State of New Hampshire v. Paulson Papillon

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 2018-0355
THE STATE OF NEW HAMPSHIRE
v.
PAULSON PAPILLON
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.
2
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.
3
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 (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 (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;
State v. Ayer, 150 N.H. 14, 25-26 (2003) (describing the right to counsel and
the right to self-representation as “antithetical”); State v. Barham, 126 N.H.
631, 636 (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 (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 (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 (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; State v. Thomas, 150 N.H.
327, 328 (2003). “The court must, in this analysis, ‘indulge in every reasonable
presumption against waiver’ of counsel.” State v. Davis, 139 N.H. 185, 190
(1994) (quoting Barham, 126 N.H. at 637). “The court must also make the
defendant ‘aware of the dangers and disadvantages of self-representation, so
that the record will establish that he knows what he is doing and his choice is
made with eyes open.’” Barham, 126 N.H. at 637 (quoting Faretta, 422 U.S. at
835). “[I]f a defendant is ‘literate, competent, and understanding, and . . .
voluntarily exercising his informed free will,’ then a waiver may be found to be
4
knowing and intelligent.” Thomas, 150 N.H. at 328 (quoting Faretta, 422 U.S.
at 835).
The defendant contends that because the trial court failed to conduct a
sufficient colloquy, the court could not determine that his waiver was knowing,
intelligent, and voluntary. By contrast, the State argues that the trial court
properly found, after inquiring of the defendant and “unambiguously
caution[ing] him on the pitfalls of self-representation,” that the defendant’s
decision was knowing, intelligent, and voluntary. Based upon our review of the
record, we agree with the State.
After two days of trial, defense counsel informed the trial court that the
defendant wished to represent himself. The trial court conducted a colloquy
with the defendant, first inquiring into the reasons why he no longer wished to
be represented by his trial counsel. The defendant, who had already drafted
motions on his own behalf, articulated his perceived shortcomings of counsel,
explaining that he disagreed with their trial strategy and had been “bumping
heads [with them] for a while.” The trial court noted that it had recognized this
tension, but stressed that the defendant would be at a disadvantage in
proceeding without his attorneys, particularly in light of their criminal defense
experience, the “severity of [his] charges,” and the “significant legal issues” that
had yet to be addressed at trial. The trial court informed the defendant that he
would be responsible for dealing with such legal issues, cross-examining
witnesses, “presenting [his] case” after the State had rested, making and
responding to objections, and delivering closing arguments. The trial court
also confirmed that the defendant was not then under the influence of drugs or
alcohol.
With the defendant’s approval, the trial court appointed his defense
attorneys as standby counsel. The court thoroughly explained standby
counsel’s role, emphasizing that the defendant may seek their assistance on
questions of law or courtroom procedure, but that standby counsel were under
no obligation to affirmatively offer advice or direction going forward.
Throughout the trial court’s explanations, the defendant continued to
unquestionably reassert his desire to represent himself and express his
understanding of the information and cautionary warnings he received.
The defendant nonetheless argues that the record does not establish he
knowingly, intelligently, and voluntarily waived his right to counsel because the
trial court failed to inquire into his “ability to represent himself,” specifically
that the trial court “made no inquiry into [his] education, training, legal
experience, or even mental health.” To the extent the defendant is arguing that
he was incompetent and therefore could not have waived his right to counsel,
we find that such an argument is, under the circumstances of this case,
without merit and warranting no further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).
5
We are not persuaded by the defendant’s remaining critiques of the trial
court’s colloquy. We strongly prefer that trial court judges engage in a colloquy
with a defendant who wishes to waive his or her right to counsel, but we have
not required that any precise language or inquiries be employed so long as, by
the totality of circumstances, the record reflects that the defendant was aware
of the dangers and disadvantages of self-representation and made a knowing,
intelligent, and voluntary waiver of his right to counsel. See Thomas, 150 N.H.
at 329-30 (identifying Davis as “setting forth model colloquy for waiver of right
to counsel”).
Furthermore, contrary to the defendant’s assertion, “‘a criminal
defendant’s ability to represent himself has no bearing upon his competence to
choose self-representation.’” Hart v. Warden, N.H. State Prison, 171 N.H. 709,
727 (2019) (quoting Godinez v. Moran, 509 U.S. 389, 399 (1993)); see Faretta,
422 U.S. at 836 (“We need make no assessment of how well or poorly [the
defendant] had mastered the intricacies [of the law] . . . [f]or his technical legal
knowledge, as such, was not relevant to an assessment of his knowing exercise
of the right to defend himself.”). While “‘[i]t is undeniable that in most criminal
prosecutions defendants could better defend with counsel’s guidance than by
their own unskilled efforts,’” Hart, 171 N.H. at 727 (quoting Faretta, 422 U.S.
at 834), “a defendant has a constitutional right to represent himself, whether or
not that representation will be to his detriment.” Barham, 126 N.H. at 639.
On the particular facts and circumstances of this case, we conclude the
State has met its burden to show that the defendant knowingly, intelligently,
and voluntarily waived his right to counsel. See Thomas, 150 N.H. 329-30;
Scarborough, 124 N.H. at 369. The Federal Constitution offers the defendant
no greater protection than does the State Constitution under these
circumstances. See Faretta, 422 U.S. at 834-35; Thomas, 150 N.H. at 328,
330. Accordingly, we reach the same result under the Federal Constitution as
we do under the State Constitution.
II. Rule 404(b) Evidence
The defendant next argues that the trial court erred in admitting witness
testimony that he had offered to kill another suspected police informant
because it was irrelevant and unduly prejudicial in violation of New Hampshire
Rule of Evidence 404(b). The State argues that Rule 404(b) does not apply to
the challenged testimony because it was properly admitted as evidence
intrinsic to the charged offenses, and alternatively, that any error in admitting
this testimony was harmless. We hold that the testimony at issue was
admitted in error, but that this error was harmless beyond a reasonable doubt.
The challenged testimony occurred on the third day of trial, after the
defendant’s motion to represent himself had been granted. During the State’s
direct examination of J.M., an acquaintance of the defendant who lived in one
6
of the trap houses, the prosecutor began eliciting testimony about a
conversation the defendant had with her regarding her ex-fiancé. The
defendant objected on Rule 404(b) grounds, asserting that the State was about
to elicit testimony that he had “offered to commit another informant murder.”
In response, the State proffered that J.M. would testify that the defendant “told
her words to the effect of give me some money and I’ll kill the snitch like I’m
going to be doing in my case.” The State argued that the anticipated
testimony — that the defendant had offered to kill an additional, unrelated
informant — was not “extrinsic of the crime.” In apparent reliance on the
State’s argument, the trial court overruled the defendant’s objection.
The following exchange then occurred:
[PROSECUTOR:] Now if you can tell the jurors the conversation that you
have [with] the Defendant before [M.P.’s] shooting death.
[J.M.:] I was standing outside — well, standing at my doorway, and I was
waiting for my daughter to come home. And [the defendant] came up to
me. And my ex-fiancé had just gotten in big trouble for selling drugs.
And he told me you can do just what I’m going to do. All I need is $1000
and my boy will take care of it. And no snitch, no case or no body, no
case, or something like that. So he said wait. He was telling me to come
up with $1000 and I could get rid of the guy that set my ex-fiancé up.
[PROSECUTOR:] And this is a conversation that . . . the Defendant . . .
had with you?
[J.M.:] Correct.
[PROSECUTOR:] That you can have your boyfriend’s snitch killed just
like he’s having his snitch killed?
[J.M.:] Yes.
[PROSECUTOR:] No snitch, no case?
....
[J.M.:] Yes.
(Emphases added.) The defendant challenges the admission of the emphasized
sentences.
On the fifth day of trial, at the close of evidence and before closing
arguments, the defendant moved for a mistrial, arguing, in essence, that J.M.’s
testimony constituted inadmissible Rule 404(b) evidence because the State
used the evidence for impermissible character purposes and failed to state a
7
precise chain of reasoning to justify admitting it over his objection. In
response, the prosecutor said:
[The defendant] did come up to the bench and raise a 404(b) objection,
and our response to that was that it was an admission by [the
defendant]. It’s res gestae. It’s intrinsic to the offenses for which he’s
charged. And even if it were to be considered 404(b), it’s clearly relevant
to motive and intent. But, again, it’s an admission that he would offer to
kill her snitch just like he was going to kill his snitch. So it’s an
admission.
No further arguments were offered by either party, and the trial court denied
the defendant’s motion for a mistrial. The next day, the jury convicted the
defendant of conspiracy to commit murder and as an accomplice to reckless
second-degree murder.
A. Admissibility of Challenged Evidence
We first address whether the trial court erred in ruling that Rule 404(b)
is not applicable to the challenged testimony that the defendant offered to
orchestrate the murder of another suspected informant. “‘The proper test to
apply in deciding the admissibility of “similar acts” or “other acts” evidence
depends upon whether the evidence in question is “intrinsic” or “extrinsic”
evidence.’” State v. Dion, 164 N.H. 544, 551 (2013) (quoting United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990)) (noting that the applicable test for
admissibility of intrinsic evidence is found in Rule 403). We review the trial
court’s ruling on the admissibility of evidence for an unsustainable exercise of
discretion, and will reverse only if it was clearly untenable or unreasonable to
the prejudice of the defendant’s case. State v. Nightingale, 160 N.H. 569, 573
(2010).
At the time of the defendant’s trial, New Hampshire Rule of Evidence
404(b) provided:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in
conformity therewith. It may, however, 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) (amended 2018); see State v. Plantamuro, 171 N.H. 253, 255
(2018). The rule, “‘by its very terms, excludes only extrinsic evidence —
evidence of other crimes, wrongs, or acts — whose probative value exclusively
depends upon a forbidden inference of criminal propensity.’” State v. Wells,
166 N.H. 73, 77 (2014) (quoting United States v. Epstein, 426 F.3d 431, 439
(1st Cir. 2005)).
8
“Other act” evidence is “intrinsic,” and therefore not subject to Rule
404(b), when the evidence of the other act and the evidence of the crime
charged are “inextricably intertwined” or both acts are part of a “single criminal
episode” or the other acts were “necessary preliminaries” to the crime charged.
Id. “Intrinsic” or “inextricably intertwined” evidence will have a causal,
temporal, or spatial connection with the charged crime. Id. (citing United
States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (discussing “background
evidence”)). “‘Typically, such evidence is a prelude to the charged offense, is
directly probative of the charged offense, arises from the same events as the
charged offense, forms an integral part of a witness’s testimony, or completes
the story of the charged offense.’” Id. at 77-78 (quoting Hardy, 228 F.3d at
748); see United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012) (referring to
this list — as quoted in Wells — as “[e]xamples of general categories that may
satisfy the[] requirements” of intrinsic evidence). “This type of evidence is
admissible under the rationale that ‘events do not occur in a vacuum, and the
jury has a right to hear what occurred immediately prior to and subsequent to
the commission of [the charged] act so that it may realistically evaluate the
evidence.’” Wells, 166 N.H. at 78 (quoting Wesbrook v. State, 29 S.W.3d 103,
115 (Tex. Crim. App. 2000) (en banc) (explaining “same transaction contextual
evidence”)).
The defendant argues that J.M.’s testimony about his offer to have
another suspected police informant killed “was entirely unrelated to the killing
of [M.P.]” and that the admission of this evidence of other acts violated Rule
404(b). The State argues that the challenged testimony, as emphasized above,
was admissible as intrinsic evidence because it was inextricably intertwined
with the defendant’s admission to J.M. about what he was “going to be doing”
in his case, and the challenged statements “provided necessary context” for his
admission to J.M. about conspiring with and soliciting his associates to kill
M.P.
Here, any connection between the challenged statements and the
charged offenses is too attenuated for that evidence of other acts to constitute
evidence intrinsic to the charged offenses. Evidence that, for $1000, the
defendant agreed to have his “boy[s] . . . take care of” another suspected police
informant in a separate matter is not necessary to complete the story of the
conspiracy to murder M.P. or the defendant’s liability as an accomplice to
M.P.’s murder. Although these statements were made to J.M. in early
November 2015, which bears an arguable “temporal connection” to the charged
conspiracy and murder of M.P., without a sufficient underlying factual nexus,
these statements are merely coincidental to the charged offenses. See Wells,
166 N.H. at 78 (evidence of uncharged act had a “close temporal connection” to
the charged crime where the act “took place immediately prior to the charged
act, provided the jury with a full account of a single [criminal episode], and
enabled the jury to realistically evaluate [the victim’s] testimony”); Dion, 164
N.H. at 546-47, 550-51 (concluding that evidence of defendant’s cell phone use
9
during a thirty-seven minute car ride prior to a fatal collision with a pedestrian
was intrinsic to the charged offense of negligent homicide).
Importantly, the defendant’s apparent willingness to facilitate the murder
of another, unrelated, suspected “snitch” was not “part of the same criminal
episode” or at all part of a sequence of events leading to the charged conspiracy
to murder M.P. or his subsequent murder. See Wells, 166 N.H. at 77
(concluding Rule 404(b) did not apply “because the . . . testimony was
admissible evidence of a single criminal episode”); Nightingale, 160 N.H. at 574
(emphasizing that “[t]he conversations at issue and the crime charged in the
indictment [were] part of a single criminal episode” in concluding Rule 404(b)
did not apply (quotation omitted)); State v. Martin, 138 N.H. 508, 517-18 (1994)
(explaining that Rule 404(b) did not apply to threats defendant made to victim
because the threats “were a material part of the entire course of conduct
surrounding the commission of the alleged [aggravated felonious sexual
assaults]”).
Although evidence that “forms an integral part of a witness’s testimony”
about the charged offense(s) may also suggest that said evidence is intrinsic,
Wells, 166 N.H. at 77-78 (quotation omitted), here the challenged statements
fall short of forming an integral part of J.M.’s testimony that the defendant
admitted he was going to kill the “snitch” in his case. See id. at 77; Clay, 667
F.3d at 698. Absent the challenged statements, J.M.’s testimony details the
defendant’s advice to her on how to handle her ex-fiancé’s “snitch” problem —
by “do[ing] just what [he’s] going to do. . . . [N]o snitch, no case, or no body, no
case.” We are not persuaded that removing the challenged statements renders
J.M.’s testimony unintelligible or creates a vacuum in the story of the charged
crimes. See Wells, 166 N.H. at 78; Clay, 667 F.3d at 698 (explaining that
evidence was not intrinsic where “it [was] a completely separate and distinct
offense that is not essential for providing a coherent and intelligible description
of the charged offense” (quotation omitted)); 1 George Dix et al., McCormick on
Evidence § 190, at 754 (6th ed. 2006)). Contrary to the State’s position, it is
not enough that the challenged statements about the defendant’s offer to kill
another suspected police informant added “probative force” to J.M.’s testimony;
the statements were not necessary or essential to enable the jury to
“realistically evaluate her testimony” about the charged offenses — that the
defendant was admitting he was going to kill the “snitch” in his own case.
Wells, 166 N.H. at 77-78; see Clay, 667 F.3d at 698; 29A Am. Jur. 2d Evidence
§ 876, at 175 (2008) (“Other criminal act evidence admissible as part of the res
gestae or same transaction introduced for the purpose of explaining the crime
charged must be confined to that which is reasonably necessary to accomplish
such purpose.” (emphasis added)). The challenged statements do not have a
sufficient connection to the remainder of the defendant’s admissions to J.M.
such that they formed an “integral” part of her testimony. See Hardy, 228 F.3d
at 748 (“[T]he ‘background circumstances exception’ to the general exclusion of
other act evidence is not an open ended basis to admit any and all other act
10
evidence the proponent wishes to introduce. Rather the very definition of what
constitutes background evidence contains inherent limitations.”); Clay, 667
F.3d at 698 (noting that the intrinsic evidence exception to Rule 404(b)
“contains severe limitations”).
The State’s argument that, without the challenged testimony, it would be
unclear why the defendant “made an admission to murder out of the blue and
with no reason, to a person with whom he rarely interacted and to whom he
seldom spoke,” is also insufficient to allow J.M.’s testimony about the
defendant’s offer to arrange the killing of another, unrelated, suspected
informant to permissibly escape the requirements of Rule 404(b). See State v.
Melcher, 140 N.H. 823, 829-30 (1996) (applying Rule 404(b) to testimony about
the relationship between defendant and victim and rejecting the trial court’s
finding that such testimony was admissible under Rule 404(b) because “the
relationship ultimately made it ‘unlikely that the act would occur out of the
blue’”); United States v. Gibbs, 797 F.3d 416, 424 (6th Cir. 2015) (rejecting the
government’s argument that evidence of other acts was intrinsic because,
without the evidence, “it might be unclear why [witnesses] came forward”).
To the extent the State argues that Rule 404(b) does not apply to the
challenged testimony because it constitutes a statement of a party opponent,
we disagree. The mere fact that a witness’s testimony constitutes statements
by a party opponent, i.e., “admissions,” does not implicate the intrinsic
evidence doctrine. See State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing
a verbal threat under Rule 404(b)); State v. Richardson, 138 N.H. 162, 164-68
(1993) (analyzing defendant’s collective statements and behavior shortly before
and after the charged offense under Rule 404(b)); People v. Ventimiglia, 420
N.E.2d 59, 63 (N.Y. 1981) (clarifying that the admissibility of “inextricably
interwoven” evidence “does not make evidence admissible simply because it is a
part of [a] conversation other parts of which are admissible”). An out of court
statement is not admissible merely because it is not hearsay under Rule
801(d)(2)(A) — it must also pass muster under the other rules of evidence.
State v. Belonga, 163 N.H. 343, 359 (2012); see United States v. Oberle, 136
F.3d 1414, 1418 (10th Cir. 1998) (“Although the statements are party
admissions . . . and thus not hearsay, they must nevertheless also be analyzed
for admissibility under Rule 404(b) because they reveal or suggest prior
criminal conduct.”).
In analyzing the applicability of the intrinsic evidence exception to Rule
404(b), we must remain mindful of the purpose of Rule 404(b), which is to
“ensure that the defendant is tried on the merits of the crime as charged and to
prevent a conviction based upon evidence of other crimes or wrongs.” State v.
Beltran, 153 N.H. 643, 647 (2006). The intrinsic evidence exception “cannot
serve as a backdoor to circumvent” this purpose. Gibbs, 797 F.3d at 423
(quotation omitted); see also State v. Crosby, 142 N.H. 134, 138 (1997) (“The
State may not employ a trial strategy of introducing evidence which itself
11
creates the necessity for admitting bad acts evidence.”). Here, in deciding
whether to convict the defendant for conspiring to murder M.P. and for his role
as an accomplice to M.P.’s murder, the jury was permitted to consider evidence
that the defendant offered to orchestrate the killing of another, unrelated,
suspected police informant. Because this evidence of other acts was not
intrinsic to the charged offenses, the proper rule governing the statements’
admissibility is Rule 404(b). See Dion, 164 N.H. at 551. Therefore, the trial
court unsustainably exercised its discretion in concluding that Rule 404(b) did
not apply.1
B. Harmless Error
Having concluded that the challenged evidence was subject to Rule
404(b), we need not decide whether its admission under that rule was error
because we agree with the State that any error in admitting the challenged
testimony was harmless beyond a reasonable doubt.
The harmless-error doctrine recognizes the principle that the central
purpose of a criminal trial is to decide the factual question of the
defendant’s guilt or innocence, and promotes public respect for the
criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.
State v. Edic, 169 N.H. 580, 588 (2017) (quotation omitted). To establish that
an error was harmless, the State must prove beyond a reasonable doubt that
the error did not affect the verdicts. Id. This standard applies to both the
erroneous admission and exclusion of evidence. Id. An error may be harmless
beyond a reasonable doubt if the alternative evidence of the defendant’s guilt is
of an overwhelming nature, quantity, or weight and if the improperly admitted
evidence is merely cumulative or inconsequential in relation to the strength of
the State’s evidence of guilt. Id. at 588-89. In making this determination, we
consider the alternative evidence presented at trial as well as the character of
the erroneously admitted evidence itself. Id. at 589.
To convict the defendant of conspiracy to commit murder as charged in
the indictment, the State was required to prove that, with a purpose that the
crime of murder be committed, the defendant agreed with Younge, Stillwell,
and/or Smith to cause the death of M.P., and that one or more of the co-
conspirators committed an overt act in furtherance of the conspiracy. See RSA
629:3, I; RSA 630:1-a, I(a). To convict the defendant as an accomplice to
reckless second-degree murder as charged in the indictment, the State was
1 This error formed the basis for the defendant’s motion for a mistrial, which the trial court
denied. Although the defendant claims on appeal that the trial court erred in denying his motion
for a mistrial, this argument is inadequately briefed and is therefore waived. See State v. Barr,
172 N.H. __, __ (decided Nov. 22, 2019) (slip op. at 4).
12
required to prove that the defendant, acting in concert with Younge, Stillwell,
and/or Smith, caused the death of M.P. recklessly under circumstances
manifesting an extreme indifference to the value of human life. RSA 626:8;
RSA 630:1-b, I(b).
There was overwhelming evidence of the defendant’s guilt as a co-
conspirator and as an accomplice to the murder of M.P. Younge testified in
detail regarding the defendant’s role in encouraging, planning, and facilitating
M.P.’s murder. Other witnesses corroborated his testimony, including the facts
that the defendant wanted M.P. killed because he thought M.P. was a police
informant, had paid to bail Smith out of jail so that Smith could help kill M.P.,
and encouraged his associates to wear Halloween costumes as disguises to kill
M.P. The jury heard evidence that the defendant was happy upon learning of
M.P.’s death and told his associates to “get back to business.” A.D. testified
that she confirmed M.P.’s death at the defendant’s behest, and cell phone
records showed the defendant was in contact with his co-conspirators shortly
before and after the murder. Testimony showed that the defendant rewarded
his associates with drugs, money, and an expenses-paid trip to Connecticut
once M.P. was murdered. Notably, there was also substantial evidence of the
defendant’s own inculpatory statements supporting both charges.
The jury also heard evidence about how the defendant left the State on
Halloween and before M.P.’s murder on November 3 so that he would have an
alibi and took Younge and Stillwell to Connecticut the day after M.P. was
murdered to “get out of town.” Recorded phone calls with his sister and
testimony from the defendant’s fellow inmate, L.M., revealed the defendant’s
concern over whether he would be implicated in M.P.’s death and his efforts to
prevent his associates from talking to the police, up to and including the
defendant’s desire to kill his co-conspirators. These facts were all evidence of
the defendant’s consciousness of guilt. See State v. Colbath, 171 N.H. 626,
638 (2019); Edic, 169 N.H. at 590; State v. Etienne, 163 N.H. 57, 85-86 (2011).
Compared to the substantial strength of the evidence of the defendant’s
guilt on both charges, the challenged testimony was inconsequential. See Edic,
169 N.H. at 591-92. Although the admission of J.M.’s testimony about the
defendant’s offer to facilitate the murder of another suspected police informant
undoubtedly prejudiced him, see State v. Davidson, 163 N.H. 462, 471 (2012),
a review of the record belies any concern that the introduction of the
challenged testimony denied the defendant a fair verdict. The jury had before it
overwhelming evidence of the defendant’s guilt in the conspiracy to murder
M.P. and as an accomplice to M.P.’s eventual murder. In relation, the
erroneously admitted testimony was inconsequential.2 Accordingly, we
conclude that the State has met its burden of proving that the error in
2This case presents a rare instance of a harmless Rule 404(b) error. State v. Smith, 141 N.H.
271, 279-80 (1996).
13
admitting the challenged testimony did not affect the verdicts, and was,
therefore, harmless beyond a reasonable doubt. See Edic, 169 N.H. at 588-92.
III. Sufficiency of the Evidence
Lastly, the defendant argues that the evidence was insufficient to
support his convictions. To prevail upon his challenges to the sufficiency of the
evidence, the defendant must prove that no rational trier of fact, viewing all of
the evidence and all reasonable inferences from it in the light most favorable to
the State, could have found guilt beyond a reasonable doubt. State v.
Vincelette, 172 N.H. 350, 354 (2019). Because challenges to the sufficiency of
the evidence raise a claim of legal error, our standard of review is de novo.
State v. Lisasuain, 167 N.H. 719, 722 (2015).
As to the defendant’s conspiracy conviction, RSA 629:3, I, provides:
A person is guilty of conspiracy if, with a purpose that a crime defined by
statute be committed, he agrees with one or more persons to commit or
cause the commission of such crime, and an overt act is committed by
one of the conspirators in furtherance of the conspiracy.
RSA 629:3, I. Conspiracy punishes the agreement to commit or cause the
commission of a crime. State v. Chaisson, 123 N.H. 17, 24 (1983). “[A] tacit
understanding between the parties to cooperate in an illegal course of conduct
will warrant a conviction for conspiracy,” so long as one of the co-conspirators
commits an overt act in furtherance thereof. State v. Kilgus, 128 N.H. 577, 586
(1986) (quotation omitted). Here, the State charged the defendant with
conspiring to commit first degree murder. See RSA 630:1-a, I(a) (defining first
degree murder, in part, as “[p]urposely caus[ing] the death of another”).
The defendant argues that there was insufficient evidence of an
agreement to cause M.P.’s death to support his conviction for conspiracy
because “[t]here was no meeting of the minds to kill [M.P.] on November 3,
2015.” This argument misconstrues the State’s burden in proving the
defendant’s guilt.
As an initial matter, the State was not required to prove that an
agreement to commit murder occurred on the same day that said murder was
in fact committed because “[c]onspiracy is an inchoate crime that does not
require the commission of the substantive offense that is the object of the
conspiracy . . . .” State v. Donohue, 150 N.H. 180, 185 (2003). Furthermore,
the defendant’s indictment did not allege that the defendant participated in an
agreement to murder M.P. on November 3. The defendant’s indictment for
conspiracy to commit murder alleged in pertinent part:
14
[O]n or between October 8, 2015, and November 3, 2015, . . . with the
purpose that the crime of murder be committed, a crime defined by RSA
630, Paulson Papillon agreed with Michael Younge, Adrien Stillwell,
[and/or] Nathaniel Smith . . . to cause the death of [M.P.], and that one
or more of the co-conspirators committed one or more of the following
overt acts in furtherance of the conspiracy: [alleging nineteen distinct
overt acts.]
(Emphasis added.) Thus, even assuming that no rational jury could have
found that a “meeting of the minds” occurred on November 3, the defendant’s
argument is unavailing.
The defendant also attempts to import the contractual principles of
“offer” and “reject[ion]” into the agreement element of the conspiracy statute,
arguing that the evidence as to that element was insufficient because Stillwell,
Smith, and Younge “expressly rejected the means and mode that [the
defendant] proposed to carry out his intended plot” — namely, killing M.P. on
Halloween while wearing costumes that the defendant had provided. This
argument presumes that the jury was compelled to adopt the defendant’s
characterization of Stillwell, Smith, and Younge’s behavior. It was not. See
State v. Woodbury, 172 N.H. 358, 364 (2019) (“[M]atters such as weighing
evidence, determining witness credibility, and resolving conflicts in witness
testimony are left to the jury.”); State v. Demond-Surace, 162 N.H. 17, 29
(2011) (“[T]he jury was free to weigh and draw inferences from all of th[e]
evidence . . . .”).
There was sufficient evidence from which a jury could have found that
the defendant had, at a minimum, a “tacit understanding” with Stillwell,
Smith, and Younge to cause M.P.’s death as alleged in the indictment. Kilgus,
128 N.H. at 586 (quotation omitted). At trial, the State presented evidence
that, after the defendant was released on bail on October 26, the defendant had
several conversations with Stillwell, Smith, and Younge regarding his desire to
have M.P. killed and his willingness to work toward that end. The State
presented evidence that the defendant urged Stillwell, Smith, and Younge to
kill M.P., promised them money and drugs, and pushed them to kill M.P. on
Halloween. After the aborted Halloween attempt, the defendant reiterated his
need to have M.P. killed, and cell phone records showed that the defendant was
in contact with his associates shortly before and after M.P. was shot on
November 3. There was evidence that Stillwell and Younge took steps to report
M.P.’s death to the defendant, that the defendant rewarded his associates with
drugs and money the night of the murder, and that he had A.D. confirm that
M.P. was dead. The State presented evidence that the defendant took steps to
establish alibis for himself and attempted to cover up his involvement in the
murder by taking Stillwell and Younge to Connecticut, coordinating with his
sister while he was in prison to deliver drugs to Younge and money to Stillwell,
and even planning to kill his co-conspirators to keep them quiet. The jury also
15
heard witness testimony that, after M.P.’s killing, the defendant told an
associate, “There’s where I killed my f**king rat,” and told L.M. in prison that
he, the defendant, “had to have it done” because M.P. was going to inform on
him “for some drugs.” Viewing this evidence in the light most favorable to the
State, we hold that a rational trier of fact could have found beyond a
reasonable doubt that there was an agreement between the defendant and
Younge, Stillwell, and/or Smith to purposely cause the death of M.P.3 We
accordingly uphold the defendant’s conviction for conspiracy to commit
murder.
We next consider whether there was sufficient evidence to convict the
defendant as an accomplice to reckless second-degree murder. See RSA 626:8;
RSA 630:1-b, I(b). His indictment for second degree murder alleged that:
“Paulson Papillon, acting in concert with Michael Younge, Adrien Stillwell
and/or Nathaniel Smith, caused the death of [M.P.] recklessly under
circumstances manifesting an extreme indifference to the value of human life,
in that Younge, Stillwell and/or Smith shot [M.P.] in the torso.” The defendant
makes several arguments that the evidence was insufficient to support his
conviction as an accomplice to reckless second-degree murder, including
multiple legal arguments regarding the interpretation of the accomplice liability
statute. We are not persuaded by the defendant’s arguments and conclude
there was sufficient evidence for the jury to find beyond a reasonable doubt
that the defendant was guilty as an accomplice to the murder of M.P.
The defendant first suggests that his conviction as an accomplice to
reckless second-degree murder is inconsistent with his conspiracy conviction
because the evidence cannot demonstrate a reckless intent and a purposeful
intent simultaneously, and “[o]ne cannot solicit, conspire or plan . . . a reckless
homicide.” See RSA 626:8; RSA 630:1-b, I(b). The State avers that the verdicts
are not inconsistent, and alternatively, any such inconsistency does not entitle
the defendant to relief. Inconsistency, in the context of this argument, means
“[a]n alleged or actual lack of rational compatibility between the verdicts.”
State v. Chapin, 128 N.H. 355, 357 (1986). There is no reversible
inconsistency between verdicts if, upon consideration of the facts and
circumstances of the case, the jury’s conclusions can be reconciled on a
rational basis. Id. We agree with the State that no reversible inconsistency
exists.
The fact that the jury concluded that M.P.’s death was ultimately caused
“recklessly under circumstances manifesting an extreme indifference to the
value of human life,” RSA 630:1-b, I(b), is not inconsistent with the defendant’s
3 The defendant’s challenge to the sufficiency of the evidence on his conspiracy conviction is
limited to the “agreement” element. He does not argue that there was insufficient evidence of an
overt act committed by one of the conspirators in furtherance of the conspiracy. We therefore do
not consider whether the evidence was sufficient as to the unchallenged element.
16
conspiracy conviction because “conspiring to commit a crime and actually
committing it are two separate offenses.” State v. Sanchez, 152 N.H. 625, 630
(2005); see Chaisson, 123 N.H. at 24 (explaining that conspiracy to receive
stolen property is a separate and distinct crime from the crime of receiving
stolen property); see also Donohue, 150 N.H. at 185. The jury was free to
consider all of the evidence separately in each indictment. State v. King, 151
N.H. 59, 64 (2004).
Contrary to the defendant’s argument, our decision in Donohue does not
render his conviction for conspiracy to commit murder inconsistent with his
conviction as an accomplice to reckless second-degree murder. In Donohue,
we concluded that the defendant’s indictment, which charged him with
“conspiracy to commit second-degree assault,” was flawed, and we reversed his
conspiracy conviction for the reason that “a person cannot agree, in advance,
to commit a reckless assault, because, by definition, a reckless assault only
arises once a future harm results from reckless behavior.” Donohue, 150 N.H.
at 182, 186 (emphasis added). Here, however, the defendant’s indictment for
conspiracy charged that, “with the purpose that the crime of murder be
committed,” as defined by the first degree murder statute, RSA 630:1-a, I(a), he
agreed with Stillwell, Smith, and/or Younge to cause M.P.’s death. (Emphasis
added.) Therefore, no reversible inconsistency exists.
The defendant also raises multiple legal arguments interpreting the
accomplice liability statute itself, which we understand to underlie his
argument that the evidence was insufficient to convict him as an accomplice to
reckless second-degree murder. The plain language of RSA 626:8 and our case
law on accomplice liability do not support the defendant’s interpretation.
Statutory interpretation is a question of law, which we review de novo.
State v. Rivera, 162 N.H. 182, 185 (2011). In matters of statutory
interpretation, this court is the final arbiter of the legislature’s intent as
expressed in the words of the statute considered as a whole. Id. We construe
provisions of the Criminal Code according to the fair import of their terms and
to promote justice. RSA 625:3 (2016). We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. Rivera, 162 N.H. at 185. Further, we interpret legislative
intent from the statute as written and will not consider what the legislature
might have said or add language it did not see fit to include. Id. Finally, we
interpret a statute in the context of the overall statutory scheme and not in
isolation. Id.
RSA 626:8 provides in pertinent part:
III. A person is an accomplice of another person in the commission of an
offense if:
(a) With the purpose of promoting or facilitating the commission of the
17
offense, he solicits such other person in committing it, or aids or
agrees or attempts to aid such other person in planning or
committing it; . . .
....
IV. Notwithstanding the requirement of a purpose as set forth in
paragraph III(a), when causing a particular result is an element of an
offense, an accomplice in the conduct causing such result is an
accomplice in the commission of that offense, if he acts with the kind of
culpability, if any, with respect to that result that is sufficient for the
commission of the offense. In other words, to establish accomplice
liability under this section, it shall not be necessary that the accomplice
act with a purpose to promote or facilitate the offense. An accomplice in
conduct can be found criminally liable for causing a prohibited result,
provided the result was a reasonably foreseeable consequence of the
conduct and the accomplice acted purposely, knowingly, recklessly, or
negligently with respect to that result, as required for the commission of
the offense.
RSA 626:8. Here, the statute implicated by paragraph IV underlying the
defendant’s accomplice charge was the second degree murder statute, RSA
630:1-b, I(b) (defining second degree murder as “caus[ing] such death
recklessly under circumstances manifesting an extreme indifference to the
value of human life”).
The defendant argues that “[p]roof of criminal solicitation [under RSA
629:2] requires evidence that the defendant acted purposely, the highest mens
rea in the criminal code,” and again asserts that evidence of purposeful
behavior cannot simultaneously demonstrate a reckless intent. The defendant
improperly conflates the crime of criminal solicitation, see RSA 629:2 (2016),
with the requirements of paragraph III of the accomplice liability statute.
The State must prove the elements of both paragraph III and paragraph
IV of RSA 626:8. State v. Duran, 158 N.H. 146, 151 (2008); see State v.
Anthony, 151 N.H. 492, 493-95 (2004). “[Paragraph] III contains dual
requirements that the defendant act with the purpose of promoting the
commission of the offense and that he actually solicit or aid or attempt to aid
another in its commission.” Id. “[T]he standard interpretation of the phrase
‘intent to promote or facilitate the commission of the offense’ is that it requires
proof of the accomplice’s intent to promote or facilitate another person’s
conduct that constitutes the actus reus of the offense.” Anthony, 151 N.H. at
494 (quotation and emphasis omitted). Paragraph IV ensures that when
causing a prohibited result is an element of the underlying offense, as with
reckless second-degree murder, the State does not need to prove a higher
mental state with respect to the result of the underlying crime to convict an
accomplice under RSA 626:8 than to convict a principal of the same crime. See
Rivera, 162 N.H. at 188 (explaining that “when causing a prohibited result is
18
an element of an offense, paragraph IV modifies the formulation stated in
paragraph III,” such that “it shall not be necessary that the accomplice act with
a purpose to promote or facilitate the offense” (quotation omitted)); Anthony,
151 N.H. at 494-95.
In Anthony, we stated that when the legislature amended the language of
paragraph IV to its current form, it did not intend to repeal the requirement
that the accomplice “‘have as his conscious objective the bringing about of
conduct that the . . . [underlying criminal statute] has declared to be criminal.’”
Anthony, 151 N.H. at 495 (quoting Model Penal Code § 2.06 cmt. 6(b), at 310
(Official Draft and Revised Comments 1985)). Accordingly, the language of
paragraph IV does not alter the requirements or applicability of paragraph III
with respect to the actus reus constituting the underlying offense. See id. at
494-95. Thus, to establish accomplice liability, the State must prove that: (1)
the accomplice had the purpose to make the crime succeed; (2) the
accomplice’s acts solicited, aided, or attempted to aid another in committing
the offense; and (3) under paragraph IV, the accomplice shared the requisite
mental state for the offense. See State v. Winward, 161 N.H. 533, 543 (2011).
Consistent with our interpretation of paragraph III in Anthony, the term
“solicits” in RSA 626:8, III refers solely to the actus reus of soliciting. RSA
626:8, III; see Petition of State of N.H. (State v. Laporte), 157 N.H. 229, 231-32
(2008). The plain language of RSA 626:8, III does not incorporate the elements
of criminal solicitation in RSA 629:2, which “encompass[ ] both the actus reus
of ‘soliciting’ and the mens rea of having the ‘purpose that another engage in
conduct constituting a crime.’” Laporte, 157 N.H. at 232 (quoting RSA 629:2, I)
(explaining that “the terms ‘criminal solicitation’ and ‘solicitation’ are not
synonymous”). Paragraph IV sets forth the mens rea required for the State to
prove accomplice liability under RSA 626:8 as, “the culpable mental state
specified in the underlying statute with respect to the result.” Anthony, 151
N.H. at 495 (quotation omitted); see RSA 626:8, IV; Rivera, 162 N.H. at 187-88;
Winward, 161 N.H. at 543. Here, the defendant was charged under paragraph
I(b) of the second degree murder statute, which requires the State to prove that
he acted “recklessly under circumstances manifesting an extreme indifference
to the value of human life.” RSA 630:1-b, I(b).
The defendant also argues that there was insufficient evidence to show
he was an “accomplice in conduct” under paragraph IV of the accomplice
liability statute. He contends that the term “accomplice in conduct” only
encompasses behavior that constitutes “direct conduct . . . without a purpose
or even knowledge of the probable result,” and even when viewed in the light
most favorable to the State, his purposeful behavior in the form of “speech acts
and performative gestures” only implicates paragraph III of the statute. Based
upon this interpretation of RSA 626:8, the defendant argues that the evidence
was insufficient to support his conviction because he “was not present at the
time of the murder,” “had no ability to directly control or influence th[e] event,”
19
and “played no role in the actual commission of the offense.” Our case law
interpreting RSA 626:8 contradicts these arguments.
The language of paragraph IV does not alter the requirements or
applicability of paragraph III, nor does it create a distinction between the
paragraphs based on, as the defendant here argues, “[t]he means of acting as
an accomplice.” See Anthony, 151 N.H. at 494-95 (explaining that the
legislature’s intent to preserve the requirements of paragraph III “is implicit in
paragraph IV’s reference to an “‘accomplice in conduct’” (quoting RSA 626:8,
IV)); see also Rivera, 162 N.H. at 187, 190 (including “planning an armed
burglary,” “discuss[ing] the possibility that [another accomplice] would shoot
[the victim] if there was a stand-off” and the fact that “the men had agreed” an
accomplice would hold the victim at gun point when describing evidence
supporting defendant’s conviction as an accomplice to reckless second-degree
murder). Moreover, the State is not required to prove that an alleged
accomplice’s conduct directly caused the criminal result. See RSA 626:8, IV;
Rivera, 162 N.H. at 187. “Paragraph IV plainly states that accomplice liability
can flow from conduct ‘provided the result was a reasonably foreseeable
consequence of the conduct.’” Rivera, 162 N.H. at 187 (quoting RSA 626:8, IV).
Independent of his legal arguments, we also understand the defendant to
argue that the evidence presented to the jury was insufficient to support his
conviction as an accomplice to reckless second-degree murder. We disagree.
There was ample evidence from which the jury could have found that the
defendant was guilty beyond a reasonable doubt as an accomplice to reckless
second-degree murder. The State presented evidence that the defendant
believed his October 2015 arrest resulted from M.P. informing to the police,
that he wanted M.P. killed because of his suspected role as an informant, and
had, on multiple occasions, urged Stillwell, Smith, and Younge to kill M.P. In
addition, the jury heard evidence that the defendant offered Stillwell, Smith,
and Younge incentives to kill the victim, supplied the gun used in the murder,
provided costumes in an attempt to aid them in the murder, established alibis
for himself, and tried to cover up his involvement in the murder. See, e.g.,
State v. Laudarowicz, 142 N.H. 1, 5-6 (1997). The State also presented
evidence of the defendant’s own inculpatory statements, including his
statements to L.M. in prison that he, the defendant, “knew it was done” and
“had to have it done” because M.P. was going to inform on him “for some
drugs.” Viewing the evidence in the light most favorable to the State, we
conclude a rational jury could have found beyond a reasonable doubt that the
State met its burden to convict the defendant as an accomplice to reckless
second-degree murder. See RSA 626:8; RSA 630:1-b, I(b).
In conclusion, we hold that: (1) the defendant’s waiver of his right to
counsel was knowing, intelligent, and voluntary; (2) the challenged statements
from J.M.’s testimony were evidence of other acts governed by Rule 404(b) and
20
admitted in error, but this error was harmless beyond a reasonable doubt; and
(3) there was sufficient evidence to support the defendant’s convictions for
conspiracy to commit murder and as an accomplice to reckless second-degree
murder.
Affirmed.
HICKS, BASSETT, and DONOVAN, JJ., concurred.
21