THE STATE OF NEW HAMPSHIRE

THE STATE OF NEW HAMPSHIRE CARROLL, SS. COOS, SS. SUPERIOR COURT The State of New Hampshire v. Nathaniel Kibby Nos. 212-2014-CR-195 and 214-2014-CR-1...
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THE STATE OF NEW HAMPSHIRE CARROLL, SS. COOS, SS.

SUPERIOR COURT The State of New Hampshire v. Nathaniel Kibby Nos. 212-2014-CR-195 and 214-2014-CR-153 ORDER

The defendant, Nathaniel Kibby, stands indicted of 182 charges of kidnapping, criminal threatening, witness tampering, second degree assault, criminal use of an electronic defense weapon, felonious use of a firearm, indecent exposure, falsifying physical evidence, sale of a controlled drug, aggravated felonious sexual assault, and felonious sexual assault. Before the court are the following motions: (1) the defendant’s motion for deposition of A.H.; (2) the defendant’s motion to compel deposition of Leonard Bolton; (3) the defendant’s motion for deposition of Jason Garrett; (4) the defendant’s motion for deposition of Sarah Hernandez; (5) the defendant’s motion for deposition of Alison Janowicz, Elizabeth Pratt, and Kevin Richard; (6) the defendant’s motion to suppress or exclude Fluke Multimeter electricity testing; (7) the defendant’s motion to exclude evidence produced after December 15, 2015; (8) the state’s renewed motion to compel the production of reciprocal discovery; (9) the defendant’s motion to compel production of a real witness list; and (10) the defendant’s motion to exclude the testimony of Carissa Karaffa. The court heard argument on May 11, 2015. It will address each motion in turn. Motions for Depositions In separate motions, the defendant moves to depose A.H., Leonard Bolton, Jason Garrett, Sarah Hernandez, and Alison Janowicz, Elizabeth Pratt, and Kevin Richard. A defendant’s ability to

-2depose non-expert witnesses is governed by RSA 517:13, II(b) and New Hampshire Rule of Criminal Procedure 13(b). “A defendant has no unqualified due process right to compel depositions of witnesses in a criminal prosecution.” State v. Sargent, 148 N.H. 571, 575 (2002). Under the statute, a court may permit a criminal defendant to take a deposition of a potential witness where the requesting defendant has proven “by a preponderance of the evidence that such deposition is necessary … [t]o ensure a fair trial, avoid surprise or for other good cause shown.” RSA 517:13, II(b); accord N.H. R. Crim. P. 13(b); Sargent, 148 N.H. at 575. Necessity “is determined on a case-by-case basis and depends upon the complexity of the issues at trial, the other avenues for the defendant to acquire the same information or other special circumstances.” Id. (emphasis supplied). For example, depositions are not necessary where a defendant has “ample information to prepare his defense,” such as “lengthy transcripts of interviews,” audio of interviews, and police reports about witness statements. State v. Fernandez, 152 N.H. 233, 236 (2005), quoting State v. Hilton, 144 N.H. 470, 473 (1999). The defendant contends a deposition of A.H., the complaining witness, is necessary because the transcripts and audio and video recordings of interviews with her provided by the state, although voluminous, are not adequately specific as to the time frames of the alleged sexual assaults and A.H.’s ability to move freely during her alleged captivity. The defendant reasons that these details are necessary in order for him to confront A.H.’s testimony and the state’s expert witness testimony as to Stockholm Syndrome and domestic violence. Additionally, the defendant maintains that a deposition is necessary because A.H. has been following this case in the media and obtaining additional information, which will make it difficult to ascertain whether her testimony is based on personal knowledge. The state objects. It argues that the defendant has sufficient information to adequately prepare his defense. The state has provided the defendant with 12 interviews consisting of nearly 18 recorded hours and 685 transcript pages. As the state’s objection observes, the interviews with A.H. included statements directed at the timing of the assaults. Indeed, A.H. characterized the alleged sexual as-

-3saults as occurring “[e]very day, pretty much.” This is ample timeline information for the defendant to prepare his defense. This is particularly true given that the purpose of pattern AFSA charges is to allay the concern that “young victims may have no practical way of recollecting, reconstructing, distinguishing, or identifying by specific incidents or dates all or even any of the acts of sexual assault.” State v. Fortier, 146 N.H. 784, 790–91 (2001). Repeated questioning will not necessarily lead to a more specific or clearer answer. Furthermore, the defendant has A.H.’s position as to why she could not reasonably be expected to provide more specific answers—the allegations that the defendant confined her, taped her eyes shut, and physically restrained her. The defendant contends that complexity is inherent in the large volume of produced information; the opposite of the argument generally made—that information is sparse. In any event, the court disagrees. The issues for trial, although numerous, are not so complex as to require a deposition of A.H. Indeed, the availability of ample information from 18 hours of interviews cuts against a finding of necessity for a deposition. See Fernandez, 152 N.H. at 236; State v. Haines, 142 N.H. 697, 698–99 (1998). Finally, A.H.’s alleged awareness of pleadings and developments in this case does not affect the analysis. A.H. is entitled to attend court proceedings where these developments would be discussed and to be informed about the process. RSA 21-M:8-k, II. The defendant can adequately cross-examine A.H. about the basis of her knowledge based on her statements made before those developments. Based on the foregoing, the court finds the defendant has not sustained his burden of proving by a preponderance of the evidence that a deposition of A.H. is necessary to avoid unfair surprise or ensure a fair trial. Accordingly, his motion to depose A.H. is DENIED. The defendant next moves to compel the deposition of Leonard Bolton of the Maine State Police and the FBI Cellular Analysis Survey Team. The defendant contends Bolton investigated A.H.’s disappearance by obtaining cellular phone and tower records to locate A.H. On November 23, 2015, the parties filed an assented-to motion to depose the individuals listed in the state’s expert no-

-4tice. This included Bolton. The court’s December 3, 2015 order granted the motion. The parties scheduled Bolton’s deposition for April 6, 2016. The state ultimately cancelled Bolton’s deposition after the defendant’s March 30, 2016 inquiry about which documents in discovery were prepared by Bolton. The state indicated it no longer intended to call Bolton as a witness and that Bolton had not prepared any disclosed documents. The defendant maintains Bolton’s deposition is necessary because evidence of the cellular phone and tower record analysis is critical, and the provided discovery does not adequately explain the analysis or Bolton’s role in the investigation. The state objects. It argues that the defendant is not prejudiced because it will not be presenting Bolton’s testimony and because the defendant is able to depose Special Agent Eric Perry, another member of the FBI task force. The state further maintains that in order to depose FBI task force members, a party—usually the deposing party—must file an application with the U.S. Attorney explaining the necessity of the deposition. The state asserts that it lacks the information necessary to file such an application. The court’s December 3, 2015 order has already granted the defendant the right to depose Bolton. The state’s decision to no longer call Bolton as a witness does not alter the court’s previous ruling. Therefore, the state must attempt to produce Bolton for deposition by filing the appropriate application with the U.S. Attorney. The court, however, understands that the state may not have sufficient information to explain the defendant’s necessity. The defendant is therefore directed to send either a letter specifying the questions the defendant wants to ask or to rest on the existing pleadings for such an explanation. Accordingly, the defendant’s motion to depose Leonard Bolton is GRANTED to the extent that the state must file an application with the U.S. Attorney. The defendant moves to depose Jason Garrett, a jailhouse informant. The defendant contends the deposition is necessary to understand a statement Garrett made to Sergeant Christopher Fiandaca at the Carroll County House of Corrections and Garrett’s past military involvement. According to Sergeant Fiandaca’s statement, Garrett spoke to investigators about the defendant and stated after-

-5ward, “This kid is a criminal but he ain’t guilty of what they charged him with.” With respect to Garrett’s military record, the defendant has been unable to obtain records to confirm Garrett’s military involvement, and interviews with Garrett are unclear. The defendant maintains that a deposition as to these issues is especially important in light of the recantation of evidence by another jailhouse informant. The state objects. It maintains that it made the inquiries specified by the defendant and Garrett indicated that he has no recollection of either issue. As to the statement to Sergeant Fiandaca, Garret stated he did not recall making it but assumed it was probably sarcastic. As to his military record, Garrett stated he was in the New Hampshire National Guard and went into basic training but went AWOL due to a family emergency. Due to memory problems caused by a head injury, he could not recall if he was discharged honorably. The state conveyed this information to the defense. The state further observes that another informant’s recantation is irrelevant to Garrett because there is no reason to believe the two had conversed. The court agrees with the state that the defendant has not proved by a preponderance of the evidence that a deposition of Garrett is necessary to avoid surprise or ensure a fair trial. The state has provided the defendant with Garrett’s statements and has followed up on the statement and the military records. Garrett stated he did not remember, and there is no reason to expect that renewed questions at a deposition would elicit a different response. The court understands the defendant’s desire to avoid surprise and will accommodate this by allowing the defendant to inquire as to the specified areas outside of the jury’s presence after the witness’s direct testimony at trial. This obviates the defendant’s need, if any, for a deposition. Accordingly, the defendant’s motion to depose Jason Garrett is DENIED. The defendant next moves to depose Sarah Hernandez, the complaining witness’s sister. An October 10, 2013 report details an interview with Hernandez, in which she discusses family dynamics and references pornography multiple times, including a reference to A.H.’s unhappiness with her

-6father becoming too religious and wanting A.H. “to confess to things she did (I.E. getting into watching pornography).” The defendant contends the basis of knowledge and the meaning of the references to pornography are unclear, particularly in light of a reference to an addiction to pornography in a school counselor’s records. The defendant maintains a deposition is therefore necessary because there must be something more to these statements, and A.H.’s exposure to pornography is an important issue that could affect the defendant’s entire theory. The state’s objection asserts that the report includes a lengthy discussion about the references to pornography, but the report does not mention an addiction to pornography. Additionally, the state maintains that it has provided two reports involving two interviews with Hernandez, as well information about A.H.’s relationship with her father in both A.H. and Zenya Hernandez’s interviews. On this basis, the state asserts that the defendant is only speculating that there is more information about these references—speculation that is not sufficient to support the need for a deposition. The court agrees with the state. The defendant has not sustained his burden of proving that a deposition of Sarah Hernandez is necessary. The defendant essentially argues that he needs access in order to ask the questions he wants to ask, an insufficient basis under RSA 517:13, II(b). The state has provided ample discovery in interviews of multiple witnesses as to A.H.’s family dynamics and her relationship with her father to allow the defense a fair opportunity to prepare for trial. Furthermore, the defendant’s conclusion that the report is unclear about the meaning of Hernandez’s references to pornography is not supported by the evidence. The report discusses how A.H.’s father would talk about how he “thought” that A.H. and Sarah were “involved in watching pornography.” This clearly indicates Hernandez’s basis of knowledge and intended meaning. As the state observes, it is merely speculation to conclude there is more to the references. Because the defendant has not sustained his burden of proving by a preponderance of the evidence that a deposition is necessary to avoid unfair surprise or ensure a fair trial, his motion to depose Sarah Hernandez is DENIED.

-7Last, the defendant moves to depose Alison Janowicz, Elizabeth Pratt, and Kevin Richard, school personnel at Kennett Middle School. He contends these witnesses have information about discussions of A.H.’s family dynamics and allegations against her father, including the allegation that her father threatened to kidnap her if she moved away. The defendant argues the witnesses’ brief notes about these conversations with A.H. are insufficient given how crucial this information is to A.H.’s credibility, motive to run away, and history of false accusations against others. The defendant further maintains that even though the state conducted interviews about these witnesses’ knowledge at his request, those interviews are not sufficient because the state asked only the questions it wanted to ask. The state objects. It argues that a general need for more information and an assertion that a witness may say something else when asked again are not grounds for a deposition. It also asserts the defendant has ample evidence to have a fair opportunity to prepare his defense because the state has provided him with A.H.’s middle school file, a report detailing an interview of Richard, a statement from Janowicz, and reports of interviews with Janowicz and Pratt. Additionally, the state observes that it has disclosed other sources concerning A.H.’s relationship with her father and family dynamics, including information from multiple interviews with A.H., Sarah Hernandez, and Zenya Hernandez. The court agrees with the state. The defendant has not sustained his burden of proving depositions of these three witnesses are necessary. With respect to Janowicz and Pratt, the reports detailing subsequent interviews contain sufficient information about their recollections of conversations with A.H. and explanations of accompanying notes. A generalized desire to ask the same questions to see if a witness has anything else to add does not necessitate a deposition. As to Richard, the defendant’s motion refers only to a referral letter to the Student/Teacher Assistance Referral Team (“START”) and complains the defendant has no information about the START recommendations. As the state points out, however, the defendant received in discovery a second letter from Richard con-

-8taining the START recommendations. Moreover, the defendant possesses a number of other sources of information concerning A.H.’s family dynamics and her relationship with her father. Because the defendant has not proven by a preponderance of the evidence that these depositions are necessary to avoid unfair surprise or ensure a fair trial, his motion to depose Alison Janowicz, Elizabeth Pratt, and Kevin Richard is DENIED. Motion to Suppress or Exclude Fluke Multimeter Electricity Testing The defendant moves to suppress or exclude Fluke Multimeter electricity testing. During an August 22, 2014 interview, A.H. alleged that the defendant held her captive in a conex box located on his property. She further alleged that the defendant told her he was thinking about designing a door that would ignite the room on fire if forced open. She claims that she saw little cables and bolts on the door. A week later, Sergeant Brian Strong searched for those cables on the door inside the conex box. Sergeant Strong states he observed those cables, tested those cables with a Fluke Multimeter tool, and concluded that the cables had a power source. The defendant argues this evidence should be suppressed because it was seized pursuant to a warrantless search. Alternatively, the defendant argues it should be excluded because it would require expert testimony, and the state has not provided notice of any such expert witness. The state responded that the defendant’s motion is moot because the state does not intend to introduce the Multimeter evidence in its case-in-chief. The state, however, does not concede that the seizure violated the defendant’s constitutional rights and it reserves its right to introduce the evidence at trial if the defendant opens the door. See State v. Wamala, 158 N.H. 583, 589–90 (2009). At the hearing, the defendant argued the court should suppress the evidence even if he opens the door. He nonetheless agreed to submit a full argument in a motion in limine. Based on the state’s representation that it will not introduce the evidence in its case-in-chief, the court declines the invitation to rule. See State v. Trempe, 140 N.H. 95, 96 (1995) (“Prior to trial [defendant] moved to exclude evidence … citing New Hampshire Rule of Evidence 404(b). Because

-9the prosecution agreed not to introduce the evidence in its case in chief, the superior court did not immediately rule on the motion.”). No issue is pending. The defendant’s motion to suppress or exclude Fluke Multimeter electricity testing is therefore MOOT. If the defendant decides that he wishes to address the issue in cross-examination or in his own case, he has leave to seek a ruling as to how far the door will be opened, if at all, for the admission of this evidence. Motion to Exclude Evidence Produced After December 15, 2015 The defendant moves to exclude any evidence produced to the defense after December 15, 2015, including the following: expert witness testimony regarding tool mark impressions; cellular phone data and expert witness analysis of a ZTE cellular phone; evidence related to an SD memory card; any counterfeiting evidence; interviews of A.H. on March 3, 2016, and March 9, 2016; and A.H. dental and ophthalmology records and medical records relating to A.H.’s treatment for seizures. The defendant contends the state’s late disclosure of this evidence violates his constitutional rights under former Superior Court Rule 98, and current Rule of Criminal Procedure 12. The defendant asserts that he is prejudiced by late disclosures because the state has already produced voluminous discovery, and the defense lacks sufficient time for meticulous investigation, consultation with expert witnesses, and completion of necessary depositions related to the untimely disclosed evidence. The defendant further argues that exclusion of late disclosed evidence is the only relief available to protect his constitutional rights given the court’s denial of his motion to continue. The state objects. Broadly, it argues complete preclusion is unwarranted as an arbitrary exercise of discretion. Instead, the court must consider certain factors, including timing, reason for lateness, and prejudice to the defendant. The state contends that none of the late disclosed evidence is sufficiently substantial to require exclusion and the court’s previous continuance and subsequent adjustment of deadlines are less drastic remedies that prevent actual prejudice to the defendant. The court has discretion to determine the remedy for discovery violations “as it deems just under the circumstances.” N.H. R. Crim. P. 12(b)(9). Such remedies include, but are not limited to,

- 10 ordering production of undisclosed discovery, granting a continuance, prohibiting introduction of undisclosed evidence, and assessing attorney’s fees and costs. Id. When determining whether exclusion is the appropriate remedy, the court “may consider several factors, including: whether the violating party made a good faith effort to comply or provided a pre-trial warning to minimize surprise; the ability of the court to limit the scope of testimony or evidence to minimize surprise; and the availability of lesser sanctions or procedural curative measures.” State v. Cromlish, 146 N.H. 277, 281 (2001) (citations omitted). The court must also determine whether the late disclosure caused actual prejudice, which exists where the requesting party “has been impeded to a significant degree by the nondisclosure.” See State v. Roldan, 151 N.H. 283, 287 (2004), quoting State v. Gamester, 149 N.H. 475, 479 (2003). The defendant has not been significantly impeded by the evidence disclosed after December 15, 2015. Therefore, he has not been actually prejudiced by late disclosures. The late disclosure of the specified evidence was not intentional—the record reflects that the state attempted to disclose as soon as possible after it received the evidence. The late disclosures are not so near to trial or so substantial in nature as to impede the defendant’s ability to investigate, nor were they unfairly surprising. With respect to the counterfeiting scheme evidence, the defendant cannot be surprised given that the counterfeiting evidence was the subject of a motion to suppress filed in October 2015. Moreover, other curative procedural measures have allayed any prejudice. First, at the defendant’s request in December 2015, the court granted a three-month continuance of the trial. Second, in denying the defendant’s subsequent request for a continuance, the court enlarged remaining discovery and motion deadlines to afford the defendant adequate time to meet those deadlines while preparing for trial. Accordingly, the court finds exclusion is not an appropriate remedy. The defendant’s motion to exclude evidence produced after December 15, 2015, is DENIED.

- 11 State’s Renewed Motion to Compel the Production of Reciprocal Discovery and Defendant’s Motion to Compel Production of Real Witness List and Order of Production The state renews its motion to compel reciprocal discovery required by former Superior Court Rule 98 and current Rule of Criminal Procedure 12. On June 3, 2015, the state filed a motion for reciprocal discovery. The court ordered the defendant to disclose statements by state witnesses in his possession and reserved ruling on timing and manner disputes for the November 18, 2015 hearing. On April 15, 2016, the defendant disclosed two documents to the state, but the defendant has not responded to the state’s inquiries as to when and how the defendant received those documents. Further, based on recorded jail calls, the state believes the defendant possesses undisclosed photographs and witness statements. The defendant responds that he is aware of his discovery obligations but is not yet in a position to identify the evidence that will be used at trial. The defendant further cross-moves to compel the state to produce a list of the witnesses it actually intends to call at trial, listed in the order of anticipated production. The state’s preliminary witness list identified 175 potential witnesses. The defendant reasons disclosure of a real witness list is warranted given the state’s late disclosures to already voluminous discovery and extensive litigation of pre-trial issues, all of which limit the defendant’s time to prepare for trial. The state responds that such a request is reasonable given the length and complexity of this case, but contends that unforeseen circumstances at trial may require both it and the defense to change plans. It therefore proposes that it produce two witness lists: one list of containing every possible witness the state may call at trial and one list containing those witnesses the state actually intends to call at this point in time, with the understanding that the state may add a witness for good cause upon notice to the defendant. See State v. Mazzaglia, Strafford County Superior Court, No. 219-2012-CR-00514 (Order of May 20, 2014) (adopting a similar approach in a lengthy and complex criminal trial). The state, however, objects to producing the precise order in which it intends to call

- 12 its witnesses at this time because such a disclosure is not supported by law and is not feasibly practical. With respect to the state’s motion, the court agrees with the defendant that disclosure is not yet mandated absent an intention to use such evidence at trial. N.H. R. Crim. P 12(b)(2). Based on the defendant’s representation that he does not yet know the evidence he will use at trial, the court cannot compel production of reciprocal discovery at this time. Accordingly, the state’s renewed motion for reciprocal discovery is DENIED without prejudice. As to the defendant’s motion, the court adopts the state’s proposal. The state shall produce the two witness lists it specified. If the state’s actual witness list must later be revised at trial, the court is prepared to address such changes as they arise. With respect to the order of anticipated production, the court agrees with the state that such a production is neither warranted nor feasible so far in advance. Consistent with the foregoing, the defendant’s motion to compel production of a real witness list is GRANTED in part and DENIED in part. Motion to Exclude the Testimony of Carissa Karaffa The defendant moves to exclude the testimony of Carissa Karaffa, a teacher at A.H.’s school on the day of A.H.’s disappearance. The defendant argues exclusion is required because the state did not disclose Karaffa as a potential witness in its June 2015 preliminary witness list in violation of its discovery obligations under former Superior Court Rule 98 and current Rule of Criminal Procedure 12(b)(9). The court granted the state’s request for a pre-trial deposition of Karaffa in order to preserve testimony, but allowed the defendant the opportunity to request exclusion of the testimony. The state objects and contends that exclusion is not appropriate. It anticipates that Karaffa’s direct testimony will last no longer than five minutes. Further, it contends the defendant had notice of other teachers who will similarly testify that they were teachers on the day in question. In order to determine whether exclusion is the appropriate remedy, the court must determine whether the alleged discovery violation causes the defendant actual prejudice. See State v. Roldan,

- 13 151 N.H. 283, 287 (2004). The substance of Karaffa’s pre-trial deposition will have an impact on this determination. Accordingly, the court defers a ruling on the defendant’s motion to exclude the testimony of Carissa Karaffa pending completion and transcription of Karaffa’s pre-trial deposition. Conclusion Based on the foregoing, the court finds and rules as follows: (1) the defendant’s motion to depose A.H. is DENIED; (2) the defendant’s motion to depose Leonard Bolton is GRANTED as provided herein; (3) the defendant’s motion to depose Jason Garrett is DENIED, subject to the procedural accommodation specified herein; (4) the defendant’s motion to depose Sarah Hernandez is DENIED; (5) the defendant’s motion to depose Alison Janowicz, Elizabeth Pratt, and Kevin Richard is DENIED; (6) the defendant’s motion to suppress or exclude Fluke Multimeter electricity testing is MOOT, with leave to the defendant to submit a motion in limine; (7) the defendant’s motion to exclude evidence produced after December 15, 2015 is DENIED; (8) the state’s renewed motion for reciprocal discovery is DENIED; (9) the defendant’s motion to compel production of a real witness list is GRANTED in part and DENIED in part as specified herein; and (10) the defendant’s motion to exclude the testimony of Carissa Karaffa is DEFERRED pending Karaffa’s pre-trial deposition.

So ORDERED.

Date: May 18, 2016 LARRY M. SMUKLER PRESIDING JUSTICE

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