State of New Hampshire v. John Knott

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0751, State of New Hampshire v. John
Knott, the court on November 18, 2020, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, John Knott, appeals his conviction by a jury of one
count of aggravated felonious sexual assault. We remand for the trial court to
review certain confidential records in camera, but otherwise reject the claims of
error raised by the defendant.

A. Complainant’s Competency

The defendant first argues that the Superior Court (Ignatius, J.) erred by
finding that the complainant was competent to testify. However, the defendant
has not provided us with the competency hearing transcript as part of the
appellate record. As the appealing party, the defendant had the burden of
providing us with a record sufficient to decide his appellate issues. Bean v.
Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see Sup. Ct. R. 13. Absent
the transcript, we must assume that the evidence supported the trial court’s
decision. See Bean, 151 N.H. at 250. We review the court’s competency order
for errors of law only, see Atwood v. Owens, 142 N.H. 396, 397 (1997), and find
none.

B. In Camera Review of School Records

The defendant next asserts that the trial court erred by denying his
request that it review the complainant’s school records in camera. Before trial,
the defendant submitted two different requests for in camera review of the
complainant’s school records. One request pertained to records of the
complainant’s disclosure to school counselors that the defendant had sexually
assaulted her; the other request pertained to records concerning her cognitive
functioning. We address each request in turn.

1. School Counseling Records

Before trial, the defendant filed a motion for in camera review of records
of the complainant’s elementary school regarding the disclosure she made to
two school counselors that the defendant had sexually assaulted her. The
defendant contended that, to the extent that the records show that the
complainant made inconsistent statements about the assault, “those
inconsistencies are relevant to the defense.” He also asserted that “[a]ny
evidence supporting [the complainant’s] recollection of events, or discrepancies
in the reporting of same, and her veracity are relevant and discoverable.” The
defendant’s motion was based upon a police report regarding the disclosures
that the complainant made to the two school counselors.

The trial court denied the motion, ruling that “[m]erely stating that
someone made a report to a counselor is not sufficient to warrant in camera
review.” See State v. Taylor, 139 N.H. 96, 98-99 (1994). The trial court further
determined that “the defendant [had] not articulated an essential need for in
camera review of the school counselor’s records, particularly in light of the
police report addressing the reported disclosure and the contents of the
disclosure, as alleged.”

We review trial court decisions on the management of discovery under
our unsustainable exercise of discretion standard. State v. Ainsworth, 151
N.H. 691, 694 (2004). To satisfy this standard, the defendant must
demonstrate that the trial court’s decision is clearly untenable or unreasonable
to the prejudice of his case. Id.

A defendant’s request to obtain privileged records raises two distinct, but
related, issues. State v. Gagne, 136 N.H. 101, 104 (1992). The first issue is
the standard for obtaining in camera review of privileged material; the second
is the standard for obtaining disclosure of such material. Id. Here, the trial
court misapplied the first standard.

To trigger in camera review of privileged records, “the defendant must
establish a reasonable probability that the records contain information that is
material and relevant to his defense.” Id. at 105. To satisfy this standard, the
defendant must present “some specific concern, based upon more than mere
conjecture, that, in reasonable probability, will be explained by the information
sought.” State v. Sargent, 148 N.H. 571, 573 (2002).

We find Taylor instructive. There, the defendant asserted that he had
reason to believe the victim was interviewed by the Division for Children, Youth
and Families (DCYF). Taylor, 139 N.H. at 98. The defendant, however,
presented nothing more than this general assertion as justification for an in
camera review of DCYF files. See id. Unlike in Gagne, where we allowed in
camera review, the defendant in Taylor failed to offer “specific arguments
concerning relevant evidence that, according to information obtained
independently by counsel, may have been contained in the DCY[F] file.” Id.
Affirming the trial court’s denial of the defendant’s motion for in camera review,
we held that “[a]t a minimum, a defendant must present some specific concern,
based on more than bare conjecture, that, in reasonable probability, will be
explained by information in the DCY[F] file.” Id. at 99.

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 Applying Gagne, we conclude that the defendant established a
reasonable probability that the school counseling records contained
information that may have been material and relevant to his defense. See
Gagne, 136 N.H. at 105. His specific concern, that the complainant had
disclosed the sexual assault to two school counselors, was based upon more
than mere conjecture. Rather, his concern was based upon “information
obtained independently by counsel,” specifically, a police report revealing that
the disclosure had been made. Taylor, 139 N.H. at 98. Under these
circumstances, the defendant has met the standard to require that the trial
court review, in camera, the complainant’s school counseling records. We,
therefore, conclude that the trial court erred by refusing to review the
complainant’s school counseling records in camera and remand for the court to
review those records in camera.

On remand, we direct the trial court to apply the standard we clarified
recently in State v. Girard, 173 N.H. ___, ____ (decided October 16, 2020) (slip
op. at 8-9), to determine whether any of the records must be disclosed to the
defense. If, on remand, the trial court decides that the records contain
evidence meeting the Girard standard, then the 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. See State v. McLellan, 146 N.H. 108,
113 (2001).

2. Records Pertaining to the Complainant’s Cognitive Functioning

The defendant also filed a motion for in camera review of the
complainant’s academic “school records, including but not limited to, [her]
individualized educational plans (IEPs).” He argued that the records were
“relevant to show the level of [the complainant’s] cognitive functioning and
what, if any, accommodations are made for her in the school environment.”
The trial court denied the motion, reasoning that “[y]ears of school testing,
accommodations, quarterly educational goals, etc., are not material or relevant”
to the defendant’s aggravated felonious sexual assault charge.

Thereafter, the defendant filed a motion for reconsideration, asserting
that, “[a]lthough the requested records may not be directly relevant to the
pending charge[], [the trial court] overlooked the fact that they are necessary in
order to accurately ascertain [the complainant’s] level of function and whether
she is in fact a competent witness for the State.” The defendant contended that
“[a]n IEP or other associated records will a contain specific action plan
containing any necessary accommodations for [the complainant] based upon
her strengths, deficits, or particular learning styles.” He asserted that “[t]his
information becomes even more important based upon” the complainant’s
interview at the Child Advocacy Center. The trial court denied the motion,
stating that “[i]f there is a genuine issue regarding the competence of [the

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complainant] to testify, the court will conduct a competency hearing prior to
trial.”

The defendant also filed a motion requesting the trial court to conduct an
evidentiary hearing to assess the competency of the complainant to testify. See
N.H. R. Ev. 601(a). The trial court granted the motion and, in May 2019, before
the jury was selected, the court held such a hearing. Based upon the evidence
adduced at the hearing, the trial court found the complainant to be competent
pursuant to New Hampshire Rule of Evidence 601(a). The court specifically
found that she possesses “sufficient capacity to observe, remember, and
narrate, as well as [to] understand the duty to tell the truth.”

The defendant has failed to demonstrate that the trial court’s denial of
his request to review the complainant’s school records prejudiced his case. As
the defendant impliedly concedes, the school records he sought are not directly
relevant to his case. Their only tangential relevance is to the complainant’s
competency to testify. However, after he sought the records, the trial court
held an evidentiary hearing on that very issue. Under these circumstances, we
cannot conclude that the trial court unsustainably exercised its discretion by
denying the defendant’s request for in camera review of the complainant’s
school records related to her cognitive functioning. Cf. State v. Madore, 150
N.H. 221, 225-26 (2003) (upholding the trial court’s refusal to review records in
camera where “the specific concern offered by the defendant – that in camera
review was needed to determine whether the victim’s memory was repressed –
was rendered moot by the trial court’s ruling that the victim’s memory was not
repressed”).

C. Disclosure of Counseling Records from West Central Behavioral
Health

To the extent that the defendant argues that the trial court erred when it
declined to disclose to him the complainant’s counseling records from West
Central Behavioral Health following the court’s in camera review of them, we
conclude that we are unable to review his argument substantively because he
did not file a motion asking that we order the trial court to transmit the records
to this court. See Bean, 148 N.H. at 250; see also Sup. Ct. R. 13(2).

D. Deposition of the Complainant’s Mother

The defendant next asserts that the trial court erred by denying his
motion to depose the complainant’s mother. In his motion, the defendant
argued that deposing the complainant’s mother was “essential and required” so
that the defendant could “understand the complete context” of the conversation
between the mother and the complainant when the complainant disclosed the
assault. The defendant also asserted that the deposition was necessary
because the mother spoke with the complainant’s juvenile brother about the

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allegation and the brother was not interviewed by the Child Advocacy Center
and has not provided a statement. The defendant also contended that the
deposition was necessary because the mother was present when the
complainant was interviewed by the Child Advocacy Center. According to the
defendant, “[i]t is essential for the defense to understand who was present, who
interacted with [the complainant] and what, if anything, was said” when the
complainant left the interview room for five minutes. The defendant
represented to the trial court that he did not request to interview the
complainant’s mother because he has a “contentious relationship” with the
complainant’s family.

The trial court denied the motion, ruling that the defendant’s showing
was inadequate to compel a deposition. The court observed that there are
police reports about the mother’s conversations with the complainant and her
brother. The court stated that if the mother “is willing to be interviewed by the
defendant’s investigator, as the State suggests is a possibility, the parties
should proceed on an informal basis.”

A defendant does not have an unqualified due process right to compel
depositions in a criminal case. State v. Fernandez, 152 N.H. 233, 236 (2005).
The trial court may permit the defendant to depose a witness if the requested
deposition is “necessary . . . [t]o ensure a fair trial, avoid surprise or for other
good cause shown.” RSA 517:13, II(b) (2007). To determine whether a
deposition is necessary, the court must “consider the complexity of the issues
involved, other opportunities or information available to discover the
information sought by the deposition, and any other special or exceptional
circumstances which may exist.” Id. “[T]o succeed on a motion to depose, the
defendant must make a threshold showing of necessity given the particular
facts and circumstances of his case.” State v. Ellsworth, 142 N.H. 710, 715
(1998).

“We evaluate the trial court’s decision under our unsustainable exercise
of discretion standard.” Fernandez, 152 N.H. at 236. “To prevail, the
defendant must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” Id. Having considered the
arguments in the defendant’s brief, we conclude that he has failed to
demonstrate that the deposition was necessary to ensure a fair trial, avoid
surprise, or for other good cause. See id. The record demonstrates that the
trial court weighed the statutory factors when it decided that the defendant
had not met his burden of establishing necessity. See id. Accordingly, we
cannot conclude that the trial court unsustainably exercised its discretion in
denying the defendant’s motion.

To the extent that the defendant argues that he was entitled to the
deposition under the State or Federal Constitution, we consider his arguments
insufficiently developed for our review. “Judicial review is not warranted for

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complaints regarding adverse rulings without developed legal argument, and
neither passing reference to constitutional claims nor off-hand invocations of
constitutional rights without support by legal argument or authority warrants
extended consideration.” Appeal of Omega Entm’t, 156 N.H. 282, 287 (2007).

E. Pretrial Motion to Dismiss

Before trial, the defendant moved to dismiss the indictment on the
ground that the State would be unable to prove the charge against him given
that a neglect finding by DCYF regarding the complainant had been overturned
by the Administrative Appeals Unit (AAU) of the New Hampshire Department of
Health and Human Services. In denying the motion, the trial court ruled that
the determination by the AAU “is not binding on the prosecution or this Court”
and that although it might “suggest weaknesses in the State’s case when
presented to a jury, it does not warrant the extreme measure of dismissal of an
indictment brought by the Grand Jury.”

To the extent that the defendant argues that in so ruling, the trial court
erred, we are unpersuaded. As the appealing party, the defendant has the
burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740
(2014). The defendant has failed to demonstrate that by denying his motion to
dismiss the indictment, the trial court committed reversible error. See id.

F. DCYF Investigation

The defendant next asserts that the trial court unsustainably exercised
its discretion by “refus[ing] to allow [him] to offer evidence” related to the
investigation by DCYF and the finding by the AAU. Our review of the record
submitted on appeal does not demonstrate that the trial court ever “refused to
allow [the defendant] to offer” such evidence.

The only time during the two-day jury trial that the issue appears to have
been discussed was during defense counsel’s closing argument, when defense
counsel stated: “DCYF didn’t do any investigation. You didn’t hear any
testimony, other than that somebody from DCYF was present at the CAC. You
hear nothing more about anything that DCYF has done.” The State objected,
observing that DCYF did investigate, but that the State “didn’t bring that up in
this trial.” The State argued, “I don’t think that [defense counsel] should be
saying that DCYF didn’t investigate, whether they didn’t hear evidence of it,
when it’s not admissible. That’s inappropriate. It leaves the jury with the
wrong impression, that we could have brought in the evidence. We couldn’t
have.” The court agreed, and instructed the jury “to strike the last comment
that you heard from your consideration.” To the extent that the defendant
asserts that in striking the statement from defense counsel’s closing argument,
the trial court erred, we conclude that the argument is insufficiently developed
for appellate review. Any question that the defendant included in his notice of

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appeal, but that he did not brief, is deemed waived. See State v. Ayer, 154 N.H.
500, 519 (2006).

Remanded.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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