2004-356, STATE OF NH V. GEORGE KNICKERBOCKER, JR.

unusual symptoms, including convulsions and difficulty breathing. Adam was after Denise retu rned home, she became aware that Adam was experiencing an apartment they and the defendant shared with Benoit St. Martin. Sometime Joshua, were left in the defendant’s care by their mother, Denise Robbins, in On February 18, 1983, the infant and his two - and - one - half - year - old brother, was charged with causing the death of Adam Robbins, a one - month - old i nfant. The trial court’s order recites the following relevant facts. The defendant

degree murder. We reverse and remand. of an indictm ent against the defendant, George Knickerbocker, Jr., for second NADEAU, J. The State appeals the Trial Court’s (Fitzgerald, J.) dismissal

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

and Mr. Delker orally), for the State. attorney general, and David W. Ruoff, assistant attorney gene ral, on the brief, Kelly A. Ayotte, attorney general (N. William Delker, senior assistant

No. 20 04 - 356 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

omitted). resulting prejudice against the reasonableness of the delay.” Id. (citations Once such a showing has been made, the trial court must then balance the defendant mus t initially show that actual prejudice has resulted from a delay. we applied the following test for proving such a due process violation: “[T]he arrest or indictment of a defendant may result in a denial of due process,” id., recognizing that “an arbitrary delay between the time of an offense and the State v. Philibotte, 1 p. 2 23 N.H. 240, 244 (1983). Specifically, in Philibotte, after interpretation of United States Supreme Court and First Circuit precedent in Government’s justification for delay.” Id. at 1036. This comports with our the prejudice to the defendant [from the pre - indi ctment delay] against the A minority of federal circuits “hold that the proper inquiry is to balance

(White, J., dissenting from denial of certiorari). S tates Constitution. See Hoo v. United States, 484 U.S. 1035, 1035 - 36 (1988) whether a pre - indictment delay violates the Fifth Amendment to the United among the federal circuit courts of appeal over the proper test for determining Gouveia, 467 U.S. 180, 19 p. 2 2 (1984)). This question has engendered a split advantage over him.’” Nadler, 151 N.H. at 247 (quoting United States v. Constitution, that the State’s delay constituted a ‘deliberate device to gain an (2004); namely, “whether the defendant need prove, under the State answer affirmative ly the question we left open in State v. Nadler, 151 N.H. 244 order to obtain a tactical advantage over him. Thus, the State urges us to because the State did not intentionally delay indictment of the defendant in The State contends that the trial court erred in dismissing the charge

v. Ball, 1 p. 2 24 N.H. 226, 231, 233 (1983). our State Constitution, and cite federal opinions for guidance only. See State State and Federal Constitutions. We first address the defendant’s claims under In h is motion to dismiss, the defendant asserted violations of both the

lack of speedy indictment, which the trial court granted. The State appeals. twenty years after Adam’s death. The defendant moved for dismissal due to the January p. 2 2002. The defendant was indicted on February 21, 2003, just over action on her son’s case. The case was not officially reopen ed, however, until In 1996, Denise contacted the Attorney General’s office and requested

Adam’s death in 1983, without bringing criminal charges against anyone. death. For reasons not entirely clear, the police essentially ceased investigating The defendant first implicated Joshua, and later, Denise, in Adam’s

being struck with or against a blunt object. revealed that Adam died as a result of violent trauma to the head, probably by Hitchcock Medical Center, where he died early t he next morning. An autopsy hospitalized initially at Concord Hospital and later transferred to Dartmouth p. 3 3

698, the test for a due process violation under the State Constitution based for tactical advantage in Lacourse, 127 N.H. at 741, and Weeks, 1 p. 3 37 N.H. at We now clarify that notwithstanding th e references to intentional delay

basis of unsettled federal precedent. U.S. 1016 (1990). We decline to reexamine our State constitutional test on the 894 (4th Cir.) (“disagree[ing] that Gouveia is clear precedent”), cert. denied, 498 issue”), cert. denied, 519 U.S. 1076 (1997); Howell v. Barker, 9 04 F.2d 889, 1996) (“recogniz[ing] that neither Marion nor Lovasco is crystal clear on th[e] federal circuits. Cf. United States v. Crouch, 84 F. p. 3 3d 1497, 1510 (5th Cir. Supreme Court cases compel the interpreta tion given them by the majority of (quotation omitted). We do not believe, however, that the United States other bad faith motives.” Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996) intentionally dela yed the indictment to gain an unfair tactical advantage or for show not only actual substantial prejudice, but also that the government indictment delay rises to the level of a due process violation, a defendant must 488 U.S. 51 (1988), has “held that, in order to establish that a lengthy pre - (1977), United States v. Gouveia, 467 U.S. 180, and Arizona v. Young blood, States v. Marion, 404 U.S. 307 (1971), United States v. Lovasco, 431 U.S. 783 reliance upon a line of United States Supreme Court cases consisting of United We acknowledge that the majority of federa l circuit courts of appeal, in

bad faith. We decline to do so. law and adopt the majority federal rule requiring a showing of governmental the test for preaccusation delay in Philibotte,” we should reevaluate this area of [federal] case law has developed significantly since this Cour t first articulated indictment delay violates due process is based upon federal precedent and “the The State contends that because our test for determining whether a pre -

harass, the defendant.” indicting the defendant in order to obtain a tactical advan tage over, or to does not argue, nor does the Court find, that the State intentionally delayed tactical advantage). The trial court in this case noted that “[t]he defendant (observing that defendant did not c laim intentional delay by the State for tactical advantage.” See also State v. Weeks, 1 p. 3 37 N.H. 687, 698 (1993) delay, or that the delay was intentionally employed by the State to gain a bec ause the defendant has failed to show actual prejudice as a result of the for instance, we concluded that “the prosecution of th[e] action [wa]s timely also surfaced in our case law. In State v. Lacourse, 127 N.H. 737, 7 p. 4 41 (1986), at 1036 (White, J., dissenting). This concept of prosecutorial misconduct has establish a due process violation” under the Fifth Amendment. Hoo, 484 U.S. defendant or to advance some other impermissible purpose in order to prosecutorial misconduct designed to obtain a tactical advantage over the The majority of federal c ircuits, on the other hand, “require[] a showing of 4

generally speculative nature,” Ross, 123 F.3d at 1185 (quotations and citations some courts that “lost testimony can ever co nstitute actual prejudice given its The stringency of these requirements highlights both the skepticism of

(quotation omitted). determine if indeed its introduction would affect the trial outcome.” Id. testimony would have to be “evaluate[d]. . . against the other trial evidence to credible witness.” Id. (quotation and brackets omitted). In addition, the withstood cross - examination, and that the jury would have found him a un available witness “would have testified, that his testimony would have to prove.” It cited, as additional findings that have been required, that the unavailable] witness’s testimony would have been, actual prejudice is difficult 118 F.3d at p. 4 475, noted that “[e]ven where a defendant specifies what a[n Some courts have required even more. For example, the court in Rogers,

memory. also Weeks, 137 N.H. at 698. We will apply a similar test to a claimed failure of provided was not available from other sources.” Jones, 9 p. 4 4 F.3d at 908; see the witness; and, finally, show that th e information the witness would have establish to the court’s satisfaction that he has made serious attempts to locate demonstrate, with specificity, the expected content of that witness’ testimony; “required that th e defendant identify the witness he would have called; unavailability of witnesses is the claimed source of prejudice, courts have denial of due process.” Philibotte, 123 N.H. at 244. Generally, when the of memories is inherent in any delay and, alone, is insufficient to constitute a We have recognized that “the possibility of prejudice due to the dim ming

“substantial.” Id. at 1515 (quotation omitted). does not suffice.” Crouch, 8 p. 4 4 F.3d at 1523. Moreover, the prejudice must be (quotation omitted). “[A] showing of mere potential or possible trial prejudice prejudice that is definite and not speculative.” Ross, 123 F.3d at 1185 118 F.3d 466, 477 n.10 (6th Cir. 1997). The defendant must show “actual for pre - indictment delay is nearly insurmountable.” United States v. Rogers, (quotation omitted). The Sixth Circuit, in fact, has stated that “[t]he standard defendant show actual prejudice has been called a “heavy burden.” Id. at 1185 With respect to the initial prong of the test, the requirement that the

1181, 1186 (9th Cir. 1997), cert. denied, p. 5 522 U.S. 1066 (1998). assessing the reasonableness of the delay.” Cf. United States v. Ross, 123 F.3d acted in bad faith in delaying indictment” is “[o]ne factor to consider in (citations omit ted). As the trial court correctly ruled, “whether the Government prejudice against the reasonableness of the delay.” Philibotte, 123 N.H. at 2 p. 4 44 showing has been made, the trial court must then balance the resulting initially show that actual prejudice has resulted from a delay. Once such a up on pre - indictment delay is that set forth in Philibotte: “[T]he def endant must 5

own son, took pretty good care of him.” The trial court found, however, that [the defendant], even though Adam wasn’t his son, that he treated him like his defendant] do anything to either one of the two children, and he thought that Medical Center. He also informed the officers “that he had never seen [the two came home from Concord Hospital before heading to Dartmouth Hitchcock February 18, he was at the defendant and Denise Robbins’ apartment when the Robbins for approximately six to eight months. Plourde stated that on police shortly after Adam’s death, and indicated that he had known Denise prejudice with respect to witness Steven Plourde. Plour de was interviewed by The trial court found that the defendant had demonstrated actual

328, 330 (2004). Accordingly, we review that finding de novo. See State v. Simone, 1 p. 5 51 N.H. Beszborn, 21 F.3d 62, 66 (5th Cir.), cert. denied, 513 U.S. 934 (1994). prejudice involves a mixed question of law and fact.” United States v. we must separately review the initial finding of prejudice. “A finding of the unsustainable exercise of discretion standard, cf. Ross, 123 F.3d at 1184, balancing of actual prejudice against the State’s reasons for the delay under been prejudiced by the delay. Thus, while we would review the trial court’s rights.” This statement presupposes, however, that the defendant has in fact defendant, prejudice either in his defense or in violation o f other due process deal with tardy indictments which have led to material prejudice to the 135 N.H. 413, 419 - 20 (1992), that “we leave the trial court with discretion to unsustainable exercise of discret ion standard. We stated in State v. Hughes, The defendant asserts that the standard of review in this matter is the

prejudice at a further hearing below, as events and the record develop.” right, should this court remand, to “renew[] his [additional] claim[s] of actual of the alleged instances of prejudice found by the trial court, reserving the defendant’s claims of prejudice. In this appeal, the defendant relies upon three With the above considerations in mind, we examine each of the

Circuit’s approach. Crouch, 84 F.3d at 1 p. 5 523; cf. Marion, 404 U.S. at 326. We agree with the Fifth

trial prejudice can more accurately be made. until after the verdict, when the assessment of actual, substantial such a motion, should nevertheless normally withhold doing so indisputable cases, the district court, even though inclined t o grant (if ever) be appropriate. In all but the clearest and most This means that dismissal on such a basis prior to trial will rarely

motions to dismiss for pre - indictment delay: Fifth Circuit that trial courts should generally defer, until afte r trial, ruling on omitted); see also Crouch, 84 F.3d at 1 p. 5 51 p. 6 6, and the recommendation of the 6

information. That Plourde “had nothing further to offer at th[at] time” further Denise’s general parenting ability and suggests that he volunteered that day. The second paragraph indicates that Plourde does have some memory of paragraph quoted above, which describes what he does remember about that February 18. This interpretation is bolstered by the remainder of the first events he described to police in 1983, presumably the specific events of Thus, the 2003 report indicates that Plourde did not remember well the

(Emphasis added.)

Plourde had nothing further to offer at this time. was not a good mother due to her drug abuse and her young age. major drug problem. Based on this he fee ls that at the time Denise looking back now, he would say that Denise Robbins did have a Plourde as well offered that although it was the thing at that time,

to him regarding Adam or his condition. remember either [the defendant] or Denise making any statement hospital and that Denise was crying, however he does not remember Denise and [the defendant] coming home from the in the police reports at that time. Plourde advised that he does does not have a good memory of the events as they were outlined Plourde stated that this incident occurred a long time ago and he

The 2003 investigative report states, in relevant part:

Plourde about Denise and the defendant’s treatment of Adam and Joshua. happened to Adam. T he police report then records general statements by demeanor, and the absence of any statement by the defendant about what had Concord Hospital, Denise’s statements about Adam’s injuries and her afternoon and evening including Denise’s and the defendant’s arrival from February 18th,” and records his response describing the events of that report reflects that Plourde was asked “whether or not he had seen Denise on that the 2003 investigative report is unclear on this issue. The 1983 police Plourde was asked about how Adam was treated by the defendant. We agree Adam. Specifically, the State argues that the report does not indicate that demonstrate that Plourde does not remember the defendant’s treatment of The State initially contends that the defense investigative report does not

treatment of A dam. there was no other witness that would testify as to the defendant’s fatherly statement to police was not admissible under any evidentiary rule and that described in the 1983 police report.” The court found that Plourde’s 1983 interviewed and he does not have a good memory of the event s as they were “according to a 2003 defense investigative report, Plourde does not recall being p. 7 7

offers to admit as “ancient documents,” does not paint a full and witnesses. The testimony which the State now for the first time The trial of this case will overwhelmingly rest on the credibility of

the defendant: a dmissibility of these statements, among others, did not cure the prejudice to Specifically, the trial court found that the State’s offers to stipulate to the admissible will not answer the trial court’s concerns about prejudice. The defendant contends, nevertheless, that finding these statements

recollection exception. 1983 statements are admissible under either the ancient document or recorded information at trial, the trial court should consider, if necessary, whether his (Ohio 1998). If, following remand, Plourde cannot remember the relevant p. 7 710 N.E.2d 1170, 1176 (Ohio Ct. App.), appeal dismissed, 694 N.E.2d 981 Lawrence v. State, 104 S.W.3d. 393, 396 (Ark. Ct. App. 2003); State v. Sargent, these exceptions. See Goy v. Jones, 72 P.3d 351, 353 (Ariz. Ct. App. 2003); authentication are met, Plourde’s statements may be admissible under one of exceptions. We conclude that if the preliminary requirements such as does not dispute on the merits the admissibility of the statements under these the ancient document or recorded recollection rules.” Thus, the defendant defendant on appeal states that “there is no need to inquire i nto the scope of Radiologists, 142 N.H. 168, 174 (1997). Nevertheless, in light of this offer, the evidence proffered in a motion to reconsider. See Keshishian v. CMC correctly notes, however, the trial court was entitled to reject this offer as new substantial material prejudice suffered by the defendant.” As the defendant the admissibility of the police report[] to the extent necessary to eliminate any The State also offer ed, in its motion for reconsideration, to “stipulate to

ancient document. See N.H. R. Ev. 803(5), (16). could be admitted as a prior recorded recollection or as statements in an See N.H.R. Ev. 803(6), (8). The State argues, however, that Plourde’s statement under the business records and public records excep tions to the hearsay rule. N.H. 546, 550 (1995), in which we held that a police report was not admissible rule. The court supported that conclusion by citing Worster v. Watkins, 140 statements in the 1983 police report are not admissible under any evidentiary some merit in the State’s challenge to the trial court’s conclusion that Plourde’s Moreover, even if Plourde does not remember that information, we find

contained in the 19 p. 8 83 police report. that Plourde does not remember the p otentially exculpatory information burden to demonstrate actual prejudice, we conclude that he failed to show the defendant’s general treatment of Adam. Given the defendant’s heavy treat ed either or both of the children. Plourde may well have a memory about suggests that he was probably not specifically asked about how the defendant 8

acting like she is, showing the results of the autopsy to everyone.” The trial “felt that it was really odd that a mother who had just lost her baby would be friends, including [him], the autopsy report” on Adam. Ye aton told the police he police that he had recently seen Denise “carrying around, and showing all her According to a police report prepared in April of 19 p. 8 83, Yeaton had told

events of which he spoke [to police] in 19 p. 8 83.” locate Yeaton, or that Yeaton has been located but has no memory of the “[e]ither way, however, it is undisputed either that the defense is unable to investigators had located and spoken with Yeaton. The court concluded that surrounding Adam’s death, the record conta ined no evidence that defense Yeaton had been located but could not remember either Denise or the events the defendant’s memorandum in support of his motion to dismiss asserted that absence or lack o f memory of Gary Yeaton. The trial court noted that although The trial court also found that the defendant was prejudiced by the

Marion, 404 U.S. at 325 - 26.

claims are speculative and premature. prejudice, but at the present time [the defendant’s] due process the indictment. Events of the trial may demonstrate actual cannot receive a fair trial and to therefore justify the dismissal of not in themselves enough to demonstrate that [the defendant] applicable statute of limitations, however, these possibilities are become inaccessible, and evid ence be lost. In light of the inherent in any extended delay: that memories will dim, witnesses [The defendant relies] solely on the real possibility of prejudice

Supreme Court’s conclusion in Marion: be applied. See RS A 625: p. 8 8, II (Supp. 2004). We find applicable here the New Hampshire legislature has concluded that no statute of limitations should In balancing those relative interests with respect to the crime of murder, the admin istering and receiving justice . . . .” Id. (quotation and ellipses omitted). assessments of relative interests of the State and the defendant in bringing overly stale criminal charges. Such statutes represent legislative at 322. “[T]he applicable statute of limitations is the primary guarantee against “[p]ossible prejudice is inherent in any delay, however sho rt.” Marion, 404 U.S. The trial court’s concern does not take into consideration the reality that

circumstances. that a trial in this matter cannot be fair under the now existing witnesses at the time of the a lleged crime. The court is convinced information which the police thought to seek from various effect, the defendant will be limited to producing only that accurate picture of the witnesses on which the State will rely. In p. 9 9

defendant and Denise, which bears on Denise’s credibility. different stories as to the cause of th e child’s death from both the defense. Earlier statements of St. Martin indicate that he heard defendant and Denise regarding Adam’s death is prejudicial to the St. Martin’s inability to recall conversations he had with the

Th e trial court found:

falling off of a windowsill or mantel and striking Adam, causing his death.” he did recall “possibly the police telling him something about a blunt object conversations with Denise or the defendant regarding Adam’s death, although Adam’s death, but believed he was not. He also did not remember any remember whether he was living with the defendant and Denise at the time of When contacted by a defense investigator in 2003, St. Martin could not

against him. arguing with, the defendant, despite having obtained a restraining order St. Martin also discussed seeing Denise attempting to contact, and later ashtray or somethin [sic], or he was dropped accidentally like, I don’t know.” th ings [about what happened to Adam], somethin [sic] fell on his head like an Martin told police that the defendant and Denise “said all different kinds of took statements from St. Martin in April and May of 1 p. 9 983. At that time, St. defendant’s and Denise’s roommate at the time of Adam’s death. The police The trial court also found prejudice with respect to Benoit St. Martin, the

has failed to demonstrate actual prejudice at this time with respect to Yeaton. document. See N.H. R. Ev. 803(5), (16). Thus, we conclude that the defendant admissible as a prior recorded re collection or as a statement in an ancient Moreover, as with Plourde’s statement, Yeaton’s statement may be

questioning. information would not or could not be elicited from them with proper impression that Denise’s behavior was unusual, it is not clear that such at this time. Although the other witnesses, unlike Yeaton, did not volunteer an was odd was admissible, we conclude that this claim of prejudice is speculative defendant’s argument is correct, and that the testimony that Denise’s behavior Yeaton that makes the information relevant.” Even if we assume that the Denise’s behavior as odd, and it is the oddness of the behavior observed by report. The defendant argues that none of these witnesses “describe[d] the testimony of o ther witnesses to whom Denise showed Adam’s autopsy Yeaton’s statement would be cumulative of other available evidence. It cites The State argues that the court erred in finding prejudice because

at trial, it would help the defense by calling Denise’s credibility into question. court found that if Yeaton were able to testify consistently with that st atement p. 10 10

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

the State to cross - examine the investigator. upon the defense investigator’s report (Defendant’s Exhibit S) without allowing we need not address the State’s argument that th e trial court erred in relying element of a due process claim.”). In addition, given our decision in this case, U.S. at 790 (“[P]roof of prejudice is generally a necessary but not sufficient Federal Constitution as we do u nder our State Constitution. See Lovasco, 431 prejudice due to his delayed indictment, we reach the same result under the Because we conclude that the defendant has failed to establish actual

finding of prejudice was premature. be admissible under one or both of these ex ceptions. Thus, the trial court’s above with respect to Plourde, we agree that St. Martin’s 1983 statements may ancient document. See N.H. R. Ev. 803(5), (16). For the reasons set forth could be admitt ed as a prior recorded recollection or as statements in an Martin is erroneous because like those of Plourde and Yeaton, his statements The State also argues that the finding of prejudice with respect to St.

prejudice. Cf. State v. Varagianis, 128 N.H. 226, 229 (1986). these events, is speculation. As such, it is insufficient to support a finding of some of the events he discussed with police in 1983, he would not remember 1983. The trial court’s conclusion that because St. Martin could not remember St. Martin has a present memory ab out the incidents of contact he reported in defense investigator’s memorandum of interview says nothing about whether contact the defendant in violation of the restraining order.” We agree. The inte rview with St. Martin that he was ever asked about Denise’s effort to “[t]here is . . . absolutely no indication in the defense investigator’s report of his respect to Denise’s post - restraining order contacting of the defendant because The State first argues that the trial court erred in finding prejudice with

to St. Martin. finds the defendant has established actual prejudice with respect regard bears significantly on her credibility. Accordingly, the Court defendant had allegedly confessed to her. Denise’s conduct in that was under investigation for the murder of her child, and after the him while a restraining order was in place, while the defendant making contact with the defendant and later actually contacting piece of evidence for the defense, namely, Denise’s attempt at death indicates he would not be able to testify today to a crucial respect to certain matters, the events of 1983 pertaining to Adam’s Further, St. Martin’s inability to recall correctly, or even at all with