State v. McLeod
66 A.3d 1221
N.H.2013Background
- Keene fire in January 1989 at an apartment building where Walker resided; four family members died from smoke inhalation.
- Walker, who survived, gave multiple accounts of how the fire started and what she saw when she woke.
- Norton, a fire investigator, initially concluded the fire was not from smoking materials but from an incendiary act; NFPA 921 was later cited as guiding methodology.
- Two ATF fire experts, Cox and Pijaca, reviewed Norton’s conclusions and aligned with NFPA 921, ultimately supporting a human-initiated open-flame origin.
- In 2010, the State reinvestigated the fire, leading to an indictment of McLeod on four counts of second-degree murder; the Cold Case Unit relied on expert testimony formed around the new analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May experts testify using testimonial statements indirectly? | McLeod argues confrontation rights bar reliance. | State argues expert basis may include testimonial statements. | No Confrontation Clause violation if expert relies on independent judgment. |
| Can experts discuss unadmitted testimonial statements on direct examination? | McLeod contends such statements should be barred. | State may present basis for opinions without admitting statements. | Yes, if experts use independent judgment and cross-examination reveals basis. |
| Whether suppression was required for the one-party intercept due to delayed memorandum | State argues delay is non-suppressive technical violation. | McLeod contends delay warrants suppression. | Delay did not require suppression; interception obtained lawfully. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause safeguards against out-of-court testimonial statements)
- Williams v. Illinois, 132 S. Ct. 2221 (U.S. 2012) (Confrontation analysis for expert basis evidence; plurality nuance discussed)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (Prohibits surrogate testimony for testimonial certifications)
- United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) (Assess degree of expert reliance on testimonial hearsay; independence favored)
- State v. Navarette, 294 P.3d 435 (N.M. 2013) (Out-of-state authority on basis evidence and expert reliance)