This post examines an opinion from the Supreme Court of New Hampshire: Petition of State of New Hampshire v. Micheal Lewandowski, 2016 WL
4442962 (2016) (“Petition of State of New
Hampshire”). The opinion begins by
explaining that the
State petitioned for a writ of certiorari,
See [New Hampshire] Supreme CourtRule 11, seeking review of an order of
the Superior Court (Brown, J.) requiring the State to `obtain, preserve and
produce . . . for [the court's] in camera inspection’ certain of the complainant's cell phone
communications, social media communications, and cell phone service provider
records that the defendant, Michael Lewandowski, believes could be exculpatory.
. . .
Petition of State of
New Hampshire, supra.
The court goes on to outline the facts and the issues in the
case:
The following facts are supported by
the record or are agreed upon by the parties. The defendant is charged with
aggravated felonious sexual assault. See Revised
Statutes of New Hampshire § 632–A:2 (Supp.2015). Prior to trial, he filed a
motion asking the trial court to order, among other things, `the State to take
whatever steps are necessary to preserve all cell phone activity of [the
complainant] including voice mails, text messaging, e-mails, social media
postings and photographs by making a mirror image of all cell phones utilized
by [the complainant].’
The defendant also requested that the
court order the State to `mak[e] immediate preservation and production requests
of all service providers including, but not limited to cell phone[ ] carriers,
Facebook and any other social media or communication provider with which [the
complainant] had an account.’ The State objected, arguing, among other things,
that `[d]efendants generally do not have the legal authority to direct an
investigation or demand that the State investigate, obtain, and preserve
specific evidence.’ The defendant stated in his motion that he was `not seeking
discovery . . . but rather the preservation of’ the records and communications.
It appears to be undisputed that, at the time the defendant filed his motion,
the State did not possess any of the records or communications that the
defendant sought.
Petition of State of
New Hampshire, supra.
The opinion then explains that
[a]t the hearing on the motion, the
court told the defendant to narrow his request to two relevant time periods in
November 2014 and May 2015 and file a proposed order. The defendant did so, and
the court granted the proposed order, which compelled the State to `obtain,
preserve and produce . . . for [the court's] in camera inspection’ the complainant's `cell phone text
messages, call log activity (calls sent and received), e-mails sent or received
and photographs taken, sent or received,’ as well as `[t]he provider records of
[the complainant's] cell phone activity’ and the complainant's `e-mails (sent
and received), Facebook, Instagram, Twitter or other social media postings’
from the November 2014 and May 2015 time periods.
The court denied the State's motion to
reconsider. The State filed a petition for a writ of certiorari. See Supreme
Court Rule 11.
Petition of State of
New Hampshire, supra.
The Supreme Court began its analysis of the issues before it
by explaining that
[c]ertiorari is an extraordinary remedy
that is not granted as a matter of right, but rather at the court's
discretion. Petition of State of
N.H. (State v. MacDonald), 162
N.H. 64, 66, 27 A.3d 813 (New Hampshire Supreme Court 2011); see Sup. Ct. R. 11. Certiorari
review is limited to whether the trial court acted illegally with respect to
jurisdiction, authority or observance of the law, or unsustainably exercised
its discretion or acted arbitrarily, unreasonably, or capriciously. Petition of State of N.H. (State v. MacDonald), 162 N.H. at 66, 27
A.3d 813.
The State argues that the trial court
did not have the authority to grant the defendant's proposed order `because
defendant[s] in criminal proceedings have no general right to discovery and the
State had discharged its obligations under Brady.’ See Brady v. Maryland, 373 U.S. 83 (1963).
It further asserts that the court cannot `conscript the State to seize evidence
it had never possessed for the defendant's benefit.’ The State explains that
the trial court `effectively grant[ed] the defendant a search warrant and
order[ed] the State to execute that warrant,’ which, according to the State, `destroyed
[the complainant's] right to be free from unreasonable searches and seizures.’
(Bolding omitted.) See U.S. CONST.
Amends. IV, XIV; N.H. CONST. pt. I, art. 19.
Petition of State of
New Hampshire, supra.
The Supreme Court went on to explain that
[t]his issue concerning the scope of
the trial court's authority is one of first impression; thus, we rely upon
cases from other jurisdictions to aid in our analysis. In State v. Haynie, 240 Ga. 866, 242 S.E.2d
713 (1978), the Georgia Supreme Court held that the trial court could not, at
the defendant's request, issue an order, `requiring the removal of [a] bullet
from the victim and the production of the gun, and that ballistic tests be made
upon them.’ Haynie, 242 S.E.2d
at 713–14. In the concurring opinion, it was noted that the defendant `may not
implement a search such as the official search of an arrestee’ by the State; `he
needs a vehicle for discovery.’ Id. at 716 (Hall, J., concurring
specially). It was further noted that the defendant could not acquire the
bullet `from the victim for the simple reason that there [were] no procedures
extant which would permit him to do so.’ Id.
Subsequently, in Young v. State, 146 Ga.App. 167, 245
S.E.2d 866 (1978), the Court of Appeals of Georgia, citing Haynie, affirmed the trial court's
rejection of the defendant's `notice to produce seeking to obtain from the
state certain evidence . . . in the possession of . . . third parties.’ Young, 245 S.E.2d at 867. The court
reasoned that `a defendant in a criminal case cannot make the office of the
solicitor or district attorney its agent in ferreting out evidence which it
does not possess and which would constitute a search and seizure of third
persons involved only as victims of the crime.’ Young, 245 S.E.2d at 867.
Petition of State of
New Hampshire, supra.
The court also pointed out that
[o]ther courts have concluded more
generally that criminal defendants do not have the power `to compel the State
to gather in [their] behalf what might be exculpatory evidence.’ State v. Reyna, 92 Idaho 669, 448 P.2d
762, 767 (1968); see
also People v. Roark, 643 P.2d 756, 767 (Colo.1982) (citing Reyna, 448 P.2d at 767).
These cases stand for the general
proposition, which we now adopt, that the trial court cannot compel the State
to obtain evidence for the defendant. Here, the State did not possess the
complainant's cell phone and social media communications and cell phone service
provider records. Thus, the court `acted illegally with respect to . . . [its]
authority’ when it granted the defendant's proposed order requiring the State
to obtain, preserve, and produce those records and communications for an in camera review. Petition of State of N.H. (State v. MacDonald), 162 N.H. at
66, 27 A.3d 813.
The defendant argues that `[t]here is a
long line of cases’ beginning with State
v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992), `that recognize the authority
of the [t]rial [c]ourt to compel the production of potentially relevant and
exculpatory evidence from a third party for its in camera review.’ In Gagne,
we set forth the process by which a defendant may obtain privileged information
for use at trial. The defendant in Gagne sought
access to, among other things, privileged counseling records in the possession
of the New Hampshire Division for Children and Youth Services. Gagne, 136 N.H. at 102–03, 612 A.2d 899.
We held that, if a defendant establishes `a reasonable probability that the
records contain information that is material and relevant to his defense,’ id. at 105, 612 A.2d 899, the court
must review them in camera and
remit to the defendant the records that are `essential and reasonably
necessary’ to that defense, id. at
106, 612 A.2d 899 (quotation omitted).
Petition of State of
New Hampshire, supra.
The opinion goes on to explain that
[s]ubsequently, we applied Gagne in cases that involved
privileged records kept by other third parties. For instance, in State v. Cressey, 137 N.H. 402, 628 A.2d
696 (1993), we held that, `in the event of a retrial,’ the trial court `must
conduct an in camera review’
of notes made during counseling sessions by a privately employed psychologist `should
the defendant establish a reasonable probability that the [notes] contain
information relevant and material to his defense.’ Cressey, 137 N.H. at 413, 628 A.2d 696; see also State v. King, 162 N.H. 629, 631, 34 A.3d 655 (2011) (stating
that Gagne governs the defendant's
supplemental request for an in
camera review of the privileged records of the Mental Health Center of
Greater Manchester). Moreover, in Petition
of State of N.H. (State v. MacDonald), we held that the trial court was
required to conduct an in
camera review of privileged medical records kept by the New Hampshire
Hospital. Petition of State of N.H.
(State v. MacDonald), 162 N.H. at 65, 66, 70, 27 A.3d 813; cf. State v. Healey, 106 N.H. 308, 309, 310, 210 A.2d 486 (1965) (reversing
the trial court's denial of the defendant's motion `to obtain a copy of . . .
medical reports’ of the New Hampshire Hospital, and permitting the court to `inspect
these documents, and excise or withhold . . . any part . . .not deemed
necessary to be disclosed for the protection of the defendant's essential
rights’).
Petition of State of
New Hampshire, supra.
The Supreme Court, though, went on to explain that
[n]one of these cases, however,
supports the relief that the defendant seeks here; namely, a court order
compelling the State to gather evidence on his behalf. The Gagne cases concerned the in camera review of privileged
medical and counseling records. They did not authorize the trial court to order
the State to obtain and produce those records.
The defendant also compares this case
to Soucy v. State, 127 N.H. 451,
506 A.2d 288 (1985). Soucy arose
from an action `for compensation for what the plaintiffs claim[ed] was a taking
of their property.’ Soucy, 127
N.H. at 452, 506 A.2d 288. In Soucy,
the court rejected the plaintiffs' argument that `the superior court effected
[a] taking . . . by an order preventing the repair of the plaintiffs' partially
destroyed building, so that its damaged condition could be . . . preserved for
a jury view’ in an arson case. Id. However,
like the Gagne cases, Soucy also did not address the trial
court's authority to compel the State to gather evidence for the defendant.
Petition of State of
New Hampshire, supra.
The court then noted that the defendant
cites State v. Healey for the proposition that the trial court `has
the inherent power in its discretion to compel discovery in a criminal case if
the interests of justice so require.’ Healey,
106 N.H. at 309, 210 A.2d 486. However, this case is about the court's
authority to compel the State to gather additional evidence for the defendant,
not its authority to compel discovery from the State or other parties of
evidence that they already possess. Thus, the defendant's reliance on Healey is misplaced.
The defendant argues that `there
is no alternative means for [him] to obtain the evidence.’ However, the New
Hampshire Rules of Criminal Procedure permit him to serve on the complainant or
other third parties a subpoena duces tecum. See New Hampshire Rules of Criminal Procedure 17(b). Even
if, as the defendant argues, serving a subpoena is not the `practice widely
utilized in our trial courts,’ and `would be more burdensome . . . than . . .
having the prosecution gather and produce’ the evidence, it is at least one
means available to him under the law. We decline to endorse the use of other
procedural remedies that the trial court does not have the authority to grant
under our statutes, our rules of criminal procedure, or the prior decisions of
this court.
Petition of State of
New Hampshire, supra.
The court also noted that the
defendant notes that he has a
constitutional right under the Due Process Clauses of the United States and New
Hampshire Constitutions `to obtain evidence helpful to his defense.’ See U.S. CONST. amend. XIV; N.H.CONST. pt. I, art. 15. He further notes that he has a state and federal
constitutional right `to obtain and utilize relevant evidence that is necessary
to permit counsel to adequately cross-examine a witness to demonstrate
reliability or bias.’ See U.S.CONST. amends. VI, XIV; N.H. CONST. pt. I, art. 15. However, he cites
no authority suggesting that these constitutional rights empower the trial
court to grant the proposed order in this case.
Petition of State of
New Hampshire, supra.
The court ended the opinion with the following comments:
[m]oreover, to the extent that the
defendant argues that the court's order was valid because the State had a duty
to obtain and preserve the evidence under Brady, we disagree. See Brady
v. Maryland, supra. Brady requires
the State to give the defendant only the exculpatory evidence that it
possesses. See State v. Lavallee, 145 N.H. 424, 427,
765 A.2d 671 (2000); Haynie, 242
S.E.2d at 714. Here, the defendant does not contend that the State possesses
the cell phone records and communications that he is seeking.
We are mindful that the State's duty in
the enforcement of our criminal laws `is to seek justice, not merely to
convict.’ Rogowicz v. O'Connell,
147 N.H. 270, 274, 786 A.2d 841 (2001) (quotation omitted). In some cases, `the
State's failure to gather evidence may amount to suppression of material
evidence.’ State v. Ware, 118
N.M. 319, 881 P.2d 679, 684 (New Mexico Supreme Court 1994). However, this is
not one of those cases. The defendant does not assert, and the trial court did
not find, that the State intentionally or negligently failed to gather the
evidence that he is seeking. See id. at
684–85. The defendant merely alleges that the evidence, if it exists, could
potentially be exculpatory.
We remand for further proceedings
consistent with this opinion.
Petition of State of
New Hampshire, supra.
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