State v. Heath

• Decision Date: 31 December 1986
• Docket Number: No. 86-299,86-299
• Citation: 523 A.2d 82,129 N.H. 102
• Parties: The STATE of New Hampshire v. William P. HEATH.
• Court: New Hampshire Supreme Court

Page 82

523 A.2d 82

129 N.H. 102

The STATE of New Hampshire v.William P. HEATH.

No. 86-299.

Supreme Court of New Hampshire.

Dec. 31, 1986.

Stephen E. Merrill, Atty. Gen. (Barbara R. Keshen, Asst. Atty. Gen., on the brief and orally), for the State.

Bell, Falk & Norton P.A., Keene (Theodore H. Parent, Keene, on the brief and orally), for defendant.

Runyon and Sweeney P.A., Peterborough (Walter H. Sweeney, Peterborough, on the brief and orally), on behalf of Robert M. Grovenstein, as amicus curiae.

SOUTER, Justice.

This is an interlocutory appeal under Supreme Court Rule 8, although the case comes to us as a transfer by the Superior Court(DiClerico, J.) of four questions prompted by statutory enactments affecting the right of a criminal defendant to depose a young victim or witness.SeeRSA 517:13 (Supp.1986) and :13-a (Supp.1986).The questions and our answers will be understood best in light of the relevant facts and statutory history.

The defendant stands indicted on one count of aggravated felonious sexual assault, RSA 632-A:2, XI, charging him with committing acts of fellatio upon a seven-year-old boy in August, 1984.Between the date of the acts alleged and the date of the indictment handed down on January 15, 1986, the legislature passed Senate Bill 2, as introduced in the legislative session of 1985.SeeLaws 1985, ch. 228.

The Senate Select Committee on Child Abuse proposed the enactment of Senate Bill 2, and the Judicial Council supported it.See "Report of the Senate Select Committee on Child Abuse submitted to Senate President Vesta Roy, March 5, 1985"; "Report of the Judicial Council on Child Victims of Sexual Abuse[,]February, 1985."Each report endorsed Senate Bill 2 as a response to the reluctance of some young victims and witnesses to testify in an open public courtroom, and to the perceived abuses of the existing discovery deposition process, which is normally unsupervised by judges and never observed by juries.

So far as it concerns us here, Senate Bill 2 was a proposal to modify the existing law by restricting a defendant's statutory right to take discovery depositions in cases involving young victims, and by providing in certain cases for the use of videotaped depositions of young victims and other witnesses.The legislature's specific enactments, seeLaws 1985, 228:1 and :2, added the final sentence of RSA 517:13 (Supp.1986) and a new section, RSA 517:13-a (Supp.1986):

"517:13 Taking of Depositions.The respondent in a criminal case may take the discovery deposition of any person in his defense, upon giving the same notice of the caption thereof to the prosecutor that is required to be given to the adverse party in a civil case.Any discovery deposition so taken may be used on the trial of the case whenever, in the discretion of the court, the use thereof shall be deemed necessary for the promotion of justice.Notwithstanding this section, no party in a criminal case in which the victim, at the time of the alleged offense, was under 16 years of age shall take the discovery deposition of the victim or any witness who was under 16 years of age at the time of the alleged offense.

(Laws 1985, 228:1 does not follow the text quoted here from RSA 517:13 (Supp.1986).The latter printing follows the text of Senate Bill 2 as enrolled and is therefore the correct version.)

517:13-a Video Tape Deposition Authorized.

I.In any criminal case, any party may move to take a video tape deposition of any witness, including the victim, who was 16 years of age or under at the time of the alleged offense.Any victim who was 16 years of age or under may also move to take a video tape deposition of his testimony.The court shall grant an order authorizing a video tape deposition if it finds by a preponderance of the evidence that:

(a) The child will suffer emotional or mental strain if required to testify in open court; or

(b) Further delay will impair the child's ability to recall and relate the facts of the alleged offense.

II.In any criminal case, if a witness is under 13 years of age, a video tape deposition shall be taken unless the court finds, after a hearing, by the preponderance of the evidence, that it is in the interest of justice to allow testimony in open court.

III.A video tape deposition taken pursuant to this section shall be conducted before the judge or court appointed master, at such a place as ordered by the court, in the presence of the prosecutors, the defendant and his attorneys, and such other persons as the court allows.Examination and cross-examination of the child shall proceed in the same manner as permitted at trial.Such deposition shall be admissible into evidence at trial in lieu of any other testimony by the child.

IV.Unless otherwise ordered by the court for good cause shown, no victim or witness whose deposition is taken pursuant to this section shall be required to appear or testify at trial.

V.Any witness who is 16 years of age or under shall be allowed to have his parent or other appropriate adult present during his testimony.

VI.The supreme court shall make any rules necessary to implement the provisions of this section."

After his indictment, the defendant filed motions for two discovery orders, which would have required the victim to submit to an interview and to give a discovery deposition.The trial court denied each motion, expressly relying on RSA 517:13 (Supp.1986) in refusing to order the deposition.

The record before us indicates nothing further about actual or potential discovery in this case, except the availability of a videotape of the victim's statement to an investigator employed by the division of welfare.In the course of that statement, the victim responded to certain questions about the events alleged in the instant indictment by giving answers suggesting that one Elmer Sweeney had sexually assaulted him.Sweeney had earlier pleaded guilty to two Grafton County indictments charging him with acts of fellatio committed upon this same victim in October, 1984.

After denying the defendant's discovery motions, the trial court transferred the four questions that we now set out, together with summaries of our responses, which we will develop in greater detail below.

"1.Is [the amendment to]RSA 517:13[, effective on January 1, 1986,] an absolute bar to discovery depositions of witnesses in criminal cases who are under the age of 16?"

This first question is not subject to a simple yes or no answer.An examination of the terms of RSA 517:13 (Supp.1986) reveals that the statute as amended limits the use of discovery depositions in criminal cases only when the victim was under sixteen at the time of the offense alleged.In such a case, it forbids separate discovery depositions of the victim or of any witness who was likewise under sixteen at the time.Section 13 must, however be read together with its newly enacted companion section, RSA 517:13-a (Supp.1986), which authorizes a trial court to order videotaped depositions of such victims or witnesses.Such depositions may include questions posed for discovery purposes, calling for answers that might not be admissible at trial.

"2.If the answer to the first question is in the negative, what standards shall the trial court apply in deciding whether or not to permit such depositions?"

Given our first answer, we interpret this question to ask about the significance of potential discovery when a court is considering a request for a videotaped deposition or an objection to a discovery question posed in the course of such a deposition.We answer that a defendant's bona fide desire to pose discovery questions is a proper ground for ordering such a deposition or allowing a discovery question.

"3.If the answer to the first question is in the affirmative, is the statute unconstitutional in that it acts in this case to deny defendant ... his rights to properly prepare a defense, to have the adequate assistance of counsel, to have the benefit of due process of law, to have the right of equal protection under the law, to have a fair trial, and to confront the witnesses against him?"

When discovery questions are permitted in the course of a videotaped deposition authorized by RSA 517:13-a (Supp.1986), this question will not arise.When they are not, however unlikely that may be, there will not automatically, and without more, be a violation of either State or national standards of due process and equal protection.The record of the preliminary stages of the case now before us does not give rise to the other constitutional issues mentioned in the third question, and we intimate nothing about our likely responses if and when those issues are presented to us.

"4.Does [the amendment of]RSA 517:13 ... apply to the case at bar, where the incident alleged occurred prior to the effective date of the statute?"

Both the amendment of RSA 517:13 (Supp.1986) and the newly enacted 517:13-a (Supp.1986) are applicable to the case before us.

The considerations that prompt our answers begin with an analysis of the new statutes and their legislative history.Although the first question asks whether RSA 517:13 (Supp.1986) is a "bar to discovery depositions of witnesses in criminal cases who are under the age of 16,"we have already indicated that our response to the question must rest on RSA 517:13-a (Supp.1986), as well as on RSA 517:13 (Supp.1986).

We start with a word about the meaning of "discovery deposition."While the statute does not define the phrase, in common usage it refers to a pretrial deposition taken without the presence of a judge, at which permissible questions are not limited by the rules of evidence, but may include any enquiry calling for "testimony ... reasonably calculated to lead to the discovery of admissible evidence and [not violative of] any privilege."Super.Ct.R. 44.

RSA 517:13 (Supp.1986) does not bar such a deposition merely because the witness sought to be...