612 A.2d 899 (N.H. 1992), 91-359, State v. Gagne

Docket Nº:91-359.
Citation:612 A.2d 899, 136 N.H. 101
Opinion Judge:JOHNSON, J.
Party Name:The STATE of New Hampshire v. Denis GAGNE.
Attorney:John P. Arnold, Atty. Gen. (Ward E. Scott, attorney, on the brief, and John A. Stephen, attorney, orally), for the State., W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant. John P. Arnold, attorney general (Ward E. Scott, attorney, on the brief, and John...
Judge Panel:All concurred.
Case Date:August 14, 1992
Court:Supreme Court of New Hampshire
 
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Page 899

612 A.2d 899 (N.H. 1992)

136 N.H. 101

The STATE of New Hampshire

v.

Denis GAGNE.

No. 91-359.

Supreme Court of New Hampshire.

August 14, 1992

[136 N.H. 102] John P. Arnold, Atty. Gen. (Ward E. Scott, attorney, on the brief, and John A. Stephen, attorney, orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

JOHNSON, Justice.

The defendant, Denis Gagne, was convicted by a jury of aggravated felonious sexual assault, RSA 632-A:2. On appeal, he contends that the Superior Court (Mohl, J.) violated his due process rights under part I, article 15 of the State Constitution and the fourteenth amendment to the Federal Constitution when it refused to conduct an in camera review of confidential records in the possession of the New Hampshire Division for Children and Youth Services (DCYS). We remand for further proceedings in accordance with this opinion.

The defendant was found guilty of having coerced two minor girls into engaging in fellatio with him in September 1989. The DCYS conducted an investigation pursuant to an abuse and neglect [136 N.H. 103] action against the defendant prior to the trial. The DCYS's entire investigatory file is confidential under the Child Protection Act, see RSA 169-C:25, III (Supp.1991), and any counseling and medical records contained therein are also subject to a limited privilege, see N.H. R. Ev. 503; RSA 330-A:19 (Supp.1991) (psychologist-patient privilege);

Page 900

RSA 329:26 (Supp.1991) (physician-patient privilege). Thus, neither the prosecution nor the defendant had access to the DCYS file.

The defendant filed a pretrial motion for discovery requesting, among other things, "[a]ny and all statements of witnesses, reports, and records, in the custody of the [DCYS] ... and [a]ny and all reports or results ... of any psychiatric or psychological examination of the alleged victims in this case." The defendant contended that such material was "necessary for counsel to adequately and effectively prepare to confront and cross-examine the witnesses" and was "relevant to the credibility, reliability, bias or motive of any witness the State may call."

The trial court conducted a hearing on the merits of the defendant's discovery motion. At the hearing, the victims' guardians ad litem asserted the statutory privilege with regard to the materials contained in the DCYS file but did not object to submitting such materials under seal to the trial court for an in camera inspection. The defendant argued that the DCYS file was "relevant and necessary to the preparation of trial in this case." Specifically, defense counsel contended that, based on information obtained during the course of her investigation, she had reason to believe that the file contained information potentially explaining the following matters: (1) why one of the victims was taken into protective custody when the defendant was arrested; (2) whether contradictions existed in...

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