The defendant, Gordon A. Fuller, Jr., appeals his convictions after a jury trial of three counts of aggravated felonious sexual assault and one count of felonious sexual assault. On appeal, he argues that the trial court erred by: (1) allowing the State to present the testimony of the physician who examined the victim; (2) denying his motion for new counsel; and (3) denying his motion for a new trial. We affirm in part, vacate in part and remand.
The defendant first argues that the trial court erred when it permitted the physician who examined the victim to testify as a fact witness even though the State failed to provide the physician's report pursuant to Superior Court Rule 98. Decisions relating to pretrial discovery matters are generally within the sound discretion of the trial court. State v. Emery, 152 N.H. 783, 789 (2005). Absent an unsustainable exercise of discretion, we will not reverse the trial court's decisions with respect to alleged discovery violations or the admission of evidence.
Id. To show that the trial court's exercise of discretion is unsustainable, the defendant must show that the decision was clearly unreasonable to the prejudice of his case. Id. "In the context of a discovery violation, actual prejudice exists if the defense has been impeded to a significant degree by the nondisclosure." State v. Roldan, 151 N.H. 283, 287 (2004) (quotation omitted).
Under Superior Court Rule 98, the State was required to provide the defense, within thirty days after the entry of the defendant's not guilty plea, the "results or reports of physical or mental examinations, scientific tests or experiments, or any other reports or statements of experts, as well as a summary of each expert's qualifications." Super. Ct. R. 98(A)(2)(i). Additionally, no less than twenty days before jury selection or no less than three days before a pretrial evidentiary hearing, the State was required to give the defendant "a brief summary" of each expert's education and experience, as well as to "state the subject matter on which the expert is expected to testify, state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and provide a copy of any expert report relating to such expert." Super. Ct. R. 98(C)(1).
Superior Court Rule 98(J) provides the trial court with a non-exhaustive list of sanctions that it may impose for discovery rule violations. State v. Belton, 150 N.H. 741, 745 (2004). One sanction is to preclude the party who violated the rules from introducing the undisclosed evidence. Super. Ct. R. 98(J). In determining whether evidence should be excluded, the trial court may consider several factors, including: whether the violating party made a good faith effort to comply or provided a pretrial warning to minimize surprise; the ability of the court to limit the scope of testimony or evidence to minimize surprise; and the availability of lesser sanctions or procedural curative measures. Belton, 154 N.H. at 745.
Here, even if we assume, without deciding, that the State violated Superior Court Rule 98, we cannot find that the defendant has met his burden of proving that the admission of the physician's testimony prejudiced his case. Defense counsel learned at the physician's deposition of her intended testimony regarding the labial abrasion that she observed on the victim. The physician informed the State and defense counsel, at that time, that she had a report that had not been turned over to the State, which she had reviewed before her deposition to refresh her recollection. She then explained to the State and to defense counsel what she intended to testify regarding the labial abrasion. The record further shows that the State, upon learning of the missing report, attempted in good faith to obtain it and produce it to defense counsel before trial. Defense counsel reviewed the missing report before jury selection and interviewed the physician about the report before she testified. Under these circumstances, we cannot find that the trial court's decision to admit the physician's testimony was an unsustainable exercise of discretion.
The defendant next asserts that the trial court erred when it failed to appoint new counsel on his motion for a new trial. A criminal defendant has no State constitutional due process right to counsel on a motion for new trial. State v. Hall, 154 N.H. 180, 184 (2006). Rather, whether to appoint counsel to assist a criminal defendant in moving for a new trial is a matter within the trial court's discretion. Id. at 185. Counsel may be appointed in complicated cases. Id. "Complicating factors include the capability of a defendant to speak for himself, the character of the proceeding, the complexity of the issues, and circumstances which show that the defendant would be treated unfairly if the assistance of counsel were not provided." Id.
The trial court denied the defendant's motion for new counsel on the ground that his direct appeal was still pending. This was not a permissible basis upon which to deny the motion with prejudice. Accordingly, we vacate the trial court's decision and remand for further proceedings consistent with our decision in Hall.
In the same order that denied the motion for new counsel, the trial court denied the motion for new trial without explanation. No hearing was held on the motion. Reading the order as a whole, we conclude that the trial court may have denied the motion for new trial (presumably, with prejudice) for the same erroneous reason it denied the motion for new counsel—the case was then on appeal. In light of that possible error, and because we are remanding for further proceedings on the motion for new counsel, we vacate the order on the motion for new trial as well and remand for such further proceedings, if any, as the trial court may deem necessary.
Affirmed in part; vacated in part; and remanded.
BRODERICK, C.J., and DALIANIS and GALWAY, JJ, ...