Petition of State of New Hampshire (State v. Schefer)

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0561, Petition of State of New
Hampshire (State v. Schefer), the court on July 26, 2019,
issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioner, the State of New Hampshire, filed a petition for a writ of certiorari,
see Sup. Ct. R. 11, challenging an order from the Superior Court (Anderson, J.)
ordering a voir dire of the complainant immediately prior to a Hungerford
hearing for the sole purpose of determining whether the complainant’s memory
was repressed and recovered. See State v. Hungerford, 142 N.H. 110, 119
(1997) (explaining that when challenged, “testimony that relies on memories
which previously have been partially or fully repressed must satisfy a pretrial
reliability determination” which may require the trial court to hold a pretrial
hearing on admissibility). We affirm.

This case arises out of allegations of sexual assault by defendant David
Schefer over thirty-five years ago, when the complainant was approximately five
years old. In April 2014, the complainant began seeing a therapist for reasons
unrelated to the alleged abuse. Shortly thereafter, in July 2014, the
complainant reported the alleged abuse to the police and said her memories
were “fragmented and are slow and hard to recall.” The defendant was charged
with four counts of aggravated felonious sexual assault.

The defendant, alleging that the complainant’s memories were repressed,
moved for a Hungerford hearing. “Hungerford requires the trial court to make
a pretrial determination of whether the memory is repressed or continuous”
and “prohibits the admission of unreliable testimony based upon repressed
memory.” State v. Gibson, 153 N.H. 454, 458 (2006). A “trial court [can]
compl[y] with the Hungerford requirements by conducting a pretrial evidentiary
hearing and determining” whether the memories are repressed and recovered
or continuous. Id.; see also State v. Madore, 150 N.H. 221, 223-24 (2003).

The State moved to cancel the Hungerford hearing, “arguing that
Defendant has not established the existence of a repressed memory, which is a
necessary predicate to a Hungerford hearing.” In ruling on the State’s motion,
the trial court ordered a voir dire, to be conducted by the trial court or the
State, to determine whether the complainant’s memories are repressed and
recovered or continuous, and thus whether it would be appropriate to proceed
with a Hungerford hearing. The trial court explained that although it “does not
believe that Defendant is entitled to a Hungerford hearing based on the record
. . . at this time,” it “nevertheless believes that [an opportunity for voir dire] is
warranted given the [complainant]’s statements to the police, . . . the age of the
[complainant] at the time of the alleged abuse, [and the defendant’s expert]
report that questioned the techniques used by [the complainant’s therapist].”
This appeal by the State followed.

On appeal, the State argues that the trial court erred in ordering a voir
dire of the complainant because the evidence before the trial court did not
establish the presence of repressed memories that would trigger a Hungerford
hearing. The State contends that, because the defendant did not meet his
burden to establish the factual predicate for a Hungerford hearing, the trial
court erred when it ordered a pre-Hungerford voir dire. The State also argues
that because the trial court previously determined that the complainant had no
repressed memories in a different criminal case in which a different defendant
was convicted of abusing the complainant, the issue of whether repressed
memories exist in this case has already been resolved. The defendant counters
that the trial court did not err; rather, it followed the direction we provided in
Hungerford that trial courts must make a threshold determination of whether
the memory is repressed and recovered or continuous. We agree with the
defendant.

When reviewing a trial court’s ruling as to whether and how to conduct a
hearing or voir dire relating to recovered repressed memories, we will reverse
only for an unsustainable exercise of discretion. See Gibson, 153 N.H. at 457.
To sustain its burden, the State must show that the trial court’s decision was
unreasonable to the prejudice of its case. Id.

“The existence of repressed memory . . . is a necessary precursor to [a
Hungerford] hearing; only when repressed memory exists is a hearing held to
determine its reliability.” Madore, 150 N.H. at 224. Here, the trial court
concluded that “[w]ithout conducting a voir dire examination of the
[complainant] prior to trial, [it] cannot be certain whether the complainant is
claiming that she has had a continuous memory of the alleged assaults or
whether she is claiming that at some point she recovered memories.”
Therefore, given our substantial deference to the trial court on these matters,
we cannot say that under these circumstances the trial court unsustainably
exercised its discretion when it ordered a pre-Hungerford voir dire of the
complainant.

We also reject the State’s contention that the trial court’s determination
in a previous case that the complainant did not have repressed memories
precludes the need for a determination in this case. The previous
determination was made in a different case involving a different defendant, a

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different time period, and a different set of memories. Thus, the earlier
determination is not dispositive of the issue in this case.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

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