State v. Hoag

749 A.2d 331, 145 N.H. 47, 2000 N.H. LEXIS 19
CourtSupreme Court of New Hampshire
DecidedApril 7, 2000
DocketNos. 97-884; 97-885
StatusPublished
Cited by18 cases

This text of 749 A.2d 331 (State v. Hoag) 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. Hoag, 749 A.2d 331, 145 N.H. 47, 2000 N.H. LEXIS 19 (N.H. 2000).

Opinion

HORTON, J.

The defendant, Kenneth Hoag, was convicted after a jury trial in the Superior Court (Dalianis, J.) of four counts of aggravated felonious sexual assault, RSA 632-A:2, I (1996) (amended 1999), six counts of aggravated sexual assault without penetration, RSA 632-A:2, II (1996), one count of felonious sexual assault, RSA 632-A:3, III (1996), one count of kidnapping, RSA 633:1, 1(d) (1996), and one count of criminal restraint, RSA 633:2 (1996). The victim was a nine-year-old girl. The defendant contends the trial court erred in refusing to conduct an in camera review of the victim’s and a child witness’s counseling records, and in allowing the State to submit the defendant’s entire police interview to the jury. We vacate in part and remand for an in camera review of the victim’s counseling records, and otherwise affirm.

The details of this child kidnapping and molestation case need not be set forth; it is sufficient to examine only those circumstances that surround the defendant’s points of appeal.

The. defendant first contends that the trial court erred in refusing to review, in camera, any counseling records pertaining to the victim. The defendant argues that the refusal to conduct the in camera review violated his constitutional due process rights. See N.H. Const. pt. I, art. 15; U.S. Const. amend XIV. We analyze his claim under the State Constitution first. State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 351 (1983). “Because part I, article 15 of the New Hampshire Constitution provides at least as much protection to criminal defendants in this area as does the fourteenth amendment of the United States Constitution, we need not undertake a separate federal analysis.” State v. Laforest, 140 N.H. 286, 289, 665 A.2d 1083, 1086 (1995).

[49]*49During a series of interviews in November 1996, the victim told the police that the defendant had partially penetrated her and caused her pain. On November 11, 1996, Dr. Nora Hanke, a pediatrician, interviewed and examined the victim. During that interview, the victim told the doctor that she had not been penetrated and that she had experienced no pain. Dr. Hanke and the police recommended that the victim receive counseling. There is no evidence that the victim attended any counseling.

Prior to trial, the defendant requested that the court conduct an in camera review of any counseling records of the victim. The defendant reasoned that because the victim gave inconsistent statements on the issue of penetration and pain, additional statements regarding these issues probably existed in counseling records and might be material on the issue of penetration. Therefore, the defendant argues, he was entitled to have the trial court review the victim’s counseling records, if they exist, to determine whether they contain evidence that is material and relevant to his defense. See State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992). We agree.

In Gagne, we determined that when a defendant establishes a reasonable probability that confidential records may contain evidence that is material and relevant to the defense, the trial court must conduct an in camera review of those records. Id.

The threshold showing necessary to trigger an in camera review is not unduly high. The defendant must meaningfully articulate how the information sought is relevant and material to his defense. To do so, he must present a plausible theory of relevance and materiality sufficient to justify review of the protected documents, but he is not required to prove that his theory is true. At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought.

State v. Graham, 142 N.H. 357, 363, 702 A.2d 322, 325-26 (1997) (quotation and citations omitted). In this case, the issue of penetration was contested by the defendant, and the victim made contradictory statements regarding penetration. Therefore, the defendant’s theory that the victim may have made additional exculpatory statements in counseling is “based on more than bare conjecture,” and the defendant has presented a “plausible theory of relevance and materiality sufficient to justify review.” Id.

[50]*50The State argues that the defendant failed to make the appropriate showing because he does not know whether the victim actually attended counseling. The State, however, concedes that both the police and a doctor recommended that she receive counseling. Thus, the defendant reasonably believed that such counseling may have taken place, and that reasonable belief is enough to support his plausible theory of relevance and materiality. See id.

On remand, the trial court should determine whether the victim attended any counseling. If she did, the trial court

should conduct an in camera review of the [victim’s counseling] records, and then determine whether the records contain evidence that would have been essential and reasonably necessary to the defense at trial. If the records do contain such evidence, the court should order a new trial unless it finds that the error of not admitting the evidence in the first trial was harmless beyond a reasonable doubt.

Id. at 364, 702 A.2d at 326 (quotation omitted).

The defendant next argues that the trial court erred in refusing to review, in camera, any counseling records pertaining to the child witness. This child was present during one of the assaults, and heard additional assaults through a locked door.

The defendant contends that because the witness’s statements differ from the victim’s and the witness is nine years old, the witness may have made an additional, inconsistent, or exculpatory statement in counseling. In particular, the defendant points to pretrial differences in the witness’s version of events and the victim’s version of events. The defendant makes this argument without presenting any evidence indicating that the witness has ever varied from the witness’s version of the relevant events. Essentially, the defendant asks that we adopt a rule requiring the trial court to conduct an in camera review of a witness’s confidential records whenever a witness makes a pretrial statement that differs from a pretrial statement made by a victim. We decline to do so.

In order to trigger in camera review, the defendant must assert some factual basis beyond the mere existence of counseling records. See State v. Taylor, 139 N.H. 96, 98, 649 A.2d 375, 376 (1994). Without a basis to believe the records contain the references sought by the defendant, he is not entitled to an in camera review. See State v. Puzzanghera, 140 N.H. 105, 107, 663 A.2d 94, 96 (1995). Any such basis must be supported by a “putative nexus to the records.” State v. Locke, 139 N.H. 741, 744, 663 A.2d 602, 605 (1995). [51]

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Bluebook (online)
749 A.2d 331, 145 N.H. 47, 2000 N.H. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hoag-nh-2000.