2022-0106, State of New Hampshire v. Charles Paul

of his prior convictions under New Hampshire Rule of Evidence 609; and trial court erred by: (1) granting the State’s motion in limine to admit evidence RSA 630:1 - a (Supp. 2022); RSA 159:3, I (2023). The defendant argues that th e and of being a felon in possession of a deadly weapon. See RSA 629:1 (2016); following a jury trial in the Superior Court (Honigberg, J.), of attempted murder DONOVAN, J. The defendant, Charles Paul, appea ls his convictions,

brief and orally, for the defendant. Thomas Barnard, deputy chief appellate defender, of Concord, on the

for the State. general (Audriana Mekula, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2022 - 0106 Rockingham

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

admitting evidence of his prior convictions. The parties disagree as to whether We first address the defendant’s claim that the trial court erred in

A. Rule 609

assault charges. This appeal followed. attempted murder conviction, the trial court did not enter convictions on the that the first - degree assault charges were all lesser - included offenses of the the jury convicted the defendant on all charges. Because the parties agreed and of attempted escape in 1994. Following a five - day trial in December p. 2 2021, that the defendant had previously been convicted of a felony offense in 1987 court granted the S tate’s motion and permitted the State to introduce evidence that were not imposed until 2010. Over the defendant’s objection, the trial which the defendant received stand committed as well as suspended sentences impeach the defendant at trial with felony convictions from 1987 and 1994 for portions to the parties. The State also filed a motion in limine seeki ng to these motions, reviewed over 10,000 pages of records, and disclosed certain camera review of the victim’s mental health records. The trial court granted first - degree assault. Both the defendant and the State filed motions for in count of being a felon in possession of a deadly weapon, and three counts of The State indicted the defendant on one count of attempted murder, one

remembered little of the attack. the neck to stop her from attacking him. The v ictim testified that she struggled for control of the knife, and he stabbed the victim multiple times in attacked him with a knife. According to t he defendant, he and the victim woke the victim duri ng the night. He testified that when he woke her, she While staying at the victim’s home on February 6, p. 2 2019, the defendant

they were concerned about the status of her mental health. February p. 2 2019, they left the victim home alone and would not have done so if victim’s father testified that when he and his wife vacationed in Florida in had been hospitalized in the past due to those conditions. H owever, the “out to get her.” She suffered from a number of mental health conditions and and did not like staying i n the house alone because she feared that others were parents were away on vacation for two weeks. The victim experienced paranoia victim invited the defendant to stay with her at her parents’ house while her The jury could have found the following facts. In late January 2019, the

either respect and we therefore affirm. submitted for in camera review. We conclude that the trial court did not err in ( p. 2 2) failing to disclose additional portions of the victim’s mental health records p. 3 3

conviction, the defendant was sentenced to three - and - one - half to seven years, fifteen years, all suspended. As a result of his 1994 attempted escape 1987 AFSA conviction, t he defendant was sentenced to seven - and - one - half to (AFSA) conviction and a 1994 attempted escape con vic tion. With regard to the to this case, two prior convictions: a 1987 a ggravated f elonious s exual a ssault Before trial, t he State moved to impeach the defendant with, as relevant

N.H. R. Ev. 609(b). substantially outweighs the prejudice caused by its admission into evidence. of the conviction is admissible only if the probative value of a prior conviction prior conviction that is more th an ten years old, the rule provides that evidence N.H. R. Ev. 609. While Rule 609(b) does not absolutely bar the admission of a

its use. of the intent to use it so that the party has a fair opportunity to contest (2) t he proponent gives an adverse party reasonable written notice circumstances, substantially outweighs its prejudicial effect; and (1) its probative value, supported by specific facts and conviction is admissible only if: or release from confinement for it, whichever is later. Evidence of the applies if more than 10 years have passed since the witness’s conviction (b) Limit on Using Evidence After 10 Years. This subdivision (b) dishonest act or false statement. elements of the crime required proving — or the witness’s admitting — a admitted if the court can readily determine t hat establishing the (2) for a crime regardless of the punishment, the evidence must be prejudicial effect to that defendant; and defendant, if the probative value of the evidence outweighs its (B) must be admitted in a crimi nal case in which the witness is a criminal case in which the witness is not a defendant; and (A) must be admitted, subject to Rule 40 p. 3 3, in a civil case or in a by death or by imprisonment for more than one year, the evidence: (1) for a crime that, in the convicting jurisdiction, was punishable character for truthfulness by evidence of a criminal conviction: (a) In General. The following rules apply to attacking a witness’s

New Hampshire Rule of Evidence 609 provides, in relevant part:

plain language of a rule. State v. Munroe, 17 p. 3 3 N.H. p. 4 469, 472 (2020). ordinary meaning where possible. Id. at 500. We will not add words to the to the plain meaning of the words used and ascribe to them their plain and 499 (2022). When interpreting a rule of evidence or a statute, we will first look interpretation of rules of evidence de novo. See State v. Rivera, 175 N.H. 496, we interpret the language of Rule 609. We review the trial court’s New Hampshire Rule of Evidence 609(b). Resolving this dispute requires that the defendant’s prior convictions fall within the ten - year limitation set forth in 4

conviction pursuant to Rule 609(b). Accordingly, we decli ne to consider imposition of a suspended sentence constitutes “confinement for” the original conditions are violated. Here, however, we need only consider whether the still comply with certain conditi ons or face potential incarceration if those restrained during his or her release on that sentence because he or she must that a defendant subject to a suspended or deferred sentence remains co nditions, other conditions, or a suspended or deferred sentence. It reasons restraint on a defendant’s liberty through incarceration, parole or probation expired. The State’s proposed interpretation of “confinement” includes any imposed on a defendant’s liberty as a result of a specific conviction have purposes of Rule 609(b) occurs only when all res trictions and conditions Conversely, the State argues that “release from confinement” for the

released from a subsequently imposed sentence. conviction on the date of the initial sentencing, not the date he or she is a fully suspended sentence, a defendant is released from confineme nt for that “confinement for” the original conviction because, when a conviction results in Rule 609(b), the imposition of a suspended sentence does not constitute of the ten - year limitation under Rule 609(b). The defendant argues that, under sentence constitutes “confinement for” the original conviction for the purposes Accordingly, at issue in this appeal is whether the imposition of a suspended test rather than the Rule 6 09(b)(1) balancing test applied to remote convictions. year limitation period of Rule 609, it applied the Rule 609(a)(1)(B) balancing previously suspended sentences brought his prior convictions within the ten - Because the trial court determined that the imposition of the defendant’s

norms of society.” pure dishonesty, it does reflect a disregard for the l aw, a disregard for the convictions and to describe the attempted escape offense because “[w]hile not a the State’s motion, allowing the State to impeach the defendant with both balancing test for remote convi ctions in Rule 609(b). The trial court granted the defendant’s argument that his convictions should be analyzed under the to be either conviction or completion of the sentence.” The court thus rejected timeliness, bo th convictions fall within the 10 years, as that’s been interpreted, the 10 years that is specified. . . in the rules.” It explained that, “in terms of The trial court ruled that the defendant’s prior convictions were “within

AFSA conviction in 201 p. 4 4 and for the attempted escape conviction in 2016. served concurrently. The defendant completed his prison sentence s for the seven years of his sentence for the 1994 attempted escape conviction, to be suspended sentence for the 1987 AFSA conviction and three - and - one - half to Superior C ourt imposed three - and - one - half to seven years of t he defendant’s result of these violations of the conditions of his suspended sentence s, the and failure to report certain information as a sexual offender. In 2010, as a the defendant was charged with being a felon in possession of a deadly weapon suspended for five years upon the expiration of his other sentence. In 2008, p. 5 5

imposed, the date the defendant is released from confinement for that on the suspended sentence or, if the suspended sentence is subsequently purposes of Rule 609(b) is the later of either the date the defendant is released initial period of release on a s uspended sentence, the relevant date for Accordingly, w e hold that when a defendant is confined following an

measured solely from the two dates suggested by the defendant. the circumstances at issue in this case, the ten - year time limitation cannot be confinement resulting from the imposition of a suspended sentence and, under cannot be changed. We disagree. “C onfinement for” a conviction includes the starting point of the ten - yea r limitation period, and th e starting point sentence, that initial release — regardless of any subsequent confinement — is Therefore, he argues that once a defendant is released on a suspended suppo rt an interpretation that allows any event to “reset the clock” to zero. correspond to multiple releases from confinement and that the rule does not asserts that nothing in the rule suggests that a single conviction could from confinement for it.” (Quotations omitted.) See N.H. R. Ev. 609(b). He the date of “the witness’s conviction” and the date of “the witness’s . . . release T he defendant further argues that Rule 609(b) envisions only two dates:

609(b). sentence is “confinement for” the original conviction for purposes of Rule relates back to the underlying conviction. Thus, the imposition of a suspended remedy for a violation of the conditions of suspension, the sentence itself (2016). In other words, a lthough the imposition of a suspended sentence is the imposed sentence is not a sentence for the violative conduct. See RSA 6 p. 5 51:21 imposed because the defendant has violated the terms of suspension, but the Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982). A suspended sentence is condition e d upon his or her compliance with the original sentence’s terms. See power to impose incarceration at a later time, the defendant’s liberty remains sentence under its original terms. Id. at 540. W hen the court retains the for failing to meet a condition of its suspension merely implements the 541. However, w e also explained that the imposition of a suspended sentence noncompliance, not a punishment for the underlying acts. Gibbs, 157 N.H. at imposition of a suspended sentence is the remedy for a defendant’s is fundamentally different from that of an initial sentence because the (2008). In Gibbs, we held that the process of imposing a suspended sentence Wil liams, 174 N.H. 635, 646 (2021); State v. Gibbs, 157 N.H. 538, 540 - 42 does not constitute “confinement for” the original conviction. See State v. sentencing t o argue that the imposition of a previously suspended sentence procedure for imposing a suspended sentence from the procedure for initial The defendant relies upon cases in which we have distinguished the

constitutes “confinement for” the original conviction. probation or during which a sentence is suspended but never imposed whether a period during which a defendant is subject to conditions of p. 6 6

(2011). Rules of Evidence, we are the final interpreter of our rules. State v. Long, 1 p. 6 61 N.H. 364, 367 While decisions of the federal courts may be helpful in interpreting analogous New Hampshire 1

probation condition and closely parallels the initial, fraudulent activity,” pursuant to probation revocation, where the violation involved a substantive 1287 - 89 (9 th Cir. 1984). The McClintock C o urt concluded that “confinement 1472 - 73 (9th Cir. 1988), and United States v. McClintock, 748 F.2d 1278, of Appeals for the Ninth Circuit in United States v. Wallace, 848 F.2d 14 p. 6 64, conviction, we should adopt the approach followed by the United States Court imposition of a suspended se ntence constitutes “confinement for” the original The defendant argues that, even if we agree with the trial court that the

People v. Owens, 373 N.E.2d 848, 850 (Ill. App. Ct. 1978). 1099 (Wash. Ct. App. 1993); Com. v. Jackson, 585 A.2d 1001, 1002 (Pa. 1991); 2 p. 6 62 P.3d 1158, 1160 - 6 2 (Or. Ct. App. 2011); State v. O’Dell, 854 P.2d 1096, have interpreted analogous rules of evidence agree. See, e.g., State v. Rowland, for purposes of Rule 609(b)). Similarly, a majority of courts in other states that therefore the release date from a second period of confinement is the date used parole violation is confinement imposed for the original conviction and Supp. 50, 52 - 53 (E.D. Tenn. 1978) (holding that reconfinement pursuant to a remained incarcerated at the time of trial); United S tates v. Brewer, 451 F. years prior to trial but was subsequently incarcerated for parole violations and Evidence 609 did not apply where the defendant was convicted more than ten 136, 139 (4th Cir. 1988) (holding t hat the ten - year limitation in Federal Rule of conviction within the meaning of Rule 609(b)”); United States v. Gray, 852 F.2d and concomitant incarceration constitutes confinement for the original conviction,” the defendant’s “violation of a condition of that supervised release because the revocation of supervised release “relates back to the underlying States v. Lapteff, 160 F. App’x 298, 30 3 - 0 4 (4th Cir. 2005) (reasoning that, original conviction within the meaning of the federal rule. See, e.g., United to a violation of supervised release or parole constitutes “confinement for” the addressed this question have held that the imposition of a prison sentence due is modeled. See Fed. R. Ev. 609. A majority of federal courts that have 1 federal courts interpreting Federa l Rule of Evidence 609, upon which our rule “confinement for” the original conviction is supported by the decisions of Our conclusion that the imposition of a suspended sentence constitutes

is later.” N.H. R. Ev. p. 6 609(b). dates of “the witness’s conviction or re lease from confinement for it, whichever conviction and 2016 for the attempted escape conviction because these are the determining the ten - year limitation period are 2014 for the 198 p. 7 7 AFSA those convictions until 2014 and 2016. Therefore, the relevant dates for and those sentences were imposed, he was not released from confinement for he subsequently violated the terms and conditions of his suspended sentences sentence. Here, the defendant was convicted in 1987 and 1994, but, because 7

Id. Evidence is relevant if: “(a) it has any tendency to make a fact more or less probability” is a probability sufficient to undermine confidence in the outcome. proceeding. Girard, 1 p. 7 73 N.H. at 628 (quotation omitted). A “reasonable probability that” disclosure of the evidence will produce a different result in the N.H. 619, 627 (2020). Evidence “is material only if there is a reasonab le and relevant evidence is in fact contained in the records. State v. Girard, 173 When reviewing the records, the trial court must determine if material

on appeal of establishing that the trial court erred. in camera review. The State argues that the defendant has not met his burden to disclose certain me ntal health records of the victim that were submitted for The defendant next argues that the trial court may have erred by failing

B. In Camera Review

balancing test in Rule 609(a)(1)(B). 2014 and 2016, fall within the ten - year period and thus were subject to the defendant’s prior convictions, for which he was released from confinement in Accordingly, we find no error in the trial court ’s determination that the

the rule in Wallace would be “impractical and undesirable.” Id. 854 P.2d at 1099. The O’Dell C ourt therefore ruled that the implementation of statutory interpretation” and “would be difficult to apply in practice.” O’Dell, impeachment,” its rule did not “comport[] with the general standards of general policy concerns as to the fairness of prior convictions as a basis for base its result on interpretation of the language of the rule, but rather relied on with the O’Dell C ourt, which reasoned that, because the Wallace C ourt “did not 1098 - 99; Jackson, 585 A.2d at 1003. We decline to do so as well. We agree adopt the rule originally stated in McClintock. See, e.g., O’Dell, 854 P.2d at Rule 609(b)’s balancing test. However, a majority of courts have declined to treating both convictions as fallin g within Rule 609(a) and by failing to apply was unrelated to the attempted escape conviction, so the court erred by to register as a sexual offender is related to his AFSA conviction, that conduct original convi ctions. (Quotations omitted.) He argues that, even if his failure imposition of those sentences should not be considered “confinement for” the parallel to” his original AFSA and attempted escape convictions, so the sentences were not imposed for conduct that was “substantively related or Under this line of reasoning, the defendant argues that his suspended

ten - year limit of Rule 609(b).” Wallace, p. 8 848 F.2d at 14 p. 7 72 - 73. does not constitute confinement for the original heroin conviction tolling the heroin conviction,” the r evocation of her parole “based on the perjury charge perjury conviction “was not substantively related or parallel to the original 128 8. The Wallac e C ourt similarly concluded that, because the defendant’s constitutes confinement for the original conviction. McClintock, 748 F.2d at 8

concurred. M AC DONALD, C.J., and BASSETT and HANTZ MARCONI, JJ.,

material and relevant. Accordingly, we find no error. clarified in Girard, none of the undisclosed records contain s information that is record of the tri al court proceedings, we conclude that, under the standard After reviewing the records submitted to the trial court as well as the

Girard, 173 N.H. at 627. ruling was clearly unreasonable or untenable to the prejudice of his case. See unsustainable, we must review the same records and determine whether the a trial court’s ruling regarding the disclosure of privileged records is 141 (2022); Girard, 173 N.H. at 627. When a defendant argues on appeal that determine whether its decision is sustainable. State v. Racette, 175 N.H. 132, We review a trial court’s ruling on the management of d iscovery to

consequence in determining the action.” N.H. R. Ev. 401. probable than it would be without the evidence; and (b) the fact is of