State v. Rodriguez, 164 N.H. 800

New Hampshire recognizes co-conspirator statements under Rule 801(d)(2)(E) only if made during a conspiracy and in furtherance of it, not after arrest.
Rodriguez was convicted on burglary, conspiracy to commit burglary, first-degree assault (principal), accomplice to first-degree assault, and conspiracy to commit first-degree assault.
The trial court vacated the burglary and one first-degree assault conviction but left three convictions intact after deeming some co-conspirator statements improperly admitted.
Post-arrest co-conspirator statements were admitted through Detective Mederos and Detective Gorman, prompting defense objections and a later ruling that the evidence was inadmissible under Rule 801(d)(2)(E) and the Confrontation Clause.
The court applied harmless-error review and upheld three convictions while reversing the two related to accomplice and conspiracy first-degree assault to a new trial.
On appeal, the court reviewed whether the admission of the post-arrest statements was harmless beyond a reasonable doubt and concluded it was not for the two assault-related convictions but harmless for conspiracy to burglary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review for motion to set aside verdicts	Beede standard; harmless-error analysis not applied.	Beede standard; harmless-error analysis required.	Harmless-error analysis applied; not all convictions preserved.
Whether post-arrest co-conspirator statements were harmless beyond a reasonable doubt	Evidence overwhelmingly supports guilt even without improper statements.	Improper admission undermines three convictions.	Not harmless beyond a reasonable doubt for accomplice and conspiracy first-degree assault; reversed and remanded.
Conspiracy to commit burglary sufficiency given admitted statements	Evidence shows agreement to enter Cortes’ residence to commit a crime.	Insufficient to show tacit agreement with weapons or intent.	Harmless error; conspiracy to burglary affirmed.
Conspiracy to commit first-degree assault and accomplice to first-degree assault verdicts	Evidence of weapons and entry supports the conspiracy/accomplice theories.	Evidence insufficient to prove tacit agreement and weapon knowledge beyond reasonable doubt.	Not harmless; convictions reversed and remanded for new trial.
Admissibility under Rule 801(d)(2)(E) and Confrontation Clause	Statements properly admitted as in furtherance of conspiracy; cross-examination limited.	Statements violate Confrontation Clause as testimonial and not in furtherance of conspiracy.	Admission error when viewed with all evidence; harmless for burglary; reversible for assault charges.

State v. Beede, 156 N.H. 102 (N.H. 2007) (harmless-error standard for evidentiary errors)
State v. Reid, 134 N.H. 418 (N.H. 1991) (double-jeopardy and standard of review guidance)
State v. Leuthner, 124 N.H. 638 (N.H. 1984) (reaffirming post-verdict standards)
Crawford v. Washington, 541 U.S. 36 (S. Ct. 2004) (Confrontation Clause and testimonial statements)
Lockhart v. Nelson, 488 U.S. 33 (S. Ct. 1988) (Double Jeopardy retrial considerations for admissible evidence)
State v. Horak, 159 N.H. 576 (N.H. 2010) (adopting Lockhart for NH constitution purposes)
United States v. Meises, 645 F.3d 5 (1st Cir. 2011) (post-arrest co-conspirator statements generally not admissible)