Background
Marcus Cherry was tried in Hillsborough County Superior Court on drug trafficking charges including conspiracy to sell a controlled drug, four counts of possession with intent to sell, sale of a controlled drug, and being a drug enterprise leader. The prosecution’s case centered on an alleged fentanyl distribution network operating out of two Manchester addresses and a vehicle. Prior to trial, the State moved to admit evidence that Cherry routinely carried firearms — witnesses described him as “always” having a handgun on his person, in his car, or in a backpack. The trial court ruled this evidence “inextricably intertwined” with the drug charges and therefore admissible as intrinsic evidence not subject to Rule 404(b) scrutiny, relying on its own courtroom experience that handgun possession “almost always” accompanies large-scale drug trafficking.
The trial court also admitted evidence of firearms seized alongside drugs in a co-conspirator’s vehicle, as well as witness testimony that Cherry had previously been seen carrying a Magnum .357 revolver with a scope attachment — a distinctive firearm matching one found in that co-conspirator’s vehicle. Cherry objected to all of this evidence as improper other-acts evidence. He was ultimately convicted on all counts. On appeal, he challenged the firearms rulings, the denial of a suppression hearing, the sufficiency of the evidence on the sale charge, and the joinder of the sale count with the other charges.
The New Hampshire Supreme Court reversed all convictions and remanded, holding that the trial court erred both in admitting the general firearms evidence and in joining the sale charge for trial. The court also addressed the sufficiency and suppression issues for guidance on remand.
The Court’s Holding
The court held that evidence of Cherry’s general firearms ownership and possession was not “inextricably intertwined” with the charged drug offenses and therefore could not be admitted as intrinsic evidence outside Rule 404(b)’s reach. The State offered no specific connection between the guns and any charged act — no allegation that Cherry was armed while dealing drugs on a particular occasion, or that the guns were found alongside drugs. Mere temporal overlap between Cherry’s gun-carrying habits and the drug conspiracy period was insufficient. The court further held that under Rule 404(b)’s relevance prong the State failed to articulate the required “sufficient logical connection” between the general gun evidence and any non-propensity purpose, making the evidence inadmissible as a matter of law.
By contrast, the court upheld admission of the revolver and shotgun found in the co-conspirator’s vehicle because those firearms arose from the same events as the charged drug offenses — seized alongside drugs — and were directly probative that the guns were tools of the trade. The court declined to rule as a matter of law that the Magnum .357 revolver testimony (Cherry seen with a similar gun on prior occasions) was admissible under Rule 404(b), because the probative value-versus-prejudice balancing could have gone either way, and that discretionary call belonged to the trial court in the first instance. Because the State did not argue harmless error as to any of the erroneously admitted firearms evidence, reversal was required.
On the sale-of-a-controlled-drug charge, the court found sufficient evidence to support the verdict — including a witness’s testimony relaying Furlow’s statement that Cherry sold her the drugs and lab results confirming fentanyl — meaning retrial on that count is not barred by double jeopardy. The court also held that Cherry’s suppression arguments were not preserved for review because he failed to invoke a specific provision of the New Hampshire Constitution in his brief, despite citing New Hampshire case law.
Key Takeaways
- General evidence that a defendant “always carried a gun” is not automatically admissible as intrinsic evidence in a drug-trafficking trial; the State must show a specific causal, temporal, or spatial link between the particular firearms and the charged conduct, not merely that the defendant was armed during the same general time period.
- Firearms found in the same search as drugs — particularly in a co-conspirator’s vehicle — can qualify as inextricably intertwined with the drug charges and survive Rule 404(b) as intrinsic evidence.
- A trial court’s reliance on its own professional experience to conclude that drug dealers “almost always” carry guns does not substitute for the particularized relevance showing Rule 404(b) requires.
- Failure to argue harmless error on appeal is fatal to preserving a conviction after erroneous evidentiary rulings — the State’s silence on the issue required automatic reversal.
- State constitutional claims must be preserved by specifically invoking a constitutional provision; citing New Hampshire case law interpreting that provision is insufficient.
Why It Matters
This decision draws a clear line that New Hampshire prosecutors will need to respect in drug cases: the well-established association between firearms and drug dealing does not create a blanket rule that gun evidence is always admissible against a drug defendant. Courts must demand a concrete, case-specific nexus — not judicial notice of statistical patterns in the narcotics trade. The ruling reinforces the gatekeeping function of Rule 404(b) and cautions trial courts against treating general propensity inferences as something other than what they are.
The case is also a practical reminder for appellate practitioners on two procedural fronts: the State must raise harmless error or risk losing otherwise salvageable convictions, and defendants must explicitly invoke constitutional provisions — not just cite cases interpreting them — to preserve state constitutional claims for appeal.