2014-0595, State of New Hampshire v. Steven Laux

we use both terms interchangeably herein. hearing” and a “probable cause hearing,” see, e.g., Ojo v. Lorenzo, 164 N.H. 717, 720 (2013), and probable cause.” RSA 596 - A:2 (2001). It is referred to in our cases as both a “preliminary In the applicable statutes, this proceeding is referred to as a “preliminary examination for 

order. We reverse and remand.  probable cause, hearing in accordance with the court’s standing discovery based upon the State’s failure to provide discovery prior to the preliminary, or dismissing t he habitual offender prosecution of the defendant, Steven Laux, HICKS, J. The State appeals an order of the Circuit Court (Tenney, J.)

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

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2014 - 595 2 Circuit Co urt - Lebanon District Division nd

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, Concor d, 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

court’s inherent authority is a question of law reviewed de novo), aff’d, 808 Dowdy, 79 p. 2 2 N.W.2d 230, 236 (Wis. Ct. App. 2010) (noting that question of trial That i nquiry is a question of law that we review de novo. See, e.g., State v. ordering discovery prior to” the time discovery is triggered under that rule). n othing in former Superior Court “Rule 98 prohibits the superior court from discovery. Cf. State v. Carter, 167 N.H. 161, 168 (2014) (observing that to w hether the circuit court possesses the inherent authority to order that authorizes discovery prior to the probable cause hearing, our inquiry is limited Because the parties agree that no statute or court rule specifically

hearing.” disclosure of already - prepared police reports prior to a probable cause prohibition, a circuit court judge has the inherent authority to order the defendant asserts that “in the absence of any statutory or rule - based ordering the disclosure of police reports prior to a probable cause hearing. Th e converse proposition that no statute or rule prohibits the circuit court from asserted right t o discovery granted by statute or rule, but rather upon the case.” Th us, the defendant ’s argument fo r affirmance is not based upon a n that, i n fact, “[n]o statute or court rule answers the question raised by this governs only cases to be tried in that court,” appl ies to this case. He argues discovery in the superior court,” nor “[District Division] Rule p. 2 2.10[, w hich] The defendant contends that neither “RSA 604:1 - a[, which] governs only

reports prior to th e probable cause hearing. see Super. Ct. Crim. R. 98, Dist. Div. R. p. 2 2.10, provide for discovery of police governing discovery in the superior court and circuit court - district division s, providing for criminal pre - trial discovery, see RSA 604:1 - a (2001), nor the rules as provided by statute or court rule.” It then argues that neither the statute that our cases have long held “that police reports are not discoverable except order discovery of police reports prior to a probable cause hearing. It contends On appeal, the State argues that the circuit court lacks authority to

dismiss the case for the State’s noncompliance. inherent authority to order discovery and granted the defendant’s motion to Circuit Court for a Probable Cause Hearing.” The court concluded that it had par ties “to brief the issue of whether or not discovery could be order ed by the the order, the court postponed the probable cause hearing and allowed the prepared police reports.” When the State indicated it would not comply with waiver of counsel, the State shall provide the defendant’s counsel a copy of any Hearing [:] Upon receipt of an Appearance by counsel for the defense or upon discovery order. That ord er provides, in relevant part: “IV. Probable Cause sought police reports from the State in accordance with the court’s standing hearing was scheduled for April p. 2 21, 2014. Prior to the hearing, the defendant offender, a felony - level offense. See RSA 262:2 p. 3 3, I (2014). A probable cause parties. The defendant was arrested for driving while certified as a habitual The fol lowing facts are supported by the record or are undisputed by the 3

Garabedian, 106 N.H. at 157 (quotation omitted). “necessary to the progress of the case[] and the dispatch of busine ss.” nature of that proceeding to determine whether the discovery ordered was proceeding at issue was a preliminary hearing. Accordingly, we examine the the offense, and indeed did not have jurisdiction to do so. Rather the to order discovery in this case, however, because the circuit court did not try Sorrell does not answer whether the circuit court had inherent authority

criminal case if the interests of justice so require”). court – “has the inherent power in its discretion to compel di scovery in a Healey, 106 N.H. p. 3 308, 309 (19 65) (noting that a trial court – there the superior pre - trial discovery.” State v. Sorrell, 120 N.H. 472, 475 (1980); see also State v. authority, as a trial court, “to rule in its discreti on upon matters relating to former district courts, w e have recognized the district court’s inherent Thus, with respect t o the trial of a criminal offens e within the jurisdiction of the Garabedian v. William Co mpany, 10 6 N.H. 156, 157 (1965) (quotation omitted). necessary to the progress of the cases and the dispatch of business.” make such orders in relation to the cases pending before them, as are justice have power, as a necessary incident to their general jurisdiction, to 139 N.H. at 631. We have also recognized, m ore generally, that “[c]ourts of fro m a court’s necessary power to control the proceedings before it.” Emerson, The inherent power of a court to order competency evaluations “stems

claimed any constitutional right to the discovery at issue. v. Heath, 129 N.H. 102, 109 (1986) (quotation omitted), nor has the defendant “t here is no general constitutional ri ght to discovery in a criminal case,” State authority to protect a defendant’s constitutional rights,” Gagne, 129 N.H. at 97, 1 p. 3 39 N.H. 629, 631 (1995). Although Gagne centered on the court’s “inherent 129 N.H. 93, 97 (1986), and impose sanctions, Emerson v. Town of Stratford, courts, including the power to order competency evaluations, State v. Gagne, Our cases have recognized certain inherent powers of the former district

In the Matter of Stapleton & Stapleton, 159 N.H. 694, 697 (2010). limited by statute [] does not necessarily negate a court’s inherent authority.” former district courts). Nevertheless, “[t]he fact that . . . a court’s jurisdiction is general jurisdiction.” State v. Flynn, 110 N.H. 451, 45 p. 3 3 (1970) (discussing such, it is “not vested with as broad inherent po wers as courts of superior and of the former probate and district courts and the former family division). As (Supp. 2014) (conferring upon circuit court the jurisdiction, powers and duties The circuit court is a court of limited jurisdiction. See RSA 490 - F:3

court’s jurisdiction subject to de novo review). restraining order to secure safety of its facilities and staff as a question of the (2010) (treating issue of whether family division had inherent power to issue N.W.2d 691 (Wis. 2012); cf. In the Matter of O’Neil & O’Neil, 159 N.H. 615, 622 p. 4 4

issued before criminal pre - trial discovery rights (other than the right to depose inherent authority to order such disclosure in particular cases. O ur decisions We also conclude, h owever, that the circuit court does possess the

reports in all cases. section IV of its standing discovery order, the disclosure of prepared police circuit court exceeded its authority in requiring, through promulgation of not every case would present that scenario. Accordingly, we hold that the compel discovery in criminal case if interests of justice so require). Of course, hearing. Cf. Healey, 106 N.H. at 309 (noting trial court’s inherent power to would require the report’s disclosure to the accused prior to the preliminary probative of the probable cause determination that the interests of justic e that, in some cases, the contents of a prepared police report would be so existence of probable cause. See Williams, 115 N.H. at p. 4 440. It is conceivable at 318, it does encompass providing him an opportunity to contest the include provid ing “the accused an opportunity for discovery,” Smith, 109 N.H. Thus, although the intended purpose of the preliminary hearing does not

M cLetchie v. Laconia District Court, 106 N.H. p. 4 48, 51 (1964). are admissible, and which serve to show lack of probable cause.” State ex rel likewise entitled to call witnesses on his own behalf to testify to matters which not exist.” Williams, 115 N.H. at 440; see also RSA 596 - A:3 (2001). “[H] e is waive that right “in an attempt to convince the court that proba ble cause does t he accused has the right to refuse to testify, he may voluntarily choose to and may introduce evidence in his own behalf.” RSA 596 - A:4 (2001). Although that adversity, “[t]he accused may cro ss - examine the witnesses against him nature of the probable cause hearing in New Hampshire”). Consonant with at 440; see also Gagne, 129 N.H. at 100 (“[a]cknowledging the true adversarial without suffic ient supporting evidence will be eliminated.” Williams, 115 N.H. pr obable cause hearing “envision an adversary process during which charges proceeding”), and conclud ed that statutory protections for the accused at the N.H. at 218 (stating that “a probable cause hearing is not an adversary assessment of the adversarial nature of the proceeding, see St. Arnault, 114 Williams, 115 N.H. 437, 440 (1975). In Williams, we altered our prior than a routine proceeding leading inevitably to indictment and trial.” State v. Nonetheless, a probable cause hearing is intended to be “something more

discovery.” Smith v. O’Brien, 109 N.H. 317, 318 (1969). (1969). It is also not provided to “afford [] the accused an opportunity for accused to be bound over to a grand jury.” State v. Chase, 109 N.H. 296, 297 rather “a judicial inquiry to determine whether probable cause exists for the see RSA p. 5 596 - A:7 (2001). It is not a trial to determine guilt or innocence, but is . . ..” State v. St. Arnault, 11 p. 4 4 N.H. 216, 217 - 18 (1974) (quotation omitted); beyond the jurisdiction of the court to try, and that the accused committed it probable cause exists to believe that an offense has been committed, which is “The purpose of the preliminary hearing is to determine whether 5

98 (A) superseded Superior Court ’s holding to the extent that it requir ed the 228, 230 - 31 (196 p. 5 5). The subsequent adoption of Superior Court Criminal Rule and are privileged from pretrial discovery.” State v. Superior Court, 106 N.H. the course of their investigation. . . constitute the work product of the State we h ave held “that notes personally compiled by law enforcement authorities in “are not discoverable except as provided by statute or court rule.” Admittedly, override this Court’s often - repeated holdings that police reports,” in particular, pr eliminary hearings or the former district courts’ inherent authority “would The State nevertheless contends that nothing in our cases dea ling with

309. such discovery on the proper prosecution of the crime. See Healey, 106 N.H. at determination, the court should also consider any resulting adverse effect of concludes that the interests of justice requir e disclosure. In making that the discovery is needed to show a lack of probable cause and the court preliminary hearing when the accused has made a particularized showing that inherent authority, within its sound discretion, to order discovery prior to the the accused,” Chase, 109 N.H. at 297, we hold that the circuit court has the preliminary hearing is not a judicial trial of the issue of guilt or innocence of Applying those principles here, while bearing in mind that “the

the offens e.” Id. adverse effect which such discovery might have on the proper prosecution of the defendant’s need of the discovery sought to properly defend himself and the discretion, the Trial Court is to consider, under the circumstances of the case, require.” Healey, 106 N.H. at 309. We instructed that “[i]n exerci sing its discretion to compel discovery in a criminal case if the interests of justice so settled in this jurisdiction that the Trial Court has the inherent power in its Id. at 229. We expanded upon that conclusion in Hea ley, finding it then “well

or the trial unnecessarily prolonged. otherwise essential rights of the respondents may be endangered appropriately close to the time of trial, if it should appear that inspection under app ropriate safeguards and at a time to require the production of specific objects or writings for exercise of reasonable discretion and to prevent manifest injustice, We do not hold the Court to be without power, in the

discovery: 27. Nevertheless, we allowed for the co urt’s inherent power to order pre - trial any such right been conferred by statute. State ex rel Regan, 102 N.H. at 22 p. 6 6 or writings in advance of trial existed at common law”; nor, at that time, had 224 (19 p. 5 59), we noted that “[i]n criminal cases, no ‘right’ to inspection of objects cases to order disclosure. In State ex rel Regan v. Superior Court, 102 N.H. 604:1 - a, Super. Ct. Crim. R. 98 - 102, provide guidance in determining in which witnesses, see RSA 517:13 (2001)) were conferr ed by statute or rule, see RSA 6

constituted an unsustainable exercise of discretion. See State v. Reader, 1 p. 6 60 court’s dismissal of the case fo r the State’s failure to comply with that order section IV of its standing discovery order, we necessarily conclude that the Having held that the circuit court exceeded its authority in promulgating

Chagnon, 139 N.H. p. 6 671, 676 (1995). protected material after an in camera review by the court. Cf. State v. may nevertheless assert work product protection and request redaction of any discovery under the court’s inherent authority as discussed above. The State covered by Superior Court Criminal Rule 98 (A), they are subject to compelled under the work product doctrine and that, even under circumstances not We now hold that prepared police reports are not categorically protected

information takes or how it was acquired.” Id. substantive information that the material contains, rather than the form the protection of the work product doctrine, the court must “focus upon the Id. (quotation omitted). To determine whether information falls under the

attended to by attorneys. opponent seeks, an d he must have performed duties normally formed an e ssential step in the procuremen t of the data which the pending or anticipated litigation. The lawyer’s work must have activities when those activities have been conducted with a view to We have defined work product as the result of an attorney’s

(quotation omitted). prepare his client’s case.” State v. Zwicker, 151 N.H. 179, 191 (2004) the attorney, providing a privileged area within which he can analyze and “At its core, the work - product doctrine shelters the mental processes of

of the pretrial criminal discovery rules”). under the prosecution work product exemption thwarts the underlying purpose “[c] lassifying routine, essentially factual police reports as nondiscoverable State v. Shipton, 339 N.W.2d 87, 89 (N.D. 1983) (further noting that hold that all arresting officer reports automatically fall into that category.” reports might qualify as prosecution work products, we are not prepared to with the North Dakota Supreme Court, however, that “[w]hil e some police constitute work product of the prosecutor, protected from discovery. We agree We have not, since Superior Court, addressed whether police reports

at the preliminary hearing stage. 98 (A) (1)(ii), (E), (J). Rule 98, however, by its terms, does not appl y to this case redactions and/or in camera review by the trial court. Super. Ct. Crim. R. to assert work product protection for protected material therein through calendar days after his entry of a not guilty plea; the Rule also allow s the State State to provide the defendant with copies of all police reports within ten p. 7 7

DAL I ANIS, C.J.