State of New Hampshire v. Kenneth J. Lewis, Jr.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0213, State of New Hampshire v. Kenneth
J. Lewis, Jr., the court on March 26, 2025, issued the following
order:

The court has reviewed the record submitted on appeal, has considered
the written and oral arguments of the parties, and has determined to resolve
the case by way of this order. See Sup. Ct. R. 20(3). The State appeals an
order of the Circuit Court (Quigley, J.) denying its motion to compel the
defendant, Kenneth J. Lewis, Jr., to produce to the State the medical and
mental health records that were produced to the Office of the Forensic
Examiner (OFE). We affirm and remand.

Between October 2021 and June 2022, the defendant was arrested
multiple times and charged with numerous misdemeanors. Defense counsel
filed a motion to determine the defendant’s competency due to his concern,
with respect to all of the pending charges, that the defendant lacked a rational
comprehension of the proceedings against him and the ability to consult with
counsel.

The trial court granted the motion, ordered a competency evaluation by
the OFE, and directed defense counsel to produce to the OFE, among other
things, the defendant’s medical, psychiatric, and hospitalization records from
the prior three years. The order provided that the contents of the records
produced “shall be used only to determine competency and may not be used in
any other proceeding, or further disclosed, without [an] order of the Court.”
Defense counsel was unable to obtain a release from the defendant for his
records and later filed an ex parte motion, which the trial court granted, to
compel the record holders to produce the requested records to the OFE.

Following the defendant’s competency evaluation in February 2023, the
State moved to compel the defendant to produce the records that were provided
to the OFE. The State asserted that the defendant impliedly waived any
privilege he had to the records by putting his mental state at issue in the case
and that it had an essential need for the records to prepare for the competency
hearing. The defendant objected, arguing that although his counsel had raised
the issue of his competency, he did not waive the psychotherapist-patient
privilege. He also argued that the State had not established an essential need
for the records.
 The trial court denied the State’s motion. The State then filed a motion
for reconsideration, which the trial court also denied. In April 2023, the State
filed a notice of appeal in this court. The following month, the OFE issued its
report and found the defendant competent to stand trial.

On appeal, the State argues that the trial court erred by denying its
motion to compel disclosure of the medical and mental health records
produced to the OFE. We review a trial court’s decision on the management of
discovery under an unsustainable exercise of discretion standard. Petition of
State of N.H. (State v. MacDonald), 162 N.H. 64, 67 (2011). To meet this
standard, the State must demonstrate that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of its case. Id.

The State first argues that the defendant impliedly waived any privileges
in his medical and mental health records by complying with the trial court’s
competency evaluation order rather than objecting and asserting his privileges
in the relevant records. The defendant asserts that he never waived his
privileges and his refusal to sign a release for his records constitutes an
objection to the court’s order for production.1 We agree with the defendant.

Defense counsel filed a motion requesting that the trial court order a
competency evaluation based upon his concerns that the defendant lacked a
sufficient “factual and rational understanding of the proceedings” and “may be
unable to consult with counsel with a reasonable degree of rational
understanding.” The trial court granted the motion and ordered a competency
evaluation. The trial court’s order provided:

If defense counsel is unable to obtain a release from the defendant
for the collection of the records . . . defense counsel shall provide
the Court with a list of providers, to the extent known . . . [and]
[t]he Court will then issue an order to the providers directing them
to produce the records described above directly to the [OFE].

Pursuant to the trial court’s order, defense counsel, who was unable to obtain
a release from the defendant, filed an ex parte motion for production of the
defendant’s records directly to the OFE. That defense counsel could not obtain
a release from the defendant indicates that the defendant did not, as the State
claims, “compl[y] with the order and produce[] relevant, responsive records.”
Defense counsel’s compliance with the trial court’s order does not constitute an

1 The defendant also maintains that the State’s argument is not preserved for our review because

it was first raised in the State’s motion for reconsideration of the trial court’s denial of its motion
to compel. When an issue is raised for the first time in a motion for reconsideration and failure to
raise the issue earlier did not deprive the trial court of a full opportunity to correct its error, the
issue has been preserved for our review. Mortgage Specialists v. Davey, 153 N.H. 764, 786 (2006).
Because the trial court was given the opportunity to consider this argument in the first instance,
we conclude that it is preserved for appellate review.

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implicit waiver by the defendant of his privileges. Cf. Petition of State of N.H.
(State v. MacDonald), 162 N.H. at 69 (declining to hold that an alleged victim’s
medical records are put at issue simply because the State elects to proceed
with a criminal prosecution).

To the extent the State argues that the defendant waived his privileges
when his counsel “raised a bona fide doubt as to the defendant’s competency,”
we disagree. A party waives privileges, such as the psychotherapist-patient or
physician-patient privileges, by putting confidential communications at issue
thereby injecting the privileged material into the case. Id. These privileges,
however, belong to the patient, who may prevent the psychotherapist or
physician from revealing statements whose confidentiality the patient wishes to
preserve. See In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 220
(2010). Here, defense counsel raised the issue of the defendant’s competency,
but the defendant took no position as to whether he was competent to stand
trial. The defendant, the privilege holder, did not sign a release of the records
and therefore did not “inject[] . . . the privileged material into the case.”
Petition of State of N.H. (State v. MacDonald), 162 N.H. at 69.

Nonetheless, the State claims that it established an essential need for the
defendant’s records. Specifically, the State contends that it had an essential
need for the records that were produced to the OFE to prepare for the
competency hearing. The defendant argues that the State cannot categorically
establish an essential need for privileged records simply because a defendant’s
competency is at issue. We agree with the defendant.

Due process guarantees under both the Federal and State Constitutions
protect defendants from standing trial if they are legally incompetent. State v.
Salimullah, 172 N.H. 739, 748 (2020). The right not to be tried while
incompetent is further protected by the constitutional requirement that, unless
waived, a trial court must, on its own initiative, order an evidentiary hearing on
the issue of competency whenever a bona fide or legitimate doubt as to
competency arises. Id. When determining whether a bona fide or legitimate
doubt exists with regard to a defendant’s competency, the trial court should
consider numerous factors, including, among other things, evidence of a
defendant’s irrational behavior and any prior medical opinion on competency.
Id. at 748-49. The State bears the burden of proving, by a preponderance of
the evidence, that a defendant is competent to stand trial. Id. at 748.

We have previously held that certain procedural protections are
necessary to reconcile statutory privileges with the goals of law enforcement.
In re Search Warrant (Med. Records of C.T.), 160 N.H. at 222; see also State v.
Doyle, 176 N.H. 594, 598-99 (2024), 2024 N.H. 25, ¶¶13-14 (concluding that a
defendant’s medical and mental health records provided to the forensic
examiner in competency proceedings were not exempt from statutory
privileges). Specifically, privileges may yield when: (1) a statute specifically

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authorizes disclosure; (2) a sufficiently compelling countervailing consideration
is identified; or (3) disclosure is essential under the specific circumstances of
the case. See In re Search Warrant (Med. Records of C.T.), 160 N.H. at 222.
“To establish essential need, the party seeking the privileged records must
prove both that the targeted information is unavailable from another source
and that there is a compelling justification for its disclosure.” Id. (quotation
omitted).

The State asserts that presenting “the best information regarding the
defendant’s competency to stand trial at a competency hearing” constitutes a
compelling justification because the State has the burden to establish the
defendant’s competency. Without the defendant’s records, the State argues
that it “cannot either challenge or support the evaluator’s opinion on the
defendant’s competency with other compelling evidence.” The State maintains
that it is unable to obtain the records from another source because neither the
defendant nor the OFE is obligated to disclose the defendant’s records.

We conclude that the State’s claim of an essential need for the
defendant’s records is premature. The State filed its motion to compel
production of the defendant’s records in February 2023, one day after the
defendant’s OFE evaluation. The trial court denied the motion, and the State
filed its notice of appeal in April. In May, the OFE found the defendant
competent to stand trial. When the State filed its motion to compel, it did not
yet know the OFE’s determination regarding the defendant’s competency or the
sources of information upon which that determination relied. Further, it did
not know whether the defense would concur with the OFE’s determination or
whether an evidentiary hearing on the defendant’s competency would be
necessary.

If, following the parties’ review of the OFE’s report, either party contests
the OFE’s determination such that an evidentiary hearing is necessary, the
State may be able to establish an essential need for the defendant’s medical
and mental health records. However, absent such circumstances, a ruling as
to whether the State had established an essential need for the defendant’s
records would be premature. We agree with the defendant that trial courts
should wait to determine whether the State has an essential need for a
defendant’s privileged records until the OFE has issued its report and the
parties have had an opportunity to accept or contest the OFE’s determination.

We conclude that the trial court’s denial of the State’s motion to compel
the defendant to produce his medical and mental health records was not

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clearly untenable or unreasonable to the prejudice of the State’s case. See
Petition of State of N.H. (State v. MacDonald), 162 N.H. at 67. Accordingly, we
affirm and remand for proceedings consistent with this order.

Affirmed and remanded.

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

Timothy A. Gudas,
Clerk

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