State of New Hampshire v. Dennis D. Baillargeon

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0407, State of New Hampshire v. Dennis
D. Baillargeon, the court on August 22, 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, Dennis D. Baillargeon, appeals his
conviction, following a bench trial in the Circuit Court (Zaino, J.), on charges of
driving under the influence, possession of marijuana, failure to use a turn
signal, and driving over the center line. He argues that the trial court erred by
denying his request to continue the case and not dismissing the case based
upon the State’s failure to provide dashboard camera footage of the traffic stop
that led to the charges. We affirm.

At the outset, we note that, in his appendix, the defendant has submitted
several affidavits executed by him that postdate this appeal. Those documents
were not before the trial court, and thus, are not part of the record on appeal.
See Flaherty v. Dixey, 158 N.H. 385, 387 (2009). Accordingly, we will not
consider them in deciding this appeal. See id.

The charges of which the defendant was found guilty arise from a
January 15, 2015, traffic stop. On May 14, 2015, the defendant was defaulted,
and the trial court entered dispositions on all charges based upon the default.
Nearly four years later, on April 18, 2019, the trial court granted a motion to
vacate the default. On September 16, 2020, however, the defendant was again
defaulted for failing to attend a hearing, and dispositions on the pending
charges were again entered. Those dispositions stood until April 28, 2021,
when the trial court granted another motion to vacate the default. On August
24, 2021, the defendant once again failed to attend a case status hearing, and
the trial court entered a third default and dispositions on the charges. Those
dispositions stood until March 30, 2023, when the trial court vacated the
default and held a trial management conference.

The case went to trial on June 22, 2023. At the start of trial, the
defendant requested a continuance, asserting that he had not received
discovery. When the trial court asked whether the defendant had requested
discovery, the prosecutor responded that (1) at the March 30 trial management
conference, the defendant had requested a copy of the police report; (2) the
prosecutor told him at that time that he could pick the report up at the police
department; (3) the defendant told the prosecutor shortly before the hearing
began that he “never found time to come and get” the report; and (4) the
prosecutor had given him a copy of the report within “the past . . . hour.” The
defendant agreed that the prosecutor told him at the trial management
conference that he could pick the report up at the police department and that
he had not done so, claiming an inability to obtain transportation to the police
department. The prosecutor further asserted that the arresting officer would
be the State’s only witness, and that other than a copy of the administrative
license suspension form, which the defendant would have received at the time
of his arrest, there was no other discovery to provide.

The trial court stated that it was not inclined to continue the case, but
that it would take a recess to allow the defendant to review the police report,
and that if the defendant required additional time to review the report after the
recess, he could request it. Following a nineteen-minute recess, the trial court
asked the defendant if he had had an opportunity to review the report, and he
responded, “I’m on page 2, but I believe I’ve got enough to get going. It’s
basically to trigger my line of questioning.” At that point, the trial proceeded
with the arresting officer’s testimony.

On cross-examination, the officer confirmed that at the time of the 2015
stop, the officer’s cruiser was equipped with a dashboard camera that was
operating. When the defendant then asked the officer if the officer had brought
the video to trial, the prosecutor interjected, without objection, stating that in
the years since 2015, the arresting officer’s police department had transitioned
from the dashboard camera system to a body camera system, and that due to
the passage of time, “we don’t have access to any of the old stuff anymore.”
During his own testimony, the defendant asserted that the cruiser video “was
so important” because he “thought [he] did all the road tests,” and that he
“wish[ed] . . . we had [the cruiser video] because it deviates as to what
happened from what’s written.” At no point, however, did the defendant seek
dismissal or any other relief based upon the State’s failure to provide the video
footage of his stop, or otherwise argue that the State was obligated to preserve
whatever footage the cruiser may have captured in 2015.

Following the defendant’s testimony, the trial court asked the prosecutor
when the prosecuting police department had switched from a dashboard
camera system to a body camera system. The prosecutor responded that
although he could not recall a precise date, it was around 2018 or 2019, “just
before the outbreak of COVID.” When the trial court asked whether the State
had maintained “access to prior . . . videos for a period of time,” the prosecutor
explained that “we had about a couple of months . . . after the transition went
through that there was access to . . . the prior server,” but that “after a certain
amount of time, that server was taken offline.” Finally, the trial court asked
whether the State had received any discovery requests prior to the March 30,
2023 trial management conference,” to which the prosecutor replied, “Zero,
2
Your Honor.” The trial court then asked the defendant whether there was
anything he would “like to add about the discovery piece,” specifically, about
“the questions I was just asking the State,” to which he replied, “Not really.”

At that point, the trial court announced its ruling, finding the defendant
guilty of four of the six charges brought against him. The court then explained
that it had “spent some time also going through the history of the case because
[it] wanted to give some thought to the arguments [the defendant had] made
about discovery.” After observing that the police department replaced its
dashboard camera system prior to COVID and reviewing the defendant’s
lengthy history of default in the case, the trial court explained:

To the extent I’m making a finding, it’s that the State was not put
on notice that that video contained possibly exculpatory evidence.
The State, through no fault of its own, switched systems. That
system required the removal of a server and programing that was
used to be able to read the contents of that server, specifically any
video evidence from the time. And since there was not a request to
preserve and/or to turn over until the trial management
conference ―

The defendant interrupted the trial court, claiming that he did, in fact,
contact the police station by telephone at some point requesting the dashboard
video. The trial court responded by stating that “[t]he rules require that a
request for discovery be made in writing,” and that because the prosecutor was
never put on notice of any request for video prior to it becoming unavailable,
there was no discovery violation. This appeal followed.

On appeal, the defendant first argues that the trial court deprived him of
due process by denying his request for a continuance due to the State’s alleged
discovery violations. The decision to grant or deny a continuance is within the
sound discretion of the trial court. State v. Addison, 160 N.H. 792, 795 (2010).
We will not overturn the trial court’s decision unless it unsustainably exercised
its discretion. Id. “There are no mechanical tests to determine when due
process has been violated by the denial of a continuance, but in each case the
totality of the circumstances must be considered.” Id. (quotation omitted). “We
consider the facts as they were presented to the court at the time of the ruling.”
Id.

In this case, we cannot conclude that the trial court unsustainably
exercised its discretion by denying the request for a continuance based upon
the State’s failure to produce the police report prior to trial. The defendant
conceded that the State told him the report was available at the police
department when he requested it on March 30, 2023, but that he had not gone
to the police department to obtain it. Moreover, the report was not lengthy, the
3
trial court provided the defendant a nineteen-minute recess in which to review
it, and when subsequently asked if he had had a chance to review the report,
the defendant responded that he believed he was ready “to get going.” Finally,
we emphasize that the defendant had been defaulted several times for failing to
attend hearings in the eight-and-a-half years that had passed since his arrest.
Under the totality of the circumstances, the decision to deny the continuance
request was not so arbitrary as to violate due process. See id.

To the extent the defendant premises his argument that the trial court
erred by denying his request for a continuance upon the State’s failure to
provide the dashboard camera video of his traffic stop, we note that the
transcript does not reflect that he argued in the trial court that the failure to
provide dashboard camera footage warranted a continuance. Accordingly, the
argument is not preserved. See State v. Blackmer, 149 N.H. 47, 48 (2003)
(stating that we generally will not review issues that were not raised at trial).
Even if the defendant had raised the issue, however, we could not conclude
that the trial court unsustainably exercised its discretion. The facts presented
to the trial court, see Addison, 160 N.H. at 795, establish that the server on
which footage of the defendant’s traffic stop may have existed at some point in
the past was taken offline, and was no longer available, several years prior to
any request by the defendant for it.

We next address the defendant’s argument that the trial court erred by
not dismissing the case based upon the State’s failure to provide dashboard
camera footage of the traffic stop. We note that the defendant did not argue in
the trial court, as he does on appeal, that the State’s failure to provide the
footage violated his due process rights under Brady v. Maryland, 373 U.S. 83
(1963) or State v. Laurie, 139 N.H. 325 (1995), and violated New Hampshire
Rule of Criminal Procedure 12(a)(2)(B). Accordingly, the argument is not
preserved. See Blackmer, 149 N.H. at 48. Even if the argument were
preserved, however, we have noted a “distinction between cases dealing with
evidence that was withheld, but is still in the government’s control,” to which
Brady, Laurie, and their progeny apply, and “cases dealing with evidence that
was lost or destroyed.” State v. Dukette, 127 N.H. 540, 544-45 (1986); see
Laurie, 139 N.H. at 329. Here, the evidence was not within the State’s control
and knowingly withheld; it was lost years before the defendant requested it.

Likewise, the defendant did not request dismissal of the charges on the
basis that the State’s loss or destruction of the video footage prior to his
request for it violated his due process rights or the discovery rules, and thus,
this argument is also not preserved. See Blackmer, 149 N.H. at 48. Even if the
defendant had preserved the argument, however, in the absence of culpable
negligence or bad faith on the part of the State with respect to the loss or
destruction of the footage, it would have been the defendant’s burden to
establish that the footage “was material in the sense that its introduction
4
would have raised a reasonable doubt as to guilt that did not otherwise exist.”
Dukette, 127 N.H. at 545. This is a “degree of evidentiary materiality and
prejudice going beyond a mere possibility that the missing evidence could have
affected the verdict.” Id.

Here, the trial court found that the prosecuting police department
changed its dashboard camera system to a body camera system, thereby
rendering the server on which footage of the 2015 traffic stop may have existed
at one time unavailable years before the defendant put the State on notice of
his request for it. Indeed, the record establishes that because of the
defendant’s multiple defaults, the case was not even ready for trial until several
years after any video footage of the stop would necessarily have been lost. The
potential loss of the footage by virtue of the system changeover was, according
to the trial court, “through no fault” of the State. We construe these findings,
which the record supports, as an implicit determination that the State did not
act in bad faith or with culpable neglect. Nor has the defendant established,
beyond speculation, that the footage was material and its loss prejudicial. See
id. at 547-48.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

5