State v. Marcano

• Decision Date: 11 July 1994
• Docket Number: No. 92-419,92-419
• Citation: 645 A.2d 661,138 N.H. 643
• Parties: The STATE of New Hampshire v. Raul MARCANO.
• Court: New Hampshire Supreme Court

Page 661

645 A.2d 661

138 N.H. 643

The STATE of New Hampshire v. Raul MARCANO.

No. 92-419.

Supreme Court of New Hampshire.

July 11, 1994.

Jeffrey R. Howard, Atty. Gen. (Susan G. Morrell, Asst. Atty. Gen., on the brief and orally), for State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

HORTON, Justice.

The defendant, Raul Marcano, was convicted after a jury trial in Superior Court (O'Neil, J.) as a drug enterprise leader under RSA 318-B:2, XII (Supp.1993). On appeal, the defendant argues: (1) that the trial court erred in admitting a non-testifying co-conspirator's guilty plea, acknowledgment of rights form, and conspiracy indictment as evidence against him; (2) that the penalty provisions of the drug enterprise leader (DEL) statute unconstitutionally chilled his right to a jury trial by requiring him to reach a sentencing agreement with the State or to receive a mandatory twenty-five-year sentence; and (3) that the court's admission of the certificate of analysis of alleged drugs without requiring the analyst to testify violated his confrontation rights. We reverse and remand.

The following evidence was adduced at trial. In November 1990, the defendant approached Chris Squeglia and discussed setting up a "safe haven" in Laconia to sell drugs. Squeglia located an apartment, the defendant paid the deposit, and the defendant and Soirlo Perotta set up a cocaine distribution operation there. Squeglia and others acted as "runners," locating customers, taking the customer's money to Perotta at the apartment, and receiving cocaine to bring back to the customer. The defendant or Perotta paid Squeglia and the other "runners" in drugs.

In December 1990, due to police surveillance, the operation moved into Jody Mathieu's apartment at the Village at Winnipesaukee. Mathieu agreed to let John Shew and Perotta move in and sell cocaine from her apartment for $100 a week. The defendant arrived every few days to replenish their cocaine supply, delivering a sock filled with one to two ounces of cocaine packed in coffee grounds.

In January 1991, the operation relocated again to Three Maples Cottages in Tilton. Shew rented one cottage and the defendant rented another. The defendant paid the rent for both cottages. The operation continued as before. On February 1, 1991, the New Hampshire Drug Task Force and the Belknap County Sheriff's Office executed a warrant to search the cottages. The search resulted in Perotta's arrest and the seizure of seventeen small bags of cocaine. Later that day, the defendant and Reynaldo Lugo drove from Manchester to the Three Maples Cottages carrying cocaine concealed in the engine compartment of Lugo's Nissan 300-Z. When they arrived, the police searched the car, discovered the cocaine, and arrested the defendant and Lugo. The defendant was indicted on one count of violating the DEL statute and on one count of conspiring with Perotta to sell cocaine.

Prior to trial, the defendant moved to dismiss and quash the DEL indictment, alleging, inter alia, that the penalty provisions of the DEL statute, contained in RSA 318-B:26, VI, chilled his constitutional right to a jury trial. The trial court denied the defendant's motion. The State entered nolle prosequi on the conspiracy indictment, and the conspiracy was treated as a lesser included offense of the DEL indictment.

At trial, the State moved to admit a certificate of analysis to prove that the substance seized from the cottages and Lugo's car was cocaine. The defendant objected to the admission of the certificate, arguing that he had a constitutional right to cross-examine the lab analyst. The certificate was admitted. At the close of its case, the State moved to admit Perotta's guilty plea, acknowledgment of rights form, and conspiracy indictment under New Hampshire Rule of Evidence 804(b)(3). Perotta had asserted his fifth amendment right against self-incrimination, refusing to testify because of possible State and federal drug charges. The court found him to be unavailable to testify under New Hampshire Rule of Evidence 804(a)(1) and admitted the guilty plea, acknowledgment of rights form, and indictment as a statement against penal interest under Rule 804(b)(3).

Perotta had pled guilty to one count of cocaine possession with intent to sell and one count of conspiracy to distribute cocaine. The conspiracy indictment stated: "Soirlo Perotta did agree with Raul Marcano to sell, dispense, offer or give to others narcotic drugs, and in furtherance of said conspiracy, Raul Marcano did rent cottage number 7 at Three Maples Cottages, Route 3, Tilton, New Hampshire to serve as the place where the crime would be committed." The defendant was convicted as a drug enterprise leader and sentenced to the mandatory minimum of twenty-five to fifty years pursuant to RSA 318-B:26, VI.

On appeal, the defendant contends that the trial court erred in admitting his co-conspirator's guilty plea, acknowledgment of rights form, and indictment as substantive evidence against him. The defendant argues that the admission of the non-testifying co-conspirator's guilty plea was overwhelmingly prejudicial and violated his confrontation rights under the State and Federal Constitutions. We need not address his constitutional claim because we hold that the admission of the non-testifying co-conspirator's guilty plea, acknowledgment of rights form, and conspiracy indictment was impermissibly prejudicial.

The heart of the defendant's argument is that the admission of the guilty plea allowed the jury to improperly infer that because his co-conspirator pled guilty, the defendant must also be guilty. The potential for prejudice is overwhelming where evidence of a co-conspirator's conviction is admitted for substantive purposes. The jury may abdicate its duty and "regard the issue of the remaining defendant's guilt as settled and the trial as a mere formality." United States v. Griffin, 778 F.2d 707, 711 (11th Cir.1985). A guilty verdict must be based on the evidence presented against the accused at his trial. Id. Therefore, we hold that the trial court erred in admitting the non-testifying co-conspirator's guilty plea, acknowledgment of rights form, and indictment as substantive evidence against the defendant. Our position is well supported by other federal and state courts that have considered the admission of such evidence. See, e.g., United States v. De La Vega, 913 F.2d 861, 866 (11th Cir.1990); United States v. Dworken, 855 F.2d 12, 30-31 (1st Cir.1988); United States v. Hutchings, 751 F.2d 230, 237 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985); United States v. King, 505 F.2d 602, 607 (5th Cir.1974); Baker v. United States, 393 F.2d 604, 614 (9th Cir.), cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106 (1968); State v. Parente, 460 A.2d 430, 434-35 (R.I.1983).

The State argues that there was no error in this case because the admitted guilty plea was used only to bolster the credibility of the State's witnesses, citing United States v. Hutchings, 751 F.2d 230 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985). In Hutchings, a confederate's trial testimony regarding his guilty plea was used to bolster that confederate's credibility. Id. at 237. We do not find the State's argument to be persuasive as the facts of this case are easily distinguished from those in Hutchings.

Where the trial court has erroneously admitted evidence, we must reverse unless the State can show beyond a reasonable doubt that such error did not affect the verdict. State v. Favreau, 134 N.H. 336, 342, 592 A.2d 1136, 1140 (1991). In an attempt to meet its burden, the State offers the following arguments: (1) Perotta's guilty plea was admitted without comment by the prosecutor; (2) the only remarks concerning the plea were made fleetingly in the State's closing to bolster the credibility of the State's witnesses; (3) the defendant tactically refused the proper limiting instruction; and (4) the evidence of the guilty plea was cumulative. Although no comment was made when the plea was admitted, we are not convinced beyond a reasonable doubt that the admission of the guilty plea did not affect the verdict. In his closing argument, the prosecutor made the following comments to the jury:

"Soirlo Perotta did agree with Raul Marcano, this man (pointing) to sell, dispense, offer or give to others narcotic drugs, and in furtherance of said conspiracy, Raul Marcano did rent cottage number seven at Three Maples Cottages, Route 3, Tilton, New Hampshire to serve as the place where the crime would be committed. Mr. Perotta came into the court and subjected himself to criminal liability pleading guilty to that, and as you can read, he signed the document that says I'm pleading guilty because I am guilty in addition to all the other rights that he's advised of at the time of his conviction."

The prosecutor's comments...