State v. Papillon

• Citation: 236 A.3d 839,173 N.H. 13
• Decision Date: 13 February 2020
• Docket Number: No. 2018-0355,2018-0355
• Parties: The STATE of New Hampshire v. Paulson PAPILLON
• Court: Supreme Court of New Hampshire

173 N.H. 13

236 A.3d 839

The STATE of New Hampshire

v.Paulson PAPILLON

No. 2018-0355

Supreme Court of New Hampshire.

Argued: September 12, 2019

Opinion Issued: February 13, 2020

Gordon J. MacDonald, attorney general (Peter Hinckley, senior assistant attorney general, on the brief and orally), for the State.

Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief and orally), for the defendant.

HANTZ MARCONI, J.

Following a jury trial in Superior Court (Brown, J.), the defendant, Paulson Papillon, was convicted of conspiracy to commit murder, see RSA 629:3 (2016); RSA 630:1-a, I(a) (2016), and as an accomplice to reckless second-degree murder, see RSA 626:8 (2016); RSA 630:1-b, I(b) (2016). On appeal, he argues that the trial court erred by: (1) concluding that he knowingly, intelligently, and voluntarily waived his right to counsel; (2) admitting evidence, in violation of New Hampshire Rule of Evidence 404(b), that he offered to facilitate the murder of another suspected police informant; and (3) finding the evidence sufficient to support his convictions. We affirm.

The jury could have found the following facts. During the latter half of 2015, the defendant and his associates, Adrien Stillwell, Nathaniel Smith, and Michael Younge, sold drugs in and around Manchester. The four men shared access to at least two apartment buildings, called "trap houses," from which they furthered their operation. The victim, M.P., regularly purchased drugs from the defendant, Stillwell, Smith, and Younge. On October 21, 2015, a confidential informant and M.P. each purchased drugs from the defendant at a Manchester hotel. That same day, the defendant was arrested and jailed after the hotel was searched, and the defendant came to believe that M.P. was the "snitch" responsible for his arrest.

The defendant was released on bail on October 26, and over the next several days, he urged Stillwell, Smith, and Younge to kill M.P. for his suspected role in the defendant's arrest. The day after the defendant was released, he paid to bail Smith out of jail so that Smith could help Stillwell and Younge murder M.P. The defendant continued to raise the topic of killing M.P. with his associates, offering them money and drugs to do so and emphasizing that it needed to happen "before he had court."

On October 31, Halloween, the defendant, Stillwell, Smith, and Younge met at one of the trap houses. The defendant once again pressed the three men to kill M.P., saying it should happen that night. To facilitate this plan, the defendant provided a gun — a .357 — and Halloween costumes, which he intended Stillwell, Smith, and Younge to wear as disguises. Deciding against the costumes, Stillwell, Smith, and Younge left to find and kill M.P. Stillwell and Smith were both armed — Stillwell with the .357 that the defendant had provided. Meanwhile, the defendant went to a casino in Connecticut so that its security cameras could prove he was in another state when M.P. died. However, Stillwell, Smith, and Younge decided "it wasn't a good opportunity" to kill M.P. after they saw him in his residence that night.

The defendant was upset when he discovered that M.P. was still alive after Halloween. He reiterated that he "needed it done" before he had to appear in court and said if Stillwell, Smith, and Younge "couldn't do it," he would have someone else kill M.P. On both November 2 and 3, cell phone contact among the four men rose to an unusual level. At approximately 6:00 p.m. on November 3, Stillwell called and sent a text message to the defendant. Shortly after 6:00 p.m., Stillwell — armed again with the .357 — and Smith met Younge at a convenience store near M.P.'s apartment building where they were captured on the store's security cameras. At approximately 6:17 p.m., they started walking up the street towards M.P.'s residence to make another attempt on his life. This time, Stillwell, Smith, and Younge found M.P. outside his apartment building. When M.P. began to walk away, Stillwell ran after him, firing the .357 six times. M.P. was shot twice and died at approximately 6:20 p.m. The defendant "made sure he wasn't there" when M.P. was killed, having had an acquaintance drive him to Massachusetts earlier that day.

After fleeing the scene, Stillwell and Younge returned to the apartment where they had met the defendant on Halloween and asked the woman who lived there, A.D., if the defendant "was back yet." Within minutes of the shooting, cell phone records showed that Stillwell had called the defendant twice and had exchanged text messages with the defendant. The defendant told A.D. to try calling M.P., feigning the need to set up a delivery for some drugs that she owed M.P. At approximately 8:00 p.m., the defendant, who by that time had returned to the trap house, sent Smith a text message that there was a large quantity of drugs waiting for him there. Smith arrived shortly thereafter.

The defendant met with Stillwell, Smith, and Younge in A.D.'s bathroom in an attempt to avoid being overheard, and his associates recounted how M.P. was killed. The defendant was happy to hear that M.P. was dead, started handing out drugs and money to his three associates, and said that they could "get back to business" now that the suspected informant was dead. However, the defendant became upset when Younge told him that the convenience store's security camera would have them on video before the murder, and the four of them discussed going to Connecticut the next day "to get out of town."

On November 4, the defendant, Stillwell, and Younge drove to Connecticut in a rented car. Along the way, Younge discarded the clothes he had worn the day before, and Stillwell and Younge discarded their cell phones. The defendant paid for Stillwell's and Younge's expenses at a casino and strip club in Connecticut. After a few days, the defendant returned to New Hampshire once he believed the investigation into M.P.'s death had cooled off. While another associate was driving the defendant around Manchester, the defendant said, "There's where I killed my f**king rat."

On November 9, the defendant was arrested on charges unrelated to M.P.'s murder. While incarcerated, he shared unpublicized details about M.P.'s death with L.M., a fellow inmate. The defendant told L.M. that he "knew it was done" when he received a phone call after M.P.'s death, and that he "had to have it done" because M.P. was going to inform on him "for some drugs." The defendant also communicated frequently with his sister via recorded phone calls from the prison to discuss the ongoing murder investigation. Stillwell and Smith had also been incarcerated in November on charges unrelated to M.P.'s murder, and Younge turned himself in on November 19 after his photograph was released in connection with M.P.'s death. The defendant was frustrated and nervous because he thought Stillwell, Smith, and/or Younge would implicate him in M.P.'s murder. The defendant told his sister that he wanted to send money to Stillwell and had her deliver drugs to Younge before Younge was arrested, but ultimately, the defendant wanted to bail himself and his associates out of jail in order to kill them before they could tell the police about his involvement in M.P.'s death.

Following a jury trial, the defendant was convicted of conspiracy to commit murder and as an accomplice to reckless second-degree murder. This appeal followed.

I. Waiver of Right to Counsel

The defendant argues that the trial court erred by permitting him to represent himself because there was insufficient evidence that he knowingly, intelligently, and voluntarily waived his right to counsel.

Both Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to counsel and the right to self-representation. State v. Martin, 171 N.H. 590, 593, 200 A.3d 365 (2018). We first address the defendant's claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

The right to counsel and the right to self-representation are mutually exclusive; the exercise of one right nullifies the other. Martin, 171 N.H. at 593, 200 A.3d 365 ; State v. Ayer, 150 N.H. 14, 25-26, 834 A.2d 277 (2003) (describing the right to counsel and the right to self-representation as "antithetical"); State v. Barham, 126 N.H. 631, 636, 495 A.2d 1269 (1985) ("This right to self-representation does not coexist with that of a defendant to be represented by counsel. Rather, its exercise extinguishes the constitutional right to counsel."). Because an accused who represents himself relinquishes "many of the traditional benefits associated with the right to counsel," he "must ‘knowingly and intelligently’ forgo those relinquished benefits." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The burden is on the State to prove an intentional relinquishment or abandonment of the right to counsel, which depends upon the particular facts and circumstances of the case, including the defendant's background, experience, and conduct. State v. Scarborough, 124 N.H. 363, 369, 470 A.2d 909 (1983).

To be effective, an assertion of the right to self-representation must be: (1) timely; (2) clear and unequivocal; and (3) knowing, intelligent, and voluntary. State v. Towle, 162 N.H. 799, 803, 35 A.3d 490 (2011). Thus, once a defendant has clearly and unequivocally expressed his desire to represent himself in a timely fashion, the court must ascertain whether the choice has been knowingly and intelligently made. See id. at 803-04, 35 A.3d 490 ; State v. Thomas, 150 N.H. 327, 328, 840 A.2d 803 (2003). "The court must, in this analysis, ‘indulge in every reasonable presumption against waiver’ of counsel." State v. Davis, 139 N.H. 185, 190, 650 A.2d 1386 (1994) (quoting Barham, 126 N.H. at 637, 495 A.2d 1269 ). "The court must also make the...