Argued October 15, 2014.
Joseph A. Foster, attorney general ( Stacey L. Pawlik, assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
This is an interlocutory appeal by the defendant, Shawn Carter, from a decision of the Superior Court ( O'Neill, J.) denying his motion for pre-indictment discovery pursuant to RSA 604:1-a (2001), on the ground that the statute violates the separation of powers provision of Part I, Article 37 of the New Hampshire Constitution because it conflicts with Superior Court Rule 98. We reverse and remand.
The pertinent facts are not in dispute. On July 10, 2013, the State filed four complaints against the defendant in the circuit court. Two complaints charged him with alternative counts of knowing or reckless second degree murder of Timothy Carter; and two complaints charged him with alternative counts of knowing or reckless
second degree murder of Priscilla Carter. See RSA 630:1-b, I (2007). The defendant appeared before the circuit court on the same date, and was held without bail. On August 6, the [167 N.H. 164] circuit court found probable cause to support the complaints, and the charges were bound over to the superior court.
On August 9, the defendant filed a motion for pre-indictment discovery in superior court, relying on RSA 604:1-a in support of the motion. This statute provides:
Discovery in Criminal Matters. After an accused person has been bound over to the superior court and prior to indictment, he shall have the same rights to discovery and deposition as he has subsequent to indictment, provided that all judicial proceedings with respect thereto shall be within the jurisdiction of the superior court, and notice of petition therefor and hearing thereon ...