Hampton Beach fatal overdose could bring life sentence: Is NH death resulting law working?

HAMPTON — A Nashua woman is facing the possibility of life in prison for allegedly selling the drugs that led to a fatal overdose in Hampton.

Elisha Lynn Escamilla, 34, of Nashua, was arraigned on May 17 at Rockingham Superior Court, charged with allegedly providing “a quantity of fentanyl to (an unnamed deceased male)” in Hampton on July 11, 2021, according to the Hampton Police Department. A felony charge, the Rockingham County Attorney’s office is handling the prosecution.

In the Hampton police affidavit for Escamilla’s warrant, she’s charged with allegedly selling fentanyl to a Nashua man who died after using it while on vacation at Hampton Beach last year.

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Escamilla’s arrest came after a lengthy investigation involving the analysis of evidence from the scene of the victim’s death, the autopsy results, and interviews with the deceased’s family members, as well as extractions from the victim’s cell phone. His text conversations included those to and from Escamilla on July 10, 2021, the day before his death, when he allegedly arranged to obtain illegal drugs from her.

Escamilla is charged under RSA 318-B:26,IX, a section of New Hampshire’s Controlled Drug Act that holds, “Any person who manufactures, sells, or dispenses,” any Schedule 1 or II drug in violation of the Controlled Drug Act “is strictly liable for a death which results from the injection, inhalation or ingestion of that substance.” Those convicted “may be sentenced to imprisonment for life or for such term as the court may order.”

Hampton Police Chief David Hobbs believes having the law on the books is important in the fight against the opiate epidemic.

“These laws help establish a criminal liability for people who engage in this behavior,” Hobbs said, “namely selling illegal drugs.”

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A ’tool for law enforcement'

Escamilla is far from the first person in the state or even the region to be charged after allegedly selling a deadly dose of illegal drugs.

According to Randy Hawkes, executive director of the New Hampshire Public Defenders program, the death resulting statute has been on the books for decades both federally and in New Hampshire, but it hadn’t been pursued actively until opiate deaths grew to epidemic proportions in the Granite State.

As the plethora of cases drew a public outcry over the past 10 years or so, law enforcement agencies began investigating drug overdose deaths and holding drug dealers accountable in hopes of stopping the carnage.

According to New Hampshire Senior Assistant Attorney General Danielle Sakowski, chief of the office’s drug prosecution unit, RSA 318-B:26, IX has been prosecuted in New Hampshire going back to about 2008.

“I can’t speak to the legislative intent of the statute, but it’s been a useful tool for law enforcement to pursue individuals who sell drugs that ultimately kill,” Sakowski said.

Other cases on the Seacoast

Police in Portsmouth and Rochester have pursued high-profile cases and won convictions.

In March 2021, John Mills, 29, of Hampton, and Jordan Lamprey, 23, of North Hampton, were arrested after a months-long investigation following the drug overdose death of 28-year-old John Dunn Jr., of Hudson on July 12, 2020, according to the Hudson Police Department.

Last October, North Hampton police and the New Hampshire Attorney General brought a similar charge against former North Hampton resident, 42-year-old Ronald Ciotti, for allegedly selling his friend Nicholas Grandmaison, 27, of North Hampton the fentanyl that caused his fatal overdose on Oct.15, 2019.

Ciotti’s case is pending in Strafford Superior Court with a hearing set for August, according to North Hampton Police Chief Kathryn Mone.

Mone said whenever North Hampton encounters a drug death in its jurisdiction, she feels it is the department’s “responsibility and mission” to do everything it can to get all the facts involved.

“This law creates an opportunity for some level of justice for families who have lost a loved one through a death that has occurred through the illegal sale of dangerous drugs,” Mone said.

Legal debate over statute’s benefits

Some, however, don’t believe minor dealers should be prosecuted for the deaths of addicts to whom they sell the final dose of illegal drugs, in part because most local dealers are selling drugs to support their own addictions. Further, they argue, the statute doesn’t necessarily snare major drug traffickers at the top of the illegal drug food chain.

Brett Newkirk, an attorney in the New Hampshire Public Defenders office represents Escamilla. He declined to comment on her case, but offered his view on prosecuting individuals for drug distribution death resulting.

“No one can minimize the tragedy that results from the death of an individual by overdose,” Newkirk said. “The danger with the application of this statute is not as a tool against kingpins. It’s the harshness of its application against other tragically addicted individuals who just happened to survive.”

Mone has another perspective.

“We are never going to arrest our way out of this tragic (opiate) epidemic,” Mone said, “but this law does give us a tool to take some of the most dangerous drug dealers off the streets for a longer period of time preventing them from selling more deadly drugs, and perhaps giving dealers the opportunity for treatment for their own struggles with addiction.”

Still, Hawkes contends the way New Hampshire’s death resulting statute is written often leads to a friend being prosecuted for causing the death of his or her friend, after one buys and shares illegal drugs that results in a fatality. That’s because New Hampshire statute is written strictly to liability, he said, and prosecutors don’t have to prove an intent to harm to meet the burden of legal proof.

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The statute as a deterrent

According to Assistant Attorney General Sakowski, when defendants are convicted and sentenced in any crime, one of the things judges take into consideration is a statute’s use as a “general deterrent,” in crime, especially in the public’s eyes.

And in reference to the prevalence of addiction among those convicted, Sakowski said, although the statute indicates they may face up to life imprisonment, such a sentence isn’t mandatory. Judges in New Hampshire have considerable discretion in sentencing on a vast number of crimes, she said, and may take into consideration “mitigating factors,” such as a defendant’s own personal history of drug addiction.

Hawkes, the public defender, doesn’t think the state’s death resulting statute is as beneficial as some believe. He said supporters of the statute may see it as serving as a deterrent, but deterrents assume people make rational decisions about their behavior. That may be true of some non-addicted drug dealer profiteers, he said, and they may decide not to sell in a state that prosecutes death resulting cases.

“But the same cost/benefit that this deterrent depends upon doesn’t happen with the addicted,” Hawkes said. “The fact of the matter is people who suffer from addiction do not think or behave rationally. Their brains have been high-jacked.”

Yet, in a 2014 case up in Littleton, Michael Millette, considered a “substantial drug dealer,” pleaded guilty to selling a local resident, Edward Martin III, the illegal drugs that killed him.

The case was prosecuted by the office of then-New Hampshire Attorney General Joseph Foster, who said the tragedy of drug addiction remains “one of the greatest challenges facing law enforcement.”

“While a solution to this problem is multi-faceted and must involve education, prevention and treatment,” Foster said at the time, “an important part of the solution will continue to be identifying, arresting, prosecuting and incarcerating heroin and fentanyl dealers like Michael Millette.”

Attorney Stephen Jeffco, who represents Ciotti, was contacted for this article. He did not respond.

This article originally appeared on Portsmouth Herald: Hampton Beach overdose death sparks look at NH death resulting law