2010-140 The State of New Hampshire v. Peter Eaton

Michael A. Delaney

No. 2010-140

Rockingham

of four counts of aggravated felonious sexual assault, see HICKS, J. The defendant, Peter Eaton, appeals his conviction by a jury

Pamela E. Phelan

Department; and (3) to dismiss for lack of a speedy trial. He also argues that counseling records; (2) for production of records from the Raymond Police when it denied his pre-trial motions: (1) for in camera review of the victim’s (amended 2008). On appeal, he argues that the Trial Court (Nadeau, J.) erred (amended 2008), and one count of indecent exposure, see RSA 645:1 (2007) (amended 2008), one count of felonious sexual assault, see RSA 632-A:3 (2007) RSA 632-A:2 (2007)

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 p. 2 22 as 2

“not made the requisite showing under [State v. Gagne, 136 N.H. 101 (199 p. 2 2)].” trial court denied the defendant’s motion on the ground that the defense had counseling and psychiatric records of [the victim] from December 2003.” The assertions, the defendant asked the court to order the State “to produce in camera review and then had denied him access to them. Based upon these the documents in his prior motion for in camera review, the court had ordered made to others. The defendant acknowledged that he had already requested filed another motion for in The defendant was re-indicted on October 7, 2008. In February 2009, he statements to her counselor about his conduct that differed from those she issues for an unknown amount of time.” He further noted that the victim made defendant asserted that the victim “remained in counseling to address these Chase that the defendant had penetrated her buttocks with a vibrator. The for reconsideration. The 2005 charges against the defendant were nolle been anally penetrated by the defendant. On July 26, 2005, the victim told were from July 2005. On January 31, 2006, the trial court denied the motion police that the victim had used anatomical dolls in disclosing that she had defendant specified that the counseling records particularly relevant to the case Seacoast Mental Health, on July 14, 2005. Later that day, Chase told the were based solely upon the allegations the victim made to Chase. The the victim’s counselor, Susan Chase, and because some of the indictments recommended counseling. The victim first met Chase, her counselor at counseling records had “already been put at issue” because the police spoke to him on June 28, 2005. On July 5, 2005, she saw Dr. Wendy Gladstone, who motion for in The defendant moved for reconsideration, explaining that the victim’s this motion, he alleged the following. The victim first made allegations against The defendant first argues that the trial court erred when it denied his camera review of the victim’s counseling records. In

prossed on March 30, p. 2 2006.

Accordingly, the court ordered that they would remain under seal. Center” and had determined that they “contain no discoverable material.” had reviewed “the victim’s mental health records from Seacoast Mental Health granted it. On January 10, p. 2 2006, the trial court issued an order stating that it State did not object to this motion, and, on December 7, 2005, the court filed a motion for in camera review of the victim’s counseling records. The indicted for these assaults in October 2005. In November 2005, the defendant June 2005, when he lived with the victim and her family. He was originally is alleged to have sexually assaulted the victim between the fall of 2003 and

camera review of the victim’s counseling records. The defendant

in part, vacate in part, and remand. indictments alleging alternative theories of liability. We affirm in part, reverse the Superior Court (Nicolosi, J.) erred when it sentenced him on two p. 3 3

Gagne We first address whether the defendant met the Gagne 2008, when he was re-indicted, we conclude that the defendant has met the As to the victim’s counseling records from July 5, 2005, until October 7,

standard as a matter of law.

not met the Gagne standard as to any records generated before July 5, 2005. 145 N.H. 47, 49-50 (2000). Accordingly, we conclude that the defendant has The defendant argues, in effect, that he met the Gagne time before July 2005. See Ellsworth, 142 N.H. at 714; see also State v. Hoag, logical factual basis for his belief that the victim was even in counseling at any first recommended to the victim on July 5, 2005. It does not articulate any 2005. The defendant’s February 2009 motion alleges only that counseling was respect to counseling records generated from December 200 p. 3 3 until July 5,

discretion standard. State v. Sargent October 7, 2008 (the date of his re-indictment). We review the trial court’s decision under our unsustainable exercise of suggested to the victim); and (2) those generated from July 5, 2005, until December 200 p. 3 3 until July 5, 2005 (the date on which counseling was require in camera review of two sets of records: (1) those generated from

Ellsworth, 142 N.H. at 714 (citation omitted). obtained, that the [information sought] may yield relevant evidence.” logical factual basis for his request, based on information independently ‘precise nature’ of the information sought, he must provide the court with a p. 3 363 (quotation omitted). “Although a defendant is not required to state the probability, will be explained by the information sought.” Graham, 142 N.H. at specific concern, based on more than bare conjecture, that, in reasonable Sargent, 148 N.H. at 573. “At a minimum, a defendant must present some the information sought is relevant and material to his defense.” Id.; see 357, 363 (1997). It requires the defendant only to “meaningfully articulate how 105. This threshold showing “is not unduly high.” State v. Graham, 142 N.H. information that is material and relevant to his defense.” Gagne, 136 N.H. at the defendant must establish a reasonable probability that the records contain (1998). “[T]o trigger an in camera review of privileged or confidential records, is governed by State v. Gagne. See State v. Ellsworth, 142 N.H. 710, 713 defendant’s request for an in camera review of the victim’s counseling records , 148 N.H. 571, 572-73 (2002). The

2008.” State nolle prossed the 2005 case and reinstated the charges on October since then, including any counseling records from the time period when the existed as of February 2006 . . . as well as any counseling records generated “made the threshold showing required for in camera review of the records that On appeal, the defendant argues that the trial court erred because he p. 4 4

determination that they contain no discoverable information. He has not, was necessary so that he could obtain appellate review of the trial court’s At oral argument, the defendant asserted that re-review of the records

in The trial court, however, has already reviewed a portion of these records and this Court ordered that they be produced for in camera review.” motion acknowledged this: “The requested records were requested previously Seacoast Mental Health Center.” Indeed, the defendant’s February 2009 specifically: “The court has reviewed the victim’s mental health records from such a review took place. The trial court’s January 10, 2006 order stated trial court’s in camera review. The record on appeal also demonstrates that counseling records that existed as of December 7, 2005, were produced for the records are not part of the appellate record, we infer that, at the very least, review of the victim’s counseling records on December 7, 2005. Although the camera. The trial court granted the defendant’s first motion for in camera recommended to the victim. Id

See id. and reasonably believes that this counseling concerned his alleged conduct. reasonably believes that the victim remained in counseling after July 5, 2005, too are the defendant’s assertions here sufficient. The defendant in this case defendant’s assertions in Hoag State v. Hoag were sufficient to trigger in camera review, so was “in intensive counseling to address [the] . . . alleged abuse.” Just as the the case based upon the mother’s statement that in August 2005, the victim counseling with Chase after July 2005, but he reasonably believes this to be defendant does not know for certain that the victim continued in her

this to be the case because, as the State conceded, counseling had been for certain that the victim had sought counseling, but he reasonably believed accounts of the defendant’s actions. Id. The defendant in Hoag did not know at p. 4 49. The victim in Hoag, like the victim in this matter, gave differing the victim’s counseling records, to the extent that any existed. Hoag, 145 N.H.

Hoag, 1 p. 4 4 p. 5 5 N.H. at 49-50. July 5, 2005, until October 2008. See Ellsworth, 142 N.H. at 714; see also factual basis for his request for the victim’s counseling records generated from others. These allegations were sufficient to provide the court with a logical the victim’s statements to her counselor differed from those she made to intensive counseling to address [the] . . . alleged abuse.” He further noted that victim’s mother’s statement “on August 18, 2005 that her children were in amount of time” after July 2005. His belief, he explained, was based upon the His motion also stated that the victim remained in counseling “for an unknown her allegations against the defendant with her counselor several times in 2005. first recommended to the victim on July 5, 2005, and that the victim discussed The defendant’s motion for in camera review alleged that counseling was 5

guaranteed by the State and Federal Constitutions because the State nolle The defendant next contends he was denied his right to a speedy trial

violated, we apply the four-part test articulated in Barker v. Wingo To determine whether a defendant’s right to a speedy trial has been

are clearly erroneous, and consider de novo the court’s conclusions of law with at p. 5 530-32. We defer to the trial court’s factual findings unless those findings the prejudice to the defendant caused by the delay. Id.; see Barker, 407 U.S. for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) requires that we balance four factors: (1) the length of the delay; (2) the reason 514, 530-32 (1972). State v. Allen, 150 N.H. 290, 292 (2003). The test

Sargent See trial court’s decision under our unsustainable exercise of discretion standard. State v. Ball, 124 N.H. 226, 231, 233 (1983). claim under our State Constitution and cite federal cases for guidance only. review in access to certain records from the Raymond Police Department. We review the We conclude, however, that the trial court did err when it declined to prossed the 200 p. 5 5 indictments in bad faith. We first address the defendant’s The defendant next asserts that the trial court erred by denying him

N.H. at 106. essential and reasonably necessary to the defendant’s defense. See Gagne, 136 it found that the withheld records did not contain information that was conclude that the trial court did not unsustainably exercise its discretion when , 148 N.H. at p. 5 572-73. Having reviewed the withheld records, we

evidence in the first trial was harmless beyond a reasonable doubt. Id. should order a new trial unless it finds that the error in not admitting the at p. 5 50. If the trial court determines that the records contain such evidence, it been essential and reasonably necessary to the defense at trial. Hoag, 149 N.H. records in camera to determine whether they contain evidence that would have commencement of the defendant’s trial), and, if so, should review her counseling counseling after December 7, 2005 through November 2, 2009 (the date of 2005. On remand, the trial court should determine whether the victim attended

camera the victim’s counseling records generated after December 7,

presented to the appellate court.” (quotation omitted)). forums “an opportunity to rule on issues and to correct errors before they are v. Davey, 1 p. 5 53 N.H. 7 p. 6 64, 786 (2006) (purpose of preservation rule is to give trial court for not doing so. See Sargent, 148 N.H. at 574; cf. Mortgage Specialists of this (or any other) reason for re-examining them, we decline to fault the trial had previously reviewed. Given the defendant’s failure to inform the trial court articulate any basis for the trial court to re-examine the counseling records it N.H. 248, 250 (2004). The defendant’s February 2009 motion failed to thereby preserving it for our review. See Bean v. Red Oak Prop. Mgmt., 151 however, demonstrated that he ever made this argument to the trial court, 6

We next address the three-year delay between the nolle

indictment in 2008 in our speedy trial analysis. between the nolle prosequi of the 2005 indictments and the defendant’s rerecord to support this finding, we uphold it, and do not count the three years conduct” when it nolle prossed the 2005 charges. As there is evidence in the Id. The trial court specifically found that the State did not engage in “improper the time between the nolle prosequi and the refiling for speedy trial analysis.” nolle prosequi in good faith and later recharges a defendant, we do not include faith. See Allen, 150 N.H. at 293. “We have held that when the State enters a the delay in this case because it nolle prossed the 2005 indictments in good State argues that this period should not be counted in measuring the length of original 2005 indictments and the defendant’s re-indictment in 2008. The

N.H. at 343. prosequi in March 200 p. 6 6 does not count against the State. See Lamarche, 157 2005 and the nolle not all, of the five-month delay between the October 2005 charges and the nolle the five-month period between the defendant’s original indictment in October The 2005 charges were nolle prossed only a week later. Accordingly, most, if To assess this factor, we examine several time periods. We first examine motion on February 28, 2006, and reviewed the records on March 23, 2006. review of other documents, including police reports. The court granted the “The threshold inquiry is the length of the relevant delay.” Allen 31, 2006. Additionally, in February 2006, the defendant moved for in camera of production of the documents, and the court denied this motion on January how much weight to give the delay. Id January 2006. The defendant moved for reconsideration of the court’s denial court granted this motion in December 2005 and reviewed the documents in The second factor requires that we assess why the trial was delayed and defendant moved for in camera review of the victim’s counseling records. The See State v. Fletcher, 135 N.H. 605, 607-08 (1992). In November 2005, the appeal shows that most, if not all, of this delay was caused by the defendant. prosequi of those charges in March 2006. The record on

caused by the defendant.” Id. (quotation and brackets omitted). delay, the delay does not count against the state at all. So too delay that is . “To the extent that valid reasons cause

Lamarche, 157 N.H. at 343. assume that this is so, and examine the remaining three Barker factors. See State concedes that the delay in this case is presumptively prejudicial, we not examine the remaining three factors of the Barker test. Id. Because the N.H. at 292. If the length of the delay is not presumptively prejudicial, we do

(2008). respect to those factual findings. State v. Lamarche, 15 p. 7 7 N.H. 337, 342-43 7

Lamarche incarcerated “substantially mitigates any prejudice attributable to his anxiety.” filing caused him “anxiety.” The fact that the defendant was already was incarcerated on other charges when the charges were re-filed, their re- The defendant also claims to have been prejudiced because, although he

In balancing the four Barker

oppressive pretrial incarceration, anxiety, or an impaired defense. Lamarche, Barker, 40 p. 7 7 U.S. at 530, we reach the same conclusion under the Federal defendant suffered prejudice, including whether the delay resulted in an Constitution under these circumstances, compare Allen, 150 N.H. at 292, with The final factor requires us to determine whether and to what extent the the Federal Constitution is no more protective of the defendant than the State not denied his right to a speedy trial under the State Constitution. Because factors, we conclude that the defendant was

, 15 p. 7 7 N.H. at 344.

(quotation omitted). place upon the delay with regard to the practical administration of justice.” Id. to a speedy trial, we would have to disregard the considerations we normally defendant had been prejudiced to the point where he had been denied his right after an event occurs, and if that were to be a sufficient basis to hold that a p. 7 773 (1981) (quotation omitted). “Memories begin to dim almost immediately assertion of his right to a speedy trial. Barker memories,” is insufficient to establish prejudice. State v. Little, 121 N.H. 765, Under the third factor, we consider the strength of a defendant’s faded. However, “[t]he passage of time, and the resulting impairment of impaired his ability to cross-examine the victim because her memory had 157 N.H. at 344. The defendant asserts that he suffered prejudice because it

in his favor. dismiss, seven months after he was re-indicted. This factor, therefore, weighs defendant first asserted his right to a speedy trial in his May 2009 motion to

count against the State. See id. Accordingly, much of this delay was attributable to the defendant, and does not speedy trial motion on October 23, 2009, and trial occurred shortly thereafter. supplemented his speedy trial motion. The trial court ruled on the defendant’s the defendant moved for a continuance. In late September 2009, he specifically for violation of his speedy trial right in May 2009. In June 2009, finally resolved at the end of June 2009. The defendant moved to dismiss well as a motion to dismiss on due process grounds. These motions were defendant filed several motions for in camera review of certain documents as amply supports this finding as well. Beginning in February 2009, the found that some of this delay was attributable to the defendant. The record indictment in October 200 p. 8 8 and his trial in November 2009. The trial court The next time period is the thirteen months between the defendant’s re- 8

Affirmed in part; reversed in

DALIANIS, C.J.