State of New Hampshire v. Joshua A. McNeil

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0548, State of New Hampshire v. Joshua
A. McNeil, the court on February 19, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Joshua A. McNeil, appeals his convictions following a jury trial in
the Superior Court (O’Neill, J.) on two counts of sale of a controlled drug. See
RSA 318-B:2, I (2017). The defendant argues that the trial court erred in
denying his motion to suppress audio-recorded statements of a confidential
informant (CI) made during controlled drug buys. He contends that the CI’s
statements were testimonial and that, because the CI did not testify at trial,
they were admitted in violation of his Sixth Amendment right under the United
States Constitution “to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. We affirm.

Based on the evidence admitted at trial, the jury could have found the
following facts. In September 2016, police officers with the New Hampshire
Attorney General’s Drug Task Force were working with a CI to conduct
controlled drug buys from the defendant. The CI had agreed to cooperate with
the officers in exchange for sentencing consideration after being arrested and
charged with felony-level drug sales. At the direction of the officers, the CI
purchased 14 tablets of Buprenorphine from the defendant on September 6,
and eight tablets of Buprenorphine and two packages of Suboxone sublingual
films from the defendant on September 26.1

During both controlled buys, the CI was outfitted with an audio-
recording device. Following the trial court’s denial of the defendant’s motion to
suppress the recorded statements of the CI, as well as further objections made
at trial, the CI’s statements were admitted into evidence. At the close of trial,
the defendant renewed his objections through a motion to dismiss, which was
denied by the trial court. This appeal followed.

The defendant contends that the trial court’s admission of the CI’s
recorded statements violated the Confrontation Clause of the Sixth
Amendment, arguing that the statements were testimonial. The State
disagrees, contending that the CI’s statements were admitted not for the truth
of the matters asserted, but rather to provide context for the defendant’s

1At trial, the State also presented evidence in support of a third controlled drug sale. That charge
was dismissed, however, due to insufficient evidence.
recorded statements. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)
(“The [Confrontation] Clause . . . does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.”). We
need not decide this issue because we conclude, as the State also contends,
that any error was harmless.

The State bears the burden of proving that an error is harmless. State v.
Hernandez, 159 N.H. 394, 402 (2009). An error is harmless only if it is
determined, beyond a reasonable doubt, that the verdict was not affected by
the error. Id. An error may be harmless beyond a reasonable doubt if the
alternative evidence of a defendant’s guilt is of an overwhelming nature,
quantity, or weight, and if the inadmissible evidence is merely cumulative or
inconsequential in relation to the strength of the State’s evidence of guilt. Id.
In making this determination, we consider the alternative evidence presented at
trial, as well as the character of the inadmissible evidence itself. Id.

We conclude that the State has established, beyond a reasonable doubt,
that the verdict was not affected by admission of the CI’s recorded statements.
At trial, the defendant was charged with two counts of sale of a controlled drug.
See RSA 318-B:2, I. Both indictments charged the defendant with knowingly
selling “a substance that he represented was the narcotic drug
Buprenorphine,” which “was subsequently determined to be the Schedule III
drug Buprenorphine.” Accordingly, for the jury to convict the defendant on
both counts, the State had to prove, beyond a reasonable doubt, that the
defendant knowingly sold Buprenorphine.

The alternative evidence of the defendant’s guilt was overwhelming, and
the CI’s statements were inconsequential in relation to its strength. See
Hernandez, 159 N.H. at 402. On September 6, the officers provided the CI with
$300 of marked United States currency for the buy. After searching the CI’s
person and vehicle, the officers followed him to the location where he had
agreed to meet the defendant. At trial, an officer conducting surveillance on
September 6 identified the defendant as the driver of the car that the CI
entered that day to complete the drug transaction. While the transaction
occurred, the lead investigator, who was also conducting surveillance, listened
to live feed of the audio-recording device that had been placed on the CI prior
to the transaction. He listened to the defendant make the following
statements: (1) “Here’s ten of them”; (2) “I can do 14”; (3) “13 is 195 . . . .
That’s cutting myself, but I’ll make it work”; and (4) “I can probably get some
strips soon.”

At trial, the lead investigator identified the defendant’s voice on the
recording based on a handful of phone conversations and one 30- to 40-minute
face-to-face meeting with the defendant, all of which occurred after the
controlled buys. After the transaction, the officers followed the CI to a
predetermined location and searched the CI and his vehicle. The CI gave the

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lead investigator 14 pills and $90 in change, $80 of which was marked money
that the officers had given the CI, and $10 of which was unmarked. The pills
were tested and, at trial, a chemist with the State confirmed that they were
Buprenorphine. The number of pills (14) and the change ($90) matched the
statements made by the defendant on the audio-recording. The defendant
stated that he could “do 14,” and that “13 is 195,” indicating that the pills were
$15 apiece. Thus, 14 pills would be $210, leaving the CI with $90 in change,
having started with $300.

On September 26, the officers provided the CI with $200 of United States
currency. After searching the CI’s person and vehicle, the officers again
followed the CI to the location where he had agreed to meet the defendant. At
trial, the lead investigator and another officer testified that, while conducting
surveillance, they observed the defendant exit a wooded area and get into the
front passenger seat of the CI’s vehicle. While the transaction took place, the
lead investigator listened to live feed from the audio-recording device placed on
the CI. He heard the defendant make the following statements: (1) “Eight, and
I got some strips too;” (2) “How many are there?”; and (3) “I have my doctor’s
tomorrow. So hopefully I can get more. I don’t know, though. No idea. I’ll let
you know.”

At trial, the lead investigator again identified the defendant’s voice on the
recording. After the controlled buy, the officers followed the CI to a
predetermined location where his person and vehicle were searched and he
gave the lead investigator eight pills and two packages of sublingual films. The
pills and sublingual films were tested and, at trial, a chemist for the State
confirmed that they were Buprenorphine and Suboxone respectively. The
number of pills (8) matched the statement made by the defendant on the audio-
recording.

Given the overwhelming evidence of the defendant’s guilt at trial, we
conclude that, even without the CI’s statements, the State succeeded in proving
each element of the crimes charged beyond a reasonable doubt: that the
defendant twice knowingly sold Buprenorphine. Any additional evidence
presented through the CI’s statements was superfluous. See, e.g., State v.
Tabaldi, 165 N.H. 306, 320-21 (2013). The defendant’s convictions are
affirmed.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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