State of New Hampshire v. Matthew Raymond

1. Whether the court erred by admitting the expert testimony of Dr. Scott Hampton.

Issue preserved by defense Motion in Limine and the court’s ruling, then by renewed objection during trial and court’s ruling. A 3-11. M 54-58, T 473*.

On June 25, 2024, Raymond filed a brief arguing the trial court erred admitting the expert testimony of Scott Hampton. On August 14, 2024, this Court issued its opinion in State v. Keller, 2024 N.H. 42 (2024). On November 19, 2024, the State filed its brief. The State’s brief discussed the Keller case. SB 38. The State’s brief also argued that, assuming the trial court did err, any error was harmless. SB SB 39-42. Raymond files this reply brief to argue the Keller opinion compels the reversal of Raymond’s convictions and to argue the error was not harmless.

The defense filed its brief in June 2024. On August 14, 2024, this Court issued its opinion in State v. Keller, 2024 N.H. 42 (N.H. 2024). Keller is directly on point to this case and compels reversal of Raymond’s conviction. This brief will first discuss Keller, then apply its holding to Raymond’s appeal.

Otto Keller was charged with felony aggravated DWI for causing a collision that resulted in serious bodily injury. Id. at ¶1. Keller fell asleep while driving his car and crashed. He later went to the hospital. The police conducted a consensual blood draw, which showed the presence of several illegal drugs Id. at ¶2. Keller later told the police he had used drugs over four hours before the crash and that his use of the drugs did not affect the crash. Id. at ¶3. To rebut Keller’s claim the State called Colleen Scarneo as an expert in “the pharmacological and toxicological effects associated with the drugs found in [Keller}’s blood.” Id. at ¶5. On appeal this Court held that Scarneo’s testimony did not meet the reliability standards of Daubert and RSA 516:29-a and the trial court erred in admitting her expert testimony. Id. at ¶18. The Court did a detailed analysis of the four 516:29-a, I factors.

This Court held the trial court’s erred in finding Scarneo’s methodology was generally accepted because Scarneo had “attended seminars and written articles on toxicology as it applies to drivers under the influence of drugs”, and relied on her “extensive knowledge and experience in forensic toxicology.”. This Court held that those facts “do not establish the reliability of the specific methodology Scarneo employs or that it has been tested, but, rather, go to her experience and education in forensic toxicology and explain how she reaches her final conclusion.” Id. at ¶23.

The State makes the same erroneous argument about Hampton’s expertise. The State notes that Hampton, like Scarneo, has published articles. SB 32. The State argues that “Hampton’s decades of schooling, working in the field, giving presentations, developing intervention programs, serving on commissions and reading and authoring literature, created an inescapable inference that his testimony was reliably based on facts and data.” SB 37. This Court rejected such an argument in Keller. This Court held that Scarneo’s past expertise does not establish the reliability of her methodology. Keller, 2024 N.H. 42 ¶24. The Court should likewise reject the State’s attempt to substitute Hampton’s CV for a proper methodology.

The State argues that Hampton has been allowed to testify in similar cases. SB 33. The Keller trial court admitted Scarneo’s testimony in part because of a prior Superior Court order from 2011 admitting her testimony, a ruling this Court held was error. Keller, 2024 N.H. 42 at ¶9.

This Court found Scarneo’s methodology was to review a variety of information, then rely on her training and experience to determine if an individual showed signs of impairment. Id. at ¶24. Scarneo did not use any type of standardized assessment tool. Id. at ¶25. Likewise, in this case Hampton did not use any standardized assessment tool. Scarneo’s methodology, like Hampton’s in this case, did not have a known or potential error rate. Id. at ¶30. In Keller the State argued that the error rate factor was “not appropriate to the circumstances of this case given the nature of Scarneo’s analysis.” Id. at ¶30. The Court rejected this argument, holding that while a methodology may fail one factor and still be admissible “the State must still prove that the expert’s testimony is the product of reliable principles and methods.” Id. The State makes the same argument in this case as was made in Keller, SB 37, and the Court should again reject the State’s argument.

Keller, like Raymond’s case, involved a witness allowed to offer expert testimony despite not having a methodology that could meet the requirements of Daubert, Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. 609 (2002) and RSA 516:29-a. The State attempts to distinguish this case from Keller by arguing “unlike the expert in Keller, Dr. Hampton did not offer any opinion about this case.” SB 38. The State offers no caselaw to support its proposed distinction between expert testimony that offers opinions about the case and expert testimony that does not offer opinions about the case. Rules of Evidence 702, 703 and RSA 516:29-a mention no distinction between different types of expert testimony. The State’s argument must also fail because Hampton did offer many opinions that the State argued below applied to this case. As will be discussed below, the State used Hampton’s expert testimony extensively to try and convince the jury of Raymond’s guilt. Keller cannot be distinguished from Raymond’s case and Keller compels reversal of Raymond’s conviction.

The State argues any error in admitting Hampton’s testimony was harmless. SB 39. The defense makes two points in response. First, at trial the State relied greatly on Hampton’s testimony. Second, the State’s reliance on the testimony of Stephanie Gillespie to show the evidence against Raymond was overwhelming cannot bear scrutiny. Gillespie’s testimony was contradicted by C.L.’s own testimony and was weakened by Gillespie’s admission she suffered from brain injury that affected her memory.

The State’s closing shows how much the State relied on Hampton’s testimony. The State’s closing takes up pages 573 through 595 in the trial transcript, less a defense objection, bench conference and court instruction taking up pages 583 through 589. The State mentioned Hampton’s testimony on pages 573-574, 574-575, 577, 578, 579, 580, 591 and 592. The State mentioned Hampton’s testimony on nine pages, over half the pages of its closing. Robert Frechette, the strangulation expert, and his testimony are mentioned on pages 575 and 590. The State mentioned Stephanie Gillespie and her testimony on pages 574, 582-3 and 594. At trial the State clearly thought Hampton’s testimony was vitally important.

The State also used Hampton’s testimony to bolster C.L.’s testimony and to respond to each of the defense’s attacks on C.L.’s credibility. The State argued Hampton’s testimony about power and control shows the “dynamic of a domestic violence relationship… one of blaming the victim, the survivor, for why we are here.” T 573. C.L. mentioned only one strangulation to the Manchester Police in August 2022, then in several subsequent interviews over the next ten months added additional strangulations. DB 11-12. The State used Hampton’s testimony to explain away this attack on C.L.’s credibility, citing Hampton’s claim that such additional late disclosures are normal. T 574-75. The State said the assault on June 8, when C.L. and Raymond broke up, more likely happened because Hampton says abuse gets triggered when an offender loses control. T 577-78. The State mentioned a text Raymond sent to C.L. saying he was stressed and she doesn’t listen, then cites Hampton’s testimony that violence happens around a triggering event to claim Raymond’s stress shows he assaulted C.L. T 579. The State mentioned Raymond calling C.L. an idiot, then referred to Hampton’s dynamics of abuse to argue this shows Raymond assaulted C.L. T 580. The State argued that Raymond’s actions to try to keep C.L. from leaving show Raymond abused C.L., citing Hampton’s testimony about the dynamics of domestic abuse. T 591. The State then argued Raymond texting C.L. that she does not listen shows the abuse dynamic Hampton testified about. T 591. Then the State argued C.L.’s belief Raymond was cheating on her shows Raymond is creating jealousy to control her, again showing the abuse dynamic Hampton testified about. T 592. Gillespie testified that she saw C.L. at Hampton beach around the end of June 2022. T 307. She testified that she observed a banged-up lip, marks on C.L.’s neck, bruising on C.L.’s torso and legs. T 308-09. The charged assaults happened between May 4, 2022 and June 10, 2022. C.L. left Raymond on June 8, T 129, and after June 10 C.L. and Raymond only called and texted each other. T 146. C.L. testified Raymond never assaulted her after June 10. T 147. Gillespie would have seen C.L. at Hampton Beach several weeks after the last claimed assault. A bruised lip and leg bruises would have healed over several weeks. Whatever caused the busted lip and bruises Gillespie saw at the end of June had to have happened more recently than June 10. C.L. testified that she met Gillespie at the beach in August 2022, not June. C.L. testified, repeatedly, that she did not see Gillespie at the beach in June. T 290-91. C.L.’s own testimony contradicts Gillespie’s claim she saw these bruises in June.

Gillespie also testified that at least five times between March 2022 and June 2022, at Gillespie’s house, she saw C.L. with injuries to her neck. T 316-17, SB 40. Gillespie specifically testified that “when they came to the house, I had noticed the markings.” T 317. “They” would refer to C.L. and Raymond. From May 1, 2022 to June 8, 2022 C.L. and Raymond lived in an apartment in Manchester, not a house. T 42. During this time Gillespie lived in Deerfield. T 317. C.L. never testified to going to Gillespie’s house in Deerfield. Gillespie further testified that she had a brain injury in 2023 and suffered from domestic violence herself. She said that causes her brain to go “like in 10 different places” T 335. This brain injury causes her to frequently misconstrue words. T 335.

In sum, Stephanie Gillespie is a witness with a significant brain injury, who testified to seeing C.L.’s injuries in a month C.L. herself says she did not see Gillespie, and on other occasions at a place C.L. never testified C.L. went to. Her testimony is not overwhelming evidence of Raymond’s guilt.

WHEREFORE, for the reasons stated above as well as those offered in his opening brief and those to be offered at oral argument, Matthew Raymond respectfully requests that this Court reverse his convictions.

Undersigned counsel requests 15 minutes of oral argument.

This brief complies with the applicable word limitation and contains 1952 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.