An appeal from Rockingham County No. 2019-0072
Nov. 19, 2020
- Whether the trial court erred in denying the defendant’s request for in camera review of any prior reports of force or other disciplinary actions of the witness officers.
- Whether the trial court erred in failing to instruct the jury that the State must prove that the “the defendant ‘refused to produce his driver’s license on demand of a law enforcement officer for the purpose of examination by the officer’” in order to establish the crime of disobeying an officer.
Evidence was admitted upon which it could be found that, though the license plate of the vehicle the defendant was operating was obscured, the trailer attached to it was registered to him. A check of this registration revealed that the defendant’s license had been suspended in New Hampshire, which resulted in an officer stopping the defendant. Upon being stopped and asked for his license, the defendant refused. The officer, with backup, ordered the defendant out of the vehicle, but the defendant refused to comply despite being notified that he was under arrests and that the officers would pull him out of the vehicle if he did not exit on his own. The officers broke the defendant’s window to access the door lock but were unable to unlock the door. Accordingly, they began pulling the defendant out through the window, during which the defendant was kicking and punching the officers with keys between his knuckles. Even after several attempts at utilizing a TASER device and notifying the defendant he was under arrest for assaulting the officers, the defendant refused to exit, even holding onto the steering while to prevent his extraction from the vehicle. Once out of the vehicle, the defendant failed to comply with instructions to put his hands behind his back and the officers delivered a punch to his ribs and additional use of a TASER device to get the defendant’s hands behind him.
Reviewing the trial court’s failure to conduct an in camera review of the officer’s personnel files for prior excessive force complaints or disciplinary actions under an unsustainable discretion standard, the Court examined RSA 105:13-b. The statute pertains both to the production of exculpatory evidence and relevant evidence. More specifically, it applies to the automatic production of exculpatory materials in the witness officer employee files (RSA 105:13-b, I), the production of officer personnel files after in camera review is used to determine whether the material is exculpatory (RSA 105:13-b, II), and to the production of witness officer personnel files when, though not exculpatory, the judge specifically rules “’that probable cause exists to believe that the file contains evidence relevant to that criminal case,’” in which case the judge will conduct an in camera review to determine the existence and extent of relevant materials therein. (RSA 105:13-b, III). Under RSA 105:13-b, III, the burden is on the criminal defendant seeking production of information from the personnel file to “’establish that there is a realistic and substantial likelihood’ that relevant evidence would be obtained from the file” by presenting a “’plausible theory of relevance.’”
The Court agreed with the State that the defendant waived arguments that RSA 105:13-b only applied to his request for disciplinary actions, not excessive force complaints; arguments that all the information sought was exculpatory; and arguments that he had met his burden of demonstrating probable cause with respect to disciplinary file materials. The Court found that the defendants assertions of relevancy regarding force complaints was merely conclusory and therefore insufficient to establish probable cause of relevancy to support in camera review of protected personnel files, particularly where much of the events leading up to and surrounding the defendants were captured on video submitted for review to the jury.
Regarding the defendant’s jury instruction challenge, the Court determined whether the instruction was consistent with RSA 265:4, I(e), the statute defining the charged crime, by conducting a statutory interpretation. Taking the statute in conjunction with a mirroring statute, RSA 263:2, the Court held that the jury instruction was consistent with the statutes’ intent of requiring that the officer be afforded an opportunity to examine the validity of the license whether produced for viewing or taken in hand by the officer.
The Court accordingly upheld the convictions.
Gordon J. MacDonald, attorney general, with Susan P. McGinnis, senior assistant attorney general (on the brief and orally) for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord (on the brief and orally), for the defendant.