Criminal Law

No. 2017-0361

Eric Wind Attorney at NH Public Utilities Commission in Concord.

Eric Wind Attorney at NH Public Utilities Commission in Concord.

September 18, 2019
Affirmed

Whether the trial court erred by allowing an expert to testify in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Whether the trial court erred by admitting the out-of-court statements of an unavailable witness under the statement against penal interest exception to the hearsay rule.

Whether the trial court erred by failing to take sua sponte action to address allegedly improper statements made by the prosecutor during the State’s closing argument.

The defendant was convicted by jury on one count of first degree murder, one count of second degree murder, and one count of conspiracy to commit murder. The defendant argued that the trial court 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 allegedly improper statements made by the prosecutor during the State’s closing argument

The defendant first argued that he was denied his right to confront witnesses against him as guaranteed by the Sixth Amendment to the Federal Constitution when 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 the expert was not involved in generating the DNA data; therefore, the expert lacked personal knowledge as to which data resulted from the testing of which sample. The State responded that the 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 Court found that the expert’s inclusion of raw DNA data in his testimony did not violate the defendant’s confrontation rights because, unlike a person, the machine that generated the data cannot be cross-examined. The Court noted that the defendant’s arguments were purely constitutional in nature, as he did not raise issues of reliability, methodology, authentication, or chain of custody. As to the second issue of the witness’s attribution of certain DNA data to certain sources, the Court determined that the defendant failed to present a record sufficient to address the issue, and declined to address an issue of first impression on an insufficient record.

The defendant next argued that the trial court erred when, relying upon the statement against penal interest exception to the hearsay rule, it admitted inculpatory out-of-court statements made by a co-defendant on recorded phone calls from prison. The Court found that, compared to the State’s other overwhelming evidence of the defendant’s guilt, the statements in question were both cumulative and inconsequential; and that the State met its burden of showing that any error was harmless beyond a reasonable doubt.

Finally, the defendant argued that it was plain error for the trial court to have failed to act sua sponte to cure the prosecutor’s allegedly improper statements made during closing argument. The defendant alleged that the prosecutor made statements that constituted an impermissible personal attack on defense council, and that the prosecutor impermissibly conveyed to the jury the prosecutor’s personal opinions about the defendant’s credibility and guilt during closing argument. While acknowledging that the prosecutor’s statements were improper, the Court gave weight to the fact that the defendant’s council did not object to the statements, that defense council might have had good reasons not to object, and that closing statements are not evidence. As such, the Court concluded that it was not plain error for the trial court not to act sua sponte to cure the prosecutor’s improper statements.

 

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.