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State v. Stillwell

Supreme Court of New Hampshire

September 18, 2019


          Argued: June 6, 2019

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

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

          BASSETT, J.

         Following a jury trial, the defendant, Adrien Stillwell, was convicted on one count of first degree murder, see RSA 630:1-a, I(a) (2016), one count of second degree murder, see RSA 630:1-b (2016), and one count of conspiracy to commit murder, see RSA 629:3 (2016); RSA 630:1-a, I(a). On appeal, he argues that the Superior Court (Brown, J.) erred by: (1) allowing an expert to testify in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution; (2) admitting the out-of-court statements of an unavailable witness under the statement against penal interest exception to the hearsay rule; and (3) failing to take sua sponte action to address the allegedly improper statements made by the prosecutor during the State's closing argument. We affirm.

         I. Facts

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

         On November 3, 2015, the defendant and Smith went to a convenience store, where video surveillance shows that they met Younge. They then headed to M.P.'s apartment building, where the defendant shot and killed M.P. Shortly thereafter, a neighbor, who had heard "loud bangs" and her trash barrel falling over, found a gun when picking up the trash barrel. The gun contained six spent cartridges. Forensic testing established that a bullet recovered from the victim's body had been fired from the gun. A New Hampshire State Police Forensic Laboratory employee subsequently swabbed the gun for DNA.

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

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

         In December 2015, DNA swabs from the gun, along with buccal swabs from the defendant, Smith, and Younge, were sent to NMS Labs in Pennsylvania. NMS Labs generated DNA data from each swab and sent the machine-generated raw data to another company, Cybergenetics. Cybergenetics initially determined that there was DNA from four or five people on the gun. An expert at Cybergenetics, Mark Perlin, Ph.D., M.D., Ph.D., used a computer technology called TrueAllele to determine whether there was a match between the DNA on the gun and the DNA of Smith, Younge, or the defendant. He concluded that a "match between the gun and [the defendant] was 88.4 trillion times more probable than a coincidental match to an unrelated . . . African American person, " and that there was no support for a positive match between Smith or Younge and the gun.

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

         II. Confrontation Clause

         The defendant first argues that he was denied his right to confront witnesses against him as guaranteed by the Sixth Amendment to the Federal Constitution when Perlin, the State's expert, presented machine-generated raw DNA data to the jury, and testified that certain DNA profile data came from the defendant's sample and other DNA profile data came from the gun. The defendant asserts that this testimony was inadmissible because Perlin was not involved in generating the DNA data; therefore, he lacked personal knowledge as to which data resulted from the testing of which sample. The State responds that Perlin's expert testimony did not violate the defendant's confrontation rights because the raw DNA data was generated by a computer, and is, therefore, non-testimonial for purposes of the Confrontation Clause. The State further contends that the requirements of the Confrontation Clause are satisfied so long as an expert testifies about his or her own independent judgment, even if that judgment was based on inadmissible testimonial hearsay. See State v. McLeod, 165 N.H. 42, 53 (2013). We review Confrontation Clause challenges de novo. Id. at 47.

          The Sixth Amendment's Confrontation Clause provides that "the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The United States Supreme Court has held that this right allows the State to admit against a defendant the "testimonial statements" of an absent witness only when the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 59, 68-69 (2004). The Supreme Court defined "testimony" as, typically, "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (quotation and brackets omitted). Although Crawford did not identify a definitive class of testimonial statements, the Supreme Court did identify "[v]arious formulations" that comprise the core of testimonial hearsay, which generally include the following:

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

Id. at 51-52 (quotations, ellipsis, and citations omitted). The Supreme Court subsequently considered whether scientific reports are testimonial statements in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308-11 (2009), Bullcoming v. New Mexico, 564 U.S. 647, 651-52 (2011), and Williams v. Illinois, 567 U.S. 50, 65-67 (2012) (plurality opinion). We recently discussed these cases in State v. Watson, 170 N.H. 720, 728-33 (2018); here, we briefly summarize our analysis.

         In Melendez-Diaz, the Supreme Court held that certificates of analysis from a forensic laboratory that tested a substance found in connection with the defendant's arrest were testimonial. Melendez-Diaz, 557 U.S. at 308, 310-11. The Court compared the certificates to live testimony because they were "quite plainly affidavits, " and did "'precisely what a witness does on direct examination.'" Id. at 310-11 (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)). Since the certificates of analysis were made to establish or prove a fact - "that the substance found in the possession of Melendez-Diaz . . . was, as the prosecution claimed, cocaine" - the Court held they could not be introduced unless the authors of the certificates were subject to cross-examination. Id. However, the Court also noted "it is not the case[] that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Id. at 311 n.1.

          Similarly, in Bullcoming, the Court held that the Confrontation Clause did not permit the prosecution to introduce a "forensic laboratory report containing a testimonial certification - made for the purpose of proving a particular fact - through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." Bullcoming, 564 U.S. at 652. The Court noted that the document "reported more than a machine-generated number, " and included a certification that a blood sample had been received intact with the seal unbroken, that the forensic report number and the sample number corresponded, information about the manner in which the non-testifying analyst conducted testing, the "integrity of the sample, " and the "validity of the analysis." Id. at 659-60 (quotations omitted). ...

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