State v. Dilboy

• Decision Date: 20 April 2010
• Docket Number: No. 2008–287.,2008–287.
• Citation: 160 N.H. 135,999 A.2d 1092
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Anthony DILBOY.

160 N.H. 135
999 A.2d 1092

The STATE of New Hampshire
v.
Anthony DILBOY.

No. 2008–287.

Supreme Court of New Hampshire.

Argued: Jan. 20, 2010.
Opinion Issued: April 20, 2010.
As Modified on Denial of Reconsideration June 3, 2010.

999 A.2d 1096

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

160 N.H. 139

The defendant, Anthony Dilboy, was convicted of two counts of manslaughter, see RSA 630:2 (2007), and two alternative counts of negligent homicide, see RSA 630:3 (Supp. 2005) (amended 2006), following a jury trial. On appeal, he argues that the Trial Court (Fauver, J.; Houran, J.) erroneously: (1) admitted toxicology evidence under New Hampshire Rules of Evidence 401, 402, 403, and 404(b) ; (2) denied his motion to suppress urine test results; (3) admitted evidence of lab test results in violation of the Federal Confrontation Clause; (4) instructed the jury that evidence of voluntary intoxication could satisfy the mental state element of reckless; (5) used a special verdict form, and (6) denied his motion to dismiss the class A felony negligent homicide charges. We affirm.

160 N.H. 140

The record reveals the following. At approximately 1:45 p.m. on March 7, 2006, the defendant arrived at a friend's home to borrow her pick-up truck. The defendant then left just before 2:00 p.m. He later told the police he was on his way to Portsmouth to buy heroin.

At approximately 2:10 p.m., the defendant drove through a red light at a high rate of speed at the intersection of Indian Brook Drive and the Spaulding Turnpike in Dover. Mark Vachon, driving a Volvo sedan, was turning left at the intersection. Without slowing down, the defendant collided with the passenger-side of the Volvo, killing Vachon and his passenger, Alexander Bean.

Members of the Dover Police and Fire Departments arrived on the scene within minutes. They found the defendant standing beside the truck. He told the paramedics several times that he was addicted to heroin and suffering from withdrawal. He stated that he had taken three Klonopin tablets at 9:00 that morning, explaining that although he did not have a prescription for it, he was taking it to help with symptoms of heroin withdrawal. He denied using heroin that day. The paramedics started an IV, took a blood sample, and transported him to Wentworth Douglas Hospital.

Several officers from the Dover Police Department went to the hospital to interview the defendant, including Detective Brad Gould and Officers Daniel Gebers and David Martinelli. Gould arrived just before 3:00 p.m. and began interviewing the defendant. He told Gould that he was on his way to Portsmouth at the time of the accident, and had left at 10:00 a.m.

The defendant also told Gould that he was addicted to heroin but had not used it

999 A.2d 1097

since March 5, approximately forty-eight hours before the collision, when he had "snorted a couple of bags." He said he used heroin approximately two or three times a week and substituted other drugs, such as Klonopin and methadone, when he could not get heroin. He explained that he had swallowed one Klonopin pill at approximately 9:00 the morning of the collision, and "crushed and snorted" the other two.

Gould testified that the defendant's "speech was sluggish" and "his movements appeared slow." The defendant fell asleep several times while he was at the hospital. At approximately 3:30 p.m., Gould asked the defendant if he knew what time it was, and he responded that it was about noon or 1:00 p.m.

Shortly after Gould began interviewing the defendant, Officer Martinelli arrived. The officers conferred, and decided to arrest the defendant. Gould told him that he was under arrest, while Martinelli read him his administrative license suspension (ALS) rights. Gould then read the defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Four additional blood samples and a urine sample were then taken from the defendant at the hospital. The first blood sample was collected at

160 N.H. 141

approximately 4:45 p.m. Some time between 4:45 and 5:00, after the defendant had invoked his right to counsel and while Gould was present in the room, a hospital employee asked the defendant for a urine sample, which he supplied. The police then obtained a search warrant for the defendant's clothing, hair, and three additional blood samples, which were drawn one hour apart, beginning at 6:33 p.m. Officer Gebers took custody of the four blood samples, as well as the blood sample the paramedics earlier collected. He also took custody of the urine sample collected by the hospital, and took all of the samples to the police station.

At approximately 8:00 p.m., after the hospital finished treating the defendant, Martinelli administered field sobriety tests, while Gebers recorded the results During the second part of the one-leg stand, Martinelli noticed that the defendant swayed slightly and saw muscle tremors in his legs. The officers then waited for the hospital to discharge the defendant, during which time he fell asleep again. Gebers testified that the defendant was cold and appeared to have a dry mouth.

The five blood samples and urine sample were tested at the State Police Forensics Toxicology Laboratory under the supervision of Dr. Michael Wagner, the assistant laboratory director. Dr. Wagner testified that the laboratory testing found a trace amount of Klonopin, trace amounts of cocaine, and a quantifiable amount of a metabolite of cocaine in one sample of the defendant's blood, and cocaine, a metabolite of cocaine, morphine, and Oxycodone in the defendant's urine. Dr. Wagner explained that "trace" amounts of drugs meant that the lab reliably detected drugs in the samples but in an amount insufficient to quantify. Dr. Wagner testified that the detection of a trace amount of Klonopin in the defendant's blood sample was consistent with his having ingested three pills between 9:00 and 9:20 a.m. on the day of the accident. He also stated that the presence of morphine, a metabolite of heroin, in the defendant's urine was consistent with his having used heroin up to two days prior to the accident.

Dr. Wagner also described the physical and cognitive effects of these substances. He stated that Klonopin is a central nervous system depressant that can affect a person for up to six hours, or longer if the person snorts it. He stated that Klonopin can make a person feel "more tired, lethargic"

999 A.2d 1098

and be "less aware of [his] surroundings," and can slow a person's reaction time. It can also impair coordination, cognitive thinking, and vigilance, and cause dizziness and blurred vision. He further testified that symptoms of heroin withdrawal may begin within three to four hours after the last use. Within eight to twelve hours withdrawal may cause increased irritability and physiological changes in the body, including dry mouth, teary eyes, runny nose, tremors, muscle cramps, chills, goose bumps, and leg cramps. He explained that a user will experience peak withdrawal symptoms within

160 N.H. 142

one to three days after using heroin, after which the symptoms decrease until up to ten days. Withdrawal may impair a user's "decision-making process" and reaction time. It may also produce "risk taking behavior." He opined that a person who ingests heroin two to three times a week, and who substitutes other drugs when unable to get heroin, shows "an addictive profile."

Before trial, the defendant filed several motions to suppress evidence. The defendant was found guilty on all four charges. The trial court sentenced him on the two manslaughter charges. This appeal followed.

I. Toxicology Evidence

We first consider whether the toxicology evidence should have been admitted. The defendant argues that the toxicology evidence was not relevant to prove he was "under the influence" or suffering the effects of withdrawal because the amount of drugs found in the samples was too small. He also argues that the toxicology evidence was cumulative given the other evidence about his recent drug use and his symptoms of heroin withdrawal. He next argues that the probative value of the toxicology evidence was substantially outweighed by the danger of unfair prejudice from its admission because such evidence is "inherently prejudicial." Finally, he argues the evidence should have been excluded under New Hampshire Rule of Evidence 404(b).

"We will not reverse the trial court's admission of evidence absent an unsustainable exercise of discretion." State v. Dodds, 159 N.H. 239, 248, 982 A.2d 377 (2009) (quotation omitted). To meet this threshold, "the defendant must show that the decision was clearly unreasonable to the prejudice of his case." Id. at 248–49, 982 A.2d 377 (quotation omitted).

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