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State v. Gonzalez

Supreme Court of New Hampshire

October 27, 2017


          Argued: March 9, 2017


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

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

          BASSETT, J.

         The defendant, Carlos Gonzalez, III, appeals his convictions on two counts of aggravated felonious sexual assault. See RSA 632-A:2 (2016). The defendant argues that the Trial Court (Wageling, J.) erred when it vacated the pro hac vice admission of two out-of-state attorneys, thereby depriving him of his right to chosen counsel under Part I, Article 15 of the State Constitution and the Sixth Amendment to the Federal Constitution. Because we conclude that the trial court sustainably exercised its discretion when it found that its interest in the fair, efficient, and orderly administration of justice outweighed the defendant's right to counsel of his choice, we affirm.

         The record reflects the following facts. A grand jury indicted the defendant on fifteen counts of aggravated felonious sexual assault alleged to have occurred on various occasions between 1992 and 1994. The victim, L.J., was the defendant's stepdaughter. L.J. was between ten and twelve years old at the time of the assaults. At that time, the defendant, L.J., her sister, and her mother all resided together.

         More than a year prior to trial, the defendant, through his New Hampshire counsel, Attorney Kurt Olsen, moved for the admission of two out-of-state attorneys for the limited purpose of representing him in only this case. See Super. Ct. Crim. R. 19(a) (repealed eff. Mar. 1, 2016) ("An attorney, who is not a member of the Bar of this State . . . shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice . . . ."). Rule 19 required the out-of-state attorney to file a verified application with the court in which she or he wished to appear, detailing, among other things, the applicant's disciplinary history and prior pro hac vice appearances here and in other jurisdictions. Super. Ct. Crim. R. 19(b). Rule 19(c) provided:

         The court has discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court finds reason to believe that:

(1) such admission may be detrimental to the prompt, fair and efficient administration of justice;
(2) such admission may be detrimental to the legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;
(3) one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or
(4) the applicant has engaged in such frequent appearances as to constitute common practice in this State.

Super. Ct. Crim. R. 19(c). The defendant asked the trial court to allow the pro hac vice admission of Attorneys Alexandria and Walter Jacobs, who are father and daughter, and both of whom were licensed attorneys in Massachusetts at that time. In December 2013, the trial court granted Alexandria's application for pro hac vice admission, subject to the condition that local counsel be present at all hearings. Subsequently, in March 2014, the trial court granted Walter's application.

         At a pre-trial hearing in April 2014, the State raised concerns about the relationship that Walter and Alexandria had with the victim and her family between 1992 and 1994. Specifically, the State represented that Walter was L.J.'s primary care physician during the time of the assaults, and that he was a close friend of the defendant at that time. The State also represented that Alexandria was a close friend of L.J. and her sister during the same time period. Based upon these relationships, the State expressed concern about the propriety of the representation of the defendant by Walter and Alexandria. Due to this concern, and in light of the fact that the defendant was also represented by local counsel, the State notified the court that it intended to file a motion to preclude Walter and Alexandria from cross-examining L.J. and her sister at trial.

         In response to the concerns raised by the State, Walter confirmed that L.J. was his patient during the relevant time period, but disputed that he served as L.J.'s primary care physician. He asserted that his treatment of L.J. was not "related to any issues that are in this case" and that, within the context of the physician-patient relationship, they had no "communication about anything related to this case whatsoever." Alexandria also minimized the nature of her relationship with L.J. and her sister, asserting that it was only an "acquaintanceship due to my father and their stepfather being friends." She represented that it had been over a decade since she had contact with L.J. or her sister, and that she was "never informed of any kind of an allegation." Walter and Alexandria argued that their relationships with ...

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