THE STATE OF NEW HAMPSHIRE SUPREME COURT

No. 2016-0535

State of New Hampshire

v.

Anthony Barnaby and David Caplin

______________________________________________________

State’s Appeal Pursuant to RSA 606:10 from Judgment of the Hillsborough County (South) Superior Court

______________________________________________________

________________________________

BRIEF FOR DAVID CAPLIN ________________________________

David M. Rothstein Deputy Director New Hampshire Public Defender

10 Ferry Street, Suite 202 Concord, NH 03301 NH Bar # 5991

603-224-1236 (15 minute oral argument)

i

TABLE OF CONTENTS

Page

Table of Authorities ......................................................................................... ii

Question Presented ......................................................................................... 1

Statement of the Case ..................................................................................... 2

Statement of the Facts .................................................................................... 8

Summary of the Argument .............................................................................. 8

Argument

I. THE COURT SUSTAINABLY EXERCISED ITS

DISCRETION WHEN IT GRANTED THE STATE’S MOTION TO DEPOSE TWO FOREIGN WITNESSES, AND DENIED ITS MOTION TO DEPOSE NINE OTHER FOREIGN

WITNESSES. ................................................................................ 9

A. Standard of Review. .......................................................... 10

B. Statutory Construction. .................................................... 12

C. The Court’s Rulings Were Correct. .................................... 14

Conclusion .................................................................................................... 25

Appendix ...................................................................................................... A1

ii

TABLE OF AUTHORITIES

Page

Cases

In re Alex C.,

161 N.H. 231 (2010) ................................................................................. 12

Bovaird v. N.H. Dep’t of Admin. Servs.,

166 N.H. 755 (2014) ................................................................................. 12

City of Portsmouth v. Boyle, 160 N.H. 534 (2010) ................................................................................. 14

Commonwealth v. Hunt, 647 N.E.2d 433 (Mass. App. 1995) ........................................................... 17

Maryland v. Craig,

497 U.S. 836 (1990) ................................................................................. 22

State v. Brown,

159 N.H. 544 (2009) ................................................................................. 12

State v. Chick, 140 N.H. 503 (1998) ................................................................................. 11

State v. Ellsworth, 142 N.H. 710 (1997) ................................................................................. 16

State v. Fandozzi,

159 N.H. 773 (2010) ................................................................................. 10

State v. Hernandez,

159 N.H. 394 (2009) ................................................................................. 22

State v. Kay, 162 N.H. 237 (2011) ................................................................................. 12

State v. Kuchman, 168 N.H. 779 (2016) ................................................................................. 15

State v. Oakes, 161 N.H. 270 (2010) ................................................................................. 10

State v. Rhoades,

139 N.H. 432 (1995) ................................................................................. 11

iii

State v. Winstead, 150 N.H. 244 (2003) ................................................................................. 13

Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540 (1997) ................................................................................. 16

United States v. Bronston, 321 F. Supp. 1269 (S.D.N.Y. 1971) ........................................................... 21

United States v. Carter,

776 F.3d 1309 (11th Cir. 2015) .................................................................. 9

United States v. Chusid, 2000 U.S. Dist. LEXIS 14007 (S.D.N.Y. 2000) ........................................... 19

United States v. Drogoul, 1 F.3d 1546 (1st Cir. 1993)............................................................. 9, 11, 17

United States v. Esquivel, 755 F. Supp. 434 (D. D.C. 1990) .............................................................. 18

United States v. Ismaili,

828 F.2d 153 (3rd Cir. 1987) .............................................................. 11, 20

United States v. Jefferson,

594 F. Supp. 2d 655 (E.D. Va. 2009) .................................................. 13, 17

United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984) ..................................................................... 21

United States v. Oudovenko, 2001 U.S. Dist. LEXIS 2549 (E.D.N.Y. 2001) ............................................. 20

United States v. Ramos,

45 F.3d 1519 (11th Cir. 1995) .................................................................. 18

United States v. Stein,

482 F. Supp. 2d 360 (S.D.N.Y. 2007) ........................................................ 18

United States v. Yates, 438 F.3d 1307 (11th Cir. 2006) .......................................................... 16, 22

iv

Statutes

RSA 516:34 ................................................................................................... 21

RSA 517:13 ............................................................................................. 11, 12

RSA 517:13, II............................................................................................... 11

RSA 613-A:3(3) ............................................................................................. 21

RSA 613-A:8 ................................................................................................. 22

1

QUESTION PRESENTED

1. Whether the court sustainably exercised its discretion when it

granted the State’s motion to depose two foreign witnesses, and denied its

motion to depose nine other foreign witnesses.

Issue preserved by State’s Motion to Depose Foreign Witnesses, SA* 1-23;

Objections to State’s Motion, SA 24-34; State’s Supplemental Motion, SA 35-

40; court’s order on State’s Motion, SBA 3-21; State’s Motion to Reconsider and

Clarify, SA 41-56; Objections to State’s Motion, SA 57-63; and court’s order on

State’s Motion, SBA 23-36.

* Citations to the record are as follows:

“SB” designates the State’s Brief.

“SBA” designates the appendix to the State’s Brief, which includes the court’s written orders.

“SA” designates the separately bound appendix to the State’s Brief, which includes the parties’

pleadings.

“M” designates the transcript of the hearing on the State’s Motion to Depose, held on June 24, 2016;

“DBA” designates the appendix to the Defendant’s Brief.

2

STATEMENT OF THE CASE AND FACTS

Anthony Barnaby (“Barnaby”) and David Caplin (“Caplin”) are Micmac

Indians from the Restigouche Reservation (“the Reservation”) in Quebec. SA 3.

They stand charged by a Hillsborough County (South) grand jury with two

counts of first degree murder and two alternative counts of second degree

murder for the stabbing deaths of Brenda Warner and Charlotte Ranstrom,

which occurred in Nashua in October of 1988. SA 64-71. The State previously

charged both men and tried Barnaby three times. SA 3. Each trial ended in a

hung jury. SA 3. The State entered a nolle prosequi after the third trial. SA 3.

Caplin has never been tried. SA 3. The State entered a nolle prosequi in his

case after this Court upheld a pretrial ruling which excluded allegedly

inculpatory evidence. SA 3; State v. Caplin, 134 N.H. 302 (1991).

The State re-opened its investigation into the murders in 2010. SA 3.

The renewed investigation led the State to re-indict Caplin and Barnaby based

on what the State categorized as newly-discovered evidence, some of which

derived from interviews of eleven Canadian witnesses. SA 3-6. Eight of the

witnesses reside on the Reservation, two live in Ontario, and one lives near

Montreal. SA 3-6.

This appeal concerns the State’s request to take trial depositions of these

witnesses. The defendants argued that the State failed to demonstrate the

requisite necessity to take the depositions, see RSA 517:13, II(a) & (b), and that

the depositions would violate their rights to confrontation, due process,

effective assistance of counsel, and a fair trial. SA 25-27; SA 29-31.

3

The court (Colburn, J.) held a hearing on June 24, 2016. It granted the

State’s motion to take a deposition of Elizabeth Isaac in Caplin’s case and of

Melissa Metallic in Barnaby’s case, and denied the motion with respect to other

witnesses. SBA 3-21. The State filed a motion to reconsider, accompanied by

an affidavit from Nashua Police Sergeant Patrick Hannon, SA 41-56, to which

the defendants objected. SA 58-63. Upon reconsideration, the court denied

the State’s motion to take Elizabeth Isaac’s deposition, granted its motion to

take depositions of Dion Methot and Melissa Metallic in Barnaby’s case, and

denied the motion with respect to the other witnesses. SBA 23-36.

This Statement summarizes the facts underlying the court’s ruling as to

each witness and the parties’ arguments on appeal.

a. Richard Barnaby.

Richard Barnaby is Barnaby’s cousin. SBA 4. He resides on the

Reservation. SBA 4. He provided information to investigators that allegedly

inculpates Caplin. SBA 4. In its brief, the State argued that Richard should be

deposed because he refused to be interviewed and expressed concerns about

an old New Hampshire warrant and the cost associated with traveling to New

Hampshire. SB 4.

The court noted that Richard testified at two of Barnaby’s prior trials.

SBA 15. It found, based on Sergeant Hannon’s affidavit, that Richard is willing

to testify again, and that the State could address Richard’s concerns about the

warrant and cost of travel. SBA 27. The court denied the State’s motion to

depose him. SBA 27.

4

b. Frank Metallic.

Frank Metallic lives in Toronto. SBA 4. In its brief, the State conceded

that Frank met with investigators in 2015, and that he was willing to testify,

but characterized him as hesitant to do so. SB 4-5. The State also argued that

a deposition was justified because Frank had fallen out of touch with

investigators, and was expected to but did not testify at Barnaby’s prior trials.

SB 4-5.

The court found insufficient support for the State’s argument that Frank

failed to honor a request that he testify at a prior trial. SBA 4-5, 31. Moreover,

the court found that Frank said in November 2015 that he would testify at this

trial, a sentiment that he reaffirmed to Assistant Attorney General Ben Agati

after being assured that he was not a suspect. SBA 31. The court

acknowledged the State’s representation that Frank had been difficult to

contact, but found no evidence that he was avoiding investigators or had

reneged on promises to appear. SBA 31. For these reasons, the court denied

the State’s motion to depose him. SBA 31-32.

c. Dion Methot.

Dion Methot lives on the Reservation. SBA 5. The court initially denied

the State’s motion to depose him because his alleged reluctance to testify was

not sufficiently clear. SBA 5, 12. On reconsideration, however, the court

found that Dion’s reluctance to testify because of his familial relationship with

Barnaby rendered his deposition necessary. SBA 28. The court thus granted

the State’s motion to depose Dion in Barnaby’s case. SBA 28. Due to the lack

5

of evidence that he had similar reluctance to testify against Caplin, the court

denied the State’s motion to depose Dion in Caplin’s case. SBA 28.

d. Melissa Metallic.

Melissa Metallic is married to Dion Methot. SBA 5. For the same

reasons that it allowed the deposition of Dion in Barnaby’s case, the court also

allowed the deposition of Melissa Metallic. SBA 5-6, 14, 28-29. Because

Melissa did not express reluctance to testify against Caplin, the court denied

the State’s motion to depose her in Caplin’s case. SBA 29.

e. Stephanie Barnaby.

Stephanie Barnaby lives on the Reservation. SBA 6. She allegedly dated

Caplin in 2005. SBA 6. The State argued that a deposition was necessary

because, although Stephanie said in 2015 that she was willing to testify

against Caplin, she has not responded to investigators’ phone calls. SB 5, 30.

The court was unpersuaded that Stephanie’s alleged failure to return

international phone calls demonstrated her reluctance to cooperate. SBA 30.

“Without any more information, such as the number of phone calls made or the

efforts the State has made to reach out to her, the Court finds that the State

has not met its burden of proof on the issue of necessity.” SBA 30.

f. Carol Ann Metallic.

Carol Ann Metallic lives on the Reservation. SBA 6. In its brief, the

State argued that a deposition is necessary because she is reluctant to travel to

New Hampshire, and she would want to bring a travel companion because she

does not want to have contact with Richard Barnaby. SB 5.

6

The court noted that Carol Ann testified in Barnaby’s first and third

trials. SBA 29. While acknowledging her reluctance to travel, the court found

that the State could alleviate the concern by accommodating her travel request.

SBA 29. The court denied the State’s motion to depose her. SBA 29.

g. Craig Jacques.

Craig Jacques lives on the Reservation. SBA 6. The court denied the

State’s motion to depose him because it found that he is cooperative and

willing to attend the trial. SBA 7, 30. The State did not address the court’s

denial of Craig’s deposition in its brief.

h. Elizabeth Isaac.

Elizabeth Isaac lives near Montreal. SBA 7. She is allegedly Caplin’s

former girlfriend. SBA 7. In its brief, the State conceded that Elizabeth said

she would testify, but argued that a deposition is necessary because she is

difficult to contact and is afraid of Caplin. SB 5-6. The court initially granted

the motion to depose her due to her alleged fear of Caplin. SBA 13-14.

However, Sergeant Hannon’s affidavit stated that Elizabeth would be willing to

come to New Hampshire to testify if someone travelled with her. SA 54. Based

on Elizabeth’s willingness to testify, the court reversed its ruling and denied the

State’s motion to depose her. SBA 30-31.

i. Rodney Isaac.

Rodney Isaac lives on the Reservation. SBA 7. The State argued that

even though Rodney said he would testify at trial, he should be deposed

because he expressed financial concerns. SB 6. The court noted that Rodney

7

testified in Barnaby’s first trial. SBA 7, 27. It found, based on Hannon’s

affidavit, that he is a cooperative witness, but is concerned about a New

Hampshire warrant. SBA 27. The court denied the State’s motion to depose

Rodney, ruling that his concern could be addressed and citing his willingness

to testify. SBA 27.

j. Brenda Goulette.

Brenda Goulette lives in Toronto. SBA 7. The State argued that,

although Goulette is willing to testify against Barnaby, she has expressed

concerns for her safety and the State has been unable to contact her since

August of 2016. SB 6. Given that Goulette never said she will not testify, the

court denied the State’s motion to depose her. SBA 32.

k. Richard Jacques.

Richard Jacques lives on the Reservation. SBA 8. The State argued that

a deposition is appropriate because of an old warrant in New Hampshire and

legal issues in Canada. SB 6. The court found that he is willing to testify, and

that the State could address his concern about the warrant. SBA 11, 29. It

denied the State’s motion to depose him. SBA 29.

8

SUMMARY OF THE ARGUMENT

The trial court sustainably exercised its discretion when it granted

depositions of two foreign witnesses in Barnaby’s case, and denied the State’s

requests to depose nine other witnesses.

This Court reviews the lower court’s decision whether to grant a

deposition for an unsustainable exercise of discretion. Here, the court,

consistent with the statute’s language and relevant case law, determined that

most of the witnesses were willing to testify at trial, and that the State could

address the concerns of witnesses who expressed them. The record amply

supports those conclusions. Under these circumstances, the court’s well-

reasoned decision to deny most of the deposition requests is sustainable.

The court also properly considered the impact on the defense of granting

requests to depose eleven witnesses. Because the cases are severed, if all

requests were granted, the parties would have to conduct twenty-two

examinations several weeks before trial. The fact that a witness will have

undergone two complete examinations will make it less likely that witnesses

will appear to testify at trial. Moreover, the process would compromise the

defense’s strategy, and potentially frustrate the defendants’ reasonable

expectations with respect to their confrontation rights. Based on the law and

the record, the court properly ruled that there were insufficient grounds to

grant the State’s requests.

This Court should affirm the trial court’s ruling.

9

I. THE COURT SUSTAINABLY EXERCISED ITS DISCRETION WHEN IT GRANTED THE STATE’S MOTION TO DEPOSE TWO FOREIGN

WITNESSES, AND DENIED ITS MOTION TO DEPOSE NINE OTHER FOREIGN WITNESSES.

Barnaby and Caplin are charged with murdering two women. They

expect that the witnesses against them will appear at their trials, and be

subject to live cross-examination in front of the juries that will decide their

fates. Barring exceptional circumstances, their expectation that witnesses

shall testify live, rather than via a deposition recorded months before trial, is

reasonable. See, e.g., United States v. Carter, 776 F.3d 1309, 1325 (11th Cir.

2015) (“Depositions are generally disfavored in criminal cases, and foreign

depositions, in particular, are considered suspect and are not favored.”)

(Quotations omitted); United States v. Drogoul, 1 F.3d 1546, 1552 (1st Cir.

1993) (“The primary reasons for the law’s normal antipathy toward depositions

in criminal cases are the factfinder’s usual inability to observe the demeanor of

deposition witnesses, and the threat that poses to the defendant’s Sixth

Amendment confrontation rights.”).

The State’s motion failed to demonstrate that nine of the eleven

witnesses were unlikely to appear to testify at trial. In addition, as the court

recognized, granting so many pre-trial depositions would jeopardize the

defendants’ expectations that adverse witnesses will appear at trial, which

would implicate his rights to confrontation, due process, and the effective

assistance of counsel. The court, applying the proper legal standard,

sustainably ruled that the State was entitled to take two depositions in

10

Barnaby’s case, and none in Caplin’s case. This Court should affirm its

rulings.

Due to their Canadian citizenship and residence, neither party can

compel the witnesses’ presence at trial with a subpoena. SA 7; SA 15-23

(treaty between Canada and the United States). The State initially argued that

this fact was, itself, sufficient to meet its burden to depose them. SA 6-8; M

46. Having lost that argument, the State, in its motion to reconsider, proffered

facts that, it alleged, demonstrated that the witnesses were unlikely to appear.

SA 51-55 (Hannon affidavit).

If all the State must show is that the witnesses cannot be compelled to

attend trial by service of process, the court erred in denying the motions to

depose. The statute requires a more particularized showing. The court

properly found the State’s showing deficient.

A. Standard of Review.

The State argues that the standard of appellate review of the trial court’s

decision is de novo. SB 12. This Court has, however, applied the

unsustainable exercise of discretion standard to the review of trial court orders

denying motions for a deposition. See, e.g., State v. Oakes, 161 N.H. 270, 277

(2010) (“[The Court] will evaluate the trial court’s denial of a motion for

depositions under the unsustainable exercise of discretion standard.”); State v.

Fandozzi, 159 N.H. 773, 778 (2010) (“‘A trial court’s decision to deny a motion

for a deposition . . . is reviewed by this court under the [unsustainable exercise]

of discretion standard. Accordingly, [this Court] will overturn the trial court’s

11

rulings only if the defendant can show that they are clearly untenable or

unreasonable to the prejudice of his case.’”) (Quoting State v. Chick, 140 N.H.

503, 504 (1998)).

Federal courts have applied the same standard in reviewing rulings

denying depositions of a foreign witnesses. See, e.g., Drogoul, 1 F.3d at 1549

(“The sole question . . . is whether the district court abused its discretion in

denying the government’s motion to take the depositions of several foreign

nationals in Italy.”); United States v. Ismaili, 828 F.2d 153, 162 (3rd Cir. 1987)

(holding court did not abuse discretion in denying motions to depose foreign

witnesses). In those cases, the trial court considered facts allegedly justifying a

deposition and applied the governing statute to determine whether a deposition

was warranted. See, e.g., State v. Rhoades, 139 N.H. 432, 434-35 (1995) (trial

court committed no abuse of discretion in applying RSA 517:13, II(b) to facts

and denying motion for deposition). Here, the court engaged in a similar

analysis to conclude that two depositions were warranted in Barnaby’s case,

and nine were not warranted in either case. Its decisions are entitled to this

Court’s deference.

The fact that a statute is involved does not change the standard of

review. The deposition statute states that the decision whether to grant a

deposition is discretionary. RSA 517:13, II (“The court in its discretion may

permit either party to take the deposition of any witness, except the defendant

in a criminal case, upon a finding by a preponderance of the evidence that

such a deposition is necessary. . . .”) (Emphasis added). The unsustainable

12

exercise of discretion standard of review thus applies here as it does to any

discretionary decision made by a lower court. See State v. Kay, 162 N.H. 237,

244 (2011) (unsustainable exercise of discretion standard applies to sanction

imposed on probation violation); State v. Brown, 159 N.H. 544, 555 (2009)

(unsustainable exercise of discretion standard applies to decisions on joinder

and severance).

B. Statutory Construction.

The State invokes the de novo standard of review by arguing that the

appeal raises an issue of statutory construction, and that the statute’s

ambiguous language necessitates resorting to its legislative history as an

interpretative aid. SB 11-14, 18-19. A formal statutory construction is no

more necessary here than it is in other cases involving review of the court’s

decision to grant or deny a deposition.

In any event, the language of the statute is clear. It grants the court

discretion to permit a deposition of a witness who is “unlikely to be available

for trial due to . . . absence from the jurisdiction or reluctance to cooperate.”

RSA 517:13, II(a) (emphasis added). In construing a statute, this Court must

give its words and phrases their commonly understood meanings. Bovaird v.

N.H. Dep’t of Admin. Servs., 166 N.H. 755, 759 (2014) (“Words and phrases in

a statute are construed according to the common and approved usage of the

language unless from the statute it appears that a different meaning was

intended.”). It must not add language to the words of the statute, nor ignore

language. In re Alex C., 161 N.H. 231, 235 (2010).

13

If the witness is likely to be available for trial, regardless of his place of

residence, country of origin, or amenability to service of process, the court acts

within the scope of the discretion afforded it when it denies the deposition. The

legislature could have authorized a deposition merely upon a showing that a

witness is absent from the jurisdiction, or resides in a foreign country. It did

not. The statute instead required the court to consider circumstances bearing

on the likeliness of the witness’s availability for trial. See United States v.

Jefferson, 594 F. Supp. 2d 655, 665-66 (E.D. Va. 2009) (“[C]ourts have

recognized that the witness’s unavailability may be based on a showing that

“the proposed deponent is beyond the subpoena powers of the United States

and has declared his unwillingness to testify at trial. . . . [C]ourts must assess

the unavailability of a potential witness by carefully examining all the

reasonably reliable available information and then make a reasoned judgment

as to a person’s unavailability.”) (Emphasis added) (quotation omitted). The

court did so on the evidence the State presented with respect to each witness.

The State did not argue below that the statute’s language is ambiguous,

nor did it ask the court to review the statute’s legislative history. Accordingly,

neither argument is preserved. See State v. Winstead, 150 N.H. 244, 246

(2003) (“This [C]ourt has consistently held that [it] will not consider issues not

raised on appeal that were not considered in the lower court.”). Regardless,

nothing about the statute’s legislative history, as set forth in the State’s brief,

supports the State’s position that it can take a deposition by showing only that

the witness is absent from the jurisdiction or reluctant to appear for trial. The

14

State stressed that under the statute, each side must “have equal opportunity

to depose witnesses for discovery purposes or to preserve their testimony for

trial.” SB 19. There is no inequity here. Neither side has the right to

substitute a witness’s pre-recorded deposition for trial testimony without

making the “unlikely to be available for trial” showing to the court’s

satisfaction.

C. The Court’s Rulings Were Correct.

This Court’s review thus reduces to a determination of whether the court

sustainably ruled, based on the facts proffered, that the State could depose

some witnesses and not others. The State alleges that the court “relied upon

evidence and offers of proof that supported its desired conclusion, while

completely ignoring the evidence and statutory factors that supported the

State’s position. . . .” SB 11. It also argues that the court’s rulings that were

“arbitrary and capricious.” SB 12 n.3.

The State’s arguments are belied by several features of the court’s ruling.

First, the court’s rulings exhibited no bias against the State. It granted the

State’s requests for depositions of Dion Methot and Melissa Metallic in

Barnaby’s case. SBA 14, 28. The fact that the court granted some depositions

but not others demonstrates that it exercised discretion rather than acted

capriciously or ignored the State’s arguments. See City of Portsmouth v. Boyle,

160 N.H. 534, 537-38 (2010) (noting that court, in its eleven-page order,

granted some requests for costs and denied others, supporting finding that

court properly exercised its discretion).

15

Second, the court demonstrated its capacity to weigh and consider all the

State’s arguments. The court carefully reviewed the State’s motion to

reconsider, and after initially denying the deposition of Methot, SBA 12-13,

reconsidered and reversed its position based on the State’s arguments and the

court’s review of Hannon’s affidavit. SBA 28. This decision further proved that

the court was not trying to reach a “desired conclusion,” and that it did not

“ignor[e] the State’s evidence. . . .”

Third, the State has, by implication, agreed that the some of the court’s

decisions were correct. The court denied the motions to depose Dion Methot

and Melissa Metallic in Caplin’s case. It denied the motion to depose Craig

Jacques in both cases. In its brief, the State has developed no arguments in

support of the proposition that these decisions were erroneous. See State v.

Kuchman, 168 N.H. 779, 795 (2016) (declining to address arguments that were

not sufficiently developed for review). The State’s agreement that some

decisions were correct undermines its assertion that the court acted arbitrarily

and capriciously.

Fourth, the court’s rulings hewed to the statute’s language regarding

appearance at trial. The court proceeded from the premise that if a witness is

not “unlikely to appear for trial,” the State had not made the threshold showing

necessary to secure a deposition. As to Craig Jacques, the State proffered that

he is willing to appear. SA 54. Likewise, the court found no evidence that Dion

Methot and Melissa Metallic were unwilling to testify against Caplin. SBA 28-

29.

16

The court similarly denied motions to other depose witnesses who were

likely to appear. Frank Metallic stated multiple times that he is willing to

testify at trial against Barnaby and Caplin. SA 54-55. He reaffirmed this

intention after being assured by Assistant Attorney General Agati that he was

not a suspect. SA 54. Though the State represented that it had been unable to

contact Frank, SA 3-4, 54-55, this did not make his appearance less likely

because the State provided no detail about its efforts to do so. See State v.

Ellsworth, 142 N.H. 710, 716 (1997) (denying motion to depose based on bare

assertion that the deposition was necessary); Union Leader Corp. v. New

Hampshire Hous. Fin. Auth., 142 N.H. 540, 550 (1997) (court properly denied

relief based on bare assertions that documents should be withheld). It did not

establish that Frank was avoiding the State.

Other information contradicted the State’s argument that the State had

done all it could, without success, to convince Frank to testify at trial. At the

motion hearing, the defense presented a police report in which an officer told

Frank that he could testify by video if it was more convenient for him. M 56;

see DBA 1 (“[Frank] stated he now goes to school full time but that he was not

oppossed (sic) to testifying if necessary. I gave him the option of providing video

taped testimony to attorneys in lieu of his appearance if it helped him with his

academic schedule.”) (Report of Sergeant Frank Bourgeois). The State must

encourage witnesses to appear due to the law’s preference for live testimony at

criminal trials. United States v. Yates, 438 F.3d 1307, 1315 (11th Cir. 2006)

(“The simple truth is that confrontation through a video monitor is not the

17

same as physical face-to-face confrontation.”); Commonwealth v. Hunt, 647

N.E.2d 433, 436 (Mass. App. 1995) (“That a prospective witness is a foreign

national outside the United States does not excuse the government from

making diligent efforts to locate and secure the attendance of the witness.”).

Telling a witness that he does not have to testify at trial if it is not convenient

for him, without a court order authorizing such a statement, conflicts with the

State’s obligation to impress upon witnesses the importance of appearing to

testify.

Stephanie Barnaby, like Frank Metallic and Craig Jacques, said that she

would willingly attend the trial. SBA 30; SA 54. While she had not returned

the State’s recent phone calls, the court noted, “There could be numerous

reasons why she has not returned a phone call. . . . Without more information,

such as the number of phone calls made or the efforts the State has made to

reach her, . . . the State has not met its burden of proof on the issue of

necessity.” SBA 30. That finding is sustainable.

Though the State was critical of the court’s decision to rely on federal

cases, SB 11, the State below cited them in support of its position. SA 7, 10,

46-48. Those cases bolster the court’s conclusions that the State is not

entitled to depose these witnesses. For example, in Drogoul, 1 F.3d at 1553,

Italian witnesses declared to a judicial officer that they would not appear; that

showing was sufficient to demonstrate their unwillingness to testify. Here, the

State made no efforts to get similar letters from Canadian judicial officers. In

United States v. Jefferson, 594 F. Supp. 2d 655, 666 (E.D. Va. 2009), the

18

lawyer for a Nigerian witness told defense counsel that the witness would not

speak to counsel, which established his unwillingness. Neither Frank Metallic

nor Stephanie Barnaby made such a statement here.

In United States v. Stein, 482 F. Supp. 2d 360, 364 (S.D.N.Y. 2007),

though the witnesses were in Norway and could not be compelled to appear via

a subpoena, the court denied their depositions based on their statements that

they were willing to come. The Stein court also noted that “speculation that a

willing witness might change his or her mind before trial does not justify the

expense and burden of deposing the witness where it appears likely that the

deposition ultimately will be unnecessary.” Id. In United States v. Esquivel,

755 F. Supp. 434, 440 (D. D.C. 1990), the court denied a request to depose a

witness where “[t]here [was] no evidence whatsoever that [the foreign witness

was] unwilling or unable to attend trial in the United States.” Finally, in

United States v. Ramos, 45 F.3d 1519, 1523 (11th Cir. 1995), a Colombian

witness refused to re-enter the United States despite an order permitting him

to do so and he was thus deemed unwilling to testify. None of these witnesses

have demonstrated a similar unwillingness to appear.

Fifth, the court hewed to the statute’s language with respect to witnesses

who were reluctant to cooperate. As to Dion Methot and Melissa Metallic, the

court found that they were unlikely to appear at trial due to their relationship

with Barnaby. SBA 28-29. The court further found that no measures could be

taken to make it more likely that they would appear. SBA 28-29.

19

In these respects, Methot and Melissa Metallic stood apart from other

witnesses who expressed reluctance but were nonetheless willing to testify.

Brenda Goulette “expressed concerns for her personal safety,” SA 55, but

unlike Methot or Melissa Metallic, did not say that the concerns would prevent

her from testifying. Elizabeth Isaac said that she was willing to testify if

someone accompanied her. SA 54. That type of accommodation, as explained

further below, can be provided. The State presented no evidence to support

Hannon’s speculation that Elizabeth has “trauma from her relationship,” SA

54, which ended over twenty years ago, SA 5, nor did Elizabeth say that she

had a “fear of testifying.” SA 54. Based on this record, the court sustainably

ruled that, if the State accommodates Elizabeth’s travel request, she is likely to

appear for trial, and thus, should not be deposed.

Hannon stated that Elizabeth Isaac, like other witnesses, had been

“difficult to remain in touch with via phone calls.” SA 54. The State is

prosecuting a decades-old murder case which relies on the testimony of

witnesses who live in a foreign country. The witnesses have limited financial

means. In such a case, the State must make investigative efforts greater than

those that may be necessary in a prosecution where the murder occurred

recently and the witnesses live in New Hampshire. The State’s assertions that

these witnesses do not return phone calls failed to establish that they are

unlikely to appear for trial. See United States v. Chusid, 2000 U.S. Dist. LEXIS

14007 *4 (S.D.N.Y. 2000) (“Conclusory statements of unavailability by counsel

are insufficient. . . . And that is all that is offered here. There certainly is no

20

affidavit of either witness explaining why he will not come to trial here.”)

(Citations omitted).

The court ruled appropriately with respect to the State’s deposition

requests of other witnesses who expressed reluctance to testify due to concerns

about cost of travel, logistics of travel, or old warrants. SBA 29 (Carol Ann

Metallic requested to travel with a companion); SBA 30-31 (Elizabeth Isaac

made the same request); SBA 27 (Rodney Isaac expressed financial concerns);

SBA 27 (Richard Barnaby expressed concerns about cost of travel and an old

warrant); SBA 29 (Richard Jacques expressed the same concerns). In its brief,

the State repeatedly suggested that there was something untoward about the

court’s finding that the State could address these concerns, and thereby make

the witnesses likely to appear. SB 10, 22-26. To the contrary, the State has

an affirmative obligation to address the concerns, including assuring the

witnesses that they will be compensated for the cost of travel and related

expenses, and that other reasonable accommodations will be made. See, e.g.,

Ismaili, 828 F.2d at 160 (finding witnesses were not unavailable because “the

record does not establish that any of the witnesses who were sought to be

deposed by Ismaili . . . had been informed that they were entitled to have

Ismaili bear their travel expenses, witness fees, and a subsistence allowance.”);

id. at 162 (noting that the proponent of the deposition must inform the

witnesses that their expenses will be paid before they will be deemed to be

unwilling to voluntarily appear); United States v. Oudovenko, 2001 U.S. Dist.

LEXIS 2549 *5 (E.D.N.Y. 2001) (stating that proponent of deposition must

21

make “a good faith effort to secure the presence of these witnesses at trial,

such as by offering to pay their travel expenses”) (citing United States v.

Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984) (holding that government

demonstrated good faith effort to secure witness’ attendance by offering to pay

travel expenses, and per diem witness and subsistence fees)).

While there is evidence that the police told at least one witness he did not

have to come to testify, M 56; DBA 1, there is no evidence that the State

assured witnesses that they would receive travel costs and per diem witness

fees and expenses. There is no evidence that, having been informed of the

costs and expenses the State would pay, any witness expressed unwillingness

to testify. Absent that showing, the trial court sustainably found that the State

did not carry its burden and properly denied the motions for depositions. See

United States v. Bronston, 321 F. Supp. 1269, 1273 (S.D.N.Y. 1971) (“[T]he

unwillingness of a witness to come to this country unless his expenses are paid

does not necessarily mean that he is unable to attend or prevented from

attending the trial.”) (Quotation omitted).

A similar analysis applies to the alleged concerns of Richard Barnaby

and Richard Jacques, each of whom apparently have a New Hampshire

warrant. The State has the power to grant immunity to witnesses to secure

their testimony. RSA 516:34. The warrants here are old and appear to stem

from minor matters. SA 53-54 (Richard Barnaby has an old DWI charge).

Moreover, out-of-state witnesses are entitled to protection against criminal

prosecution for acts that occurred before they came here to testify. RSA 613-

22

A:3(3); RSA 613-A:8. If the law protects out-of-state witnesses, and the State

can immunize any witness, the State should be able to assure Richard Barnaby

and Richard Jacques that they can testify in a double murder prosecution

without having to worry about being arrested on old warrants.

Finally, the court’s ruling properly considered constitutional concerns

raised by the defense. In the trial court, the defendants pressed arguments

about the impact this process would have on their confrontation rights –

concerns that the law recognizes as valid and that the court credited. SA 26

(discussing confrontation clause analysis in Maryland v. Craig, 497 U.S. 836

(1990)), SA 30 (citing confrontation provisions of Part I, Article 15 and the Fifth,

Sixth and Fourteenth Amendments) M 71-72 (court notes the “cumulative

effect” on the defendant’s confrontation rights of the presentation of eleven

video depositions at trial); see Yates, 438 F.3d at 1323 (“That a federal rule of

criminal procedure provides for presence at a deposition . . . is irrelevant to

whether the two-way video transmission is necessary to further the important

public policy of providing important, credible evidence at trial. The State’s

interest is not merely in providing evidence, it is in providing reliable evidence.

In this regard, the two procedures are not equivalent, and it is certainly within

the discretion of a trial court to determine that a deposition is not an adequate

replacement for testimony at trial, before the finder-of-fact.”); State v.

Hernandez, 159 N.H. 394, 403 (2009) (“Under our own as well as the United

States Supreme Court’s precedent, the confrontation clause reflects a

preference for face-to-face confrontation at trial. . . .”) (Quotation omitted).

23

Because the cases are not consolidated and the defenses are potentially

antagonistic, the State’s request means that each of the eleven witnesses would

have to be examined twice, once by counsel for Caplin, and once by counsel for

Barnaby. M 39. The process associated with having undergone two complete

direct and cross-examinations in videotaped depositions will render every

witness less likely to appear in New Hampshire to testify for a third and fourth

time at trial. For any previously-deposed witness who does appear for a trial,

the State will have had the advantage of seeing the defense’s cross-examination

and will be well-positioned to adjust its strategy accordingly. Thus, the process

proposed by the State will result in an enormous amount of important

testimony being presented at trial by video, or in the less effective cross-

examinations of witnesses who do appear live.

The court considered ex parte proffers by each defendant on the unique

prejudice occasioned by an order mandating that they cross-examine key

witnesses weeks or months before trial. M 60-61, 76. Caplin’s proffer has

been transferred ex parte and under seal for this Court’s consideration. As the

proffer demonstrates, Caplin is considering several possible defenses, some of

which are potentially inconsistent with others, and some of which depend on

how the facts develop as the trial approaches. It is thus possible that if the

mass order for depositions is granted, Caplin will have conducted cross-

examinations of key witnesses several weeks before trial, only to subsequently

discover that the facts have since shifted, and the videotaped cross-

24

examinations no longer have their validity, but there are no live witnesses to

confront.

The State’s request thus wreaks havoc on the defense’s strategy, could

have dire implications on its ability to mount an effective defense, and would

leave the defense without any viable remedy. Given the above-discussed

deficiencies in the State’s proffers with respect to each witness’s availability

and willingness to testify, this Court should rule that the court sustainably

exercised its discretion in denying the State’s motions for depositions.

A P P E N D I X

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APPENDIX – TABLE OF CONTENTS

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