2025 N.H. 17, State v. Bradley

brief and orally), for the defendant. Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the

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. 17 Case No. 2024 - 0054 Merrimack

THE SUPREME COURT OF NEW HAMPSHIRE

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

was very frustrated that you think that way about him.” Mr. Bradley “was very upset. He didn’t mean it. He just erased it because he been erased. She told the interviewer that the defendant explained to her that that in August p. 2 2019, she discovered that the contents of her cell phone had disappointed to hear that you think this way about him.” The child also stated talk to your dad about this, and I’ll ask him about it. I think he’ll be very defendant to discuss Mr. Bradley’s conduct, the defendant said, “I’m going to iPad. The child reported that when she brought the cell phone to the conduct on her cell phone and an audio recording of the interaction on her home. She told the interviewer that she recorded a video of Mr. Bradley’s witnessed Mr. Bradley behaving inappropriately with another child in the child who se devices were seized by law enforcement disclosed that in 2019, she [¶4] During an October 2021 interview at the Child Advocacy Center, the

recording do not indicate how it was initiated or stopped. private conversation was recorded on the iPad. However, the contents of the allow the Bradleys to speak in private. A substantial portion of the Bradleys’ that “if you talk . . . in the marital context, it’s privileged,” and left the room to turn her cell phone “completely off,” informed the defendant and Mr. Bradley defendant arrived at the attorney’s office, the attorney asked that the defendant meeting between the defendant, Mr. Bradley and his attorney. When the is approximately 90 minutes in length, documents, among other things, a between the defendant and Mr. Bradley from August 15. The recording, which been erased but that the iPad contained a n audio recording of a conversation [¶3] A search of the devices revealed that t he cell phone’s contents had

seized the second child’s cell phone and iPad. While executing a search warrant at the Bradleys’ home, law enforcement recording of Mr. Bradley engaging in inappropriate behavior with a third chil d. check, one of the children reported that a second child had shown her a video children, four adopted children, and two foster children. During a safety time, the defendant and Mr. Bradley lived with one of the defendant’s biological Division for Children, Youth and Familie s regarding the Bradley family. At the p. 2 2019, law enforcement began investigating a referral from the New Hampshire necessary. See State v. Hess Corp., 159 N.H. 256, 258 (2009). In August interlocutory appeal statement and rely upon the record for additional facts as [¶2] We accept the statement of the case and facts as presented in the

Accordingly, we affirm and remand. but it does not mandate that the communications themselves be excluded. precludes a spouse’s testimon y about confidential marital communications, introduced at trial. W e conclude that the spousal privilege, N.H. R. Ev. 504, Hampshire Rule of Evidence 504 does not bar the audio recording from being p. 3 3

testify for and against each other in all cases, just like persons in against each other. . .. They are to be allowed or compelled to is to make the husband and wife competent witnesses for or [I] t appears that the present policy of our legislation on this subject

confidential marital communications: should be permitted to testify against each other, except with regard to from the common law rule and explained the modern policy that spouses Clements v. Mar st on, 52 N.H. p. 3 31, 36 (1872). In Clements, this court departed dissensions and strife between them, or that might encourage perjury.” “it was not expedient to place husband and wife in a position that might lead to not allowed to testify for or against their husbands” based upon the belief that communications between spouses are privileged. At common law, “wives were [¶9] New Hampshire courts have long recognized that certain confidential

other types of evidence. We agree with the State. 504 applies only to prevent the introduction of testimony but does not apply to The State asserts, among other arguments, that the spousal privilege in Rule audio recording of the conversation between herself and Mr. Bradley at trial. determining that the spousal privilege does not preclude the introduction of the [¶8] The defendant argues on appeal that the trial court erred in

prossed the November 2022 charges. This interlocutory appeal followed. RSA 641:5 (20 1 6). After obtaining the June 202 p. 3 3 indictments, the State nolle III (20 1 6), and three counts of tampering with witnesses and informants, see accomplice to falsifying physical evidence, see RSA 641:6, I (2016); RSA 626:8, [¶7] In June 2023, the defendant was further indicted on on e count of

it.” that the rule “does not bar the introduction of the recording or testimony a bout communications New Hampshire Rule of Evidence 504 seeks to protect” and Bradleys’ conversation was, for public policy reasons, “not the type of and thus the recording is admissible at trial.” The trial court reasoned that the communications privilege does not apply to the Bradleys’ recorded conversation defendant’s motion. The trial court concluded that “the marital [¶6] F ollowing a hearing, the trial court issued an order denying the

would violate their marital privilege.” testimony about the communication made between [herself and Mr. Bradley] privilege applies to the contents of the recorded conversation” and that “any her conversation with Mr. Bradley, arguing, among other things, that “marital evidence. Thereafter, she moved to exclude the August 15 audio recording of falsifying physical evidence and conspiracy to commit falsifying physical [¶5] In November 2022, the defendant was charged with accomplice to p. 4 4

rule is otherwise substantially the same. “Husband and Wife Privilege” to “Spousal Privilege” in 2023. See N.H. R. Ev. 50 p. 4 4. The text of the The name of the privilege found in New Hampshire Rule of Evidence 504 was changed from 1

court.” State v. Pelletier, 1 p. 4 49 N.H. 243, 247 (2003). However, w e review the applies is “intensely factual and rests with in the sound discretion of the trial [¶12] Generally, the determination of whether the spousal privilege

preclude the introduction of the audio recording itself. conversation at trial. Rather, it is whether the spousal privilege applies to privilege precludes either of the Bradleys from testifying about the ir recorded [¶11] The question in this case is not whether the Rule 50 p. 4 4 spousal

N.H. R. Ev. 50 p. 4 4.

confidence. the opinion of the Court would lead to a violation of marital either be allowed in any case to testify as to any matter which in communication made to the other or to another person, nor shall against the other as to any statement, conversation, let ter or other otherwise specifically provided, neither shall be allowed to testify each other in all cases, civil and criminal, except that unless Individuals who are married are competent witnesses for or against

Rule 50 p. 4 4 provides: identical in all material respects to the statute construed in Clements.” Id. 1 Wilkinson, 136 N.H. 170, 178 (1992). “New Hampshire Rule of Evidence 504 is than 150 years to overturn Clements, but it has not done so. See State v. remained essentially unaltered. T he New Hampshire legislature has had more [¶10] Our pronouncement of the spousal privilege in Clements has

Id. at 38.

only so but communicated in strict marital confidence. excluded except something that is strictly confidential, and not be the rule now; and, in th at view of the case, nothing should be where a stranger would have been a competent witness, seems to Allowing the wife to testify for or against her husband, in any case

. . ..

circumstances. what would be communicated to any other person under the sam e to the other, simply and specially as husband or wife, and not violation of marital confidence must be something confided by one no way related to each other, with this single exception; and this p. 5 5

to prevent the introduction of evidence other than testimony.” Here, the trial background of Rule p. 5 504 demonstrate that the spousal privilege “does not apply [¶16] We agree with the State that the plain language and historical

testimony. privilege to exclude marital communications separate from a spouse’s at 17 p. 5 5 - 78. We do not read Wilkinson as expanding the Rule 504 spousal testimony at trial based upon the finding that the privilege was waived. See id. that case was whether the trial court erred by admitting the defendant’s wife’s a spouse’s testimony.” Wilkinson, 136 N.H. at 177 - 78. However, the issue in that a court must find “a violation of marital confidence before [it] can exclude protecting marital confidences” and that Clements stands for the proposition [¶15] In Wilkinson, we explained that the spousal privilege “is a privilege

persuaded. as well as to all evidence regarding those commu nications. We are not communications the disclosure of which would violate the “marital confidence” privilege.” In her view, Rule p. 5 504 should be broadly construed, applying to in Clements, mirrored by Rule 504, is a “vestige of the historical origin of this never “taken the terms of the rule literally.” She argues that the language used spousal privilege applies only to testimony, she maintains that this court has [¶14] Although the defendant concedes that, read literally, the Rule 504

language of the rule. See id. communications would expand the privilege’s scope and add words to the plain the introduction of all evidence relating to the confidential marital communication s by other means. See id. To interpret Rule p. 5 504 as prohibiting communications. T he rule does not preclude the introduction of marital scope to preclude only testimony by one spouse about confidential marital Rule 504’s repeated use of the words “to testify” nar rows the spousal privilege’s lead to a violation of marital confidence.” N.H. R. Ev. 504 (emphas e s added). allowed . . . to testify as to any matter which in the opinion of the Court would communication made to the other or to another person, nor shall either be against the other as to any statement, conversation, letter or other testimony at trial”). Rule 504 plainly states that neither spouse may “testify Kiew e rt, 135 N.H. 338, 344 (1992) (spousal privilege “only operates to exclude only testimony about confidential marital communications. See State v. [¶13] By its plain language, the spousal privilege in Rule 504 precludes

of a rule. Id. possible. Paul, 17 p. 6 6 N.H. at 26 p. 5 5. We will not add words to the plain language meaning of the words used and ascribe those meanings to them where interpreting a rule of evidence or a statute, we will first look to the plain strictly construed.” State v. Will i s, 165 N.H. 206, 212 (2013). When N.H. 262, 265 (2023). “I t is well settled that statutory privileges should be trial court’s interpretation of the rules of evidence de novo. State v. Paul, 176 6

M AC DONALD, C.J., and BASSET T and COUNTWAY, JJ., concurred.

August 15 audio recording and remand. affirm the trial court’s order denying the defendant’s motion to exclude the parties’ other arguments when holding on one issue was dispositive). We conduct. See Antosz v. Allain, 1 p. 6 63 N.H. 298, 302 (2012) (declining to address Bradleys’ conversation a llegedly constitutes the discussion of ongoing crim inal an exception to the spousal privilege for public policy reasons or because the State’s remaining arguments regarding whether the audio recording falls within [¶18] Based upon the foregoing conclusion, we need not address the

prospective ly only. the scope of the privilege. We therefore decline to make our decision apply upon the plain language of Rule 504, does not, as the defendant claims, alter privilege were applied retroactively.” However, our decision, which is based that would render it fundamentally unfair if judicial changes in th e scope of a She contends that “claims of privilege invoke a very weighty reliance interest not fall under the marital privilege, it should make its ruling prospective only.” th at “if this Court agree[s] that the circumstances present in this case should admission did not violate R.C. 29 45.42.”). Nonetheless, the defend ant argues not introduced by way of [the defendant’s wife’s] testimony, we hold that their N.E.2d 104, 125, 127 (Ohio 2009) (“Because the jailhouse conversations were implicate § 54 p. 6 6.260 (prohibiting spouse from ‘testifying’).”); State v. Perez, 920 offered as Wife’s testimony, and therefore was not testimonial, and did not Livingston, 665 S.W.3d 363, 371 (Mo. Ct. App. 2023) (“[T] he recording was not that have interpreted analogous spousal privilege rule s. See, e.g., State v. [¶17] Our conclusion is supported by the reasoning of other state courts

admissible at trial against Ms. Bradley.” apply to the Bradleys’ recorded conversation and thus the recording is court correctly determined that “the marital communications privilege does not