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                    THE SUPREME COURT OF NEW HAMPSHIRE

                                ___________________________

2nd Circuit Court - Lebanon District Division
No. 2014-595


                            THE STATE OF NEW HAMPSHIRE

                                                v.

                                        STEVEN LAUX

                                Argued: March 31, 2015
                              Opinion Issued: May 22, 2015

       Joseph A. Foster, attorney general (Nicholas Cort, 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.

      HICKS, J. The State appeals an order of the Circuit Court (Tenney, J.)
dismissing the habitual offender prosecution of the defendant, Steven Laux,
based upon the State’s failure to provide discovery prior to the preliminary, or
probable cause, hearing in accordance with the court’s standing discovery
order. We reverse and remand.


 In the applicable statutes, this proceeding is referred to as a “preliminary examination for
probable cause.” RSA 596-A:2 (2001). It is referred to in our cases as both a “preliminary
hearing” and a “probable cause hearing,” see, e.g., Ojo v. Lorenzo, 164 N.H. 717, 720 (2013), and
we use both terms interchangeably herein.
      The following facts are supported by the record or are undisputed by the
parties. The defendant was arrested for driving while certified as a habitual
offender, a felony-level offense. See RSA 262:23, I (2014). A probable cause
hearing was scheduled for April 21, 2014. Prior to the hearing, the defendant
sought police reports from the State in accordance with the court’s standing
discovery order. That order provides, in relevant part: “IV. Probable Cause
Hearing[:] Upon receipt of an Appearance by counsel for the defense or upon
waiver of counsel, the State shall provide the defendant’s counsel a copy of any
prepared police reports.” When the State indicated it would not comply with
the order, the court postponed the probable cause hearing and allowed the
parties “to brief the issue of whether or not discovery could be ordered by the
Circuit Court for a Probable Cause Hearing.” The court concluded that it had
inherent authority to order discovery and granted the defendant’s motion to
dismiss the case for the State’s noncompliance.

      On appeal, the State argues that the circuit court lacks authority to
order discovery of police reports prior to a probable cause hearing. It contends
that our cases have long held “that police reports are not discoverable except
as provided by statute or court rule.” It then argues that neither the statute
providing for criminal pre-trial discovery, see RSA 604:1-a (2001), nor the rules
governing discovery in the superior court and circuit court-district divisions,
see Super. Ct. Crim. R. 98, Dist. Div. R. 2.10, provide for discovery of police
reports prior to the probable cause hearing.

       The defendant contends that neither “RSA 604:1-a[, which] governs only
discovery in the superior court,” nor “[District Division] Rule 2.10[, which]
governs only cases to be tried in that court,” applies to this case. He argues
that, in fact, “[n]o statute or court rule answers the question raised by this
case.” Thus, the defendant’s argument for affirmance is not based upon an
asserted right to discovery granted by statute or rule, but rather upon the
converse proposition that no statute or rule prohibits the circuit court from
ordering the disclosure of police reports prior to a probable cause hearing. The
defendant asserts that “in the absence of any statutory or rule-based
prohibition, a circuit court judge has the inherent authority to order the
disclosure of already-prepared police reports prior to a probable cause
hearing.”

      Because the parties agree that no statute or court rule specifically
authorizes discovery prior to the probable cause hearing, our inquiry is limited
to whether the circuit court possesses the inherent authority to order that
discovery. Cf. State v. Carter, 167 N.H. 161, 168 (2014) (observing that
nothing in former Superior Court “Rule 98 prohibits the superior court from
ordering discovery prior to” the time discovery is triggered under that rule).
That inquiry is a question of law that we review de novo. See, e.g., State v.
Dowdy, 792 N.W.2d 230, 236 (Wis. Ct. App. 2010) (noting that question of trial
court’s inherent authority is a question of law reviewed de novo), aff’d, 808


                                        2
N.W.2d 691 (Wis. 2012); cf. In the Matter of O’Neil & O’Neil, 159 N.H. 615, 622
(2010) (treating issue of whether family division had inherent power to issue
restraining order to secure safety of its facilities and staff as a question of the
court’s jurisdiction subject to de novo review).

       The circuit court is a court of limited jurisdiction. See RSA 490-F:3
(Supp. 2014) (conferring upon circuit court the jurisdiction, powers and duties
of the former probate and district courts and the former family division). As
such, it is “not vested with as broad inherent powers as courts of superior and
general jurisdiction.” State v. Flynn, 110 N.H. 451, 453 (1970) (discussing
former district courts). Nevertheless, “[t]he fact that . . . a court’s jurisdiction is
limited by statute[] does not necessarily negate a court’s inherent authority.”
In the Matter of Stapleton & Stapleton, 159 N.H. 694, 697 (2010).

      Our cases have recognized certain inherent powers of the former district
courts, including the power to order competency evaluations, State v. Gagne,
129 N.H. 93, 97 (1986), and impose sanctions, Emerson v. Town of Stratford,
139 N.H. 629, 631 (1995). Although Gagne centered on the court’s “inherent
authority to protect a defendant’s constitutional rights,” Gagne, 129 N.H. at 97,
“there is no general constitutional right to discovery in a criminal case,” State
v. Heath, 129 N.H. 102, 109 (1986) (quotation omitted), nor has the defendant
claimed any constitutional right to the discovery at issue.

       The inherent power of a court to order competency evaluations “stems
from a court’s necessary power to control the proceedings before it.” Emerson,
139 N.H. at 631. We have also recognized, more generally, that “[c]ourts of
justice have power, as a necessary incident to their general jurisdiction, to
make such orders in relation to the cases pending before them, as are
necessary to the progress of the cases and the dispatch of business.”
Garabedian v. William Company, 106 N.H. 156, 157 (1965) (quotation omitted).
Thus, with respect to the trial of a criminal offense within the jurisdiction of the
former district courts, we have recognized the district court’s inherent
authority, as a trial court, “to rule in its discretion upon matters relating to
pre-trial discovery.” State v. Sorrell, 120 N.H. 472, 475 (1980); see also State v.
Healey, 106 N.H. 308, 309 (1965) (noting that a trial court – there the superior
court – “has the inherent power in its discretion to compel discovery in a
criminal case if the interests of justice so require”).

       Sorrell does not answer whether the circuit court had inherent authority
to order discovery in this case, however, because the circuit court did not try
the offense, and indeed did not have jurisdiction to do so. Rather the
proceeding at issue was a preliminary hearing. Accordingly, we examine the
nature of that proceeding to determine whether the discovery ordered was
“necessary to the progress of the case[] and the dispatch of business.”
Garabedian, 106 N.H. at 157 (quotation omitted).



                                          3
         “The purpose of the preliminary hearing is to determine whether
probable cause exists to believe that an offense has been committed, which is
beyond the jurisdiction of the court to try, and that the accused committed it
. . . .” State v. St. Arnault, 114 N.H. 216, 217-18 (1974) (quotation omitted);
see RSA 596-A:7 (2001). It is not a trial to determine guilt or innocence, but is
rather “a judicial inquiry to determine whether probable cause exists for the
accused to be bound over to a grand jury.” State v. Chase, 109 N.H. 296, 297
(1969). It is also not provided to “afford[] the accused an opportunity for
discovery.” Smith v. O’Brien, 109 N.H. 317, 318 (1969).

      Nonetheless, a probable cause hearing is intended to be “something more
than a routine proceeding leading inevitably to indictment and trial.” State v.
Williams, 115 N.H. 437, 440 (1975). In Williams, we altered our prior
assessment of the adversarial nature of the proceeding, see St. Arnault, 114
N.H. at 218 (stating that “a probable cause hearing is not an adversary
proceeding”), and concluded that statutory protections for the accused at the
probable cause hearing “envision an adversary process during which charges
without sufficient supporting evidence will be eliminated.” Williams, 115 N.H.
at 440; see also Gagne, 129 N.H. at 100 (“[a]cknowledging the true adversarial
nature of the probable cause hearing in New Hampshire”). Consonant with
that adversity, “[t]he accused may cross-examine the witnesses against him
and may introduce evidence in his own behalf.” RSA 596-A:4 (2001). Although
the accused has the right to refuse to testify, he may voluntarily choose to
waive that right “in an attempt to convince the court that probable cause does
not exist.” Williams, 115 N.H. at 440; see also RSA 596-A:3 (2001). “[H]e is
likewise entitled to call witnesses on his own behalf to testify to matters which
are admissible, and which serve to show lack of probable cause.” State ex rel
McLetchie v. Laconia District Court, 106 N.H. 48, 51 (1964).

       Thus, although the intended purpose of the preliminary hearing does not
include providing “the accused an opportunity for discovery,” Smith, 109 N.H.
at 318, it does encompass providing him an opportunity to contest the
existence of probable cause. See Williams, 115 N.H. at 440. It is conceivable
that, in some cases, the contents of a prepared police report would be so
probative of the probable cause determination that the interests of justice
would require the report’s disclosure to the accused prior to the preliminary
hearing. Cf. Healey, 106 N.H. at 309 (noting trial court’s inherent power to
compel discovery in criminal case if interests of justice so require). Of course,
not every case would present that scenario. Accordingly, we hold that the
circuit court exceeded its authority in requiring, through promulgation of
section IV of its standing discovery order, the disclosure of prepared police
reports in all cases.

      We also conclude, however, that the circuit court does possess the
inherent authority to order such disclosure in particular cases. Our decisions
issued before criminal pre-trial discovery rights (other than the right to depose


                                        4
witnesses, see RSA 517:13 (2001)) were conferred by statute or rule, see RSA
604:1-a, Super. Ct. Crim. R. 98-102, provide guidance in determining in which
cases to order disclosure. In State ex rel Regan v. Superior Court, 102 N.H.
224 (1959), we noted that “[i]n criminal cases, no ‘right’ to inspection of objects
or writings in advance of trial existed at common law”; nor, at that time, had
any such right been conferred by statute. State ex rel Regan, 102 N.H. at 226-
27. Nevertheless, we allowed for the court’s inherent power to order pre-trial
discovery:

            We do not hold the Court to be without power, in the
      exercise of reasonable discretion and to prevent manifest injustice,
      to require the production of specific objects or writings for
      inspection under appropriate safeguards and at a time
      appropriately close to the time of trial, if it should appear that
      otherwise essential rights of the respondents may be endangered
      or the trial unnecessarily prolonged.

Id. at 229. We expanded upon that conclusion in Healey, finding it then “well
settled in this jurisdiction that the Trial Court has the inherent power in its
discretion to compel discovery in a criminal case if the interests of justice so
require.” Healey, 106 N.H. at 309. We instructed that “[i]n exercising its
discretion, the Trial Court is to consider, under the circumstances of the case,
the defendant’s need of the discovery sought to properly defend himself and the
adverse effect which such discovery might have on the proper prosecution of
the offense.” Id.

      Applying those principles here, while bearing in mind that “the
preliminary hearing is not a judicial trial of the issue of guilt or innocence of
the accused,” Chase, 109 N.H. at 297, we hold that the circuit court has the
inherent authority, within its sound discretion, to order discovery prior to the
preliminary hearing when the accused has made a particularized showing that
the discovery is needed to show a lack of probable cause and the court
concludes that the interests of justice require disclosure. In making that
determination, the court should also consider any resulting adverse effect of
such discovery on the proper prosecution of the crime. See Healey, 106 N.H. at
309.

      The State nevertheless contends that nothing in our cases dealing with
preliminary hearings or the former district courts’ inherent authority “would
override this Court’s often-repeated holdings that police reports,” in particular,
“are not discoverable except as provided by statute or court rule.” Admittedly,
we have held “that notes personally compiled by law enforcement authorities in
the course of their investigation . . . constitute the work product of the State
and are privileged from pretrial discovery.” State v. Superior Court, 106 N.H.
228, 230-31 (1965). The subsequent adoption of Superior Court Criminal Rule
98(A) superseded Superior Court’s holding to the extent that it required the


                                         5
State to provide the defendant with copies of all police reports within ten
calendar days after his entry of a not guilty plea; the Rule also allows the State
to assert work product protection for protected material therein through
redactions and/or in camera review by the trial court. Super. Ct. Crim. R.
98(A)(1)(ii), (E), (J). Rule 98, however, by its terms, does not apply to this case
at the preliminary hearing stage.

       We have not, since Superior Court, addressed whether police reports
constitute work product of the prosecutor, protected from discovery. We agree
with the North Dakota Supreme Court, however, that “[w]hile some police
reports might qualify as prosecution work products, we are not prepared to
hold that all arresting officer reports automatically fall into that category.”
State v. Shipton, 339 N.W.2d 87, 89 (N.D. 1983) (further noting that
“[c]lassifying routine, essentially factual police reports as nondiscoverable
under the prosecution work product exemption thwarts the underlying purpose
of the pretrial criminal discovery rules”).

      “At its core, the work-product doctrine shelters the mental processes of
the attorney, providing a privileged area within which he can analyze and
prepare his client’s case.” State v. Zwicker, 151 N.H. 179, 191 (2004)
(quotation omitted).

      We have defined work product as the result of an attorney’s
      activities when those activities have been conducted with a view to
      pending or anticipated litigation. The lawyer’s work must have
      formed an essential step in the procurement of the data which the
      opponent seeks, and he must have performed duties normally
      attended to by attorneys.

Id. (quotation omitted). To determine whether information falls under the
protection of the work product doctrine, the court must “focus upon the
substantive information that the material contains, rather than the form the
information takes or how it was acquired.” Id.

      We now hold that prepared police reports are not categorically protected
under the work product doctrine and that, even under circumstances not
covered by Superior Court Criminal Rule 98(A), they are subject to compelled
discovery under the court’s inherent authority as discussed above. The State
may nevertheless assert work product protection and request redaction of any
protected material after an in camera review by the court. Cf. State v.
Chagnon, 139 N.H. 671, 676 (1995).

      Having held that the circuit court exceeded its authority in promulgating
section IV of its standing discovery order, we necessarily conclude that the
court’s dismissal of the case for the State’s failure to comply with that order
constituted an unsustainable exercise of discretion. See State v. Reader, 160


                                         6
N.H. 664, 667 (2010) (reviewing discovery sanction for unsustainable exercise
of discretion). Accordingly, we reverse and remand for further proceedings. On
remand, the defendant is free to seek a discovery order in his particular case in
accordance with the guidelines we have set forth herein.

                                                 Reversed and remanded.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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