Death Resulting Investigations

According to my research, NH RSA 318-B:26 Section IX Sale of Controlled Drug; Death Resulting appears within New Hampshire statutes and portions of legislative discussion as early as January 1992. As of the date of this article, this would make the law over 30 years old. I found this particularly interesting because I have been unable to find any supreme court cases dating back before 2008 with State v. Silva, 158 N.H. 96 (the actual trial for this case was held in 2004 in Rockingham Superior Court).

As of the date of this article, the elements of the statute for Sale of Controlled Drug; Death Resulting are the following:

IX. Any person who manufactures, sells, or dispenses methamphetamine, lysergic acid, diethylamide phencyclidine (PCP) or any other controlled drug classified in schedules I or II, or any controlled drug analog thereof, in violation of RSA 318-B:2, I or I-a, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and may be sentenced to imprisonment for life or for such term as the court may order. For purposes of this section, the person's act of manufacturing, dispensing, or selling a substance is the cause of a death when:

(a) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and

(b) The death was not:

(1) Too remote in its occurrence as to have just bearing on the person's liability; or

(2) Too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect, as to have a just bearing on the person's liability. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance or by his consenting to the administration of the substance by another. Nothing in this section shall be construed to preclude or limit any prosecution for homicide. A conviction arising under this section shall not merge with a conviction of one as a drug enterprise leader or for any other offense defined in this chapter.

§ 318-B:26 (LexisNexis, Lexis Advance through Chapter 243 of the 2023 Regular Session)

So why weren't there more cases between 1992 and 2004?

Although I don't have a scientific answer for this question, I believe the predominant reasons why New Hampshire didn't experience more cases of Sale of Controlled Drug; Death Resulting before 2004 include:

• A clear change in the availability of certain drugs of abuse; and
• Advancements in technology that, prior to this time, were unavailable to investigators as an investigative lead.

Heroin, Fentanyl, and Carfentanil didn't make their appearance in New Hampshire until later in the game than most other state. However, New Hampshire has been more deeply affected by the opioid epidemic than most. According to an article published in 2020 entitled: Understanding the Increase in Opioid Overdoses in New Hampshire: A Rapid Epidemiologic Assessment, "New Hampshire (NH) has had among the highest rates of fentanyl-related overdose deaths per capita in the United States for several years in a row—more than three times the national average in 2016. This mixed-methods study investigated drug-using practices and perspectives of NH residents who use opioids to inform policy in tackling the overdose crisis." ^[1]

There are many different theories as to what led to the opioid crisis in the United States, but most agree that these issues arose from the intentional misuse and/or the overprescribing of controlled opioid painkillers in pill form. New Hampshire is no stranger to the pains of addiction, as it is also the leading state of alcohol consumption within the United States as well. A tool in the arsenal of law enforcement investigators in the State of New Hampshire is the criminal charge of Sale of Controlled Drug; Death Resulting. The charge is somewhat equivalent to the negligent homicide, but with one exception, there is no need to prove negligence. What is clearly spelled out within this law is that an individual is strictly liable for the death of another when involved in the manufacture, sale, or dispense of controlled drugs to an individual and such ingestion, inhalation, or injection causes the death of that individual.

Suffice to say that if there was sufficient evidence to support an individual being found guilty of the charge of either controlled drug sale or manufacture, then the same individual could also be convicted of Sale of Controlled Drug; Death Resulting with little more than evidence that an individual ingested or otherwise consumed the very same drugs which caused a substantial contributing factor towards the death. There needs to be no further intent by the suspect in such a case than to intend to sell, manufacture, or dispense drugs to another individual. This is why the charge is so valuable in the fight against the opioid epidemic within New Hampshire, it directly targets those individuals who manufacture, sell, or disperse those drugs.

The drug user as a drug dealer to support their own habit (or just help out a friend) theory.

The most common excuse or explanation I have experienced in investigating these cases is that the drug dealer in a death resulting case is nothing more than a drug user looking to earn money to support their own habit. Although I have seen in some cases that it isn't always the top distributor of the illegal drugs that are targeted within a death resulting investigation, this doesn't excuse the "drug user" who was just trying to help out a friend so they wouldn't be dope sick, etc. The act of furnishing the drug only fuels further addiction in these cases, to both the user/dealer who sells the product to make up a little money to buy more and the user who purchases and ultimately uses the product. The law does not allow for exceptions to the strict liability, ultimately the low-level user who provides an acquaintance with fentanyl is still the contributing factor towards the individual's death in these cases. Usually, the trail can be followed to top-level dealers who can also be held liable for the same death under the statute, so long as the drugs were not substantially altered by the third-party drug dealer.

Some important considerations for death resulting investigations:

• The first consideration, which we will discuss more in-depth below, is to treat each death resulting investigation as a homicide. Evaluate all of your evidence, and understand that the body of the deceased is evidence in such a crime. An autopsy should be performed to rule out any other potential cause of death, and blood testing should be performed to confirm the presence of the controlled drugs within the victim's bloodstream.
• Utilize all of the investigative resources available to you, although technology is an important piece of these investigations don't forget to get back to the basics, interview people who might be witnesses or have heard information that could be followed up on, document the crime scene accordingly, have the drugs tested at the lab.
• Preserve accounts for all social media you believe may be involved in the crime at the beginning, identify potential suspects, and preserve their accounts and phone records. Once probable cause is developed, apply for a search warrant to seize and conduct forensic analysis on their cellular devices. Also, don't forget about surveillance cameras, they are everywhere and may have been a first-hand witness to the drug transaction. Surveillance footage can also be used to rule out any other potential suspects meeting with a victim after the last known date and time of a sale.
• Develop a clear investigative plan with checklist items based on priority. When we properly organize and orient ourselves as law enforcement investigators, it makes our goals clearer and helps prevent potential loopholes from opening within the defense in a particular case. However, accept that most cases will have some potential loopholes you may not be able to close even after following up on all the potential case leads.

Continue to educate yourself on new and important law enforcement topics and considerations.

We don't all have to be experts in the field of investigating cases involving Sale of Controlled Drug; Death Resulting but we do have to strive to be proficient and to do the best for victims and their families. Let's face it, many of the individuals who pass away as a result of a drug overdose are those individuals with whom we have had prior law enforcement interaction. One of my most eye-opening experiences in law enforcement was working in prosecution as a misdemeanor prosecutor. People can act differently depending on if they are under the influence of drugs or alcohol, and the proof was on the day of court for many. I saw many individuals appear in court, accept responsibility for their actions, and genuinely apologize for their behavior as a prosecutor. This marked a drastic difference between their activities on the day they may have been arrested, and drugs and alcohol play a part in an individual's behavior. After all, families often suffer the loss of a relative addicted to controlled substances long before their actual death, given the change that occurs to the person themselves, their behavior, and their attitude during addiction.

This finally gets me to the point in this article, being consistent with our training and examining every court case from an analytical perspective to learn key points that the court considered. The following is a case summary and review for State V. Gregory Collins 2024 N.H. 7, decided February 2, 2024 by New Hampshire Supreme Court.

On February 15, 2018 the decedent's mother checked him into a hotel room and gave him $20 in cash for food. The decedent then reached out to a male identified as Peter Miltner and asked for a quantity of either fentanyl or heroin. At around 1:30PM that same day Peter Miltner reached out to Gregory Collins, his dealer, and asked him to come pick him up because he had a "sale" for him. Peter and Gregory drove to the hotel with the product, which Peter then delivered to the decedent.

The decedent's mother had been attempting to contact the decedent since around 1:45 PM on February 18, 2018, but he never answered any communications. The following morning the decedent's mother called the hotel and asked for a welfare check, during which time they found the decedent's body. Police discovered the decedent's cell phone, which contained evidence of the communications with Miltner, along with a syringe and drug residue. The investigation led to the indictment and formal prosecution against Gregory Collins. Collins was ultimately found guilty at trial and appealed his conviction.

There were two considerations for the appeal to the NH Supreme Court, the first being an alleged conflict of interest over the prosecuting authority. The court found that there was no conflict, and ultimately this is of little value in our analysis of the case so we won't be focusing on this portion of the appeal. The main consideration for our analysis of the appeal was Collins' argument that there was insufficient evidence to convict for Sale of Controlled Drug; Death Resulting because the medical examiner did not perform a full autopsy on the decedent. The court ultimately affirmed the conviction.

I can't overstate the importance of an autopsy in a death resulting investigation, ultimately it rules out any reasonable doubt that an individual may have died of some other cause other than acute fentanyl toxicity. However, prosecutors were successful in their arguments against there being any reasonable doubt given the testimony of the medical examiner, who testified that in cases where it is clearly a death caused by acute fentanyl toxicity due to:

• The decedent's known drug history;
• The lack of any serious prior medical history of the decedent; and
• The facts and circumstances were documented and relayed by investigators at the scene to the medical examiners office.

The medical examiner also explained that in 2018 the caseload for deaths caused by acute fentanyl intoxication was so high that it would have been impractical to perform an autopsy in every case involving an overdose death. As such, the New Hampshire Medical Examiner's Office would only move forward with an autopsy when it wasn't abundantly clear that the individual's cause of death was a result of acute fentanyl toxicity. The medical examiner ultimately testified that she was 94.5 % positive the decedent died as a result of acute fentanyl intoxication.

Something to consider is that a jury in any case hears all the evidence which is presented to them. Alone, the medical examiner's testimony about her certainty of the cause of death may have created the potential for there to be a "reasonable doubt" as to what caused the death of the individual. However, when you combine the evidence, facts and circumstances surrounding the law enforcement investigation in this matter the jury was confident that Gregory Collins sold a schedule I or II drug to the decedent, who ultimately ingested the drugs and passed away as a result. It's the totality of all of the evidence, facts, and circumstances that led to the jury finding Collins guilty of the offense.

So why is this case a bit of a landmark? Because there have been cases where an autopsy has not been performed and prosecutors have chosen not to move forward with the case. Prosecutorial discretion ultimately lies with the prosecutor, and there may be factors that lead the prosecutor to feel that they may not be successful in prosecuting the case and this is understandable. However, in this case, it does appear as though the medical examiner's office at least initially invested significant time and research into investigating the circumstances of the death before making the decision not to move forward with an autopsy.

My suggestion is always to request that the medical examiner perform an autopsy, but given this ruling, you may expect to receive a hard no if their caseload is high at any given point in time. If that's the case, ask that they perform all applicable testing to prepare themselves for a potential future trial if a suspect is identified and prosecuted for the crime. This will at least allow for the medical examiner's office to draw blood to examine if the presence of a controlled drug is found within the decedent's bloodstream.

As always, consult with your administrators and prosecutors on how to proceed in any death resulting investigation to help identify any potential legal challenges that may arise.

^{[1] Meier, A., Moore, S. K., Saunders, E. C., McLeman, B., Metcalf, S. A., Auty, S., Walsh, O., & Marsch, L. A. (2020). Understanding the increase in opioid overdoses in New Hampshire: A rapid epidemiologic assessment. Drug and alcohol dependence, 209, 107893. https://doi.org/10.1016/j.drugalcdep.2020.107893}

^{[2] https://www.courts.nh.gov/sites/g/files/ehbemt471/files/documents/2024-02/2024007collins.pdf}