Argued: June 6, 2019
J. MacDonald, attorney general (Lisa L. Wolford, senior
assistant attorney general, on the brief and orally), for the
S. Wolpin, assistant appellate defender, of Concord, on the
brief, and Christopher M. Johnson, chief appellate defender,
orally, for the defendant.
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
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.
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.
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.
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.
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.
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.
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.
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.
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).