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State v. Barnaby

Supreme Court of New Hampshire

October 4, 2017

THE STATE OF NEW HAMPSHIRE
v.
ANTHONY BARNABY THE STATE OF NEW HAMPSHIRE
v.
DAVID CAPLIN

          Argued: June 21, 2017

         Hillsborough-southern judicial district

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

          Sisti Law Offices, of Chichester, (Mark Sisti and Wade Harwood on the brief, and Mr. Sisti orally), for Anthony Barnaby.

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

          HICKS, J.

         The defendants, Anthony Barnaby and David Caplin, are charged with two counts each of first degree and second degree murder in the deaths of two women that occurred in 1988. See RSA 626:8 (1986) (amended 2001); 630:1-a, I(a) (2016); 630:1-b, I(b) (2016).[1] The State appeals an order of the Superior Court (Colburn, J.) denying, in part, its motion to depose certain foreign witnesses pursuant to RSA 517:13 (2007). See RSA 606:10 (2001). We vacate and remand.

         The following facts are supported by the record, our prior opinion, see State v. Caplin, 134 N.H. 302 (1991), or are agreed upon by the parties. The State previously brought Barnaby to trial three times for the two murders, alleging that he acted in concert with Caplin in committing the crimes. Caplin, 134 N.H. at 304. Each trial ended in a mistrial based upon a hung jury. Following Barnaby's third trial, the State entered a nolle prosequi on the charges against him. The State also previously charged Caplin with two counts of first degree murder, however, it subsequently entered a nolle prosequi on the charges.

         In 2010, the State reopened its investigation into the murders. As a result of that investigation, a grand jury indicted the defendants on the present charges on August 19, 2015. In April 2016, the State moved, pursuant to RSA 517:13, to take video depositions of eleven Canadian residents for potential use at the defendants' trials. The State maintained that the prospective deponents are material witnesses who cannot be compelled to testify at trial and, therefore, video depositions are necessary "to preserve their testimony and ensure a fair trial." The defendants objected.

         On June 24, 2016, the court held a hearing on the State's motion at which it heard legal argument from the parties. Subsequently, the court issued an order concluding that the fact that the witnesses are not subject to subpoena by the New Hampshire courts, "standing alone, is insufficient to demonstrate 'necessity.'" Instead, citing RSA 517:13, II(a), the court ruled that "the State must prove that it is 'unlikely' that the witness will be 'available for trial due to absence from the jurisdiction or reluctance to cooperate.'" (Ellipsis omitted.) The court then found that the State had met its burden of proving that the depositions of one witness in Caplin's case and one witness in Barnaby's case were necessary, but that it had failed to demonstrate a necessity for the other depositions.

         The State sought reconsideration, arguing that the trial court had applied a higher burden of proof for obtaining depositions than is required under RSA 517:13, II(a). The State also sought to expand the record regarding the witnesses' reluctance to appear for trial and the efforts the State had already made to speak with the witnesses during its investigation. In doing so, the State provided an affidavit from a law enforcement officer which detailed additional information about each witness and their respective levels of cooperation during the investigation. The State further argued that the court "should do a separate analysis pursuant to RSA 517:13, II(b), and find that the State [had] met its burden to establish that the requested depositions are necessary in order to ensure a fair trial, to avoid surprise and to avoid burdensome delays." In addition, the State sought clarification regarding "the efforts [the court] expects the State to make to produce [the] witnesses for trial and for their depositions." The defendants objected to the State's motion, and Caplin sought partial reconsideration as to the court's order granting the deposition of one witness in his case.

         On September 14, 2016, the trial court issued an order ruling that it had not misapplied the burden of proof in RSA 517:13, II(a). The court further "considered the need for depositions based on the State's original submission under RSA 517:13, II(b)" and found that the State had failed to demonstrate the need for any additional depositions beyond those that the court had already authorized under subsection (a). It reiterated its ruling that the fact that the witnesses are not subject to the jurisdiction of the New Hampshire courts, by itself, "is insufficient to demonstrate necessity" and that, to meet its burden, the State had to "set forth specific facts showing that it is unlikely that a witness will appear for trial or that some other compelling circumstance exists before ordering a video trial deposition." (Quotation omitted.)

         The court then reconsidered its decision with respect to each witness pursuant to RSA 517:13, II(a) and (b) in light of the affidavit provided by the State, and ruled that depositions of only two witnesses in connection with Barnaby's case are necessary and that the "State is not entitled to take any depositions in connection with . . . Caplin's case." The court noted that "[t]o the extent the State obtains sufficient evidence in the future, the Court may be willing to reconsider its decision." With regard to the efforts it expected the State to make to ensure that the witnesses appeared at trial, the court explained that it "expects the State to pay for the witnesses' reasonable travel expenses and lost wages, as appropriate, but reserves final ruling on the sufficiency of such efforts in the context in which that issue is raised." This appeal followed.

         On appeal, the State argues that the trial court applied the wrong standard in determining whether the State had met its burden to take depositions under RSA 517:13, II(a). The State contends that the trial court "demanded that [the State] be clairvoyant in asserting whether the witnesses would make themselves available to testify at trial, " and, in essence, required the State to prove that the witnesses would be unavailable for trial. The State, therefore, maintains that the court erroneously concluded that the State had not met its burden of demonstrating a necessity for the depositions. As a result, the ...


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