State of New Hampshire v. Ronnie J. Robichaud

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0020, State of New Hampshire v. Ronnie
J. Robichaud, the court on June 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). The defendant, Ronnie J. Robichaud, appeals his conviction
for misdemeanor driving under the influence (DUI), first offense, see RSA 265-
A:2 (2014), following a bench trial in the Circuit Court (Keating, J.). The
defendant argues that: (1) the evidence was insufficient to support his DUI
conviction; and (2) his state and federal constitutional rights to due process,
produce all proofs favorable, and confrontation were denied by the trial court’s
decision to hold an ex parte hearing regarding potentially exculpatory evidence.
Because we agree with the State that the evidence presented was sufficient for
a DUI conviction and that the defendant’s constitutional challenges fail, we
affirm.

The following facts are supported by the record or are undisputed. At
approximately 8:10 p.m. on June 15, 2019, a State police officer stopped the
defendant in Weirs Beach after observing him driving erratically on a crowded
road. As the officer asked for the defendant’s license and registration, he could
smell alcohol and observed that the defendant had red, glassy eyes, and spoke
with a “thick tongue.” The defendant admitted to having one alcoholic drink
shortly before driving, as well as “some beers” earlier in the day. The officer
asked the defendant to step out of the vehicle and perform field sobriety tests,
and the defendant consented. The officer administered a horizontal gaze
nystagmus test and observed signs that the defendant was impaired. The
officer then attempted to administer the walk and turn test, but the defendant
failed to follow the officer’s instructions and the officer stopped the test. The
officer asked the defendant whether he would be able to complete the third test
— the “one leg stand” test — and the defendant responded that he would not
and that the officer “should arrest him.” The officer then arrested the
defendant. On June 21, 2019, the State charged the defendant with one class
B misdemeanor DUI.

On July 8, 2020, the officer, through counsel, intervened in the DUI
proceeding and filed a motion in limine and request for a hearing. According to
the defendant, on that same day, the State notified the defendant’s attorney via
email that the officer involved in the case may have engaged in conduct subject
to disclosure under the exculpatory evidence schedule and that such material
may be forthcoming. See RSA 105:13-d, I (2023) (“The exculpatory evidence
schedule shall consist of a list of all current or former law enforcement officers
whose personnel information contain potentially exculpatory evidence.”).

On July 30, 2020, the Trial Court (Vetanze, J.) held a confidential ex
parte hearing attended by an attorney for the State, the officer’s counsel, and
the officer himself. The court reviewed the confidential records at issue in
camera. Following the hearing, the court issued a sealed order to the
individuals present at the hearing. It also issued a public order informing the
parties that the court had held the ex parte hearing to “assess whether the
State ha[d] a duty to disclose possibly exculpatory ‘Laurie’ material.” See State
v. Laurie, 139 N.H. 325 (1995); RSA 105:13-b (2023). The court explained
that, having reviewed the alleged facts and the applicable law, it concluded that
the evidence at issue was neither exculpatory nor did it implicate the general
credibility of any witness. The court, accordingly, did not order the State to
disclose the evidence to the defendant. The defendant did not file a motion to
reconsider.

The defendant subsequently filed a motion to dismiss on the ground that
the trial court’s decisions to hold an ex parte hearing and to determine the
evidence to be non-exculpatory — without notifying the defendant beforehand
— violated the defendant’s constitutional rights to due process, to produce all
proofs favorable, and to confrontation. The court denied this motion. In so
doing, the court noted the defendant’s right to seek an interlocutory appeal.

The defendant subsequently filed a motion seeking interlocutory appeal.
While working with the parties to formulate an interlocutory appeal statement,
the Trial Court (Garner, J.) noted that it had offered to re-review the sealed
documents, but that the parties had reached an “impasse about the question of
how” or “what procedure” the court “might follow in looking at the sealed
documents.” The defendant represented that he could not “in good conscience
. . . agree to the procedure that’s being suggested as far as having [the court]
review the material that was submitted as potentially exculpatory or
impeaching, and therefore covered by Laurie.” He sought to preserve his
objection to his lack of notice of and opportunity to participate in the ex parte
hearing — in essence, he objected to the use of an ex parte proceeding under
the circumstances. The defendant subsequently filed an interlocutory appeal,
which we declined to accept.

On November 16, 2021, the Trial Court (Keating, J.) held a bench trial
and found the defendant guilty. This appeal followed.

On appeal, the defendant raises two challenges to the trial court’s
rulings. First, he asserts that the evidence was insufficient to support his DUI
conviction. Second, he argues that the process the trial court employed to
review potentially exculpatory evidence — including the ex parte hearing —

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violated his constitutional rights to due process, to produce all proofs
favorable, and to confrontation as guaranteed by Part I, Article 15 of the New
Hampshire Constitution and the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution.

We first address the sufficiency issue. See Chapman v. Douglas, 146
N.H. 209, 211 (2001) (noting our “established policy against reaching a
constitutional issue in a case that can be decided on a non-constitutional
ground”). As a threshold matter, the State asserts that the defendant did not
fully brief his insufficiency argument on appeal, and thereby waived his
sufficiency of the evidence challenge. See Mountain View Park, LLC v. Robson, 168 N.H. 117, 121 (2015). After reviewing the defendant’s appellate pleadings,
we conclude that he adequately briefed this issue for our review. We now turn
to the merits.

To prevail in a challenge to the sufficiency of the evidence, the defendant
bears the burden of proving that no rational trier of fact, viewing the evidence
in the light most favorable to the State, could have found guilt beyond a
reasonable doubt. See State v. Kelley, 159 N.H. 449, 454-55 (2009). The trier
of fact “may draw reasonable inferences from facts proved and also inferences
from facts found as a result of other inferences, provided they can be
reasonably drawn therefrom.” State v. Sanborn, 168 N.H. 400, 413 (2015)
(quotation omitted). When reviewing the evidence, we examine “each
evidentiary item in the context of all the evidence, and not in isolation.” State
v. Saintil-Brown, 172 N.H. 110, 117 (2019). We review a challenge to the
sufficiency of the evidence de novo because it raises a claim of legal error. Id.
Here, because the defendant chose to present a case, we review the entire trial
record to assess the sufficiency of the evidence. State v. Dion, 164 N.H. 544,
548 (2013).

To convict the defendant of DUI, the State had to prove beyond a
reasonable doubt that the defendant drove or attempted to drive a vehicle on a
way while he was “under the influence of intoxicating liquor.” RSA 265-A:2,
I(a); Kelley, 159 N.H. at 452. To prove that the defendant was “under the
influence of intoxicating liquor,” RSA 265-A:2, I(a), the State had to prove
beyond a reasonable doubt that he was impaired to any degree, Kelley, 159
N.H. at 452.

The defendant argues that the State’s evidence of impairment was wholly
circumstantial and that the evidence was insufficient because it did not
exclude all reasonable conclusions other than guilt. See, e.g., State v. Castine, 173 N.H. 217, 220 (2020) (stating that, when evidence as to an element of proof
is solely circumstantial, the evidence “must exclude all reasonable conclusions
except guilt” (quotation omitted)). However, we agree with the State that the
evidence introduced to prove the defendant’s impairment, discussed below, was
not solely circumstantial. See Kelley, 159 N.H. at 454 (explaining that, in DUI

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prosecution, officer’s direct observations of defendant’s behavior and
statements constitute direct evidence of impairment).

At trial, the State presented evidence of impairment through the
arresting officer, who testified about his direct observations of the defendant’s
conduct and statements, including the following: (1) the defendant’s erratic
operation of the vehicle; (2) the odor of an alcoholic beverage within the vehicle;
(3) the defendant’s thick tongue; (4) the defendant’s glassy, red eyes; (5) the
defendant’s admission to drinking an alcoholic beverage shortly before driving
and to drinking earlier in the day; (6) the defendant’s performance and
behavior during the field sobriety tests; (7) the defendant’s multiple requests
that the officer “give him a break” because he “was just going up the road”; (8)
the defendant’s statement that he was “the closest one sober” to go pick up his
friend; and (9) the defendant’s refusal to take any chemical tests. We conclude
that, viewing this evidence in the light most favorable to the State, it was
sufficient for a rational trier of fact to find beyond a reasonable doubt that the
defendant was impaired to any degree and guilty of DUI. See id. at 455 (finding
evidence sufficient to support DUI conviction when, after officer stopped
defendant for crossing double yellow line, defendant exhibited signs of
impairment, failed field sobriety tests, and admitted to having consumed
alcohol); State v. Hull, 149 N.H. 706, 712 (2003) (finding sufficient evidence of
intoxication based upon officers’ testimony that defendant smelled of alcohol,
slurred his speech, had blood shot eyes, swayed while standing, and performed
poorly on field sobriety tests, and evidence that defendant refused blood
alcohol test).

We turn next to the defendant’s constitutional claims. The defendant
argues that the procedure utilized by the trial court regarding the potentially
exculpatory evidence violated his state and federal constitutional rights to due
process, production of all proofs favorable, and confrontation. Specifically, he
contends that the procedure was unconstitutional because the court reached a
final decision as to whether the evidence should be disclosed following an ex
parte hearing, thereby depriving him of notice and an opportunity to be heard.
The State argues that the defendant waived his constitutional challenges and
asserts that, even if the defendant did not waive these claims, the trial court’s
procedure complied with RSA 105:13-b and did not violate the defendant’s
constitutional rights. We assume in the defendant’s favor that he did not waive
his constitutional claims and turn to a consideration of the merits.

We first address the defendant’s arguments under the State Constitution
and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H.
226, 231-33 (1983). Because the defendant’s arguments pose questions of
constitutional law, our review is de novo. See State v. Benner, 172 N.H. 194,
198 (2019). Although the defendant asserts multiple constitutional rights, we
focus on his due process right to disclosure of exculpatory evidence because,
under the circumstances, his rights to produce all proofs favorable and to

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confrontation depended upon that right. Compare Duchesne v. Hillsborough
County Attorney, 167 N.H. 774, 777 (2015) (due process guarantees disclosure
of “information favorable to the defendant that is material to either guilt or
punishment”), with State v. Adams, 133 N.H. 818, 826 (1991) (right to produce
all proofs favorable entitles defendant “only to testimony that is both material
and favorable to his defense” (emphasis added)); State v. Graf, 143 N.H. 294,
301 (1999) (“To establish a violation of a defendant’s right of confrontation, the
defendant must show that the trial court’s ruling precluding admission of the
privileged information prejudiced his defense.” (emphasis added)).

“[I]n a criminal case, the State is obligated to disclose information
favorable to the defendant that is material to either guilt or punishment.”
Duchesne, 167 N.H. at 777; see also Brady v. Maryland, 373 U.S. 83, 87
(1963). This obligation arises from a defendant’s constitutional right to due
process of law and aims to ensure that defendants receive fair trials.
Duchesne, 167 N.H. at 777. The duty to disclose encompasses both
exculpatory information and information that may be used to impeach the
State’s witnesses and applies whether or not the defendant requests the
information. Id. “Essential fairness, rather than the ability of counsel to ferret
out concealed information, underlies the duty to disclose.” Id. (quotation
omitted).

Although part of the record in this case is sealed, the State has
acknowledged that the potentially exculpatory evidence at issue was contained
in a police personnel file. RSA 105:13-b governs the confidentiality of police
personnel files and “is designed to balance the rights of criminal defendants
against the countervailing interests of the police and the public in the
confidentiality of officer personnel records.” Duchesne, 167 N.H. at 780. This
statute “cannot limit the defendant’s constitutional right to obtain all
exculpatory evidence,” id. at 781 (quotation omitted); it merely effectuates that
right, see Am. Civil Liberties Union of N.H. v. N.H. Div. of State Police, 176 N.H.
___, ___ (decided Nov. 29, 2023) (slip op. at 8).

As relevant here, RSA 105:13-b, II provides that, “[i]f a determination
cannot be made as to whether evidence [in a police personnel file of a police
officer who is serving as a witness in any criminal case] is exculpatory, an in
camera review by the court shall be required.” This provision “covers
situations in which there is uncertainty as to whether evidence contained
within police personnel files is, in fact, exculpatory.” Duchesne, 167 N.H. at
781. The record reflects that this was the situation presented to the trial court.
Compare RSA 105:13-b, II, with RSA 105:13-b, I, III. In response, the court
reviewed the evidence in question in camera to determine whether it was
indeed exculpatory or otherwise “material to guilt or punishment.” See RSA
105:13-b, II; Duchesne, 167 N.H. at 777.

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 We observe that RSA 105:13-b does not set forth a specific process — in
addition to an in camera review — that must be followed when uncertainty
exists regarding whether a police personnel file contains exculpatory evidence.
See RSA 105:13-b. Nor do the cases relied upon by the defendant establish a
specific constitutionally-required process in this situation. See Duchesne, 167
N.H. at 777-83; Petition of State of N.H. (State v. Theodosopoulos), 153 N.H.
318, 320-22 (2006); Laurie, 139 N.H. at 327-30; Brady, 373 U.S. at 87. On the
other hand, we acknowledge that the circumstances of this case are unusual: a
third party intervened and filed a motion that triggered the court’s review of the
potentially exculpatory evidence and the trial court held an ex parte hearing.
Cf. Rullo v. Rullo, 121 N.H. 299, 300 (1981) (observing that estate, which
alleged that criminal defendant had engaged in trespass and negligence, had
no right to intervene in criminal case); Am. Civil Liberties Union of N.H. v. City
of Concord, 174 N.H. 653, 658, 663 (2021) (explaining that, in cases involving
Right-to-Know Law exemption related to law enforcement records, ex parte in
camera hearings may be “used cautiously and rarely” (quotation omitted)).
Ultimately, however, we need not decide whether the process used by the trial
court was improper, because even if it was, the defendant has failed to show
that any error in the trial court’s process prejudiced him.

The defendant cannot prevail on his due process claim absent a showing
of actual prejudice. See Graf, 143 N.H. at 303; McIntire v. Woodall, 140 N.H.
228, 230 (1995). In the context of due process claims premised upon
inadequate notice, we have found proof of prejudice lacking when the appellant
failed to utilize a means available to him or her in the trial court proceeding to
cure the potential prejudice caused by inadequate notice. See McIntire, 140
N.H. at 230; Petition of Blake, 137 N.H. 43, 48-49 (1993). For example, in
McIntire, the appellant claimed that he was prejudiced by inadequate notice of
the trial court’s intention to hear testimony and decide issues of fact at a
scheduled hearing. McIntire, 140 N.H. at 229, 230. We concluded that he had
failed to prove he was prejudiced by the inadequate notice in part because he
declined the court’s offer of an opportunity to present additional evidence at the
hearing and failed to request a continuance. See id. at 230; see also Petition of
Blake, 137 N.H. at 48-49 (no due process violation where a request for a
continuance could have cured any prejudice).

In this appeal, the defendant does not challenge the merits of the trial
court’s decision not to disclose the records, nor does he ask us to review that
decision by reviewing the sealed records de novo. Accordingly, the only remedy
that we could grant would be a remand for a second review of the sealed
records by the trial court. However, the appellate record reflects that the
defendant was already offered such a remedy by the trial court and declined it.
He has, therefore, failed to prove actual prejudice. See McIntire, 140 N.H. at
230.

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 We conclude that the defendant has not shown he was in fact prejudiced
by the process resulting in non-disclosure of the sealed records. Accordingly,
we determine that the flaws, if any, in the trial court’s process did not
constitute a violation of the defendant’s due process or other constitutional
rights. See Graf, 143 N.H. at 303. The Federal Constitution offers the
defendant no greater protection than does the State Constitution under these
circumstances. See id. at 302; Laurie, 139 N.H. at 329-30. We therefore reach
the same result under the Federal Constitution as we do under the State
Constitution.

Affirmed.

BASSETT and DONOVAN, JJ., concurred; NADEAU, J., retired superior
court chief justice, specially assigned under RSA 490:3, II, concurred; HANTZ
MARCONI, J., disqualified herself after submission of the case and did not
participate in further review of the case.

Timothy A. Gudas,
Clerk

Distribution:
4th N.H. Circuit Court - Laconia District Division, 450-2019-CR-01463
Honorable Christopher M. Keating
Honorable Melissa B. Countway
Honorable Michael H. Garner
Honorable David D. King
Sven D. Wiberg, Esq.
Audriana Mekula, Esq.
Attorney General
Francis Fredericks, Supreme Court
Sherri Miscio, Supreme Court
File

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