2009-832 The State of New Hampshire v. George Quintero

Michael A. Delaney

No. 2009-832

Rockingham

argues that the Superior Court (Nadeau count of aggravated felonious sexual assault (AFSA), RSA 632-A:2 (2007). He on one count of felonious sexual assault (FSA), RSA 632-A:3 (2007), and one DUGGAN, J. The defendant, George Quintero, appeals his convictions

Pamela E. Phelan

alleged in the indictments), on his agreeing to an amendment of the (1993) (requiring the State to prove the charged acts occurred in the time frame giving of a so-called “Williams instruction,” see State v. Williams, 137 N.H. 343 , J.) erred when it conditioned the

and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE attorney 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 p. 2 I want to say probably September. I’m not exactly sure [of] the date.” correctly, it was cold and . . . it was after visiting my sister, her son’s birthday. sleepover, testifying: “I’m not that great with dates, but . . . if I remember occasion, “but it could have been twice.” She was not certain of the date of the recalled that the victim spent the night at the defendant’s home on one assaults occurred, and she thought she was “still eight.” The victim’s mother the picture had been taken some time during the overnight visit when the victim a photograph of herself in the defendant’s kitchen. She confirmed that was eight years old. During cross-examination, defense counsel showed the recall how “long ago” the visit had occurred, but thought it happened when she occurred during one overnight visit at the defendant’s home. She could not just “visit[ing].” She described the assaults and testified that the event “sleepover” at the defendant’s home on two occasions, and on a third occasion, officer, the victim’s mother, and the victim. The victim remembered having a At trial, the State offered the testimony of three witnesses: a police

30, 2007. alleged that the assaults occurred “on or between” January 1, 2007 and April was charged with three counts of FSA and one count of AFSA. The indictments niece. The mother also called the police. After an investigation, the defendant the mother called the defendant to confront him; he denied assaulting his On March 23, 2008, the victim told her mother about the assaults and

took a picture of the victim in her new clothing. the victim shopping for clothing. When they returned to the residence, she in the residence when the assaults took place. The next day, the fiancée took not to say anything, and she went upstairs. The fiancée was located elsewhere part” with his hand. The victim told him to stop, and he complied. He told her to touch him a second time. The defendant then rubbed the victim’s “private “hold it.” She complied, then pulled her hand away and refused his instruction defendant kissed the victim. He exposed his “private part” and told her to particular room and lay on the floor. The two lay side by side, and the to accompany him to the basement, where he instructed her to go into a defendant and his then-fiancée. That evening, the defendant asked the victim upon events that occurred when the victim spent the night at the home of the defendant’s niece, turned eight years old in April 2007. The convictions rest The jury could have found the following facts. The victim, who was the

date of this opinion. that the Williams instruction should no longer be given in cases tried after the should be overruled. We now affirm the defendant’s convictions and also hold we directed the parties to provide supplemental briefing on whether Williams indictments to conform to the evidence presented at trial. After oral argument, based primarily on State [v.] Williams p. 3 he intended to request a jury instruction “pertain[ing] to lack of opportunity . . . At the close of the evidence, the defendant informed the trial court that

assaulted her. basement he was never alone with the victim, and that he never sexually playing a computer game. He testified that when he was painting in the fiancée and niece watched a movie together, while he stayed in his bedroom “paint room.” According to the defendant, the three returned upstairs and his together, where his fiancée was doing laundry and he was painting in his they returned from purchasing dinner, the three were in the basement on one occasion in September 2006. He recalled that during the evening, after The defendant testified that the victim had stayed overnight at his home

the victim and the defendant were alone together during the visit. before the victim returned to her home. The fiancée did not recall a time when outfits. She testified that she, the victim, and the defendant went to a park clothes shopping and returned to the house where the victim modeled her new calm her down. The fiancée said that the following day she took the victim fiancée, the victim woke up scared in the middle of the night and she had to the defendant was in another room using the computer. According to the was there as well painting in the side room, but when they watched a movie, the basement. She said that when they were in the basement, the defendant she and the victim sorted through clothes, watched a movie, and did laundry in The fiancée also testified as to the events of the evening, including that

admitted the photograph into evidence as a full exhibit. indicated that she took the picture on September 17, 2006. The court then indicated that she had it developed on October 14, 2006, and the front went shopping.” She testified that the back of the photograph of the victim school because she had told me she wanted some school clothes and her and I indictments “to have a time frame which begins from September 1, 2006 “the month or day” of the overnight visit, she testified, “I knew it was before that “time is not an element of the sexual assault,” and moved to amend the she shared with the defendant on one occasion. While she could not remember defendant testified. The fiancée recalled that the victim had stayed at the home.” The State sought a jury instruction

During the defense case, the defendant’s former fiancée and the

to [raising it] again after other evidence is introduced.” in the trial. The trial court denied the defendant’s motion “without prejudice September 17, 2006, but it had not been admitted into evidence at that point indictments. The photograph of the victim in her new clothes bore the date charged acts was not consistent with the time frame set forth in the indictments, arguing that the evidence concerning the time frame for the At the close of the State’s case, the defendant moved to dismiss all of the options: it would either: (1) amend the indictments and give a Williams p. 4 frame would not prejudice the defendant. The court gave the defendant two jury because time is not an element of the offense, and that amending the time that amending the time frame in the indictments did not circumvent the grand In response to a defense motion for reconsideration, the trial court ruled

September 1, 2006 forward to April of 2007. the State to amend the indictments to include the time period from periods alleged in the indictments. However, I am going to allow

State must prove that the incidents occurred during the time

offenses.” The trial court opined that Williams instructing the jury, the trial court stated, “Time is not an element of these being forced to surrender a right he would not otherwise cede. When instruction. The defendant chose the latter option, while objecting that he was instruction; or (2) decline to amend the indictments and not give a Williams I am going to give the defendant’s requested instruction that the

argued that the circumstances of Williams form, not substance, because time is not an element of sexual assault. It also The State responded that the proposed amendments related to matters of

Ultimately, the court ruled: amended the indictment pretrial and we wouldn’t be having this argument.” discovery. And if the State had that, according to the rules, they would have until [it considered] the timing with which [the defense] turned over reciprocal to rely on.” It further stated that it had agreed with the defendant’s “analysis middle of trial the State suddenly finds out the date that [the] defense is going

provided the photograph sooner. indictment[s] to include that time frame well before trial” had the defendant violation. Thus, the State argued that it would have “amended the two days earlier, which was the day before trial, constituted a discovery defendant’s conduct in first presenting the photograph to it and the court just defense based upon having the photograph. Finally, the State argued that the the indictments would not prejudice the defendant because he prepared his were inapposite, and that amending

that amending them would circumvent the grand jury. argued that the grand jury issued indictments with a specific time frame, and With respect to the State’s request to amend the indictments, the defendant specific time frame, and he had relied upon a substantial time-based defense. entitled to such an instruction under Williams because the State had alleged a within the time frame alleged in the indictments. He argued that he was to instruct the jury that the State was required to prove the offenses occurred through April 30, 2007.” The next day, the defendant requested the trial court p. 5 Jacobs

justification. robbed the old rule of significant application or

changed, or come to be seen so differently, as to have

abandoned doctrine; and (4) whether facts have so

as to have left the old rule no more than a remnant of 5 whether related principles of law have so far developed special hardship to the consequence of overruling; (3)

First, the Williams

rule is subject to a kind of reliance that would lend a

must confront an allegation in an indictment alleging a broad range of dates for the time of the offense to outside events, and the burden on a defendant who simply by defying practical workability; (2) whether the assault, particularly when the victim is a young child who cannot easily relate difficulty that the State may encounter in fixing a precise date for a sexual practical workability. In Williams, we addressed two competing concerns: the

overruled. Application of these factors leads us to conclude that Williams should be followed.” State v. Ramos, 149 N.H. 118, 127 (2003) (quotation omitted). doctrine of stare decisis is not one to be either rigidly applied or blindly determinative,” State v. Duran, 158 N.H. 146, 154 (2008), because “the Although “[t]hese factors guide our judgment, . . . no single factor is wholly , 149 N.H. at 505 (quotations omitted); see (1) whether the rule has proven to be intolerable Holmes, 154 N.H. at 724-25.

arbitrary and unpredictable results.” p. 5 Jacobs v. Director, N.H. Div. of Motor

whether precedent should be overruled are: 154 N.H. 723, 724 (2007). Among the factors to be considered in determining Vehicles, 149 N.H. 502, 504 (2003) (quotations omitted); see State v. Holmes,

every case, deciding cases becomes a mere exercise of judicial will with by the rule of law, for when governing legal standards are open to revision in overruled. “The doctrine of stare decisis demands respect in a society governed We begin by addressing whether the rule in Williams should be

15 of the New Hampshire Constitution. rights to due process and to an indictment by a grand jury under Part I, Article upon amending the indictments to expand the charged time frame, violated his the trial court’s ruling, which conditioned the giving of a Williams instruction offenses during the period alleged in the indictments. He further contends that pursued a time-based defense that he lacked the opportunity to commit the On appeal, he argues that he was entitled to a Williams instruction because he The defendant was convicted of one count of FSA and one count of AFSA. p. 6 6

came in State v. Carter Our first attempt at explaining the meaning of a time-based defense

was insufficient to find that the acts occurred within the alleged time frame. Williams instruction and, on appeal, the defendant argued that the evidence

offense occurred during the two-year period. Id. at 347-48. refuse to give an instruction that the State was required to prove that the a time-based defense, we held that it was reversible error for the trial court to access to the victim. Id. On these facts and without defining what constitutes undercutting one of the dates alleged, and the defendant’s general denial of went out to celebrate his mother’s birthday in February 1988 or 1989. Id Williams on cross-examination of the victim’s mother, testimony by witnesses Christmas shopping in December 1988 or 1989, and once when the parents the defendant babysat the victim twice: once when the victim’s parents went Thus, the time-based defense in Williams consisted of impeachment evidence other evidence was introduced to refute the February 1988 or 1989 date. once with the victim while the defendant was babysitting the victim, and that At trial, the State’s evidence was that the defendant had sexual contact December 1987.” Id. Other than this blanket denial by the defendant, no alleged because he had not been alone with the victim at any time since in June 1987, “but that he had not had the opportunity to commit the crime as occurred in 1987. Id. The defendant testified that he was alone with the victim 1989. Id. at 347. Three other witnesses said the Christmas shopping trip on whether the Christmas shopping occurred in December 1987, 1988, or defendant’s cross-examination of the victim’s mother caused her to equivocate . The

period, January 1988 to December 1989. Id. to amend the indictments to allege that the offense occurred during a two-year upon the deposition testimony of the victim’s parents, the State was permitted 345. However, when the defendant moved to dismiss the indictments based that the defendant committed the offense during a six-month period. Id. at based defense.” The opinion pointed out that the original indictments charged

did not attempt to define precisely what constitutes a “time-

convert time into an element of the offense. offense occurred during the alleged time frame, without going so far as to attempt to require the State to prove, in a specific set of circumstances, that an time into a material element.” Id. at 347. Thus, the rule in Williams was an defendant’s assertion of a time-based defense, such as an alibi, will not convert within that time frame. Id. At the same time, we recognized that “[a] that time frame if the defendant asserts a defense based on lack of opportunity an indictment, it has the obligation to prove that the offense occurred within alleviate this concern, we required that, when the State alleges a time frame in find alibi witnesses for each day of a long time period.” Id. In an attempt to the offense. Williams, 137 N.H. at 34 p. 6 6. We recognized that “persons can rarely p. 7 In State v. Seymour

offense during the entire alleged time frame. prove through direct evidence that he lacked the opportunity to commit the In State v. Hennessey credibility, but instead placed the burden on the defendant to affirmatively

occurred “on or about” a certain date, “the concerns underlying Williams are time period.” Id. at 623. We held that when the State alleges that an assault apply “only when an indictment brackets criminal conduct within an extended

defense could not be established by successfully attacking a witness’s assaults. Id. at 161. Our holding in Hennessey meant that a time-based represent a true time-based defense requiring the State to prove the time of the assaults took place. Id. at 160-61. We concluded that this testimony did not showed that the victims had difficulty pinpointing the year in which the blower to clear his driveway and then been assaulted. Id. Testimony further broken on the date that the victims testified that they had used the snow 160. The defendant had introduced testimony that his snow blower was What was implicit in Carter introduced evidence that tended to impeach the credibility of the victims. Id. at defendant had not introduced a time-based defense, but rather had simply

(emphasis added). charged in the indictment to be entitled to a Williams instruction.” Id. at 277 assert a time-based defense that he was unavailable for the entire period lack of opportunity within the time frame.” Id rejected the applicability of Williams because “[a] defendant must actually assaults, each one occurring within a forty-four month period. Id testimony was insufficient to establish a true time-based defense “based on. at 275. We 273 (1999). There, the defendant was charged with three single sexual the argument that the defendant lacked opportunity, we held that this outside of the home during this time frame would have seriously discredited became explicit in State v. Dixon, 144 N.H.

Carter thus made the Williams rule one of extremely limited applicability. during every moment of the entire alleged time frame. Id. The holding in defense, the defendant would need to offer proof that he lacked the opportunity Moreover, our holding suggested that in order to assert a true time-based which the time-based defense was based in part upon impeachment testimony. omitted). We did not explain how this result was consistent with Williams, in

However, because the extensive descriptions that she gave of her activities frame alleged in the indictment, contrary to the victim’s testimony. Id. testified that she never spent a night away from the defendant during the time served mainly to impeach the victim’s testimony. Id. The defendant’s wife not present a “true” time-based defense, but instead offered evidence that the crimes occurred within the specified time frame because the defendant did Carter, 140 N.H. at 119. We held that the State was not obligated to prove that p. 8 8

Second, in the time since Williams

offense occurred within the time frame alleged in the indictment. Id. at 346. limit this burden on the defendant was to require the State to prove that the find alibi witnesses for each day in a long time period, and that the only way to render time a significant issue. Id. at 347. We noted that persons can rarely that a time-based alibi defense, while not converting time into an element, may Williams court’s concerns in Williams On these facts, it is unclear whether the defendant was entitled to a. See Williams, 137 N.H. at 346. We recognized (quotation omitted). It was this possibility of surprise that contributed to the possibility of surprise at trial.” State v. Nadeau, 126 N.H. 120, 124 (19 p. 8 85) parties the maximum amount of information available, thus reducing the concept that “the ends of justice are best served by a system which gives both prior to trial. Our liberal discovery rules came about in recognition of the the area of discovery. Superior Court Rule 98 governs the rules for discovery developed to undercut the Williams rule. One such development occurred in

practical workability. case convincingly demonstrates that the rule is intolerable simply in defying avoid. The uncertain application of Williams and its progeny to the facts of this occurred outside the time frame alleged, a result Williams was designed to if the offense coincided with the September 2006 shopping photograph, then it when the parents were Christmas shopping. Williams, 137 N.H. at 347. Here, effectively refuted the State’s contention that the offense could have occurred the defendant was entitled to the instruction based largely upon testimony that See Carter, 140 N.H. at 119. On the other hand, in Williams itself we held that defendant also did not show he was unavailable for the entire period charged. The unworkability of the rule in Williams largely on impeachment evidence developed on cross-examination. The

instruction. On the one hand, his time-based defense was based

photograph was taken the same weekend that the assaults occurred. visiting the defendant and his girlfriend. The victim agreed that the to a photograph dated a September weekend in 2006 when the victim was examination of the victim, the defendant was able to tie the date of the assaults sex offenses between January 1, 2007 and April 30, 2007. Through the crossdemonstrated by the present case. The indictment charged the defendant with

sexual assault.” Id. at 622 (quotation and brackets omitted). rule, the exact date of an assault is not an element of aggravated felonious range of dates, we limited Williams to its facts, reasserting that “[a]s a general the State prove a different time period, whether the time period is one day or a same difficulty in preparing an alibi for a particular time period only to have not implicated.” Id. (quotation omitted). While a defendant arguably faces the p. 9 9

in Williams based defense. Such an approach alleviates the concerns that this court had State to prove an additional element whenever a defendant asserts a timedefendants against surprise at trial thereby obviating the need to require the The sanctions provided for in the Superior Court Rules protect would lend a special hardship to the consequence of overruling.” Holmes Third, we address whether “the rule is subject to a kind of reliance that

implicated when a rule is operative “in the commercial law context . . . where to the consequences of overruling Williams. Reliance interests are most often envision, any more general reliance interests that would lend special hardship the issuance of this opinion, the parties have not identified, nor can we the instant case and by other defendants whose trials have occurred prior to N.H. at 725. Aside from any reliance on Williams asserted by the defendant in

we addressed in that case. Williams rule an outdated, blunt instrument in dealing with the concerns that Williams, 137 N.H. at 346. The development of discovery rules has left the that “[t]ime is not an element of aggravated felonious sexual assault.”

while at the same time adhering to our long-standing recognition available to the trial court. Cf

a defendant’s case and potentially entitle him to the benefit of the sanctions outside the alleged time frame. Such a surprise at trial would surely prejudice alleged in an indictment only to be surprised at trial by evidence of a date defendants will not prepare for trial with a defense based upon the dates meet the new date” (citation omitted)). These sanctions provide a mechanism for trial courts to ensure that his motion therefor he will be afforded sufficient time to prepare his defense to alleged in the indictment, is surprised and prejudiced by a time variance, upon variance cases; but if defendant, relying upon an alibi defense for the time may prove any date within the period of limitations as held in the general time- App. 1 p. 9 976) (rejecting a Williams -style rule in favor of a rule in which “the state

against the party or counsel who violated the rule. Super. Ct. R. p. 9 98(J). introducing evidence not disclosed, and assessing costs and attorney’s fees previously provided, granting a continuance, prohibiting the party from surprise at trial, and included ordering the party to provide discovery not the rule. The non-exhaustive list was aimed at reducing the likelihood of 98, providing a list of possible sanctions that may be imposed for a violation of Nearly four years after Williams, section J was added to Superior Court Rule noting that Rule 98 “provides no sanction for failure to comply with its terms”). N.H. at 124-25 (discouraging the technical application of court rules and where the rules themselves did not provide for sanctions. See Nadeau, 126 Indeed, we were hesitant to sanction parties for not complying with the rules provide for any sanctions for failure to comply with the discovery rules. At the time of the Williams decision, Superior Court Rule 98 did not p. 10 Infra whether the precedent is well-reasoned. spirited dissents challenging [its] basic underpinnings”; and (8)

court” or instead “decided by the narrowest of margins, over whether the precedent was “joined by a strong majority of the constitutional, rather than statutory or common law, grounds; (7)

Winnisquam Reg. Sch. Dist. v. Levine

of the four factors plainly supports overruling Williams (5) the antiquity of the precedent; (6) whether it rested on, and adding new factors

address issues that would have no effect on the outcome of the case. to decide cases on the narrowest grounds possible.”). We also prefer not to Town of Northboro, 375 F.3d 25, 30 (1st Cir. 2004) (“Normally, we . . . attempt Generally, we decide cases on the narrowest grounds possible. See Bellville v. parties, but it is also unnecessary in this case to expand the four-factor test. Not only have the suggested additional factors not been briefed by the

p. 17.

the factors in our stare Finally, we note that the concurring opinion would significantly expand

stare decisis doctrine to include the following additional factors: addresses issues not raised or briefed by the parties and would modify our test set forth in Jacobs. Jacobs, 149 N.H. at 505. The concurring opinion thus their arguments, both the State and the defendant rely upon the four-factor to alter our stare decisis framework or to add any additional factors. In fact, in decisis analysis. However, neither party has asked us In sum, our decisions since Williams

should no longer employ the Williams instruction. Henceforth, our decision in State v. Williams is overruled and trial courts of aggravated felonious sexual assault.” Williams, 137 N.H. at 346. holding. In fact, the general rule continues to be that “[t]ime is not an element can identify no other jurisdiction that follows a rule similar to the Williams reliance that would create a special hardship were it overruled. Further, we application or justification, and the rule does not lend itself to any general principles of law have undercut Williams and robbed the rule of significant unworkable within our current legal framework, developments in related

defendants not receiving pretrial credit while awaiting extradition”). can reasonably argue they have structured their conduct in reliance upon assault arising out of the interaction. Cf. Duran, 158 N.H. at 157 (“no party availability of the Williams instruction should they later be charged with sexual whether innocently or otherwise – are apt to base their decision-making on the suggests that individuals contemplating interacting with young children – Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855-56 (1992). No one advance planning of great precision is most obviously a necessity[.]” Planned p. 11 11

Stare

rule of law – the foundation of stare injustice,” our duty to achieve justice stems from our obligation to follow the are not. Indeed, principled application of stare While the concurring opinion suggests that we are “perpetuating decisis requires a court to liberty to follow prior decisions that are well-reasoned and discard those that

decisis is the essence of judicial self-restraint. Judges are not at

reaffirming and overruling a prior case.” Id. decision with the ideal of the rule of law, and to gauge the respective costs of a prior holding, our task is “to test the consistency of overruling a prior definition, indispensable.” Casey, 505 U.S. at 854. When asked to reexamine law . . . requires such continuity over time that a respect for precedent is, by

Ct. 876, 939 (2010) (Stevens, J., dissenting). in the stare decisis calculus.” Citizens United v. Fed. Election Com’n, 130 S. “restating a merits argument with additional vigor does not give it extra weight very reason doomed.” Jacobs, 149 N.H. at 504-05 (quotation omitted). Merely ruling has come to be seen so clearly as error that its enforcement was for that is not whether we would decide the issue differently de novo, but whether the Jacobs, we made clear that “when asked to reconsider a holding, the question would simply allow the court to reconsider the merits of the precedent, but in assessment. Adding a “well-reasoned” factor to our stare decisis analysis analysis.” To state that a case was poorly reasoned is ultimately a merits reasons for overruling Williams [is] that its reasoning cannot withstand The concurring opinion also argues that one of “the most compelling

but the “well-reasoned” inquiry is not itself part of the analysis. stare decisis factors to decide whether to adhere to the precedent or overrule it, determining that a case was poorly reasoned, the court then invokes the four of stare decisis doctrine; it is a signal that the doctrine is in play”). Upon & Lee L. Rev. 4 p. 11 11, 418 (2010) (“the ‘badly reasoned’ inquiry is not a component stare decisis analysis. See Kozel, Stare Decisis As Judicial Doctrine, 67 Wash. determination that an opinion was poorly reasoned is the starting point for a alluded to the quality of the reasoning behind the precedent because the prominence suggested by the concurring opinion. Rather, in the past we have Duran, 158 N.H. 146, 156-57 (2008), we have not given that factor the behind the precedent is relevant to the stare decisis analysis, e.g., State v. have on occasion used language indicating that the soundness of the reasoning consider the reasoning behind the precedent. While we acknowledge that we include a “well-reasoned” factor in our current analysis, in actuality we do The concurring opinion first argues that while we do not expressly

well-reasoned, we address this factor. opinion relies upon additional factors, particularly whether a prior opinion was has no effect on the outcome of this case. Even so, because the concurring p. 12 12

by the defendant. The trial court based its decision upon the defendant’s include the September 2006 time period evidenced by the photograph proffered the instruction without also permitting the State to amend the indictments to properly entitled to a Williams instruction. Here, the trial court refused to give must apply Williams to this case and determine whether the defendant was emphasis added)). We will assume without deciding that under Rogers we which had been expressed prior to the conduct in issue” (quotation omitted; effect, only where it is unexpected and indefensible by reference to the law violates the principle of fair warning, and hence must not be given retroactive 462 (2001) (“a judicial alteration of a common law doctrine of criminal law apply the Williams rule in this case. See Rogers v. Tennessee, 532 U.S. 451, The defendant argues that even if we overrule Williams, we must still

than to note that application of the antiquity factor is far from clear. Compare III they are mentioned only in passing and we choose not to address them other or reliance upon it. With respect to the other factors suggested in the concurring opinion, only insofar as it provides evidence of the practical workability of a rule of law twenty-five years old). Antiquity is relevant not as a separate factor, but rather 659 (2008) (declaring the court would “not lightly overrule” precedent that was the precedent].”) and Alonzi v. Northeast Generation Servs. Co., 156 N.H. 656, existence of a simple bright-line rule would be a factor that [supports retaining id. at 2098 (Stevens, J., dissenting) (“I would have thought that the 23-year in favor of overruling because the precedent was “only” two decades old) with Montejo v. Louisiana, p. 12 129 S. Ct. 2079, 2089 (2009) (holding antiquity weighed undermines stare According substantial weight to the poor reasoning of an opinion

departing from precedent exists. separate factor to consider when determining whether special justification for reasoning does trigger the stare decisis analysis, poor reasoning is not a arbitrary and unpredictable results.” Jacobs, 149 N.H. at 504. While poor in every case, deciding cases becomes a mere exercise of judicial will with reason over and above the belief that a prior case was wrongly decided.” State first explained in Jacobs, “when governing legal standards are open to revision authority to overrule any prior decision it determines is poorly reasoned. As we

decisis and potentially bestows upon the court expansive

beyond mere error). nonetheless adhered to precedent because there was no “special justification” [continued to] believe that [the precedent] was decided incorrectly” but Union, 491 U.S. 164, 171-74 (1989) (noting that “[s]ome Members of this Court v. Gubitosi, 152 N.H. 673, 678 (2005); see also Patterson v. McLean Credit

adhere even to poorly reasoned precedent in the absence of “some special indicted by the grand jury before he or she may be tried for any offense p. 13 I, Article 15 of the New Hampshire Constitution, requires that a person be proper. RSA 601:1 (2001), which must be considered in conjunction with Part Williams be satisfied that such amendments to the indictments would in fact have been relief to cure the particular prejudice the State would have suffered had the disclosed in a timely fashion. Thus, in order to complete our analysis, we must that the trial court did not unsustainably exercise its discretion by tailoring have been allowed to amend the indictments had the photograph been variety of possible sanctions. Accordingly, we have no difficulty in concluding The trial court’s ruling was predicated on its finding that the State would action as it deems just under the circumstances, including but not limited to” a court that a party has failed to comply with this rule, the court may take such “[i]f at any time during the proceedings it is brought to the attention of the 13 indicated the assaults had occurred. Superior Court Rule 98(J) provides that the victim’s presence at the defendant’s residence at the very time the victim photograph itself was a particularly telling piece of evidence – it documented State before disclosure of the photograph, there can be no doubt that the hints of a time discrepancy in the indictments may have been available to the to comply with his discovery obligations. Moreover, regardless of whatever timing issue prior to jury selection, this does not excuse the defendant’s failure While the State perhaps could have been more diligent in pursuing the

defendant agreeing to a continuance).

arguments persuasive. once it was disclosed to the State the day before trial. We do not find these source DNA evidence disclosed to State beyond discovery deadlines upon moving for a continuance or seeking to exclude admission of the photograph process rights where trial court conditioned the defendant’s use of alternative residence in September 2006. Finally, the defendant faults the State for not N.H. 226, 238 (2004) (finding no violation of defendant’s constitutional due before the start of the trial), and reflects that the victim visited the defendant’s no violation of the defendant’s due process rights. Cf was turned over to the State at the final pretrial conference (held twelve days. State v. Hearns, 151 defense investigative report of an interview of the defendant’s fiancée, which instruction been given without amending the indictments, and we find defendant likely occurred in September. The defendant also relies upon a acknowledged on cross-examination that the victim’s overnight visit with the defendant argues that the victim’s mother, a witness for the State, violation that did not prejudice the State. In support of this argument, the violated Superior Court Rule 98, but contends it was a mere “technical” The defendant acknowledges that his late production of the photograph

before the trial was set to begin. failure to disclose the photograph until the day of jury selection, just one day p. 14 14

trial to avoid prejudice to the defendant. See in an indictment is impermissible when it is accomplished sufficiently before We have never held nor suggested that an amendment of time allegations

offered defendant one day postponement of commencement of defense case). indictment proper where defendant could show no prejudice and trial court Spade, 118 N.H. at 189-90 (amendment at trial to time allegations in proper because amendment made prior to trial and defendant not prejudiced); 68-69 (1982) (amendment of indictment to change date of death of victim

and thus was not surprised.” Elliott, 133 N.H. at 766. had two months ’ notice of the State’s intention to amend the indictment . . . v. Johnson, 130 N.H. 578 (1988), on the basis that in Johnson, “the defendant omitted; emphasis added). Additionally, we distinguished the case from State and this surprise prejudices his defense.” Elliott, 133 N.H. at 765 (quotation constitute ground for a new trial, if the amendment surprises the defendant elemental amendments to an indictment “might be disallowed, or might Relying upon Elliott Indeed, in Elliott, we specifically stated that such substantive-but-notissue apparently first arose in connection with trial judge’s charge to jury). State’s proposed jury instructions); Erickson, 129 N.H. at 518 (amendment the one who pulled the trigger, on first day of trial when defense counsel viewed State’s position that he could be convicted of manslaughter, even if he was not to meet the amendment. See Elliott, 133 N.H. at 761, 766 (defendant alerted to defendant was surprised and had no opportunity to adjust the defense strategy on the eve of trial. The prejudice found to exist in each case arose because the attempt to diverge from the allegations of the indictments occurred at trial or third category and was not permissible. But in Elliott and Erickson, the State’s defendant contends that the amendment of the time periods here falls into the and State v. Erickson, 129 N.H. 515 (1987), the

ability to prepare his defense.” Id. (quotation omitted). either in his ability to understand properly the charges against him or in his third type are permissible is “whether the change prejudices the defendant (1990) (quotation omitted). The test for determining whether changes of this allegation of how the crime was committed.” State v. Elliott, 133 N.H. 759, 764 specifying and circumscribing the scope of the crime alleged; for instance, an indictment, but changes an allegation in the indictment that has the effect of third type of amendment that “does not alter the crime charged in the see RSA 601:8 (2001); State v. Spade, 118 N.H. 186, 188 (1978). There is a freely allowed and may be made without the need to return to the grand jury, (1984), while amendments that involve merely the form of the indictment are State v. Prevost, p. 14 141 N.H. 559, 560 (1997); State v. Bell, 125 N.H. 425, 429 Amendments that purport to change an element of the offense are invalid, limitations on the State’s ability to alter the allegations contained therein. 185, 188 (1977). Once an indictment has been returned, the law imposes punishable by imprisonment in excess of one year. State v. Bean, 117 N.H. p. 15 15

latter case had held that in order to cross-examine a victim about prior allegations of sexual assault a 246 (2007), the issue was whether we should overrule State v. Gordon, 146 N.H. 258 (2001), insofar as the considered those factors in deciding whether to overrule precedent. For example, in State v. Miller, p. 15 155 N.H. It also is worth noting that, even after we first adopted the Casey factors in Jacobs, we have not always 1 In analyzing whether Williams considered. More than eighty years ago, in Smith v. Twin State Gas & Electric 1 out that we have never indicated these four are the only factors to be I followed,” ante at 5 (quotations omitted), I deem it equally important to point doctrine of stare decisis is not one to be either rigidly applied or blindly acknowledges, that “no single factor is wholly determinative . . . because the four factors are appropriate considerations, and also agree, as the majority See also State v. Holmes, 154 N.H. 723, 724-25 (2007). While I agree that the Director, New Hampshire Division of Motor Vehicles, 149 N.H. 502, 505 (2003). LYNN, J., concurring specially. I agree with the majority that State v. v. Casey, 505 U.S. 833, 854 (1992), and first utilized by this court in Jacobs v. four-factor test taken from Planned Parenthood of Southeastern Pennsylvania should be overruled, the majority cites the

Williams time span alleged in the indictments. As an initial matter, although I agree with the majority that our postallegations were true, the assaults must have occurred outside the four-month the same overnight visit when the assaults occurred, it became clear that, if the was incorrect, once the victim acknowledged that the photo was taken during Absent any suggestion in the record that the date shown on the photograph Affirmed case involving sexual assaults that occurred on a single discrete occasion. of Williams would have entitled the defendant to the instruction. This was a believe that, absent the defendant’s discovery violation, even a narrow reading than the majority about the applicability of Williams to the facts of this case. I circumstances the jury instruction it requires is mandated, I am less skeptical

decisions have made it difficult to determine in exactly what

I arrive at the first decision on somewhat different grounds than the majority. defendant’s conviction should be affirmed. I write separately, however, because Williams, 137 N.H. 343 (1993), should be overruled prospectively and that the

concurred specially. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred; LYNN, J.,

advance of trial to avoid any undue prejudice to the defense. Rule 98(B)(3), the State could have amended the indictments sufficiently in provided the photograph to the State thirty days prior to trial, as required by Accordingly, we agree with the trial court’s finding that if the defendant had p. 16 Id

fragile.

that it shall be elastic, it does not mean that it shall be

While the growth and development of the law means

survey properly made is better than a shifting one.

subject to accurate survey. But a line established by a

recovery and its denial for harm done, is not readily

division line between duty and its absence, between

encountered, and a borderland is found where the

of application in individual cases are naturally

and enforce principles of reasonable justice, difficulties

clearly apparent. In the effort of the law to establish

Harnum, but rather on the fact that Harnum was badly reasoned from the outset. particular shows that our Duran decision was based not so much on developments occurring after when it was decided perpetuate as a rule of law.” (emphasis added)). The last quoted passage in (“We are unwilling to mechanically apply the principles of stare decisis to allow a decision that was wrong did.”); id. at 156 (“The majority’s reading of the statute was flawed . . . and makes little sense.”); id. at 157 due consideration has been given and error is not perceived the significance of that statutory language, it would have been difficult to reach the result it consideration to the plain language in RSA 651-A:23”); id. at 155 (“Had the Harnum court properly . . . .”); id Similarly, in State v. Duran. (“departure from Harnum is justified because the majority opinion failed to give full did not consider . . . [and] recognize [that] the vast majority of jurisdictions have decided to the contrary passages, among others, from the decision: id. (“We believe there are principles of law the Harnum court because we believed the case was badly reasoned. That this is so is demonstrated by the following unworkable or a remnant of abandoned doctrine, as the defendant argued, see id. at 154, but principally used by the court in that case makes it plain that we overruled Harnum not because it had become Duran cited the four-factor test and claimed to apply it, see Duran, 158 N.H. at 153-54, the actual analysis for the time spent awaiting and during trial while in the custody of New Hampshire authorities. Although in State v. Harnum, 142 N.H. 195 (1997), that a defendant was entitled to pretrial confinement credit only , 158 N.H. 146 (2008), the issue was whether we should overrule the holding omitted). stability of the law does not require the continuance of recognized error.” Miller, 155 N.H. at 251 (quotation acknowledged that the doctrine of stare decisis is not one to be either rigidly applied or blindly followed. The settlement of principle and consistency of ruling when Casey factors, stating simply: “While we recognize the value of stability in legal rules, we have also that this part of our Gordon decision was erroneous, we overruled it in Miller without any discussion of the defendant must demonstrate clearly and convincingly that the prior allegations were false. After concluding

hardships which would result from its correction. The question of when the judgment it is better to suffer an error to persist than it is to undergo the us from correcting prior judicial errors; it prevents changes only when in our 474-75 (1938) (“The doctrine [of stare decisis] is not a barrier which prevents . at 447-48; see also Amoskeag &c. Co. v. Dartmouth College, 89 N.H. 471,

continuance of recognized error, it does call for

While the stability of the law does not require the

decisis ever since: principles that have properly governed our application of the doctrine of stare Company, 83 N.H. 439 (1928), Justice Allen eloquently set forth the guiding p. 17 17

issue. Given that we raised sua sponte the issue of whether Williams should be overruled, I fail to see any candidate for having its continuing validity reviewed. Accordingly, we ordered supplemental briefing on this the court believed Williams was problematic to the proper administration of justice and therefore a ripe indictments, given the defendant’s discovery violation. We did not follow this course because all members of conditioning the giving of the Williams instruction on the defendant’s agreement to amendment of the defendant’s conviction on the grounds that the trial court had appropriately exercised its discretion in the State had not asserted that Williams should be overruled, and we could have simply affirmed the account of the procedural posture of this case. When the case was first briefed and argued before this court, The majority’s assertion that I have reached out to address issues not raised by the parties fails to take 7 two. See Kozel, Stare Decisis as Judicial Doctrine, 67 Wash. & Lee L. Rev. 411, 418-21, 449, 465 (2010). kinds of reliance interests that might be upset by overruling the precedent, or as some combination of the as another way of asking “How wrong is the precedent?,” or as being rather imprecise proxies for various As one recent commentator’s analysis indicates, all of the factors discussed in the text can be viewed either added)); see also Duran, 158 N.H. at 154-57. proven unworkable or badly reasoned. . . we will not hesitate to revisit it.” (quotation omitted; emphasis Matarese v. N.H. Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (“Where a decision has See Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 912 (2010); Payne, 501 U.S. at 827; accord 6 Payne v. Tennessee, 501 U.S. 808, 828-29 (1991). 5 Brannigan, 134 N.H. at 53 (citation omitted). 4 stare decisis is “not binding” on a constitutional question). legislation” (quotations and brackets omitted)); cf. Brannigan v. Usitalo, 134 N.H. 50, 53 (1991) (stating that In addition to the four Casey in constitutional adjudication because, in the former situation, the legislature can correct our mistakes through Cal. 1992); accord Duran, 158 N.H. at 157 (“stare decisis generally has more force in statutory analysis than by statute on other grounds, as stated in Stender v. Lucky Stores, Inc., 780 F. Supp. 1302, 1305-06 (N.D. precedent may be overturned only by our own reconsideration or by constitutional amendment.”), superseded See 3 statute. In constitutional cases, by contrast, Congress lacks this option, and an incorrect or outdated have added force in statutory cases because Congress may alter what we have done by amending the Patterson v. McLean Credit Union, 491 U.S. 164, p. 17 175 n.1 (1989) (“[C]onsiderations of stare decisis five years.”). Co., 156 N.H. 656, 659 (2008) (“We do not lightly overrule a case that has been precedent for over twenty- See Montejo v. Louisiana, 129 S. Ct. 2079, 2088-89 (2009); accord Alonzi v. Northeast Generation Servs. 2

constrict that jurisprudence in favor, apparently, of a “four-factor-only” test. 7 decisis jurisprudence for many years, and it is the majority that now seeks to analysis,” ante at 10; on the contrary, these factors have been part of our stare additional factors somehow represents an “expan[sion of] our stare decisis footnotes 2-4 and 6 refute the majority’s assertion that consideration of these (8) whether the precedent is well-reasoned. The cases from this court cited in 6 of margins, over spirited dissents challenging [its] basic underpinnings”; and 5 “joined by a strong majority of the court” or instead “decided by the narrowest 4 rather than statutory or common law, grounds; (7) whether the precedent was 3 (5) the antiquity of the precedent; (6) whether it rested on constitutional, 2 important in determining whether to overrule a prior decision are the following: both this court and the United States Supreme Court have regarded as

mechanical formula of adherence to the latest decision.”). 309 U.S. 106, 119 (1940) (“[S]tare decisis is a principle of policy and not a In re Robbins Estate, 116 N.H. 248, 249 (1976); accord Helvering v. Hallock, discretion of this court.”), superseded by statute on other grounds, as stated in doctrine should be applied and when not is fundamentally one for the p. 18 18

appeal, particularly where the defendant does not concede that Williams was poorly reasoned. analysis,” ante at 11, it is hard to understand how the majority could expect not to address this issue on that inquiry. Moreover, given the majority’s view that poor reasoning is “the starting point for a stare decisis legitimate reasons why we should be precluded from considering all factors that have a proper bearing on

upset?”); Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring) (“we merits outweigh the basket of aggregated reliance interests that would be decisis is raised is: “Does the importance of reaching the correct result on the 411, 466 (2010) (opining that the real question to be decided whenever stare judiciary. See Kozel, Stare Decisis as Judicial Doctrine, 67 Wash. & Lee L. Rev. overruling the decision is entirely consistent with the proper role of the interests the upsetting of which would produce harm of a greater magnitude, result and where, also as here, there are no legitimate competing reliance perpetuating injustice, where, as here, a poorly reasoned decision yields such a (citations omitted)). Because there obviously is no intrinsic value in ability of individuals and groups to influence the outcome of elections” reasoning is merely the starting point for determining if a stare in suppressing First Amendment rights in order to “equalize[] the relative in assessing whether to overrule a prior decision, the majority asserts that poor Valeo, 424 U.S. 1, 48-49 (1976), that the government has a legitimate interest While acknowledging that our case law has found unsound reasoning relevant U.S. 652 (1990), based, in part, on its “wholly foreign concept,” Buckley v. precedent can be abandoned based on the fact that it was not well-reasoned. 876, 904 (2010) (overruling Austin v. Michigan Chamber of Commerce, 494 The majority expresses particular consternation over the prospect that courts exist. See, e.g., Citizens United v. Federal Election Com’n, 130 S. Ct. apt to produce injustice – a consequence inimical to the very purpose for which poorly reasoned. However, almost by definition, a poorly reasoned decision is be clear, I do not suggest that precedent may be overruled merely because it is analysis is largely a matter of semantics and of little practical importance. To poor reasoning as a prerequisite to stare decisis analysis or a factor in the is required rather than a factor in the analysis. But whether one characterizes decisis analysis

only implicit or assumed in the decision but is not announced”). (2005) (“a case is not binding precedent on a point of law where the holding is came to the doctrine of stare decisis itself. See 20 Am. Jur. 2d Courts § 134 compunction about effectuating a wholesale abandonment of precedent when it specifically focused on the importance of adhering to precedent, it had no proposition one would have to assume that, although the court in Jacobs was earlier precedents should be abandoned. In other words, to accept this attempted to demonstrate why the stare decisis factors considered in these is faced with an obvious problem: Jacobs conducted no analysis that even they considered factors other than the four addressed in that case, the majority somehow overruled sub silencio all our earlier stare decisis cases insofar as If, on the other hand, what this assertion means to imply is that Jacobs p. 19 19

subsequent to Williams On the contrary, to the extent developments in criminal discovery law

See Super. Ct. R. 98(B), (C)(2), (D). 8

were thereafter incorporated into Rule 98), are far more significant. As the 8 criminal defendant can be ordered to provide reciprocal discovery (and which and State v. Drewry, 139 N.H. 678 ( p. 19 1995), which firmly established that a overruled, I believe our decisions in State v. Chagnon, 139 N.H. 671 (1995),

amend time allegations of indictment). day postponement of defense case as remedy for allowing State at trial to rebuttal); State v. Spade, 118 N.H. 186, 189-90 ( p. 19 1978) (trial court offered one at retrial allowed confession into evidence only during cross-examination and 122-25 (1985) (judge at first trial excluded late-disclosed confession, and judge before the adoption of section J of the rule. See State v. Nadeau, 126 N.H. 120, the prosecutor was at fault, these remedies were available to trial courts long testimony or granting a continuance would be warranted regardless of whether certainly be circumstances in which remedies such as prohibiting or striking violations is not likely to address this phenomenon. And while there will explicit authority, conferred by Rule 98(J), to impose sanctions for discovery as much to the surprise of the prosecutor as to the defense. The trial court’s frame – not infrequently offering a new date or dates for the first time at trial, occurred, with the result that the child changes his or her account of the time child to accurately remember the times when incidents of sexual abuse problem that likely spawns most Williams issues is the inability of a young the alleged offenses occurred. Instead, from all that appears, the recurrent had withheld discovery from the defense regarding the time frame during which issue regarding the Williams instruction has arisen in which the prosecution discovery lapses by the State, see ante at 9, I am aware of no case in which an because it provides an alternative remedy to address problems resulting from insofar as the majority suggests that this change supports overruling Williams court explicit authority to impose sanctions for discovery violations. But Superior Court Rule 98 has been amended to add section J, which gives the of the second factor. I do agree, of course, that, since Williams was decided, analysis of the first and third factors, but I am not persuaded by its treatment protected by the prospective nature of the decision). I agree with the majority’s (except for those who have already proceeded to trial, whose interests will be since Williams was decided; and (3) the absence of justifiable reliance interests Casey factors: (1) the unworkability of the decision; (2) developments in the law The majority predicates its decision to overrule Williams on three of the

against the importance of having them decided right”). must balance the importance of having constitutional questions decided p. 20 20

of ‘gotcha.’” Spagner v. State, p. 20 200 P.3d 793, 802 (Wyo. 2009). theory of justice rationale that the Wyoming Supreme Court aptly described as “playing the judicial equivalent eviscerated if it is deprived of the element of surprise. Such reasoning is premised on the sort of sporting defense.” In other words, the defendant acknowledges that the practical benefit of Williams is largely Returning to the stare indictment to encompass the time period identified by the defendant’s evidence, thereby foreclosing the furnishes notice to the State of its defense, the State likely would seek to extend the period specified in the instruction can be requested. In answer to this argument, the defendant protests: “Once a defendant overruled, the State argues that we should at least impose a pretrial notice requirement before a Williams advanced in the defendant’s supplemental brief. As a fallback to its position that Williams should be The pernicious nature of a defense based on Williams is aptly demonstrated by one of the arguments 10 provided to him by witnesses he planned to call in defense case at trial). court did not err in ordering defendant’s counsel to provide State with summary of factual information “statement” for purposes of the rule). But cf. State v. Zwicker, 151 N.H. 179, 192 (2004) (holding that trial witnesses who would testify at trial to the defendant’s non-access, see Super. Ct. R. 98(C)(3) (defining and arguably might not capture the situation where there exist no memorialized “statements” of other defense Super. Ct. R. 98(C)(2) (defense is not required to make pretrial disclosure of statements of the defendant), to the victim during the time frame alleged in the indictment consists of the defendant’s own testimony, see For example, Rule 98 would not cover the situation where the only evidence of the defendant’s non-access 9 decided by “the narrowest of margins,” it was a 4-1 decision that drew a defendant’s right to due process and a fair trial). And although it was not statutory or common law grounds (i.e., as a means of protecting the overruling prior precedent). It was predicated on constitutional rather than (weighing twenty-year age of prior decision as factor that cuts in favor of jurisprudence. See Montejo v. Louisiana, 129 S. Ct. 2079, 2089 (2009) long time in the two hundred twenty-six year history of New Hampshire Williams. The Williams decision is only eighteen years old – not a particularly by the majority, I believe that these factors weigh strongly in favor of overruling

not at law constitute a defense! is Williams ’ fundamental flaw: it creates a defense out of circumstances that do a Williams instruction at trial, such a rule would not remedy what in my view 10 Rule 98 with an explicit pretrial notice requirement as a prerequisite to seeking potential for abuse perhaps could be even further reduced by supplementing of the Williams rule, it would not prevent all such abuses. And although the 9 discovery requirements now would probably prevent the most egregious abuses prosecution at trial without prior notice. While amended Rule 98’s reciprocal back quietly and then simply “spring” its time-based defense on the discovery obligations imposed by Rule 98 as amended post-Williams – could sit the indictments was erroneous, the defense – in the absence of the reciprocal where the defendant clearly knew from early on that the time span alleged in on an alibi defense must give pretrial notice). Thus, in a case such as this one pretrial notice to the State. Cf. Super. Ct. R. 100 (defendant intending to rely planning to assert a defense based on Williams has an obligation to provide defense somewhat analogous to an alibi, we have never held that a defendant mischief. The defendant correctly points out that, although Williams creates a facts of this case demonstrate, the Williams rule carries a great potential for p. 21 21

is yet another reason to overrule the decision. concomitant increase in time, expense and uncertainty for all concerned, particularly victims and defendants, Williams indictments.” (emphasis added)). The prospect that the Williams rule might result in multiple trials, with a prosecuting the defendant for the same type of act during any part of the entire period alleged in the earlier before or after the foregoing period. See State v. Dixon, 144 N.H. 273, 279 (1999) (“The State is barred from bar to the State charging the defendant with the arguably different crime of committing the same conduct adduced by the defense showing non-access during that time frame, would not present a double jeopardy example, that a sexual assault occurred between June 1, 2010 and December 1, 2010, in light of evidence of the offense, it would logically appear to follow that acquittal of a defendant on an indictment alleging, for State from re-indicting him and trying him a second time. Since Williams effectively makes time an element giving the Williams instruction would appear to be that an acquittal of the defendant would not preclude the Although it is unnecessary to decide the issue definitively at this time, I also note that the consequence of 11 believe there are alternatives to the remedy fashioned in Williams that provide

’ reasoning cannot withstand critical scrutiny. In particular, I

justice system. 11 indictments. Such a result would represent a fundamental failure of our September 2006, three to four months earlier than the period alleged in the duty bound to return verdicts of not guilty because the assaults took place in As noted above, the facts of this case starkly demonstrate Williams’ committed the sexual assaults to which the victim testified, but believed itself the Williams instruction, it could easily have found that the defendant visit with the defendant when the assaults occurred – had the jury been given coupled with the victim’s testimony that the photograph was taken during the upon the evidence presented in this case – in particular the dated photograph is not able to accurately relate when the crime occurred. For example, based defendant’s guilt beyond a reasonable doubt, but merely because a young child acquitted of a most serious crime, not because the jury is unconvinced of the assault, Williams creates the very real prospect that a defendant can be ominous implications. By effectively converting time into an element of sexual

But to me, the most compelling reasons for overruling Williams holding makes the time period an element of the offense.”). 348; see also id. at 349 (Thayer, J., dissenting) (“In my view, [the majority’s] offense occurred within the . . . time frame alleged in the indictment.” Id. at that in order for the jury to return a guilty verdict, “the State must prove the the instruction we required trial courts to give in such circumstances states element,” Williams, 137 N.H. at 347, the effect of our ruling did just that, for a time-based defense, such as an alibi, will not convert time into a material justice. Notwithstanding Williams ’ statement that “[a] defendant’s assertion of case serve to emphasize – it carries the potential to cause a real miscarriage of its reasoning cannot withstand analysis and that – as the facts of the present are that

dissenting). 501 U.S. 808, 829 (1991); see Williams, 137 N.H. at 348-50 (Thayer, J., “spirited” (and well-reasoned) dissent by Justice Thayer. Payne v. Tennessee, p. 22 22

A second alternative remedy to the Williams the Williams There are four readily identifiable alternatives to address the difficulty

the defendant is not totally deprived of the ability to present a legitimate furnish the defendant with an alibi defense,” id. at 276, even in this situation While the State cannot be “required to arbitrarily select exact dates in order to cannot provide more detailed information than is stated in the indictment. to furnish a bill of particulars containing specifics as to time because the victim young victim, there will undoubtedly be instances in which the State is unable 273, 278 (1999). In cases involving allegations of sexual assault against a true one of confrontation and cross-examination. See State v. Dixon, 144 N.H.

jeopardy.” State v. French, 146 N.H. 97, 102 (2001). prepare a defense, or impairing his constitutional protection against double prejudice the defendant by surprising him at trial, impairing his ability to frame specified therein beyond a reasonable doubt if a failure to do so “would particulars is granted as to time, the State is then required to prove the time the State advance notice that time is a significant issue in the case. If a bill of Williams rule is that a bill of particulars is a pretrial filing and thus provides bill of particulars. A critical difference between a bill of particulars and the an indictment alleging an extended time period can file a pretrial motion for a

instruction was designed to remedy. First, the defendant facing

(quotation omitted)). defining crimes and to fix the degree, extent and method for punishment.” 150 N.H. 131, 134 (2003) (“It is the province of the legislature to enact laws upon the legislature’s prerogative to define criminal conduct. See State v. Rix, within the statutory definition of the crimes, Williams improperly intruded alleged in the indictment. By adding an extra element which is not included constitute a defense, i.e., that the crime occurred outside the period of time creating a defense as a matter of law for that which in law does not properly the jury to resolve. The Williams instruction, however, has the effect of import of the proofs regarding lack of opportunity are clearly factual issues for occurred at a different time than alleged in the indictment. The weight and not constitute a defense where it merely persuades the jury that the crime State’s evidence or the credibility of the State’s witnesses. Such evidence does time when the offense could have occurred, or that it otherwise undercuts the an inference that the defendant had no access to the victim at all during any constitutes a “defense” to the charge only insofar as it may reasonably support to the victim during the time span alleged in the indictment properly requirements – an element of the crime, proof that the defendant had no access a sexual assault is not – absent statute of limitations or victim age not the proper office of a lack of opportunity defense. Given that the timing of alternatives, however, I think it important to make clear what is and what is accusations that cover an extended period of time. Before describing these adequate protection for a defendant’s legitimate interests in defending against p. 23 23

verdict.” State v. Sammataro case “to the extent that justice may not be done if the trial continues to a the Williams assault occurred surprised the defendant and seriously prejudiced the defense In sum, given the significant cost of a potential miscarriage of justice that victim or other prosecution witnesses concerning the time when the alleged where the defendant can demonstrate that a mid-trial change of course by the not to be employed lightly, a mistrial may be appropriate in extreme situations, Fourth, the trial court can declare a mistrial. Although this alternative is

allegations. See continuing the trial so as to give the defendant an opportunity to meet the new the trial court has ample authority to prevent prejudice to the defendant by time span difficulty that Williams seeks to amend the indictment to correct the problem. In such circumstances, attempts to ameliorate, I am persuaded that for example, the State learns of a date discrepancy shortly before trial and rule imposes, and the readily available alternative remedies for the continuance of the trial. This remedy is most likely to be appropriate where, A third remedy, already discussed, is the trial court’s ability to grant a in fact occur during the time when the defendant had access to the victim. previously undisclosed corroborating details to substantiate that the crime did crime could have occurred outside the time span, but also purports to offer time span alleged in the indictment, the victim not only acknowledges that the trial suggesting that the defendant did not have access to the victim during the An example of such a situation would be one in which, after proof is exposed at

at 190.

State v. Cromlish, 146 N.H. 277, 285 (2001); Spade, 118 N.H.

As noted previously, the absence of a Williams reasonable doubt as to whether the defendant committed the charged assaults. discrepancies undermine the credibility of the State’s witnesses and raise the times when the defendant had access to the victim, and urge that such witnesses about when the assaults allegedly occurred, and evidence regarding between the trial testimony or pretrial statements of the victim or other

or the State got the date wrong. compelled to return a not guilty verdict merely because it concludes the victim of the defendant’s guilt beyond a reasonable doubt, the jury will not be where the jury does not find that any such time discrepancies undermine proof

adduced in the defense case, the defendant may expose any discrepancies when the alleged offense occurred. Through cross-examination and/or proofs confront and cross-examine the victim, and any corroborating witnesses, about dates specified in the indictment, the defendant always retains the ability to defense. For regardless of whether the State is required to prove the exact p. 24 24

majority decision. Williams must be prospectively overruled and I therefore concur with the