State v. Drewry

• Decision Date: 30 June 1995
• Docket Number: No. 93-487,93-487
• Citation: 139 N.H. 678,661 A.2d 1181
• Parties: The STATE of New Hampshire v. Glendon P. DREWRY, Jr.
• Court: New Hampshire Supreme Court

Page 1181

661 A.2d 1181

139 N.H. 678

The STATE of New Hampshire v. Glendon P. DREWRY, Jr.

No. 93-487.

Supreme Court of New Hampshire.

June 30, 1995.

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

Shaheen, Cappiello, Stein & Gordon, Concord (Robert A. Stein, on the brief and orally and Michael J. Sheehan on the brief), for defendant.

Cathy J. Green, Manchester, by brief for the New Hampshire Ass'n of Criminal Defense Lawyers, as amicus curiae.

McSwiney, Semple, Bowers & Wise, Concord (Steven G. Brown on the brief), for the New Hampshire League of Investigators, Inc., as amicus curiae.

BROCK, Chief Justice.

The defendant, Glendon P. Drewry, Jr., is charged with multiple counts of negligent homicide arising from a car accident that resulted in the deaths of two people. In this interlocutory transfer, the defendant contends that the Superior Court (McHugh, J.) order that he disclose information regarding certain witnesses violates the work product doctrine and his rights to effective assistance of counsel and against self-incrimination under the State and Federal Constitutions. We affirm.

Based on a discovery request by the defendant, the State was ordered to provide the defendant with its entire investigative file. The State moved for reciprocal discovery pursuant to Superior Court Rule 99 seeking: (1) "[a] list of potential defense witnesses, with their respective addresses"; (2) "[s]tatements of the above witnesses, and/or reports of interviews with these witnesses"; and (3) "[a] list of any expert witnesses, along with their qualifications; reports or results of any physical, mental examinations, and results of any scientific experiments, tests or comparisons made by these witnesses." At the hearing on the State's motion for discovery, the State limited its request to individuals the defendant intended to call at trial.

The superior court ordered the defendant to provide the State with

a list of actual trial witnesses and their addresses, both lay witnesses and expert witnesses; with respect to lay witnesses, copies of any written statements signed by those witnesses that pertain solely to the witness's testimonial content; or statements taken by the defense not signed by the witness but containing the written recollection of the events of which he or she will testify; and with respect to expert witnesses, a report of their theories and opinions and the basis for them.

The court ordered the lay witness information to be given to the State fourteen days before trial and the expert information produced at least thirty days before trial. The court allowed an interlocutory transfer of its ruling.

I. Work Product Doctrine

The defendant argues that evidence is protected by the work product doctrine if it was prepared in anticipation of litigation by an attorney or at an attorney's direction and if it contains information acquired during preparation of the case for trial. He contends that each category of information the trial court ordered to be released to the State falls within the doctrine's protection. The defendant also argues that the evidence is protected by the work product doctrine because the State has failed to show "substantial need" for the materials or the inability "without undue hardship to obtain the substantial equivalent of the materials by other means," citing Superior Court Rule 35(b)(2). These arguments fail for the same reasons we today articulate in State v. Chagnon, 139 N.H. 671, 662 A.2d 944 (1995). The defendant asserts that three types of evidence ordered to be disclosed are protected by the work product doctrine. We address only arguments that differ from those discussed in Chagnon.

The trial court's order requires the defendant to produce a list of actual trial witnesses and their statements. The defendant argues that a witness list is work product because it expresses the defendant's theory and defenses. The trial court noted, however, that "[t]he disclosure of the trial witnesses' names and addresses is so fundamentally fair that defense counsel can offer no sound objections to it." Indeed, it was conceded at oral argument that it is the general practice in this State that the parties voluntarily turn over witness lists. Cf. Barry v. Horne, 117 N.H. 693, 695, 377 A.2d 623, 625 (1977) (affirming order requiring pretrial disclosure of trial witness names in civil case). Although this concession does not serve to waive the issue, it does illustrate how minimal any intrusion into trial preparation such a disclosure would be. The trial court's decision to order the disclosure of the names of persons expected to testify at trial may or may not violate the work product doctrine. See Chagnon, 139 N.H. at ----, --- A.2d at ----. Regardless, the overriding necessity of the exchange of witness lists for the fair and efficient conduct of trials requires us to hold that witness lists are an exception to the work product doctrine and that they therefore must be disclosed upon request or order.

The defendant next argues that the order violates the work product doctrine by requiring the defendant to produce copies of any written statements signed by those witnesses and statements taken by the defense not signed by the witness but containing the written recollection of the events of which he or she will testify. The defendant argues that reports of interviews fall within the work product privilege pursuant to State v. Dedrick, 135 N.H. 502, 607 A.2d 127 (1992). In Dedrick, this court assumed that an attorney's handwritten "personal notes" were work product. Id. at 507-08, 607 A.2d at 130-31. The issue in that case, however, was waiver of the work product privilege, not the scope of the privilege, and therefore it offers little support for the defendant's position. In this case, the order requires production of only those parts of the reports of interviews that contain the substance of the witness's statement; "[a]nything in those reports that is in addition to the actual account of the incident by the witness such as the witness's appearance and demeanor when giving the statement or how defense counsel plans to introduce this evidence as part of his or her theory of defense can be excised prior to the statement being disclosed to the State." Under such an order, upon receiving a statement or report that is partially redacted, the party receiving the document has the right to ask the court to review the unredacted version in camera to verify that the omitted portions are protected by the work product doctrine. See Chagnon, 139 N.H. at ----, --- A.2d at ----.

Finally, the court's order requires production of expert reports of those expert witnesses the defendant intends to call at trial. The order states that "[i]n the case of expert witnesses, reports of their analys[e]s and conclusions will satisfy the disclosure requirement." The defendant argues that such disclosure would include work product because the defense "directed [the] expert to perform certain services with an eye toward trial."

This court has stated, in the civil context, that "[r]eports obtained by a lawyer from his experts are almost always considered to be part of his work product." Willett v. General Elec. Co., 113 N.H. 358, 359, 306 A.2d 789, 790 (1973). We reasoned that

[r]eports from experts present peculiar problems. In the first place they are more likely than ordinary statements to reflect questions and lines of inquiry suggested by the lawyer. Moreover, the expert witness's very relationship to the case usually stems from the choice of the party and his attorney who hire such a witness to become associated with them in examining certain aspects of the case and advising what positions the party should take with regard to them. There seems to be fairly good reason, therefore, for treating these reports as part of the work product of the lawyer in most cases.

Id. at 359-60, 306 A.2d at 790 (quotation omitted).

Superior Court Rule 99, however, gives the trial court the authority in a criminal case to require the parties "to exchange ... statements of witnesses; any reports or results, or statements or conclusions relative thereto, of physical or mental examinations; or of scientific tests, experiments or comparisons; or any other reports or statements of experts." This portion of Rule 99 must be interpreted in a way so as to protect work product. Factual information in an expert's report is not privileged. A report that merely analyzes facts and renders an opinion as to what occurred without reflecting or discussing the theories, mental impressions, or litigation plans of the defense attorneys should not be considered work product. See 23 Am.Jur.2d Depositions & Discovery § 68 (1983 & Supp.1995). Accordingly, we conclude that no part of the trial court's order violates the work product doctrine.

II. Right Against Self-Incrimination

The defendant next argues that the trial court's order violates his State and federal constitutional privileges against compelled self-incrimination. The New Hampshire Constitution provides that "[n]o subject shall ... be compelled to accuse or furnish evidence against himself." N.H. CONST. pt. I, art. 15. The fifth amendment to the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. The State constitutional privilege against self-incrimination is comparable in scope to the fifth amendment. State v. Cormier, 127 N.H. 253, 255, 499 A.2d 986, 988 (1985). We address the defendant's claim under the State Constitution first, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), and cite federal law only as an aid to our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because federal law is not more favorable to the defendant, we need not address his federal claim in this case. See id...