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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Hillsborough-southern judicial district
No. 2016-0535


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                               ANTHONY BARNABY


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                  DAVID CAPLIN

                            Argued: June 21, 2017
                        Opinion Issued: October 4, 2017

      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

1 We recognize that the crimes for which the defendants have been indicted occurred in 1988;
however, because RSA 630:1-a, I(a) and 630:1-b, I(b) have not since been amended, for ease of
reference, we cite the 2016 bound volume of these statutes rather than the 1986 bound volume.


                                              2
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


                                         3
not met its burden of demonstrating a necessity for the depositions. As a
result, the State contends that we should find that the trial court erred and
remand the case for the court to review the State’s request using the proper
standards.

       As a threshold matter, the parties dispute the applicable standard of
review. According to the State, we should review this matter de novo because it
maintains that the “question [on appeal] turns on the trial court’s
interpretation of RSA 517:13, II(a).” By contrast, the defendants contend that
we should review this matter under our unsustainable exercise of discretion
standard. We agree with the State. The crux of the issue before us is whether
the trial court properly interpreted RSA 517:13, II(a). “The interpretation of a
statute is a question of law, which we review de novo.” State v. Sanborn, 168
N.H. 400, 408 (2015) (quotation omitted).

      “In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of a statute considered as a
whole.” Id. (quotation omitted). “We first examine the language of the statute
and ascribe the plain and ordinary meanings to the words used.” Id. (quotation
omitted). If the statute’s language is clear and unambiguous, we do not look
beyond it to discern legislative intent. See id.

      RSA 517:13 governs depositions in criminal cases. State v. Haines, 142
N.H. 692, 698 (1998). RSA 517:13, II provides that the trial court

      in its discretion may permit either party to take the deposition of
      any witness, except the defendant, in any criminal case, upon a
      finding by a preponderance of the evidence that such deposition is
      necessary:

          (a) To preserve the testimony of any witness who is unlikely to
      be available for trial due to illness, absence from the jurisdiction or
      reluctance to cooperate; or

          (b) To ensure a fair trial, avoid surprise or for other good cause
      shown. In determining the necessity, the court shall consider the
      complexity of the issues involved, other opportunities or
      information available to discover the information sought by the
      deposition, and any other special or exceptional circumstances
      which may exist.

Thus, the purpose of seeking a deposition under RSA 517:13, II(a) is to
preserve evidence for possible subsequent use at trial. In order to obtain a
deposition under subsection (a), the party seeking the deposition must
demonstrate by a preponderance of the evidence that the deposition is
“necessary . . . [t]o preserve the testimony of any witness who is unlikely to be


                                         4
available for trial due to illness, absence from the jurisdiction or reluctance to
cooperate.” RSA 517:13, II(a) (emphasis added); see State v. Howe, 145 N.H.
41, 44 (2000) (“Under RSA 517:13, the burden is on the defendant requesting a
deposition to establish necessity.”).

      It is well established that when determining the necessity for a deposition
under RSA 517:13, II(b) the trial court shall consider the statutory factors
enumerated in that subsection. See, e.g., State v. Oakes, 161 N.H. 270, 277
(2010); State v. Sargent, 148 N.H. 571, 575 (2002). However, we have not had
occasion to specifically address whether those factors also apply to the trial
court’s necessity determination under RSA 517:13, II(a). Cf. State v.
Schonarth, 152 N.H. 560, 564 (2005) (assuming, without deciding, that RSA
517:13, II(a) and (b) must be read separately for purposes of addressing
defendant’s argument); State v. Fernandez, 152 N.H. 233, 236 (2005) (citing
the statutory factors in RSA 517:13, II(b) without addressing whether they
apply to RSA 517:13, II(a) and (b)); Howe, 145 N.H. at 44 (generally addressing
necessity under RSA 517:13). Given that the necessity requirement in RSA
517:13, II applies to a request for a deposition under both RSA 517:13, II(a)
and (b), it logically follows that the statutory factors for determining necessity
are applicable to both subsections. This interpretation is consistent with New
Hampshire Rule of Criminal Procedure 13, which provides, in relevant part,
that:

            The court in its discretion may permit either party to take
      the deposition of any witness, except the defendant, in any
      criminal case upon a finding by a preponderance of the evidence
      that such deposition is necessary:

                  (1) To preserve the testimony of any witness who is
            unlikely to be available for trial due to illness, absence from
            the jurisdiction, or reluctance to cooperate; or

                  (2) To ensure a fair trial, avoid surprise, or for other
            good cause shown.

            In determining the necessity, the court shall consider the
      complexity of the issues involved, other opportunities or
      information available to discover the information sought by the
      deposition, and any other special or exceptional circumstances
      that may exist.

N.H. R. Crim. P. 13(b). Therefore, when determining the necessity for a
deposition under RSA 517:13, II(a) or (b), “the court shall consider the
complexity of the issues involved, other opportunities or information available
to discover the information sought by the deposition, and any other special or
exceptional circumstances which may exist.” RSA 517:13, II(b).


                                        5
       The State argues that to obtain a deposition under RSA 517:13, II(a), the
plain language of the statute requires that “the moving party need prove only
one of the three enumerated conditions — ‘illness,’ ‘absence from the
jurisdiction,’ ‘reluctance to cooperate’ — to satisfy its burden.” We agree. The
use of the disjunctive “or” in RSA 517:13, II(a) establishes three alternative
conditions that allow for a deposition to be taken to preserve the testimony of a
witness who is unlikely to be available for trial — “illness, absence from the
jurisdiction or reluctance to cooperate.” RSA 517:13, II(a) (emphasis added).
Thus, a party seeking a deposition under RSA 517:13, II(a) need prove only one
of the three enumerated conditions. See Appeal of Niadni, Inc., 166 N.H. 256,
261 (2014) (explaining that use of disjunctive in statute meant only one of two
alternatives need be shown); see also Unit Owners Assoc. of Summit Vista v.
Miller, 141 N.H. 39, 45 (1996) (concluding that use of disjunctive “or” in New
Hampshire Consumer Protection Act manifests clear intent to award damages
for either knowing or willful acts).

       We further agree with the State that the party seeking a deposition under
RSA 517:13, II(a) need not prove that the witness is, in fact, unavailable for
trial. Unlike New Hampshire Rule of Evidence 804, which allows for the
admission of certain hearsay statements if the declarant is unavailable as a
witness for trial, see N.H. R. Ev. 804, the language of RSA 517:13, II(a) makes
clear that, to obtain a deposition, the witness need only be “unlikely to be
available for trial,” RSA 517:13, II(a) (emphasis added). The legislature’s use of
the word “unlikely” demonstrates that the showing of unavailability need not be
conclusive in order to obtain a deposition under subsection (a).

        The State further contends that, for purposes of applying RSA 517:13,
II(a), a witness “who lives in a foreign country, outside the jurisdiction of [the]
New Hampshire courts, and who cannot be compelled to appear in court and
testify because the witness is not subject to the jurisdiction of [the] New
Hampshire courts is ‘unlikely to be available.’” (Citation omitted.) We disagree
that, by itself, the fact that a witness cannot be compelled to appear in court
because the witness is not subject to the jurisdiction of the New Hampshire
courts is sufficient to demonstrate that the witness is “unlikely to be available
for trial.” RSA 517:13, II(a). Had the legislature intended such a result it could
have explicitly provided for a deposition to be granted upon a mere showing
that the witness resides in a foreign country and is not subject to the
jurisdiction of the New Hampshire courts.

       Instead, the legislature required the moving party to show that the
deposition is necessary to preserve the testimony of a witness “who is unlikely
to be available for trial due to illness, absence from the jurisdiction or
reluctance to cooperate.” RSA 517:13, II(a) (emphasis added). By its plain
terms, the statute requires a direct relationship between the witness’s
likelihood of being available for trial and his or her illness, absence from the
jurisdiction or reluctance to cooperate. In other words, it must be because of


                                        6
the witness’s illness, absence from the jurisdiction, or reluctance to cooperate
that the witness is unlikely to be available for trial, not simply that the witness
is ill, absent from the jurisdiction or reluctant to cooperate. See Webster’s
Third New International Dictionary 699 (unabridged ed. 2002) (defining “due
to” as meaning “because of”). Thus, without more, the fact that a witness
resides in a foreign jurisdiction and is not subject to the jurisdiction of the New
Hampshire courts is not enough to prove that the witness is “unlikely to be
available for trial.” RSA 517:13, II(a). However, whether a witness resides in a
foreign country and is not subject to the jurisdiction of the New Hampshire
courts is a factor that can be considered when determining whether a
deposition is necessary to preserve the testimony of a witness who is unlikely
to be available for trial due to one of the enumerated conditions in RSA 517:13,
II(a). See RSA 517:13, II(a), (b).

       Here, the court found that the fact that a witness is not subject to the
jurisdiction of the New Hampshire courts, “standing alone, is insufficient to
demonstrate ‘necessity.’ Rather, 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.” (Citations omitted.) Although we agree with the
trial court that the fact that a witness is not subject to the jurisdiction of the
New Hampshire courts is, by itself, not enough to demonstrate necessity, it
appears that after the court made this ruling, it then discounted that fact
entirely as a factor in its analysis. Because the trial court did not have the
benefit of our interpretation of RSA 517:13, II(a) and it is not clear what weight,
if any, that the trial court placed upon the fact that these witnesses are not
subject to the jurisdiction of the New Hampshire courts, we vacate its decision
and remand for the trial court to reconsider whether the State has met its
burden in light of our interpretation of RSA 517:13, II(a).

     Given our decision to vacate the trial court’s decision denying the State’s
request for depositions and to remand for further proceedings, we need not
address the other arguments raised by the State on appeal.

                                                   Vacated and remanded.

      LYNN and BASSETT, JJ., concurred.




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