Jury nullifies evidence against Barnstead pot grower

LACONIA — After three years of fighting and two days at trial a Barnstead man was exonerated by a jury yesterday of growing marijuana in his back yard.

Douglas Darrell, 59, of 180 Shackford Corner Road was indicted by a Belknap County grand jury in August of 2009 for one count of manufacturing pot.

Atty. Mark Sisti represented Darrell and successfully argued the presiding judge should allow the jury to consider jury nullification — meaning that even if all of the facts of the case are proved to be true, if the jury believes that "the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused or (if) for any reason (that) appeals to their logic or passion, the jury has the power to acquit and the courts must abide by that decision."

After six hours of deliberations Wednesday and yesterday, the jury did just that.

Previous attempts by Sisti to get the court to suppress the evidence because aerial surveillance of his property violated Darrell's state and federal constitutional rights against unreasonable search and seizure had failed.

In Darrell's case, N.H. State Trooper Christopher Huse was assigned in 2009 to serve in the state's Narcotics Investigation Unit as a marijuana eradication coordinator.

On July 10, 2009 at 1:30 p.m., Huse was in a helicopter piloted by Army National Guard Officer Christopher Monteiro. Huse's affidavit said he spotted and photographed the plants from a distance of about 500 feet, however, in a hearing on the issue, Monteiro testified he saw the plants and pointed them out to Huse.

After photographing the plants, Huse applied for and got a search warrant based on the coordinates provided by Monteiro. He found about 10 6-inch marijuana plants growing behind one of Darrell's stone walls.

Sisti argued unsuccessfully that the evidence should be suppressed in large part because Darrell and his wife said the helicopter flew so low over their property that they were able to identify the occupants and their livestock was disturbed by the noise of the blades.

He also argued unsuccessfully that Huse's misrepresentations as to who spotted the marijuana on his affidavits were "reckless" and were not justification for the search warrant based on them.

With the evidence still in play, Sisti and Darrell went to trial, which began Monday.

In his motion to allow jury nullification, Sisti said that Darrell is a Rastafarian and in Rastafarianism marijuana is "considered sacramental."

He said Darrell the small amount of marijuana found in Darrell's field was evidence that he never intended to sell it and that he was growing it for his "own personal consumption consistent with his faith of choice."

He cited previous instances in the United States — namely the use of peyote among American Indians and the Brazilian church Unaio de Vegetal in New Mexico where the state permits an exception to use the sacramental tea ayahuasca.

Both peyote and ayahuasca are Schedule I drugs said Sisti.

He also said the tiny plants would never have been noticed had not the State Police engaged in "questionable and dangerous aerial tactics over a private residence."

"In the state of New Hampshire," wrote Sisti in his recommendation to the jury instructions given to it by a judge, "the jury has the power and authority to acquit the defendant even if the state has proven its case beyond a reasonable doubt."

"The jury man find the defendant not guilty in this case if it finds that the facts and circumstances presented do not warrant a conviction," he continued, telling them they could take into consideration Darrell's lifestyle, his history in the community, his religious beliefs as well as the governments intrusion into them.

"All I can say is the verdict restored my faith in people," Darrell said when contacted yesterday, adding he and his wife just wanted to get on with their lives and put the past three years behind them.