Argued: June 22, 2016
OF STATE OF NEW HAMPSHIRE
A. Foster, attorney general (Sean R. Locke, attorney, on the
brief and orally), for the State.
& 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.
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.
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.
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.
court denied the State's motion to reconsider. The State
filed a petition for a writ of certiorari. See Sup. Ct.
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.
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,
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."
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 ...