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New Hampshire Supreme Court Clerk's note: Defendant's petition for certiorari granted by U.S. Supreme Court on June 28, 2011. Judgment vacated and case remanded for further consideration in light of Bullcoming v. New Mexico, 564 U.S. __ (2011).

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2008-287 THE STATE OF NEW HAMPSHIRE v. ANTHONY DILBOY Argued: January 20, 2010 Opinion Issued: April 20, 2010 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. 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. 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 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

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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 (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 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" 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

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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 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 (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 (quotation omitted). All evidence must be relevant to be admissible. N.H. R. Ev. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.H. R. Ev. 403.

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Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. State v. Jenot, 158 N.H. 181, 185 (2008). "Unfair prejudice is not, of course, a mere detriment to [the objecting party's case], in which sense all evidence offered . . . is meant to be prejudicial." Id. (quotation omitted). Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision . . . on some improper basis, commonly one that is emotionally charged." Id. (quotation omitted). The defendant first argues that the evidence was not relevant. A central issue at trial was whether the defendant was under the influence of drugs. The timing of his ingestion of Klonopin and heroin was crucial in determining the level of drugs in his system and the effects of withdrawal he was feeling at the time of the collision. Thus, the trial court reasonably found that the toxicology results were relevant to show whether the defendant had recently ingested certain drugs and was under the influence of those drugs. The defendant next contends that the probative value of the toxicology evidence was substantially outweighed by the danger of unfair prejudice from its admission. The trial court reasonably could have determined that the evidence was highly probative of when the defendant last ingested drugs and, therefore, whether he was impaired at the time of the accident. Although the defendant admitted to ingesting heroin two days before the accident and Klonopin on the morning of the accident, there was evidence from which the jury could have found that his sense of time was distorted. For instance, while he told the police that he left at 10:00 a.m. to go to Portsmouth to buy heroin, in fact, he did not pick up his friend's truck until 1:45 p.m. Similarly, at the hospital, the defendant thought that it was 12:00 or 1:00 p.m., when, in fact, it was almost 3:30 p.m. Accordingly, the toxicology results were probative of when the defendant last ingested controlled drugs. The trial court also could have reasonably determined that the probative value of the toxicology evidence outweighed its prejudicial impact. While the defendant contends that the presentation of the toxicology evidence could have confused the jury because the analysis revealed only trace amounts of drugs, Dr. Wagner explained the laboratory's methodology for determining the amount of drugs in the defendant's system, and explained what was meant by "trace" amounts of drugs. With respect to whether the evidence was cumulative, the toxicology evidence was more probative than other evidence regarding when the defendant actually ingested drugs and, therefore, was not cumulative. See State v. Kornbrekke, 156 N.H. 821, 827 (2008). Finally, the defendant's conclusory argument that evidence of drug use is "inherently prejudicial" fails because, as the trial court found, "the urine test results ha[d]

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minimal prejudicial effect [because] . . . the defendant's past drug use [was] not a contested issue" at trial. See State v. Smalley, 151 N.H. 193, 200 (2004). For all of the above reasons, therefore, we hold that the trial court did not unsustainably exercise its discretion by admitting the toxicology evidence under New Hampshire Rules of Evidence 401, 402, and 403. Dodds, 159 N.H. at 248. Finally, the defendant argues that the toxicology evidence was propensity evidence that should have been excluded under New Hampshire Rule of Evidence 404(b). Although "[e]vidence of other crimes, wrongs, or acts" is inadmissible "to prove the character of a person in order to show that the person acted in conformity therewith," such evidence may be admissible for "other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." N.H. R. Ev. 404(b). To be admissible under Rule 404(b): (1) the evidence must be relevant for a purpose other than proving the defendant's character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to the defendant. State v. Howe, 159 N.H. 366, 375-76 (2009). However, Rule 404(b) is inapplicable here because the evidence of the defendant's drug use was not evidence of "other crimes, wrongs, or acts," but evidence of acts which constituted part of the crimes charged. Cf. State v. Kulikowski, 132 N.H. 281, 287 (1989) (evidence of threats or coercive behavior not evidence of "other crimes, wrongs, or acts" but "evidence of the very threat which coerced the victim during the assaults in question"). Because the toxicology evidence was relevant, offered for reasons other than to prove the defendant's propensity to use drugs, and the trial court found that its probative value was not substantially outweighed by the danger of unfair prejudice, we conclude that the trial court's ruling was not clearly untenable or unreasonable. See State v. Fandozzi, 159 N.H. __, __ (decided March 10, 2010). II. Illegal Seizure of Urine Sample

We next address the defendant's argument that the trial court erred in denying his motion to suppress the urine test results. After the defendant was arrested in his hospital room, Detective Gould advised him of his Miranda rights. While Gould was reading the first line of the Miranda rights form, the defendant responded, "[y]ou can talk to my lawyer." The trial court ruled that the defendant effectively invoked his right to counsel with this response. Gould, however, continued to interview the defendant. While they were speaking, a hospital staff person interrupted the interview to request that the defendant give a urine sample.

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The defendant argues that the urine sample was illegally seized. First, he argues that the seizure was illegal because the police learned of the urine sample during the illegal interrogation. Second, he argues that the police learned of the urine sample as a result of a privileged communication between himself and hospital personnel. He contends that because the police had no other basis of knowledge that the urine sample existed, the State cannot prove the police would have otherwise sought a warrant for it. Therefore, he argues, the urine was illegally seized and the court erred in admitting the results of its analysis. The defendant's first argument, that Detective Gould improperly learned of the urine test because of the illegal interrogation, is not preserved because the defendant did not raise it in superior court. In his motion to suppress, the defendant argued that the urine sample was illegally seized because the police did not have a warrant for it. The defendant's motion for reconsideration did not mention Detective Gould's learning of the urine sample during an illegal interrogation. Therefore, because the defendant did not raise this argument in superior court, it is not properly before us now. See State v. Ericson, 159 N.H. 379, 386 (2009). We next turn to the defendant's argument that the evidence should have been suppressed because the hospital violated his physician-patient privilege by requesting the urine sample in Gould's presence. The defendant argues that the hospital's request for a urine sample from the defendant was a "confidential communication" within the meaning of RSA 329:26 (amended 2008). RSA 329:26 provides that communications between a physician and patient are confidential. Traditionally, we have carefully guarded the confidential relationship between patients and their medical providers. State v. Sawtell, 152 N.H. 177, 179 (2005). The physician-patient privilege is meant to encourage "patients to fully divulge personal, and at times, embarrassing, information so their medical providers can, in turn, provide complete and appropriate medical treatment." In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 440 (2004). However, the presence of an extraneous third party during a privileged conversation operates to destroy the privilege. See State v. Melvin, 132 N.H. 308, 310 (1989). Because the defendant knew Gould was in the room, his presence destroyed the physician-patient privilege. See Al-Asadi v. City of Phoenix, No. CV-09-47-PHX-DGC, 2010 WL 716410, at *1 (D. Ariz. Feb. 24, 2010); State v. Gillespie, 710 N.W.2d 289, 298 (Minn. Ct. App.), review denied (Minn. 2006); People v. Di Lenola, 667 N.Y.S.2d 535, 535 (App. Div. 1997). Therefore, the request for the urine sample was not protected by the physicianpatient privilege, and the trial court did not err by denying the defendant's motion to suppress.

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III.

Confrontation Clause

We next address the defendant's argument that the admission of Dr. Wagner's testimony about the test results for his blood and urine samples violated the Federal Confrontation Clause. The defendant argues that the test results are testimonial under the recent United States Supreme Court case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and contends that they were inadmissible absent the testimony of the analyst who performed the tests. The State counters that Melendez-Diaz applies only to "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J., concurring). Because the defendant relies solely upon the Federal Constitution, we limit our review to his claims under the Federal Confrontation Clause. State v. O'Maley, 156 N.H. 125, 131 (2007), cert. denied, 129 S. Ct. 2856 (2009). Before trial, the defendant moved to "preclude the State's experts from testifying to: (1) transmittal slips; (2) report of laboratory examination; (3) blood and urine sample collection forms; (4) blood test results; (5) EMT reports" and "evidence collection forms," arguing that the admission of such testimony would violate his right to confrontation. The trial court, relying upon O'Maley, permitted Dr. Wagner's testimony about the blood test results, concluding that "the transmittal slips, the blood sample collection forms, and the blood test results are non-testimonial." The court reasoned that "the blood test results . . . are [not] accusations." Dr. Wagner testified that the laboratory conducts tests and analyzes "evidence at the request of law enforcement," and that he, along with the other laboratory employees, are "civilian representatives of the state police." Dr. Wagner explained that, primarily, he manages lab employees, "oversee[s] the development of [the] laboratories," and reviews and testifies about lab results. Although he does not test samples, Dr. Wagner is a "certifying scientist or senior toxicologist," and reviews the data, paperwork, comments, and "any issue that's involved in" sample analyses. Dr. Wagner explained how the laboratory receives, processes, and tests samples, and what kinds of samples it tests. The laboratory performs two tests on samples: a screening test to look for families of drugs, and then a more specific test to determine "the particular drugs that are present" based on any positive results from the first test. The laboratory usually produces "a drug screen report and . . . a drug confirmation report" for a particular sample. Then, the laboratory issues a "results letter" about the sample at issue. It is unclear from the record who authored the results letters for the defendant's samples, or who performed the tests on the samples.

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Dr. Wagner testified that he reviewed the test results for the defendant's samples. He testified that the laboratory found trace amounts of Klonopin, cocaine, and a metabolite of cocaine in the defendant's blood, and cocaine, a metabolite of cocaine, morphine, and Oxycodone in the defendant's urine. He discussed these substances and the likely effects of the drugs taken by the defendant on his body and mind depending on the mode of ingestion, and how long the drugs could remain in his body. Based upon the test results, Dr. Wagner opined as to when the defendant took the drugs at issue. Dr. Wagner also testified about the signs and symptoms of heroin withdrawal, its cognitive and physical effects, and the impact of the combination of the drugs the defendant took and heroin withdrawal on the defendant. The Sixth Amendment "provides that in all criminal prosecutions, the accused shall enjoy the right to be . . . confronted with the witnesses against him." Melendez-Diaz, 129 S. Ct. at 2531. In Crawford v. Washington, 541 U.S. 36, 51 (2004), the United States Supreme Court held that "[a] witness's testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Melendez-Diaz, 129 S. Ct. at 2531. "The crucial determination under Crawford as to whether an out-of-court statement violates the Confrontation Clause is whether it is `testimonial' or not." O'Maley, 156 N.H. at 131. "Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51 (quotation omitted). Whether a statement is testimonial is a question we review de novo. O'Maley, 156 N.H. at 138. In Crawford, the Court described the following as categories of testimonial statements: ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52 (quotation, citations and ellipsis omitted). Melendez-Diaz considered the admissibility of "three certificates of analysis showing the results of the forensic analysis performed on . . . seized substances" that identified the substances as cocaine. Melendez-Diaz, 129 S. Ct. at 2531 (quotation omitted). The certificates also described the weight of

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the bags containing the substances. Id. Analysts at the State Laboratory Institute of the Massachusetts Department of Public Health swore to the certificates before a notary public "as required under Massachusetts law." Id. The analysts did not testify at trial. See id. The Court held that the certificates were testimonial because they were "quite plainly affidavits: declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths." Id. at 2532 (quotation omitted). The certificates were "incontrovertibly a solemn declaration or affirmation made for the purpose of establishing or proving some fact," and were "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination." Id. (quotation omitted). The Court reasoned that the affidavits were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and noted that under Massachusetts law the "sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance." Id. (quotation omitted). The Court explicitly stated that it did "not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Id. at 2532 n.1. Although the prosecution has the obligation "to establish the chain of custody . . . this does not mean that everyone who laid hands on the evidence must be called." Id. (quotation and citation omitted). "[G]aps in the chain of custody normally go to the weight of the evidence rather than its admissibility." Id. (quotation and brackets omitted). It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. Id. Justice Thomas, the only member of the majority to write a concurring opinion, wrote separately to note his continuing adherence to his "position that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 2543 (Thomas, J., concurring) (quotation omitted). He joined the majority opinion "because the documents at issue in this case are quite plainly affidavits," which "fall within

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the core class of testimonial statements governed by the Confrontation Clause." Id. (Thomas, J., concurring) (quotation omitted). Although acknowledging that Melendez-Diaz "addressed a narrow category of testimonial statements"

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