, the substance plurality in Williams stated that it was confronting this question, see Williams, their own opinions as to t he cause and origin of the fire? A lthough the exp erts rely up on Walker’s unadmitted testimonial statements in r endering That is the question before us here: to what extent may the State’s

themselves admitted as evidence.” Id. others’ testimonial statements if the testimonial statements were not to determine the constitutionality of allowing an expert witness to discuss evidence.” Id. She wrote further, “W e would face a different question if asked underlying testimonial reports that were not themselves admitted into in which an expert witness was asked for his independent opinion about did not present.” Id. at 2722. In relevant part, she stated, “[T] his is not a case J., concurring), and list ed some of the factual circumstances “that th[e] case “emphasize [d] the li mit ed reach of the Court’s opinion,” i d. at 2719 (Sotomayor, circumstances it did not address. In her concurrence, Justice Sotomayor however, not only for the rule it provides, but also for the factual vi olates the Confrontation Clause. See id. at 2710. Bullcoming is noteworthy, testimonial certification through “surrogate testimony” of a nother expert however, is limited: t he Court in Bullcoming held only that admitting a Bullcoming ’s guidance as to the permissible scope of expert testimony,

certifying analyst’s part.” Id. to what Caylor knew or observed; nor could it “expose any lapse s or lies on the “surrogate testimony” impermissible because such testimony could not attest knowledgeable as to the laboratory procedures. See id. at 2715. It found the analyst should be permitted to c onvey Caylor’s opinion because he was confrontation. Id. at 2716 - 1 p. 8 8. I t rejected the argument that the testifying entering the report through this analyst violated the defendant’s right to no r reviewed” Caylor’s analysis. Id. at 2712. The Court concluded that State introduce d the report through a third analyst “who had neither observed prosecution. Id. However, at trial the State did not call Caylor; rather, the The State used Caylor’s report to support an aggravated DW I

lab oratory procedures. Id. at 2711. that Caylor was qualified to conduct the BAC test and that he followed See id. at 2710 - 11. A second analyst reviewed Caylor’s analysis and certified certified his finding that the defendant’s blood alcohol content (BAC) was .21. p. 9 9

a transmitter for testimonial hearsay. As long as he is applying his is, in essence, giving an independent judgment or merely acting as hearsay is a matter of degree. The question is whether the expert around Crawford. For this reason, an expert’s use of testimonial jury in the guise of expert opinion would provide an end run cooperating witnesses and confidential informants directly to the a witness simpl y to parrot out - of - court testimonial statements of opinion sheds light on some specialized factual situation. Allowing testimonial hearsay, rather than as a true expert whose considered witness is used as little more than a conduit or transmitter for bar if offered directly on ly bec omes a problem where the [expert] An expert witness’s reliance on evidence that Crawford would

court explained: testimonial hearsay, and were subject to cross - examination,” i d. at 636. T he prese nt[ed] their own independent judgments, rather than merely transmitting was no Confrontation Clause violation because the “expert witnesses upon by the experts were testimonial, see id. at 635, the court held that there the Confrontation Clause. See id. After assuming that the statements relied opinions based up on testimonial statements of others v iolated his rights under T he defendant in Johnson argued that allowing the experts to provide

of the organizatio n, informant information, and other seized evidence. Id. based his conclusions u p on the context of the conversations, the known nature speech,” i d. (quotation and brackets omitted). One expert explained that he were able to decode the “conversations by looking for unusual patterns of terms... were actua lly code words for narcotics,” i d. at 634, and that they Id. at 633 - 34. The experts testified that “se veral seemingly innocuo us expert witnesses who had extensive training and experience in drug trafficking. 625, 633 (4th Cir. 200 p. 9 9). To help interpret the calls, the government called various members of [a] drug conspiracy.” United States v. Johnson, 587 F.3d States v. J ohnson, “the government... intercepted telephone calls between Other courts, however, have squarely addressed the issue. In United

conclusions based upon his review of the raw data”). statements of a non - testifying witness, rather than his own opinio ns or “statements would violate the Confrontation Clause only if he recited the violation of the Confrontation Clause,” and that the admission of his based upon his own review of raw data, “his statements may not have been a (stating, in dicta, that if the expert’s statements at trial about test results were address the issue. But see State v. Dilboy, 163 N.H. 760, 766 - 67 (2012) expert may ‘rely’ upon testimonial hearsay”). Nor have we had occasion to not, with majority support, dispense with the issue of to what extent a[n] . . . (finding Williams “a tenuous and highly distinguishable opinion which does helpful on this issue. See State v. Kennedy, 735 S.E.2d p. 9 905, 922 (W. Va. 2012) p. 10 10

merely as “transmitter [s] for testimonial hearsay.” Johnson, 587 F.3d at 63 5. their “own training a nd experience” to Walker’s statements or have acted trial. Thus, h ere, we must determine whether the State’s experts have applied confrontation rights and the valuable role expert te stimony plays in a criminal conclude that this approach strikes the proper balance between a defendant’s even if that judgment is based upon inadmissible testimonial hearsay. We violated when an expert testifies regarding his or her independent judgment, We agree with the proposition that the Confrontation Clause is not

has exercised independent judgment.”); Kennedy, 735 S.E.2d at 922. nontestifying expert’ s testimonial statement, so long as the testifying expert Ct. App. 2013) (“[A] testifying expert may base his or he r op inion on a subject to the rules of evidence.”); State v. Manion, 295 P.3d 270, 273 (Wash. or a mere parroting of the report’ s findings, then that testimony is admissible data to a reliance on the conclusions an d opinions of the author of the autopsy line from the formation of an independent opinion based on underlying raw be based on inadmissible evidence, and until such expert testimony crosses the Gonzales, 274 P.3d 151, 159 (N.M. Ct. App. 2012) (“An expert’ s testimony may training and experience to” testimonial evidence (quotation omitted)); State v. “independent judgment” that is “reached by application of [the expert’s] Williams, 740 F. Supp. 2d 4, 9 - p. 10 10 (D.D.C. 2010) (expert may testify to likelihood of a Sixth Amendment infraction is minimal.”); United States v. independent conclusion, albeit on the basis of inadmissible evidence, the Where an expert witness employs her training and experience to forge an Gonz á lez, 664 F.3d 1, 5 (1st Cir. 2011) (“[T]he assessment is one of degree. Id. (quotation s and citation omitted); s ee also, e.g., United States v. Ramos -

assistance in a great many cases. broad swaths of expert testimony, depriving juries of valuable Crawford a s far as [the defendant] proposes, we would disqualify qualifies as testimonial under Crawford. Were we to push field. Some of the information experts typically consider surely is of a type reasonably relied upon by experts in the particular permitted t o consider otherwise inadmissible evidence as long as it determine a fact in issue. To better fulfill t his role, experts are often assist the trier of fact to understand the evidence or to system. As recognized in Federal Rule of Evidence 702, experts [E]xpert witness es play a valuable role in our criminal justice

Id. at 635 (q uotations and citations omitted). T he court further noted:

be tested through cross - examination. problem. The expert’s opinion will be an original product that can independent judgment, there will typically be no Crawford training and experience to the sources before him and reaching a n p. 11 11

scene and field tests, as wel l as witness interviews. Norton testified that it is evidence in reaching his conclusions, including physical evidence from the “transmitters” of testimonial hearsay. Norton relied up on several types of jud gment to Walker’s statements a nd that they are not acting as mere we conclude that the State’s experts have each applied their indep endent and quantity of the expert’s reliance.” Ramos - González, 664 F.3d at 5. Here, hearsay... necessarily involve [s] a case - by - case assessment as to the quality 703, which permits expert reliance on other wise inadmissible testimonial forbid the introduction of testimonial hearsay as evidence in itself – with Rule “[T]he reconciliation of Crawford, Melendez - Diaz, and Bullcoming – which

defendant’s right s under the Confrontation Clause. Id. (emphasis added). that can be t ested through cross - examination,” and thus will not violate a independent judgment,... [t]he expert’s opinion will be an original product training and experience to the sources before him and reach[es] an before him. See Johnson, 587 F.3d at 635. So long as the ex pert applies “his whether the expert brings his own independent judgment to bear on the facts a manner that is independent from testimonial statements; rather, it is Second, the question is no t whether an expert can explain his opi nion in

U.S. 56 (1980)). thus, applying the “indicia of reliability test” set forth in Ohio v. Roberts, 448 (noting that we have not adopted Crawford under our State Constitution and, recounts “historical events”). B ut see State v. Ata, 158 N.H. 406, 409 (2009) testimony that is the “result of neutral, scientific testing” and testimony that (rejecting any distinction, for Confrontation Clause purposes, between others. See Melendez - Diaz v. Massachusetts, 557 U.S. 305, 317 - 18 (2009) some forms of testimonial hearsay are considered more inherently reliable t han jurisprudence under the Federal Constitution forecloses an analysis in which statements. However, the Supreme Court’s Confrontation Clause experience; rather, it focused upon the r eliability of the underlying testimonial resulted from the exercise of independent judgment based upon training and reasons. First, it did not address the extent to which the experts’ opinions The trial court misconstrued Johnson and erred in its analysis for two

comply with the requirements of the Confrontation Clause.” (Emphasis added.) from the subjective observations and potential bias of another, then they “[i] f... the experts’ opinions can be explained in a manner that is independent they are fraught with error and bias.” Th e trial court conclu ded that statements which require so much subjective knowledge and observation that test data or machine readouts,” and on the other end “are testimonial spectrum are “testimonial s tatements [that] are nothing more than technica l another as a spectrum.” It then stated, however, that on one end of the consider the degree of an expert’s reliance on the testimonial statements of C iting Johnson, t he trial court stated that “it is helpful... to also p. 12 12

R. Ev. 703 (data underlying expert opinion need not be admissible). Here, the to disclose the underlying facts or data on cross - examination.” See als o N.H. disclosure of the underlying facts or data.... The expert may... be required testify in terms of opinion or inf erence and give reason therefor without prior scenario address ed by New Hampshire Rule of Evidence 705: “[An] expert may Int’l Speedway, 151 N.H. 409, 418 (2004). Further, t his is precisely the principles. See, e.g., Barbosa, 933 N.E.2d at 106 - 07; see also Carignan v. N.H. statements on cross - examin ation – is based upon well - established legal examination of a State’s expert, but allowing a defendant to explore those in the form of testimonial statements of an unavailable witness on direct See N.H. R. Ev. 403. We disagree. Our holding – d isallowing “basis evidence” the jury and, thus, their testimony would be more prejudicial than probative. statements, the experts would be providing only meaningless conclusions to The defendant argues that without the introduction of Walker’s

N.H. R. Ev. 705. basis for the expert’s opinion”), cert. denied, 131 S. Ct. 2441 (2011); see also examinatio n, defendant can “open the door... to testimony regarding the opinion and matters of which the expert has personal knowledge”; on cross - 2010) (prosecution’s expert is limited on direct examination to “the expert’s examination. See Commonwealth v. Barbosa, 9 33 N.E. 2d 93, 106 - 07 (Mass. opinions, so long as they do not testify as to Walker’s statements on direct Confrontation Clause does not prohibit them from testifying regarding their light on [a] specialized factual situation.” Johnson, 587 F.3d at 635. Thus, the Walker; rather, t hey are “true expert[s] whose considered opinion[s] shed[] acting as mere “transmitters” of testimonial statements of others, including experts have applied their own knowledge to the facts before them, they are not produce substantial amounts of smoke before turning to flame. B ecause the knowledge that smoldering fires (e.g., fires caused by “smoking materials”) much coughing take on sign ificance only when coupled with the experts’ statements that she was able to see across the room and did not experience absence of the experts’ knowledge of fire science. For example, Walker’s s tatements have little significance as to the cause and origin of the fire in the conclusions based upon the facts disclosed by the prior investigation. Walker’s Further, i t is apparent that the experts reached their own independent

fire experts to consider witness statements. statements of other witnesses. Cox testified that NFPA 921 specifically requires physical evidence and fire studies, as well as Walker’s statements and the Cox and Pijaca also relied up on several types of evidence, including

applied his knowledge of fire science and his experience. reaching his opinions, he also considered the fact that she was unharmed, and Further, a lthough Norton assumed the truth of Walker’s statements, in common practice in the fire science field to rely up on witness statements. p. 13 13

Id. (quotation omitted). impairs to an appreciable extent any of the policies behind the rights involved.” (quotation omitted). “The threshold q uestion is whether compelling the election Constitution does not by that token forbid requiring him to choose.” Id. constitutional dimensions, to follow whichever course he chooses, the (197 5) (quotations omitted). “Although a defendant may have a right, even of judgments as to which course to follow.” State v. Williams, 115 N.H. 437, 442 the legal system, is replete with situations requiring the making of difficult defendant’s rights are thereby violated. “The criminal process, like the rest of examination is “forced” upon the defendant, we do not conclu de that the Even if introduction of Walker’s testimonial statements on cross -

evidence that he elicits on cross - examination.”). right to confront the witnesses against him is violated by the admission of Barbosa, 933 N.E.2d at 106 (“A defendant... cannot reasonably claim that hi s the Confrontation Clause is not violated. See Crawford, 541 U.S. at 60 n.9; c f. cross - examination, Walker’s statements would not be offered for their truth, the fact that the witness’ tri al testimony is less believab le.”). Because, on evidence... is admitted not for the truth of the matter asserted but solely f or United States v. Hudson, 970 F.2d 948, 956 (1st Cir. 1992) (“Imp eachment statements would be for the purpose o f impeaching the experts’ opinions. Cf. 69 (Kagan, J., dissenting). On cross - examination, elicitation of Walker’s understood as being offered for their truth. See Williams, p. 13 132 S. Ct. at 2268 offered on direct examination, the testimonial statements could only be cross - examine the experts and his right to confront Walker. We disagree. If statements puts him in the untenable position of choosing between his right to examination regarding their opinions without testifying as to Walker’s The defendant argues that allowing the experts to tes tify on direct

106 - 07. whatever detail it deems useful to impeach them. See Barbosa, 933 N.E.2d at defense can explore the basis of those conclusions on cross - examination in 20 p. 13 13), available at https:/ /nm supremecourt.nmcourts.gov/writs/writ.pdf. The indep endently derived conclusions.”), cert. granted, No. 34,009 (N.M. March 1, inadmissible, provided that the expert testifies only to his or her own, been made aware, even when those facts or data would otherwise be expert, scientific testimony based upon facts or data of which the exp ert has Confrontation Clause and under the Federal Rule of Evidence 703... is App. Dec. 27, 2012) (“What has emerged as clearly permissible under the P.3d __, __, 2013 NMCA 038, No. 3 1, p. 14 141, 2012 WL 6934492, at * 10 (N.M. Ct. otherwise inadmissible evidence in formulating his opinion”); State v. Huettl, __ not alter an expert witness’s ability to rely on (without repeating to the jury) States v. Henry, 47 2 F.3d 910, 914 (D.C. Cir. 2007) (noting that Crawford “did statements, among other evidence, in reaching their conclusions. See United experts may testify, on direct examination, that they relied upon witness 14

methods and principles. Accordingly, we make no ruling as to those issues. did not a ddre ss the defendant’s challenges to the State’s experts’ scientific remand for reconsideration in light of this opinion. We note that the trial court opinions had to be “independent from” Walker’s statements, we vacate it and was based entirely upon the trial court’s mistaken conclusion that the experts’ 516:29 - a, as well as Rules of Evidence 403, 702 a nd 703. Because this ruling would violate not only the defendant’s rights to confronta tion, but also RSA As a final matter, t he trial court found that allowing the experts to testify

Ohio v. Roberts, 448 U.S. 56 (1980).” Brooks, 164 N.H. a t 282. applicability of the Confrontation Clause test we have adopted – na mely, that of Legere, 157 N.H. 746, 750 (2008). Nor have the parties “address [ed] the Crawfor d as applicable to claims under the State Constitution.” State v. note that “we have not adopted, and neither party argues that we should adopt, violation, based upon federal jurisprudence, must necessarily be vacated. W e constitutional violation, the trial court’ s finding of a s tate constitutional a violation of the State Constitution. Because we have fou nd no federal Thus, it analyzed only Sixth Amendment cases, including Crawford, in finding Constitution are co - extensive with his rights under the Federal Constitution. The trial court also ruled tha t the defendant’s rights under the State

We, therefore, reverse that ruling. defendant’s rights under the Confrontation Clause to the Federal Constitution. to allow the State’s experts to testify regarding their opinions would violate the Based up on the foregoing, we ho ld that the trial co urt erred in ruling that

107 - 08. can be test ed through cross - examination.” Id.; see als o Barbosa, 933 N.E.2d at testimonial statements, “[t]he expert’s opi nion will be an original product that renders his own in dependent judgment a s to the significance of others’ acting as a mere transmitter of testimonial hearsay. See id. When an expert elicit underlying testimonial statements through an expert witness who is not purpose is not com promised by the defendant’s choice, “forced” or otherwise, to transmitters of the testimony of others. See Johnson, 587 F.3d at 635. This the Confrontation Clause is meant to prohibit experts from acting merely as 2012) (quoting Bryant, 131 S. Ct. at 1 p. 15 152). I n the context of expert testimony, evidence against the accused.’” Peak v. Webb, 673 F.3d 465, 478 (6th Ci r. designed to root out the ‘principal evil’ of using ‘ ex parte examinations as 308, 315 - 16 (1974) (emphasis omitted). “The Confrontation Clause was opponent the opportunity of cross - exam ination.” Davis v. Alaska, 415 U.S. The purpose behind the Confrontation Clause is to “secure for the 15

provided, however, that no such interception shall be made unless comm unication has given prior consent to such interception; person is a party to the communication or on e of the parties to the intercept a telecommunication or oral communication, when such investigations of... offenses enumerated in this chapter... to course of t he officer’s duties pertaining to t he conducting of An investigative or law enforcement officer in the ordinary

the communication. RSA 570 - A:2, I(a) (2001). However, it is not unlawful for: telecommunication or oral communication” without the consent of all parties to is generally unlawful for any person to “[w]ilfully intercept []... any Pursuant to RSA chap ter 570 - A, New Hampshire’s wire tapping statute, it

the State appeals that ruling. granted the defendant’s motion to suppress the recording of the intercept, and authorization, as required under RSA 570 - A:2, II(d) (20 01). The trial court suspicion determination within seventy - two hours following the oral because the State did not make a written memorandum of its reasonable The defen dant argued, among other things, that suppression was required T he defendant moved to suppress all evidence related to the intercept.

suspicion existed to authorize the one - party intercept. memorandum setting forth the basis for his determination that reasonable information. Six days later, o n January 9, 2002, Brown prepared a formal defendant appeared to become suspicious, and he did not provide any Frazier spoke with the defendant. During the course of the conversation, the p.m., which was unsuccessful; and the other at 7:14 p.m., at which time document that there were two attempts to contact the defendant: one at 6:40 that the defendant admitted to lighting Walker’s couch on fire. The notes also notes. The notes reference the statements made by Frazier to the authorities Both before and during the conversa tion, Brown made handwritten

their conversation was recorded. 4, 2002. Frazier spoke with the defendant between the authorized hours, and time period between 6:30 p.m. on January 3, 2002, and 12:00 a.m. on January defendant, who was in California. Brown orally au thorized the intercept for the telephone call made by Frazier, who was at the Keene Police Department, to the intercept for January 3, 2002. On January 3, 2002, Keene p olice intercepted a Senior Assistant Att orney General Simon Brown scheduled a one - party 1989, came forward with additional information about the fire. Thereafter, o n January 3, 2002. In late 2001, Kurt Frazier, who knew the defendant in one - party consensual telephonic intercept ion (one - party intercept) conducted T he State argues that the trial court erred by excluding a recordi ng of a

III. One - Party Telephonic Intercept ion p. 16 16

scheme and not in isolation. Id. If the statute’s language is clear and Id. Furthermore, we interpret statutes in the context of the overall statutory of the statute and ascribe the plain and ordinary meanings to the words used. words of the statute considered as a whole. Id. We first examine the language interpretation, we are the final arbiter of legislative intent as expressed in the State v. M acMillan, 152 N.H. 67, 70 (2005). In matters of statutory intercepted commu nication presents an issue of statutory interpretation. See Whether RSA chapter 570 - A precludes disclosure of the contents of an

memorandum does not require suppression of the recording. nonetheless conclude that the State’s failure to timely file its written 570 - A:6 applies to intercepts auth orized under RSA 570 - A:2, II(d). We qualify as a “written memor andum” under RSA 570 - A:2, II(d) and that RSA We assume, without deciding, that Brown’s handwritten notes do not

should not result in suppression. timely file a memorandum c onstitutes a “technical violation” only, which intercepts that do not comply with RSA 570 - A:2, II(d), the State’s failure to exclusionary provision; and (3) even if the exclusionary remedy applies to obtained pursuant to RSA 570 - A:2, II(d) are not subject to the statute’s “written memorandum” satisfying RSA 570 - A:2, II(d); (2) intercepted recordi ngs handwritten notes made contemporaneously with the intercept constitute a the trial court’s ruling on three grounds, asserting that: (1) Brown’s basis within seventy - two hours following t he intercept. T he State challenges memorandum setting forth a determination of reasonable suspicion and its it found that the State violated RSA 570 - A:2, II(d) by failing to file a written T he trial cour t suppresse d the State’s recording of the intercept because

be in violation of [RSA chapter 57 0 - A].” RSA 570 - A:6. received in evidence in any trial... if the disclosure of that information would contents of such communication and no evidence derived therefrom may be telecommunicatio n or oral communication has been i ntercepted, no part of the also contains an exclusionary provision, which states, “W henever any approval required by RSA 570 - A:2, II(d).” RSA 570 - A:2, I - a (2001). The statute prior consent of o ne of the parties to the communication, but without the communication when the person is a party to the communication or with the misdemeanor if “the person knowingly intercepts a telecommunication or oral shall be made within 72 hours thereafter.” Id. A person is guilty of a written memorandum of [the reasonable suspicion] determination and its basis RSA 570 - A:2, II(d). The statute provides that if oral authorization is given, “a

conduct will be derived from such intercept ion. that there exists a reasonable suspicion that evidence of criminal attorney general designated by the attorney general determines the attorney general, the deputy attorney general, or an assistant p. 17 17

DALIANIS, C.J.