State of New Hampshire v. Hector Rivera

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0674, State of New Hampshire v. Hector
Rivera, the court on December 19, 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. After a
jury trial in Superior Court (Schulman, J.), the defendant, Hector Rivera, was
convicted on one count of aggravated felonious sexual assault, see RSA 632-
A:2, I (2016), and one count of pattern aggravated felonious sexual assault, see
RSA 632-A:2, III (2016). On appeal, the defendant argues that the trial court
erred in: (1) denying his motion to produce the complainant’s hospitalization
records for in camera review; and (2) declining to release certain of the
complainant’s mental health counseling records following the trial court’s in
camera review. We affirm in part, vacate in part, and remand.

The details of this case need not be set forth; it is sufficient to state only
those facts that pertain to the specific issues raised by the defendant on
appeal. See State v. King, 162 N.H. 629, 630 (2011). Prior to trial, the trial
court reviewed certain of the complainant’s mental health records in camera.
See generally State v. Gagne, 136 N.H. 101 (1992) (providing for in camera
review of confidential records under certain circumstances). Following the trial
court’s review of the records — which, according to the State, had been
voluntarily submitted by the complainant — the court determined that the
records should be made available to the parties, and issued a sealed order to
that effect. See id. at 104 (“[T]he trial court must permit defendants to use
privileged material if such material is essential and reasonably necessary to
permit counsel to adequately cross-examine for the purpose of showing
unreliability and bias.” (quotation and emphasis omitted)). Those records,
pertaining to counseling the complainant received after reporting the charged
offenses to police, revealed that the complainant had two prior contacts with
mental health providers: a counseling center and a psychiatric hospital. Based
on the information contained in the released records — as well as other
evidence suggesting that the complainant had discussed the charged offenses
with, and reported them to the police at the urging of, a mental health
counselor — the defendant filed a motion seeking in camera review of the
hospitalization and counseling records that are at issue in this appeal.

On May 24, 2018, the trial court granted the defendant’s motion with
respect to the counseling records, but denied it with respect to the
hospitalization records, concluding that “the defendant has not shown that the
records from the complainant’s hospitalization are likely to contain any non-
cumulative information.” On July 19, 2018, following its in camera review of
the counseling records, the trial court declined to release the records to the
parties, finding that, other than a brief reference to the charged offenses in the
patient history checklist, which the trial court quoted in its sealed order,
“[t]here is no other mention of sexual abuse and nothing else that is even
arguably relevant or material [to] any issue in this case, including witness
credibility.” This appeal followed.

“We review the trial court’s decision on the management of discovery
under an unsustainable exercise of discretion standard. To prevail, the
defendant must show the trial court’s rulings were clearly untenable or
unreasonable to the prejudice of his case.” King, 162 N.H. at 631 (citations
omitted). “[I]n order to trigger an in camera review of confidential or privileged
records, the defendant must establish a reasonable probability that the records
contain information that is material and relevant to his defense.” Gagne, 136
N.H. at 105.

This threshold showing is not unduly high. It requires only that a
defendant meaningfully articulate how the information sought is
relevant and material to his defense. To do so, he must present a
plausible theory of relevance and materiality sufficient to justify
review of the protected documents, but he is not required to prove
that his theory is true. At a minimum, a defendant must present
some specific concern, based on more than bare conjecture, that,
in reasonable probability, will be explained by the information
sought.

King, 162 N.H. at 632 (quotations and citations omitted).

With respect to the complainant’s hospitalization records, we find this
case highly analogous to King. See id. at 630-33. In King, the defendant
requested, and the trial court reviewed in camera, certain of the complainant’s
medical and counseling records. Id. at 630-31. Following its review, the court
made the records available to the parties. Id. Because the records revealed
that the complainant suffered from Attention Deficit Disorder and Oppositional
Defiant Disorder, had a tendency to “make up stories,” and had previously
made a false allegation of sexual assault, the defendant filed a motion seeking
additional related medical and counseling records, arguing that they may
provide further exculpatory information regarding the complainant’s credibility.
Id. at 631. The trial court denied the motion, finding that “the defendant failed
to articulate how the requested medical records would be material to his
defense.” Id. On appeal, we held that the trial court erred, observing that
“[t]he defendant presented specific arguments to carry his burden under
Gagne,” and concluding that the defendant’s “theory that the ADD and ODD

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medical and counseling records may contain additional information material
and relevant to his defense is based on more than bare conjecture.” Id. at 632
(quotation omitted). Moreover, we held that “the trial court erred in finding
that ‘in light of the voluminous records’ already produced, the supplemental
records were not material to the defendant’s defense.” Id. “Implicit in this
finding was an assumption that the additional records would be cumulative or
duplicative. Since neither the State nor the defendant had seen the
information in the requested records, and the trial court had not reviewed
them, the trial court’s conclusion was speculative.” Id.

Based on our review of the record and pleadings for this case, we find
that, with respect to the complainant’s hospitalization records, the defendant
carried his burden under Gagne: the defendant observed that the records
released by the trial court referenced the complainant’s earlier hospitalization
— which was proximate to the complainant’s report of the charged offenses to
police. The defendant also identified specific aspects of the complainant’s
mental health history, as well as possible treatments and statements made to
providers, that could be contained in the hospitalization records, and which
may bear on the complainant’s credibility. Thus, the defendant established a
reasonable probability, beyond bare conjecture, that the hospitalization records
contain information that is material and relevant to his defense. See id. at 632;
Gagne, 136 N.H. at 105. In concluding that “the defendant has not shown that
the records from the complainant’s hospitalization are likely to contain any
non-cumulative information,” the trial court erred. See King, 162 N.H. at 632.
Accordingly, we agree with the defendant that the trial court unsustainably
exercised its discretion in denying his motion to produce the hospitalization
records for in camera review. See id. at 631.

On remand, the trial court should review the complainant’s
hospitalization records in camera, and determine whether they contain
evidence that would have been “essential and reasonably necessary” to the
defense at trial. Gagne, 136 N.H. at 104 (quotation omitted). If the
hospitalization records do contain such evidence, the court should release the
records containing that evidence to the parties and provide them with an
opportunity to make arguments as to whether a new trial is warranted. See
State v. Graham, 142 N.H. 357, 364 (1997) (stating that if records do contain
evidence that would have been essential and reasonably necessary to the
defense at trial, the trial court “should order a new trial unless it finds that the
error of not admitting the evidence in the first trial was harmless beyond a
reasonable doubt”).

As to the second issue on appeal, we have reviewed the complainant’s
counseling records in camera, and find that they do not contain any
information that would be “essential and reasonably necessary” to the defense
at trial. Gagne, 136 N.H. at 104. Therefore, we conclude that the trial court

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sustainably exercised its discretion when it declined to release the
complainant’s counseling records to the parties. See King, 162 N.H. at 631.

Affirmed in part; vacated in
part; and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Eileen Fox,
Clerk

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