State v. Marshall

• Decision Date: 03 November 2011
• Docket Number: No. 2009–508.,2009–508.
• Citation: 162 N.H. 657,34 A.3d 540
• Parties: The STATE of New Hampshire v. Jeffrey MARSHALL.
• Court: New Hampshire Supreme Court

162 N.H. 657

34 A.3d 540

The STATE of New Hampshire

v.Jeffrey MARSHALL.

No. 2009–508.

Supreme Court of New Hampshire.

Argued: May 5, 2011.Opinion Issued: Nov. 3, 2011.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

LYNN, J.

The defendant, Jeffrey Marshall, appeals his convictions in the Superior Court ( Nadeau, J.) of dispensing a controlled drug-death resulting, see RSA 318–B:26, IX (2004), and receiving stolen property, see RSA 637:7 (2007). We affirm.

I

The record supports the following. On October 21, 2007, Anthony Fosher, several other adults, and the defendant were together at the Comfort Inn in Portsmouth to watch a Red Sox game. Several of the adults were drinking alcohol; Fosher had a case of beer and was described by others as very intoxicated. At some point during the evening, Fosher began asking whether anyone could get cocaine for him. The defendant made some calls in an effort to get the cocaine, and Fosher gave him money to purchase it. The defendant left to purchase cocaine, but later called to say that he could only get heroin. Fosher indicated that he wanted the heroin, and continued to drink alcohol. The defendant returned and gave Fosher a bag of heroin. Fosher snorted an amount of heroin, as did some of the others, before passing out at some point.

The defendant did not provide Fosher with any of the alcohol that he drank that night. There was testimony, however, that, when giving Fosher the heroin, the defendant told another of the adults that she should “watch out for” and “[l]ook over” Fosher, because Fosher could die from consuming the entire bag of heroin. Due to his intoxicated state, Fosher had difficulty in breaking up the heroin into lines; the defendant commented that the lines looked “really big.”

At 12:42 p.m. the next day, the defendant's girlfriend called 911, as Fosher was non-responsive. She took money out of Fosher's pocket and gave it to the defendant, who also took a moneybag and a bag of leftover heroin. He then left the Comfort Inn before police and paramedics arrived. Fosher was pronounced dead at the hospital. Three days later, the police arrested the defendant.

The defendant was indicted by a Rockingham County grand jury on charges of receiving stolen property and dispensing a controlled drug-death resulting. At the close of all the evidence, he unsuccessfully moved to dismiss the drug charge, arguing that the State had introduced insufficient evidence to prove that the heroin caused Fosher's death as required under RSA 318–B:26, IX. Subsequent to the jury finding him guilty on both charges, the defendant unsuccessfully moved to set aside the verdict, again arguing an insufficiency of the evidence, and arguing that the jury verdict was against the weight of the evidence as to causation. This appeal followed.

On appeal, the defendant argues that the trial court erred in: (1) denying his pre-trial motion to dismiss the charge of dispensing a controlled drug-death resulting because the indictment failed to allege all of the elements of the offense; (2) denying his motion to dismiss because the State introduced insufficient evidence; and (3) denying his motion to set aside the verdict because it was against the weight of the evidence. Further, he contends that both of his convictions must be vacated because the record of a necessary portion of his trial was lost and could not be reconstructed. We address his arguments in turn.

II

The defendant first contends that the trial court erred in denying his pretrial motion to dismiss the charge of dispensing a controlled drug-death resulting. Citing Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments to the Federal Constitution, he contends that “[t]hese issues implicate [his] constitutional rights to due process and a grand jury indictment that alleges all of the elements of the charged offense.” Because the Grand Jury Clause of the Fifth Amendment has not been incorporated into the Fourteenth Amendment, and, thus, does not apply to the states, Gautt v. Lewis, 489 F.3d 993, 1003 n. 10 (9th Cir.2007); see McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3034–35, 3035 n. 13, 177 L.Ed.2d 894 (2010) (citing cases), we address only his arguments under the State Constitution. Because this is a question of constitutional law and statutory interpretation, our review is de novo. In re Alex C., 158 N.H. 525, 527, 969 A.2d 399 (2009).

Part I, Article 15 of the State Constitution provides that “[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him.” See also RSA 601:4 (2001) (“An indictment, information or complaint is sufficient if it sets forth the offense fully, plainly, substantially and formally, and it is not necessary to set forth therein the special statute, bylaw or ordinance on which it is founded.”). To meet this constitutional standard, an indictment must inform a defendant of the offense with which he is charged with sufficient specificity to enable him to prepare for trial and at the same time protect him from being put in jeopardy a second time for the same offense. See Alex C., 158 N.H. at 527, 969 A.2d 399. It is not enough merely to state the crime with which a defendant is being charged; the indictment must include the elements of the offense with sufficient allegations to identify the offense in fact. See id. Once a crime has been identified with factual specificity, however, there is no additional requirement that the acts by which a defendant may have committed the offense be identified. State v. MacElman, 154 N.H. 304, 313, 910 A.2d 1267 (2006). The question is not whether the indictment could have been more certain and comprehensive, but whether it contains the elements of the offense and enough facts to warn a defendant of the specific charges against him. Id.

RSA 318–B:26, IX reads:

Any person who manufactures, sells, or dispenses ... any ... controlled drug classified in schedules I or II, or any controlled drug analog thereof, in violation of RSA 318–B:2, I or I-a, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and may be sentenced to imprisonment for life or for such term as the court may order. For purposes of this section, the person's act of manufacturing, dispensing, or selling a substance is the cause of a death when:

(a) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and

(b) The death was not:

(1) Too remote in its occurrence as to have just bearing on the person's liability; or

(2) Too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect, as to have a just bearing on the person's liability. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance or by his consenting to the administration of the substance by another. Nothing in this section shall be construed to preclude or limit any prosecution for homicide. A conviction arising under this section shall not merge with a conviction of one as a drug enterprise leader or for any other offense defined in this chapter.

In this case, for the indictment to have been constitutionally sufficient, it must have communicated to the defendant that he was charged with dispensing a proscribed controlled drug and a death resulted from injecting, inhaling, or ingesting that controlled drug. Here, the indictment did just that, as it read, in pertinent part, that the defendant “committed the crime of Dispensing Controlled Drug–Death Resulting ... in that: 1. Jeffrey E. Marshall knowingly, 2. dispensed a quantity of the controlled drug heroin to Anthony Fosher, 3. and, subsequently, said heroin was inhaled and/or ingested by, Anthony Fosher, 4. resulting in his death, contrary to the form of the Statute in such case made and provided....”

The defendant argues that the indictment was insufficient because it did not allege that Fosher's inhalation or ingestion of the heroin was “an antecedent but for which” he would not have died or that his death was not “too remote in its occurrence to have just bearing on [the defendant's] liability” or “too dependent upon conduct of another person ... as to have a just bearing on the [the defendant's] liability.” RSA 318–B:26, IX(a), (b). The defendant contends that RSA 318–B:26, IX(a) and (b) constitute elements of the crime that had to be alleged in the indictment. We disagree.

To violate RSA 318–B:26, IX, a defendant must not only engage in certain conduct (manufacturing, selling or dispensing a controlled drug), but also must cause a specified result to occur (the victim's death from injecting, inhaling or ingesting the controlled drug). For criminal liability to attach in crimes such as this, the defendant's conduct must be both the “but-for” cause and the “proximate” cause of the prohibited result. See 1 W. LaFave Substantive

Criminal Law

§ 6.4(a), at 466 (2d ed.2003); see also State v. Lamprey, 149 N.H. 364, 366, 821 A.2d 1080 (2003). RSA 318–B:26, IX(a) sets forth the Model Penal Code's formulation of “but-for” causation. Model Penal Code § 2.03(1)(a), at 253 (1985). RSA 318–B:26, IX(b) sets forth one of the Model Penal Code's formulations of “proximate” causation. See id. § 2.03(2)(b), (3)(b).

Regardless of whether a criminal statute specifically sets forth tests for legal and proximate causation, “the law of causation— i.e., the rules that define when a defendant's conduct will be deemed to have ‘caused’ a particular result...