State v. Eno

727 A.2d 981, 143 N.H. 465, 1999 N.H. LEXIS 26
CourtSupreme Court of New Hampshire
DecidedApril 8, 1999
DocketNo. 95-615
StatusPublished
Cited by9 cases

This text of 727 A.2d 981 (State v. Eno) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eno, 727 A.2d 981, 143 N.H. 465, 1999 N.H. LEXIS 26 (N.H. 1999).

Opinion

THAYER, J.

The defendant, Michael Eno, pleaded guilty to two misdemeanor charges of intentionally contributing to the delinquency of a minor and was ordered to pay restitution to his victim for medical expenses allegedly associated with his conduct. See RSA 169-B:41, I (1994) (amended 1995). On appeal, he argues the Superior Court (Sullivan, J.) denied him due process when it determined restitution. We vacate and remand.

Following an investigation into the conduct of the defendant and another high school teacher, a Grafton County Grand Jury indicted the defendant.for tampering with a witness. See RSA 641:5 (1996). [467]*467Pursuant to a plea bargain agreement, the State nol prossed the indictment, and the defendant pleaded guilty to two related misdemeanor charges. One charge alleged that while employed as a high school teacher and coach, the defendant contributed to the delinquency of a minor by providing alcohol to, and engaging in a sexual relationship with, a high school student. The second charge alleged that the defendant contributed to the delinquency of a minor by providing alcohol to another high school student and suggesting that she withhold information from authorities investigating the defendant’s inappropriate sexual relationship with the student in the first charge.

At the plea and sentencing hearing, the Trial Court (Fitzgerald, J.) imposed the sentence negotiated by the parties. The sentence on the second misdemeanor included an assessment of a $2,000 fine, deferred for two years, and a restitution order “for all [of this victim’s] uninsured losses as recommended by the Probation officer or by the Court, after hearing, at the request of the defendant or the Department of Corrections.” The fine was to be reduced dollar for dollar by amounts paid in restitution.

Pursuant to the probation officer’s recommendation, the department of corrections determined that the defendant was responsible for $5,682.15, which represented one-half of the uninsured losses the victim sustained from psychological treatment related to the conduct of the defendant and a fellow teacher. When the defendant challenged the calculations, the department requested a hearing. At the hearing, the prosecutor explained the history of the case and offered the victim’s medical records and bills into evidence. The prosecutor also informed the court that a further psychological evaluation of the victim assessing the causal connection between the defendant’s conduct and the treatment required would be available within the next month. The defendant received copies of the medical bills, but not the medical records. The court denied the defendant’s request to review the medical records, citing the victim’s statutorily protected right of privacy. Following an in camera review of the records, the court upheld the department of corrections’ restitution determination.

On appeal, the defendant contends the trial court violated his right to due process under both the State and Federal Constitutions by ordering restitution based on medical records that the defense was not allowed to access or challenge. The defendant’s objection below, however, only referred to the “defendant’s right to a fair hearing” without specifying which constitutional provisions were [468]*468allegedly being violated and whether his claim was founded upon State or federal grounds. Before triggering a State constitutional analysis, the defendant must unambiguously and specifically assert the State constitutional foundation for his objection. State v. Dellorfano, 128 N.H. 628, 632-38, 517 A.2d 1163, 1166 (1986). Because the hearing record does not clearly indicate a State constitutional foundation for the defendant’s objection, we will limit our analysis to the defendant’s federal constitutional right to due process. Id. at 633, 517 A.2d at 1166.

The defendant argues that his federal constitutional right to due process at a sentencing hearing applies to his restitution hearing. We agree. An order for restitution is part of the sentencing process, see RSA 651:63 (1996) (amended 1996); therefore, the same fair sentencing procedures apply. See United States v. Mischler, 787 F.2d 240, 247-48 (7th Cir. 1986). In performing its duties, a sentencing court has broad discretion in choosing the sources and types of evidence on which to rely. United States v. Curran, 926 F.2d 59, 61 (1st Cir. 1991); see also State v. Naughton, 139 N.H. 73, 78, 650 A.2d 327, 331 (1994). “It is well settled, however, that a defendant has a due process right to be sentenced upon information which is not false or materially incorrect.” Curran, 926 F.2d at 61. Accordingly, our review of the process of determining the amount of restitution concerns the quality and veracity of the information used and “the ability of the defendant to have a meaningful opportunity to point to its deficiencies.” Naughton, 139 N.H. at 78, 650 A.2d at 331. The court in its discretion may withhold certain documents from the defendant that the court has determined are privileged. United States v. Alvarado, 909 F.2d 1443, 1446 (10th Cir. 1990). The defendant, however, must be provided a meaningful opportunity to rebut the evidence that bears on the sentence. Curran, 926 F.2d at 61-62.

The State argues that the medical bills indicating the dates, cost, and general type of treatment, coupled with the court’s summary of the medical records, sufficiently informed the defendant of the evidence before the court. The defendant, however, contends that because he was denied access to the medical records upon which the court relied to determine restitution, he was denied the opportunity to rebut the evidence before the court.

The victim’s medical records are statutorily protected by the physician-patient privilege. RSA 329:26 (1995) (amended 1995, 1996); see also State v. Elwell, 132 N.H. 599, 604-05, 567 A.2d 1002, 1005 (1989). In light of that privilege, the prosecutor did not review [469]*469the records but submitted them to the trial court to review in camera. Based on its in cam,era review, the court found the defendant liable for one-half of the uninsured losses.

“As we have frequently held, the physician-patient privilege is not absolute and must yield when disclosure of the information concerned is considered essential.” Nelson v. Lewis, 130 N.H. 106, 109, 534 A.2d 720, 722 (1987) (quotation omitted). Due process does not require a sentencing court to disclose all the information it receives and considers; rather, the court must balance the competing interests of the defendant “with the need to safeguard confidentiality and to avoid the attendant risk of harm” to the victim. United States v. Woody, 567 F.2d 1353, 1361 (5th Cir.), cert. denied, 436 U.S. 908 (1978).

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Bluebook (online)
727 A.2d 981, 143 N.H. 465, 1999 N.H. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eno-nh-1999.