2017-0361, The State of New Hampshire v. Adrien Stillwell

Amendment to the United States Constitution; (2) admitting the out - of - court expert to testify in violation of the Confrontation Clause of the Sixth appeal, he argues that t he Superior Court (Brown, J.) erred by: (1) allowing a n conspiracy to commit murder, see RSA 629:3 (2016); RSA 630:1 - a, I(a). On one count of second degree murder, see RSA 630:1 - b (2016), and one count of convicted on one count of first degree murder, see RSA 630:1 - a, I(a) (2 0 1 6), BASSETT, J. Following a jury trial, the defendant, Adrien Stillwell, was

defendant. and Christopher M. Johnson, chief appellate defender, orally, for the Eric S. Wolpin, assistant appellate defender, of Concord, on the brief,

attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Lisa L. Wolford, senior assistant

No. 2017 - 0361 Hillsborough - northern judicial district

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

on the gun. An expert at Cybergenetics, Mark Perlin, P h.D., M.D., Ph.D., used Cybergenetics initially determined that there was DNA from four or five people machine - generated raw data to another company, Cybergenetics. Pennsylvania. NMS Labs generated DNA data from each swab and sent the from the defendant, Smith, and Younge, were sent to NMS Labs in In December p. 2 2015, DNA swabs from the gun, along with buccal swab s

first degree murder and conspiracy to commit murder. The defen dant, Younge, Smith, and Papill on were subsequently indicted for involved with M.P.’s m urder, and denied knowing Papill on, Smith, or Younge. During a second interview with police, the defendant again denied being happened on November 3, p. 2 2015 that had not been included in news reports. defendant told Collier that he had killed M.P., and shared de tails as to what After his arrest, the defendant shared a jail cell with Scott Collier. The

that he had not been present at, and did not know about, M.P.’s murder. See Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966). T he defendant stated spoke with police for approximately forty - five minutes in a recorded interview. police executed the body warrant, the defendant waived his Miranda rights and his mouth for use as a “known sample” for comparison to other evidence. After at the police department in Manchester, and took a buccal swab of the inside of On November 16, p. 2 2015, police executed a body warrant on the defendant

Forensic Laboratory employee subsequently swabbed the gun for DNA. victim’s body had been fired from the gun. A New H ampshire State Police spent cartridges. F orensic testing established that a bullet recovered from the over, found a gun when picking up the trash barrel. The gun contained six thereafter, a neighbor, who had heard “loud bangs” and her trash barrel falling to M.P.’s apartment building, where the defendant shot and killed M.P. Shortly store, where video surveillance shows that they met Younge. T hey then headed On November 3, p. 2 2015, the defendant and Smith went to a convenience

multiple occasions and discussed killing M.P. subsequently met with the defendant, Nathanial Smith, and Michael Younge on responsible for his arrest, Papillon offered a bounty for M.P.’s death. Papillon After Papillon was relea sed, and believing that M.P. was a “snitch” and thereafter, police arrested and jailed Papillon for selling drugs to the informant. Paulson Papillon sold drugs to M.P. and to a confidential informant. Shortly The jury could have found the following facts. On October p. 2 21, 2015,

the State’s closing argument. We affirm. to address the allegedly improper statements made by the prosecutor during interest exception to the hearsay rule; and ( p. 3 3) failing to take sua sponte action statements of an unavailable witness under the state ment against penal 3

Confrontation Clause challenges de novo. Id. at 47. hearsay. See State v. McLeod, 165 N.H. 42, 5 p. 3 3 (2013). We rev iew judgment, even if that judgment was based on inadmissible testimonial are satisfied so long as an expert testifies about his or her own independent The State further contends that the requirements of the Confrontation Clause and is, therefore, non - testimonial for purposes of the Confrontation Clause. confrontation rights because the raw DNA data was generated by a computer, responds that Perlin’s expert testimony did not violate the defendant’s as to which data resulted from the testing of which sample. The State involved in generating the DNA data; therefore, he lacked personal knowledge defendant asserts that this testimony was inadmissible because Perlin was not defendant ’s sample and other DNA profile data came from the gun. The DNA data to the jury, and testified that certain DNA profile data came from the Constitution when Perlin, the State’s expert, presented machine - generated raw witnesses against him as guaranteed by the Sixth Amendment to the Federal The defendant first argues that he was denied his right to confront

followed. defendant’s DNA. The jur y convicted the defendant on all charges. This appeal determine that there was a match between the DNA found on the gun and the State’s case that, using the TrueAllele computer technology, he was able to c ooperating with police, were admitted. In addition, Perlin testified during the murder scene at the time of the shooting and that he knew Younge was recorded telephone call from jail, including statements that he was at the [M.P.].” Although the defendant did not testify, statements that he made in a involved in the shooting might say that he, Papi llon, “sent the guys to go kill Younge was not the shooter, and expressions of concern that one of the others the hearsay rule. These state ments included assertions by Papillon that admitted into evidence under the statement against penal interest exception to sist er on a recorded telephone call from the New Hampshire State Prison were shot M.P. Papill on did not testify at trial, but statements that he made to his the defendant, Younge, and Pa pillon, and the defendant confirmed that he had shot and everyone ran away, knocking over trash barrels in the process, he met “aimed” before shooting the victim. Smith testified that after the victim was defendant. At trial, Younge testified that the defendant “took a stance” and agreements with the State pursuant to which they agreed to testify against the Prior to the defendant’s trial, Smith and Younge reached cooperation

positive match between Smith or Younge and th e gun. unrelated. . . African American person,” and that there was no support for a was 88. p. 4 4 trillion times more probable than a coincidental match to an defendant. He concluded that a “match between the gun and [the defendant] match between the DNA on the gun and the DNA of Smith, Younge, or the a computer technology called TrueAllele to determine whether there was a 4

person as part of the prosecution’s case.” Id. at 311 n.1. authenticity of the sample, or accuracy of the testing device, m ust appear in anyone whose testimony may be relevant in establishing the chain of custody, examination. Id. However, the Court also noted “it is not the case[] that introduced unless the authors of the certificates were subject to cross t he prosecution claimed, cocaine” — the Court held they could not be — “that the substance found in the possession of Melendez - Diaz. . . was, as (2006)). Since the certificates of analysis were made to establish or prove a fact examination. ’” I d. at 31 0 - 11 (quoting Davis v. Washington, 5 p. 4 47 U.S. 813, 830 plainly affidavits,” and did “‘ precisely what a wit ness does on direct The Court compared the certificates to live testimony because they were “quite defendant ’ s arrest were testimonial. Melendez - Diaz, 557 U.S. at 308, 310 - 11. from a forensic laboratory that tested a substance found in connection with the In Melendez - Diaz, the Supreme Court held that certificates of analysis

Watson, 170 N.H. 720, 728 - 33 (2018); here, we briefly summarize our analysis. 65 - 67 (2012) (plurality opinion). W e recently discussed these cases in State v. New Mexico, 56 p. 4 4 U.S. 647, 651 - 52 (2011), and Williams v. Illinois, 567 U.S. 50, in Melendez - Diaz v. Massachusetts, 557 U.S. 305, 308 - 11 (2009), Bullcoming v. subsequently considered whether scientific reports are testimonial statements Id. at 51 - 52 (quotations, ellipsis, and citations omitted). The Supreme Court

for use at a later trial. witness reasonably to believe that the statement would be available were made under circumstances which would lead an objective depositions, prior testimony, or confessions; [and] statements that contained in formalized testimonial materials, such as affidavits, expect to be used pro secutorially; extrajudicial statements similar pretrial statements that declarants would reasonably testimony that the defendant was unable to cross - examine, or material such as affidavits, custodial examinations, prior ex parte in - court testimony or its functional equivalent — that is,

following: that comprise the core of testimonial hearsay, which generally include the testimonial statements, the Supreme Court did identify “[v]arious formulations” brackets omitted). Although Crawford did not identify a definitive class of purpose of establishing or proving some fact.” Id. at p. 5 51 (quotation and “testimony” as, typically, “a solemn declaration or affirmation made for the v. Washington, 5 p. 4 41 U.S. 36, 59, 68 - 69 (2004). The Supreme Court defined defendant had a prior opportunity to cross - examine the witness. See Crawford an absent witness only when the witness is unavailable to testify and the allows the State to admit against a defendant the “testimonial statements” of CONST. amend. VI. The United States Supreme Court has held that this right shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. The Sixth Amendment’s Confrontation Clause provides that “the accused 5

Id. at 673 - 74 (citations omi tted).

address, any of these factual scenarios. This case does not present, and thus the Court’ s opinion does not

machine in conjunction with the testimony of an expert witness. adequat e chain of custody foundation) raw data generated by a not decide whether . . . a State could introduce (assuming an the procedures used in handling the blood sample. Thus, we do chromatograph printout, along with other statements about of a blood alcohol concentration, apparently copied from a gas certifying scientist ’s] statements, which included his transcripti on machine - generated results . . . . The State here introduced [the Finally, this is not a case in which the State introduced only

admitted as evidence. statements if the testi monial statements were not themselves allowing an e xpert witness to discuss others’ testimonial different question if asked to determine the constitutionality of defendant’s] blood alcohol concentration.. . . We would face a scientist did not] offer[] an independent, expert opinion about [the were not themselves admitted into evid ence. [The testifying independent opinion about underlying testimonial reports that [T]his is not a case in which an expert witness was asked for his

(Sotomayor, J., concurring). She observed: factual circumstances that [Bullcoming] does not present.” I d. at 668, 672 “the limited reach” of the majority opinion, and “highlight[ing] some of the Justice Sotomayor wrote a separate concurring opinion, emphasizing

are meet for cross - examination.” Id. at p. 6 660. to past events and human actions not revealed in raw, machine - produced data, (quotations omitted). The C ourt reasoned that “[t]hese representations, relating “integrity of the sample,” and the “validity of th e an alysis.” Id. at 6 p. 5 59 - 60 about the manner in which the non - testifying analyst conducted testing, the forensic report number and the sample number corresponded, information blood sample had been received intact with the seal unbroken, that the more than a machine - generated number,” and included a certification that a Bullcoming, 564 U.S. at 652. The C ourt noted that the document “reported the certification or perform or observe the test reported in the certification.” particular fact — through the in - court testimony of a scientist who did not sign containing a testimonial certification — made for the purpose of proving a did not permit the prosecution to introduce a “forensic laboratory report Similarly, in Bullcoming, the Court held that the Confrontation Clause 6

sources before him” (quotation s omitted)). “The question is whether the expert that is “reached by app lication of [the expert’ s] training and experience to the (D.D.C. 2010) (holding that an expert may testify to “independent judgment” infraction is minimal.”); U nited States v. Williams, 740 F. Supp. 2d 4, 10 on the basis of inadmissible evidence, the likelihood of a Sixth Amendment employs her training and experience to forge an independent conclusion, albeit (concluding that “t he assessment is one of degree. Where an expert witness See, e.g., United States v. Ramos - González, p. 6 664 F.3d 1, 5 (1st Cir. 2011) McLeod is in accord with the reasoning of courts in other jurisdictions.

(quotations and brackets omitted). consi dered opinions shed light on a specialized factual situation.” Id. testimonial statements of others,” but rather are “true experts whose we explained, because the experts are “not acting as mere ‘transmitters’ of examination.” McLeod, 1 p. 6 65 N.H. at 55. Such expert testimony is permissible, “they do not testify as to [the non - testifying witne ss’s] statements on direct to the facts before them, from tes tifying regarding their opinions, provided that Confrontation Clause does not prohibit experts, applying their own knowledge of its experts.” McLeod, 165 N.H. at 49. However, we held that the non - testifying witness ’s testimonial statements] through the direct examination “confrontation rights would be violated were the State permitted to introduce [a 51; see also Bullcoming, 564 U.S. at 673. We held that a defendant’s opinion based upon un derlying testimonial statements. McLeod, 165 N.H. at the Court: the constitutionality of an expert witness rendering an independent In McLeod, we analyzed one of the factual scenarios left unresolved by

(footnote omit ted)). plurality’ s reasoning,. . . it [is] somewhat challenging to apply Williams” Justice — Justice Thomas — concurring in the result but no portion of the (o bserving that because of “the 4 - 1 - 4 division of the Justices. . ., with one in that case”); United States v. Turner, p. 7 709 F.3d 1187, 1189 (7th Cir. 2013) a single, useful holding,” it is “confined to the particular set of facts presented support of a majority of the Justices” and because the case “does not. . . yield that because “[n]o single rationale disposing of the Wil liams case enjoys the see also United States v. James, 712 F.3d 79, 95 (2d Cir. 2013) (concluding “force, as precedent, is at best unclear.” Id. (quotation and brackets omitted); (quotation omitted). Therefore, we concluded, as have other courts, that its evidence violates the Confrontation Clause.” Watson, 170 N.H. at 733 “embrac[ing] a different approach to determining whether the use of forensic resulted in a 4 - 1 - 4 division of the Justices, with each of the opinions alleged assailant’s blood. Williams, 5 p. 6 67 U.S. at 56, 59, 111 - 12. The case matched a DNA profile produced by a state police lab using a sample of the which lacked an attestation or certification from the non - testifying witness — profile contained in a forensic report produced by an outside laboratory — Confrontation Clause precluded an expert from testify ing at trial that a DNA Most recently, in Williams, the Court considered whether the 7

how the TrueAllele program uses the raw DNA data to determine the likelihood During his testimony, Perlin utilized a PowerPoint presentation to explain

quadrillion.” match statistic between the gun and [the defendant]. . . was about 1 in 63 match.” He also asserted that the “chance of a false positive e rror for the other two individuals . . . we found that there was no support for a positive probable than a coincidental match. And when comparison was made with the match between the gun and [the d efendant] was 88.4 trillion times more statistic between the samples. He stated that his “overall finding[]” was “that a samples was compared to the gun swabs, he was able to generate a matc h extent of the match.” He testified that when the data from the three reference profiles or reference genotypes from different individuals to determine the unmixes the mixture,” and “afterwards comparisons can be made to reference particular sample includes DNA from two or more people. “[T] he computer programmed. He explained that TrueAllele separate s the genotypes when a it using TrueAllele, a probabilistic genotyping software that he designed and Perlin testified that he received genetic data from NMS Labs and analyzed

from the three known samples. requested that the lab compare the DNA from the gun swab s with the DNA buccal swabs from the defendant, Smith, and Younge — to NMS Labs. She with a computer - generated barcode, and mailed the gun swabs — along with issue in this case for DNA, packaged the swabs for mailing, la beled the swabs State Police Forensic Laboratory then testified that she swabbed the gun at swab was then sealed and labeled. A n employee from the New Hampshire f ollowed when taking the “known sample” of the defendant’s DNA, an d that the the inside of the defendant’s mouth. He testified that sterile procedures were he was present on November 16, 2015 when a detective took a buccal swab of testimony from a police officer from the City of Manchester who testified that Before Perlin testified as to his expert opinion, the State elicited

profile data came from the gun. certain DNA profile data came from the defendant ’s sample and other DNA machine - generated raw DNA data to the jury, and when he testified that argument that his confrontation rights were violated when Per lin presented testimonial statements. With this in mind, we turn to the defendant’s generated raw data, or information identifying the source of the data, are We have not yet had occasion to address the issue of whether machine -

original product that can be tested through cross - examination.” Id. typically be no Crawford problem” because “[t]he expert’ s opinion will be an the sources before him and reaching an independent judgment, there will 635 (4th Cir. 2009). “As long as he is applying his training and experience to transmitter for testimonial hearsay.” United States v. Johnson, 5 p. 8 8 p. 7 7 F.3d 625, is, in essence, giving an independent judgment or merely acting as a 8

more than raw data produced by a machine,” are not testimonial in nature); the “numerical identifiers of the DNA allele here, insofar as they are nothing e.g., United States v. Summers, 666 F.3d 192, 202 (4th Cir. 2011) (holding that testimonial statement of the lab technician who operate d the machine. See, uniformly concluded that raw data generated by a laboratory machine is not a the operator. However, those courts that have addressed the issue have almost raw data is a testimonial statement when the data contains no attestation from T he Supreme Court has not yet addressed whether machine - generated

application.” Id. at 764. (2012). If a statement is not testimonial, “the Confrontation Clause has no whether a statement is testimonial de novo. State v. Dilboy, 163 N.H. 760, 766 challenged statement is testimonial. See Davis, 547 U.S. at p. 8 821. We review The threshold question for Confrontation Clause claims is whether the

through direct examination. Id. at 49. We disagree. at 55, the expert may not disclose the out - of - court statements to the jury direct examination that he “relied upon witness statements,” McLeod, 165 N.H. although an expert can, consistent with the Confrontation Clause, testify on defendant contends that Perlin’s testimony violates our holding in McLeod that, generated raw data to the jury through charts in his PowerPoint slides. The violated the defendant’s confrontation rights because he presented machine - We now consider the defendant’s argument that Perlin’s testimony

examination — but Perlin could not.” that fact — and been subject to the Confrontation Clause’s guarantee of cros s buccal swab.” He argues that an NMS Lab s analyst “could have testified to assertion that a specified data set arose from the testing of [the defendant’s] defendant ’s] DNA, [he] was reciting [a NMS Lab s analyst’s] out - of - court contends that “[w]hen Perlin told the jury that a data profile was [the defendant’s, and that another DNA profile came from the gun. The defendant the testing of a particular swab, told the jury that one DN A profile was the when Perlin, who had no personal knowledge that particular data resulted from statement. Accordingly, he argues that his confrontation right s were violated attribution of a particular DNA sampl e to a particular swab is a testimonial PowerPoint slide that was published to the jury. Second, he contends that the confrontation rights were violated when Perlin included that data in a constitutes a testimonial statement; he asserts, therefore, that his statements. He first argues that the machine - generated raw data itself Confrontation Clause because it inc luded two kinds of inadmissible testimonial On appeal, the defendant argues that Perlin’s testimony violated the

one from NMS Labs testified. Labs. The defendant did not object at any point during Perlin’s testimony. No PowerPoint slides included the machine - generated raw DNA data from NMS that a particular individual’s DNA was included in the target sample. Some p. 9 9

profile was included in a mixed DNA sample with a certainty of 88.4 trillion to to testify that he reviewed DNA data and that “it was his opinion that a DNA although it would have been consonant with our holding in McLeod for Perlin particular DNA data to a particular swab.” The defendant argues that, “affirmed as true,” the NMS Lab s analyst’s “testimonial statements attributin g testing of a particular swab — impermissibly repeated to the jury, and Perlin — who had no personal knowledge that particular data resulted from the that Perlin’s testimony violated the defendant’s confrontation rights because We now turn to the defendant’s secon d Confrontation C lause argument:

authentication, or the chain of custody. arguments concerning the reliability of the data, the methods used to derive it, regarding the raw data are of a constitutional dimension: he does not make Washington, 4 p. 9 98 F.3d at 231. Here, the defendant’s appellate arguments process of authentication not by hearsay or Confrontation Clause analysis.” reliability of such machine - generated information [are] address ed through the Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015). However, “concerns about the inconsistent results or have been tampered with.” United States v. Lizarraga legitimate evidentiary concerns: “A machine might malfunction, produce We are not unmindful that machine - generated raw data can give rise to

the defendant’s confrontation rights. of that raw DNA data in his PowerPoint presentation to the jury did not violate analyst who operated the machine. Accordingly, we hold that Perlin’s inclusion PowerPoint presentation is not a testimonial statement of the NMS Labs the machine - generated raw DNA profile data that Perlin includ ed in his Lopez, 286 P.3d at 478. We are persuaded by this reasoning and conclude that operators.” Id. “[U] nlike a person, a machine cannot be cross - examined.. . .” diagnostic machines are the ‘statements’ of the machines themselves, not their F.3d 225, 230 (4th Cir. 2007). Therefore, “[t] he raw data generated by t he be able to refer to the machine’s printouts.” United States v. Washington, 4 p. 9 98 sample contains a particular characteristic because the technician “would only who operates a machine could not independently affirm or deny that a blood As the Fourth Circuit Court of Appeals has explained, a lab technician

generation). human judgment or subjectivity was a necessary component of the data’s generated raw data, including a DNA profile, can be a testimonial statement if United States, 63 A.3d p. 10 1033, 1046 (D.C. 2013) (holding that machine imposed by Crawford, Melendez - Diaz and Bullcoming”). But see Young v. (holding that “m achine generated data is not subject to the restrictions right to confrontation”); State v. Buckland, p. 9 96 A.3d 1163, 1172 (Conn. 2014) “machine - generated printouts . . . did no t implicate the Sixth Amendment’ s ‘testimonial. ’”); People v. Lopez, 286 P.3d 469, 478 (Cal. 2012) (holding that readouts are not ‘statements,’ so it does not matter whether they are United States v. Moon 512 F.3d 359, 362 (7th Cir. 2008) (“[T] he instruments’ 10

(quotations and brackets omitted)). If, for example, the attributions were rules that provide for the admission of certified blood - al cohol analyses” document,” and contained a certification and “a legend referring to . . . courts’ nonetheless “[n] oteworthy” that the report was “fo rmalized in a signed “is not dispositive in determ ining if a statement is testimonial,” it was omitted)); Bullcoming, 564 U.S. at 664 - 65 (noting that, while lack of solemnity . . . solemn declaration[s] or affirmation[s]” (emphasis added; quotation Crawford, 541 U.S. at 51 (explaining that testimonial statements are “typically considerable importance in determining whether they are testimonial. See The precise form that these DNA attributions took, however, is of

record.”). evidence, that constitut e the ‘test results’ were never submitted into the case we have no specific statements to review because the documents, or other 766 (“[A]lthough we review whether a statement is testimonial de novo, in this we have no specific attribution documents to review. See Dilboy, 163 N.H. at are presented with a situation similar to that which we encountered in Dilboy: were contained in a formal forensic report, certification, or affidavit. Thus, we generated raw data itself — perhaps in the form of a label — or whether they left to speculate as to whether the attributions at issue were on the machine attributed to particular source s — without th e document s in the record, we are NMS Labs — and that, in some indeterminate fashion, the DNA profile s were Although t he parties are in agreement that Perlin received data from

Confrontation Clause argument. appeal. This evidentiary shortcoming is fatal to the defendant’s second was not submitted into evidence at trial, and is not part of the record on points out, the document setting forth the attributions — i n whatever form — asserted that to be true.” (Emphasis added.) However, as t he State correctly gun’ and another to ‘ [the defendant] ’ because [the NMS Lab s analyst’s] report in the samples’ testing. . . he only ‘knew’ that a DNA profile belonged to ‘the particular source. The defendant argues that because “Perlin was not involved apprised as to how Perlin came to attribute a particular DNA profile to a testimonial statement of a non - testifying witness, we must necessarily be To properly analyze whether Perlin’s testimony impermissibly included a

generating that data, even though the raw data itself is not. data is a testimonial statement of the lab analyst who operated the machine associated with machine - generated raw data that identifies the source of the have not previously had occasion to consider: W hether the attribution direct examination”). We a re presented, therefore, with a narrow issue that we statements,” as long as he “do[es] not testify as to [the actual] statements on See McLeod, 165 N.H. at 55 (an expert can testify that he “re lied upon witness DNA data to a specific source — violated the defendant’s confrontation rights. mixture,” Pe rlin’s actual testimony on direct examination — attributing the one, and that it was his opinion that two other profiles were excluded from the p. 11 11

N.H. 338, 343 (1992) (quotations and brackets omitted). that would damage oneself unless the statement is true.” State v. Kiewert, 135 hearsay rule rests upon the assumption that one does not make statements Ev. 804(b) (3) (2016) (amended 2017). “The justification for this exception to the criminal liability — are generally not excluded by the hearsay rule. See N.H. R. the declarant’s interest — such as those tending to subject the declarant to circumstances, if the declarant is unavailable as a witness, statements against New Hampshire Rule of Evidence 804(b) (3) provides that, under certain

Papillon answered, “That I sent the guys to go kill [M.P.].” him. His sister then asked what the person who was talking could say, and that two men had already been arrested and one of them was talking about with his sister over the telephone. During the call, Papillon said that he knew The officer also testified that, on January 8, 2016, Papillon again spoke

their faces and not show themselves anywhere.” concern about talking on the phone and said that he “told the[] guys to hide further over the pho ne.” The officer testified that Papillon also expressed reference of something that was unlawful and [he] did not want to discuss it “hot,” which was a term that Papillon used “[a]nytime he was talking in the effect that: Mizz (a.k.a. Young e) did not shoot M.P., and that Mizz was spoke with his sister over the telephone from p rison, and made stat ements to them into English. The officer testified that, on November 19, 2015, Papillon admitted through the testimony of the law enforcement officer who translated calls from prison. T he statements, made by Papillon in Haitian Creole, were out - of - court statements that Papillon made to his sister during two telephone the statement against penal interest exception to the hearsay rule, it admitted The defendant next argues th at the trial court erred when, relying upon

N.H. at 767. issue of first impression based upon an insufficient record. See Dilboy, 163 determinative, a s in Dilboy, we decline to address an important constitutional (1992), and the precise form of the attributions could well be outcome address the issues he raised on appeal, State v. Parra, 135 N.H. 306, 309 appealing party, has the burden to provide this court with a record sufficient to informal record of data for interna l purposes”). Because the defendant, as the made with formality or solemnity” because the label was “nothing more than an requirement that to be testimonial the out - of - court statement must have been labeling a blood sample as belonging to defendant “d[id] not meet the . . . e.g., People v. Lopez, 286 P.3d 469, 478 - 79 (Cal. 20 p. 12 12) (concluding that be considered testimonial than if they were contained in a sworn report. See, identification purposes, then it would be less likely that the attributions would simply labels affixed to the machine - generated raw data for internal 12

that the defendant plan ned to kill, and then shot, M.P. The defendant’s jail at the scene of the crime at the time of the murder. A co - conspirator testified Witness testimony and a surveillance video establish ed that the defendant was conspired with Papillon, Smith, and Younge to do so — was overwhelming. Here, the other evidence t hat the defendant shot the victim — and

conspirators in furtherance of the conspiracy.” RSA 629:3, I. commission of such crime, and an overt act [was] committed by one of the the defendant “agree[d] with one or more persons to commit or cause the State was required to prove that, wit h a purpose that murder b e committed, defendant of conspiracy to commit murder as charged in the indictment, the purpose ly caused the victim’s death. RSA 630:1 - a, I(a). To convict the indictment, the State was required to prove beyond a rea sonable doubt that he To convict the defendant of first degree murder as charged in the

erroneously admitted evidence itself. Id. at 589. consider the other evidence presented at trial as well as the character of the the S tate’ s evidence of guilt. Id. at 588 - 89. In making this determination, we excluded is merely cumulative or inconsequential in relation to the strength of quantity, or we ight, and if the evidence that was improperly admitted or if the other evidence of the defendant’ s guilt is of an overwhelming nature, Id. (quotation omitted). An error may be harmless beyond a reasonable doubt

immaterial error. the trial rather than on the virtually inevitable presence of for the criminal process by focusing on the underlying fairne ss of of the defendant’s guilt or innocence, and promotes public respect central purpose of a criminal trial is to decide the factual question The harmless - error doctrine recognizes the principle that the

erroneous admission and exclusion of evidence.” Id. (quotation omitted). N.H. 580, 588 (2017) (quotation omitted). “This standard applies to both the reasonable doubt that the error did not affect the verdict.” State v. Edic, 169 “To establish that an error was harmless, the State must prove bey ond a

we need not decide whether the admission of these statements was error. harmless error. Because we agree with the State that any error was harmless, statements should not have been admitted, their admission at trial constitutes were properly admitted as statements against interest, but, even if the statements prejudiced [him].” The State counters that Papillon’s statements contends that we must reverse because the “erroneous admission of these the hearsay contained within those statements was admissible. The defendant statements should have been excluded because the State did not establish that even if Papillon’s statements were against his penal interest, some of the statements at issue were against Papillon’s penal interest. He also argues that On appeal, the defendant argues the trial court erred in ruling that the p. 13 13

discuss the evidence and to urge the jury to draw inferences of guilt from the presented and has great latitude in closing argument to both summarize and context”). “A prosecutor may draw reasonable inferences from the evidence U.S. 25, 33 (1988) (stating “prosecutorial comment must be examined in Murder), 165 N.H. 381, 548 (20 p. 13 13); see also United States v. Robinson, 485 challenged remarks in the context of the case.” State v. Addison (Capital compromised.” State v. Hearns, 151 N.H. 226, 233 (2004). “[W]e consider the argument with the need to ensure that a defendant’s rights are not face the delicate task of balancing a prosecutor ’s broad license to fashion “In determining whether the prosecutor’s comments were improper, we

that we must reverse his conviction s. We are not persuaded. asserts that the trial court erred by not sua sponte intervening, and argues not object to the statements when they were made, the defendant, nonetheless, See State v. Bujnowski, p. 13 130 N.H. 1, 4 - 5 (1987). Although d efense counsel did the prosecutor’s personal opinions about the defendant’s credibility and guilt. set, he argues, were improper because they impermissibly conveyed to the jury defense counsel, see State v. Dowdle, 148 N.H. 345, 348 (2002), and the other the defendant contends, constituted an impermissible personal attack on appeal. The statements at issue fall into two categories: one set of statements, that the individual prosecuting attorney at trial is not representing the State on improper statements made during closing argument. At the outset, we note the trial court to have failed to act sua sponte to cure the prosecutor ’s allegedly Finally, we address the defendant’s argument that it was plain error for

reasonable doubt. See id. statements did not affect the verdict and, therefore, was harmless beyond a the State has met its burden of proving that any error in admitting Papillon’s inconsequential. See Edic, 169 N.H. at 588 - 89. Accordingly, w e conclude that defendant’s guilt, Papillon’s statements were both cumulative and Therefore, compared to the State’s other, overwhelming evidence of the

the murder weapon. his expert opinion that the defendant’s DNA matched the DNA recovered from to be “further evidence of [his] consciousness of guilt”). Finally, Perlin stated jury could have found defendant’ s “inconsistent and evasive answers” to police consciousness of guilt. See State v. Bean, 153 N.H. 380, 387 (2006) (noting case” as long as the others were “quiet.” These inconsistent accounts show a the crime at th e time of the shooting, and thought he would be “good with the recorded phone calls from prison, he later stated that he was at the scene of he did not know about the murder and was not present at the scene, in informant. Furthermore, although the defendant initially told the police that defendant, along with Papill on, Smith, and Younge, believed M.P. was a police cellmate testified that the defendant told him that he killed M.P. because the p. 14 14

closing argument, the prosecutor stated to the jury that “just like the We now turn to t he first set of allegedly improper statements. During his

sponte to cure the impropriety. See id. assuming it was improper, whether the trial court should have acted sua not whether the prosecutor’s closing statement was improper, but rather, pertinent inquiry with regard to whether a “plain error” occurred in this case is provides the basis for our review.” Drown, 170 N.H. at 799. Accordingly, the argument, and the trial court took no action. “It is this inaction . . . that Here, defense counsel did not object during the prosecutor’s closing

patently egregious circumstances.” State v. Labrie, 171 N.H. 475, 489 (2018). strategy that should not be intruded upon by the trial court in th e absence of 123 F.3d 1381, p. 14 1400 (11th Cir. 1 997). “A decision not to object may be a trial would jeopardize the fairness and integrity of the trial.” United States v. Bailey, available to rectify only plain error that is so obvious that failure to correct it a defendant fails to object to the prosecutor’s closing argument, relief is any objection by the defense); State v. Rawnsley, 167 N.H. 8, 12 (2014). “When rise to the level of “plain error” warranting the court to overlook the absence of (198 5) (concluding that prosecutor’s statements, although improper, did not Id. at 799 (quotation omitted); see also United States v. Young, 470 U.S. 1, 14 court having not taken affirmative steps to intervene in the parties’ litigation.” inadmissible if . . . objected to. Rather, any ‘plain error’ must relate to the trial — as an abstract matter — the lawyer’s [argument] would have been N.H. at 79 2. “[T]he existence of plain error does not depend solely on whether the fairness, integrity or public reputation of judicial proceedings.” Drown, 170 the error must affect substantial rights; and (4) the error must seriously affect to find plain error: (1) there must be an error; (2) the error must be plain; (3) otherwise result.” Drown, 170 N.H. at 79 2; see also Sup. Ct. R. 16 - A. “F or us “limited to those circumstances in which a miscarriage of justice would correct errors not raised before the trial court,” however, its application is N.H. at 792. “The plain error rule allows us to exercise our discretion to summation” are reviewed under our plain error rule. Id.; see also Drown, 170 “A fterthought claims of improprieties allegedly occurring during the

at 977. opportunity to respond to the objectionable statement at the time it occurs. Id. com ments in the prosecution’ s closing argument,” the trial court has no t his obligation by failing to make a contemporaneous objection to questiona ble interests.” Id. at 97 6 - 7 7 (quotation omitted). “W hen a defendant defaults on terrain,” and t he “defendant has a corresponding obligation to protect his own 77 (1st Cir. 1995). Nonetheless, a prosecutor may not “stray into forbidden admired rather than condemned.” United States v. Taylor, 54 F.3d 967, 976 criminal juries zealously. Forcefulness in the pursuit of justice is to be pull their punches; they may — indeed, they should — present their cases to evidence.” State v. Drown, 170 N.H. 788, 793 (2018). “[P]rosecutors need n ot p. 15 15

not evidence.” See Labrie, 171 N.H. at 489 - 90. “T he jury is presumed to follow note that the trial court instructed the jury that the lawyers’ “[a] rguments are (observing that defendant bears burden to show plain error on appeal). We See Labrie, 171 N.H. at 489; State v. Guay, 164 N.H. 696, 704 (2013) they were sufficiently egregious so as to require the trial court to intervene. context of the case, we conclude that the defendant has failed to show that Here, w hen we consider the prosecutor’s improper statement s within the

prosecutor’s closing argument. See Drown, 170 N.H. at 802. (2001). D efense counsel may have good reasons for not objecting during a at 489; see also Noucas, 165 N.H. at 161; State v. King, 146 N.H. 717, 722 have often discouraged trial courts from acting sua sponte.” Labrie, 171 N.H. held that a trial court must interrupt a party’s closing argument; r ather, “we Dowdle, 148 N.H. at 347; Boetti, 142 N.H. at 257 - 58. Indeed, w e have never contemporaneously objected to the prosecutor’s improper statements. See to such statements, because in each case — unlike here — defense counsel that it is plain error for the trial court not to sua sp onte intervene in response N.H. at 261; see also Dowdle, 148 N.H. at 347 - 48. However, neither case holds integrity of opposing counsel are unquestionably inappropriate.” Boetti, 142 Dowdle we made clear that such “p ersonal attacks directed to the ethics and from the truth,” and his other similar statements, were improper. I n Boetti and T he prosecutor’s statement that “the defense team wants to distract you

interv ene and strike the prosecutor’s statements. not agree that the trial court committed plain error by failing to sua sponte the prosecutor made improper statements during his closing argument, we do 79 2 (explaining plain error rule). A lthough we agree with the defendant that defendant’s substantial rights and “distorted” justice. See Drown, 170 N.H. at arguments, the court committed plain error,” and that error affected the we must reverse because, “[i]n failing sua sponte to strike these improper allow the State to conduct an impr oper argument.” H e argues, therefore, that counsel is doing just that, or forgo an objection to avoid that inference and argument that [defense counsel] hides the truth, making it further appear like “present[] defense counsel with an untenable choice: either, object to the intervention was required because such statem ents during closing argument truth - seeking function”). The defendant contends that sua sponte court for prosecutor to argue during closing that defense strategy did not serve “a omitted)); State v. Boetti, 142 N.H. 255, 259 (1997) (concluding it was improper statements were “inexcusable,” and “unquestionably inappropriate” (quotation during the prosecutor’s closing argument. See id. (concluding that such (quotation omitted), here it was plain error for the trial court not to intervene hurts their client, to distract you from the truth,” Dowdle, 148 N.H. at 347 - 48 prosecutor to argue that defense counsel’s “job is to obscure the truth if it defendant asserts that, because we held in Dowdle that it was improper for the prosecutor also made other similar statements during his closing. The Defendant, the defense team wants to distract you from the truth.” The p. 16 16

of the trial, and, therefore, his substantial rights. See id. at p. 16 168 - 69. demonstrate that any error by the trial court would have affected the outcome overwhelming evidence of the defendant’s guilt, the defendant cannot Cooper, 168 N.H. 161, 168 (2015) (quotation omitted). Here, g iven the prejudicial, i.e., that it affected the outcome of the proceeding.” State v. affected substantial rights, the de fendant must demonstrate that the error was N.H. at 792. “Generally, to satisfy the burden of demonstrating that an error the error would have adversely affected his substantial rights. Drown, 1 70 sua sponte intervene was error, the defendant has failed to demonstrate that We note that, even if we were to conclude that the trial court’s failure to

sponte intervene. See Labrie, 171 N.H. at 489 - 90. that they were sufficiently egregious so as to require the trial court to sua were improper, because, even if they we re, the defendant has failed to show quotations omitted)). However, we need not decide whether the statements think for ninety - nine percent of it [the witness] was lying” (brackets and admonition, made statements such as “I think the defendant is guilty,” and “I statements were improper when he repeatedly, and against the court’s defendant’s credibility or guilt. See id. at 3 - 5 (finding that prosecutor’s by the prosecutor impermissibly expressed a personal opinion about the accused.” Id. at 4. Here, it is a close call as to whether the statements made jury their personal opinions as to the credibility of a witness or the guilt of the It is well - established “that it is improper for prosecutors to profess to the

error. improper, the defendant cannot show that the trial court committed plain them he would never be truthful with them.” Further, the State argues, even if had not only repeatedly lied to the police during his interrogation, but told truth were tethered to the facts: the evidence establ ished that the defendant prosecutor’s statements about the defendant’s tenuous relationship with the and guilt. See Bujnowski, 130 N.H. at 4 - 5. The State counters that “the the jury the prosecutor’s personal opinions about the defendant’s credibility The defendant argues that these statements impermissibly conveyed to

truth,” and asked the jury to “[t]ell the Defendant the truth about his crimes.” the truth ab out his crimes.” The prosecutor concluded, “We know that’s the doing the very thing that the Defendant said he would never do . . . to speak concerned with the truth,” and “ironically, you all are going to be tasked with closing argument, the prosecutor said “unlike all of you, the Defendant is not We now turn to the second set of allegedly improper statements. During

argument. act sua sponte to cure the prosecutor’ s improper statement s during closing (2005). Accordingly, we conclude that it was not error for the trial court not to the instructions given by the trial court.” State v. Littlefield, 152 N.H. 331, 348 p. 17 17

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

do not condone the prosecutor’s conduct. See i d. demonstrate that any error by the trial court affected his substantial rights, we Id. at p. 17 171 (quotation omitted). Although the defendant has failed to misstatements of evidence, improper argument, or other improper conduct.” Finally, we reiterate that “[w]e strongly caution prosecutors to avoid