Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Lewandowski

Supreme Court of New Hampshire

August 23, 2016

State of New Hampshire
v.
Michael Lewandowski

          Argued: June 22, 2016

         PETITION OF STATE OF NEW HAMPSHIRE

         Hillsborough-northern judicial district

          Joseph A. Foster, attorney general (Sean R. Locke, attorney, on the brief and orally), for the State.

          Green & Utter, P.A., of Manchester (Cathy J. Green on the brief and orally), for the defendant.

          Lothstein Guerriero, PLLC, of Keene (Richard Guerriero on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.

          HICKS, J.

         The State petitioned for a writ of certiorari, see Sup. Ct. R. 11, seeking review of an order of the Superior Court (Brown, J.) requiring the State to "obtain, preserve and produce . . . for [the court's] in camera inspection" certain of the complainant's cell phone communications, social media communications, and cell phone service provider records that the defendant, Michael Lewandowski, believes could be exculpatory. We grant the petition, vacate the court's order, and remand.

         The following facts are supported by the record or are agreed upon by the parties. The defendant is charged with aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2015). Prior to trial, he filed a motion asking the trial court to order, among other things, "the State to take whatever steps are necessary to preserve all cell phone activity of [the complainant] including voice mails, text messaging, e-mails, social media postings and photographs by making a mirror image of all cell phones utilized by [the complainant]." The defendant also requested that the court order the State to "mak[e] immediate preservation and production requests of all service providers including, but not limited to cell phone[] carriers, Facebook and any other social media or communication provider with which [the complainant] had an account." The State objected, arguing, among other things, that "[d]efendants generally do not have the legal authority to direct an investigation or demand that the State investigate, obtain, and preserve specific evidence." The defendant stated in his motion that he was "not seeking discovery . . . but rather the preservation of" the records and communications. It appears to be undisputed that, at the time the defendant filed his motion, the State did not possess any of the records or communications that the defendant sought.

         At the hearing on the motion, the court told the defendant to narrow his request to two relevant time periods in November 2014 and May 2015 and file a proposed order. The defendant did so, and the court granted the proposed order, which compelled the State to "obtain, preserve and produce . . . for [the court's] in camera inspection" the complainant's "cell phone text messages, call log activity (calls sent and received), e-mails sent or received and photographs taken, sent or received, " as well as "[t]he provider records of [the complainant's] cell phone activity" and the complainant's "e-mails (sent and received), Facebook, Instagram, Twitter or other social media postings" from the November 2014 and May 2015 time periods.

         The court denied the State's motion to reconsider. The State filed a petition for a writ of certiorari. See Sup. Ct. R. 11.

         Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the court's discretion. Petition of State of N.H. (State v. MacDonald), 162 N.H. 64, 66 (2011); see Sup. Ct. R. 11. Certiorari review is limited to whether the trial court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. Petition of State of N.H. (State v. MacDonald), 162 N.H. at 66.

         The State argues that the trial court did not have the authority to grant the defendant's proposed order "because defendant[s] in criminal proceedings have no general right to discovery and the State had discharged its obligations under Brady." See Brady v. Maryland, 373 U.S. 83 (1963). It further asserts that the court cannot "conscript the State to seize evidence it had never possessed for the defendant's benefit." The State explains that the trial court "effectively grant[ed] the defendant a search warrant and order[ed] the State to execute that warrant, " which, according to the State, "destroyed [the complainant's] right to be free from unreasonable searches and seizures." (Bolding omitted.) See U.S. CONST. amends. IV, XIV; N.H. CONST. pt. I, art. 19.

         This issue concerning the scope of the trial court's authority is one of first impression; thus, we rely upon cases from other jurisdictions to aid in our analysis. In State v Haynie, 242 S.E.2d 713 (Ga 1978), the Georgia Supreme Court held that the trial court could not, at the defendant's request, issue an order, "requiring the removal of [a] bullet from the victim and the production of the gun, and that ballistic tests be made upon them" Haynie, 242 S.E.2d at 713-14 In the concurring opinion, it was noted that the defendant "may not implement a search such as the official search of an arrestee" by the State; "he needs a vehicle for discovery" Id. at 716 (Hall, J, concurring specially). It was further noted that the defendant could not acquire the bullet "from the victim for the simple reason that there [were] no procedures extant which would permit him to do so." Id.

         Subsequently, in Young v. State, 245 S.E.2d 866 (Ga.Ct.App. 1978), the Court of Appeals of Georgia, citing Haynie, affirmed the trial court's rejection of the defendant's "notice to produce seeking to obtain from the state certain evidence . . . in the possession of . . . third parties." Young, 245 S.E.2d at 867. The court reasoned that "a defendant in a criminal case cannot make the office of the solicitor or district attorney its agent in ferreting out evidence which it does not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.