State v. Bradley

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
Case No. 2024-0082
Citation: State v. Bradley, 2025 N.H. 19

THE STATE OF NEW HAMPSHIRE

v.

KENNETH BRADLEY

Argued: February 13, 2025
Opinion Issued: April 24, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mary A. Triick, senior assistant attorney general, on the brief and
orally), for the State.

Shaheen & Gordon, PA, of Concord (James D. Rosenberg on the brief and
orally), for the defendant.

PER CURIAM.

¶1 The defendant, Kenneth Bradley, brings this interlocutory appeal
from an order of the Superior Court (Ignatius, J.) denying his motion to exclude
an audio recording of a conversation he had with his wife, Deborah Ann
Bradley. He argues that the trial court erred in determining, among other
things, that RSA 632-A:5 (2016) precludes the spousal privilege, see N.H. R.
Ev. 504, from applying to the audio recording. We affirm and remand.

I. Facts

¶2 We accept the facts as presented in the interlocutory appeal
statement and rely upon the record for additional facts as necessary. See State
v. Hess Corp., 159 N.H. 256, 258 (2009). The defendant is charged with six
counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I
(Supp. 2024), and five counts of felonious sexual assault, see RSA 632-A:3, II-
III (Supp. 2024). The complainants are two of the defendant’s adopted
children. The defendant is also charged with falsifying physical evidence, see
RSA 641:6, I (2016), and conspiracy to commit falsifying physical evidence, see
RSA 629:3 (2016), based upon allegations that he erased the contents of a cell
phone that contained a video recording of him behaving inappropriately with
one of the complainants.

¶3 During discovery, the State provided the defense with information
pertaining to a prior complaint that was investigated by the New Hampshire
Division for Children, Youth and Families and law enforcement in August
2019. During that investigation, law enforcement executed a search warrant at
the defendant’s home and seized a cell phone and iPad belonging to one of the
defendant’s adopted children. A search of the devices revealed that the cell
phone, which allegedly contained the video of the defendant’s inappropriate
conduct, had been erased, but the iPad contained several audio recordings. In
particular, one of the recordings captured a substantial portion of a private
conversation between the defendant and his wife at the office of the defendant’s
attorney on August 15, 2019. It is unclear how the recording began or was
stopped.

¶4 In June 2023, the defendant filed a motion to exclude the August 15,
2019 iPad audio recording, arguing that the spousal privilege prevents the
recording from being introduced at trial. Following a hearing, the trial court
denied the motion, concluding that “the marital communications privilege does
not apply to the Bradleys’ recorded conversation and thus the recording is
admissible at trial against Mr. Bradley.” The trial court reasoned that the
audio recording does not fall within the scope of the spousal privilege for public
policy reasons and, alternatively, that the privilege is not applicable in
proceedings under RSA chapter 632-A. This interlocutory appeal followed.

II. Analysis

¶5 On appeal, the defendant argues that the trial court erred by
concluding that RSA 632-A:5 renders the spousal privilege inapplicable to all
proceedings under RSA chapter 632-A regardless of whether the defendant’s

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spouse is the alleged victim. Resolving this issue requires that we engage in
statutory interpretation.

¶6 We review matters involving statutory interpretation de novo. State
v. Carpentino, 166 N.H. 9, 13 (2014). To determine a statute’s meaning, we
first examine its language and ascribe the plain and ordinary meaning to the
words used. Id. We interpret the statute as written and will neither consider
what the legislature might have said nor add language that the legislature did
not see fit to include. Id. We interpret a statute in the context of the overall
statutory scheme and not in isolation. Id. Our goal is to apply statutes in light
of the legislature’s intent in enacting them and the policy sought to be
advanced by the entire statutory scheme. Id. Further, we construe provisions
of the Criminal Code according to the fair import of their terms and to promote
justice. Id.

¶7 RSA 632-A:5, entitled “Spouse as Victim; Evidence of Husband and
Wife,” provides: “An actor commits a crime under this chapter even though the
victim is the actor’s legal spouse. Laws attaching a privilege against the
disclosure of communications between husband and wife are inapplicable to
proceedings under this chapter.” The “privilege against the disclosure of
communications between husband and wife” to which RSA 632-A:5 refers is
the spousal privilege set forth in New Hampshire Rule of Evidence 504. Rule
504 prevents one spouse from “testify[ing] against the other as to any
statement, conversation, letter or other communication made to the other or to
another person” or “as to any matter which in the opinion of the Court would
lead to a violation of marital confidence.” N.H. R. Ev. 504.

¶8 The defendant argues that RSA 632-A:5 applies only to cases in
which the alleged victim is the defendant’s spouse. Therefore, he contends,
because the alleged victims in this case are not his spouse, RSA 632-A:5 does
not apply. The State, on the other hand, asserts that the trial court correctly
determined, based upon the plain language of RSA 632-A:5, that the spousal
privilege is inapplicable to all sexual assault prosecutions under RSA chapter
632-A. We agree with the State.

¶9 Based upon the plain language of the statute, we conclude that the
spousal privilege is inapplicable to all proceedings under RSA chapter 632-A.
The language of RSA 632-A:5 is unambiguous. The second sentence provides
that the spousal privilege is “inapplicable to proceedings under this chapter.”
RSA 632-A:5. The chapter to which the phrase “proceedings under this
chapter” refers is RSA chapter 632-A, entitled “Sexual Assault and Related
Offenses.” RSA chapter 632-A (2016 & Supp. 2024) proscribes numerous
offenses that are not limited to those committed against one’s spouse. See,
e.g., RSA 632-A:2, I (enumerating circumstances under which a “person is
guilty of the felony of [AFSA] if such person engages in sexual penetration with
another person”). Therefore, the phrase “proceedings under this chapter” in

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RSA 632-A:5 renders the spousal privilege inapplicable to all proceedings
under RSA chapter 632-A regardless of whether the alleged victim is the
defendant’s spouse.

¶10 As the State observes, the legislature could have utilized narrower
language, making the spousal privilege inapplicable only when “the victim is
the actor’s legal spouse,” as it did in the first sentence of RSA 632-A:5. See
RSA 632-A:5. However, it chose not to do so, and interpreting the second
sentence of RSA 632-A:5 as applicable only to cases in which the victim is the
defendant’s spouse would require us to add words to the statute that the
legislature did not see fit to include, contrary to our well-established principles
of statutory interpretation. See Carpentino, 166 N.H. at 13.

¶11 The defendant bases his proposed interpretation upon the
legislative history of RSA 632-A:5. Specifically, he asserts that the legislative
history of the statute demonstrates that it “was intended to address sexual
assault perpetrated by one spouse against another spouse,” but was not
intended to apply in all prosecutions under RSA chapter 632-A. The defendant
maintains that “the legislative action was intended to allow for the more
effective prosecution of sexual violence occurring between spouses and arising
in the context of a marriage.” However, in light of our conclusion that the
language of RSA 632-A:5 is not ambiguous, we have no occasion to consult the
statute’s legislative history. See State v. Beattie, 173 N.H. 716, 725 (2020).

¶12 To the extent the defendant argues that the title of RSA 632-A:5
indicates the legislature’s intent for the statute to apply only when the spouse
is the alleged victim, we disagree. The title of a statute is not conclusive of its
interpretation, and where the statutory language is clear and unambiguous, we
will not consider the title in determining the meaning of the statute. State v.
Kilgus, 125 N.H. 739, 742 (1984). Moreover, the first portion of the title,
“Spouse as Victim,” relates to the first sentence of the statute, and the second
portion, “Evidence of Husband and Wife,” relates to the second sentence, which
is the only sentence relevant here.

¶13 There is no dispute in this case that the defendant is charged with
offenses under RSA chapter 632-A. Therefore, pursuant to RSA 632-A:5,
“[l]aws attaching a privilege against the disclosure of communications between
husband and wife are inapplicable” in this case. Given our conclusion, we
need not address the defendant’s remaining arguments regarding whether the
trial court erred by concluding that the audio recording is not protected by the
spousal privilege for public policy reasons. We affirm the trial court’s order

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denying the defendant’s motion to exclude and remand for further proceedings
consistent with this opinion.

Affirmed and remanded.

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

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