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

                            ___________________________


Hillsborough-northern judicial district
No. 2017-0361


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                               ADRIEN STILLWELL

                             Argued: June 6, 2019
                      Opinion Issued: September 18, 2019

      Gordon J. MacDonald, attorney general (Lisa L. Wolford, senior assistant
attorney general, on the brief and orally), for the State.


      Eric S. Wolpin, assistant appellate defender, of Concord, on the brief,
and Christopher M. Johnson, chief appellate defender, orally, for the
defendant.

      BASSETT, J. Following a jury trial, the defendant, Adrien Stillwell, was
convicted on one count of first degree murder, see RSA 630:1-a, I(a) (2016),
one count of second degree murder, see RSA 630:1-b (2016), and one count of
conspiracy to commit murder, see RSA 629:3 (2016); RSA 630:1-a, I(a). On
appeal, he argues that the Superior Court (Brown, J.) erred by: (1) allowing an
expert to testify in violation of the Confrontation Clause of the Sixth
Amendment to the United States Constitution; (2) admitting the out-of-court
statements of an unavailable witness under the statement against penal
interest exception to the hearsay rule; and (3) failing to take sua sponte action
to address the allegedly improper statements made by the prosecutor during
the State’s closing argument. We affirm.

                                     I. Facts

       The jury could have found the following facts. On October 21, 2015,
Paulson Papillon sold drugs to M.P. and to a confidential informant. Shortly
thereafter, police arrested and jailed Papillon for selling drugs to the informant.
After Papillon was released, and believing that M.P. was a “snitch” and
responsible for his arrest, Papillon offered a bounty for M.P.’s death. Papillon
subsequently met with the defendant, Nathanial Smith, and Michael Younge on
multiple occasions and discussed killing M.P.

       On November 3, 2015, the defendant and Smith went to a convenience
store, where video surveillance shows that they met Younge. They then headed
to M.P.’s apartment building, where the defendant shot and killed M.P. Shortly
thereafter, a neighbor, who had heard “loud bangs” and her trash barrel falling
over, found a gun when picking up the trash barrel. The gun contained six
spent cartridges. Forensic testing established that a bullet recovered from the
victim’s body had been fired from the gun. A New Hampshire State Police
Forensic Laboratory employee subsequently swabbed the gun for DNA.

       On November 16, 2015, police executed a body warrant on the defendant
at the police department in Manchester, and took a buccal swab of the inside of
his mouth for use as a “known sample” for comparison to other evidence. After
police executed the body warrant, the defendant waived his Miranda rights and
spoke with police for approximately forty-five minutes in a recorded interview.
See Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966). The defendant stated
that he had not been present at, and did not know about, M.P.’s murder.

       After his arrest, the defendant shared a jail cell with Scott Collier. The
defendant told Collier that he had killed M.P., and shared details as to what
happened on November 3, 2015 that had not been included in news reports.
During a second interview with police, the defendant again denied being
involved with M.P.’s murder, and denied knowing Papillon, Smith, or Younge.
The defendant, Younge, Smith, and Papillon were subsequently indicted for
first degree murder and conspiracy to commit murder.

      In December 2015, DNA swabs from the gun, along with buccal swabs
from the defendant, Smith, and Younge, were sent to NMS Labs in
Pennsylvania. NMS Labs generated DNA data from each swab and sent the
machine-generated raw data to another company, Cybergenetics.
Cybergenetics initially determined that there was DNA from four or five people
on the gun. An expert at Cybergenetics, Mark Perlin, Ph.D., M.D., Ph.D., used


                                         2
a computer technology called TrueAllele to determine whether there was a
match between the DNA on the gun and the DNA of Smith, Younge, or the
defendant. He concluded that a “match between the gun and [the defendant]
was 88.4 trillion times more probable than a coincidental match to an
unrelated . . . African American person,” and that there was no support for a
positive match between Smith or Younge and the gun.

       Prior to the defendant’s trial, Smith and Younge reached cooperation
agreements with the State pursuant to which they agreed to testify against the
defendant. At trial, Younge testified that the defendant “took a stance” and
“aimed” before shooting the victim. Smith testified that after the victim was
shot and everyone ran away, knocking over trash barrels in the process, he met
the defendant, Younge, and Papillon, and the defendant confirmed that he had
shot M.P. Papillon did not testify at trial, but statements that he made to his
sister on a recorded telephone call from the New Hampshire State Prison were
admitted into evidence under the statement against penal interest exception to
the hearsay rule. These statements included assertions by Papillon that
Younge was not the shooter, and expressions of concern that one of the others
involved in the shooting might say that he, Papillon, “sent the guys to go kill
[M.P.].” Although the defendant did not testify, statements that he made in a
recorded telephone call from jail, including statements that he was at the
murder scene at the time of the shooting and that he knew Younge was
cooperating with police, were admitted. In addition, Perlin testified during the
State’s case that, using the TrueAllele computer technology, he was able to
determine that there was a match between the DNA found on the gun and the
defendant’s DNA. The jury convicted the defendant on all charges. This appeal
followed.

                           II. Confrontation Clause

      The defendant first argues that he was denied his right to confront
witnesses against him as guaranteed by the Sixth Amendment to the Federal
Constitution when Perlin, the State’s expert, presented machine-generated raw
DNA data to the jury, and testified that certain DNA profile data came from the
defendant’s sample and other DNA profile data came from the gun. The
defendant asserts that this testimony was inadmissible because Perlin was not
involved in generating the DNA data; therefore, he lacked personal knowledge
as to which data resulted from the testing of which sample. The State
responds that Perlin’s expert testimony did not violate the defendant’s
confrontation rights because the raw DNA data was generated by a computer,
and is, therefore, non-testimonial for purposes of the Confrontation Clause.
The State further contends that the requirements of the Confrontation Clause
are satisfied so long as an expert testifies about his or her own independent
judgment, even if that judgment was based on inadmissible testimonial
hearsay. See State v. McLeod, 165 N.H. 42, 53 (2013). We review
Confrontation Clause challenges de novo. Id. at 47.


                                       3
       The Sixth Amendment’s Confrontation Clause provides that “the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. The United States Supreme Court has held that this right
allows the State to admit against a defendant the “testimonial statements” of
an absent witness only when the witness is unavailable to testify and the
defendant had a prior opportunity to cross-examine the witness. See Crawford
v. Washington, 541 U.S. 36, 59, 68-69 (2004). The Supreme Court defined
“testimony” as, typically, “a solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Id. at 51 (quotation and
brackets omitted). Although Crawford did not identify a definitive class of
testimonial statements, the Supreme Court did identify “[v]arious formulations”
that comprise the core of testimonial hearsay, which generally include the
following:

      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; [and] 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 (quotations, ellipsis, and citations omitted). The Supreme Court
subsequently considered whether scientific reports are testimonial statements
in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308-11 (2009), Bullcoming v.
New Mexico, 564 U.S. 647, 651-52 (2011), and Williams v. Illinois, 567 U.S. 50,
65-67 (2012) (plurality opinion). We recently discussed these cases in State v.
Watson, 170 N.H. 720, 728-33 (2018); here, we briefly summarize our analysis.

      In Melendez-Diaz, the Supreme Court held that certificates of analysis
from a forensic laboratory that tested a substance found in connection with the
defendant’s arrest were testimonial. Melendez-Diaz, 557 U.S. at 308, 310-11.
The Court compared the certificates to live testimony because they were “quite
plainly affidavits,” and did “‘precisely what a witness does on direct
examination.’” Id. at 310-11 (quoting Davis v. Washington, 547 U.S. 813, 830
(2006)). Since the certificates of analysis were made to establish or prove a fact
— “that the substance found in the possession of Melendez-Diaz . . . was, as
the prosecution claimed, cocaine” — the Court held they could not be
introduced unless the authors of the certificates were subject to cross-
examination. Id. However, the Court also noted “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 311 n.1.


                                        4
      Similarly, in Bullcoming, the Court held that the Confrontation Clause
did not permit the prosecution to introduce a “forensic laboratory report
containing a testimonial certification — made for the purpose of proving a
particular fact — through the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the certification.”
Bullcoming, 564 U.S. at 652. The Court noted that the document “reported
more than a machine-generated number,” and included a certification that a
blood sample had been received intact with the seal unbroken, that the
forensic report number and the sample number corresponded, information
about the manner in which the non-testifying analyst conducted testing, the
“integrity of the sample,” and the “validity of the analysis.” Id. at 659-60
(quotations omitted). The Court reasoned that “[t]hese representations, relating
to past events and human actions not revealed in raw, machine-produced data,
are meet for cross-examination.” Id. at 660.

       Justice Sotomayor wrote a separate concurring opinion, emphasizing
“the limited reach” of the majority opinion, and “highlight[ing] some of the
factual circumstances that [Bullcoming] does not present.” Id. at 668, 672
(Sotomayor, J., concurring). She observed:

      [T]his is not a case in which an expert witness was asked for his
      independent opinion about underlying testimonial reports that
      were not themselves admitted into evidence. [The testifying
      scientist did not] offer[] an independent, expert opinion about [the
      defendant’s] blood alcohol concentration. . . . We would face a
      different question if asked to determine the constitutionality of
      allowing an expert witness to discuss others’ testimonial
      statements if the testimonial statements were not themselves
      admitted as evidence.

      Finally, this is not a case in which the State introduced only
      machine-generated results . . . . The State here introduced [the
      certifying scientist’s] statements, which included his transcription
      of a blood alcohol concentration, apparently copied from a gas
      chromatograph printout, along with other statements about
      the procedures used in handling the blood sample. Thus, we do
      not decide whether . . . a State could introduce (assuming an
      adequate chain of custody foundation) raw data generated by a
      machine in conjunction with the testimony of an expert witness.

      This case does not present, and thus the Court’s opinion does not
      address, any of these factual scenarios.

Id. at 673-74 (citations omitted).




                                        5
       Most recently, in Williams, the Court considered whether the
Confrontation Clause precluded an expert from testifying at trial that a DNA
profile contained in a forensic report produced by an outside laboratory —
which lacked an attestation or certification from the non-testifying witness —
matched a DNA profile produced by a state police lab using a sample of the
alleged assailant’s blood. Williams, 567 U.S. at 56, 59, 111-12. The case
resulted in a 4-1-4 division of the Justices, with each of the opinions
“embrac[ing] a different approach to determining whether the use of forensic
evidence violates the Confrontation Clause.” Watson, 170 N.H. at 733
(quotation omitted). Therefore, we concluded, as have other courts, that its
“force, as precedent, is at best unclear.” Id. (quotation and brackets omitted);
see also United States v. James, 712 F.3d 79, 95 (2d Cir. 2013) (concluding
that because “[n]o single rationale disposing of the Williams case enjoys the
support of a majority of the Justices” and because the case “does not . . . yield
a single, useful holding,” it is “confined to the particular set of facts presented
in that case”); United States v. Turner, 709 F.3d 1187, 1189 (7th Cir. 2013)
(observing that because of “the 4-1-4 division of the Justices . . . , with one
Justice — Justice Thomas — concurring in the result but no portion of the
plurality’s reasoning, . . . it [is] somewhat challenging to apply Williams”
(footnote omitted)).

        In McLeod, we analyzed one of the factual scenarios left unresolved by
the Court: the constitutionality of an expert witness rendering an independent
opinion based upon underlying testimonial statements. McLeod, 165 N.H. at
51; see also Bullcoming, 564 U.S. at 673. We held that a defendant’s
“confrontation rights would be violated were the State permitted to introduce [a
non-testifying witness’s testimonial statements] through the direct examination
of its experts.” McLeod, 165 N.H. at 49. However, we held that the
Confrontation Clause does not prohibit experts, applying their own knowledge
to the facts before them, from testifying regarding their opinions, provided that
“they do not testify as to [the non-testifying witness’s] statements on direct
examination.” McLeod, 165 N.H. at 55. Such expert testimony is permissible,
we explained, because the experts are “not acting as mere ‘transmitters’ of
testimonial statements of others,” but rather are “true experts whose
considered opinions shed light on a specialized factual situation.” Id.
(quotations and brackets omitted).

       McLeod is in accord with the reasoning of courts in other jurisdictions.
See, e.g., United States v. Ramos-González, 664 F.3d 1, 5 (1st Cir. 2011)
(concluding that “the assessment is one of degree. Where an expert witness
employs her training and experience to forge an independent conclusion, albeit
on the basis of inadmissible evidence, the likelihood of a Sixth Amendment
infraction is minimal.”); United States v. Williams, 740 F. Supp. 2d 4, 10
(D.D.C. 2010) (holding that an expert may testify to “independent judgment”
that is “reached by application of [the expert’s] training and experience to the
sources before him” (quotations omitted)). “The question is whether the expert


                                         6
is, in essence, giving an independent judgment or merely acting as a
transmitter for testimonial hearsay.” United States v. Johnson, 587 F.3d 625,
635 (4th Cir. 2009). “As long as he is applying his training and experience to
the sources before him and reaching an independent judgment, there will
typically be no Crawford problem” because “[t]he expert’s opinion will be an
original product that can be tested through cross-examination.” Id.

       We have not yet had occasion to address the issue of whether machine-
generated raw data, or information identifying the source of the data, are
testimonial statements. With this in mind, we turn to the defendant’s
argument that his confrontation rights were violated when Perlin presented
machine-generated raw DNA data to the jury, and when he testified that
certain DNA profile data came from the defendant’s sample and other DNA
profile data came from the gun.

      Before Perlin testified as to his expert opinion, the State elicited
testimony from a police officer from the City of Manchester who testified that
he was present on November 16, 2015 when a detective took a buccal swab of
the inside of the defendant’s mouth. He testified that sterile procedures were
followed when taking the “known sample” of the defendant’s DNA, and that the
swab was then sealed and labeled. An employee from the New Hampshire
State Police Forensic Laboratory then testified that she swabbed the gun at
issue in this case for DNA, packaged the swabs for mailing, labeled the swabs
with a computer-generated barcode, and mailed the gun swabs — along with
buccal swabs from the defendant, Smith, and Younge — to NMS Labs. She
requested that the lab compare the DNA from the gun swabs with the DNA
from the three known samples.

       Perlin testified that he received genetic data from NMS Labs and analyzed
it using TrueAllele, a probabilistic genotyping software that he designed and
programmed. He explained that TrueAllele separates the genotypes when a
particular sample includes DNA from two or more people. “[T]he computer
unmixes the mixture,” and “afterwards comparisons can be made to reference
profiles or reference genotypes from different individuals to determine the
extent of the match.” He testified that when the data from the three reference
samples was compared to the gun swabs, he was able to generate a match
statistic between the samples. He stated that his “overall finding[]” was “that a
match between the gun and [the defendant] was 88.4 trillion times more
probable than a coincidental match. And when comparison was made with the
other two individuals . . . we found that there was no support for a positive
match.” He also asserted that the “chance of a false positive error for the
match statistic between the gun and [the defendant] . . . was about 1 in 63
quadrillion.”

     During his testimony, Perlin utilized a PowerPoint presentation to explain
how the TrueAllele program uses the raw DNA data to determine the likelihood


                                       7
that a particular individual’s DNA was included in the target sample. Some
PowerPoint slides included the machine-generated raw DNA data from NMS
Labs. The defendant did not object at any point during Perlin’s testimony. No
one from NMS Labs testified.

       On appeal, the defendant argues that Perlin’s testimony violated the
Confrontation Clause because it included two kinds of inadmissible testimonial
statements. He first argues that the machine-generated raw data itself
constitutes a testimonial statement; he asserts, therefore, that his
confrontation rights were violated when Perlin included that data in a
PowerPoint slide that was published to the jury. Second, he contends that the
attribution of a particular DNA sample to a particular swab is a testimonial
statement. Accordingly, he argues that his confrontation rights were violated
when Perlin, who had no personal knowledge that particular data resulted from
the testing of a particular swab, told the jury that one DNA profile was the
defendant’s, and that another DNA profile came from the gun. The defendant
contends that “[w]hen Perlin told the jury that a data profile was [the
defendant’s] DNA, [he] was reciting [a NMS Labs analyst’s] out-of-court
assertion that a specified data set arose from the testing of [the defendant’s]
buccal swab.” He argues that an NMS Labs analyst “could have testified to
that fact — and been subject to the Confrontation Clause’s guarantee of cross-
examination — but Perlin could not.”

       We now consider the defendant’s argument that Perlin’s testimony
violated the defendant’s confrontation rights because he presented machine-
generated raw data to the jury through charts in his PowerPoint slides. The
defendant contends that Perlin’s testimony violates our holding in McLeod that,
although an expert can, consistent with the Confrontation Clause, testify on
direct examination that he “relied upon witness statements,” McLeod, 165 N.H.
at 55, the expert may not disclose the out-of-court statements to the jury
through direct examination. Id. at 49. We disagree.

      The threshold question for Confrontation Clause claims is whether the
challenged statement is testimonial. See Davis, 547 U.S. at 821. We review
whether a statement is testimonial de novo. State v. Dilboy, 163 N.H. 760, 766
(2012). If a statement is not testimonial, “the Confrontation Clause has no
application.” Id. at 764.

       The Supreme Court has not yet addressed whether machine-generated
raw data is a testimonial statement when the data contains no attestation from
the operator. However, those courts that have addressed the issue have almost
uniformly concluded that raw data generated by a laboratory machine is not a
testimonial statement of the lab technician who operated the machine. See,
e.g., United States v. Summers, 666 F.3d 192, 202 (4th Cir. 2011) (holding that
the “numerical identifiers of the DNA allele here, insofar as they are nothing
more than raw data produced by a machine,” are not testimonial in nature);


                                      8
United States v. Moon 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he instruments’
readouts are not ‘statements,’ so it does not matter whether they are
‘testimonial.’”); People v. Lopez, 286 P.3d 469, 478 (Cal. 2012) (holding that
“machine-generated printouts . . . did not implicate the Sixth Amendment’s
right to confrontation”); State v. Buckland, 96 A.3d 1163, 1172 (Conn. 2014)
(holding that “machine generated data is not subject to the restrictions
imposed by Crawford, Melendez-Diaz and Bullcoming”). But see Young v.
United States, 63 A.3d 1033, 1046 (D.C. 2013) (holding that machine-
generated raw data, including a DNA profile, can be a testimonial statement if
human judgment or subjectivity was a necessary component of the data’s
generation).

      As the Fourth Circuit Court of Appeals has explained, a lab technician
who operates a machine could not independently affirm or deny that a blood
sample contains a particular characteristic because the technician “would only
be able to refer to the machine’s printouts.” United States v. Washington, 498
F.3d 225, 230 (4th Cir. 2007). Therefore, “[t]he raw data generated by the
diagnostic machines are the ‘statements’ of the machines themselves, not their
operators.” Id. “[U]nlike a person, a machine cannot be cross-examined . . . .”
Lopez, 286 P.3d at 478. We are persuaded by this reasoning and conclude that
the machine-generated raw DNA profile data that Perlin included in his
PowerPoint presentation is not a testimonial statement of the NMS Labs
analyst who operated the machine. Accordingly, we hold that Perlin’s inclusion
of that raw DNA data in his PowerPoint presentation to the jury did not violate
the defendant’s confrontation rights.

       We are not unmindful that machine-generated raw data can give rise to
legitimate evidentiary concerns: “A machine might malfunction, produce
inconsistent results or have been tampered with.” United States v. Lizarraga-
Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015). However, “concerns about the
reliability of such machine-generated information [are] addressed through the
process of authentication not by hearsay or Confrontation Clause analysis.”
Washington, 498 F.3d at 231. Here, the defendant’s appellate arguments
regarding the raw data are of a constitutional dimension: he does not make
arguments concerning the reliability of the data, the methods used to derive it,
authentication, or the chain of custody.

       We now turn to the defendant’s second Confrontation Clause argument:
that Perlin’s testimony violated the defendant’s confrontation rights because
Perlin — who had no personal knowledge that particular data resulted from the
testing of a particular swab — impermissibly repeated to the jury, and
“affirmed as true,” the NMS Labs analyst’s “testimonial statements attributing
particular DNA data to a particular swab.” The defendant argues that,
although it would have been consonant with our holding in McLeod for Perlin
to testify that he reviewed DNA data and that “it was his opinion that a DNA
profile was included in a mixed DNA sample with a certainty of 88.4 trillion to


                                       9
one, and that it was his opinion that two other profiles were excluded from the
mixture,” Perlin’s actual testimony on direct examination — attributing the
DNA data to a specific source — violated the defendant’s confrontation rights.
See McLeod, 165 N.H. at 55 (an expert can testify that he “relied upon witness
statements,” as long as he “do[es] not testify as to [the actual] statements on
direct examination”). We are presented, therefore, with a narrow issue that we
have not previously had occasion to consider: Whether the attribution
associated with machine-generated raw data that identifies the source of the
data is a testimonial statement of the lab analyst who operated the machine
generating that data, even though the raw data itself is not.

      To properly analyze whether Perlin’s testimony impermissibly included a
testimonial statement of a non-testifying witness, we must necessarily be
apprised as to how Perlin came to attribute a particular DNA profile to a
particular source. The defendant argues that because “Perlin was not involved
in the samples’ testing . . . he only ‘knew’ that a DNA profile belonged to ‘the
gun’ and another to ‘[the defendant]’ because [the NMS Labs analyst’s] report
asserted that to be true.” (Emphasis added.) However, as the State correctly
points out, the document setting forth the attributions — in whatever form —
was not submitted into evidence at trial, and is not part of the record on
appeal. This evidentiary shortcoming is fatal to the defendant’s second
Confrontation Clause argument.

        Although the parties are in agreement that Perlin received data from
NMS Labs — and that, in some indeterminate fashion, the DNA profiles were
attributed to particular sources — without the documents in the record, we are
left to speculate as to whether the attributions at issue were on the machine-
generated raw data itself — perhaps in the form of a label — or whether they
were contained in a formal forensic report, certification, or affidavit. Thus, we
are presented with a situation similar to that which we encountered in Dilboy:
we have no specific attribution documents to review. See Dilboy, 163 N.H. at
766 (“[A]lthough we review whether a statement is testimonial de novo, in this
case we have no specific statements to review because the documents, or other
evidence, that constitute the ‘test results’ were never submitted into the
record.”).

        The precise form that these DNA attributions took, however, is of
considerable importance in determining whether they are testimonial. See
Crawford, 541 U.S. at 51 (explaining that testimonial statements are “typically
. . . solemn declaration[s] or affirmation[s]” (emphasis added; quotation
omitted)); Bullcoming, 564 U.S. at 664-65 (noting that, while lack of solemnity
“is not dispositive in determining if a statement is testimonial,” it was
nonetheless “[n]oteworthy” that the report was “formalized in a signed
document,” and contained a certification and “a legend referring to . . . courts’
rules that provide for the admission of certified blood-alcohol analyses”
(quotations and brackets omitted)). If, for example, the attributions were


                                       10
simply labels affixed to the machine-generated raw data for internal
identification purposes, then it would be less likely that the attributions would
be considered testimonial than if they were contained in a sworn report. See,
e.g., People v. Lopez, 286 P.3d 469, 478-79 (Cal. 2012) (concluding that
labeling a blood sample as belonging to defendant “d[id] not meet the . . .
requirement that to be testimonial the out-of-court statement must have been
made with formality or solemnity” because the label was “nothing more than an
informal record of data for internal purposes”). Because the defendant, as the
appealing party, has the burden to provide this court with a record sufficient to
address the issues he raised on appeal, State v. Parra, 135 N.H. 306, 309
(1992), and the precise form of the attributions could well be outcome
determinative, as in Dilboy, we decline to address an important constitutional
issue of first impression based upon an insufficient record. See Dilboy, 163
N.H. at 767.

                     III. Statements Against Penal Interest

       The defendant next argues that the trial court erred when, relying upon
the statement against penal interest exception to the hearsay rule, it admitted
out-of-court statements that Papillon made to his sister during two telephone
calls from prison. The statements, made by Papillon in Haitian Creole, were
admitted through the testimony of the law enforcement officer who translated
them into English. The officer testified that, on November 19, 2015, Papillon
spoke with his sister over the telephone from prison, and made statements to
the effect that: Mizz (a.k.a. Younge) did not shoot M.P., and that Mizz was
“hot,” which was a term that Papillon used “[a]nytime he was talking in
reference of something that was unlawful and [he] did not want to discuss it
further over the phone.” The officer testified that Papillon also expressed
concern about talking on the phone and said that he “told the[] guys to hide
their faces and not show themselves anywhere.”

      The officer also testified that, on January 8, 2016, Papillon again spoke
with his sister over the telephone. During the call, Papillon said that he knew
that two men had already been arrested and one of them was talking about
him. His sister then asked what the person who was talking could say, and
Papillon answered, “That I sent the guys to go kill [M.P.].”

      New Hampshire Rule of Evidence 804(b)(3) provides that, under certain
circumstances, if the declarant is unavailable as a witness, statements against
the declarant’s interest — such as those tending to subject the declarant to
criminal liability — are generally not excluded by the hearsay rule. See N.H. R.
Ev. 804(b)(3) (2016) (amended 2017). “The justification for this exception to the
hearsay rule rests upon the assumption that one does not make statements
that would damage oneself unless the statement is true.” State v. Kiewert, 135
N.H. 338, 343 (1992) (quotations and brackets omitted).



                                       11
      On appeal, the defendant argues the trial court erred in ruling that the
statements at issue were against Papillon’s penal interest. He also argues that
even if Papillon’s statements were against his penal interest, some of the
statements should have been excluded because the State did not establish that
the hearsay contained within those statements was admissible. The defendant
contends that we must reverse because the “erroneous admission of these
statements prejudiced [him].” The State counters that Papillon’s statements
were properly admitted as statements against interest, but, even if the
statements should not have been admitted, their admission at trial constitutes
harmless error. Because we agree with the State that any error was harmless,
we need not decide whether the admission of these statements was error.

      “To establish that an error was harmless, the State must prove beyond a
reasonable doubt that the error did not affect the verdict.” State v. Edic, 169
N.H. 580, 588 (2017) (quotation omitted). “This standard applies to both the
erroneous admission and exclusion of evidence.” Id. (quotation omitted).

      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.

Id. (quotation omitted). An error may be harmless beyond a reasonable doubt
if the other evidence of the defendant’s guilt is of an overwhelming nature,
quantity, or weight, and if the evidence that was improperly admitted or
excluded 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 other evidence presented at trial as well as the character of the
erroneously admitted evidence itself. Id. at 589.

      To convict the defendant of first degree murder as charged in the
indictment, the State was required to prove beyond a reasonable doubt that he
purposely caused the victim’s death. RSA 630:1-a, I(a). 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 murder be committed,
the defendant “agree[d] with one or more persons to commit or cause the
commission of such crime, and an overt act [was] committed by one of the
conspirators in furtherance of the conspiracy.” RSA 629:3, I.

      Here, the other evidence that the defendant shot the victim — and
conspired with Papillon, Smith, and Younge to do so — was overwhelming.
Witness testimony and a surveillance video established that the defendant was
at the scene of the crime at the time of the murder. A co-conspirator testified
that the defendant planned to kill, and then shot, M.P. The defendant’s jail


                                       12
cellmate testified that the defendant told him that he killed M.P. because the
defendant, along with Papillon, Smith, and Younge, believed M.P. was a police
informant. Furthermore, although the defendant initially told the police that
he did not know about the murder and was not present at the scene, in
recorded phone calls from prison, he later stated that he was at the scene of
the crime at the time of the shooting, and thought he would be “good with the
case” as long as the others were “quiet.” These inconsistent accounts show a
consciousness of guilt. See State v. Bean, 153 N.H. 380, 387 (2006) (noting
jury could have found defendant’s “inconsistent and evasive answers” to police
to be “further evidence of [his] consciousness of guilt”). Finally, Perlin stated
his expert opinion that the defendant’s DNA matched the DNA recovered from
the murder weapon.

      Therefore, compared to the State’s other, overwhelming evidence of the
defendant’s guilt, Papillon’s statements were both cumulative and
inconsequential. See Edic, 169 N.H. at 588-89. Accordingly, we conclude that
the State has met its burden of proving that any error in admitting Papillon’s
statements did not affect the verdict and, therefore, was harmless beyond a
reasonable doubt. See id.

                              IV. Closing Argument

       Finally, we address the defendant’s argument that it was plain error for
the trial court to have failed to act sua sponte to cure the prosecutor’s allegedly
improper statements made during closing argument. At the outset, we note
that the individual prosecuting attorney at trial is not representing the State on
appeal. The statements at issue fall into two categories: one set of statements,
the defendant contends, constituted an impermissible personal attack on
defense counsel, see State v. Dowdle, 148 N.H. 345, 348 (2002), and the other
set, he argues, were improper because they impermissibly conveyed to the jury
the prosecutor’s personal opinions about the defendant’s credibility and guilt.
See State v. Bujnowski, 130 N.H. 1, 4-5 (1987). Although defense counsel did
not object to the statements when they were made, the defendant, nonetheless,
asserts that the trial court erred by not sua sponte intervening, and argues
that we must reverse his convictions. We are not persuaded.

       “In determining whether the prosecutor’s comments were improper, we
face the delicate task of balancing a prosecutor’s broad license to fashion
argument with the need to ensure that a defendant’s rights are not
compromised.” State v. Hearns, 151 N.H. 226, 233 (2004). “[W]e consider the
challenged remarks in the context of the case.” State v. Addison (Capital
Murder), 165 N.H. 381, 548 (2013); see also United States v. Robinson, 485
U.S. 25, 33 (1988) (stating “prosecutorial comment must be examined in
context”). “A prosecutor may draw reasonable inferences from the evidence
presented and has great latitude in closing argument to both summarize and
discuss the evidence and to urge the jury to draw inferences of guilt from the


                                        13
evidence.” State v. Drown, 170 N.H. 788, 793 (2018). “[P]rosecutors need not
pull their punches; they may—indeed, they should—present their cases to
criminal juries zealously. Forcefulness in the pursuit of justice is to be
admired rather than condemned.” United States v. Taylor, 54 F.3d 967, 976-
77 (1st Cir. 1995). Nonetheless, a prosecutor may not “stray into forbidden
terrain,” and the “defendant has a corresponding obligation to protect his own
interests.” Id. at 976-77 (quotation omitted). “When a defendant defaults on
this obligation by failing to make a contemporaneous objection to questionable
comments in the prosecution’s closing argument,” the trial court has no
opportunity to respond to the objectionable statement at the time it occurs. Id.
at 977.

       “Afterthought claims of improprieties allegedly occurring during the
summation” are reviewed under our plain error rule. Id.; see also Drown, 170
N.H. at 792. “The plain error rule allows us to exercise our discretion to
correct errors not raised before the trial court,” however, its application is
“limited to those circumstances in which a miscarriage of justice would
otherwise result.” Drown, 170 N.H. at 792; see also Sup. Ct. R. 16-A. “For us
to find plain error: (1) there must be an error; (2) the error must be plain; (3)
the error must affect substantial rights; and (4) the error must seriously affect
the fairness, integrity or public reputation of judicial proceedings.” Drown, 170
N.H. at 792. “[T]he existence of plain error does not depend solely on whether
— as an abstract matter — the lawyer’s [argument] would have been
inadmissible if . . . objected to. Rather, any ‘plain error’ must relate to the trial
court having not taken affirmative steps to intervene in the parties’ litigation.”
Id. at 799 (quotation omitted); see also United States v. Young, 470 U.S. 1, 14
(1985) (concluding that prosecutor’s statements, although improper, did not
rise to the level of “plain error” warranting the court to overlook the absence of
any objection by the defense); State v. Rawnsley, 167 N.H. 8, 12 (2014). “When
a defendant fails to object to the prosecutor’s closing argument, relief is
available to rectify only plain error that is so obvious that failure to correct it
would jeopardize the fairness and integrity of the trial.” United States v. Bailey,
123 F.3d 1381, 1400 (11th Cir. 1997). “A decision not to object may be a trial
strategy that should not be intruded upon by the trial court in the absence of
patently egregious circumstances.” State v. Labrie, 171 N.H. 475, 489 (2018).

      Here, defense counsel did not object during the prosecutor’s closing
argument, and the trial court took no action. “It is this inaction . . . that
provides the basis for our review.” Drown, 170 N.H. at 799. Accordingly, the
pertinent inquiry with regard to whether a “plain error” occurred in this case is
not whether the prosecutor’s closing statement was improper, but rather,
assuming it was improper, whether the trial court should have acted sua
sponte to cure the impropriety. See id.

      We now turn to the first set of allegedly improper statements. During his
closing argument, the prosecutor stated to the jury that “just like the


                                         14
Defendant, the defense team wants to distract you from the truth.” The
prosecutor also made other similar statements during his closing. The
defendant asserts that, because we held in Dowdle that it was improper for the
prosecutor to argue that defense counsel’s “job is to obscure the truth if it
hurts their client, to distract you from the truth,” Dowdle, 148 N.H. at 347-48
(quotation omitted), here it was plain error for the trial court not to intervene
during the prosecutor’s closing argument. See id. (concluding that such
statements were “inexcusable,” and “unquestionably inappropriate” (quotation
omitted)); State v. Boetti, 142 N.H. 255, 259 (1997) (concluding it was improper
for prosecutor to argue during closing that defense strategy did not serve “a
truth-seeking function”). The defendant contends that sua sponte court
intervention was required because such statements during closing argument
“present[] defense counsel with an untenable choice: either, object to the
argument that [defense counsel] hides the truth, making it further appear like
counsel is doing just that, or forgo an objection to avoid that inference and
allow the State to conduct an improper argument.” He argues, therefore, that
we must reverse because, “[i]n failing sua sponte to strike these improper
arguments, the court committed plain error,” and that error affected the
defendant’s substantial rights and “distorted” justice. See Drown, 170 N.H. at
792 (explaining plain error rule). Although we agree with the defendant that
the prosecutor made improper statements during his closing argument, we do
not agree that the trial court committed plain error by failing to sua sponte
intervene and strike the prosecutor’s statements.

       The prosecutor’s statement that “the defense team wants to distract you
from the truth,” and his other similar statements, were improper. In Boetti and
Dowdle we made clear that such “personal attacks directed to the ethics and
integrity of opposing counsel are unquestionably inappropriate.” Boetti, 142
N.H. at 261; see also Dowdle, 148 N.H. at 347-48. However, neither case holds
that it is plain error for the trial court not to sua sponte intervene in response
to such statements, because in each case — unlike here — defense counsel
contemporaneously objected to the prosecutor’s improper statements. See
Dowdle, 148 N.H. at 347; Boetti, 142 N.H. at 257-58. Indeed, we have never
held that a trial court must interrupt a party’s closing argument; rather, “we
have often discouraged trial courts from acting sua sponte.” Labrie, 171 N.H.
at 489; see also Noucas, 165 N.H. at 161; State v. King, 146 N.H. 717, 722
(2001). Defense counsel may have good reasons for not objecting during a
prosecutor’s closing argument. See Drown, 170 N.H. at 802.

      Here, when we consider the prosecutor’s improper statements within the
context of the case, we conclude that the defendant has failed to show that
they were sufficiently egregious so as to require the trial court to intervene.
See Labrie, 171 N.H. at 489; State v. Guay, 164 N.H. 696, 704 (2013)
(observing that defendant bears burden to show plain error on appeal). We
note that the trial court instructed the jury that the lawyers’ “[a]rguments are
not evidence.” See Labrie, 171 N.H. at 489-90. “The jury is presumed to follow


                                       15
the instructions given by the trial court.” State v. Littlefield, 152 N.H. 331, 348
(2005). Accordingly, we conclude that it was not error for the trial court not to
act sua sponte to cure the prosecutor’s improper statements during closing
argument.

      We now turn to the second set of allegedly improper statements. During
closing argument, the prosecutor said “unlike all of you, the Defendant is not
concerned with the truth,” and “ironically, you all are going to be tasked with
doing the very thing that the Defendant said he would never do . . . to speak
the truth about his crimes.” The prosecutor concluded, “We know that’s the
truth,” and asked the jury to “[t]ell the Defendant the truth about his crimes.”

       The defendant argues that these statements impermissibly conveyed to
the jury the prosecutor’s personal opinions about the defendant’s credibility
and guilt. See Bujnowski, 130 N.H. at 4-5. The State counters that “the
prosecutor’s statements about the defendant’s tenuous relationship with the
truth were tethered to the facts: the evidence established that the defendant
had not only repeatedly lied to the police during his interrogation, but told
them he would never be truthful with them.” Further, the State argues, even if
improper, the defendant cannot show that the trial court committed plain
error.

       It is well-established “that it is improper for prosecutors to profess to the
jury their personal opinions as to the credibility of a witness or the guilt of the
accused.” Id. at 4. Here, it is a close call as to whether the statements made
by the prosecutor impermissibly expressed a personal opinion about the
defendant’s credibility or guilt. See id. at 3-5 (finding that prosecutor’s
statements were improper when he repeatedly, and against the court’s
admonition, made statements such as “I think the defendant is guilty,” and “I
think for ninety-nine percent of it [the witness] was lying” (brackets and
quotations omitted)). However, we need not decide whether the statements
were improper, because, even if they were, the defendant has failed to show
that they were sufficiently egregious so as to require the trial court to sua
sponte intervene. See Labrie, 171 N.H. at 489-90.

       We note that, even if we were to conclude that the trial court’s failure to
sua sponte intervene was error, the defendant has failed to demonstrate that
the error would have adversely affected his substantial rights. Drown, 170
N.H. at 792. “Generally, to satisfy the burden of demonstrating that an error
affected substantial rights, the defendant must demonstrate that the error was
prejudicial, i.e., that it affected the outcome of the proceeding.” State v.
Cooper, 168 N.H. 161, 168 (2015) (quotation omitted). Here, given the
overwhelming evidence of the defendant’s guilt, the defendant cannot
demonstrate that any error by the trial court would have affected the outcome
of the trial, and, therefore, his substantial rights. See id. at 168-69.



                                         16
       Finally, we reiterate that “[w]e strongly caution prosecutors to avoid
misstatements of evidence, improper argument, or other improper conduct.”
Id. at 171 (quotation omitted). Although the defendant has failed to
demonstrate that any error by the trial court affected his substantial rights, we
do not condone the prosecutor’s conduct. See id.

                                                  Affirmed.

      HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.




                                       17
