State of New Hampshire v. Timothy R. Verrill

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 2021-0093
THE STATE OF NEW HAMPSHIRE
v.
TIMOTHY R. VERRILL
Argued: April 21, 2022
Opinion Issued: September 14, 2022
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Peter Hinckley, senior assistant attorney general, on the brief and
orally), for the State.
David M. Rothstein, director of litigation, New Hampshire public
defender, of Concord, on the brief and orally, for the defendant.
HICKS, J. In this interlocutory appeal, the defendant, Timothy R. Verrill,
appeals an order of the Superior Court (Howard, J.) denying his motion to
dismiss his pending indictments with prejudice after his unopposed motion for
a mistrial had been granted. See Sup. Ct. R. 8. On appeal, he contends that
the Double Jeopardy and Due Process Clauses of the State and Federal
Constitutions prohibit his retrial because of the State’s discovery violations.
See N.H. CONST. pt. I, arts. 15, 16; U.S. CONST. amends. V, XIV. We affirm in
part, vacate in part, and remand.
I. Facts
A. First Motion to Dismiss
The following facts either were found by the trial court or relate the
content of documents in the appellate record. A grand jury indicted the
defendant on two counts of first degree murder, two counts of second degree
murder, and five counts of falsifying evidence. The indictments concern the
deaths of Christine Sullivan and Jenna Pelligrini, whose bodies were found on
January 27, 2017, at the home of Dean Smoronk. Sullivan lived with Smoronk
and Pelligrini was a houseguest. The investigations of the homicides involved
numerous witnesses who either were present at the house around the time of
the murders or were believed to have been involved in a drug operation headed
by Smoronk and Sullivan. The defendant was alleged to have worked for
Smoronk and Sullivan in that operation. He was indicted for the murders and
related charges in November 2017.
The defendant’s jury trial began in Superior Court (Houran, J.) in
October 2019. On October 23, 2019, in the middle of the trial and during the
State’s case-in-chief, defense counsel informed the court that the State had not
disclosed two emails sent to the New Hampshire State Police Major Crimes Unit
(MCU) by a friend of a witness. After defense counsel submitted the emails for
review by the court and the prosecution, the prosecutors informed the court
and defense counsel that they had no prior knowledge of the emails and that
the State trooper to whom the emails had been sent was expected to be at the
courthouse soon to answer any questions about the undisclosed materials.
At the end of the trial day, outside the jury’s presence, the prosecutors
informed the court and defense counsel that they had asked the trooper to
download all of the information he had about this case, which resulted in the
trooper producing numerous documents, including recorded witness
interviews, of which the prosecutors had been unaware. The prosecution
represented that some of the recorded interviews duplicated materials already
disclosed to the defense. Defense counsel was granted time to review the
materials.
The following day, October 24, the defendant moved to dismiss the
indictments with prejudice based on the State’s failure to disclose the discovery
before trial. The trial court suspended the trial to hold a two-day evidentiary
hearing on the motion. On the first day of the hearing, the prosecutors
informed the court that, overnight, they had been informed about additional
information that had not been disclosed previously. The State explained the
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measures prosecutors had taken so that they could be reasonably assured that
they had received all discoverable information from the State’s investigators
and produced members of the MCU for questioning under oath by both parties
regarding the failure of the MCU to turn over the investigative information at
issue.
The State conceded “without reservation that it [had] severely violated
[the trial] court’s discovery orders in failing to provide [the defendant] with the
investigative information at issue prior to the penultimate day of its case-in-
chief.” The only issue for the court, therefore, was “the remedy that [was] due.”
The trial court denied the defendant’s motion to dismiss the indictments with
prejudice in an October 31 order.
In its order, the court observed that, under the State Due Process
Clause, “[d]ismissal with prejudice is generally reserved for extraordinary
circumstances that involve . . . actual prejudice to the defendant caused by the
delayed disclosure, and . . . an inability to cure the prejudice with other . . .
curative measures.” (Quotation omitted.) The court rejected the defendant’s
assertion that this case represents the “extraordinary situation” where
dismissal with prejudice is warranted, noting that the State’s discovery
violations, although “inexcusable,” were not the product of “malice, ill will, or
bad faith,” and that there was “simply no evidence from which it is reasonable
to infer that the [MCU] or any other government actor was intentionally
suppressing information favorable to [the defendant].” The court specifically
found the government conduct in this case was “the product of sloppiness,
[lack of] oversight, and poor management practices” principally of the lead
MCU investigator, and implied that the conduct was not “intentionally
unlawful.”
Instead of dismissing the indictments, the court: (1) allowed the defense
to make a new opening statement; (2) allowed the defense to play portions of
certain recorded witness interviews and precluded the State from using
information from those interviews; (3) allowed the defense to recall certain
witnesses for impeachment purposes and precluded the State from
rehabilitating those witnesses; (4) intended to instruct the jury that the
government failed to meet its discovery obligations; and (5) required the State
to provide signed affidavits from every MCU member who worked on the case
averring that the member “has checked all personal and work related electronic
devices to ensure that any and all materials related to this case have been
provided to the Attorney General, and thus to the defense.”
B. Second Motion to Dismiss
Before the court issued its narrative order, MCU initiated an audit of the
investigation to ensure that all discovery was disclosed. The audit continued
as the trial progressed. At the end of the day on October 30, the MCU informed
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the prosecution that the audit had unearthed additional undisclosed discovery.
The prosecution informed defense counsel of this fact, identified the additional
undisclosed materials, and submitted some of them to defense counsel.
The next day, October 31, prosecuting attorneys told defense counsel in
a telephone call that they were at State Police headquarters and had just
learned, upon their arrival, that there was even more undisclosed discovery
than they had previously identified. The prosecuting attorneys told defense
counsel that they also had learned upon their arrival that the State Police kept
all drug-related discovery separate from the homicide discovery and that the
State Police had not turned over the drug investigation discovery to the
prosecution. A prosecuting attorney told defense counsel that the volume of
undisclosed discovery materials was “significant.” In a subsequent email,
defense counsel proposed that defense counsel request a mistrial and that,
once all undisclosed discovery had been reviewed, the parties could litigate
whether the mistrial should be with or without prejudice.
Thereafter, the defense requested a mistrial, and the State did not object.
The State also argued that a mistrial was required by manifest necessity due to
the “late discovery[] of potentially exculpatory evidence” and defense counsel’s
representation that a continuance would not be a viable option. The State
agreed to waive any procedural objections it might have to the defendant’s
renewed motion to dismiss should the court declare a mistrial and should the
defendant subsequently move to dismiss the indictments with prejudice. The
court granted the assented-to request for a mistrial on October 31, and
dismissed the jury.
In the ensuing months, the defense team reviewed the additional
undisclosed discovery, amounting to hundreds of written pages and more than
25 media discs. The undisclosed discovery included information previously
unknown to defense counsel.
In May 2020, the defendant filed a second motion to dismiss the charges
pending against him with prejudice based upon the double jeopardy
protections of Part I, Article 16 of the State Constitution and the Fifth
Amendment to the Federal Constitution and the State and Federal Due Process
Clauses, see N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV. The
defendant argued that the “State . . . engaged in conduct intended to provoke
the defense into requesting a mistrial” and that it engaged in a pattern “of
reckless disregard” of its constitutional obligations to disclose, before trial,
information favorable to the defense that is material to guilt or punishment.
The defendant contended that the State’s conduct “severely prejudic[ed] [his]
defense” and required dismissal with prejudice.
In its objection, the State conceded that “[i]nexcusable [d]iscovery
violations . . . for which the State is solely at fault” had occurred in the case.
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However, the State contended that very little of the previously undisclosed
information could be considered favorable to the defendant and material to
guilt or punishment and that the previously undisclosed information was
“duplicative in substance to a host of information already provided to the
defense in a timely manner.” The State further asserted, “[a]lthough the
acknowledged [d]iscovery violations in this case have been serious, they were
neither willful nor malicious, and were the product of unique and
unprecedented negligen[ce] . . . rather than systematic dysfunction by either
police or prosecutors.” The State argued that the violations did not prejudice
the defendant “to the extent that the only available recourse is dismissal with
prejudice,” and asserted there were “many available alternative and effective
remedies and sanctions that the [court could] impose short of such an extreme
penalty.” For example, the State agreed that “as an appropriate additional
sanction,” the State would “cover the cost of any additional Discovery
depositions, travel expenses, and/or litigation expenses,” and that, in the
retrial, “the State would waive its valid availability objection to [certain]
previously-admitted hearsay statements.”
Following a three-day evidentiary hearing, the Trial Court (Howard, J.)
denied the defendant’s motion to dismiss the indictments with prejudice. In its
narrative order, the court described the inadequate record-keeping system
used by the MCU, which led to the discovery failures in this case. As described
by the court, the MCU uses a record-keeping system in which all physical
discovery — including written reports, items from the crime scene, and discs
containing recorded interviews or surveillance footage — is compiled into a
physical binder called a “casebook.” The casebook then is turned over to the
prosecuting body, which, in homicide cases, is usually the Attorney General’s
Office. Any materials that are not included in the casebook remain in the
possession of the lead MCU investigator; however, there is no inventory system
for such materials. The MCU has no designated procedures for compiling a
casebook and offers no formal training on the subject.
Additionally, the MCU has no centralized records management system.
The lead MCU investigator assigned to this case used a spreadsheet to track
investigator assignments and testified that if he inadvertently excluded an
investigative task from his spreadsheet, he would have no indicator or
reminder to follow-up on the task’s completion. In other words, a failure to
record an item onto the spreadsheet would likely result in a failure to collect
the item. The lead MCU investigator admitted that his record-keeping practices
fell short, but testified that his shortcomings were not the result of an
intentional effort to prevent information from being disclosed to the Attorney
General’s Office or defense counsel. The trial court found this testimony to be
credible and reliable.
The court noted that the State did not dispute that it had “committed
significant discovery violations” and that the only issue before the court was
5
the proper remedy for those violations. The court rejected the defendant’s
double jeopardy argument on the ground that there was no evidence that the
State had intentionally goaded him into moving for a mistrial. Regarding the
defendant’s due process claim, the court appears to have assumed without
deciding that, as the defendant asserted, the newly disclosed information was
favorable to him and was material to guilt or punishment. The court then
rejected his due process argument on two grounds: (1) the defendant suffered
no actual prejudice from the delayed disclosures; and (2) there was no evidence
that the State had intentionally withheld evidence in order to obtain a certain
trial result. Nonetheless, the court determined that “the less extreme sanction
of a new trial can sufficiently cure any potential prejudice [the defendant]
suffered” because of the delayed disclosures. The court afforded the defendant
30 days to file a supplemental pleading concerning alternative remedies for the
State’s discovery violations.
Rather than propose alternative remedies, the defendant filed a motion
for reconsideration and a motion for additional findings of fact. In its motion
for additional factual findings, the defendant observed that “apart from finding
no intentional [mis]conduct, the court’s order [made] no finding with respect to
anyone’s mental state or level of culpability (e.g., accident, mistake, or
misfortune; poor recordkeeping; simple negligence; gross negligence; reckless
disregard),” and that it was “not clear whether or to what degree any
prosecutor was at fault.” Therefore, the defendant requested the court to
“[r]ender findings on what the discovery violations were, who bore
responsibility for [them], and the degree of culpability associated with the
violations.” The trial court denied the defendant’s motions in a margin order.
This appeal followed.
II. Analysis
We review the trial court’s denial of the defendant’s motion to dismiss
following a mistrial under our unsustainable exercise of discretion standard.
State v. Murray, 153 N.H. 674, 679 (2006); see State v. Belton, 150 N.H. 741,
745 (2004) (explaining that we review the trial court’s decision to impose
discovery sanctions under our unsustainable exercise of discretion standard).
In determining whether a trial court ruling is an unsustainable exercise of
discretion, we consider “whether the record establishes an objective basis
sufficient to sustain the discretionary judgment made.” State v. Lambert, 147
N.H. 295, 296 (2001). To show that the trial court’s decision is unsustainable,
a party “must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of [that party’s] case.” Id. (quotation omitted).
On appeal, the defendant argues that the Double Jeopardy Clauses and
Due Process Clauses of the State and Federal Constitutions required the trial
court to dismiss his pending indictments with prejudice and that the trial court
erred by declining to do so. See N.H. CONST. pt. I, arts. 15, 16; U.S. CONST.
6
amends. V, XIV. We first consider his arguments under the State Constitution
and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33
(1983). We first address his double jeopardy arguments.
A. Double Jeopardy
The Double Jeopardy Clauses of the State and Federal Constitutions
prohibit the State from placing a defendant in jeopardy more than once for the
same offense. State v. Ojo, 166 N.H. 95, 98 (2014) (State Double Jeopardy
Clause); see Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018) (Federal Double
Jeopardy Clause). “A defendant is placed in jeopardy when a jury is empaneled
and sworn, or, in the case of a bench trial, when the judge begins to hear
evidence.” Ojo, 166 N.H. at 98 (citation omitted). “After jeopardy attaches for a
particular offense, it ‘terminates’ — thereby prohibiting retrial for the same
offense — upon a judgment of acquittal or conviction, or upon an unnecessarily
declared mistrial preventing either judgment.” Id. (citation, quotation, and
ellipsis omitted).
However, when the defendant requests a mistrial, double jeopardy does
not bar retrial unless “the conduct giving rise to the successful motion for a
mistrial was intended to provoke the defendant into moving for a mistrial.”
Oregon v. Kennedy, 456 U.S. 667, 679 (1982) (discussing the Federal Double
Jeopardy Clause); State v. Glenn, 160 N.H. 480, 489 (2010) (discussing the
State Double Jeopardy Clause). This exception to the rule that the Double
Jeopardy Clause is no bar to retrial is a narrow one. Kennedy, 456 U.S. at
673. “Only where the governmental conduct in question is intended to ‘goad’
the defendant into moving for a mistrial may a defendant raise the bar of
double jeopardy to a second trial after having succeeded in aborting the first on
his own motion.” Id. at 676; see State v. Duhamel, 128 N.H. 199, 202-03
(1986) (adopting this standard under the State Constitution).
“Goading” for the purposes of establishing that double jeopardy bars
retrial “is narrowly defined.” United States v. Buck, 847 F.3d 267, 272 (5th
Cir. 2017) (quotation omitted). “[G]ross negligence by the prosecutor, or even
intentional conduct that seriously prejudices the defense, is insufficient to be
characterized as goading.” Id. (quotations omitted); see Murray, 153 N.H. at
681-82. “Prosecutorial conduct that might be viewed as harassment or even
overreaching, even if sufficient to justify a mistrial on defendant’s motion,” is
not goading. Kennedy, 456 U.S. at 675-76; see Murray, 153 N.H. at 681-82.
Instead, there must be “intent on the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at
675-76 (referring to the Federal Double Jeopardy Clause); accord State v.
Marti, 147 N.H. 168, 173 (2001) (“For retrial to be barred, the prosecutor’s aim
must be to subvert the protections of double jeopardy.”). Prosecutorial intent
may be inferred from “objective facts and circumstances.” Kennedy, 456 U.S.
at 675.
7
“Whether the prosecution intended to provoke a mistrial is a question of
fact to be decided by the trial court.” Murray, 153 N.H. at 679. “We accept the
trial court’s factual findings unless they are unsupported by the evidence in the
record,” id., or are legally erroneous, State v. Willis, 165 N.H. 206, 211 (2013).
On appeal, the defendant asserts that the evidence “establishe[d] that the
prosecution acted either with reckless disregard for the contents of the
undisclosed discovery, or in gross dereliction of its responsibility to deliver
accurate and reliable information to the defense as it decided whether to
terminate the trial” and asks that we “find that the intent element can be
satisfied” by proof that the prosecution was aware of, but consciously
disregarded, “the risk that [its] conduct would cause a mistrial.” In other
words, the defendant asks that we construe our State Constitution to provide
greater protection than the Federal Constitution under these circumstances.
Although retrial is barred under the Federal Constitution only upon evidence
that the prosecution specifically intended to goad a defendant into moving for a
mistrial, see Kennedy, 456 U.S. at 675-76, the defendant asks that we
construe the State Constitution to bar retrial also when the prosecution has
consciously disregarded the risk that its conduct would cause a mistrial.
Since the Supreme Court decided Kennedy, only a handful of state
supreme courts have adopted the “conscious disregard” standard or something
similar to it under their state constitutions. See Pool v. Superior Court, 677
P.2d 261, 271-72 (Ariz. 1984); State v. Breit, 930 P.2d 792, 803 (N.M. 1996);
Thomas v. Eighth Judicial District Court, 402 P.3d 619, 626 (Nev. 2017); State
v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983). By contrast, “[a] majority of state
courts have adopted the Kennedy standard under their state constitutions.”
Emily McEvoy, When Double Jeopardy Should Bar Retrial In Cases of
Prosecutorial Misconduct: A Call for Broader State Protections, 122 Colum. L.
Rev. 173, 188 (2022); see, e.g., State v. Michael J., 875 A.2d 510, 534-35
(Conn. 2005) (concluding that the Kennedy standard applies under the
Connecticut Constitution).
In Duhamel, we adopted the Kennedy specific intent standard as a
matter of State constitutional law, reasoning that our State Constitution
provides identical protection as is provided by the Federal Constitution under
these circumstances. Duhamel, 128 N.H. at 202-03; see Marti, 147 N.H. at
171.1 Similarly, in Murray, we rejected the defendant’s argument that the
State Constitution afforded him greater protection than the Federal
1In Marti, we were asked to adopt the “conscious disregard” standard that the defendant urges us
to adopt today. See Marti, 147 N.H. at 173. In that case, we applied the Kennedy specific intent
standard to the question of whether a retrial is barred after a defendant’s conviction has been
reversed because of prosecutorial misconduct and saw no need to decide whether to adopt the
“conscious disregard” standard because, even under that standard, the defendant did not prevail.
Id.8
Constitution in the context of a motion to dismiss following mistrial. Murray,
153 N.H. at 677, 681. The defendant in Murray argued that “although
Kennedy holds that the Federal Constitution bars retrial only upon a showing
of intentional prosecutorial misconduct, [because] the New Hampshire
Constitution affords him greater protection,” retrial is barred when “the
prosecutor’s conduct amounted to prosecutorial gross negligence.” Id. at 681.
We disagreed, reaffirming that retrial is barred only upon a showing of
intentional prosecutorial misconduct. See id.
Consistent with our decisions in Duhamel and Murray, we decline the
defendant’s invitation to adopt the “conscious disregard” standard under our
State Constitution. Therefore, we hold that the defendant’s assertions that the
“prosecution acted either with reckless disregard for the contents of the
undisclosed discovery, or in gross dereliction of its responsibility to deliver
accurate and reliable information to the defense,” even if true, are insufficient
as a matter of law to establish that the State acted with the requisite specific
intent.
Similarly insufficient as a matter of law are the defendant’s contentions
that, because of the State’s discovery violations, he “had no reasonable option
but to request a mistrial,” and that “the State benefitted from the decision” to
grant a mistrial. For retrial to be barred by double jeopardy, the defendant
must show more than that the State’s conduct “painted [him] into a corner”
such that a successful motion for mistrial is “the only reasonable means of
extrication.” State v. Montella, 135 N.H. 698, 700 (1992). Rather, he must
show that the State painted him into that corner “by . . . design,” or put
another way, that the State intentionally goaded him into requesting a mistrial.
Id. at 700, 701.
Here, the trial court found that “the State did not intend to goad the
defense into requesting a mistrial.” Although the defense had contended that
the State intended its representations in the October 31, 2019 phone call to
goad the defense into requesting a mistrial, the court was “unpersuaded.” The
court found that, in that phone call, prosecuting attorneys were merely
attempting to comply with their obligation to disclose potentially exculpatory
and material information by “expedient[ly]” notifying defense counsel of the
newly discovered undisclosed materials. The court further found that defense
counsel was considering moving for a mistrial before October 31, and that the
State offered not to oppose a mistrial motion “out of a genuine recognition that
if the defense needed a cessation of the trial to digest the new discovery, the
State was simply not in a position to oppose any such request.”
In addition, the trial court found “credible and reliable” the testimony of
the lead MCU investigator that his conduct was not “part of any effort to
intentionally withhold evidence [from] the Attorney General’s office and, in
9
turn, the defendant.” The court determined that “no other testimony provided
at the hearing illustrates any intentional withholding of evidence from the
defendant or to encourage a certain trial result.”
The court also incorporated by reference its findings regarding the State’s
intent from its order denying the defendant’s first motion to dismiss.
Specifically, the court incorporated its prior findings that: (1)
“[n]otwithstanding the egregious nature of the failures of the [MCU] to meet
fundamental discovery obligations, . . . there was no bad faith or intent to
deprive the defense of the evidence”; (2) “there is simply no evidence from
which it is reasonable to infer that the [MCU] or any other government actor
was intentionally suppressing information favorable to [the defendant]”; (3) the
government conduct in this case, although “inexcusable,” was not
“intentionally unlawful,” but rather “was the product of sloppiness, [lack of]
oversight, and poor management practices”; and (4) the government conduct in
this case was not the product of “malice, ill will, or bad faith.”
The defendant challenges the trial court’s decision to credit the testimony
of the prosecuting attorneys. However, we defer to the trial court’s credibility
determinations unless no reasonable person could come to the same
conclusion. State v. Livingston, 153 N.H. 399, 402 (2006). Based upon our
review of the record, we conclude that a reasonable person could have found
the prosecutors’ testimony to be credible, and, thus, we will not substitute our
own credibility determination for that of the trial court. Our review of the
record also reveals support for the trial court’s finding that the State did not
intentionally goad the defendant into moving for a mistrial.
Therefore, we uphold the trial court’s determination that the State
Double Jeopardy Clause does not bar the defendant’s retrial. Because the
Federal Double Jeopardy Clause affords him no greater protection than the
State Double Jeopardy Clause under these circumstances, see Kennedy, 456
U.S. at 675-76; Duhamel, 128 N.H. at 202-03, we necessarily reach the same
conclusion under both constitutions.
B. Due Process
The State and Federal Due Process Clauses require the State to disclose
information favorable to the defendant that is material to guilt or punishment.
Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777 (2015); see
Brady v. Maryland, 373 U.S. 83, 87 (1963). Favorable evidence is “material” if
there is a reasonable probability that, had it been disclosed to the defense, the
result of the proceeding would have been different. See Kyles v. Whitley, 514
U.S. 419, 433-34 (1995); State v. Lucius, 140 N.H. 60, 63-64 (1995).
Under the Federal Constitution, the defendant has the burden of proving
that the evidence is “material.” State v. Laurie, 139 N.H. 325, 330 (1995). In
10
Laurie, we found that this imposes “too severe a burden on defendants” and
“that the New Hampshire constitutional right to present all favorable proofs
affords greater protection to a criminal defendant” than the Federal
Constitution provides. Id. Accordingly, we held that, under the State
Constitution, once the defendant has shown “that favorable, exculpatory
evidence has been knowingly withheld by the prosecution, the burden shifts to
the State to prove beyond a reasonable doubt that the undisclosed evidence
would not have affected the verdict.” Id.; see Lucius, 140 N.H. at 63-64. Under
both the State and Federal Constitutions, the prosecutor need not “disclose
everything that might influence a jury,” and the defendant is not entitled to “a
complete discovery of all investigatory work or an examination of the State’s
complete file.” Laurie, 139 N.H. at 330; see United States v. Bagley, 473 U.S.
at 667, 675 (1985); Moore v. Illinois, 408 U.S. 786, 795 (1972).
“The duty to disclose encompasses both exculpatory information and
information that may be used to impeach the State’s witnesses and applies
whether or not the defendant requests the information.” Duchesne, 167 N.H.
at 777 (citations omitted). “The duty of disclosure falls on the prosecution, and
is not satisfied merely because the particular prosecutor assigned to the case is
unaware of the existence of the exculpatory information.” Id. at 777-78
(citations omitted); see Giglio v. United States, 405 U.S. 150, 154 (1972).
Rather, we impute knowledge among prosecutors in the same office, Duchesne,
167 N.H. at 778, and hold them responsible for the information possessed by
“any investigating officer or law enforcement official,” State v. Lavallee, 145
N.H. 424, 427 (2000); see Lucius, 140 N.H. at 63. “Although police may
sometimes fail to inform a prosecutor of all they know,” such an omission does
not relieve prosecutors of their “duty to learn of any favorable evidence” in the
possession of the police. Duchesne, 167 N.H. at 778 (quotations omitted). The
government’s failure to disclose favorable, material information to the defense
is referred to as a “Brady violation.” See State v. Roy, 167 N.H. 276, 290-91
(2015); see Brady, 373 U.S. at 87. For the purposes of this appeal, we will
assume without deciding that the information the State disclosed mid-trial
constituted information favorable to the defendant that was material to guilt or
punishment.
When a first trial has ended in a conviction, “the remedy for a Brady
violation typically is a new trial.” Woodfox v. Cain, 609 F.3d 774, 802 (5th Cir.
2010); see United States v. Davis, 578 F.2d 277, 280 (10th Cir. 1978)
(explaining that “a violation of due process under Brady does not entitle a
defendant to an acquittal, but only to a new trial in which the convicted
defendant has access to the wrongfully withheld evidence”). However, courts in
some jurisdictions have ruled that, when a first trial has ended in conviction,
dismissal of the defendant’s pending indictments with prejudice may be the
proper remedy under certain circumstances. See, e.g., Government of Virgin
Islands v. Fahie, 419 F.3d 249, 255 (3d Cir. 2005) (“While retrial is normally
the most severe sanction available for a Brady violation, where a defendant can
11
show both willful misconduct by the government, and prejudice, dismissal may
be proper.”); United States v. Pasha, 797 F.3d 1122, 1139 (D.C. Cir. 2015)
(deciding that “if the lingering prejudice of a Brady violation has removed all
possibility that the defendant could receive a new trial that is fair, the
indictment must be dismissed”); United States v. Bundy, 968 F.3d 1019, 1031
(9th Cir. 2020) (“Only where the government withheld Brady material through
flagrant misconduct, causing substantial prejudice to the accused,” should the
court “exercise . . . its supervisory powers to dismiss the case with prejudice.”
(quotations omitted)).
The defendant argues that dismissal of his pending indictments was
required because “the level of misconduct here” by the State “is exceptional”
and “without precedent.” He contends that there were “institutional failures” in
this case, and that “the MCU and Attorney General delegated the investigation
of the ‘drug angle’ [of the case] to federal authorities,” specifically, to ensure
that the defense “would receive no discovery of what the [federal authorities]
uncovered.” However, the trial court made no such factual findings, and we
are not persuaded that the evidence would compel any such findings.
The defendant faults the trial court for “adopt[ing] the [State’s]
characterization of [the lead MCU investigator] as . . . bumbling but not ill-
intentioned.” The lead MCU investigator testified at the three-day hearing on
the defendant’s motion to dismiss and, the trial court, having presided over
that hearing and observed the testimony, was in the best position to assess his
credibility. Based upon our review of the record, we have no reason to
substitute our own credibility determination for that of the trial court. See
Livingston, 153 N.H. at 402.
The defendant also faults the trial court for concluding “that there was
either no or minor misconduct.” We do not share his interpretation of the trial
court’s order. See In the Matter of Sheys & Blackburn, 168 N.H. 35, 39 (2015)
(“The interpretation of a court order is a question of law, which we review de
novo.”). Rather, the trial court described as undisputed the fact “that the State
committed significant discovery violations in this case.”
The defendant next contests the trial court’s determination that a new
trial would sufficiently cure any potential prejudice he suffered as a result of
the State’s delayed disclosures. According to the defendant, the trial court
“discounted prejudice because the defense has the discovery now.” Again, we
do not share his interpretation of the trial court’s order. See id. The court
found that the newly disclosed information was “largely cumulative of timely-
disclosed discovery materials” and that the defendant’s “assertions of actual
prejudice” were “speculative, vague, and lacking in articulation of how he
would have altered his trial strategy in light of the untimely-disclosed
materials.” The defendant’s bare conclusion that his lack of prior access to the
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information “was undeniably prejudicial” fails to persuade us that the trial
court’s findings lack support in the record or are legally erroneous. See Willis,
165 N.H. at 211.
For all of the above reasons, we uphold the trial court’s determination
that the defendant was not entitled to dismissal with prejudice of his pending
indictments under the State Due Process Clause. Because the Federal Due
Process Clause affords him no greater protection than the State Due Process
Clause under these circumstances, see Kyles, 514 U.S. at 433-34; Laurie, 139
N.H. at 330, we necessarily reach the same conclusion under both
constitutions.
Although we affirm the trial court’s decision not to impose the harshest
of penalties — the dismissal of the defendant’s pending charges — we do not
condone the State’s conduct. See State v. Cotell, 143 N.H. 275, 281 (1998). As
the trial court found, and as the record supports, “there is no doubt [the
defendant] was entitled to [the newly discovered] materials.”
At the same time, we decline the defendant’s invitation to “establish, as a
principle governing the remand, that misconduct greater than culpable
negligence occurred.” In his motion for additional factual findings, the
defendant noted that the trial court made “no finding with respect to anyone’s
mental state or level of culpability,” other than to find “no intentional
[mis]conduct.” To the extent that he now urges this court to make the
additional factual findings he requested of the trial court, we decline to do so.
We also decline to determine whether remedies short of dismissal should be
imposed for the State’s discovery violations. We leave that determination to the
trial court in the first instance. In light of our decision, we vacate the trial
court’s denial of the defendant’s motion for additional findings, and remand for
additional proceedings consistent with this opinion.
Affirmed in part; vacated in part;
and remanded.
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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