State v. Mackenzie
| Docket Number | 2019-0265 |
| Decision Date | 08 April 2022 |
| Citation | 175 N.H. 87,281 A.3d 212 |
| Parties | The STATE of New Hampshire v. Benjamin M. MACKENZIE |
| Court | New Hampshire Supreme Court |
John M. Formella, attorney general (Zachary L. Higham, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Benjamin M. Mackenzie, appeals his conviction, following a jury trial in the Superior Court (Houran, J.), on one count of distribution of a controlled drug — fentanyl — with death resulting. See RSA 318-B:2, I (2017); RSA 318-B:26, IX (2017). He argues that the trial court erred when it: (1) admitted, as habit evidence under New Hampshire Rule of Evidence 406, testimony that the victim had previously purchased opioids from the defendant; and (2) admitted, as "intrinsic" to the charged crime, text messages between a cellphone alleged to belong to the defendant and other apparent drug customers. We affirm.
The record supports the following facts. In December 2016, the victim resided with her parents in Rochester. On December 12, at approximately 10:00 p.m., the victim told her parents she was going out and left the home. Thereafter, the victim exchanged text messages with the user of a cellphone associated with the number XXX-3908 (the 3908 phone). The victim texted that she "[n]eed[ed] a 30" and the recipient of the text replied "[g]etting it ready" and later "I'm looking for my scale." The victim and the user of the 3908 phone exchanged texts about their respective locations and set up a time and place to meet. The communication between the two individuals concluded with two brief calls occurring shortly before 11:00 p.m. The victim returned home soon thereafter, went to her bedroom, locked the door, and injected a fatal dose of fentanyl
. The next morning, her parents discovered her body and called 911.
In the course of investigating the victim's death, the Rochester Police Department extracted data from the victim's cellphone, including records of text messages and calls, and obtained records pertaining to the 3908 phone pursuant to a search warrant. The police were unable to identify the owner of the 3908 phone using those records because it was a "prepaid phone" for which subscriber information was not available.
Nevertheless, the police discovered other evidence linking the 3908 phone to the defendant. The victim's phone records demonstrated that the victim had labeled the contact associated with the 3908 number as "Ben Mackenzie." The 3908 phone records also implicated the defendant in that they contained text messages to the user of the 3908 phone from the defendant's mother and brother, including one text from his mother referring to the phone user as "Ben." Additionally, the police interviewed an individual who, based upon the phone records, was frequently in contact with the 3908 phone user, and who identified the defendant as the owner of that phone. The police also interviewed the defendant. He acknowledged that he had met the victim "a couple of times" but told the police that he had never owned a cellphone. Following further investigation, a grand jury indicted the defendant on one count of distribution of a controlled drug with death resulting in connection with the victim's death. See RSA 318-B:2, I; RSA 318-B:26, IX.
At trial, the State's theory was that the 3908 phone records demonstrated that the defendant acquired fentanyl on December 12 and then sold it to customers that evening and throughout the next day — including a sale to the victim. In support of this theory, the State adduced evidence that the defendant was the exclusive user of the 3908 phone, including the text from the defendant's mother to the phone user referring to that person as "Ben," and testimony that, approximately two and a half months prior to the victim's death, the defendant represented on employment paperwork that the 3908 number was his. To prove that the user of the 3908 phone — allegedly the defendant — sold the victim the fatal dose of fentanyl, the State relied upon text messages between the 3908 phone user and the victim on the night of her death, which the State's expert testified demonstrated that the victim "was about to meet up [with the 3908 phone user] to buy .30 of fentanyl [or] heroin." The State also elicited testimony from a close friend of the victim that the victim said, in December 2016, that she "had gotten drugs" — specifically opioids — "off of [the defendant]." In addition, the State offered the testimony of an expert interpreting the 3908 phone user's texts to other drug customers on December 12 and 13 as evidence of opioid trafficking. The jury convicted the defendant, and this appeal followed.
On appeal, the defendant challenges the trial court's evidentiary rulings with respect to the testimony of the victim's friend and the text messages from the user of the 3908 phone to other drug customers. He argues that the trial court erred when, prior to trial, it ruled that the testimony of the victim's friend was admissible under New Hampshire Rule of Evidence 406 as evidence of the victim's habit of buying opioids from the defendant. See N.H. R. Ev. 406. The defendant asserts that the court erred in two additional respects regarding this testimony. He contends that, even if the friend's testimony was admissible as habit evidence, the court erred when it determined prior to trial that the testimony would not be unfairly prejudicial under New Hampshire Rule of Evidence 403, see N.H. R. Ev. 403, and when, at trial, it overruled his hearsay objection and admitted the evidence under the residual hearsay exception, see N.H. R. Ev. 807. The defendant also appeals the trial court's pre-trial ruling admitting text messages between the user of the 3908 phone and other purported drug customers as "intrinsic" to the charged offense, or, alternatively, under New Hampshire Rule of Evidence 404(b). See N.H. R. Ev. 404(b).
The trial court has broad discretion to determine the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion. State v. Plantamuro, 171 N.H. 253, 255, 194 A.3d 464 (2018). When applying our unsustainable exercise of discretion standard of review, we determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. Id. To show that the trial court's decision is not sustainable, the defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id. With respect to the issues on which we are reviewing the trial court's pre-trial rulings, we limit our review to the proffers presented to the court before each ruling. State v. Nightingale, 160 N.H. 569, 573, 8 A.3d 136 (2010).
We first address the defendant's challenge to the court's pre-trial ruling that testimony of the victim's friend regarding the victim's past purchase of opioids from the defendant was admissible as habit evidence under Rule 406 to prove that it was the defendant who sold the victim fentanyl on the night of her death. As a threshold matter, the State contends that this argument is not preserved for our review. Because we ultimately rule in the State's favor, we assume, without deciding, that the defendant adequately preserved this issue for our review.
Turning to the merits, the defendant asserts that the State's in limine proffers were insufficient because the State failed to establish that the victim's behavior was "involuntary" or "semi-automatic," and that the victim's friend had knowledge that the victim frequently and consistently procured opioids from only the defendant. We agree with the defendant that the proffer was insufficient and that the testimony was admitted in error, but conclude that this error was harmless beyond a reasonable doubt.
Rule 406 provides that:
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
N.H. R. Ev. 406. Although Rule 406 does not define "habit," we have characterized it as a "regular response to a repeated specific situation ... which may become semi-automatic." Lapierre v. Sawyer, 131 N.H. 609, 611, 557 A.2d 640 (1989) (quotation omitted); N.H. R. Ev. 406 Reporter's Notes ( that habit evidence is similar to character evidence "only it is much more exacting"). The admissibility of habit evidence depends on the facts of each case. Lapierre, 131 N.H. at 611, 557 A.2d 640. For example, in a negligence action arising from a car accident, we affirmed the admission of evidence that the defendant, who had rented out the car that struck and injured the plaintiff, had a habit of testing his rental cars’ brakes before renting them to customers. Buxton v. Langan, 90 N.H. 13, 14-15, 3 A.2d 647 (1939) (preface to opinion); see also Barton v. Plaisted, 109 N.H. 428, 435, 256 A.2d 642 (1969) (); State v. Cornwell, 97 N.H. 446, 447, 91 A.2d 456 (1952) ().
To meet the threshold for admissibility under Rule 406, the proponent's proffer in support of admission must "demonstrate a regular response to a specific situation." Lapierre, 131 N.H. at 611, 557 A.2d 640. In Lapierre, which involved a negligence action arising from an injury suffered during a racquetball match, the plaintiff contended that evidence of the defendant's prior conduct of losing his temper constituted a "habit" that...
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