John Doe v. City of Manchester & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0448, John Doe v. City of Manchester &
a., the court on October 9, 2024, 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).
Defendant New Hampshire Attorney General’s Office (AGO) appeals a decision
of the Superior Court (Anderson, J.) concluding that, as a matter of law, the
plaintiff’s conviction for driving while intoxicated (DWI) does not constitute
potentially exculpatory evidence for purposes of the Exculpatory Evidence
Schedule (EES). See RSA 105:13-d (2023). We affirm.

I. Background

The following facts are taken from the trial court’s order or are otherwise
supported by the record. In 2020, while off duty, the plaintiff, who was
employed by defendant City of Manchester (City) as a police officer, was
arrested and charged with DWI in New York. Two weeks later, he resigned and
the City notified the AGO that the plaintiff should be placed on the EES.
Subsequently, the plaintiff pled guilty to the New York charge.

Thereafter, the plaintiff filed suit, seeking his removal from the EES
pursuant to RSA 105:13-d, II. The defendants moved to dismiss. Following a
hearing, the trial court found that the plaintiff’s conviction did not “constitute
potentially exculpatory evidence for purposes of the EES” and, therefore, the
plaintiff’s name “must be removed from the schedule.” Accordingly, the court
granted the plaintiff’s request for a permanent injunction ordering his removal
from the EES. This appeal followed.

II. Analysis

The issue is whether in this case, as a matter of law, the plaintiff’s arrest
and guilty plea to a first-offense DWI charge is potentially exculpatory for
purposes of the EES. RSA 105:13-d, I, provides that the New Hampshire
Department of Justice “may voluntarily maintain” an EES which “shall consist
of a list of all current or former law enforcement officers whose personnel
information contain potentially exculpatory evidence.” RSA 105:13-d, I; see
N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648,
651 (2020) (explaining that the EES is “a list of police officers who have
engaged in misconduct reflecting negatively on their credibility or
trustworthiness”).

On appeal, the AGO “does not quarrel with the notion that the plaintiff’s
DWI conviction will not need to be disclosed to the defense in many or even
most cases.” But, the AGO asserts, because “it is possible that the plaintiff’s
DWI conviction may need to be disclosed in a future case, the conviction itself
is ‘potentially exculpatory’ and the plaintiff’s placement on the EES is proper
under RSA 105:13-d, I.”

We recently determined that, “within the context of RSA 105:13-d,
‘potentially exculpatory evidence’ is evidence, including impeachment evidence,
that is reasonably capable of being material to guilt or to punishment.” Doe v.
N.H. Attorney Gen. (Activity Logs), 176 N.H. ___, ___ (2024), 2024 N.H. 50, ¶18.
Although we noted that “the question of whether evidence is appropriate for
inclusion on the EES is separate from the question of whether that evidence
would be admissible in a criminal proceeding,” we explained that
“considerations made to determine the admissibility of evidence, such as the
age of the conduct and its materiality to an officer’s general credibility, should
factor into the determination of whether information in an officer’s personnel
file warrants his or her inclusion on the EES.” Id. at ___, 2024 N.H. 50, ¶20.
“If there is no reasonably foreseeable case in which ‘potentially exculpatory
evidence’ relating to an officer’s conduct would be admissible,” an officer’s
inclusion on the EES is not warranted. Id. at ___, 2024 N.H. 50, ¶20.

The trial court’s decision here preceded our articulation of the applicable
standard in Doe. Nonetheless, its reasoning is consistent with that standard.
The court found that it was “hard pressed to envision a circumstance under
which Plaintiff’s DWI conviction could be relevant or admissible at any trial.”
As the court reasoned, “[w]hile a DWI generally reflects poor judgment in the
moment on Plaintiff’s part, it bears no relation to the performance of his duties
as a police officer let alone his credibility,” and “bears no potential relevance to
a defendant’s guilt, nor would it serve as a basis to impeach the officer’s
credibility.” We agree. Because, under the circumstances presented, there is
no reasonably foreseeable case in which the plaintiff’s off-duty, first-offense
DWI charge would be admissible, we determine that, as a matter of law, the
plaintiff’s inclusion on the EES is not warranted.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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