John Doe v. Salem Police Department et al.

The issue presented:

Is the Appellant’s conduct “potentially exculpatory” such that placement of his name on the Exculpatory Evidence Schedule (“EES”) is required under RSA 105:13-d?

Because Appellant appeals the trial court’s grant of a motion to dismiss, for the purposes of this appeal only, the facts in the “Petition for Declaratory Judgment on RSA 105:13-d and Request for Permanent Injunctive and Other Relief’ and Appellant’s Brief are accepted as true.

Appellant was hired as a police officer in ae and was employed as an officer at all relevant times herein. See gen. PB! 41-45.

On or about EG at approximately 12:25 a.m., a uniformed, on-duty, police officer observed the Appellant traveling 62-mph in a 30-mph zone. PB 42; PA 23. The officer attempted to stop Appellant, but Appellant refused to pull over and continued traveling at a high rate of speed, resulting in a high-speed pursuit. PB 42; PA 23. The uniformed officer who first observed the speeding Appellant contacted surrounding officers to aid in the pursuit. PB 42. A second uniformed, on-duty, officer attempted to stop Appellant with stop sticks, but Appellant evaded them and continued the pursuit. PB 42; PA 23.

At some point thereafter, Appellant pulled into a parking lot and stopped, ending the high-speed pursuit, which lasted for approximately 1.9 miles. PB 42; PA 29. Officers on scene advanced on Appellant’s vehicle with their weapons drawn. PB 42. It was at this point that the officers learned that Appellant was the driver of the vehicle as Appellant exited his vehicle “with his hands up laughing.” Id. Appellant believed the entire incident to be a “big joke”, a part of ongoing pranks within the police department. /d.; PA 23, 28-29,

1 “DA” refers to Appellant’s Appendix. “PB” refers to Appellant’s Brief.

An internal investigation into the midnight pursuit was commenced by a lieutenant at Appellant’s police department. PB 42; PA 23-29. As part of the seven-day investigation, Appellant was interviewed, stating, inter alia: “I messed up, it’s all on me, I took it too far.” PA 28, The lieutenant concluded his investigation and found that Appellant had “acted recklessly and created an unnecessary dangerous situation for all parties involved.” PA 28. The lieutenant additionally found that Appellant had “violated several New Hampshire motor vehicle laws” and the police department’s code of conduct, which constituted “Conduct Unbecoming An Employee.” PB at 42-43; PA 29.

The above allegations against Appellant were sustained and further disciplinary actions were recommended against Appellant. PB 43; PA 24, 29. As part of the disciplinary process, Appellant agreed to a “negotiated disposition” with the town after discussion with his union. PB 43; PA 31. The disposition provided, in part, that “1. [Appellant] will take full responsibility for temporary lack of judgment and look forward to put this matter behind him. 2. [Appellant], through the Union, would agree to waive any/all hearings and time constraints and the grievance process afforded under the CBA.” PB 43, PA 31. Appellant was additionally suspended for one day, and the Town agreed to bring no further actions against Appellant relating to thegiggiursuit. PB 43; PA 31.

In oe. third-party vendor, conducted an internal audit into the police department. PB 43. As part of the audit, the police department, . upon directive of the Town’s manager, released unredacted internal

investigation reports to Kroll for review, including Appellant’s. PB 43.

In or around a police department’s Administrative

Chief reviewed the Appellant’s internal investigation into the RE usuit. PB 43-44; see PA 41-42, Consequently, the chief informed Appellant that his name should be included on the EES, and invited him and his counsel to discuss the issue with the chief and the Town. PB 44; PA 41. The meeting went forth and Appellant’s counsel argued against Appellant’s placement on the EES. PB 44; see PA 70.

After the meeting, the administrative chief submitted Appellant’s name for inclusion on the EES, deciding that the lMonduct required as such. PB 44; PA 32-33, PA 43. The chief separately sent a letter to both the Attorney General’s Office (AGO) and Appellant outlining the conduct and his findings. PB 44; see PA 32, 42.

On or abou MG the Rockingham County Superior Court issued a sealed order in a criminal case in which Appellant was listed as a potential witness, in which the court stated that “the contents of [the Plaintiff's] personnel file does not contain Brady/Giglio material and therefor shall not be subject to disclosure in this or any future litigation.” PA 34.

In SER © AGO charged Appellant with one count of Reckless Conduct with a Deadly Weapon and one count of Disobeying a Police Officer stemming from the 2012 incident. PB 44. Appellant pled guilty to driving 62-mph in a 30-mph zone, PB 45; PA 38-40, and the

criminal charges were ultimately nolle prossed.*

On June 1, 2022, Appellant’s Reckless Conduct charge and the Disobeying an Officer charge from anges... annulled. PA 172-175. The court stated that “the record of the charge and disposition of dismissal, acquittal, or nolle prosequi in the above referenced matter, together with any record of arrest or charge therein, is hereby annulled. The applicant has shown that issuance of this order is warranted under the

statute.” Id.

On or about October 12, 2021, Appellant filed a “Petition for Declaratory Judgment on RSA 105:13-d and Request for Permanent Injunctive and Other Relief’ with attachments. PA 6-73. Through his petition, Appellant argued that Rockingham County Superior Court had already ruled that the contents of Appellant’s personnel file did not contain Brady/Giglio material and must not be used in future litigation. PA 15. Appellant further argued that because the allegations against Appellant were not proven and the lesser conviction of speeding was entered as a disposition, there is no longer a basis for maintaining Appellant’s name on the EES. PA 15. Additionally, he argued that the incident that caused Appellant’s placement on the list had been found not to be of the magnitude it was originally thought to be back when he was first added to the list. PA 15, Lastly, Appellant argued that he did not receive due process because while a hearing was offered relating to the EES placement, it lacked substance because the chief of police was neither an attorney nor a judge and lacked the ability to determine what constituted potentially exculpatory evidence, PA 20. For all these reasons, Appellant requested that his name be removed from the EES.

In response, the AGO filed a Motion to Dismiss. PA 79-93. The AGO, citing to Appellant’s complaint and the documents appended thereto, stated that Appellant had admitted to passing a fully marked police cruiser going double the speed limit, deliberately failed to pull over when the officer in the cruiser activated his blue lights and attempted to stop

Appellant, evaded another uniformed officer who had deployed spike strips, and minimized the high-speed multi-mile pursuit as nothing more than a joke or a prank. PA 88. Such admitted conduct has the potential to be exculpatory given the particular facts and circumstances of a criminal case. PA 88. The AGO further argued that because of the need for a case- by-case determination, and the explicit language of RSA 105:13-d, Appellant’s name must be included on the EES to alert prosecutors of the potentially exculpatory evidence that is contained in Appellant’s personnel information. PA 86-89.

The AGO also argued that Appellant had not alleged a viable due process claim. The AGO noted that: the police department had conducted an internal investigation of the misconduct; at the conclusion of the investigation, the police department entered disciplinary findings against him; Appellant then entered into a negotiated disposition with the police department and the union, taking full responsibility for the misconduct; and Appellant also agreed to waive the grievance process otherwise available to him under the collective-bargaining agreement. PA 90. The AGO also discussed the additional round of process Appellant received when his name was recommended by the chief for inclusion on the EES, PA 90.

On May 3, 2022, the Rockingham County Superior Court (Ruoff, J.) issued an order granting the AGO’s Motion to Dismiss. PB 41-66. The trial court reasoned that Appellant’s 2012 conduct was potentially exculpatory, observing that the conduct was a dereliction of his duty, and the fact that Appellant believed the misconduct to be “a big joke” indicated a conscious disregard for law and order. PB 55-58. The trial court also dismissed Appellant’s due process claim. PB 62-64.

Appellant timely moved to reconsider, which the trial court denied. PA 156-184. The present appeal followed.

Prosecutors have a well-established constitutional obligation to disclose exculpatory material to criminal defendants. This obligation goes beyond what may be admissible at trial and extends to any information that may aid a criminal defendant in the preparation or presentation of their case. To meet this broad disclosure requirement, the EES was created as a tool to help prosecutors identify law enforcement officers that have potentially exculpatory evidence in their personnel information so that such information can be identified, reviewed, and appropriately disclosed to criminal defendants in cases where the officer may testify. The Legislature codified the Department of Justice’s authority to maintain an EES in RSA 105:13-d.

Appellant has a sustained finding of Conduct Unbecoming an Officer stemming from an event where he intentionally led police on a high-speed chase involving spike strips and a felony stop, which Appellant construed to be a “big joke.” Such intentional conduct speaks to Appellant’s general character and has the potential to be exculpatory in a future criminal case where Appellant’s disciplinary record, character, or judgment is called into question. Because Appellant’s conduct constitutes potentially exculpatory evidence, and evidence of that conduct is contained in the officer’s “personnel information, ” RSA 105:13-d requires the Department of Justice to include an officer’s name on the EES.

Decisional law is clear that prosecutors have broad disclosure requirements and should err on the side of caution in order to ensure that

criminal defendants receive all exculpatory evidence. While the admissibility of the evidence at trial, the age of the officer’s misconduct, and/or prior guidance from the AGO may be relevant in assessing in a particular criminal case whether the personnel information at issue is actually exculpatory, those considerations do not bear on whether the subject information is “potentially exculpatory” within the meaning of RSA 105:13-d. As detailed below, Appellant’s misconduct is potentially exculpatory which makes it appropriate under RSA 105:13-d to include his name on the EES.

Appellant’s due process claim must likewise fail as (1) POLICE DEPARTMENT conducted an internal investigation of Appellant’ sia misconduct and entered disciplinary findings against him; (2) Appellant entered into a negotiated disposition with POLICE DEPARTMENT through his union; (3) Appellant took full responsibility for his conduct as part of that negotiated disposition; and (4) Appellant agreed, through his union, to waive the grievance process otherwise available to him under the collective-bargaining agreement. Thus, any suggestion that Appellant did not receive adequate process with respect to his underlying conduct is

misplaced.

In reviewing a trial court’s ruling on a motion to dismiss, the Court must consider whether the allegations contained in the pleadings are reasonably susceptible of a construction that would permit recovery. Pesaturo v. Kinne, 161 N.H. 550, 552 (2011). The Court assumes the plaintiffs allegations to be true and construes all inferences in the light most favorable to the plaintiff. Id. However, the Court need not assume the truth of statements in the complaint that are merely conclusions of law. See Tessier v. Rockefeller, 162 N.H. 324, 330 (2011) (citation and quotation omitted). The Court then engages in a threshold inquiry that tests the facts in the petition against the applicable law, and if the allegations constitute a basis for legal relief, the Court must hold that it was improper to grant the motion to dismiss. Jd. The Court “may also consider documents attached to the plaintiff's pleadings, documents the authenticity of which are not disputed by the parties, official public records, or documents sufficiently referred to in the [complaint].” Ojo v. Lorenzo, 164 N.H. 717, 721 (2013) (quoting, in part, Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010)). | |

RSA 105:13-d, I, states, in pertinent part, that, “The exculpatory evidence schedule shall consist of a list of all current or former law enforcement officers whose personal information contain potentially exculpatory evidence.” (emphasis added). Thus, in light of the due process question to be addressed below, the key issue in this case is whether Appellant’s conduct, taken as true based on the allegations of his complaint and the documents appended thereto, constitutes “potentially exculpatory evidence.”

Both the United States Supreme Court and this Court have stated that prosecutors have a constitutional obligation to disclose exculpatory evidence to criminal defendants. See e.g. Brady v. Maryland, 373 U.S. 83 (1963); Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777 (2015). Indeed, “the State is obligated to disclose information favorable to the defendant that is material to either guilt or punishment.” Duchesne, 167 N.H. at 777. “The duty to disclose encompasses both exculpatory information and information that may be used to impeach the State’s witnesses and applies whether or not the defendant requests the information.” Id.

“The duty of disclosure falls on the prosecution and is not satisfied merely because the particular prosecutor assigned to a case is unaware of the existence of exculpatory information, ” rather, the court “impute[s] knowledge among the prosecutors in the same office” and holds them

“responsible for at least the information possessed by certain government agencies, such as police departments or other regulatory authorities, that are involved in the matter that gives rise to the prosecution.” Jd. (internal citations omitted). “This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Jd. (quoting Kyles v. Whitely, 514 U.S. 419, 437 (1995) (Souter, J.).

Impeachment evidence similarly constitutes “evidence favorable to the accused” because “if disclosed and used effectively, it may make the difference between conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985); see also Napue v. Illinois, 360 U.S. 264, 269 (1959) (“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.”).

Whether or not particular information is exculpatory turns on the unique facts and circumstances of each criminal case. See, e.g., Gantert v. City of Rochester, 168 N.H. 640, 650 (2016) (concluding that the plaintiff's conduct was “enough of a reflection on the plaintiff's general credibility to trigger at least a prosecutor’s obligation to disclose such information to a | court for in camera review in a case in which the plaintiff will appear as a state witness’); id. at 650 n. 3 (noting that three different courts had reviewed the plaintiff's personnel file in camera and had “ordered that parts of the file be disclosed to the prosecutor and the defense attorney”). Prosecutors are invariably “forced to make judgment calls about what [will]

count as favorable evidence, owing to the very fact that the character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record.” Kyles, 514 U.S. at 439 (Souter, J.).

In order to alert prosecutors that a witness has potentially exculpatory information in his or her personnel information, the EES, and its predecessor lists, were developed as a tool so that prosecutors could efficiently identify, assess, and disclose such information to the defense, if it is exculpatory in a given case, and not fail in their constitutional “duty to learn of any favorable evidence.” Duchesne, 167 N.H. at 778. Following State v. Laurie, individual law enforcement authorities began developing so-called “Laurie Lists” to share information about officer conduct with prosecutors to help them fulfill this constitutionally imposed duty to learn of favorable evidence. N.H. Ctr. for Public Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 653 (2020).

In 2004, the New Hampshire Attorney General issued a guidance memorandum making county attorneys responsible for compiling a confidential, comprehensive list of officers for each county who were subject to possible Laurie disclosure. Id. at 654-55. In 2017, the New Hampshire Attorney General updated this guidance and created the Statewide EES which became maintained by the New Hampshire Department of Justice. Jd. at 654. Until recently, the EES was maintained confidentially, and the information therein was only disclosed under certain circumstances to criminal defendants. /d. at 655. Following this Court’s decision in New Hampshire Center for Public Interest Journalism, the legislature enacted RSA 105:13-d, effective September 24, 2021, which provides that the EES shall be a public record and additionally provides a

mechanism for officers to challenge their placement on the list.

In Gantert, this Court observed that “[t]he government has a great interest in placing on the ‘Laurie list’ officers whose confidential personnel files may contain exculpatory information.” 168 N.H. at 649 (emphasis added). This observation reflects the U.S. Supreme Court’s admonition that “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” United States v. Agurs, 427 U.S. 97, 108 (1976). As the U.S. Supreme Court later observed, “[tJhis is as it should be, ” as “[s]uch disclosure will serve to justify trust in the prosecutor as the representative of a sovereignty whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Kyles, 514 US. at 439 (Souter, J.) (cleaned up). This Court, too, has recognized that “[w]hen there is a substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful.” State v. Dukette, 113 N.H. 472, 477 (1973) (citations and quotation marks omitted).

The legislature has enacted statutes to facilitate disclosure as contemplated in these precedents. In RSA 105:13-b, I, the legislature set forth a process whereby a court may be called on to conduct an in camera review in the event a prosecutor is unable to determine whether a police officer’s personnel file contains exculpatory evidence.? More pertinent to this appeal, RSA 105:13-d provides that the EES “shai/ consist of a list of

all current or former law enforcement officers whose personal information contain[s] potentially exculpatory evidence.” RSA 105:13-d, I (emphases added).

To determine whether conduct is “potentially exculpatory, ” this Court must engage in statutory interpretation of what that phrase means. “When engaging in statutory interpretation, [this Court] discern[s] the intent of the legislature as expressed in the words of the statute considered as a whole.” In re Petition of N.H. (State v. Fuchs), 174 N.H. 785, 790 (2022) (citation omitted). The Court first looks “to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” Jd. (citation omitted). The Court “interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Jd. (citation omitted). The Court “construe[s] all parts of the statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Jd. (citation omitted). The Court does not “consider words and phrases in isolation, but rather within the context of the statute as a whole, which enables [the Court] to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” /d. (citation omitted). Importantly, “[t]he legislature’s choice of language is deemed to be meaningful.” O'Brien v. N.H. Democratic Party, 166 N.H. 138, 143 (2014) (cleaned up).

The legislature has not defined the phrase “potentially exculpatory” as used in RSA 105:13-d, I. When a statute does not define a term, this Court will “construe the term according to its common and approved usage, ” and may turn to dictionary definitions as guidance. Kassotis v. Town of Fitzwilliam, 166 N.H. 648, 651 (2014). As discussed above, information is “exculpatory” when it is “favorable to the defendant” and is “material to either guilt or punishment.” Duchesne, 167 N.H. at 777. “Favorable evidence is that which is admissible, likely to lead to the discovery of admissible evidence, or otherwise relevant to the preparation or presentation of the defense.” State v. Shepherd, 159 N.H. 163, 170 (2009) (citations and quotation marks omitted). “Favorable evidence may include impeachment evidence.” Jd. The word “potentially” is an adverb meaning “in a potential or possible state or condition with a possibility or capacity as becoming actual.” Webster’s Third New International Dictionary 1775 (unabridged ed. 2002). Thus, evidence is “potentially exculpatory” when there is a possibility that it will be “admissible, likely to lead to the discovery of admissible evidence, or otherwise relevant to the preparation or presentation of the defense” and “material to either guilt of punishment.”

The possibility that information will be exculpatory is necessarily informed by the context in which RSA 105:13-d, {, applies and the purpose that it serves. In re Petition of N.H. (State v. Fuchs), 174 N.H. at 790. RSA 105:13-d codifies procedures around the EES, which, as discussed, is a tool used by prosecutors to ensure that they are meeting their constitutional obligations under Brady, Laurie, and related cases. Cf Duchesne, 167 N.H. at 778 (discussing former Laurie lists). Prosecutors dispense those obligations by making “judgment calls about what [will] count as favorable evidence, owing to the very fact that the character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record.” Kyles, 514 U.S. at 439. This is because “[e]vidence is

never exculpatory per se, or in the abstract’; rather, “evidence is > ? exculpatory only by reference to the issues placed in dispute by substantive criminal law definitions of the offenses charged and any affirmative defenses asserted.” United States v. La Rouche Campaign, 695 F.Supp. 1290, 1296 (D. Mass. 1988); see also Boyd v. United States, 908 A.2d 39, 61 (D.C. 2006) (“In light of [a] defendant’s Fifth Amendment right to due process, as well as his Sixth Amendment right to effective assistance of counsel, [a] prosecutor must make the materiality determination, as of the time when the decision is made, with the view to the need of defense counsel to explore a range of alternatives in developing and shaping a case.”’).

Accordingly, evidence is “potentially exculpatory” within the meaning of RSA 105:13-d if there is any possibility that it will be favorable to the defense and material to guilt or punishment in any future criminal case. To declare that evidence is not “potentially exculpatory, ” then, a court must be able to declare as a matter of law that it is not possible that a prosecutor would ever be required to disclose the evidence to the defense in any future case. The AGO does not foreclose the possibility that there are instances of innocuous conduct for which a court could enter such a declaration. As discussed in the next section, however, Appellant’s “big joke” of leading police on a multi-mile high-speed pursuit is not one of

them.

IH.

Appellant has not attempted to refute that he: (1) intentionally traveled at twice the speed limit with two passengers while passing a fully marked police cruiser, (2) deliberately failed to pull over when the officer in said cruiser activated its blue lights and attempted to pull him over, (3) continued the high-speed pursuit for almost two miles, (4) evaded another uniformed officer who deployed spike strips, (5) while believing the entire ordeal a “big joke”. Indeed, he has admitted to it and, furthermore, did not challenge the Chief’s sustained findings stemming from the internal investigation surrounding the qjjjfincident. PB 58. Appellant further acknowledges that there were “other similar incidents in the past with other off-duty police officers” and his conduct was part of “an ongoing prank within the department.” PA 8; PB 20.

It is not difficult to conceive how these events could be potentially exculpatory were Appellant called as a witness in a future prosecution. Indeed, at least one superior court judge appears to have previously taken the position that the act of disobeying a police officer alone is probative of a witness’s character for truthfulness or untruthfulness. See State v. Deschenes, 156 N.H. 71, 74 (2007) (noting that the trial court “allowed, for impeachment purposes only, the admission of a... misdemeanor conviction for disobeying a police officer’). While that case involved a misdemeanor conviction for disobeying a police officer, unlike the instant case, of which the evidence of the conviction was seemingly admitted

under Rule of Evidence 609(a)(2), it is by no means clear that instances of disobeying an officer that did not result in a misdemeanor conviction are categorically inadmissible on cross-examination under Rule of Evidence 608(b) as specific instances of conduct that “are probative of the character for truthfulness or untruthfulness” of a witness. See N.H. R. Evid. 608(b)(1).

Further, most courts that have addressed the issue have concluded that a prosecutor’s obligation to disclose Brady evidence extends beyond just evidence that would be admissible at trial. See Ellsworth v. Warden, 333 F.3d 1, 5, 5 n. 4 (1st Cir. 2003) (collecting cases). In the words of the Sixth Circuit, “Brady is not a hard and fast evidentiary rule, ” and “inadmissible [evidence] might nonetheless be considered material under Brady if it would lead to admissible evidence.” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 465 (6th Cir. 2015) (citations and quotation marks omitted)). Likewise, the Ninth Circuit has observed that “[e]vidence can be ‘used to impeach’ a witness even if the evidence itself is not admissible, even to impeach.” Paradis v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001). Appellant’s conduct might lead to admissible evidence or evidence that could be used to impeach Appellant if he took the stand in a particular criminal case in the future. Again, it is not up to a prosecutor to determine what a defendant may find useful or what a court may decide is admissible, see Dukette, 113 N.H. at 477; rather, a reasonably prudent prosecutor should err on the side of disclosure, see Roe, 997 F.3d at 85.

In sum, Appellant’s misconduct is “potentially exculpatory” pursuant to RSA 105:13-d. PB 58. The trial court did not err in concluding

as much.

Il. RES JUDICATA IS INAPPLICABLE AS A MATTER OF LAW. Appellant argues that res judicata should attach to the MMB sealed order, in which the court stated that “the contents of [the Plaintiffs] personnel file does not contain Brady/Giglio material and therefor shall not be subject to disclosure in this or any future litigation.” PA 34. If not, Appellant argues, then the superior court failed to apply the full faith and credit of the relevant order in coming to its decision. Jd. Appellant’s argument misses the mark.

Prior to delving into substantive argument, it is important to first discuss the procedural history of the relevant order. State v. 7/77 QE Docket No. 218-2018-CR-B was a criminal matter of which the defendant, iM pleaded guilty to several criminal charges and was sentenced the same day the relevant order came out. Had the case gone to trial, Appellant admits that he was to be a potential witness to it. PB 60. The AGO was not a party to this criminal matter. Upon entry of the relevant discovery order, Appellant filed a “Motion to Enforce Court Order” in the criminal matter and requested, ‘under seal and without notice to the AGO, removal from the EES. The AGO appeared and successfully opposed Appellant’s motion on the basis that it (a) sought a civil remedy by motion in a criminal proceeding that (b) neither he nor the AGO were parties to and (c) did so without even giving

the AGO notice of his motion. The trial court thus rejected the notion that its order was intended to do what the Appellant is trying to use it for in this case.*

For res judicata to apply, three elements must be established: “(1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action.” Walker v. Day, 173 N.H. 211, 213 (2020); 412 S. Broadway Realty v. Wolters, 169 N.H. 304, 313 (2016).

As to the first element, res judicata generally does not apply to nonparties to the original judgment, subject to specific exceptions. Walker, 173 N.H. at 214 (citing Sleeper v. Hoban Family P’ship, 157 N.H. 530, 533 (2008)). Here, neither the AGO nor Appellant were parties toga? Sa: criminal proceeding. While the Appellant appeared in the criminal matter through counsel, the trial court does not appear to have made the Appellant (or Appellee) a party to the case. Thus, Appellant’s claim for res judicata fails as the first element cannot be satisfied.

As to the second element, New Hampshire defines the “cause of action collectively to refer to all theories on which relief could be claimed on the basis of the factual transaction in question.” Sleeper, 157 N.H. at

534. Generally, “in determining whether two actions are the same cause of foregoing. action for the purpose of applying res judicata, [the court will] consider whether the alleged causes of action arise out of the same transaction or occurrence.” Jd. (internal quotation marks and brackets omitted). The factual transaction or the cause of action involved in the case were criminal charges against a particular defendant. The trial court did not permit the officer here to inject what would have been essentially a civil declaratory judgment action against the AGO into that criminal case. Accordingly, there is no similarity between Se criminal case the underlying civil action.

As to the third element, that a final judgment on the merits must have been rendered in the first action, a sealed discovery order following an in camera review is an interlocutory order that could go no further under RSA 105:13-b than to determine whether the information reviewed was exculpatory in that case. Moreover, the AGO successfully opposed the motion to enforce the superior court’s interlocutory discovery order, seemingly inferring that it was not the intent of that order to affect the Appellant’s placement on the EES. The Appellant’s res judicata claim must fail.

Lastly, and by operation of RSA 105:13-d, Appellant’s name must be included on the EES as his personnel information contains potentially

exculpatory evidence.

Appellant argues that even if res judicata does not apply, which it does not for those reasons set forth above, that Judge St. Hilaire’s sealed order in the criminal case where Appellant was but a potential witness and where AGO was not a party, should have been given full faith and credit as Judge St. Hilaire “was reviewing the very same matter for the very same reason, and he already reached a final conclusion.” PB 33. In that order, the trial court ruled there was no exculpatory Brady/Gigl io material in the Appeliant’s personnel file that was “subject to disclosure in this or any future litigation.” On information and belief, the court issued this order based on an in camera review of the Appellant’s personnel file performed pursuant to RSA 105:13-b. Irrespective of the fact that there was no final judgment on the merits, as discussed above, the decision in question was not from another state, so the full faith and credit clause cannot be implicated. See In re Estate of Rubert, 139 N.H. 273, 276 (1994) (“The full faith and credit clause prevents parties from relitigating factual issues properly determined by an appropriate forum in a sister state.” (citing Durfee v. Duke, 375 U.S. 106, 109 (1963)). The trial court also issued an order that it was not able to issue under current precedent.

Contrary to the Appellant’s broad construction of the Court’s discovery order related to his personnel file, RSA 105:13-b does not provide a mechanism for a court to generally declare whether information

in an officer’s personnel file is exculpatory in all future litigation. Doe v. Attorney General, 175 N.H. 349, 354 (2022) (“Accordingly, we conclude that RSA 105:13-b, I does not authorize the trial court to review the contents of an officer’s personnel file outside the scope of a particular criminal case.”); see In re Petition of N.H. (State v. Fuchs), 174 N.H. at 792, Thus, the expansive language of the trial court’s order is unenforceable beyond the bounds of the particular criminal case in which the order was entered.

A court, under RSA 105:13-b, cannot evaluate whether particular conduct or information constitutes exculpatory evidence favorable to the accused in the abstract, outside the context of a pending criminal matter, as to any and all future criminal cases. Doe v. Attorney General, 175 N.H. at 354. Instead, under controlling precedent, whether information or conduct is exculpatory turns on the particular facts and circumstances of the underlying criminal case. See, e.g., Duchesne, 167 at 777-78 (discussing the duty to disclose exculpatory evidence under the United States Constitution and New Hampshire Constitution and illustrating that this is fact-specific determination), As such, RSA 105:13-b, and orders made consequently (such as Judge St. Hilaire’s), cannot serve as a general framework for a superior court to invoke its equity jurisdiction and declare whether an officer’s name should be removed from the EES — the analysis may only be done while evaluating the evidence in a particular criminal matter. Doe v. Attorney General, 175 N.H. at 354.

RSA 105:13-b does not govern (or, for that matter, relate in any way to) whether and under what circumstances a police officer may appear on, or be removed from, the EES. Rather, it provides only that a court may,

when an officer is “serving as a witness in any criminal case, ” conduct an in

IV. camera review to determine “whether evidence is exculpatory” in the context of that particular prosecution, See RSA 105:13-b, I & II; Doe v. Attorney General, 175 N.H. 349, 353 (2022).

Additionally, and as already held by this Court in Doe, RSA 105:13- b does not confer on an officer any private right to determination whether information in his or her personnel file is potentially exculpatory — that right is instead conferred by RSA 105:13-d. RSA 105:13-b merely sets forth a procedure for determining whether the State must turn over information to the defendant in a criminal case when that determination “cannot be made” without the court’s involvement. RSA 105:13-b.

Consistent with this Court’s ruling in Doe, the language and structure of RSA 105:13-b and the state and federal decisions that address a criminal defendant’s constitutional right to the disclosure of exculpatory information, the Appellant should not have received the blanket declaration from the superior court in the context of a criminal case such a broad declaration is manifestly beyond the authority of the trial court to issue in that context that his motion is based on. This Court should reject

Appellant’s attempt to invoke the full faith and credit clause.

Appellant next argues that because his felony and misdemeanor charges were nolle prosequi, and then annulled, that he should be removed from the EES. Specifically, Appellant argues that the police department

placed Appellant on the EES for two reasons — criminal conduct and egregious misconduct. PB 33-34 (citing to: PA 32-33). Appellant claims, in line with his argument in previous sections of the brief, that his conduct cannot be considered egregious misconduct because he was not on duty at the time of the incident. PB 34. Thus, per Appellant, the only remaining “valid reason” for the police department to include Appellant on the EES would be for criminal conduct. Appellant states that because the charges were annulled, that by operation of law, the incident in question never occurred. PB 34. This, however, is a misstatement of the law.

Neither RSA 651:5 nor Judge St. Hilaire’s Order states, as Appellant alleges, that the conduct in which Appellant took part simply disappeared. Indeed, RSA 651:5 contemplates the opposite — that the underlying conduct, which Appellant has admitted to, still exists as a matter of law and can be utilized for certain enumerated purposes.

To clarify, RSA 651:5, X (a) states that: “... the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status under RSA 259:39.” Additionally, RSA 651:5, XI (b) states that: “Nothing in this section shall affect any right of law enforcement officers to maintain arrest and conviction records and to communicate information regarding the annulled record of arrest or conviction to other law enforcement officers for legitimate investigative purposes or in defense of any civil suit arising out of the facts of the arrest, or to the police standards and training council solely for the purpose of assisting the council in determining the fitness of an individual to serve as a law enforcement officer, in any of which cases

such information shall not be disclosed to any other person.”

In other words, RSA 651:5 does not operate in any way as to make the underlying conduct not exist as a matter of law. Instead, RSA 651:5 specifically annuls arrests, convictions, and/or sentences. It is only those three types of instances that are as though they “never occurred.” See PB 34-35.

RSA 105:13-d does not consider whether a conviction was annulled or nolle prosequi, nor does it consider whether conduct occurred on or off- duty. RSA 105:13-d is quite clear. It states that “all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence” shall be listed on the EES. Here, nothing about Appellant’s annulment changes that. His personnel information is fraught with references to his dangerous high-speed pursuit. Appellant should

remain on the EES.

Appellant argues that he was “denied due process back in 2012”.

Quite simply, he was not — he waived any such rights as part of his negotiated disposition with the police department. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Advance notice and an opportunity to be heard protects against the arbitrary deprivation of a protected liberty interest, “[f]or when a person has an opportunity to speak up in his own defense, and when the State must listen

to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972).

Through the papers, Appellant acknowledges, and the appended documents show, that: (1) the police department conducted an internal investigation of Appellant’s Mllmisconduct and entered disciplinary findings against him; (2) Appellant entered into a negotiated disposition with the police department through his union; (3) Appellant took full responsibility for his conduct as part of that negotiated disposition; and (4) Appellant agreed, through his union, to waive the grievance process otherwise available to him under the collective-bargaining agreement. PB 43, PA 31. This process was at east as robust as the process the Supreme Court found to be constitutionally sufficient in Gantert. See 168 N.H. at 649. Any suggestion that Appellant did not receive adequate process with respect to his underlying conduct is misplaced on multiple fronts.

Furthermore, Appellant was informed that POLICE DEPARTMENT intended to place his name on the EES and specifically “afford[ed]... the opportunity to meet with [the administrative police chief] and Town Counsel to offer any reasons [he] may have as to why [his placement on the ~ EES] is not appropriate.” PA 41; see Gantert, 168 N.H. at 650 (where this Court found that additional or separate process was not required when the relevant discipline and ‘Laurie List’ designation were predicated on the same underlying conduct.). Appellant participated in that hearing, which concluded in the administrative police chief’s determination that the 2012 conduct “mfet] the criteria for inclusion on the [EES].” PA 42. Thus, Appellant was provided both notice and an opportunity to be heard before being placed on the EES. See Mathews, 424 U.S. at 333.

VI.

The same would hold true irrespective of the above facts. This Court has recognized that to maintain a viable due process claim, an individual must demonstrate “actual prejudice” resulting from the alleged lack of procedural safeguards. McIntire v. Woodall, 140 N.H. 228, 230 (1995). Here, Appellant admits that he engaged in the misconduct resulting in his placement on the EES. That conduct is potentially exculpatory for the reasons explained in the previous section. The complaint and attached documents make clear that a record of Appellant’s misconduct is contained in his personnel! file. RSA 105:13-d specifically contemplates that the EES “shall consist of a list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence.” RSA 105:13-d, I (emphases added). Appellant would accordingly be subject to placement on the EES under the express terms of RSA 105:13-d based on the allegations contained in his complaint. He has accordingly failed to demonstrate that he was in any way prejudiced by any perceived

deficiency in the process that resulted in his placement on the EES.

As detailed in Sections IT and IH, there is clear decisional law that potentially exculpatory evidence includes impeachment evidence. Appellant’s uncontested acts constitute potentially exculpatory evidence. Appellant urges this Court to rewrite RSA 105:13-d and ignore decisional

law by basing its decision on whether evidence is admissible, rather than whether evidence is potentially exculpatory. This Court should reject that invitation.

This Court has recognized that “the admissibility of evidence at trial does not necessarily mark the bounds of the prosecutor’s disclosure obligations....” Duchesne, 167 N.H. at 784. Evidence is not merely favorable to the defense if it is admissible; rather “[flavorable evidence is that which is admissible, likely to lead to the discovery of admissible evidence, or otherwise relevant to the preparation or presentation of the defense.” Shepherd, 159 N.H. at 170 (citations and quotation marks omitted). Rather, “[the Court] need not determine the admissibility of the material. It is sufficient for [the Court] to find that the evidence is material to the preparation or presentation of the defendant’s case.” Laurie, 139 N.H. at 332; see also Bagley, 473 U.S. at 682 (reasoning that failing to provide potentially exculpatory evidence “has the effect of representing to the defense that the evidence does not exist, ” which may cause the defense to “abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.”). Put differently, evidence that “may” be potentially exculpatory evidence must be disclosed because “an incomplete or incorrect response to a request for [potentially exculpatory material] may preclude a competent defense attorney from pursuing a

‘strategy that potentially would have been effective.” Laurie, 139 N.H. at 332.

In terms of this case, the fact that Appellant intentionally led officers on a high-speed pursuit, along with the fact that he believed the dangerous ordeal was nothing more than a prank, may aid defense counsel in pursuing a particular defense strategy or line of questioning to attack Appellant’s testimony or to conduct additional investigation into Appellant’s character. The trial court specifically stated that the officer’s “actions in Jaa? WABBc onstituted a dereliction of his duty.” PB 58. The trial court further found that “thinking such a situation was ‘a big joke’ indicates a conscious disregard for law and order.” PB 58. The trial court held that such conduct was potentially exculpatory within the contemplation of RSA 105:13-d. PB 58. It is not difficult to envision the types of cases in which knowledge of Appellant’s past misconduct would prove beneficial to impeach his credibility.

Despite clear decisional law that admissibility of evidence does not mark the bounds of which conduct must be disclosed as exculpatory, Appellant urges this Court to look to the N.H. Rules of Evidence in deciding whether Appellant’s name should be included on the EES. Appellant points to N.H. Rule of Evidence 609 to argue that his conduct occurred more than ten years ago, such that it is presumptively too old to use as impeachment evidence. PB 16-26. As an initial matter, Rule 609 is inapplicable to this sort of exculpatory evidence. Indeed, Rule 609 relates to the admissibility of convictions.

Appellant additionally points to N.H. Rule of Evidence 608, arguing that Appellant’s conduct is not material, relevant, or probative in value for impeachment purposes. PB 16-20. However, such a finding can only be

decided on a case-by-case basis. Irrespectively, both of Appellant’s evidentiary arguments incorrectly conflate the possible admissibility of evidence with the constitutional obligation to disclose exculpatory evidence,

As to Appellant’s argument that the misconduct is too stale to use as impeachment evidence in a criminal case where Appellant’s credibility is at issue, withholding the misconduct may violate a criminal defendant’ s constitutional right to present all favorable proofs, irrespective of the fact that the misconduct occurred ing§jgii¥depending on the facts of the criminal case. Laurie, 139 N.H. at 330. As to Appellant’s argument that the misconduct is not material, relevant, or probative in value for impeachment purposes, Appellant is asking this Court to make the extraordinary assumption that there is not a single convicted person, current criminal defendant, or future criminal defendant who could be benefited by knowledge that Appellant knowingly disregarded law and order as a “joke” when he led a high-speed pursuit, endangering the lives of others. As outlined above, it takes little effort to propose cases in which this information could be both exculpatory and admissible, particularly as impeachment or rebuttal evidence. Attempting to predict whether information like the conduct at issue in this case will never be material, relevant, or probative in any future criminal case in which Appellant serves as a witness would be folly and risks injecting reversible constitutional error into future cases. This Court should not, and does not need to, create such a rule.

RSA 105:13-d requires an officer’s inclusion on the EES if their “personnel information” contains “potentially”, not definitively,

“exculpatory evidence.” Appellant’s conduct is potentially exculpatory in any case where he is or could be a fact witness and is questioned on his

character or ability to follow laws and rules.

Although the New Hampshire Attorney General’s Office has in the past issued guidance to prosecutors regarding how to meet their constitutional exculpatory evidence obligations, this Court is the final arbiter in due process and statutory interpretation matters. See Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 744 (2007). Thus, for purposes of this Court determining what information constitutes “potentially exculpatory evidence” such that prosecutors meet their constitutional duty to disclose that evidence to criminal defendants, the AGO’s prior guidance is just that — guidance.

The New Hampshire AGO periodically disseminates guidance memoranda to various law enforcement and prosecutorial agencies. These guidance memoranda are a function of the Attorney General’s role as the chief law enforcement officer of the State which provides oversight and support to State and municipal law enforcement agencies and prosecutors. RSA chapter 21-M. Pertinent to the issue of the EES are the 2004 Law Enforcement Memorandum under the direction of Attorney General Peter Heed, the 2017 Law Enforcement Memorandum under the direction of Attorney General Joseph Foster, and the 2018 Law Enforcement Memorandum under the direction of Attorney General Gordon MacDonald,

These memoranda — providing guidance on the obligations to disclose potentially exculpatory evidence and how to maintain a list of officers with such misconduct in their personnel information — are periodically updated to reflect changing trends in law enforcement practices as well as changes to decisional law.

Appellant makes the argument that the trial court erred when it relied on several “contradictory” versions of the aforementioned guidance memorandum as if they had the same force and effect of law. Irrespective of what guidance the trial court may have taken from the various law enforcement memoranda, RSA 105:13-d requires placement on the EES of officers whose personnel information contains potentially exculpatory © information. Applying the allegations of fact Appellant has advanced about his own misconduct to the decisional law controlling disclosure of exculpatory evidence, Appellant’s actions and personnel information contain “potentially exculpatory information” within the meaning of RSA 105:13-d, and Appellant’s placement on the EES is required, regardless if the trial court put too great or too little emphasis on any law enforcement

guidance memoranda.

For the foregoing reasons, the AGO respectfully requests that this

Honorable Court affirm the judgment below.

The AGO requests a fifteen-minute oral argument to be presented by

Brandon F. Chase.

February 24, 2023

February 24, 2023

I, Brandon F. Chase, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 8, 641 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer

program used to prepare this brief.

February 24, 2023 /s/ Brandon F. Chase Brandon F. Chase

Thereby certify that a copy of the Attorney General’s Office’s brief shall be served on Marc G. Beaudoin, counsel for the appellant, through the

New Hampshire Supreme Court’s electronic filing system.

February 24, 2023 /s/ Brandon F. Chase Brandon F, Chase