2016-0535, The State of New Hampshire v. Anthony Barnaby; The State of New Hampshire v. David Caplin

brief and orally, for David Caplin. David M. Rothstein, deputy director public defender, of Concord, on the

brief, and Mr. Sisti orally), for Anthony Barnaby. Sisti Law Offices, o f Chichester, (Mark Sisti and Wade Harwood on the

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney

No. 2016 - 0535 Hillsborough - s outhern judicial district

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

reference, we cite the p. 2 2016 bound volume of these statutes rather than the 1 986 bound volume. however, because RSA 630:1 - a, I(a) and 630:1 - b, I(b) have not since been amended, for ea se of We recognize that the crimes for which the defendants have been indicted occurred in 1988; 1

under RSA 517:13, II(a). The State also sought to expand the record regarding applied a higher burden of proof for obtaining depositions than is required The State sought reconsideration, arguing that the trial court had

neces sity for the other depositions. Barnaby’s case were necessary, but that it had failed to demonstrate a that the depositions of one witness in Caplin’s case and one witness in omitted.) The court then found that the State had met its burden of proving trial due to absence from the jurisdiction or relucta nce to cooperate.’” (Ellipsis “the State must prove that it is ‘unlikely’ that the witness will be ‘a vailable for demonstrate ‘necessity.’” Instead, citing RSA 517:13, II(a), the court ruled that subpoena by the New Hampshire courts, “standing alone, is insufficient to issued an order concluding that the fact that the witnesses are not subject to which it heard legal argument from the parties. Su bsequently, the court On June p. 2 24, 2016, the court held a hearing on the State’s motion at

ensure a fair trial.” The defendants objected. therefore, video depositions are necessary “to preserve their testimony and are material witnesses who cannot be compelled to testify at trial and, at the defendants’ tria ls. The State maintained that the prospective deponents 517:13, to take video depositions of eleven Canadian residents for potential use charges on August 19, p. 2 2015. In April 2016, the State moved, pursuant to RSA result of that investigation, a grand jury indicted the defendants on the present In 2010, the State reopened its investigation into the murders. As a

charges. of first degree murder, however, it subsequently entered a nolle prosequi on the charges against him. The State also previously charged Caplin with two counts Following Barnaby’s third trial, the State entered a nolle prosequi on the 134 N.H. at 304. Each trial ended in a mistrial based upon a hung jury. alleging that he acted in concert with Caplin in committing the crimes. Caplin, State previously brought Barnaby to trial three ti mes for the two murders, State v. Caplin, 134 N.H. 30 p. 2 2 (1991), or are agreed upon by the parties. The The following facts are supported by the record, our prior opinion, see

vacate and remand. foreign witnesses pursuant to RSA 517:1 p. 3 3 ( p. 2 2007). See RSA 606:10 (2001). We the Superior Court (Colburn, J.) denying, in part, its motion to depose certain 2001); 630:1 - a, I(a) (2016); 630:1 - b, I(b) (2016). The State appeals an order of 1 deaths of two women tha t occurred in 1988. See RSA 626:8 (1986) (amended charged with two counts each of first degree and second degree murder in the HICKS, J. The defendants, Anthony Barnaby and David Caplin, are 3

th erefore, maintains that the court erroneously concluded that the State had the State to prove that the witnesses would be unavailable for trial. The State, would make themselves available to testify at trial,” and, in essence, required “demanded that [the State] be clairvoyant in asserting whether the witnesses depositions under RSA 517:1 p. 3 3, II(a). The State contends that t h e trial court standard in determining whether the State had met its burden to take On appeal, the State argues that the trial court applied the wrong

appeal followed. sufficiency of such efforts in th e context in which that issue i s raised.” This expenses and lost wages, as appropriate, but reserve s final ruling on the explained that it “expects the State to pay for the witnesses’ reasonable travel State to make to ensure that the witnesses appeared at trial, the court willing to reconsider its decision.” With regard to the efforts it expected the the extent the State obtains sufficient evidence in the future, the Court may be depositions in connection with . . . Caplin’s case.” The court noted that “[t]o Barnaby’s case are necessary and that the “State is not entitled to take any State, and ruled that depositions of only two witnesses in connection with pursuant to RSA 517:1 p. 3 3, II(a) and (b) in light of the affidavit provided by the The court t hen reconsidered its decision with respect to each witness

exists before ordering a video trial deposition.” (Quotation omitted.) a witness will appear for trial or that some other compelling circumstance burden, the State had to “set forth specific facts showing that it is unlikely that courts, by itself, “is insufficient to demonstrate necessity” and that, to meet its that the witnesses are not subject to the jurisdiction of the New Hampshire already authorized under subsection (a). It reiterated its ruling that the fact the need for any additional depositions beyond those that the court had under RSA 517:1 p. 3 3, II(b)” and found that the State had failed to demonstrate “considered the need for depositions based on the State’s original submission not misapplied the burden of proof in RSA 517:13, II(a). The court further On September 14, 2016, the trial court issued an or der ruling that it had

deposition of one witness in his case. Caplin sought partial reconsideration as to the court’s order granting the and for their depositions.” The defendants objected to the State’s motion, and efforts [the court] expects the State to make to produce [the] witnesses for trial burdensome delays.” In addition, the State sought clarification regarding “the necessary in order to ensure a fair trial, to avoid surprise and to avoid State [had] met its burden to establish that t he requested depositions are “should do a separate analysis pursuant to RSA 517:1 p. 3 3, II(b), and find that the cooperation during the investigation. The State further argued that the court additional information about each witness and their respective levels of the State provided an affidavit from a law enforcement officer which detailed already made to speak with the witnesses during its investigation. In doing so, t he witnesses’ reluctance to appear for trial and the efforts the State had p. 4 4

“necessary. . . [t]o preserve the testimony of any witness who is unlikely to be demonstrate by a preponderance of the evidence t hat the deposition is deposition under subsection (a), the party seeking the deposition must preserve evidence for possible subsequent use at trial. In order to obtain a Thus, the pur pose of seeking a deposition under RSA 517:13, II(a) is to

which may exist. deposition, and any other special or exceptional circumstances information available to discover the information sought by the complexity of the issues involved, other opportunities or shown. In determining the necessity, the court shall consider the (b) To ensure a fair trial, avoid surprise or for other good cause

reluctance to cooperate; or be available for trial due to illness, absence from the jurisdiction or (a) To preser ve the testimony of any witness who is unlikely to

necessary: finding by a preponderance of the evidence that such deposition is any witness, except the defendant, in any criminal case, upon a in its discretion may permit either party to take the deposition of

N.H. 692, 698 (1998). RSA 517:13, II provides that the trial court RSA 517:13 governs depositions in criminal cases. State v. Haines, 1 p. 4 42

beyond it to discern legislative intent. See i d. omitted). If the statute’s language is clear and unambiguous, we do not look and ascribe the plain and ordinary meanings to the words used.” Id. (quotation whole.” Id. (quotation omitted). “We first examine the language of the statute intent of the legislature as expressed in the words of a statute considered as a “In matters of statutory interpretation, we are the f inal arbiter of the

N.H. p. 4 400, 408 (2015) (quotation omitted). statute is a question of law, which we review de novo.” State v. Sanborn, 168 the trial court properly interpreted RSA 517:13, II (a). “The interpretation of a standard. We agree with the State. The crux of the issue before us is whet her we should review this matter under our unsustainable exercise of discretion interpretation of RSA 517:13, II(a).” By contrast, the defendants contend that maintains that the “question [on appeal] tur ns on the trial court’s review. According to the State, we should review this matter de novo because it As a threshold matter, the parties dispute the applicable standard of

standards. remand the case for the cour t to review the State’s request using the proper result, the State contends that we should find that the trial court erred and not met its burden of demonstrating a necessity for the depositions. As a p. 5 5

exceptional circumstances which may exist.” RSA p. 5 517: 13, II(b). to discover the information sought by the deposition, and any other special or complexity of the issues involved, other opportunities or information available deposition under RSA 517: 13, II(a) or (b), “the court shall consider the N.H. R. Crim. P. 13(b). Therefore, when determining the necessity for a

that may exist. deposition, and any other special or exceptional circumstances information available to discover the information sought by the complexity of the issues involved, other opportunities or In determining the necessity, the court shall consider the

good cause shown. (2) To ensure a fair trial, avoid surprise, or for other

the jurisdiction, or reluctance to cooperate; or unlikely to be available for trial due to illness, a bsence from (1) To preserve the testimony of any witness who is

that such deposition is necessary: criminal case upon a finding by a preponderance of the evidence the depo sition of any witness, except the defendant, in any The court in its discretion may permit either party to take

that: Hampshire Rule of Criminal Procedure 13, which provides, in relevant part, are applicable to both sub sections. This interpretation is consistent with New and (b), it logically follows that the statutory factors for determining necessity p. 5 517:13, II applies to a request for a deposition under both RSA 517:13, II(a) necessity under RSA 517:13). Given that the necessity requirement in RSA apply to RSA 517:13, II(a) and (b)); H owe, 145 N.H. at 44 (generally addressing the statutory factors in RSA 517:13, II(b) without addressing whether they defendant’s argument); State v. Fernandez, 152 N.H. 233, 236 (2005) (citing 51 7:1 3, II(a) and (b) must be read separately for purposes of addressing Schonarth, 152 N.H. 560, 564 (2005) (assuming, without deciding, that RSA court’s necessity determination under RSA 517:13, II(a). Cf. State v. occasion to specifically address whether those factors als o apply to the trial (2010); State v. Sargent, 148 N.H. 571, 575 (2002). However, we have not had enumerated in that sub section. S ee, e.g., State v. Oakes, 161 N.H. 270, 277 under RSA 517:13, II(b) the trial court shall consider the statutory factors It is well established that when determining the necessity for a deposition

deposition to establish necessity.”). 41, 44 (2000) (“Under RSA p. 5 517:13, the burden is on the defendant requesting a cooperate.” RSA 517:13, II(a) (emphasis added); see State v. Howe, 1 45 N.H. available for trial due to illness, absence from the jurisdiction or reluctance to p. 6 6

jurisdict ion or reluctance to cooperate. In other words, i t must be because of likelihood of being available for trial and his or her illness, absence from the terms, the statute requires a direct relationship between the witness’s reluctance to cooperate.” RSA 517:13, II(a) (emphasis added). By its plain to be available for trial due to illness, absence from the jurisdiction or deposition is necessary to preserve the testimony of a witness “who is unlikely Instead, the legislature required the moving party to show tha t the

jurisdiction of the New Hampshire courts. that the witness resides in a foreign country and is not subject to the have explicitly provided for a deposition to be granted upon a mere showing for tri al.” RSA 517:13, II(a). Had the legislature intended such a result it cou ld courts is sufficient to demonstrate that the witness is “unlikely to be available because the witness is not subject to the jurisdicti on of the New Hampshire that, by itself, the fact that a witness cannot be compelled to appear in court Hampshire courts is ‘unlikely to be available. ’” (Citation omitted.) We disagree testify because the witness is not sub ject to the jurisdiction of [the] New New Hampshire courts, and who cannot be compelled to appear in court and II(a), a witness “who lives in a foreign country, outside the jurisdiction of [the] The State further contends that, for purposes of applying RSA 517:13,

conclusi ve in order to obtain a deposition under subsection (a). the word “unlikely” demonstrates that the showing of unavailability need not be available for trial,” RSA 517:13, II(a) (emphasis added). The legislature’s use of clear that, to obtain a deposition, the witness need only be “unlikely to be witness for trial, see N.H. R. Ev. 804, the language of RSA 517:13, II(a) makes admission of certain hearsay statement s if the declarant is unavailable as a trial. Unlike New Hampshire Rule of Evidence 804, whi ch allows for the RSA 517:13, II(a) need not prove that the witness is, in fact, unavailable for We further agree with the State that the party seeking a deposition under

for either knowing or willful acts). Hampshire Consumer Protection Act manifests clear intent to award damages Miller, 141 N.H. 39, 45 (199 p. 6 6) (concluding that use of disjunctive “or” in New alternatives need be shown); see also Unit Owners Assoc. of Summit Vista v. 261 (2014) (explaining that use of disjunctive in statute meant only one of two of the three enumerated conditions. See Appe al of Niadni, Inc., 166 N.H. 256, Thus, a party seeking a deposition under RSA 51 p. 7 7:13, II(a) need prove only one jurisdiction or reluctance to cooperate.” RSA 517:13, II(a) (emphasis added). witness who is unlikely to be available for trial — “illness, absence from the conditions that allow for a deposition to be taken to preserve the testimony of a use of the disjunctive “or” in RSA 517:13, II(a) establishes three alternative jurisdiction,’ ‘reluctance to cooperate’ — to satisfy its burden.” We agree. The one of the three enumerated conditions — ‘illness,’ ‘absence from the plain la nguage of the statute requires that “the moving party need prove only The State argues that to obtain a deposition under RSA 517:13, II(a), the 7

LYNN and BASSETT, JJ., concurred.

address the other arguments raised by the State on appeal. request for depositions and to remand for further proceedings, we need not Given our decision to vacate the trial court’s decision denying the State’s

burden in light of our interpretation of RSA 51 p. 7 7:13, II(a). and remand for the trial court to reconsider whether the State has met its subject to the jurisdiction of the New Hampshire courts, we vacate its decision if any, that the trial court placed upon the fact that these witnesses are not benefit of our interpretation of RSA 517:13, II(a) and it is not clear what weight, entirely as a factor in its analysis. Because the trial court did not have the appears that after the court made this ruling, it then discounted that fact New Hampshire courts is, by itself, not enough to demonstrate necessity, it trial court that the fact that a witness is not subject to the jurisdiction of the or re luctance to cooperate.” (Citations omitted.) A lthough we agree with the the witness will be ‘available for trial due to . . . absence from the jurisdiction demonstrate ‘necessity.’ Rather, the State must prove that it is ‘unlikely’ that jurisdiction of the New Hampshire courts, “standing alone, is insuffi cie nt to Here, the court found that the fact that a witness is not subject to the

II(a). See RSA 51 p. 7 7:13, II (a), (b). to be available for trial due to one of the enumerated conditions in RSA 517:13, deposit ion is necessary to preserve the testimony of a witness who is unlikely courts is a factor that can be considered when determining whether a foreign country and is not subject to the jurisdiction of the New Hampshire available for trial.” RSA 517:13, II(a). However, whether a witness resides in a Hampshire courts is not enough to prove that the witnes s is “unlikely to be resides in a foreign jurisdiction and is not subject to the jurisdiction of the New to” as meaning “because of”). Thus, without more, the fact that a witness Third New International Dictionary 699 (unabridged ed. 2002) (defining “due is ill, absent from the jurisdiction or reluctant to cooperate. See Webster’s that the witness is unlikely to be available for trial, not simply that the witness the witness’ s illness, absence from the j urisdiction, or reluctance to cooperate