THE STATE OF NEW HAMPSHIRE SUPREME COURT. No State of New Hampshire. Anthony Barnaby and David Caplin

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No State of New Hampshire v. Anthony Barnaby and David Caplin State s Appeal Pursuant to RSA 606:10 from Judgment of the Hillsborough County (South) Superior Court BRIEF FOR DAVID CAPLIN David M. Rothstein Deputy Director New Hampshire Public Defender 10 Ferry Street, Suite 202 Concord, NH NH Bar # (15 minute oral argument)

2 TABLE OF CONTENTS Page Table of Authorities... ii Question Presented... 1 Statement of the Case... 2 Statement of the Facts... 8 Summary of the Argument... 8 Argument I. THE COURT SUSTAINABLY EXERCISED ITS DISCRETION WHEN IT GRANTED THE STATE S MOTION TO DEPOSE TWO FOREIGN WITNESSES, AND DENIED ITS MOTION TO DEPOSE NINE OTHER FOREIGN WITNESSES A. Standard of Review B. Statutory Construction C. The Court s Rulings Were Correct Conclusion Appendix... A1 i

3 TABLE OF AUTHORITIES Page Cases In re Alex C., 161 N.H. 231 (2010) Bovaird v. N.H. Dep t of Admin. Servs., 166 N.H. 755 (2014) City of Portsmouth v. Boyle, 160 N.H. 534 (2010) Commonwealth v. Hunt, 647 N.E.2d 433 (Mass. App. 1995) Maryland v. Craig, 497 U.S. 836 (1990) State v. Brown, 159 N.H. 544 (2009) State v. Chick, 140 N.H. 503 (1998) State v. Ellsworth, 142 N.H. 710 (1997) State v. Fandozzi, 159 N.H. 773 (2010) State v. Hernandez, 159 N.H. 394 (2009) State v. Kay, 162 N.H. 237 (2011) State v. Kuchman, 168 N.H. 779 (2016) State v. Oakes, 161 N.H. 270 (2010) State v. Rhoades, 139 N.H. 432 (1995) ii

4 State v. Winstead, 150 N.H. 244 (2003) Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540 (1997) United States v. Bronston, 321 F. Supp (S.D.N.Y. 1971) United States v. Carter, 776 F.3d 1309 (11th Cir. 2015)... 9 United States v. Chusid, 2000 U.S. Dist. LEXIS (S.D.N.Y. 2000) United States v. Drogoul, 1 F.3d 1546 (1st Cir. 1993)... 9, 11, 17 United States v. Esquivel, 755 F. Supp. 434 (D. D.C. 1990) United States v. Ismaili, 828 F.2d 153 (3rd Cir. 1987)... 11, 20 United States v. Jefferson, 594 F. Supp. 2d 655 (E.D. Va. 2009)... 13, 17 United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984) United States v. Oudovenko, 2001 U.S. Dist. LEXIS 2549 (E.D.N.Y. 2001) United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995) United States v. Stein, 482 F. Supp. 2d 360 (S.D.N.Y. 2007) United States v. Yates, 438 F.3d 1307 (11th Cir. 2006)... 16, 22 iii

5 Statutes RSA 516: RSA 517: , 12 RSA 517:13, II RSA 613-A:3(3) RSA 613-A: iv

6 QUESTION PRESENTED 1. Whether the court sustainably exercised its discretion when it granted the State s motion to depose two foreign witnesses, and denied its motion to depose nine other foreign witnesses. Issue preserved by State s Motion to Depose Foreign Witnesses, SA * 1-23; Objections to State s Motion, SA 24-34; State s Supplemental Motion, SA 35-40; court s order on State s Motion, SBA 3-21; State s Motion to Reconsider and Clarify, SA 41-56; Objections to State s Motion, SA 57-63; and court s order on State s Motion, SBA * Citations to the record are as follows: SB designates the State s Brief. SBA designates the appendix to the State s Brief, which includes the court s written orders. SA designates the separately bound appendix to the State s Brief, which includes the parties pleadings. M designates the transcript of the hearing on the State s Motion to Depose, held on June 24, 2016; DBA designates the appendix to the Defendant s Brief. 1

7 STATEMENT OF THE CASE AND FACTS Anthony Barnaby ( Barnaby ) and David Caplin ( Caplin ) are Micmac Indians from the Restigouche Reservation ( the Reservation ) in Quebec. SA 3. They stand charged by a Hillsborough County (South) grand jury with two counts of first degree murder and two alternative counts of second degree murder for the stabbing deaths of Brenda Warner and Charlotte Ranstrom, which occurred in Nashua in October of SA The State previously charged both men and tried Barnaby three times. SA 3. Each trial ended in a hung jury. SA 3. The State entered a nolle prosequi after the third trial. SA 3. Caplin has never been tried. SA 3. The State entered a nolle prosequi in his case after this Court upheld a pretrial ruling which excluded allegedly inculpatory evidence. SA 3; State v. Caplin, 134 N.H. 302 (1991). The State re-opened its investigation into the murders in SA 3. The renewed investigation led the State to re-indict Caplin and Barnaby based on what the State categorized as newly-discovered evidence, some of which derived from interviews of eleven Canadian witnesses. SA 3-6. Eight of the witnesses reside on the Reservation, two live in Ontario, and one lives near Montreal. SA 3-6. This appeal concerns the State s request to take trial depositions of these witnesses. The defendants argued that the State failed to demonstrate the requisite necessity to take the depositions, see RSA 517:13, II(a) & (b), and that the depositions would violate their rights to confrontation, due process, effective assistance of counsel, and a fair trial. SA 25-27; SA

8 The court (Colburn, J.) held a hearing on June 24, It granted the State s motion to take a deposition of Elizabeth Isaac in Caplin s case and of Melissa Metallic in Barnaby s case, and denied the motion with respect to other witnesses. SBA The State filed a motion to reconsider, accompanied by an affidavit from Nashua Police Sergeant Patrick Hannon, SA 41-56, to which the defendants objected. SA Upon reconsideration, the court denied the State s motion to take Elizabeth Isaac s deposition, granted its motion to take depositions of Dion Methot and Melissa Metallic in Barnaby s case, and denied the motion with respect to the other witnesses. SBA This Statement summarizes the facts underlying the court s ruling as to each witness and the parties arguments on appeal. a. Richard Barnaby. Richard Barnaby is Barnaby s cousin. SBA 4. He resides on the Reservation. SBA 4. He provided information to investigators that allegedly inculpates Caplin. SBA 4. In its brief, the State argued that Richard should be deposed because he refused to be interviewed and expressed concerns about an old New Hampshire warrant and the cost associated with traveling to New Hampshire. SB 4. The court noted that Richard testified at two of Barnaby s prior trials. SBA 15. It found, based on Sergeant Hannon s affidavit, that Richard is willing to testify again, and that the State could address Richard s concerns about the warrant and cost of travel. SBA 27. The court denied the State s motion to depose him. SBA 27. 3

9 b. Frank Metallic. Frank Metallic lives in Toronto. SBA 4. In its brief, the State conceded that Frank met with investigators in 2015, and that he was willing to testify, but characterized him as hesitant to do so. SB 4-5. The State also argued that a deposition was justified because Frank had fallen out of touch with investigators, and was expected to but did not testify at Barnaby s prior trials. SB 4-5. The court found insufficient support for the State s argument that Frank failed to honor a request that he testify at a prior trial. SBA 4-5, 31. Moreover, the court found that Frank said in November 2015 that he would testify at this trial, a sentiment that he reaffirmed to Assistant Attorney General Ben Agati after being assured that he was not a suspect. SBA 31. The court acknowledged the State s representation that Frank had been difficult to contact, but found no evidence that he was avoiding investigators or had reneged on promises to appear. SBA 31. For these reasons, the court denied the State s motion to depose him. SBA c. Dion Methot. Dion Methot lives on the Reservation. SBA 5. The court initially denied the State s motion to depose him because his alleged reluctance to testify was not sufficiently clear. SBA 5, 12. On reconsideration, however, the court found that Dion s reluctance to testify because of his familial relationship with Barnaby rendered his deposition necessary. SBA 28. The court thus granted the State s motion to depose Dion in Barnaby s case. SBA 28. Due to the lack 4

10 of evidence that he had similar reluctance to testify against Caplin, the court denied the State s motion to depose Dion in Caplin s case. SBA 28. d. Melissa Metallic. Melissa Metallic is married to Dion Methot. SBA 5. For the same reasons that it allowed the deposition of Dion in Barnaby s case, the court also allowed the deposition of Melissa Metallic. SBA 5-6, 14, Because Melissa did not express reluctance to testify against Caplin, the court denied the State s motion to depose her in Caplin s case. SBA 29. e. Stephanie Barnaby. Stephanie Barnaby lives on the Reservation. SBA 6. She allegedly dated Caplin in SBA 6. The State argued that a deposition was necessary because, although Stephanie said in 2015 that she was willing to testify against Caplin, she has not responded to investigators phone calls. SB 5, 30. The court was unpersuaded that Stephanie s alleged failure to return international phone calls demonstrated her reluctance to cooperate. SBA 30. Without any more information, such as the number of phone calls made or the efforts the State has made to reach out to her, the Court finds that the State has not met its burden of proof on the issue of necessity. SBA 30. f. Carol Ann Metallic. Carol Ann Metallic lives on the Reservation. SBA 6. In its brief, the State argued that a deposition is necessary because she is reluctant to travel to New Hampshire, and she would want to bring a travel companion because she does not want to have contact with Richard Barnaby. SB 5. 5

11 The court noted that Carol Ann testified in Barnaby s first and third trials. SBA 29. While acknowledging her reluctance to travel, the court found that the State could alleviate the concern by accommodating her travel request. SBA 29. The court denied the State s motion to depose her. SBA 29. g. Craig Jacques. Craig Jacques lives on the Reservation. SBA 6. The court denied the State s motion to depose him because it found that he is cooperative and willing to attend the trial. SBA 7, 30. The State did not address the court s denial of Craig s deposition in its brief. h. Elizabeth Isaac. Elizabeth Isaac lives near Montreal. SBA 7. She is allegedly Caplin s former girlfriend. SBA 7. In its brief, the State conceded that Elizabeth said she would testify, but argued that a deposition is necessary because she is difficult to contact and is afraid of Caplin. SB 5-6. The court initially granted the motion to depose her due to her alleged fear of Caplin. SBA However, Sergeant Hannon s affidavit stated that Elizabeth would be willing to come to New Hampshire to testify if someone travelled with her. SA 54. Based on Elizabeth s willingness to testify, the court reversed its ruling and denied the State s motion to depose her. SBA i. Rodney Isaac. Rodney Isaac lives on the Reservation. SBA 7. The State argued that even though Rodney said he would testify at trial, he should be deposed because he expressed financial concerns. SB 6. The court noted that Rodney 6

12 testified in Barnaby s first trial. SBA 7, 27. It found, based on Hannon s affidavit, that he is a cooperative witness, but is concerned about a New Hampshire warrant. SBA 27. The court denied the State s motion to depose Rodney, ruling that his concern could be addressed and citing his willingness to testify. SBA 27. j. Brenda Goulette. Brenda Goulette lives in Toronto. SBA 7. The State argued that, although Goulette is willing to testify against Barnaby, she has expressed concerns for her safety and the State has been unable to contact her since August of SB 6. Given that Goulette never said she will not testify, the court denied the State s motion to depose her. SBA 32. k. Richard Jacques. Richard Jacques lives on the Reservation. SBA 8. The State argued that a deposition is appropriate because of an old warrant in New Hampshire and legal issues in Canada. SB 6. The court found that he is willing to testify, and that the State could address his concern about the warrant. SBA 11, 29. It denied the State s motion to depose him. SBA 29. 7

13 SUMMARY OF THE ARGUMENT The trial court sustainably exercised its discretion when it granted depositions of two foreign witnesses in Barnaby s case, and denied the State s requests to depose nine other witnesses. This Court reviews the lower court s decision whether to grant a deposition for an unsustainable exercise of discretion. Here, the court, consistent with the statute s language and relevant case law, determined that most of the witnesses were willing to testify at trial, and that the State could address the concerns of witnesses who expressed them. The record amply supports those conclusions. Under these circumstances, the court s wellreasoned decision to deny most of the deposition requests is sustainable. The court also properly considered the impact on the defense of granting requests to depose eleven witnesses. Because the cases are severed, if all requests were granted, the parties would have to conduct twenty-two examinations several weeks before trial. The fact that a witness will have undergone two complete examinations will make it less likely that witnesses will appear to testify at trial. Moreover, the process would compromise the defense s strategy, and potentially frustrate the defendants reasonable expectations with respect to their confrontation rights. Based on the law and the record, the court properly ruled that there were insufficient grounds to grant the State s requests. This Court should affirm the trial court s ruling. 8

14 I. THE COURT SUSTAINABLY EXERCISED ITS DISCRETION WHEN IT GRANTED THE STATE S MOTION TO DEPOSE TWO FOREIGN WITNESSES, AND DENIED ITS MOTION TO DEPOSE NINE OTHER FOREIGN WITNESSES. Barnaby and Caplin are charged with murdering two women. They expect that the witnesses against them will appear at their trials, and be subject to live cross-examination in front of the juries that will decide their fates. Barring exceptional circumstances, their expectation that witnesses shall testify live, rather than via a deposition recorded months before trial, is reasonable. See, e.g., United States v. Carter, 776 F.3d 1309, 1325 (11th Cir. 2015) ( Depositions are generally disfavored in criminal cases, and foreign depositions, in particular, are considered suspect and are not favored. ) (Quotations omitted); United States v. Drogoul, 1 F.3d 1546, 1552 (1st Cir. 1993) ( The primary reasons for the law s normal antipathy toward depositions in criminal cases are the factfinder s usual inability to observe the demeanor of deposition witnesses, and the threat that poses to the defendant s Sixth Amendment confrontation rights. ). The State s motion failed to demonstrate that nine of the eleven witnesses were unlikely to appear to testify at trial. In addition, as the court recognized, granting so many pre-trial depositions would jeopardize the defendants expectations that adverse witnesses will appear at trial, which would implicate his rights to confrontation, due process, and the effective assistance of counsel. The court, applying the proper legal standard, sustainably ruled that the State was entitled to take two depositions in 9

15 Barnaby s case, and none in Caplin s case. This Court should affirm its rulings. Due to their Canadian citizenship and residence, neither party can compel the witnesses presence at trial with a subpoena. SA 7; SA (treaty between Canada and the United States). The State initially argued that this fact was, itself, sufficient to meet its burden to depose them. SA 6-8; M 46. Having lost that argument, the State, in its motion to reconsider, proffered facts that, it alleged, demonstrated that the witnesses were unlikely to appear. SA (Hannon affidavit). If all the State must show is that the witnesses cannot be compelled to attend trial by service of process, the court erred in denying the motions to depose. The statute requires a more particularized showing. The court properly found the State s showing deficient. A. Standard of Review. The State argues that the standard of appellate review of the trial court s decision is de novo. SB 12. This Court has, however, applied the unsustainable exercise of discretion standard to the review of trial court orders denying motions for a deposition. See, e.g., State v. Oakes, 161 N.H. 270, 277 (2010) ( [The Court] will evaluate the trial court s denial of a motion for depositions under the unsustainable exercise of discretion standard. ); State v. Fandozzi, 159 N.H. 773, 778 (2010) ( A trial court s decision to deny a motion for a deposition... is reviewed by this court under the [unsustainable exercise] of discretion standard. Accordingly, [this Court] will overturn the trial court s 10

16 rulings only if the defendant can show that they are clearly untenable or unreasonable to the prejudice of his case. ) (Quoting State v. Chick, 140 N.H. 503, 504 (1998)). Federal courts have applied the same standard in reviewing rulings denying depositions of a foreign witnesses. See, e.g., Drogoul, 1 F.3d at 1549 ( The sole question... is whether the district court abused its discretion in denying the government s motion to take the depositions of several foreign nationals in Italy. ); United States v. Ismaili, 828 F.2d 153, 162 (3rd Cir. 1987) (holding court did not abuse discretion in denying motions to depose foreign witnesses). In those cases, the trial court considered facts allegedly justifying a deposition and applied the governing statute to determine whether a deposition was warranted. See, e.g., State v. Rhoades, 139 N.H. 432, (1995) (trial court committed no abuse of discretion in applying RSA 517:13, II(b) to facts and denying motion for deposition). Here, the court engaged in a similar analysis to conclude that two depositions were warranted in Barnaby s case, and nine were not warranted in either case. Its decisions are entitled to this Court s deference. The fact that a statute is involved does not change the standard of review. The deposition statute states that the decision whether to grant a deposition is discretionary. RSA 517:13, II ( The court in its discretion may permit either party to take the deposition of any witness, except the defendant in a criminal case, upon a finding by a preponderance of the evidence that such a deposition is necessary.... ) (Emphasis added). The unsustainable 11

17 exercise of discretion standard of review thus applies here as it does to any discretionary decision made by a lower court. See State v. Kay, 162 N.H. 237, 244 (2011) (unsustainable exercise of discretion standard applies to sanction imposed on probation violation); State v. Brown, 159 N.H. 544, 555 (2009) (unsustainable exercise of discretion standard applies to decisions on joinder and severance). B. Statutory Construction. The State invokes the de novo standard of review by arguing that the appeal raises an issue of statutory construction, and that the statute s ambiguous language necessitates resorting to its legislative history as an interpretative aid. SB 11-14, A formal statutory construction is no more necessary here than it is in other cases involving review of the court s decision to grant or deny a deposition. In any event, the language of the statute is clear. It grants the court discretion to permit a deposition of a witness who is unlikely to be available for trial due to... absence from the jurisdiction or reluctance to cooperate. RSA 517:13, II(a) (emphasis added). In construing a statute, this Court must give its words and phrases their commonly understood meanings. Bovaird v. N.H. Dep t of Admin. Servs., 166 N.H. 755, 759 (2014) ( Words and phrases in a statute are construed according to the common and approved usage of the language unless from the statute it appears that a different meaning was intended. ). It must not add language to the words of the statute, nor ignore language. In re Alex C., 161 N.H. 231, 235 (2010). 12

18 If the witness is likely to be available for trial, regardless of his place of residence, country of origin, or amenability to service of process, the court acts within the scope of the discretion afforded it when it denies the deposition. The legislature could have authorized a deposition merely upon a showing that a witness is absent from the jurisdiction, or resides in a foreign country. It did not. The statute instead required the court to consider circumstances bearing on the likeliness of the witness s availability for trial. See United States v. Jefferson, 594 F. Supp. 2d 655, (E.D. Va. 2009) ( [C]ourts have recognized that the witness s unavailability may be based on a showing that the proposed deponent is beyond the subpoena powers of the United States and has declared his unwillingness to testify at trial.... [C]ourts must assess the unavailability of a potential witness by carefully examining all the reasonably reliable available information and then make a reasoned judgment as to a person s unavailability. ) (Emphasis added) (quotation omitted). The court did so on the evidence the State presented with respect to each witness. The State did not argue below that the statute s language is ambiguous, nor did it ask the court to review the statute s legislative history. Accordingly, neither argument is preserved. See State v. Winstead, 150 N.H. 244, 246 (2003) ( This [C]ourt has consistently held that [it] will not consider issues not raised on appeal that were not considered in the lower court. ). Regardless, nothing about the statute s legislative history, as set forth in the State s brief, supports the State s position that it can take a deposition by showing only that the witness is absent from the jurisdiction or reluctant to appear for trial. The 13

19 State stressed that under the statute, each side must have equal opportunity to depose witnesses for discovery purposes or to preserve their testimony for trial. SB 19. There is no inequity here. Neither side has the right to substitute a witness s pre-recorded deposition for trial testimony without making the unlikely to be available for trial showing to the court s satisfaction. C. The Court s Rulings Were Correct. This Court s review thus reduces to a determination of whether the court sustainably ruled, based on the facts proffered, that the State could depose some witnesses and not others. The State alleges that the court relied upon evidence and offers of proof that supported its desired conclusion, while completely ignoring the evidence and statutory factors that supported the State s position.... SB 11. It also argues that the court s rulings that were arbitrary and capricious. SB 12 n.3. The State s arguments are belied by several features of the court s ruling. First, the court s rulings exhibited no bias against the State. It granted the State s requests for depositions of Dion Methot and Melissa Metallic in Barnaby s case. SBA 14, 28. The fact that the court granted some depositions but not others demonstrates that it exercised discretion rather than acted capriciously or ignored the State s arguments. See City of Portsmouth v. Boyle, 160 N.H. 534, (2010) (noting that court, in its eleven-page order, granted some requests for costs and denied others, supporting finding that court properly exercised its discretion). 14

20 Second, the court demonstrated its capacity to weigh and consider all the State s arguments. The court carefully reviewed the State s motion to reconsider, and after initially denying the deposition of Methot, SBA 12-13, reconsidered and reversed its position based on the State s arguments and the court s review of Hannon s affidavit. SBA 28. This decision further proved that the court was not trying to reach a desired conclusion, and that it did not ignor[e] the State s evidence.... Third, the State has, by implication, agreed that the some of the court s decisions were correct. The court denied the motions to depose Dion Methot and Melissa Metallic in Caplin s case. It denied the motion to depose Craig Jacques in both cases. In its brief, the State has developed no arguments in support of the proposition that these decisions were erroneous. See State v. Kuchman, 168 N.H. 779, 795 (2016) (declining to address arguments that were not sufficiently developed for review). The State s agreement that some decisions were correct undermines its assertion that the court acted arbitrarily and capriciously. Fourth, the court s rulings hewed to the statute s language regarding appearance at trial. The court proceeded from the premise that if a witness is not unlikely to appear for trial, the State had not made the threshold showing necessary to secure a deposition. As to Craig Jacques, the State proffered that he is willing to appear. SA 54. Likewise, the court found no evidence that Dion Methot and Melissa Metallic were unwilling to testify against Caplin. SBA

21 The court similarly denied motions to other depose witnesses who were likely to appear. Frank Metallic stated multiple times that he is willing to testify at trial against Barnaby and Caplin. SA He reaffirmed this intention after being assured by Assistant Attorney General Agati that he was not a suspect. SA 54. Though the State represented that it had been unable to contact Frank, SA 3-4, 54-55, this did not make his appearance less likely because the State provided no detail about its efforts to do so. See State v. Ellsworth, 142 N.H. 710, 716 (1997) (denying motion to depose based on bare assertion that the deposition was necessary); Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540, 550 (1997) (court properly denied relief based on bare assertions that documents should be withheld). It did not establish that Frank was avoiding the State. Other information contradicted the State s argument that the State had done all it could, without success, to convince Frank to testify at trial. At the motion hearing, the defense presented a police report in which an officer told Frank that he could testify by video if it was more convenient for him. M 56; see DBA 1 ( [Frank] stated he now goes to school full time but that he was not oppossed (sic) to testifying if necessary. I gave him the option of providing video taped testimony to attorneys in lieu of his appearance if it helped him with his academic schedule. ) (Report of Sergeant Frank Bourgeois). The State must encourage witnesses to appear due to the law s preference for live testimony at criminal trials. United States v. Yates, 438 F.3d 1307, 1315 (11th Cir. 2006) ( The simple truth is that confrontation through a video monitor is not the 16

22 same as physical face-to-face confrontation. ); Commonwealth v. Hunt, 647 N.E.2d 433, 436 (Mass. App. 1995) ( That a prospective witness is a foreign national outside the United States does not excuse the government from making diligent efforts to locate and secure the attendance of the witness. ). Telling a witness that he does not have to testify at trial if it is not convenient for him, without a court order authorizing such a statement, conflicts with the State s obligation to impress upon witnesses the importance of appearing to testify. Stephanie Barnaby, like Frank Metallic and Craig Jacques, said that she would willingly attend the trial. SBA 30; SA 54. While she had not returned the State s recent phone calls, the court noted, There could be numerous reasons why she has not returned a phone call.... Without more information, such as the number of phone calls made or the efforts the State has made to reach her,... the State has not met its burden of proof on the issue of necessity. SBA 30. That finding is sustainable. Though the State was critical of the court s decision to rely on federal cases, SB 11, the State below cited them in support of its position. SA 7, 10, Those cases bolster the court s conclusions that the State is not entitled to depose these witnesses. For example, in Drogoul, 1 F.3d at 1553, Italian witnesses declared to a judicial officer that they would not appear; that showing was sufficient to demonstrate their unwillingness to testify. Here, the State made no efforts to get similar letters from Canadian judicial officers. In United States v. Jefferson, 594 F. Supp. 2d 655, 666 (E.D. Va. 2009), the 17

23 lawyer for a Nigerian witness told defense counsel that the witness would not speak to counsel, which established his unwillingness. Neither Frank Metallic nor Stephanie Barnaby made such a statement here. In United States v. Stein, 482 F. Supp. 2d 360, 364 (S.D.N.Y. 2007), though the witnesses were in Norway and could not be compelled to appear via a subpoena, the court denied their depositions based on their statements that they were willing to come. The Stein court also noted that speculation that a willing witness might change his or her mind before trial does not justify the expense and burden of deposing the witness where it appears likely that the deposition ultimately will be unnecessary. Id. In United States v. Esquivel, 755 F. Supp. 434, 440 (D. D.C. 1990), the court denied a request to depose a witness where [t]here [was] no evidence whatsoever that [the foreign witness was] unwilling or unable to attend trial in the United States. Finally, in United States v. Ramos, 45 F.3d 1519, 1523 (11th Cir. 1995), a Colombian witness refused to re-enter the United States despite an order permitting him to do so and he was thus deemed unwilling to testify. None of these witnesses have demonstrated a similar unwillingness to appear. Fifth, the court hewed to the statute s language with respect to witnesses who were reluctant to cooperate. As to Dion Methot and Melissa Metallic, the court found that they were unlikely to appear at trial due to their relationship with Barnaby. SBA The court further found that no measures could be taken to make it more likely that they would appear. SBA

24 In these respects, Methot and Melissa Metallic stood apart from other witnesses who expressed reluctance but were nonetheless willing to testify. Brenda Goulette expressed concerns for her personal safety, SA 55, but unlike Methot or Melissa Metallic, did not say that the concerns would prevent her from testifying. Elizabeth Isaac said that she was willing to testify if someone accompanied her. SA 54. That type of accommodation, as explained further below, can be provided. The State presented no evidence to support Hannon s speculation that Elizabeth has trauma from her relationship, SA 54, which ended over twenty years ago, SA 5, nor did Elizabeth say that she had a fear of testifying. SA 54. Based on this record, the court sustainably ruled that, if the State accommodates Elizabeth s travel request, she is likely to appear for trial, and thus, should not be deposed. Hannon stated that Elizabeth Isaac, like other witnesses, had been difficult to remain in touch with via phone calls. SA 54. The State is prosecuting a decades-old murder case which relies on the testimony of witnesses who live in a foreign country. The witnesses have limited financial means. In such a case, the State must make investigative efforts greater than those that may be necessary in a prosecution where the murder occurred recently and the witnesses live in New Hampshire. The State s assertions that these witnesses do not return phone calls failed to establish that they are unlikely to appear for trial. See United States v. Chusid, 2000 U.S. Dist. LEXIS *4 (S.D.N.Y. 2000) ( Conclusory statements of unavailability by counsel are insufficient.... And that is all that is offered here. There certainly is no 19

25 affidavit of either witness explaining why he will not come to trial here. ) (Citations omitted). The court ruled appropriately with respect to the State s deposition requests of other witnesses who expressed reluctance to testify due to concerns about cost of travel, logistics of travel, or old warrants. SBA 29 (Carol Ann Metallic requested to travel with a companion); SBA (Elizabeth Isaac made the same request); SBA 27 (Rodney Isaac expressed financial concerns); SBA 27 (Richard Barnaby expressed concerns about cost of travel and an old warrant); SBA 29 (Richard Jacques expressed the same concerns). In its brief, the State repeatedly suggested that there was something untoward about the court s finding that the State could address these concerns, and thereby make the witnesses likely to appear. SB 10, To the contrary, the State has an affirmative obligation to address the concerns, including assuring the witnesses that they will be compensated for the cost of travel and related expenses, and that other reasonable accommodations will be made. See, e.g., Ismaili, 828 F.2d at 160 (finding witnesses were not unavailable because the record does not establish that any of the witnesses who were sought to be deposed by Ismaili... had been informed that they were entitled to have Ismaili bear their travel expenses, witness fees, and a subsistence allowance. ); id. at 162 (noting that the proponent of the deposition must inform the witnesses that their expenses will be paid before they will be deemed to be unwilling to voluntarily appear); United States v. Oudovenko, 2001 U.S. Dist. LEXIS 2549 *5 (E.D.N.Y. 2001) (stating that proponent of deposition must 20

26 make a good faith effort to secure the presence of these witnesses at trial, such as by offering to pay their travel expenses ) (citing United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984) (holding that government demonstrated good faith effort to secure witness attendance by offering to pay travel expenses, and per diem witness and subsistence fees)). While there is evidence that the police told at least one witness he did not have to come to testify, M 56; DBA 1, there is no evidence that the State assured witnesses that they would receive travel costs and per diem witness fees and expenses. There is no evidence that, having been informed of the costs and expenses the State would pay, any witness expressed unwillingness to testify. Absent that showing, the trial court sustainably found that the State did not carry its burden and properly denied the motions for depositions. See United States v. Bronston, 321 F. Supp. 1269, 1273 (S.D.N.Y. 1971) ( [T]he unwillingness of a witness to come to this country unless his expenses are paid does not necessarily mean that he is unable to attend or prevented from attending the trial. ) (Quotation omitted). A similar analysis applies to the alleged concerns of Richard Barnaby and Richard Jacques, each of whom apparently have a New Hampshire warrant. The State has the power to grant immunity to witnesses to secure their testimony. RSA 516:34. The warrants here are old and appear to stem from minor matters. SA (Richard Barnaby has an old DWI charge). Moreover, out-of-state witnesses are entitled to protection against criminal prosecution for acts that occurred before they came here to testify. RSA

27 A:3(3); RSA 613-A:8. If the law protects out-of-state witnesses, and the State can immunize any witness, the State should be able to assure Richard Barnaby and Richard Jacques that they can testify in a double murder prosecution without having to worry about being arrested on old warrants. Finally, the court s ruling properly considered constitutional concerns raised by the defense. In the trial court, the defendants pressed arguments about the impact this process would have on their confrontation rights concerns that the law recognizes as valid and that the court credited. SA 26 (discussing confrontation clause analysis in Maryland v. Craig, 497 U.S. 836 (1990)), SA 30 (citing confrontation provisions of Part I, Article 15 and the Fifth, Sixth and Fourteenth Amendments) M (court notes the cumulative effect on the defendant s confrontation rights of the presentation of eleven video depositions at trial); see Yates, 438 F.3d at 1323 ( That a federal rule of criminal procedure provides for presence at a deposition... is irrelevant to whether the two-way video transmission is necessary to further the important public policy of providing important, credible evidence at trial. The State s interest is not merely in providing evidence, it is in providing reliable evidence. In this regard, the two procedures are not equivalent, and it is certainly within the discretion of a trial court to determine that a deposition is not an adequate replacement for testimony at trial, before the finder-of-fact. ); State v. Hernandez, 159 N.H. 394, 403 (2009) ( Under our own as well as the United States Supreme Court s precedent, the confrontation clause reflects a preference for face-to-face confrontation at trial.... ) (Quotation omitted). 22

28 Because the cases are not consolidated and the defenses are potentially antagonistic, the State s request means that each of the eleven witnesses would have to be examined twice, once by counsel for Caplin, and once by counsel for Barnaby. M 39. The process associated with having undergone two complete direct and cross-examinations in videotaped depositions will render every witness less likely to appear in New Hampshire to testify for a third and fourth time at trial. For any previously-deposed witness who does appear for a trial, the State will have had the advantage of seeing the defense s cross-examination and will be well-positioned to adjust its strategy accordingly. Thus, the process proposed by the State will result in an enormous amount of important testimony being presented at trial by video, or in the less effective crossexaminations of witnesses who do appear live. The court considered ex parte proffers by each defendant on the unique prejudice occasioned by an order mandating that they cross-examine key witnesses weeks or months before trial. M 60-61, 76. Caplin s proffer has been transferred ex parte and under seal for this Court s consideration. As the proffer demonstrates, Caplin is considering several possible defenses, some of which are potentially inconsistent with others, and some of which depend on how the facts develop as the trial approaches. It is thus possible that if the mass order for depositions is granted, Caplin will have conducted crossexaminations of key witnesses several weeks before trial, only to subsequently discover that the facts have since shifted, and the videotaped cross- 23

29 examinations no longer have their validity, but there are no live witnesses to confront. The State s request thus wreaks havoc on the defense s strategy, could have dire implications on its ability to mount an effective defense, and would leave the defense without any viable remedy. Given the above-discussed deficiencies in the State s proffers with respect to each witness s availability and willingness to testify, this Court should rule that the court sustainably exercised its discretion in denying the State s motions for depositions. 24

30

31

32 A P P E N D I X

33 APPENDIX TABLE OF CONTENTS Page Nashua Police Department Report... A1 A

34