State of New Hampshire v. Justin Gunnip

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2021.

Thank you, your Honor. And good morning. May it please the court, Zachary Heim for the State of New Hampshire. I would request two minutes for rebuttal. Uh, this court should vacate the trial court's order, setting aside the defendant's conviction for falsifying physical evidence. Uh, this case presents a narrow question of statutory interpretation involving RSA 6 41 6 falsifying physical evidence. Uh, Mr. Gunna knowing his actions would trigger an investigation by the prison altered the video camera's intended view in the day room. So that's the thing. The intended view, That is the thing, your Honor, uh, the, the intended view of the, of the prison day room is, is really the thing at issue in this case. So if I go into a bank with a mask on and I'm obscuring my image, would that be, uh, chargeable offense under this statute? So I, I think, your Honor, that the, the operative issue there has more to do with the fact that you'd be obscuring your face, whereas the cameras in that bank, ostensibly this bank would have cameras, uh, would still record the goings on in that bank, But they do the same thing. They obscure the face, They obscure much more, though when the camera is blocked, it obscures not just the face of a potential suspect or potential defendant. It obscures the entire happenings of, of this space. And to your point, justice Donovan, uh, when you're covering the face, uh, the, the issue or the evidence that you're hiding is your face ostensibly, not everything else that's going on in the room. So if we were going to analyze a, a face covering case, we would be doing it under, under a slightly different, uh, framework in that we'd have to look more closely at cases in, in the realm of state versus Dodds, which is the, uh, case in which a defendant altered his feet, he damaged his feet, and this court upheld a conviction for falsifying physical evidence, finding that his unaltered feet, uh, could have, could have been evidence that would've been relevant in the trial and could have been, what If somebody commits an armed robbery and escapes in a car and they've taken the license plates off? Would that qualify under your reading of the statute Where the evidence, your Honor, is the, the license plate? Yeah, It would be evidence that could be used in the case. And I, it could potentially fall under this, under the, of the statute, your Honor. But I, I think that's fairly far field from where we are now. Where, and I think the reason that that this is more limited is because of the other elements of this statute. I mean, it's not simply that they made some alteration that could be evidence. They also have to have done. So, uh, knowing that investigation is, is imminent or, uh, about to be instituted, uh, and they would've had to do so with the intent of, of making it unavailable as evidence. So, so holding The plug on the camera or shutting down all the electricity to the facility would qualify? Uh, yes, your Honor. I think that would, I think that would be in the same realm as this case. So Why isn't this too vague and unmanageable from a Jewish prudential point? Why isn't it too vague and unmanageable? If I'm the prosecutor? I'm glad that this gentleman has obscured the view, because that ices my conspiracy conviction. Well, I would push back on that, your Honor. I, I don't think that it, it, I would be glad as the prosecutor that he's done this because what, what you're left with on the, you know, in the film or in the video is, you know, a blank spot, essentially. And while, you know, a good prosecutor can, can fill that with the inference of criminal activity, that inference, I think we can agree is not going to be as strong as actual evidence of the crime being committed. Maybe I watch too much tv, but to me that screams conviction. Well, do we need the video to decide this case because we don't have it? I I don't think you do need the video in this case, your Honor. This is, this is a, has been brought as an, a pure issue of law. I don't think there's any question as to whether Mr. Gunna performed this act that of holding up the newspaper in front of the camera. And I, I don't think that there's anything in the video that would, that would change how, how this analysis comes out. Uh, but to, to the, to the point of, um, of the, the view being the thing here, I I, I want to sort of walk back to that. 'cause I think it's important to, to kind of crystallize this a little bit. The cameras in prisons, cameras in banks, cameras in this courtroom are set up with a specific purpose. They're set up to capture a specific space, uh, and, and, and to do so from a specific angle. And they're set up as systems. They're, they're not, you know, kind of thrown up willy-nilly. And, oh, maybe we'll capture something maybe. But

As attorney Hausman points out in her brief, if somebody had just stood for the, the victim in this case and obscured the view of the victim, is that also a falsifying evidence charge? Well, I, again, your Honor, I think that that's getting too far afield in that it's not really clear necessarily what, what the evidence there would be that you would still have the, the video footage. And again, I, I wanna bring you back that the, the thing in this case is the video footage. It, it's not the, the body or the, you know, the, um, you know, the blood on the floor. It's, it's the video And we have the video footage, and it was introduced into evidence. Well, we have a blank spot. We, we don't have the actual footage of the scene as it was intended to be recorded. We have a blank spot. And I would, I would actually use as an analogy, this, this courtroom, the, the courtroom here is set up to record these oral arguments. It's, it, the feeds are designed to, to capture what's happening right now. And if somebody altered that in such a way that it no longer captured the oral arguments, it would be completely undermining, uh, what the whole purpose of setting up those cameras and those feeds is for. So I, I think we need to, but You're not an exhibit. I, I don't understand your analogy. Well, And, and I, I recognize that that there, you know, are the other limiting factors, your Honor, that, you know, it has to be, somebody would have to be doing it to prevent it from being available in a, in a case and something of that nature. But I just mean from, from sort of a, a higher, higher order looking of this, of this case that the actual thing that was altered was the camera's view. And that the camera's view is, is important. It's, it's not just that, oh, we have cameras and hopefully they record something. It's, we have cameras and they're set up to record very specific views. They're set up to record, in this case, the day room. W why is the reasoning the state v Callahan the Tennessee case wrong? Well, and I think, your honor, that that the state v Callahan case, uh, which was overruled on or related, but other grounds, uh, it, it cuts in a few ways. Problematically when tried, when viewed in, in light of our state's case law, uh, to my understanding, Tennessee doesn't have a case like state versus Dodds that would address sort of the putting a face mask on. And that was really what that court kind of hung its hat on was, well, this is kind of like putting a face mask on. And we don't think that that would be, um, falsifying physical evidence or tampering with physical evidence. But that court didn't have a case in our, as we do that says, when you alter something on your body that can potentially constitute falsifying physical evidence. So I, I think that in that way, Callahan is distinguishable, uh, because it doesn't really, uh, need to contend with some of the nuances that our state falsifying jurisprudence, uh, recognizes. Um, Can you help us with the standard of review here? Do we apply the normal sufficiency, uh, standard, which is whether any reasonable jury could find guilt in this case or not, or innocence in this case, or guilt, I guess. And then, uh, at what point does it meld into an interpretation of a question of law? Uh, so to the extent, and this kind of gets us back to justice, Donovan's earlier question about the video, uh, I think where we're talking about any, any factual determinations, then we are in a, the sufficiency realm. And isn't deference owed at that point to the trial court? Yes, your Honor. I deference is owed to the trial court. However, when we're talking about how the trial court actually, uh, analyzed this statute and how the trial court said that this statute doesn't apply to these circumstances, then that's when we're in the realm of statutory interpretation and, and where this court's review would be planned. Uh, but, but to that point, going, going back once again to this, this notion that the, the, the camera's view is, is really the thing here. And that, uh, Mr. Gunna did alter that when he, when he held that newspaper, is The view of the camera physical evidence. Yes, your Honor. And I I I'd like to make this distinction or Potential physical evidence, or does that matter? It mattered to the trial court. Yes, it did, your honor. The, the trial court made, made this argument that the only became physical evidence when it, when it hit the server, essentially, that prior to that it, it wasn't physical evidence. But that seems like, uh, a distinction without a difference. Candidly, the, the, the footage doesn't become a thing just because it's recorded a thing doesn't become a thing just because it's recorded, uh, in a sort of related sort of space. You know, an oral contract is a contract have to be written down. And in the same way this, this footage didn't become a thing just because it was recorded. It, it was already a thing. And I would, I would point the court towards similar technologies, like closed circuit televisions, for example, that don't necessarily record. Sometimes they're just displayed on a monitor and there's a person watching them. So under, under the defendant's construction, you know, those were, those views could never be things because they're never recorded. Uh, but, but those are plainly things. And, and so is, so is this it, it was a thing, well, the TVs TV's a thing, but the view, the fleeting view, how does that become a piece of evidence? Well, in, in the case, we're not recorded. If you have like, right. Uh, then it would become evidence through, through the testimony of whoever was watching it. So it's your position that if somebody obscured the view of that monitor and somebody was watching that monitor, that too would be falsifying evidence? I think it could be, your Honor. Yes. I, I mean obviously this is gonna be a very factually dependent analysis, but, but yes. I mean, if somebody obscured the view and concealed it potentially from, from the viewing, you know, security officer or whoever was, was trying to watch it. So, So if a police officer was watching Justice Hicks speed down the highway at 120 miles an hour, and I directed that Trooper's attention away from Justice Hicks, would that be falsifying Evidence? Well, I, I think that's a different situation. No, your Honor. 'cause, because then he has the ability to watch Justice Hicks speed down the road. You may have distracted him, but that, that hasn't prevented him from, you know, if, if he can avoid your distraction from continuing to watch Justice Six and gather evidence. The question here really is, is did the defendant's action prevent, um, you know, the, the gathering of evidence for this investigation that he knew was, was pending or was going to be instituted, but What if it completely obscured the officer's ability to judge my speed at all? Isn't that the destruction of a thing? Or is it not? Well, I, I'm not entirely sure how that would, how that would play out, your Honor, in, in terms of, uh, you know, the, the distraction situation. Again, that would be up to the, the officer to, to avoid the distraction and, and do his job nonetheless. Whereas what we're talking about here is a situation where the, the officers, or in this case, the prison, uh, security didn't have the opportunity to, you know, look away from the distraction and focus on the, the thing that was being altered. Uh, they, you know, the thing was being altered well outside of their control. I don't think anyone's condoning this behavior. But the question is whether it fits within this statute and whether it's a thing. Yes, your Honor, that's really What we have to decide. And I, I would point you to, to one, one point on that, which is that the, the legislature has made an intentionally very broad ambit for this statute. You know, the, the Monte penal code section upon which this is based, uh, had a, some sort of narrowing language said, uh, you know, record document or or other thing. The, the state legislature when they passed this law, chose to, to pull out those and just leave anything, you know, which is arguably a, a much broader, uh, purview for this statute. And I think there's a reason for that. I mean, evidence can take many forms as, as we've seen in this case, evidence. You know, it, it's not always clear what is evidence and what can be evidence. And so I Oh, and I see my light on. Finish your point. Uh, so I think you need a broad statute here, because the range of possible evidence is, is so broad. Thank You, counsel. Thank you, your Honor. You'll Have two minutes of rebuttal if you need it. Thank You, Ms. Hausman. May it please the court, Stephanie Hausman, on behalf of Justin Gunna the phrase altered, destroyed, or removed anything has a plain meaning and exists within a statutory context that makes clear that the legislature intended paragraph one of the falsifying physical evidence statute to criminalize only actions taken against an object or thing already in existence. First, the most common meaning of the word thing is an object. Something that has a physical existence. You mean, you mean temporally, your argument is temporal in this nature saying anything that doesn't yet exist at the time of its so-called destruction doesn't qualify under the statute. I do, because that's the state's argument. The state is saying that it could have been, the camera could have shown this had Mr. Gunna not held the newspaper up there. And I'm saying that the, the use of the word thing in this statute and in this context doesn't talk about potential things, things that have not yet come to pass. What's your position that that thing has to be a physical item? Yes. But isn't religion a thing? Isn't an expression a thing, even though it's not a physical item? Religions and expressions do meet a variant of the definition of thing, but not the way thing is used in this statute. Um, and the reason for that is because of the entire phrase altered, destroyed, or removed anything. Those Actis Reyes verbs can only be done against something or to something that is already in physical existence. Do you agree with the state that we don't need the video to decide this case? Well, I, I, I find it interesting that the state is making a factual assertion about the video, which is that it obscured, it blocked the entire view. And we don't know that because the video isn't part of the evidence in this, on this appeal. Um, so one can only alter meaning change from one state to another, a thing that already exists. And the same is true for the other verbs used in this phrase, destroy or remove, but Altering the camera itself. The camera's a thing, The camera is a thing, but there was no evidence that the camera was altered or even touched by Mr. Gunner, Right? It have just simply shifted the, the lens into a different part of the room that would be altering a thing. And that would be chargeable under the statute. It very well may be because it would, it would have an object, something that actually exists, which is the camera. So then you agree that the camera's intended view is a thing. I don't agree that the camera's intended view is a thing. I don't know how a a camera can intend a thing or anything. Um, that's one problem that I stumble over. But another is that, that discusses the potentiality of a thing being created, and that is the footage. Um, here, as Justice Hicks pointed out, there was footage, and that footage was compelling evidence that caused the jury to convict Mr. Gun up of being a conspirator in this assault by prisoner. Um, and so the, the, the footage that existed had evidentiary value was used by the state as evidence, and, um, was certainly used by the jury in reaching their conclusion on that charge. So the plain meaning of the phrase altered, removed, or destroyed anything, uh, makes clear that the thing must be in actual existence. But that reading is supported when you expand your view and look at the phrase in statutory context. So paragraph two of the falsifying physical evidence statute make criminalizes actions taken in the creation of a thing. That's a meaning that the state is trying to import into paragraph one, but no such language is found in paragraph one. And then in the preamble of the falsifying physical evidence statute, the legislature uses the phrase about to be instituted. And that tells us that the legislature knows how to articulate a concept about something that is anticipated, a potentiality, when that's what they intend. But again, no such language is found in paragraph one of the falsifying physical evidence statute. And then we can look at the title of the statute falsifying. So he could Have been charged this time, it could have been charged under paragraph two. I don't know if he could have been charged under paragraph two, because I, I don't know that, I think that stat that, um, paragraph talks about making, um, I I can't remember the other verbs. Yeah. Make, makes presents or uses. Yes, yes. Um, so I think maybe under the makes, um, variant, um, but I think that would be, I, I don't know the answer to that question. Um, but the statute's title, falsifying physical evidence makes clear that the legislature intends the word thing to be synonymous with physical evidence. So something that has a physical existence, um, at the time. And finally, other statutes in this chapter also use the word thing to signify an object that is currently in physical existence. Every layer of this onion shows that the legislature intended paragraph one of the falsifying physical evidence statute to be aimed at actions taken against a thing that is already in existence. Uh, Mr. Hingham has, uh, tried to distinguish the Tennessee case. Uh, did he succeed? Um, my point is that the only case found by either party outside of New Hampshire that addresses a similar cir factual circumstance and a similar statute comes to the same conclusion that we are urging here. Um, and I don't think that subsequent analysis of Tennessee law has any effect on the, the holding that's relevant here in the Callahan opinion. And then when looking at this court's case law, every single published case this court has decided about this provision of the falsifying physical evidence statute supports our view that, um, it has to deal with a thing or an object in existence. Because is the Problem here that the state charged the defendant with the wrong crime? Is there another chapter, another vision that, that he violated by virtue of this conduct? I think closest is 6 4 1, 6 2, um, makes an something, something anything. Um, so that might have been chargeable here, but I think the legislature is also making a choice. Many, many criminals when they commit their crimes, um, do it in a way where they try to prevent evidence being created. The bank robber with the ski mask, uh, a burglar with gloves preventing, um, fingerprints. And if the legislature wants to enhance penalties for actions taken that are inherent to very many crimes, they should be very clear about that. Um, this case or this court has, has looked at the sort of merger concept in criminal restraint type charges, where this court acknowledged, you know, there's gonna be a lot of assaultive sort of crimes that involve a type of restraint, but we're not gonna see that as two crimes happening at once, unless we have clear guidance from the legislature that we should do so. And I think that's a similar situation here, that if the legislature intended the manner in which people commit many, many crimes to itself be a separate charge, they should very clearly delineate that. So for all those reasons, we ask that this court affirm the trial court's ruling. Thank you, counsel. Thank you, Mr. Hyam. Thank You, your Honor. Uh, if the court has no further questions, I'll waive my time. Thank you very much, both, counsel. Thank you. Case submitted.