2025 N.H. 19, State v. Bradley

Bradley. He argues that the trial court erred in determining, among other an audio recording of a conversation he had with his wife, Deborah Ann from an order of the Superior Court (Ignatius, J.) denying his motion to exclude [¶1] The defendant, Kenneth Bradley, brings this interlocutory appeal

orally), for the defendant. Shaheen & Gordon, PA, of Concord (James D. Rosenberg on the brief and

orally), for the State. general (Mary A. Triick, senior assistant attorney general, on the brief and John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Bradley, 2025 N.H. 19 Case No. 2024 - 0082 Merrimack

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

proceedings under RSA chapter 63 p. 2 2 - A regardless of whether the defendant’s concluding that RSA 632 - A:5 renders the spousal privilege inapplicable to all [¶5] On appeal, the defendant argues that the trial court erred by

proceedings under RSA chapter 63 p. 2 2 - A. This interlocutory appeal followed. policy reasons and, alternatively, that the priv ilege is not applicable in audio recording does not fall within the scope of the spousal privilege for public admissible at trial against Mr. Bradley.” The trial court reasoned that the not apply to the Bradleys’ recorded conversation and thus the recording is denied the motion, concluding that “the marital communications privilege does recording from being introduc ed at trial. Following a hearing, the trial court 2019 iPad audio recording, arguing that the spousal privilege prevents the [¶4] In June 2023, t he defendant filed a motion to exclude the August 15,

stopped. attorney on August 15, p. 2 2019. It is unclear how the recording began or was conversation between the defendant and his wife at the office of the defendant’s particular, one of the recordings captured a substantial portion of a private conduct, had been erased, but the iPad contained several audio recordings. In phone, which allegedly contained the video of the defendant’s inappropriate defendant’s adopted children. A search of the devices revealed that the cell the defendant’s home and seized a cell phone and iPad belonging to one of the 2019. During that investigation, law enforcement executed a search warrant at Division for Children, Youth and Families and law enforcement in August pertaining to a prior complaint that was investigated by the New Hampshire [¶3] During discovery, the State provided the defense with information

one of the complainants. phone that contained a video recording of h im behaving inappropriately with RSA 6 p. 2 29:3 (2016), based upon allegations that he erased the contents of a cell RSA 641:6, I (2016), and conspiracy to commit falsifying physical evidence, see children. The defendant is also charged with falsifying physical evidence, see III (Supp. 2024). The complainants are two of the defendant’s adopted (Supp. 2024), and five counts of felonious sexual assault, see RSA 632 - A:3, II counts of aggravated felonious sexual assault (AFSA), see RSA 632 - A:2, I v. Hess Corp., 159 N.H. 256, 258 (2009). The defendant is charged with six statement and rely upon the record for additional facts as necessary. See State [¶2] We accept the facts as presented in the interlocutory appeal

Ev. 504, from applying to the audio recording. We affirm and remand. things, that RSA 6 p. 3 3 p. 2 2 - A:5 (20 1 6) precludes the spousal privilege, see N.H. R. 3

another person”). Therefore, the phrase “proceedings under this chapter” in guilty of the felony of [AFSA] if such person engages in sexual penetration with e.g., RSA 6 p. 3 32 - A:2, I (enumerating circumstances under which a “person is offenses that are not limited to those committed against one’s spouse. See, Offenses.” RSA chapter 632 - A (2016 & Supp. 2024) proscribes numerous chapter” refers is RSA chapter 632 - A, entitled “Sexual Assault and Related RSA 632 - A:5. T he chapter to which the phrase “proceedings under this that the spousal privilege is “inapplicable to proceedings under this chapter.” The language of RSA 632 - A:5 is unambiguous. T he second sentence provides spousal privilege is inapplicable to all proceedings under RSA chapter 632 - A. [¶9] Based upon the plain language of the statute, we conclude that the

6 p. 3 32 - A. We agree with the State. privilege is inapplicable to all sexual assault prosecutions under RSA chapter determined, based upon the plain language of RSA 632 - A:5, that the spousal not apply. The State, on the other hand, asserts that the trial court correctly b ecause the alleged victims in this case are not his spouse, RSA 632 - A:5 does which the alleged victim is the defendant’s spouse. Therefore, he contends, [¶8] The defendant argues that RSA 632 - A:5 applies only to cases in

lead to a violation of marital confidence.” N.H. R. Ev. 504. an other person” or “as to any matter which in the opinion of the Court would statement, conversation, letter or other communication made to the other or to 504 pre vents one spouse from “testify[ing] against the other as to any the spousal privilege set forth in New Hampshire Rule of Evidence 504. Rule communications between husband and wife” to which RSA 6 p. 3 32 - A:5 refers is proceedings under this chapter.” T he “privilege against the disclosure of disclosure of communications between husband and wife are inapplicable to victim is the actor’s legal spouse. Laws attaching a privilege against the Wife,” provides: “An actor commits a crime under this chapter even though the [¶7] RSA 632 - A:5, entitled “Spouse as Victim; Evidence of Husband and

justice. Id. of the Criminal Code according to the fair import of their terms and to promote advanced by the entire statutory scheme. Id. Further, we construe provisions of the legislature’s intent in enacting them and the policy sought to be statutory scheme and not in isolation. Id. Our goal is to apply statutes in light not see fit to include. Id. We interpret a statute in the context of the overall what the legislature might have said nor add language that the legislature did words used. Id. We interpret the statute as written and will neither consider first examine its language and ascribe the plain and ordinary meaning to the v. Carpentino, 166 N.H. 9, 1 p. 3 3 (2014). To determine a statute’s meaning, we [¶6] We review matters involving statutory interpretation de novo. State

statutory interpretation. spouse is the alleged victim. Resolving this issue requires that we engage in p. 4 4

spousal privilege for public policy reasons. W e affirm the trial court’s order trial court erred by concluding that the audio recording is not protected by the need not address the defendant’s remaining arguments regarding whether the husband and wife are inapplicable” in this case. Given our conclusion, we “[l] aws attaching a privilege against the disclosure of communications between offenses under RSA chapter 632 - A. Therefore, pursuant to RSA 632 - A:5, [¶13] There is no dispute in this case that the defendant is charged with

is the only sentence relevant here. portio n, “Evidence of Husband and Wife,” relates to the second sentence, which “Spouse as Victim,” relates to the first sent ence of the statute, and the second Kilgus, 125 N.H. 739, 7 p. 4 42 (1984). Moreover, t he first portion of the title, will not consider the title in determining the meaning of the statute. State v. interpretation, and where the statutory language is clear and unambiguous, we is the alleged victim, we disagree. The title of a statute is not conclusive of its indicates the legislature’s intent for the statute to apply only when the spouse [¶12] To the extent the defendant argues that the title of RSA 632 - A:5

statute’s legislative history. See State v. Beattie, 173 N.H. 716, 725 (2020). language of RSA 632 - A:5 is not ambiguous, we have no occasion to consult the in the context of a marriage.” However, in light of our conclusion that the effective prosecution of sexual violence occurring between spouses and ar ising maintains that “the legislative action was intended to allow for the more intended to apply in all prosecutions under RSA chapter 632 - A. The defendant assault perpetrated by one spouse against another spouse,” but was not history of the statute demonstrates that it “was intended to address sexual legislative history of RSA 632 - A:5. Specifically, he asserts that the legislative [¶11] The defendant bases his proposed interpretation upon the

of statutory interpretation. See Carpentino, 166 N.H. at 13. legislature did not see fit to include, contrary to our well - established principles defendant’s spouse would require us to add words to the statute that the sentence of RSA 632 - A:5 as applicable only to case s in which the victim is the RSA 632 - A:5. However, it chose not to do so, and interpreting the second the actor’s legal spouse,” as it did in the first sentence of RSA 632 - A:5. See language, making the spousal privilege inapplicable only when “the victim is [¶10] As the State observes, the legislature could have utilized narrower

defendant’s spouse. under RSA chapter 632 - A regardless of whether the alleged victim is the RSA 632 - A: p. 5 5 renders the spousal privilege inapplicable to all proceedings 5

concurred. M AC DONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,

consistent with this opinion. denying the defendant’s motion to exclude and remand for further proceedings