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State v. Kibby

Supreme Court of New Hampshire

August 15, 2017

THE STATE OF NEW HAMPSHIRE
v.
NATHANIEL KIBBY

          Argued: April 19, 2017

         Belknap

          Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant attorney general, on the brief and orally), for the State.

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          DALIANIS, C.J.

         The defendant, Nathaniel Kibby, appeals an order of the Superior Court (Smukler, J.) unsealing pleadings, hearings and letters related to the status of counsel and unsealing motions for services other than counsel that he filed ex parte during the pendency of his case. We affirm.

         I

         The relevant facts follow. The defendant was indicted on more than 150 charges including kidnapping, criminal threatening, witness tampering, second degree assault, criminal use of an electronic defense weapon, felonious use of a firearm, indecent exposure, falsifying physical evidence, sale of a controlled drug, aggravated felonious sexual assault, and felonious sexual assault.

         According to the State, at a March 17, 2016 chambers conference, the defense raised an issue of status of counsel and requested that the court hold a closed, ex parte hearing on the matter. The State avers that the trial court informed the parties that it had received two letters from the defendant relevant to the status of counsel issue in the previous two days, that it had not sent the letters to the State, and that the letters were sealed in the court's file. However, according to the State, the court stated that it would entertain a motion to unseal the letters and the record of the ex parte hearing. On March 29, the defendant sent a third letter to the trial court.

         On April 6, the State moved to unseal the letters and the record of the ex parte hearing. The defendant objected. The State avers that on April 12, the trial court held a closed, ex parte hearing and, thereafter, it notified the State that, on April 15, it had issued an ex parte sealed order on the status of counsel. On April 19, the State supplemented its earlier motion to unseal, requesting that the trial court "also unseal its April 15, 2016 Order on status of counsel and any underlying pleadings, communications or hearing records."

         On May 10, the State requested that the trial court address its motion to unseal. On May 13 and on May 14, the defendant sent additional letters to the court. On May 23, the trial court ordered that "[t]he issue of whether the letters already submitted will be maintained as ex parte communications [would] be considered in the context of the pending argument on the state's motion to unseal, " and that "[t]he defendant is placed on notice that any further communications made directly from him to the court will be immediately disclosed to all parties without further notice or opportunity for hearing."

         On May 26, the defendant pleaded guilty to seven indictments. Following a plea colloquy, the trial court accepted the pleas and imposed sentence in accordance with the negotiated disposition. The State entered nolle prosequis on the remaining indictments.

         On May 31, the trial court ordered:

1. Effective June 14, 2016, the record, all pleadings filed and all orders issued involving the defendant's correspondence with the court, including the correspondence itself, shall be UNSEALED, unless the court, upon motion, issues a contrary order before the effective date. Effective June 14, 2016, the record, all pleadings filed, the defendant's correspondence with the court, and all orders issued involving defense counsel's motion to withdraw shall be UNSEALED, unless the court, upon motion, issues a contrary order before the effective date. The unsealing ...

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