State of New Hampshire v. Brandon Boggs

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0431, State of New Hampshire v. Brandon
Boggs, the court on April 12, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve this case by way of this order. See Sup. Ct. R. 20(2).
The defendant, Brandon Boggs, appeals his convictions for aggravated
felonious sexual assault following a jury trial in Superior Court (Nicolosi, J.).
We affirm.

On appeal, the defendant raises two issues: (1) whether the trial court
erred by denying his motion to exclude the results of the DNA analysis; and (2)
whether the trial court erred when it denied his motion for a mistrial or a
discovery sanction after the State failed to timely disclose corrective action
reports (CARs) regarding a witness. We address each issue in turn.

Before trial, the defendant moved to exclude the testimony of a
criminalist with the State laboratory who performed DNA analysis in this case.
The criminalist concluded that the defendant could not be excluded as the
minor contributor to a sample that had been submitted for analysis. It is
undisputed that the methodology used, short tandem repeat (STR) DNA
analysis, is reliable. The defendant’s challenge focuses on the State
laboratory’s application of its methodology at a specific genetic location,
referred to as “FGA.”

Expert testimony must rise to a threshold level of reliability to be
admissible. Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. 609, 613
(2002). “The proper focus for the trial court is the reliability of the expert’s
methodology or technique. The trial court functions only as a gatekeeper,
ensuring a methodology’s reliability before permitting the fact-finder to
determine the weight and credibility to be afforded an expert’s testimony.” Id.
at 616. When the application of a scientific methodology is challenged as
unreliable, “outright exclusion of the evidence in question is warranted only if
the methodology was so altered by a deficient application as to skew the
methodology itself.” State v. Langill, 157 N.H. 77, 88 (2008) (quotation
omitted). “Where errors do not rise to the level of negating the basis for the
reliability of the principle itself, the adversary process is available to highlight
the errors and permit the fact-finder to assess the weight and credibility of the
expert’s conclusions.” Id. (quotation, citation, and brackets omitted). “[A]s
long as an expert’s scientific testimony rests upon good grounds, . . . it should
be tested by the adversary process — competing expert testimony and active
cross-examination — rather than excluded from jurors’ scrutiny for fear that
they will not grasp its complexities or satisfactorily weigh its inadequacies.” Id.
(quotation omitted).

The defendant’s challenge rests in large part upon his contention that
the laboratory has a “stochastic threshold” of 500 relative fluorescence units
(RFU) in height1, and that a reading of 504 RFU at the FGA location required
the exclusion of the defendant as a possible contributor. As the State points
out, however, the criminalist explained that because one allele was detected so
close to the stochastic threshold and there were other peaks at the FGA
location, she could not tell if the sister allele was masked. Furthermore, she
explained that the reading above 500 could have been because “there’s
baseline that’s 4 — 4 RFU, and that’s the only reason it got up above — up
above 500. . . . But those — those little differences are so little, they’re not
significant.”

We agree with the trial court that to the extent the criminalist is alleged
to have erred in the application of the methodology, any flaws in her analysis
were best tested by cross-examination and the presentation of competing
expert testimony. See id. Accordingly, we find no error in the trial court’s
denial of the motion to exclude the criminalist’s testimony.

At trial, a serologist at the State laboratory also testified. On direct
examination, he testified to a number of CARs that he received while employed.
CARs describe errors a person made and direct the person to take corrective
measures. The defendant noted that he had not been provided with all of the
CARs, and after discussion the parties agreed that five CARs and two follow-up
reports had not been provided.2 The defendant moved for a mistrial with
prejudice or, in the alternative, an order excluding the serologist and the
criminalist as witnesses and excluding the DNA evidence from trial. The court
took the matter under advisement, and offered to allow defense counsel to
depose the serologist the following morning before counsel began cross-
examination. Defense counsel declined. The next morning, the court denied
the motion, concluding that any potential prejudice to the defendant had been
cured. The court noted that the defendant had been offered an opportunity to
depose the serologist, had seen his entire direct examination, had received all
relevant documents and had been able to review them overnight. The court
found no misconduct or gross negligence on the part of the prosecutors, and no
effort on their part to cause a mistrial.

1 Although the defendant asserted in his brief that the stochastic threshold was 200 RFU, he

thereafter filed an errata stating that the threshold is 500 RFU.

2 The defendant does not dispute that he was aware of seven CARs before trial.

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 In his brief, the defendant states that he is not arguing for dismissal.
Rather, he contends, the trial court “should have at least granted a mistrial
without prejudice.” Defense counsel told the trial court, however, that if it did
not grant a mistrial with prejudice, then the defendant was “not asking for a
mistrial where the State could retry [the defendant].” Thereafter, when the trial
judge remarked, “So I think in my view, I’m either going to grant a mistrial with
or without prejudice or not,” defense counsel clarified that the defense was
objecting to a mistrial without prejudice. Thus, because the defendant is not
arguing on appeal for a dismissal, and because the defendant objected in the
trial court to the granting of a mistrial without prejudice, we will not consider
whether the trial court erred by declining to grant a mistrial either with or
without prejudice. Rather, we limit our review to whether the trial court erred
by denying the defendant’s request to exclude the DNA evidence as a remedy
for the State’s discovery violation.

The trial court has discretion to fashion a remedy for a discovery
violation. See State v. Cotell, 143 N.H. 275, 279 (1998). We review the trial
court’s ruling for an unsustainable exercise of discretion. State v. Gamester, 149 N.H. 475, 478 (2003). The defendant has the burden of demonstrating
that the trial court’s discretionary ruling is clearly untenable or unreasonable
to the prejudice of his case. State v. Smalley, 148 N.H. 66, 69 (2002).

We agree with the trial court that the remedies it offered would have
sufficiently cured any potential prejudice to the defendant, and conclude that
the trial court did not err by not excluding the DNA evidence. The defendant
was offered an opportunity to depose the serologist before cross-examination.
In addition, he was provided all the relevant documents and had the
opportunity to review them overnight before commencing cross-examination.
These measures sufficiently addressed the defendant’s primary concern that
the late disclosure would prejudice his ability to effectively conduct a cross-
examination of the serologist. We do not find persuasive the defendant’s
argument that the late disclosure of additional CARs called into question the
efficacy and integrity of the State laboratory such that the trial court should
have excluded the DNA evidence. In sum, we are not persuaded that the trial
court’s discretionary ruling was clearly untenable or unreasonable to the
prejudice of the defendant’s case.

Affirmed.

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

Timothy A. Gudas,
Clerk

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