State of New Hampshire v. Isaac Jaillet

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0744, State of New Hampshire v. Isaac
Jaillet, the court on March 31, 2016, issued the following
order:

Having considered the briefs and oral arguments of the parties and the
record submitted on appeal, the court concludes that a formal written opinion
is unnecessary in the case.

Following a jury trial in Superior Court (Delker, J.), the defendant, Isaac
Jaillet, was convicted of two counts of criminal threatening, see RSA 631:4, I(d)
(2007), and five counts of simple assault, see RSA 631:2-a (2007). On appeal,
he argues that the trial court erred in failing to disclose any information after
conducting an in camera review of certain of the victim’s counseling records.
We affirm.

The details of this case need not be set forth; it is sufficient to examine
only those circumstances that surround the defendant’s appeal. See State v.
King, 162 N.H. 629, 630 (2011).

Prior to trial, the defendant filed a motion for in camera review of certain
of the victim’s counseling records. He contended that, based upon information
contained in discovery, the victim’s counseling records may contain: (1)
exculpatory evidence; (2) inconsistent statements; (3) information relative to the
victim’s motive to fabricate; and (4) an explanation for the victim’s decision to
pursue charges and make additional accusations against the defendant, both
of which occurred only after she participated in counseling.

The trial court granted the defendant’s motion. In its order, the court
explained:

When dealing with discovery issues relating to confidential records
in a criminal case, there is a two-prong approach to the issue.
First, the Court must evaluate whether it is appropriate to even
order an in camera review of the documents. With respect to this
prong of the test, “the defendant must first show a reasonable
probability that the records contain information that is material
and relevant to his stated defense. This threshold showing . . . is
not unduly high. It only requires the defendant to meaningfully
articulate how the information sought is relevant and material to
his defense.” If the Court orders an in camera review of the
 documents, the second part of the analysis requires the Court to
determine “if the file actually contains information that is ‘essential
and reasonably necessary to the defense at trial.’”

(Citations omitted.)

After review of the records, the court issued an order finding that
“nothing in the records [was] ‘essential and reasonably necessary’ to the
defense” and, thus, ruled that it would “not disclose any part of [the] records.”
In its order, the court again explained that “[w]hen dealing with discovery
issues relating to confidential records in a criminal case, there is a two-prong
approach to the issue.” It reiterated that the court first must evaluate whether
it is proper to order an in camera review of the requested records and, if so,
upon review, it must then determine whether the records contain information
that is “essential and reasonably necessary” to the defense at trial. The court
interpreted the “essential and reasonably necessary” standard to mean:

[T]he information in the records must be “essential,” i.e. the
information in the records is (1) otherwise unavailable from
another source and (2) there must be a compelling justification for
the disclosure of the privileged information. To meet the second
prong of this test, the records must contain information that is
“reasonably necessary” to permit the defendant to adequately
cross-examine the victim regarding an issue of bias, prejudice,
motive or similar justification.

The defendant appeals from this order, arguing that the trial court: (1)
erroneously structured the process governing in camera review of privileged
records; (2) “misinterpreted the content of the ‘essential and reasonably
necessary’ standard” for use of privileged information at trial; and (3) may have
erred in determining that the victim’s counseling records were not subject to
disclosure. We will address each of the defendant’s arguments in turn.

The defendant first argues that the trial court erroneously structured the
process governing in camera review of privileged records. Specifically, he
argues:

[T]he court condensed into two phases a process that, properly
conceived, involves three. In particular, the court omitted the step
of disclosing to counsel, subject if necessary to a protective order,
any relevant information contained in the records. Such
disclosure would have enabled counsel to make appropriately
detailed arguments in an effort to satisfy the “essential and
reasonably necessary” condition on the right to use confidential
information at trial.

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The defendant contends that a three-phase process, which includes disclosure
of relevant information to trial counsel, is necessary because, at the time of in
camera review, a trial court necessarily lacks complete information about the
facts of a case and the theories of prosecution and defense that will be
advanced at trial. He, therefore, asserts that a trial court may be unable to
adequately discern what information is “essential and reasonably necessary”
without the aid of trial counsel. He further maintains that support for a three-
phase process “appears as early as this Court’s opinion in” State v. Farrow, 116 N.H. 731 (1976).

The defendant, as the appealing party, bears the burden of
demonstrating that he “specifically raised the arguments articulated in [his]
appellate brief before the trial court.” State v. Exxon Mobil Corp., 168 N.H. ___,
___, 126 A.3d 266, 275 (2015) (quotation and brackets omitted), petition for
cert. docketed, No. 15-933 (U.S. Jan. 22, 2016); see also Sup. Ct. R. 16(3)(b).
“Generally, the failure to do so bars a party from raising such claims on
appeal.” Exxon Mobil Corp., 168 N.H. at ___, 126 A.3d at 275-76. “This
requirement reflects the general policy that trial forums should have an
opportunity to rule on issues and to correct errors before they are presented to
the appellate court.” Holt v. Keer, 167 N.H. 232, 238 (2015) (quotation
omitted). “This requirement is designed to discourage parties unhappy with
the trial result to comb the record, endeavoring to find some alleged error never
addressed by the trial judge that could be used to set aside the verdict.” State
v. Noucas, 165 N.H. 146, 152 (2013) (quotation omitted).

Here, the defendant never argued to the trial court that a three-phase
process governed in camera review of the victim’s counseling records. Nor did
he seek an intermediate phase of disclosure of relevant information to trial
counsel to enable counsel to satisfy the “essential and reasonably necessary”
standard for use at trial.

Moreover, in both of its orders concerning in camera review of the
victim’s counseling records, the court clearly laid out the law it intended to
apply. It stated that when dealing with discovery issues relating to privileged
records, there is a two-prong approach to the issue. See State v. Gagne, 136
N.H. 101, 104-06 (1992). It further explained, in both orders, that the court
first must evaluate whether it is proper to order an in camera review of the
requested records and, if so, upon review, it must then determine whether the
records contain information that is “essential and reasonably necessary” to the
defense at trial. See State v. Guay, 162 N.H. 375, 384-85 (2011). The
defendant never objected to the court’s articulation of the law or process
governing in camera review of privileged records nor did he file a motion for
reconsideration.

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 Accordingly, the defendant has failed to preserve his argument that the
process governing in camera review of privileged records should involve three
phases, including disclosure of relevant information to trial counsel to enable
counsel to satisfy the “essential and reasonably necessary” standard for use at
trial. We, therefore, leave for another day the issue of whether we should
revisit our case law governing in camera review of privileged records.

The defendant next argues that “even if the court properly omitted the
[intermediate] step of disclosure to counsel of relevant information, the court
misinterpreted the content of the ‘essential and reasonably necessary’
standard” for use of privileged information at trial. He contends that the court
“too narrowly construed the meaning” of that standard. Specifically, he
asserts:

If, upon an in camera review, the privileged records are found to
contain information of significant value to the defense at trial,
whether substantively-admissible exculpatory evidence or
impeachment evidence relating to bias or to general credibility,
that information should be made available for use at trial
regardless of whether the means of its admission involves the
cross-examination of the privilege-holder.

We further decline to address this argument because the defendant has failed
to demonstrate that he preserved it for our review.

The defendant did not set forth his interpretation of the “essential and
reasonably necessary” standard in his motion for in camera review of the
victim’s counseling records. Nor did he contest, in a motion for
reconsideration, the trial court’s interpretation of the standard, as set forth in
its order denying disclosure of any of the victim’s records. See N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002) (holding that appellant’s
claim that trial court violated her due process rights by applying wrong
standard of review in its order was not preserved because appellant failed to
raise issue in a motion for reconsideration). Therefore, to the extent that the
defendant argues on appeal that the trial court should have applied a different
standard in determining whether information in the victim’s counseling records
should be disclosed for use at trial, he made no such argument to the trial
court.

Finally, the defendant argues that the trial court may have erred in
determining that the victim’s counseling records were not subject to disclosure
and, thus, seeks our review of the records to assess whether the court erred in
applying the law to the records. “We review a trial court’s decisions on the
management of discovery and the admissibility of evidence under an
unsustainable exercise of discretion standard.” Guay, 162 N.H. at 385. Based

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upon our review of the records, we conclude that the trial court did not
unsustainably exercise its discretion when it ruled that it would not disclose
any of the victim’s counseling records.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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