State of New Hampshire v. Volodymyr Zhukovskyy (Case Closed)

STATE OF NEW HAMPSHIRE

Coös, SS. Superior Court State of New Hampshire v.

Volodymyr Zhukovskyy Superior Court Case: 214-2019-CR-78

STATE'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF NMS REPORTING

POLICY CHANGE AT TRIAL

NOW COMES the State of New Hampshire, by and through the Office of the Coös County Attorney and the Attorney General, and respectfully requests this Honorable Court exclude any and all testimony and evidence related to an NMS Laboratories reporting policy change made subsequent to the testing performed by NMS Laboratories in this matter.

1. The State moves the Honorable Court to issue an order prohibiting defense counsel from questioning witnesses from NMS Laboratories, or other witnesses, who will testify at trial about a reporting policy change that was promulgated by Laura Labay in a memo she issued on January 15, 2021 that was effective January 16, 2021.

2. At the time that the State’s Forensic Toxicologist, Donna Papsun of NMS Labs, reported her findings on July 11, 2019, based on analyses of defendant’s blood done by NMS Labs, the lab’s policy afforded discretion to NMS Labs’ forensic toxicologists to report positive findings for substances found in blood that were verified below the Reporting Limit (RL), but above the Limit of Detection (LOD).

Ms. Papsun will testify that after she verified that certain reporting criteria were met, she issued a report on July 11, 2019, documenting a positive finding for 6 - monoacetylmorphine or 6 -MAM, a fast metabolizing metabo lite of heroin, in the defendant’s blood that was taken two hours after the crash. She issued her finding and report, consistent with NMS Labs’ policy in place at the time that allowed toxicologists to report findings below the reporting limit but above the limit of detection.

3. The lab’s policy change in no way effects Ms. Papsun’s report and is not relevant to the issue of her review of the analyses of defendant’s blood done by NMS Labs and the findings documented in her report. The basis for the policy change was to, “standardize reporting practices for consistency of reporting.” See deposition of Laura Labay, p. 22.

4. The State anticipates that defense counsel may seek to question either its own witness, Ms. Labay; or, one of the State’s witnesses from NMS Labs, most likely Ms. Papsun, about this policy change. Because the policy change is in no way relevant to Ms. Papsun’s findings documented in her July 11, 2019, report, the defendant should be barred from seeking to introdu ce the memo or questioning witnesses from NMS Labs on the reporting policy change. See N.H. Rule of Evid. 401. As such, this Court should exclude evidence of the reporting policy change at trial and prohibit defense counsel from questioning witnesses, including all of those from NMS Labs that testify at trial, on the policy or from introducing evidence in the form of Ms. Labay’s memo.

5. To the extent that the Honorable Court finds that evidence of the reporting policy change is relevant, the State seeks to exclude it as the proba tive value is substantially outweighed by the danger of unfair prejudice, confusing the issues or misleading the jury. See N.H. Rule of Evid. 403. Introduction of evidence related to the subsequent reporting policy change will only serve to confuse the j ury, and result in the misleading inference that Ms. Papsun’s report was inconsistent with science or otherwise false or inaccurate. The risk that evidence of the subsequent reporting policy change will sow confusion or mislead the jury is too great, particularly where defense counsel can already explore the scientific validity of her positive finding of 6 -MAM below the reporting limit by questioning its own witness during direct -examination, or through a State’s witness during cross - examination

WHEREFORE, the State requests that this Honorable Court:

A. GRANT the State's Motion and the relief requested in paras. 1 and 4 above; or

B. HOLD a hearing on the matter; or

C. GRANT any other relief deemed proper and just.

Respectfully submitted,

THE STATE OF NEW HAMPSHIRE

By its attorneys, July 21, 2022

/s/ John G. McCormick John G. McCormick, Esq.

Coos County Attorney NH Bar #16183 Office of the Coos County Attorney 55 School St. Suite 141 Lancaster, NH 03584

(603) 788-5559

/S/ Scott D. Chase Scott D. Chase, Esq.

Assistant Attorney General NH Bar #268772 Office of the Attorney General Criminal Justice Bureau 33 Capitol Street Concord, NH 03301-6397

/S/ Joshua L. Speicher Joshua L. Speicher, Esq.

Assistant Attorney General NH Bar #273020 Office of the Attorney General Criminal Justice Bureau 33 Capitol Street Concord, NH 03301-6397

CERTIFICATION

I certify that this pleading has been provided to Jay Q. Duguay, Esq., and Steve Mirkin, Esq., New Hampshire Public Defender’s Office, 134 Main Street, Littleton, NH 03561, through the Superior Court’s electronic filing system.

July 21, 2022

/s/ John G. McCormick ____ John G. McCormick, Esq.