2009-532, State of New Hampshire v. Jane Reader

Michael A. Delaney

No. 2009-532

Rockingham

lived with Richard MacDonald in Garden Meadows, a condominium complex in The jury could have found the following. In May 2006, the defendant of simple assault and one count of resisting arrest/detention, see DUGGAN, J. The defendant, Jane Reader, was convicted of two counts

Buchanan, Maynard & Parodi, PLLC

violation. We affirm. witness testimony based upon its finding that she committed a discovery appeal, the defendant argues that the trial court erred when it excluded 642:2 (2007), following a jury trial in the Superior Court (McHugh, J.). On

the brief and orally), for the defendant.

general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as she saw an officer throw the defendant down, and that the defendant cried and p. 2 also denied cursing at, or insulting, any of the officers. Brandano testified that Moore. She stated that she did not tell Moore that she would spit on him, and knocking the wind out of her. She denied intentionally spitting at, or kicking, walk toward MacDonald, and Moore threw her to the ground without warning, grabbed her she pulled away and told him not to touch her. She continued to said anything to her before he grabbed her arm, and testified that once he intended to continue walking to her apartment. She denied that Moore had truck, and testified instead that she was walking toward MacDonald and was “highly disagreeable and very argumentative.” She denied blocking the tow The defendant testified that when she went outside to talk to Crete, he

defendant was arrested. kicked Moore in the groin, and spit into his left eye. After a struggle, the maneuver” to bring her to the ground. The defendant landed on her back. She defendant began flailing her arms, and Moore used an “arm bar take down I’m a girl. You touch me again and I’ll spit in your face, you f------ pig.” The The defendant pulled away from Moore and said, “You can’t f------ touch me. she refused. Moore then took her by the arm and started to move her away. Moore approached the defendant and repeatedly asked her to leave, but

want to leave.” The defendant joined MacDonald in front of the tow truck. that “[MacDonald] said he’s not moving. I’m going to have to run him over if I being a firefighter and how many cops does it take to tow a car.” Crete stated his truck. MacDonald stood in front of Crete’s truck, and commented “about arrived. Morelli told Clark to move his cruiser so that Crete could leave with Sergeant Peter Morelli and Officer Robert Moore, also of the Derry police,

people, including the defendant, appeared to be intoxicated. group. They were irate, and crowded Clark against his cruiser. Most of the thereafter, Officer Steven Clark of the Derry police arrived, and spoke with the rise, and Crete returned to his truck and called the Derry Police. Shortly defendant angrily demanded that Crete release Enser’s car. Tensions began to The defendant, MacDonald, and Vinacombe arrived on the scene, and the

Brandano had any money. would release the car if they paid the towing fee, but neither Enser nor Enser and Brandano went outside to speak to Crete. Crete told them that he operator Ryan Crete drove into the parking lot and began to tow Enser’s car. Vinacombe, and Vinacombe’s girlfriend. At approximately 3:00 a.m., tow truck doubleheader at their home with Dayna Brandano, Dina Enser, Adam On the evening of May 19, the defendant and MacDonald watched a Red Sox towing company removed cars without stickers from the complex’s parking lot. Derry. Residents of Garden Meadows had parking stickers for their cars. A inside their home, heard a noise and looked outside, and then would testify p. 3 question, and two residents of Garden Meadows would testify that they were Vinacombe and Enser would testify about what they saw on the night in Counsel then made a proffer as to the proposed testimony: MacDonald, exercise of discretion. State v. Belton . . . that fit within [Superior Court Rule 98] that would require production.” a discovery sanction, and intervene only when it constitutes an unsustainable In general, we accord considerable deference to the trial court’s ruling on 3

when, several days before trial, the State moved in clearly unreasonable and prejudiced her case. Id exercised its discretion by excluding this testimony. This issue first arose. discretion, the defendant must demonstrate that the court’s decision was On appeal, the defendant argues that the trial court unsustainably U.S. 1028 (2004). To show that the trial court unsustainably exercised its

be excluded because “there were no statements generated by these witnesses Counsel for the defendant argued that the witness testimony should not granted the State’s motion in limine. witnesses in question, or grant a continuance. The trial court, however, imposed, the court should fine him, order that the State may depose the about what they saw. Finally, counsel argued that if sanctions were to be

fact, not be permitted to testify. prior to trial. And if that didn’t happen, then those witnesses would, in substance of that - - their anticipated testimony and get that to the State testimony would consist of, or Defense Counsel could summarize the Counsel to obtain either a statement from them as to what their folks would be allowed to testify, it would be incumbent upon Defense expected testimony. Judge Nadeau indicated that to the extent that any of these other five because the defendant had failed to provide the State with summaries of their understanding of the procedural status of the motion as follows: Enser, MacDonald, and two residents of Garden Meadows from testifying At the close of the State’s case, the trial court precluded Vinacombe, held a hearing on the State’s motion in limine. The court summarized its Superior Court Rule 98. Following the close of the State’s case, the trial court witness statements, contrary to an order by the Trial Court (Nadeau, J.) and testimony of defense witnesses because the defendant had failed to disclose

testified that the defendant was not intoxicated. said that he was hurting her and asked him not to hurt her. Brandano also time during the proceedings. Super. Ct. R. p. 4 The trial court may sanction a party for failure to comply with Rule 98 at any

summarized within the notes was made.

person who was present when the oral statement memorialized or unless they have been adopted or approved by the witness or by a third or ten (10) calendar days before jury selection, whichever occurs first.” Super. or the defendant at trial, such notes do not constitute a ‘statement’ at trial. The defendant must do so “[n]ot later than the final pretrial conference case of notes personally prepared by the attorney representing the state with a witness list and statements of all witnesses the defendant intends to call 4 any notes, reports or other writings or recordings, except that, in the Superior Court Rule 98(C)(2) requires the defendant to provide the State statement made by the witness and memorialized or summarized within the making of such oral statement; and (iii) the substance of an oral 98(J). The trial court “may take

statement made by the witness and recorded contemporaneously with transcript thereof, which is a substantially verbatim recital of an oral witness; (ii) a stenographic, mechanical, electrical or other recording, or a (i) a written statement signed or otherwise adopted or approved by the Id Ct. R. 98(C)(2). Rule 98(C)(3) defines a “statement” as:

information.” State v. Cromlish opponent’s case.”). reduces surprise at trial by giving both parties the maximum amount of opportunity to assemble and submit evidence to contradict or explain the ambush. “We have long recognized that justice is best served by a system that presentation of facts and arguments to provide each party with a fair The purpose of Rule 98 is, as noted by the trial court, to avoid a trial by effectively without adherence to rules of procedure that govern the orderly 484 U.S. 400, 410-11 (1988) (“The adversary process could not function reasonable deadlines.” Cromlish, 146 N.H. at 280; see also Taylor v. Illinois, refuse to admit evidence for a defendant’s unexcused failure to meet clear and availability of lesser sanctions or procedural curative measures. scheduling order or the rules of court,” the trial court retains the “discretion to criminal proceedings should not suffer by an overly technical application of a Nadeau, 126 N.H. 120, 124 (1985). Thus, although “[t]he discovery of truth in

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the scope of testimony or evidence to minimize surprise; and the a pre-trial warning to minimize surprise; the ability of the court to limit whether the violating party made a good faith effort to comply or provided discovery rules, the trial court may consider several factors, including: In determining whether evidence should be excluded for a violation of surprise.” Belton p. 5 court’s order and with Rule 98, or to provide “a pre-trial warning to minimize The defendant failed to make “a good faith effort to comply” with the trial testify about “what [they] saw occur with respect to [the defendant] that night.” testimony presented by the State; he stated only that the witnesses would substance of the testimony at issue or explain how it would differ from the at the close of the State’s case, counsel for the defendant failed to describe the failed to provide the statements of these witnesses. Even at the eleventh hour, and, as the defendant has conceded, in violation of Rule 98, the defendant and the two residents of Garden Meadows. In violation of the trial court’s order discretion when it excluded the testimony of MacDonald, Vinacombe, Enser, We cannot conclude that the trial court unsustainably exercised its

sanctions. We disagree. The State filed its motion in The defendant argues that the trial court should have imposed lesser

would not have a meaningful opportunity to investigate and probe it. any of the proposed defense witnesses contradicted this testimony, the State court held a hearing on the matter. At this point, some lesser sanctions were eyewitness testimony presented few inconsistencies so that, to the extent that trial court to “flush this out later.” Finally, at the close of the State’s case, the any curative measure that would minimize surprise”; and (2) the State’s which the defendant had failed to provide summaries; the defendant asked the exclude the testimony because: (1) “the defendant was unwilling to agree to jury selection, the State again sought to exclude the testimony of witnesses for The State counters that the trial court was within its discretion to limine prior to trial. At

, 150 N.H. at 745.

preparations for trial. failed to demonstrate that the lack of witness statements prejudiced its of excessive force against her.” The defendant also contends that the State on whether her actions were criminal “or responsive to improper and illegal use confrontation in the parking lot, and that the testimony would have shed light would have offered “direct and material testimony” concerning the exclusion of witnesses was available.” The defendant argues that the witnesses substantially prejudiced, and . . . whether or not a curative measure short of or not a discovery violation occurred, whether or not the State was court, the defendant argues that the court failed to “properly evaluate whether defendant violated Rule 98. With respect to the sanction imposed by the trial conceded that she had. We, therefore, assume without deciding that the committed a discovery violation, at oral argument, counsel for the defendant Although, in her brief, the defendant appears to contest that she

disclosed.” Id. limited to . . . prohibiting the party from introducing the evidence not such action as it deems just under the circumstances, including but not p. 6 6

BRODERICK, C.J.