State v. Eaton

• Decision Date: 19 August 2011
• Docket Number: No. 2010–140.,2010–140.
• Citation: 27 A.3d 735,162 N.H. 190
• Parties: The STATE of New Hampshirev.Peter EATON.
• Court: New Hampshire Supreme Court

162 N.H. 190

27 A.3d 735

The STATE of New Hampshire

v.Peter EATON.

No. 2010–140.

Supreme Court of New Hampshire.

Argued: May 12, 2011.Opinion Issued: June 28, 2011.As Modified on Reconsideration Aug. 19, 2011.

Michael A. Delaney, attorney general(Nicholas Cort, assistant attorney general, on the brief and orally), for the State.Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.HICKS, J.

The defendant, Peter Eaton, appeals his conviction by a jury of four counts of aggravated felonious sexual assault, seeRSA 632–A:2 (2007)(amended 2008), one count of felonious sexual assault, seeRSA 632–A:3 (2007)(amended 2008), and one count of indecent exposure, seeRSA 645: 1(2007)(amended 2008).On appeal, he argues that the Trial Court( Nadeau, J.) erred when it denied his pre-trial motions: (1) for in camera review of the victim's counseling records; (2) for production of records from the Raymond Police Department; and (3) to dismiss for lack of a speedy trial.He also argues that the Superior Court( Nicolosi, J.) erred when it sentenced him on two indictments alleging alternative theories of liability.We affirm in part, reverse in part, vacate in part, and remand.

The defendant first argues that the trial court erred when it denied his motion for in camera review of the victim's counseling records.The defendant is alleged to have sexually assaulted the victim between the fall of 2003 and June 2005, when he lived with the victim and her family.He was originally indicted for these assaults in October 2005.In November 2005, the defendant filed a motion for in camera review of the victim's counseling records.The State did not object to this motion, and, on December 7, 2005, the court granted it.On January 10, 2006, the trial court issued an order stating that it had reviewed “the victim's mental health records from Seacoast Mental Health Center” and had determined that they“contain no discoverable material.”Accordingly, the court ordered that they would remain under seal.

The defendant moved for reconsideration, explaining that the victim's counseling records had “already been put at issue” because the police spoke to the victim's counselor, Susan Chase, and because some of the indictments were based solely upon the allegations the victim made to Chase.The defendant specified that the counseling records particularly relevant to the case were from July 2005.On January 31, 2006, the trial court denied the motion for reconsideration.The 2005 charges against the defendant were nolle prossed on March 30, 2006.

The defendant was re-indicted on October 7, 2008.In February 2009, he filed another motion for in camera review of the victim's counseling records.In this motion, he alleged the following.The victim first made allegations against him on June 28, 2005.On July 5, 2005, she saw Dr. Wendy Gladstone, who recommended counseling.The victim first met Chase, her counselor at Seacoast Mental Health, on July 14, 2005.Later that day, Chase told the police that the victim had used anatomical dolls in disclosing that she had been anally penetrated by the defendant.On July 26, 2005, the victim told Chase that the defendant had penetrated her buttocks with a vibrator.The defendant asserted that the victim “remained in counseling to address these issues for an unknown amount of time.”He further noted that the victim made statements to her counselor about his conduct that differed from those she made to others.The defendant acknowledged that he had already requested the documents in his prior motion for in camera review, the court had ordered in camera review and then had denied him access to them.Based upon these assertions, the defendant asked the court to order the State“to produce counseling and psychiatric records of [the victim] from December 2003.”The trial court denied the defendant's motion on the ground that the defense had “not made the requisite showing under [ State v. Gagne,136 N.H. 101, 612 A.2d 899(1992) ].”

On appeal, the defendant argues that the trial court erred because he“made the threshold showing required for in camera review of the records that existed as of February 2006 ... as well as any counseling records generated since then, including any counseling records from the time period when the Statenolle prossed the 2005 case and reinstated the charges on October 2008.”

We review the trial court's decision under our unsustainable exercise of discretion standard.State v. Sargent,148 N.H. 571, 572–73, 813 A.2d 402(2002).The defendant's request for an in camera review of the victim's counseling records is governed by State v. Gagne.SeeState v. Ellsworth,142 N.H. 710, 713, 709 A.2d 768(1998).“[T]o trigger an in camera review of privileged or confidential records, the defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense.”Gagne,136 N.H. at 105, 612 A.2d 899.This threshold showing “is not unduly high.”State v. Graham,142 N.H. 357, 363, 702 A.2d 322(1997).It requires the defendant only to “meaningfully articulate how the information sought is relevant and material to his defense.”Id.;seeSargent,148 N.H. at 573, 813 A.2d 402.“At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought.”Graham,142 N.H. at 363, 702 A.2d 322(quotation omitted).“Although a defendant is not required to state the ‘precise nature’ of the information sought, he must provide the court with a logical factual basis for his request, based on information independently obtained, that the [information sought] may yield relevant evidence.”Ellsworth,142 N.H. at 714, 709 A.2d 768(citation omitted).

The defendant argues, in effect, that he met the Gagne standard to require in camera review of two sets of records: (1) those generated from December 2003 until July 5, 2005(the date on which counseling was suggested to the victim); and (2) those generated from July 5, 2005, until October 7, 2008(the date of his re-indictment).

We first address whether the defendant met the Gagne standard with respect to counseling records generated from December 2003 until July 5, 2005.The defendant's February 2009 motion alleges only that counseling was first recommended to the victim on July 5, 2005.It does not articulate any logical factual basis for his belief that the victim was even in counseling at any time before July 2005.SeeEllsworth,142 N.H. at 714, 709 A.2d 768;see alsoState v. Hoag,145 N.H. 47, 49–50, 749 A.2d 331(2000).Accordingly, we conclude that the defendant has not met the Gagne standard as to any records generated before July 5, 2005.

As to the victim's counseling records from July 5, 2005, until October 7, 2008, when he was re-indicted, we conclude that the defendant has met the Gagne standard as a matter of law.

The defendant's motion for in camera review alleged that counseling was first recommended to the victim on July 5, 2005, and that the victim discussed her allegations against the defendant with her counselor several times in 2005.His motion also stated that the victim remained in counseling “for an unknown amount of time” after July 2005.His belief, he explained, was based upon the victim's mother's statement “on August 18, 2005 that her children were in intensive counseling to address [the] ... alleged abuse.”He further noted that the victim's statements to her counselor differed from those she made to others.These allegations were sufficient to provide the court with a logical factual basis for his request for the victim's counseling records generated from July 5, 2005, until October 2008.SeeEllsworth,142 N.H. at 714, 709 A.2d 768;see alsoHoag,145 N.H. at 49–50, 749 A.2d 331.

State v. Hoag is instructive on this issue.The defendant in Hoag sought the victim's counseling records, to the extent that any existed.Hoag,145 N.H. at 49, 749 A.2d 331.The victim in Hoag, like the victim in this matter, gave differing accounts of the defendant's actions.Id.The defendant in Hoag did not know for certain that the victim had sought counseling, but he reasonably believed this to be the case because, as the State conceded, counseling had been recommended to the victim.Id. at 50, 749 A.2d 331.Similarly, in the instant matter, the defendant does not know for certain that the victim continued in her counseling with Chase after July 2005, but he reasonably believes this to be the case based upon the mother's statement that in August 2005, the victim was “in intensive counseling to address [the] ... alleged abuse.”Just as the defendant's assertions in Hoag were sufficient to trigger in camera review, so too are the defendant's assertions here sufficient.The defendant in this case reasonably believes that the victim remained in counseling after July 5, 2005, and reasonably believes that this counseling concerned his alleged conduct.Seeid.

The trial court, however, has already reviewed a portion of these records in camera.The trial court granted the defendant's first motion for in camera review of the victim's counseling records on December 7, 2005.Although the records are not part of the appellate record, we infer that, at the very least, counseling records that existed as of December 7, 2005, were produced for the trial court's in camera review.The record on appeal also demonstrates that such a review took place.The trial court's January 10, 2006 order stated specifically: “The court has reviewed the victim's mental health records from Seacoast Mental Health Center.”Indeed, the defendant's February 2009 motion acknowledged this: “The requested records were requested previously and this Court ordered that they be produced for in camera review.”

At oral argument, the defendant asserted that...