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State v. Pelkey7/5/2000
99, 644 A.2d 68, 69 (1994).
The evaluation of whether this standard has been achieved involves consideration of the alternative evidence presented at trial, and of the character of the inadmissible evidence itself. 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 inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. State v. Vandebogart, 139 N.H. 145, 157-58, 652 A.2d 671, 679 (1994) (quotations and citations omitted).
We find that the strength of the alternative evidence in this case was not overwhelming. There was no evidence of the defendant's blood alcohol concentration on the night in question. Further, the officer who stopped the defendant observed no erratic operation other than unreasonable speed.
While two officers testified to an odor of alcohol, reddened eyes, and a flushed face, defense counsel offered alternative explanations, other than intoxication, for each of these characteristics. Defense counsel also attacked the accuracy of the field sobriety tests based on the testing conditions, the weather, and the defendant's physical traits.
It appears from the record, moreover, that the sole reason the officer decided to follow the defendant at 1:00 a.m. on the night in question was his observation of the defendant leaving the club. The fact that the officer followed the defendant for two miles before he found a reason to stop him is significant.
Further, admission of the statement was not inconsequential. The State specifically addressed the statement in its closing argument, reinforcing its significant prejudicial impact. Cf. State v. Hennessey, 142 N.H. 149, 159, 697 A.2d 930, 937 (1997) (fact that prosecutor did not specifically mention evidence in closing argument contributed to determination that its admission was harmless). Based on all of the relevant considerations, we conclude that the State failed to establish beyond a reasonable doubt that admission of the defendant's statement did not affect the verdict.
Reversed and remanded.
BROCK, C.J., HORTON and BRODERICK, JJ., did not sit; GRAY, J., retired superior court justice, and McHUGH and GROFF, JJ., superior court justices, sat by special assignment under RSA 490:3; all who sat concurred.
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