State of New Hampshire v. Stephen Girard

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0425, State of New Hampshire v.
Stephen Girard, the court on February 21, 2024, issued the
following order:
The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). In October 2018, the defendant, Stephen Girard, appealed
his convictions, following a jury trial in the Superior Court (Delker, J.), on
charges of aggravated felonious sexual assault. See RSA 632-A:2 (2016 &
Supp. 2023). The defendant argued, among other things, that the trial court
erred by failing to disclose certain confidential records that it reviewed in
camera.

In October 2020, we remanded this case because the trial court had not
had the benefit of our opinion in State v. Girard, 173 N.H. 619 (2020), in which
we clarified the standard that a trial court must apply when determining
whether confidential records must be disclosed to a defendant. We remanded
to allow the trial court: (1) to review the records in accordance with the clarified
standard; (2) if it determined that any records that it withheld should have
been disclosed in this case, to determine whether withholding the records was
harmless beyond a reasonable doubt; and (3) if it determined that withholding
the records was not harmless beyond a reasonable doubt, to grant the
defendant a new trial.

In January 2021, after reviewing the records, the trial court issued an
order “identif[ying] 8 additional pages in the records which may have any
bearing on issues of witness credibility.” These additional pages pertain to
seven counseling sessions. Because the court was “unaware of the full scope of
discovery produced in this matter,” it found that it could not determine “based
on the current state of the record whether the information contained in the
confidential records is cumulative of other information available to the parties.”
Therefore, the court disclosed the eight additional pages to the parties for the
limited purpose of “identifying how the newly disclosed records are relevant
and material.” In response, the defendant moved for a new trial due to the
materiality of the information contained in the disclosed records. The State, in
a responding memorandum of law, asserted that the additional records are
immaterial. Further, the State argued, if the court found them to be material,
the failure to release the records was harmless.

Following a hearing, the trial court issued a narrative order. As the court
noted, although “[b]oth sides agree that the post-remand counseling records
were relevant and favorable to the defense,” they contested “whether the
information in those records is material.” After reviewing the discovery
available to the defense prior to the trial and analyzing each counseling session
in detail, the court found, “[i]n light of the discovery available to the defense
and the testimony at trial,” that “the post-remand counseling records would
not have materially affected the defense or undermined the confidence in the
jury’s verdict.” The court concluded that “not only were the post-remand
counseling records not material, the failure to disclose them is harmless
beyond a reasonable doubt.”

On appeal, the defendant raises two issues. First, he argues that the
trial court erred because “there was a reasonable probability that disclosure of
the records from four counseling sessions would have resulted in an acquittal”
and, therefore, their non-disclosure prior to trial was not harmless beyond a
reasonable doubt. Second, he asserts that the trial court “may have erred by
failing to disclose other records” and requests that we review de novo “the
undisclosed records to determine whether the [trial] court erred in failing to
disclose any records.”

We review a trial court’s ruling on the management of discovery to
determine whether its decision is sustainable. Girard, 173 N.H. at 627. When
a defendant argues that a trial court’s ruling is unsustainable, the defendant
must demonstrate that the ruling was clearly unreasonable or untenable to the
prejudice of his case. Id.

When reviewing records in camera, the trial court must determine if
material and relevant evidence is in fact contained in the records. Id. at 628.
We have recognized that “records containing general credibility evidence may
be material and relevant thereby requiring disclosure.” Id. at 629. However, as
we stated in Girard,

evidence “is material only if there is a reasonable probability that”
disclosure of the evidence will produce a different result in the
proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985); see
United States v. Agurs, 427 U.S. 97, 104 (1976) (“[I]mplicit in the
requirement of materiality is a concern that the suppressed evidence
might have affected the outcome of the trial.”); State v. Olah, 184 A.3d
360, 368-69 (Me. 2018) (requiring disclosure of privileged records that
are “favorable to the accused and material to guilt or punishment”
(quotation omitted)). “A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Bagley, 473 U.S. at 682.

Id. at 628-29.

After reviewing the records that were examined by the trial court, as well
as the record of the trial court proceedings, we conclude that the defendant has

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not demonstrated that the court’s ruling was clearly unreasonable or untenable
to the prejudice of his case. See id. at 627. Rather, the court sustainably
exercised its discretion when it determined — in a well-reasoned and detailed
order — that the records disclosed after remand were not material to the
defendant’s defense. Therefore, we need not address whether the failure to
disclose those records was harmless error. Based on our further review, we
also conclude that none of the undisclosed records contain information that is
material and relevant to the defendant’s defense. See id. at 630. Accordingly,
we find no error.

Affirmed.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred; HICKS, J.,
sat for oral argument but did not participate in the final vote, see N.H. CONST.
pt. II, art. 78.

Timothy A. Gudas,
Clerk

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