State v. Laurie, 93-459

• Decision Date: 20 January 1995
• Docket Number: No. 93-459,93-459
• Citation: 139 N.H. 325,653 A.2d 549
• Parties: The STATE of New Hampshire v. Carl LAURIE.
• Court: New Hampshire Supreme Court

Page 549

653 A.2d 549

139 N.H. 325

The STATE of New Hampshire v. Carl LAURIE.

No. 93-459.

Supreme Court of New Hampshire.

Jan. 20, 1995.

As Modified Feb. 9, 1995.

Jeffrey R. Howard, Atty. Gen. (John P. Kacavas, Asst. Atty. Gen., on the brief and orally), for State.

Gary Apfel, Asst. Appellate Defender, Concord by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, Carl Laurie, appeals the Superior Court's (Manias, J.) denial of his motion for a new trial, based on the prosecution's failure to disclose certain exculpatory evidence. We reverse and remand.

The defendant was convicted of the first degree murder of Lucien Fogg by a jury in the superior court in March 1990. We affirmed that conviction in State v. Laurie, 135 N.H. 438, 606 A.2d 1077, cert. denied, 506 U.S. 886, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992).

In May 1991, the defendant first became aware of certain evidence that could have been used to impeach one of the State's witnesses at trial. The State possessed this evidence prior to trial. The evidence consists of the employment records of a Franklin Police Department detective, who played a major role in the investigation of the Fogg murder, and whose testimony at trial, the defendant contends, was crucial. The records reflect negatively on the detective's character and credibility. Upon review of this evidence, the defendant moved to set aside the previous verdict and for a new trial. This appeal followed the superior court's denial of that motion.

Although the defendant presents several arguments on appeal, we need address only one: that he was denied due process of law under the New Hampshire Constitution when the State knowingly withheld exculpatory evidence. In assessing this claim, we cite "decisions of the Supreme Court of the United States and of courts of other jurisdictions for their helpfulness in analyzing and deciding the State issue." State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985); see State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350-51 (1983).

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." This rule applies where no request for information was made and where a general request for exculpatory information was made. United States v. Agurs, 427 U.S. 97, 106-07, 110-13, 96 S.Ct. 2392, 2398-98, 2400-02, 49 L.Ed.2d 342 (1976); State v. Dery, 134 N.H. 370, 376, 594 A.2d 149, 152-53 (1991).

The rule also applies to impeachment materials. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Dery, 134 N.H. at 375, 594 A.2d at 152. "Such evidence is evidence favorable to an accused ... so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676, 105 S.Ct. at 3380 (citation and quotation omitted). The application of the rule to impeachment evidence is justified by the fact that "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1179, 3 L.Ed.2d 1217 (1959) (prosecution's knowing use of false testimony to obtain conviction violates due process, even if testimony is relevant only to witness's credibility).

The federal standard "does not demand that everything that might influence a jury be disclosed, or that there be permitted a complete discovery of all investigatory work or an examination of the State's complete file." State v. Breest, 118 N.H. 416, 419, 387 A.2d 643, 645 (1978) (citing Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972)), cert. denied, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979). Rather, Brady requires disclosure of evidence favorable to the accused only if it is material to guilt or to punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Favorable evidence is material under the federal standard "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (Blackmun, J., joined by O'Connor, J.); see id. at 685, 105 S.Ct. at 3385-86 (White, J., concurring, joined by Burger, C.J., and Rehnquist, J.). Under the federal standard, the defendant has the burden of proving this "reasonable probability." Id. at 685, 105 S.Ct. at 3385 (White, J., concurring).

The policy behind this due process requirement is clear. The Court in Bagley noted that incomplete responses to discovery requests do more than deprive the defense of evidence; such responses also have "the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued." Id. at 682, 105 S.Ct. at 3384. The Court concluded that the reviewing court should assess whether confidence in the outcome has been undermined "in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response." Id. at 683, 105 S.Ct. at 3384.

The defendant argues for a more protective standard for determining the materiality of Brady evidence under the State Constitution. In Dery, 134 N.H. at 375-76, 594 A.2d at 152, we noted that this court has not enunciated a different standard under the State Constitution than under the Federal Constitution for determining the materiality of Brady evidence. Because the question of a different standard was not properly preserved for appeal in that case, we declined to decide whether there is a different standard under the New Hampshire Constitution. Id. at 376, 594 A.2d at 153. The issue is properly before us in the instant case.

Although we have frequently treated New Hampshire and Federal constitutional protections similarly, "our citizens are entitled to an independent interpretation of State constitutional guarantees." Ball, 124 N.H. at 231, 471 A.2d at 350. We have "the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution." Id. at 231-32, 471 A.2d at 350; see, e.g., State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978) (interpreting the State Constitution to afford greater protection than Federal Constitution against double jeopardy).

The State urges us to rely on State v. Dukette, 127 N.H. 540, 506 A.2d 699 (1986), to determine that the State standard is no more protective than the federal standard for materiality of Brady evidence. Dukette, however, involved a defendant's claim that, after his conviction was vacated by a federal habeas corpus proceeding, he was denied due process when he was tried a second time without evidence that was lost or destroyed by the prosecution between the first and second trials. State v. Dukette, 127 N.H. at 544, 506 A.2d at 703; see Dukette v. Perrin, 564 F.Supp. 1530 (D.N.H.1983). We found "federal cases persuasive in deriving standards of materiality and prejudice that should govern post-conviction enforcement of a defendant's State due process right to produce all favorable proofs." State v. Dukette, 127 N.H. at 545, 506 A.2d at 704. We stated, however, that we would "observe the distinction between cases dealing with evidence that was withheld, but is still in the government's control, and cases dealing with evidence that was lost or destroyed." Id. at 544-45, 506 A.2d at 703-04.

In New Hampshire, criminal defendants have an explicit right "to produce all proofs that may be favorable to [them]." N.H. CONST. pt. I, art. 15. As a practical matter, the prosecutor decides which information must be disclosed to a defendant in compliance with constitutional mandates, and hence to decide which favorable proofs are available to the defendant. See Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987). Accordingly, we are convinced that the prosecutor must be responsible for defending that decision, once a criminal defendant has demonstrated that favorable, exculpatory information has been withheld.

"[E]ssential fairness, rather than the ability of counsel to ferret out concealed information, underlies the duty to disclose." State v. Dukette, 113 N.H. 472, 476, 309 A.2d 886, 889 (1973) (quotation omitted). To help in determining the appropriate burden of proof for this case, we examine the burdens this court has placed on parties in similar contexts. For example, when a defendant is able to demonstrate that the exclusion of evidence was error in the trial resulting in his or her conviction, we require the State to demonstrate that the error was harmless before we will sustain the conviction. State v. Woodard, 121 N.H. 970, 975, 437 A.2d 273, 276 (1981). We have also held that in cases of prosecutorial overreaching and the erroneous admission of evidence, the State must prove beyond a reasonable doubt that the error did not affect the verdict. See, e.g., State v. Skidmore, 138 N.H. 201, 203, 636 A.2d 64, 66 (1993) (erroneous admission of evidence); State v. Bujnowski, 130 N.H. 1, 6, 532 A.2d 1385, 1388 (1987) (prosecutorial overreaching).

We find the application of the federal standard,...