State of New Hampshire v. Adam Montgomery

Docket No. 2024-0304 State of New Hampshire v.

Adam Montgomery

STATE’S MOTION TO RECONSIDER

The State, by and through counsel, hereby moves to reconsider this Court’s June 11, 2026, opinion in this matter, and provides as follows:

1. The party filing a motion for reconsideration must “state with particularity the point of law or fact... that the [C]ourt has overlooked or misapprehended.” N.H. Sup. Ct. R. 22(2).

2. The State respectfully submits that this Court overlooked or misapprehended:

(1) its holding that the State conceded or waived a joinder argument; (2) its decision to consider evidence from trial rather than limiting its joinder review to the pretrial record before the trial court judge; and (3) its assessment of the relative strength of the State’s evidence.

I. The State Did Not Concede or Waive A Joinder Argument.

3. In its joinder analysis, this Court found that the State “waived” its argument that the defendant’s motion to join the charges in November 2022 and keep them joined for more than a year supported the assertion that it was reasonable for the trial court to find joinder was not against the best interests of justice.

State v. Montgomery, 2026 N.H. 24, ¶29 (June 11, 2026).

4. Relying on Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662 (2006), this Court asserted that “the State conceded before the trial court that even if the Zwicker letter provided no new information, the defendant had the right to withdraw his assent to joinder prior to trial and was entitled to a fresh consideration of whether joinder was in the best interests of justice.” Id.

5. The Court’s assessment of this issue is incorrect.

6. Acknowledging that a defendant has a right to pursue a motion to withdraw his earlier assented-to motion for joinder does not concede or waive the State’s argument that the defendant’s initial strategic decision to join those charges for trial constitutes strong evidence that joinder remains reasonable and not untenable or unreasonable to the prejudice of the defendant’s case, particularly where the state of the evidence had not changed.

7. The State’s response to the defendant’s motion to sever highlighted that the defendant was seeking severance on the eve of the final pretrial conference, after having the charges joined on his own motion for over a year, based on a Zwicker letter that did not substantively change the state of the evidence or impact the joinder analysis. See Apx. 7

8. “This being said,” the State acknowledged that “the defendant has the right to seek a withdrawal of his motion if he now feels that it would be in his best interest[.]” Id. 8.

9. The State explained how the Zwicker letter did not change the state of the evidence. See id. 8-17. The State concluded by again acknowledging the defendant’s right to request that the trial court revisit the joinder issue but asserted that his “sole claim” supporting severance was “undercut” by the fact that the information in the Zwicker letter was included in the discovery the defendant possessed when he moved to join the charges. Id. 17. 1 Citations to the record are as follows: “H” refers to the transcript of the final pre-trial conference held on January 16, 2024; “DB” refers to the defendant’s brief; “DA” refers to the addendum to the defendant’s brief; “Apx.” refers to the defendant’s appendix; and “SB” refers to the State’s brief.

10. During the motion hearing, the trial court asked the State whether it should “take a fresh look at a motion to sever” even if the information in the Zwicker letter was not new. H at 22.

11. The prosecutor responded that, even if the information in the Zwicker letter was not new, the defendant had “the right to withdraw his assent to the joinder since it’s before trial. If we were in the middle of picking a jury, I think that would definitely be a different story.” Id.

12. In that answer, the State did not concede or waive any argument that the charges should remain joined. Nor did it waive or concede an argument that the defendant’s initial assessment remained a reasonable one. The State did not even agree that the trial court could take “a fresh look” at joinder; it merely acknowledged that the defendant could seek to withdraw his assent to joinder and ask the court to revisit its previous order. A trial court has inherent authority to revisit interlocutory joinder orders. See State v. Southern N.H. Builders Ass’n, 121 N.H. 852, 854-55 (1981) (explaining that trial courts may revisit and change interlocutory orders).

13. On appeal, the State would have contradicted itself if it had argued that the defendant was prohibited from requesting the trial court to revisit its pretrial order, but it did not make that argument.

14. Instead, the State argued that defense counsel’s initial decision to join the charges for trial — which was presumptively reasonable for constitutional purposes, see State v. Fitzgerald, 173 N.H. 564, 573 (2020) — showed that the trial court’s decision to keep the charges joined after conducting a full- blown joinder analysis was not clearly unreasonable or untenable. That is just another way of framing what the State argued in the trial court — that joinder remained appropriate because nothing had changed since the defendant moved to join the charges.

15. That makes the circumstances here materially different than the circumstances in Milliken.

16. In Milliken, the issue raised in the plaintiffs’ notice of appeal was “[w]hether the trial court erred in allowing Dr. Robert Zimmerman to testify about the timing of [the baby’s] injury based on the edema found on the CT scan.” Milliken, 154 N.H. at 669. But during a bench conference in the trial court, counsel for the plaintiffs stated that the doctor was “very capable of looking at edema and timing it, and that’s very legitimate, but when we go on to these other areas, it’s in the area of neurology, that’s different.” Id.

17. Thus, in Milliken, counsel’s statement was in direct conflict with the issue raised in the notice of appeal. See id. Therefore, the “statement concede[d] the very issue that the plaintiffs now appeal.” Id.

18. By contrast, the positions the State took — that the defendant had the right to ask the court to revisit a pretrial order, but that severance should be denied because nothing had changed since the defendant himself moved for joinder — were not in conflict and could be held simultaneously.

19. For those reasons, this Court should reconsider its holding that the State waived an argument by acknowledging the defendant could withdraw his assented to joinder and ask the trial court consider severance.

II. The Court’s Decision To Consider The Trial Record Overlooked The Appropriate Procedure For Appellate Review.

20. Because no party argued otherwise, this Court reviewed the trial court’s pretrial joinder ruling by evaluating the evidentiary trial record and the State’s harmless error arguments. See id. ¶19, ¶¶24-25.

21. In conducting that analysis, this Court overlooked the correct procedure for reviewing a trial court’s pretrial order on joinder and the consequences of not applying it.

22. “As a general rule, in reviewing a trial court’s pretrial admission of evidence pursuant to Rule 404(b),” this Court considers “only what was presented at the pretrial hearing.” State v. Glodgett, 144 N.H. 687, 694 (2000) (quoting State v.

Castine, 141 N.H. 300, 302 (1996)); State v. Nightingale, 160 N.H. 569, 573 (2010).

23. This general rule has been applied to pretrial rulings related to discovery and privileges, see State v. Stewart, 2026 N.H. 14, ¶12 (April 7, 2026), evidence of habits under Rule of Evidence 406, see State v. Mackenzie, 175 N.H. 87, 90-91 (2022), authenticity under Rule of Evidence 901, see State v. Brown, 175 N.H. 64, 66-67 (2022), and admissibility under Rule of Evidence 403, see State v. Gordon, 161 N.H. 410, 414 (2011).

24. In an opinion concurring and dissenting in part, Chief Justice Broderick took for granted that appellate review of a pretrial joinder decision should be confined to the pretrial record. See State v. McIntyre, 151 N.H. 465, 470

(2004) (Broderick, C.J., concurring in part and dissenting in part). In observing that this Court has not explicitly decided that issue, the Court has twice cited Chief Justice Broderick’s opinion. See State v. Rivera, 175 N.H. 496, 499 (2022); State v. Brown, 159 N.H. 544, 556 (2009).

25. Chief Justice Broderick’s assumption is well taken. When ruling on a joinder motion, “[t]he discretion of the court is necessarily exercised before the trial begins and with reference to the situation as it then appears to the court.” State

v. Booth, 737 A.2d 404, 415-16 (Conn. 1999).

26. “Therefore,” a reviewing court “must review the trial court’s decision” on “joinder... based upon the evidence before the court at the time of the motions.” Id.; see State v. Daluz, 143 A.3d 800, 811-12 (Me. 2016) (“What actually occurred at trial is irrelevant to determining whether a trial court abused its discretion in a pretrial ruling on a defendant’s [motion to sever] that the defendant did not renew during trial.”); Tex. Farm Bureau Underwriters v.

Skeen, 374 S.W.3d 651, 657 (Tex. App. 12th Dist., 2012) (“In considering whether the trial court abused its discretion in denying [a] motion to server, our review is limited to the record as it existed before the trial court at the time of the decision.”); Allen v. Commonwealth, 712 S.E.2d 748, 749 (Va. Ct. App. 2011) (“As an appellate basis for reversing a pretrial severance ruling, however, evidence at trial becomes relevant only if the defendant renews his motion at trial.”); United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002) (explaining that the defendant likely waived his challenge to the trial court’s pretrial joinder ruling because he “failed to renew his motion to sever at the close of the evidence.”).

27. Limiting appellate review of a trial court’s pretrial ruling on joinder to the pretrial record is necessary because, among other reasons, the trial court is assigned the delicate “task of balancing the cost of multiple trials against the possible prejudice inherent in a single trial,” leaving the defendant “‘an extremely difficult burden’ of showing that the district court abused its discretion.” Rollins, 301 F.3d at 518 (citation omitted). By reviewing the evidentiary trial record to determine whether the trial court struck that balance reasonably prior to trial, this Court departed from the established standard of review and, instead of reviewing for an unsustainable exercise of discretion, engaged in a different exercise of discretion.

28. This Court has twice suggested that it is an open question whether appellate review of a trial court’s pretrial joinder ruling must be limited to the pretrial record before the trial court at the time the ruling was made. See Rivera, 175 N.H. at 499; Brown, 159 N.H. at 556.

29. But, for at least two reasons, neither of those cases can be read as a license to choose one procedure or the other in a given case.

30. First, the State notes that the trial court’s rulings were affirmed in both Rivera and Brown. Indulging a dubious proposition of law for the sake of argument is harmless, and not unusual, if the proposition is rejected. But assuming a doubtful proposition of law that serves to prop up the prevailing position impacts victims, witnesses, judicial resources, and predictability in the law, in a problematic way.

31. Second, it appears appellate courts review the evidentiary trial record when reviewing a trial court’s pretrial joinder ruling only if an objection to joinder was renewed at trial, the issue was raised as plain error on appeal, or a state- specific rule applied. See e.g., United States v. Blunt, 930 F.3d 119, 126 (3rd Cir. 2019) (explaining that the trial court “had the full benefit of the trial record” where the defendant “moved for a mistrial” at the end of trial based on his pretrial motion to sever); People v. Cardwell, 580 N.E.2d 753, 754 (N.Y. App. Div. 1991) (applying a state-specific rule for determining whether there was an “irreconcilable conflict” in the defenses of codefendants). By contrast, courts routinely limit their review of pretrial joinder rulings to the pretrial record that was before the trial court. Indeed, Rivera and Brown themselves seem to cast doubt on the procedure this Court has now adopted and employed in this case.

32. Further, the cases the State has located in which appellate courts review the entire trial record in accordance with a state-specific rule or the circumstances in which joinder was raised conduct an analysis that is narrowly focused on the prejudice that joinder may cause the defendant. Whether the best interests of justice require severance, however, is a broader question implicating a wider range of interests. See MA R. Crim P. 9 (d)(1)-(2) (distinguishing between severance because joinder “is not in the best interests of justice” and severance based on “prejudicial joinder”).

33. In short, the scope of appellate review when considering a trial court’s pretrial joinder ruling is only an open question in as much as this Court has never explicitly said otherwise. However, the same appears to be true of discovery issues involving privileges and certain rules of evidence. In any event, logic, experience, and prudence allow only one conclusion — pretrial joinder rulings must be reviewed on appeal based upon the pretrial record that was before the trial court when the ruling was made unless the issue was renewed at trial.

34. That elementary rule of appellate procedure “serves several important functions.” Matthew Bender & Co., 1 Art of Advocacy - Appeals § 4.01 (2026). Among them are: (1) ensuring that “an appellate court reviews issues rather than makes initial rulings” on them; (2) “restricting review to matters in the record enhances judicial economy”; (3) “the rule promotes fairness... by preventing the consideration of issues not presented to the trial court”; and (4) “the rule encourages stability in the otherwise often unstable litigation process.” Id.

35. For these reasons, this Court should reconsider its decision by limiting its analysis to the pretrial joinder record before the trial court.

III. The Court Misapprehended The Relative Strength Of The Evidence And Encroached Upon Issues Within The Sole Province Of The Jury

36. Considering the evidentiary trial record resulted in this Court overlooking the fundamental role of the jury and misapprehending the relative strength of the evidence when it concluded that the second-degree murder case was “substantially weaker” than the second-degree assault. Montgomery, 2026 N.H. 24, ¶ 25.

37. This Court appears to have concluded that the second-degree assault charge was strong, and the second-degree murder charge was not primarily because the former “rested on testimony from several witnesses without the credibility deficits that Kayla had.” Montgomery, 2026 N.H. 24, ¶31.

38. However, evaluating witness credibility, resolving conflicts in testimony, and deciding the weight to be given to trial evidence are matters exclusively within the province of the jury. See State v. Castine, 172 N.H. 562, 565 (2019); State v. Carr, 167 N.H. 264, 275 (2015).

39. By defining the State’s second-degree murder case as weak because of Kayla’s prior convictions and inconsistent statements, this Court overlooked the fact that the jury heard all this impeachment evidence and still credited her account of the murder on December 7, 2019. It was solely the jury’s province to make that determination with respect to the trial evidence.

40. Furthermore, the Court misapprehended the totality and strength of the evidence supporting the murder conviction. The State did not present a circumstantial second-degree murder case; it presented direct eyewitness testimony of the fatal assault. While the Court accurately noted the extensive physical evidence and testimony corroborating the defendant’s post-mortem actions, the Court misapprehended the legal significance of that conduct.

41. The Court concluded that this evidence only corroborated the cover-up and was not inconsistent with the defense’s theory that Kayla caused Harmony’s death. This overlooks the well-established principle that extraordinary post- offense conduct — such as concealing, dismembering, and disposing of a person’s own child — goes directly to a defendant’s culpable and guilty mind regarding the underlying homicide. See State v. Sleeper, 2025 N.H. 52, ¶26 (December 5, 2025) (“A jury can reasonably infer the defendant’s consciousness of guilt from... efforts to avoid suspicion.”). When paired with his admissions that he got rid of Harmony because of her bathroom accidents, his statement that he hated Harmony “right to his core,” and his pacing and repeating “I f**ked up,” the State’s evidence of murder was overwhelming. See SB 14; T 1602-03, 1856.

42. Additionally, as the United States Supreme Court has recognized, the fact that one of the joined cases is stronger than the others or that the defendant’s chance of acquittal is better in separate trials does not, by itself, constitute prejudice sufficient for reversal. See Allen, 712 S.E.2d at 751 (citing Zafiro v.

United States, 506 U.S. 534, 540-41 (1993)).

43. Ultimately, if the trial court’s pretrial joinder ruling is to be reviewed using the entire trial record, then the trial evidence must be reviewed holistically, as juries are instructed to do. See State v. Germain, 165 N.H. 350, 360-61 (2013).

The Court should not, as it has done here, zero in on specific pieces of evidence in each case and assess the relative strength of that evidence based on the Court’s own subjective view. The joinder analysis is broader than that — it asks whether one case is stronger than another case. See Brown, 159 N.H. at 555, 557-58 (explaining that the State may “gain an unfair advantage if a weak case is joined with a strong case” (emphasis added)). Here, both cases were equally strong holistically. The trial court’s decision to join them was therefore reasonable.

WHEREFORE, the State respectfully requests that this Honorable Court enter an order:

A. Granting this motion for reconsideration;

B. Reconsidering the finding that the State waived an argument on joinder;

C. Reconsidering the decision to review the evidentiary trial record;

D. Vacating the opinion issued on June 11, 2026, to conduct a new joinder analysis limiting review to the pretrial record and considering all the State’s arguments;

E. After conducting a new joinder analysis, affirming the trial court’s joinder ruling and the defendant’s second-degree murder conviction; and

F. Granting such further relief as the Court deems just and equitable.

Respectfully Submitted,

THE STATE OF NEW HAMPSHIRE

By Its Attorneys,

JOHN M. FORMELLA

ATTORNEY GENERAL

ANTHONY J. GALDIERI

SOLICITOR GENERAL

June 22, 2026 /s/ Sam Gonyea Sam M. Gonyea, N.H. Bar No. 273264 Assistant Attorney General New Hampshire Department of Justice 1 Granite Place, South Concord, New Hampshire 03301 Sam.M.Gonyea@doj.nh.gov

(603) 271-5008

CERTIFICATE OF COMPLIANCE

I, Sam Gonyea, hereby certify that pursuant to Rule 22(2) of the New Hampshire Supreme Court Rules, this motion to reconsider contains approximately 2,997 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.

June 22, 2026 /s/ Sam Gonyea Sam M. Gonyea

CERTIFICATE OF SERVICE

I, Sam M. Gonyea, hereby certify that a copy of the State’s pleading shall be served on Pamela Phelan, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

June 22, 2026 /s/ Sam Gonyea Sam M. Gonyea