Argued: April 19, 2017
A. Foster, attorney general (Geoffrey W.R. Ward, assistant
attorney general, on the brief and orally), for the State.
M. Rothstein, deputy director public defender, of Concord, on
the brief and orally, for the defendant.
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.
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.
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.
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."
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."
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.
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 ...