State of New Hampshire v. Robert M. Fitzgerald, Jr.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case Nos. 2019-0490 and 2021-0501, State of New
Hampshire v. Robert M. Fitzgerald, Jr., the court on November 7,
2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has determined
to resolve the case by way of this order. See Sup. Ct. R. 20(2). The defendant,
Robert M. Fitzgerald, Jr., appeals his convictions on one count of kidnapping,
see RSA 633:1, I (2016), two counts of second-degree assault, see RSA 631:2, I(f)
(2016), one count of simple assault — domestic, see RSA 631:2-b, I(a) (2016),
and one count of obstructing the reporting of a crime — domestic, see RSA
631:2-b, I(k)(1) (2016). He argues that the Trial Court (Smukler, J.) erred when
it denied his motion to dismiss the kidnapping indictment. He also argues that
the Trial Court (Delker, J.) erred when it subsequently denied his motion for a
new trial based on the State’s failure to disclose exculpatory evidence, and
denied his motion for a new trial based on ineffective assistance of counsel. We
affirm in part, vacate in part, and remand.

I

The defendant was first tried in superior court on March 18, 2019.
During the trial, the victim provided testimony about certain information that
the State had not previously disclosed to the defendant. Defense counsel
requested a mistrial; the State argued that a curative instruction could suffice.
The trial court granted the mistrial without prejudice.

A second jury trial was held in June 2019, at which the following evidence
was presented. At the time of the charged offenses, the defendant and the
victim had been married for approximately six weeks. On April 16, 2018, the
victim returned from work and found court documents with the defendant’s
name on them taped to the door to her apartment. She became upset after
reading them, and assuming that he was at work, she called the defendant. She
told him about “what was listed on those documents” and that she “was
extremely upset.” When she opened the door to her apartment, she found the
defendant inside. She told him that the marriage was over and that she wanted
him to move out of her apartment. He responded that she was not ending their
marriage and that the documents were false. She told him to “take his stuff and
go” before she went to her second job as a waitress at a local restaurant.
 Toward the end of her shift, the defendant appeared at the restaurant. He
was slurring his words and smelled of alcohol. To avoid seeing him, the victim
remained in the restaurant kitchen until he left. When the victim arrived home
after her shift, the defendant was standing outside the apartment with his dog.
Assuming that he was leaving, she walked past him into the apartment. As she
headed from her bedroom to the bathroom, the defendant entered the
apartment. She could see that “his things were still there.” He told her that he
was not leaving: “he wasn’t breaking up this family.” She told him to leave. She
tried to return to the bedroom to get her phone to call the police. As she headed
past him, he came behind her and pushed her into the wall. After she fell into
the wall, she began crying, and then screamed: “[G]et out.”

In response, the defendant came up behind her and put his arm around
her neck and his hand over her face. She attempted to scream but was unable
to breathe. When she finally stopped struggling, the defendant released her.
When she stood up to try to run to her bedroom to retrieve her phone, he
grabbed her and threw her on the couch. As she screamed and struggled to get
away from him, he took one of the couch pillows and held it over her face. He
told her that no one would miss her if she died and that he was going to kill her.
When she again stopped struggling, he allowed her to sit up on the couch. The
victim then went to her bedroom to attempt to call for help from her bedroom
window, but the defendant slammed it closed and pushed her toward the bed
and told her that she was not leaving. The victim’s phone was on the bed, and a
struggle ensued for the phone. The defendant ended up with the phone. The
victim again attempted to run to the bedroom window, but the defendant again
pushed her away from it. She ran toward the living room, and the defendant
put his arm around her neck and dropped her to the floor. The defendant
eventually allowed the victim to get up and go to the bathroom. The victim
attempted to open the bathroom window, but the defendant shut the window
and slammed the victim onto the toilet and held her there. The defendant
thereafter allowed the victim to go to the living room and sit on the couch, where
she asked for her phone back, pleading for him to let her go and let her call the
police, but the defendant refused. Eventually, she went back to her bed. The
defendant moved a table directly in front of the bedroom door and remained
seated there until the victim fell asleep. The next morning the defendant allowed
the victim to leave for work, where she contacted the police.

The defendant was subsequently charged with three counts of second
degree assault — strangulation; four counts of simple assault — domestic; one
count of criminal threatening; one count of kidnapping; and one count of
obstructing the reporting of a crime — domestic. As previously noted, the first
trial began on Monday, March 18, 2019. On the preceding Friday, March 15,
between 4 and 5 p.m., during a meeting with the prosecutor (Attorney Topham),
the victim advised the prosecutor for the first time about the court documents (a
child support petition) that she had found taped to the door. The prosecutor
shared this disclosure with defense counsel on Monday, March 18. The trial

2
court granted a brief recess to allow defense counsel to discuss the disclosure
with his client. The parties then agreed to proceed without reference to the
name of the documents or their contents. During cross-examination, defense
counsel asked the victim about her pretrial meetings with the prosecutor,
specifically asking her: “how many times have you spoken with Attorney
Topham?” The victim indicated that she had done so on two occasions, once
sometime around May 2018 and once on the previous Friday — March 15, 2019.

At the end of his cross-examination, defense counsel informed the trial
judge that the victim’s testimony regarding her encounter with the defendant
when she returned home from her first job had not been disclosed to him. The
prosecutor agreed, stating that he had mistakenly believed the information was
in the police reports. Defense counsel then requested a mistrial. The trial judge
ordered a recess in order to permit the parties and the judge to research
mistrials. The court reconvened 25 minutes later. The parties then argued the
motion for mistrial, after which the court granted a mistrial without prejudice,
stating: “In this case, a significant portion of the victim’s description and
testimony about what happened that day was not provided to the Defense
counsel until today, and he can’t possibly incorporate that into his trial tactics
or strategic planning with his client.”

The defendant was retried in June 2019 and was convicted. He appealed
to this court, challenging, inter alia, the denial of his motion to dismiss the
kidnapping indictment.

In March 2020, the defendant filed a motion for a new trial, arguing that
his counsel had provided ineffective assistance of counsel when counsel
requested a mistrial at the March 2019 trial without the defendant’s consent.1
In August 2020, the defendant filed a motion for discovery alleging that a third
meeting had taken place between the prosecutor and the victim on Monday,
March 11, 2019, and that documentation of the meeting had not been provided
to him. The State represented that the defendant had been given everything to
which he was entitled but agreed to provide a note created by the victim-witness
coordinator to document the March 11 meeting. The defendant thereafter filed a
second motion for a new trial based on the prosecutor’s failure to disclose
exculpatory evidence.

In August 2021, the Trial Court (Delker, J.) issued an order denying each
of the defendant’s post-conviction motions. He appealed that order to this court.
We accepted the discretionary appeal and consolidated it with the defendant’s
direct appeal.

1 On April 13, 2020, we granted the defendant’s assented-to motion for partial remand and stay

pending final resolution of his motion for a new trial.

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 II

We begin by considering the defendant’s argument that the trial court
erred in denying his motion to dismiss the kidnapping charge because: (1) “the
evidence was insufficient to exclude reasonable conclusions that [the]
defendant’s intent was not to terrorize”; (2) the doctrine of merger required
dismissal “because the acts of confinement were incidental to other offenses”;
and (3) the multiple fines for two offenses resulted in the defendant being
punished twice for the same offense in violation of the Double Jeopardy Clauses.
We address each challenge in turn.

A challenge to the sufficiency of the evidence raises a claim of legal error;
therefore our standard of review is de novo. State v. Bell, 175 N.H. 382, 385
(2022). To prevail on his challenge, the defendant must demonstrate that no
rational trier of fact, viewing all of the evidence and all reasonable inferences
from it, in the light most favorable to the State, could have found guilt beyond a
reasonable doubt. Id. When the evidence as to one or more elements of the
charged offense is solely circumstantial, a defendant challenging sufficiency
must establish that the evidence does not exclude all reasonable conclusions
except guilt. State v. Saintil-Brown, 172 N.H. 110, 117 (2019). The proper
analysis is not whether every possible conclusion consistent with innocence has
been excluded, but, rather, whether all reasonable conclusions based on the
evidence have been excluded. Id.

RSA 633:1, I, provides, in pertinent part, that a person is guilty of
kidnapping “if he knowingly confines another under his control with a purpose
to . . . [t]errorize him or some other person.” RSA 633:1, I(c). The defendant
argues that the circumstantial evidence failed to exclude the conclusion that his
conduct was intended to save his marriage, not to terrorize the victim. We
conclude that any such conclusion would be unreasonable. As the State aptly
argues in its brief: “It is unreasonable, and bordering on absurd, to conclude
that the defendant intended to save his marriage by beating up his wife and
confining her to a terrifying situation.” Moreover, even if we assume that the
defendant’s motive for his actions included a desire to prevent the victim from
leaving and ending their marriage, the only reasonable conclusion that can be
drawn from the evidence is that he sought to achieve that goal by confining and
purposely terrorizing the victim. See State v. Bean, 153 N.H. 380, 387 (2006)
(stating that conduct illuminates intent); cf. State v. Gordon, 161 N.H. 410, 415
(2011) (“Motive has been defined as supplying the reason that nudges the will
and prods the mind to indulge in criminal intent.” (quotation omitted)).

Next, the defendant contends that the kidnapping indictment includes
factual allegations that formed the basis for other charges that were brought,
including the charges for simple assault — domestic and obstructing reporting
of a crime — domestic. He argues that all of those charges should have been
merged.

4
 The merger doctrine, in this context, prohibits a conviction for kidnapping
based upon acts that fall within the definition of that crime but are merely
incidental to another crime. This doctrine is one of fairness, prohibiting
distortion of lesser crimes into much more serious crimes by excess of
prosecutorial zeal. The doctrine, however, is not designed to merge “true”
kidnappings into other crimes merely because the kidnappings were used
to accomplish ultimate crimes of lesser or greater gravity. Whether
restraint and movement are merely incidental to another crime or support
kidnapping as a separate crime is a fact-specific determination based on
the totality of the circumstances.

State v. Casanova, 164 N.H. 563, 566-67 (2013) (citations, quotations, and
brackets omitted).

The touchstone under the merger doctrine is whether the abduction is so
minimal, incidental and inseparable from the underlying crime that it does not
fairly constitute a separate crime of kidnapping. Id. at 568. Here, the
defendant’s confinement of the victim was neither minimal nor incidental to the
facilitation of another crime. We agree with the State that confinement was the
defendant’s primary objective.

The defendant next contends that his convictions for kidnapping and
obstructing the reporting of a crime — domestic violate the Double Jeopardy
provisions of the State and Federal Constitutions. See N.H. CONST. pt. I, art.
16; U.S. CONST. amends. V, XIV. We first review the matter under the State
Constitution.

The defendant contends that this is a “double-description” case, in which
the issue is whether two statutes describe separate offenses or merely provide
different descriptions of the same offense. In “double-description” cases, “we
examine whether proof of the elements of the crimes as charged will require a
difference in evidence.” State v. Ramsey, 166 N.H. 45, 51 (2014). The complaint
charging obstructing the reporting of a crime alleged that the defendant did
“[u]se physical force . . . against another to block that persons [sic] access to any
cell phone . . . with the purpose of preventing, obstructing, or interfering with
the report of any criminal offense . . . to a law enforcement agency to wit, he
knowingly used physical force against [the victim], who is his wife, by physically
grabbing her phone with the purpose of preventing her from reporting a criminal
offense to a law enforcement officer.” The indictment for kidnapping alleged that
the defendant “knowingly kept his wife . . . under his control in their apartment
when with the purpose to terrorize [the victim] he tackled her from behind as
she attempted to leave the apartment, grabbed her cellphone away from her,
slammed and locked an apartment window shut as [she] attempted to escape
through the window, physically blocked the apartment front door with his body
so [she] could not leave the apartment and screamed ‘DO YOU WANT TO DIE?
NO ONE WILL HEAR WHEN I KILL YOU.’”

5
 Here, proof of the elements of the two crimes as charged required different
evidence. For example, the kidnapping indictment required the State to prove,
inter alia, that the defendant kept the victim under his control with the purpose
to terrorize her. The obstructing report of a crime charge did not require such
proof. Similarly, the obstructing report of a crime complaint required the State
to prove that the defendant blocked the victim’s access to her cell phone with
the purpose of preventing her from reporting a criminal offense to a law
enforcement agency. The kidnapping indictment did not require such proof. As
the State notes, the evidence includes the victim’s testimony that she begged the
defendant for her phone back to let her call the police and he refused —
evidence showing the defendant’s purpose of preventing the victim from
reporting a criminal offense to a law enforcement agency that was unnecessary
to prove kidnapping.

Our analysis applying the State Constitution’s “difference in evidence test”
disposes of the defendant’s claim under the Federal Constitution. See
Blockburger v. United States, 284 U.S. 299, 304 (1932); State v. Sanchez, 152
N.H. 625, 632 (2005). Therefore, we reach the same result under the Federal
Constitution as we do under the State Constitution and conclude that the trial
court did not err when it denied the defendant’s motion to dismiss the
kidnapping charge.

III

The defendant next argues that his trial counsel was constitutionally
ineffective for: (1) failing to consult with him before obtaining the March 2019
mistrial; and (2) failing to move to dismiss on double jeopardy grounds before
the retrial.

The defendant cites both the State and Federal Constitutions to support
his claim. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends VI, XIV. The
standard for determining whether a defendant has received ineffective assistance
of counsel is the same under both the State and Federal Constitutions. State v.
Newton, 175 N.H. 279, 284 (2022). We review the constitutional competency of
counsel’s performance under the State Constitution, and rely on federal case law
only for guidance. See id.

Both the State and Federal Constitutions guarantee a criminal defendant
“reasonably competent assistance of counsel.” Id. at 285. To prevail upon a
claim of ineffective assistance of counsel, a defendant must demonstrate first
that counsel’s representation was constitutionally deficient, and second, that
counsel’s deficient performance actually prejudiced the outcome of the trial. Id.

To meet the first prong of this test, the defendant must show that
counsel’s representation fell below an objective standard of

6
 reasonableness. We judge the reasonableness of counsel’s conduct based
upon the facts and circumstances of that particular case, viewed from the
time of that conduct. As we have explained, judicial scrutiny of counsel’s
performance must be highly deferential; a fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the inherent difficulties in making this
evaluation, there is a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Because the
proper measure of attorney performance remains simply reasonableness
under prevailing professional norms, to establish that his trial attorney’s
performance fell below this objective standard of reasonableness, the
defendant must show that no competent lawyer would have engaged in
the conduct of which he accuses his trial counsel.

To meet the second prong, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the trial would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the trial’s outcome. The
prejudice analysis considers the totality of the evidence presented at trial.
Both the performance and prejudice prongs of the ineffectiveness inquiry
are mixed questions of law and fact. Therefore, we will not disturb the
trial court’s factual findings unless they are not supported by the evidence
or are erroneous as a matter of law, and we review the ultimate
determination of whether each prong is met de novo. A failure to establish
either prong requires a finding that counsel’s performance was not
constitutionally defective.

Id. (citations omitted). The court may consider either prong of the test first.
Strickland v. Washington, 466 U.S. 668, 697 (1984).

The defendant argues that trial counsel at his first trial in March 2019
was ineffective because he moved for a mistrial without first consulting the
defendant. We have never before decided whether a defense attorney’s failure to
consult with the client before moving for a mistrial constitutes ineffective
assistance of counsel. Accordingly, we look to decisions from other jurisdictions
for guidance.

“An attorney undoubtedly has a duty to consult with the client regarding
‘important decisions,’ including questions of overarching defense strategy. That
obligation, however, does not require counsel to obtain the defendant’s consent
to every tactical decision.” Florida v. Nixon, 543 U.S. 175, 187 (2004)
(quotations and citations omitted).

7
 The only decisions that have been identified by the Supreme Court as
belonging exclusively to the defendant are whether to plead guilty, waive a
jury, testify in his or her own behalf, or take an appeal. The Supreme
Court has never suggested that decisions about mistrials are of such a
moment that they can be made only by the defendant himself . . . .

United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (quotations and
citation omitted).

The defendant does not now contend that the decision to request a
mistrial is one that must be made by the client rather than by the attorney.
Rather, he argues that counsel had a duty to consult with him before making
the decision to request a mistrial. By failing to consult, the defendant argues,
counsel’s representation was constitutionally deficient.

Courts are divided on this issue. The State relies upon cases such as
Chapman, which states that the decision to seek a mistrial is a tactical one to be
made by counsel, not the client, id., and which concludes that when a decision
is a tactical one left to the sound judgment of counsel, then counsel “need not
consult with the client about the matter,” id. at 369. The defendant, on the
other hand, relies upon cases such as Government of Virgin Islands v.
Weatherwax, 77 F.3d 1425, 1436 (3d Cir. 1996), which recognizes a requirement
that counsel consult with the client on important strategic and tactical
decisions, even when counsel has the last word. The defendant argues that
because his counsel failed to consult with him on this matter, he “received a
mistrial he did not want.”

In any case presenting an ineffectiveness claim, the performance inquiry
must be whether counsel’s assistance was reasonable considering all the
circumstances. Prevailing norms of practice as reflected in American Bar
Association standards and the like, are guides to determining what is
reasonable, but they are only guides. No particular set of detailed rules
for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant. . . .
Moreover, the purpose of the effective assistance guarantee of the Sixth
Amendment is not to improve the quality of legal representation, although
that is a goal of considerable importance to the legal system.
The purpose is simply to ensure that criminal defendants receive a fair
trial.

Strickland, 466 U.S. at 688-89 (citations omitted) (emphasis added).

We decide this case keeping that purpose in mind. We need not decide
whether to adopt the State’s position that counsel need never consult with the
client about tactical decisions such as moving for a mistrial. Assuming, without

8
deciding, that there is a constitutional duty to consult regarding issues on which
counsel has the last word, we agree with the Weatherwax Court’s statement
that:

[t]he constitutional duty to consult regarding issues on which counsel has
the last word requires only that counsel act reasonably in light of the
circumstances and what is likely to be accomplished by a consultation.
When decisions must be made in the heat of battle at trial, for example, it
will often be unreasonable to expect any consultation before the decision
is made and implemented, either because the opportunity for meaningful
consultation does not exist or because there is little if anything to be
gained by consultation.

Weatherwax, 77 F.3d at 1437. In this case, following a hearing on the
defendant’s post-conviction motions for a new trial, the superior court credited
trial counsel’s testimony that the defendant “was not a very interested client”
and “deferred to [counsel] on all legal decisions,” and that counsel “believed [the
defendant] would do the same thing with respect to the mistrial.” Further, the
court found that the defendant’s claim, that he would have objected to the
request for a mistrial at the time it was made, was not credible. Indeed, the
court noted counsel’s testimony that the defendant “was happy with the fact he
was granted a new trial when [counsel] was able to explain the outcome to him
immediately following the court’s ruling granting a mistrial.”

Furthermore, while the trial court took a break after counsel moved for a
mistrial, counsel testified that he did not then have a long conversation with the
defendant about what the mistrial would be because counsel did not have much
time to prepare — counsel spent the entire break researching. Finally, counsel’s
reasons for seeking a mistrial were found by the trial court to be reasonable.
Indeed, the trial judge who granted the mistrial, over the State’s objection, found
“manifest necessity” for the mistrial, stating:

In this case, a significant portion of the victim’s description and
testimony about what happened that day was not provided to the Defense
counsel until today, and he can’t possibly incorporate that into his trial
tactics or strategic planning with his client.

We conclude that the record demonstrates that counsel acted reasonably
under the circumstances. It is apparent that little if anything would have been
gained by consultation. We are not persuaded that the lack of consultation
deprived the defendant of a fair trial. Accordingly, the defendant has failed to
demonstrate that counsel’s representation was constitutionally deficient.

We reach the same result under the Federal Constitution. See id.

9
 The defendant next argues that counsel was also ineffective at his first
trial because he failed to file a motion to dismiss based on intentional
prosecutorial overreach. When prosecutorial overreach is intended to goad a
defendant into requesting a mistrial, the Double Jeopardy Clause prohibits a
retrial. State v. Zwicker, 151 N.H. 179, 188 (2004).

“Goading” for the purposes of establishing that double jeopardy bars
retrial is narrowly defined. Gross negligence by the prosecutor, or even
intentional conduct that seriously prejudices the defense, is insufficient to
be characterized as goading. Prosecutorial conduct that might be viewed
as harassment or even overreaching, even if sufficient to justify a mistrial
on defendant’s motion, is not goading. Instead, there must be intent on
the part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause. Prosecutorial intent may be inferred from
objective facts and circumstances.

State v. Verrill, 175 N.H. 428, 437 (2022) (quotations, citations, and brackets
omitted).

Here, we choose to address the second prong of the ineffective assistance
test first. In order for the defendant to demonstrate actual prejudice from the
failure to file a motion to dismiss based on intentional prosecutorial overreach,
he must show that such a motion would properly have been granted. See State
v. Kepple, 155 N.H. 267, 273 (2007). We agree with the State that the defendant
has failed to make that showing and that the record would not support it.

The defendant argues that the prosecutor’s failure to disclose information
from the victim regarding her interaction with the defendant before she left for
her second job was the basis for the granting of the mistrial. The record would
not support a finding that this failure “was intended to provoke the defendant
into moving for a mistrial.” Verrill, 175 N.H. at 437 (quotation omitted). When
the issue arose, the prosecutor apologized for the failure, explaining that he had
mistakenly believed that the undisclosed information was in the police reports.
We see no objective facts or circumstances reflected in the record that would
support a finding of “goading.” Accordingly, we conclude that the defendant has
failed to demonstrate actual prejudice from counsel’s failure to move for
dismissal based on intentional prosecutorial overreach.

We reach the same result under the Federal Constitution. See Oregon v.
Kennedy, 456 U.S. 667, 676, 679 (1982).

IV

Finally, we consider the defendant’s argument that the trial court erred in
denying his motion for a new trial, following his convictions after his second
trial, based on the State’s “knowing failure to disclose exculpatory evidence.”

10
The State and Federal Due Process Clauses require the State to disclose
information favorable to the defendant if it is material to guilt or punishment.
Verrill, 175 N.H. at 440. Favorable evidence is that which is admissible, likely to
lead to the discovery of admissible evidence, or otherwise relevant to the
preparation or presentation of the defense. State v. Shepherd, 159 N.H. 163,
170 (2009). Favorable evidence may include impeachment evidence. Id.
Favorable evidence is “material” if there is a reasonable probability that, had it
been disclosed to the defendant, the result of the proceeding would have been
different. Verrill, 175 N.H. at 440. As the defendant correctly observes, we have
held that our State Constitution provides greater protection to the defendant
than does the Federal Constitution when the materiality of favorable evidence
that has been knowingly withheld by the prosecution is at issue. See id. at 441.
In such cases, the burden shifts to the State to prove beyond a reasonable doubt
that the undisclosed evidence would not have affected the verdict. Id. In this
case, the defendant argues that the trial court erred in assigning to the
defendant the burden to establish the materiality of the undisclosed evidence.
The interpretation of a trial court order presents a question of law, which we
review de novo. State v. Luikart, 174 N.H. 210, 215 (2021).

The evidence at issue is a note prepared by the victim-witness advocate
following a meeting on March 11, 2019 of the victim, the prosecutor (DT), and
the victim-witness advocate, which stated:

[The victim] came in for trial prep today. DT showed her a new report we
received from defense last week, that I did not know about, from her ex-
boyfriend. He had no knowledge of the case at hand and the entire report
was an attack on her character. DT said he will be fighting this and he
does not think the man will be able to say any of this at trial because it is
not relevant, but he wanted her to be aware of everything.

At the end we scheduled for her to come back [F]riday at 3 for another run
through. She was worried because she had forgotten some small details
and was reminded when reading her application for protective order. She
is worried the Jury will think she is lying if she does not remember every
detail. DT told her that she could come back [F]riday and it will seem
more coherent and strong. Today he was asking questions off the cuff and
they went over a lot of information so it could be overwhelming. She is
glad for another day to prepare and will be here [F]riday at 3pm.

The trial court’s order summarized the defendant’s challenge:

He primarily takes issue with the following three sentences [in the
March 11 note]: “She was worried because she had forgotten some
small details . . . . She is worried the Jury will think she is lying if
she does not remember every detail. [Attorney Topham] told her
that she could come back [F]riday and it will seem more coherent

11
 and strong.” . . . From this, the defendant extrapolates that the
March 11 meeting did not go well and the victim’s testimony had
substantive issues. His theory, essentially is that after her weak
performance at the March 11 meeting, the victim returned on March
15 with a stronger, made-up story about the child support petition
and it causing the argument leading to her assault. He claims that
because the case rose and fell on the victim’s testimony (due to the
lack of physical evidence), he could have used the note to impeach
her credibility in many ways, including asking how many times she
had met with the State to prepare her story. . . .

The Court does not share the defendant’s view of the March
11 note. There is nothing in the note, nor in [the victim-witness
coordinator]’s or Attorney Topham’s testimony, to suggest that the
victim gave inconsistent stories or statements during her meeting
with the State.

The court then observed that “even accepting that the State knowingly
withheld the March 11 note, the defendant has failed to show that the note is
material.” The defendant contends that this language demonstrates that the
trial court applied the wrong standard by requiring him to prove materiality
rather than placing the burden upon the State. The State argues, however, that
the trial court had already concluded that the March 11 note did not constitute
favorable impeachment evidence. Therefore, the State contends, although the
defendant correctly observes that the trial court misallocated the burden on the
materiality prong after assuming that the State knowingly withheld the evidence,
that error is of no consequence because the defendant failed to meet his initial
burden of showing that the evidence was favorable.

Even if we assume, as the State contends, that the trial court ruled that
the withheld evidence was not favorable, we agree with the defendant that the
trial court erred in so ruling. As noted above, favorable evidence may include
impeachment evidence. The March 11 note at a minimum indicates that the
victim and the prosecutor had conducted an undisclosed preparatory “run-
through” of her testimony before the meeting on March 15. The fact of the
March 11 meeting itself is inconsistent with the victim’s testimony on March 18,
just one week after the meeting took place, when she did not reveal the existence
of the March 11 meeting when asked how many times she had spoken with the
prosecutor. As the defendant argues, the March 11 note could support a jury
conclusion either that the victim was downplaying the amount of preparation
she engaged in with the prosecutor or that her memory, even in the near term, is
poor.

We conclude that the undisclosed evidence constitutes favorable evidence.
As a remedy, the State argues that we should remand the case to the trial court
to address whether the State knowingly withheld the evidence. The defendant

12
agrees, as do we. Thereafter, the trial court shall determine whether the
undisclosed evidence was material, allocating the burden of proof to the State if
it determines that the evidence was knowingly withheld. See Shepherd, 159
N.H. at 170.

Because the defendant prevails on this issue under the State Constitution,
we need not address his claim under the Federal Constitution. See State v. Ball, 124 N.H. 226, 237 (1983).

V

In conclusion, we affirm the defendant’s convictions on direct appeal, as
well as the denial of his motions for new trial based on ineffective assistance of
counsel and double jeopardy. We vacate the denial of his motion for new trial
based on the State’s failure to disclose evidence and remand for further
proceedings consistent with this order.

Affirmed in part; vacated in
part; and remanded.

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

Timothy A. Gudas,
Clerk

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