State v. Carter

• Decision Date: 25 November 2014
• Docket Number: No. 2013–737,2013–737
• Citation: 167 N.H. 161,106 A.3d 1165
• Parties: The STATE of New Hampshire v. Shawn CARTER
• Court: New Hampshire Supreme Court

167 N.H. 161

106 A.3d 1165

The STATE of New Hampshire

v.Shawn CARTER

No. 2013–737

Supreme Court of New Hampshire.

Argued: October 15, 2014

Opinion Issued: November 25, 2014

Joseph A. Foster, attorney general(Stacey L. Pawlik, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

LYNN, J.

This is an interlocutory appeal by the defendant, Shawn Carter, from a decision of the Superior Court(O'Neill, J.) denying his motion for pre-indictment discovery pursuant to RSA 604:1–a (2001), on the ground that the statute violates the separation of powers provision of Part I, Article 37 of the New Hampshire Constitution because it conflicts with Superior Court Rule 98.We reverse and remand.

I

The pertinent facts are not in dispute.On July 10, 2013, the State filed four complaints against the defendant in the circuit court.Two complaints charged him with alternative counts of knowing or reckless second degree murder of Timothy Carter; and two complaints charged him with alternative counts of knowing or reckless second degree murder of Priscilla Carter.SeeRSA 630:1–b, I (2007).The defendant appeared before the circuit court on the same date, and was held without bail.On August 6, the circuit court found probable cause to support the complaints, and the charges were bound over to the superior court.

On August 9, the defendant filed a motion for pre-indictment discovery in superior court, relying on RSA 604:1–a in support of the motion.This statute provides:

Discovery in Criminal Matters.After an accused person has been bound over to the superior court and prior to indictment, he shall have the same rights to discovery and deposition as he has subsequent to indictment, provided that all judicial proceedings with respect thereto shall be within the jurisdiction of the superior court, and notice of petition therefor and hearing thereon shall be given to the county attorney, or the attorney general if he shall have entered the case.

RSA 604:1–a.The State objected to the motion, and, following a hearing, the superior court denied the motion by a written order dated September 26.Relying primarily on our decision in Opinion of the Justices (Prior Sexual Assault Evidence),141 N.H. 562, 688 A.2d 1006(1997)( PSAE ), the court found RSA 604:1–a unconstitutional because it is a procedural statute that conflicts with Superior Court Rule 98, a rule that establishes, among other things, time limits for discovery in criminal cases, and therefore usurps the essential power of the judiciary to control its own proceedings.On October 28, over the State's objection, the superior court granted the defendant's motion to approve an interlocutory appeal of its ruling.We accepted the appeal on December 6.In the meantime, on October 3, the defendant was indicted on alternative counts of first degree murder and second degree murder with respect to each victim, seeRSA 630:1–a (2007);RSA 630:1–b, and shortly thereafter he received discovery from the State.

II

Because the defendant has now received the discovery he sought by way of his pre-indictment motion, before turning to the merits, we will briefly address the issue of mootness."[T]he question of mootness is not subject to rigid rules, but is regarded as one of convenience and discretion."Batchelder v. Town of Plymouth Zoning Bd. of Adjustment,160 N.H. 253, 255–56, 999 A.2d 323(2010)(quotation omitted).The State does not argue that this case is moot, and given that, in an interlocutory appeal such as this one, the interval between the filing of a felony complaint in circuit court and the subsequent return of an indictment after the case is bound over to superior court normally is far less than the time required for briefing, argument and decision in this court, we find that this case satisfies the familiar exception to the mootness doctrine for cases that "are capable of repetition, yet evading review."Fischer v. Superintendent, Strafford County House of Corrections,163 N.H. 515, 518, 44 A.3d 493(2012)(quotation omitted).Accordingly, we conclude that this case is not moot.

III

On appeal, the defendant argues that RSA 604:1–a does not violate Part I, Article 37 of the New Hampshire Constitution because: (1)the statute(a) does not usurp or impair an essential function of the judiciary, and (b) can be read in harmony with Rule 98; and (2) to the extent there is a conflict between the statute and the rule, the statute must prevail.We agree with the defendant on both points.

We exercise de novo review of the trial court's ruling on the constitutionality of a statute.SeeIn the Matter of Bordalo & Carter,164 N.H. 310, 314, 55 A.3d 982(2012).As the party challenging the constitutionality of RSA 604:1–a, the State bears the burden of demonstrating that it is unconstitutional.New Hampshire Health Care Assoc. v. Governor,161 N.H. 378, 385, 13 A.3d 145(2011)."In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds."Id.(quotation omitted)."This means that we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution.It also means that when doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality."Id.(quotations and citation omitted).Because the trial court's ruling was not based on the application of RSA 604:1–a to the particular facts and circumstances of this case, it amounts to a determination that the statute is facially unconstitutional.SeeState v. Hollenbeck,164 N.H. 154, 158, 53 A.3d 591(2012).That being the case, the State, as challenger of the statute's constitutionality, "must establish that no set of circumstances exist under which [it] would be valid."Id.(quotation omitted).

IV

Part I, Article 37 of the New Hampshire Constitution provides:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

N.H. CONST . pt. I, art. 37.We have repeatedly observed that this provision "contemplates no absolute fixation and rigidity of powers between the three great departments of government."Petition of S. N.H. Med. Ctr.,164 N.H. 319, 327, 55 A.3d 988(2012)(quotation omitted)."Instead, it expressly recognizes that, as a practical matter, there must be some overlapping among the three branches of government and that the erection of impenetrable barriers among them is not required."Id.(quotation omitted).Article 37"is violated only when one branch usurps an essential power of another."Id.(quotation omitted).For this to occur, the offending branch must act to "defeat or materially impair the inherent functions" of another branch.State v. Merrill,160 N.H. 467, 472, 999 A.2d 221(2010).

Like the trial court, the State relies primarily on the PSAE decision in support of its constitutional challenge to RSA 604:1–a.¹There can be no doubt that in PSAEwe followed the minority view exemplified by cases such as Winberry v. Salisbury,5 N.J. 240, 74 A.2d 406(1950), in opining that the separation of powers provision of the State Constitution granted the judiciary the exclusive power to make procedural law, including rules of evidence.SeePSAE,141 N.H. at 569–71, 688 A.2d 1006;see alsoLynn, Judicial Rule–Making and the Separation of Powers in New Hampshire: The Need for Constitutional Reform, 42 N.H.B.J. 44, 50, 61(March 2001)(hereinafter "Judicial Rule—Making" ).However, as we recently explained in Petition of Southern New Hampshire Medical Center, PSAE was an advisory opinion, which does not constitute binding precedent, and its discussion of the separation of powers doctrine used language that was "unnecessarily broad."Petition of S. N.H. Med. Ctr.,164 N.H. at 328, 55 A.3d 988.

Nonetheless, the State seeks to distinguish this case from Petition of Southern New Hampshire Medical Center on the grounds that in that casewe viewed the challenged provisions of the medical injury screening panelstatute as the equivalent of rules of evidence.Seeid. at 327, 55 A.3d 988("we assume, without deciding, that the plaintiff's characterization [of the provisions of RSA 519–B:8 – :10 (2007) as akin to evidentiary rules] is correct").The State argues that " Petition of S. N.H. Med. Ctr. merely restricted the application of the analysis contained in [ PSAE ] with respect to evidentiary rules, but did not find that the case was overruled or inapplicable with respect to rules which relate only to court practices and procedure."We disagree.

Although it is true that Petition of Southern New Hampshire Medical Center dealt with what we assumed to be legislation regarding an evidentiary matter, the State's argument fails to take account of the analysis that led us to decline to follow PSAE 's reasoning.In particular, the State overlooks our discussion about the constitutional history surrounding the adoption of the amendment that added Part II, Article 73–a to the State Constitution, which explicitly codified this court's rule-making power.²Not only does that amendment contain no language indicating that the court's rule-making power is to be exclusive, but the record of the constitutional convention that proposed the amendment makes clear that it was not intended to abridge legislative authority over courtprocedures, seePetition of S. N.H. Med. Ctr.,164 N.H. at 328–29, 55 A.3d 988, and the "citizens voting on the 1974amendment were not informed that the authority of the judiciary to create procedural rules was intended to...