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THE STATE OF NEW HAMPSHIRE

SUPERIOR COURT

STRAFFORD SS. JUNE TERM, 2020

State of New Hampshire

v.

Timothy Verrill

Docket No. 219-2017-CR-00072 STATE’S OBJECTION TO THE DEFENDANT’S MOTION TO DISMISS WITH

PREJUDICE NOW COMES the State of New Hampshire, by and through its attorney, the

Office of the Attorney General (“the State”), and submits this objection to the defendant’s

motion to dismiss with prejudice the case against him. Prosecutors did not “goad” or

dupe the defendant’s trial attorneys into requesting a mistrial, an unfortunate but prudent,

and indeed necessary, step taken given notification of additional undisclosed Discovery.

Although the acknowledged Discovery violations in this case have been serious, they

were neither willful nor malicious, and were the product of unique and unprecedented

negligent oversight rather than systematic dysfunction by either police or prosecutors.

Moreover, the violations have not prejudiced the defendant to the extent that the only

available recourse is dismissal with prejudice. There are many available alternative and

effective remedies and sanctions that the Court can impose short of such an extreme

penalty, and that punishment is unnecessary as an effective deterrent for future instances

of similar negligence – the occurrence of which is extremely unlikely with which to begin

FiledFile Date: 6/8/2020 3:32 PM

Strafford Superior CourtE-Filed Document

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– and will unduly harm the victims in this case. In support of this objection, the State

says as follows:

1. The defendant has been indicted for two counts of first-degree murder,

two counts of second-degree murder, and five counts of falsification of physical

evidence, arising out of the murders of Jenna Pellegrini and Christine Sullivan on or

about January 27, 2017, at 979 Meaderboro Road in Farmington, New Hampshire.

2. The defendant’s trial before Judge Steven M. Houran began with jury

selection on October 1, 2019 [hereinafter, “first trial’]. Towards the end of the State’s

case in the first trial, prosecutors – by way of notification by defense counsel – became

aware that material in the possession of the New Hampshire State Police had not been

provided to the defense in Discovery.

3. As a result of that acknowledged Discovery violation, Judge Houran

conducted an evidentiary hearing. Trooper Stephen McAulay, the investigator who had

not turned over materials in his possession testified at that hearing. So too did Lieutenant

Brian Strong, the lead investigator whose duties included the collection and

documentation of reports and other materials to provide to prosecutors for Discovery.

After that evidentiary hearing, and upon receiving the arguments of the parties at a

hearing for that purpose conducted on October 25, 2019, Judge Houran denied the

defendant’s request for a mistrial with prejudice [hereinafter, “first motion to dismiss”].

The State relies on, and incorporates by reference in this objection, the arguments made

at the October 25 hearing, as well as the procedural history stated and factual findings

made by Judge Houran in his initial Order on the defendant’s motion to dismiss with

prejudice, dated November 6, 2019, nunc pro tunc October 31, 2019 [hereinafter, “Initial

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Order”].1 A transcript of the hearing conducted on October 25 is attached to this

objection as Attachment A, and copy of that Initial Order is attached to this objection as

Attachment B.

ADDITIONAL PROCEDURAL HISTORY

4. In direct response to the Discovery violation that produced the defendant’s

first motion to dismiss, and independent of any judicial directive to do so, the New

Hampshire State Police began an internal audit to ensure that all Discovery materials had

been provided to the defense. That process began at about the time of the hearing on the

first motion to dismiss. As a result of that audit, it was learned that additional materials

in fact had not been provided to prosecutors, and in turn to the defense.

5. Prosecutors were notified of the existence of additional materials during

the presentation of the defense case. Upon learning of additional undisclosed materials,

prosecutors immediately notified defense counsel and sought to provide them with said

materials. The State also sought a hearing with Judge Houran, in order immediately to

notify him of the matter. Prosecutors became aware of additional materials at the end of

the trial day on October 30, 2019, notified defense counsel and began providing them

with material that same afternoon, and sought a hearing with Judge Houran on October

31.

1 As to Judge Houran’s factual findings, Initial Order, at pp. 2-6, the State resubmits another pertinent step taken by prosecutors to ensure that they had been provided with all available Discovery from the New Hampshire State Police. Specifically, in the summer of 2019, in response to a detailed defense letter requesting delineated Discovery materials, a prosecutor again met with Lieutenant Strong in order to review the requests in the defense letter and to gather and provide the requested information and materials. Although the State believes that this layer of additional prosecutorial review was discussed when the State orally responded to the motion to dismiss, to the extent that it was not the State submits it now as part of the factual record.

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6. At that hearing requested by prosecutors that was conducted on October

31, 2019, prosecutors notified Judge Houran and defense counsel that additional

materials had not been provided. The State relies on and incorporates by reference in this

objection the factual record made at that hearing. A transcript of the hearing is attached

to this objection as Attachment C. At that hearing, defense counsel sought a mistrial,

with the understanding that they would likely file a renewed motion to dismiss with

prejudice and/or a motion for Judge Houran to reconsider his ruling on the first motion to

dismiss.2 The State assented to the defense request for mistrial, and also noted that even

absent defense consent there existed manifest necessity in any event for the Court for

declaring a mistrial. See generally State v. Ayer, 150 N.H. 14, 23-25 (2003). Judge

Houran granted the defense request for mistrial, and formally dismissed the jury on

November 1, 2019.3

7. Beginning on the very next day, November 1, prosecutors worked with

multiple investigators from the New Hampshire State Police to review individual

investigator case files and otherwise ensure disclosure of Discovery. That process lasted

about a week, and many specific actions undertaken were outlined by the State in a

2 The parties were made aware at a recent telephonic conference with Judge Houran that he would be retiring before a hearing can be held on the defendant’s present motion. It was made abundantly clear by Judge Houran, and conceded by the State, that the defense could argue for reconsideration regardless of timeliness under the applicable Court rules. The State agrees that the Court also can reconsider Judge Houran’s earlier ruling, under the applicable standards for doing so. 3 The defendant in his motion has provided a summary of the trial that occurred. The State is providing the Court with a full transcript of the trial. A review of what happened during the course of the trial, what evidence was presented, and the arguments and concessions of the parties places in full context the claims of relevance and prejudice made by the parties in their motions. The State is mindful that a review of the entire lengthy trial transcript will take time. But, unfortunately, the judge who presided over that trial and would have first-hand knowledge of what evidence was presented, as well as the tactical and strategies employed by both parties during trial, has retired and is no longer presiding over the matter.

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written submission to Judge Houran on the status of that process, dated November 8,

2019. That submission also included emails to defense counsel detailing the Discovery

materials found and disclosed. The State relies on and incorporates by reference in this

objection that November 8 submission. A copy of that submission is attached to this

objection as Attachment D. The State relies on and incorporates by reference in this

objection the Affidavit provided by Sergeant Justin Rowe of the New Hampshire State

Police that details steps undertaken by State Police investigators during the review

process, as well as the report prepared by Trooper Tara Elsemiller detailing the searches

and downloads of Lieutenant Strong’s and Trooper McAulay’s work email accounts, as

well as the former’s work cellphones. Copies of these documents are attached to this

objection as Attachment E.

8. On November 14, 2019, Judge Houran held a status conference. At that

conference, prosecutors provided Judge Houran and the defense with a further update on

the nearly completed Discovery review process. Also, in response to concerns raised by

defense counsel regarding complete disclosure of Discovery in any narcotics

investigations connected to the murders or involving people in the homicide

investigation, a review process was started within the New Hampshire State Police

Narcotics Investigation Unit with respect to any such state drug investigations. Lieutenant

Christopher Roblee oversaw that additional review process. The State relies on and

incorporates by reference in this objection the Affidavit provided by Lieutenant Roblee

that details steps undertaken by narcotics investigators during the review process. A

copy of that affidavit is attached to this objection as Attachment F.

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9. A further status hearing was held on December 18, 2019, at which time

prosecutors provided Judge Houran and the defense with a further update of the expanded

Discovery review process. Defense counsel asked for an adjournment for submission of

deadlines for further litigation in connection with the matter.

10. On January 15, 2020, the defense submitted to Judge Houran an assented-

to proposed scheduling order, which he granted. The defense subsequently deposed

about a dozen members of the State Police. The deponents included the lead investigator

– Lieutenant Strong – investigators who prepared untimely provided materials, and

investigators who oversaw and conducted the post-trial Discovery review process.

Among those deposed by the defense were Sergeant Rowe and Lieutenant Roblee, as

well as Captain Joseph Ebert (see infra). The State assented to each of these depositions,

and paid the corresponding transcription costs. The scope of the defense depositions was

broad and unfettered, and included unobjected-to questioning as to documents that were

timely provided in Discovery. Because of unexpected scheduling cancellations and

delays brought about by the coronavirus pandemic, those depositions occurred over a

period of about three months.

11. Directly as a result of this case, the New Hampshire State Police Major

Crime Unit began a unit-wide review of its active cases to ensure that no similar

Discovery issues occurred in those other cases. The State Police also developed and

implemented global procedures to be followed in future investigations, which include a

number of recordkeeping checks, in order to avoid the recording errors that resulted in

Discovery issues that arose in this case. The State Police also will in the near future be

implementing a new digital records management system, which can serve as a central

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repository for all documents for a particular case. The State relies on and incorporates by

reference in this objection the Affidavit provided by Captain Joseph Ebert of the New

Hampshire State Police that details these procedures. A copy of that affidavit is attached

to this objection as Attachment G.

ARGUMENT

12. The defendant moves to dismiss his indictments with prejudice on two

separate constitutional grounds: Double Jeopardy, and Due Process. As to the former,

the defendant argues that he was “goaded” into a mistrial by prosecutors, who

affirmatively misrepresented to his trial attorneys what materials had not been disclosed.

Defendant’s Motion, at ¶¶ 135-42. As to the latter, the defendant contends that the

discovery violations were willful and that he suffered irremediable prejudice as a result

thereof. Id., at ¶¶ 143-60. The defendant’s assertion of malfeasance by prosecutors that

duped a mistrial application by his lawyers is baseless, and although discovery violations

undoubtedly occurred, he is incorrect that the transgression rose to a level warranting the

extreme sanction of dismissal with prejudice

DOUBLE JEOPARDY

13. With respect to the defendant’s Double Jeopardy claim, it is not disputed

that the mistrial was requested by his trial attorneys. Also, as set forth in the defendant’s

motion, that remedy was raised and contemplated by defense counsel before they had any

discussions with prosecutors on the matter. Defendant’s Motion, at ¶114. The issue is

whether prosecutors thereafter “goaded” defense counsel into making the decision that

they already were fully considering.

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14. The State does not dispute much of what defense counsel has represented

regarding conversations that they had with prosecutors prior to the defense request for

mistrial. Defendant’s Motion, at ¶ 118. The one exception is the characterization made

once in the defendant’s motion that prosecutors represented that the items that they

observed and believed had not been disclosed were “material.” Id., at p.2 (“As a result of

the State’s representation that there was material undisclosed drug investigation

information, the defense reluctantly moved for a mistrial.”) (emphasis added). No such

representation occurred by prosecutors. Indeed, although the defendant makes that

assertion in his introductory argument, the factual recitation set forth by his attorneys

contradict it. Id., at ⁋ 118 (“[The prosecutors] indicated that they had not yet reviewed

the material but that it included cell phone records and that although they recognized

some of the numbers from the cellphone chart that had been utilized during the trial,

there were others that they did not recognize. They made reference to the material they

viewed being related to the drug investigation, which they indicated they had just learned

the State Police had kept separate and not provided.”) (emphasis added). Moreover,

although defense counsel recall that prosecutors discussed finding undisclosed materials

pertaining to “the drug investigation,” prosecutors recall that what had been relayed was

the discovery of Drug Enforcement Agency materials that were believed not to have been

provided. See Defendant’s Motion, at ⁋ 126 (setting forth prosecutor’s on-the-record

recollection as provided at post-mistrial status conference); see also Hearing Conducted

on October 31, 2019, at pp. 3-6 (discussing items that prosecutors had seen).

15. To be sure, prosecutors alerted defense counsel that it appeared that there

were additional materials that had not been timely disclosed. So too did prosecutors alert

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defense counsel that it appeared that undisclosed materials related to drug investigations.

Unfortunately, the prosecutors were correct in both regards. As laid out both by the State

and the defendant, after the mistrial various printed and media-based materials were

turned over to the defense. The prosecutors were accurate in conveying that they

believed the undisclosed materials to be “significant” in amount. Defendant’s Motion, at

¶ 140. That is a fair characterization, given the quantity of items at issue. See id., at ⁋⁋

128-30 (setting forth materials at issue) and State’s Appendix. And, a fair amount of

those post-mistrial materials referenced drug activities by Smoronk, the defendant, and

others. See State’s Appendix.4

16. In this proper factual context, a conclusion that prosecutors somehow

duped the defense attorneys into declaring a mistrial is unwarranted and unreasonable.

The prosecutors accurately informed counsel that additional materials had not been

provided, that such materials were significant in amount, and that such materials

apparently included narcotics-related matters. Before such disclosures, the prosecutors

certainly were not privy to the actual and active discussions defense counsel had had in-

house regarding the request of a mistrial. Nor would the prosecutors have any reason to

be under any belief that reference to drug-related materials (or, for that matter, materials

“related to the drug investigation”) – as opposed to disclosure of a significant amount of

potentially exculpatory evidence – would tip the scale for the defense attorneys in favor

of their decision as to whether to request a mistrial. In light of these facts and 4 As to the mistaken belief by prosecutors as to Drug Enforcement Agency materials, see Defendant’s Motion, at ⁋ 126, upon the attorneys’ arrival at the State Police audit they saw dozens of manila envelopes containing printed-out records pertaining predominantly to cellular telephone communications, and had been informed per Lieutenant Strong that such materials had not been provided. Upon the conducted audit, it was discerned that those materials in fact previously had been timely provided to the defense in discovery, in digital form rather than printed out. The State made those printed-out materials available to defense counsel for review, to verify their duplicative nature to previously provided discovery.

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circumstances, ascribing a malicious purpose behind the reporting made by prosecutors to

defense counsel is not sustainable.

17. Indeed, although the defendant suggests that there existed only two

possible designs behind the prosecutors’ reporting, each willfully pernicious, Defendant’s

Motion, at ¶ 141, the reality was far more benign and transparent: the prosecutors simply

did what was required of them when confronted by yet more materials that had not been

timely provided to the defense. They immediately informed defense counsel and the

Court of the existence of further discoverable materials, and attempted to relay as best

they could at the time the nature of the materials at issue. Indeed, had prosecutors not

made such a disclosure, that would have been willful misconduct on their part worthy of

severe sanction. That the content of the materials ultimately found and turned over to the

defense was not what defense counsel hoped does not support a finding that the

prosecutors were attempting to influence a defense request for mistrial.

18. The defendant’s claim of tactical misrepresentation and “goading” by

prosecutors also flies in the face of other facts set forth in his motion. According to the

defendant’s trial counsel, they had not had time to review and assess what the State had

provided them prior to the decision to request a mistrial. Defendant’s Motion, at ⁋⁋ 114-

17. Moreover, it is undisputed that the defense received a substantial amount of new

materials after the declaration of a mistrial, including information that the defendant in

his present motion argues is exculpatory and that his lawyers would have used at trial.

Just as the prosecutors would have been remiss not to report the newly-discovered

materials immediately to defense counsel and the Court, defense counsel would have

been remiss to continue a trial knowing that there were materials that they had not

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reviewed, and under a belief that such may contain information that would either support

their case or undermine the State’s. See Hearing Conducted on October 31, 2019, at pp.

7, 11 (defense counsel discuss inability to review and potentially incorporate any new

information at present trial as basis for declaring mistrial)

19. Lastly on the matter, the State agrees with the defendant that the Court

should take into account the State’s assent to his request for a mistrial. Defendant’s

Motion, at ¶ 142. The State agreed to the cessation of a lengthy trial, in which, as

discussed infra, prosecutors presented a powerful case establishing the defendant’s guilt

of the charged murders. Just as the decision to request a mistrial was not a decision

lightly taken by the defendant’s trial attorneys, neither was agreement to such a decision

lightly taken by the trial prosecutors, who were acutely aware of the case they had

presented, and the likely effect of such a decision on the victims’ family members, many

of who watched the trial unfold. That assent further belies the defendant’s claim that

prosecutors goaded the requested mistrial. So too does the fact that although the State

assented to the defense request, upon the application made by the defense the State also

made a record about how the declaration of a mistrial would constitute a manifest

necessity even absent the defendant’s request, given the revelation of new materials not

disclosed and the potential that those materials may contain exculpatory evidence. See

Hearing Conducted on October 31, 2019, at pp 18-19. That application was no more

designed as an insincere tactical ploy than the prosecutor’s good-faith disclosure to

defense counsel and the Court that necessitated the granted mistrial.

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20. In short, prosecutors acted not out of design to instigate a mistrial, but to

notify the defense counsel and the Court of an unrectified discovery issue. There was no

violation of the defendant’s constitutional right against double jeopardy.

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DUE PROCESS

APPLICABLE LAW

21. The governing legal framework is well-established, and although it was

fully explored by Judge Houran in his original Order, e.g., Initial Order, at pp. 6-9, that

framework bears repeating. In the face of a known Discovery violation, the Court may

impose any number of remedies to assist the party who was deprived of timely

disclosure, as well as any number of penalties to punish the party who committed the

violation. A wide array of remedies and sanctions are available to the Court for a

Discovery violation by either party in a criminal case. Some of the possible judicial

impositions are set forth in the New Hampshire Rules of Criminal Procedure:

If at any time during the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may take such action as it deems just under the circumstances, including, but not limited to: (A) ordering the party to provide the discovery not previously provided; (B) granting continuance of the trial or hearing; (C) prohibiting the party from introducing the evidence not disclosed; and (D) assessing costs and attorney’s fees against the party or counsel who has violated the terms of this rule.

N.H. R. Crim. Pro. 12(b)(9). By the plain terms of Rule 12, the enumerated possible

remedies and sanctions listed therein are not exhaustive, and in the end the particular

judicial response to a Discovery violation rests within the Court’s broad discretion. See

State v. Bain, 145 N.H. 367, 372 (2000); State v. Cotell, 143 N.H. 275, 280-81 (1998).

22. That being said, the Court’s discretion should be informed by applicable

jurisprudence in this and other jurisdictions regarding Discovery violations. First,

judicial discretion “must be exercised in a reasoned fashion after consideration of the

appropriate factors, and the court should choose the least severe sanction which it

concludes will ensure the State’s compliance with its discovery responsibilities.” State v.

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Naple, 143 P.3d 358, 368 (Wy. 2006); see State v. Michaud, 146 N.H. 29, 33 (2001)

(“[The] court must consider whether less extreme measures have the intended punitive

effect.”); Cotell, 143 N.H. at 281 (“A [trial] court exceeds the proper bounds of its

[supervisory] power to order dismissal of an indictment with prejudice when it fails to

consider whether less extreme sanctions might maintain the integrity of the court without

punishing the [State] for a prosecutor’s misconduct.”) (internal quotation marks and

citations omitted).

23. Second, as Judge Houran previously recognized in his Initial Order,

dismissal with prejudice is an extreme sanction. Such an ultimate penalty is reserved for

only the rarest of cases. See Cotell, 143 N.H. at 281 (“The sanction of dismissal with

prejudice is . . . reserved for extraordinary circumstances.”). Indeed, the New Hampshire

Supreme Court has concluded that dismissal with prejudice is not required even in

instances of governmental bad faith. Bain, 145 N.H. at 373 (“The principles set forth in

Cotell do not . . . [suggest] that if the [defendant] had shown some measure of

governmental bad faith a mistrial or dismissal would automatically follow.”) (internal

quotation marks omitted). Rather, to warrant the cessation of prosecution the State’s

misconduct must “rise to the level of impeding [this Court’s] ability to administer

justice.” Id.

24. The reason for pause and careful consideration before resort to dismissal

of a case with prejudice is plain. Such a penalty ultimately unduly and unfairly

prejudices society and benefits an accused. As the New Hampshire Supreme Court

discussed in Cotell:

[T]he public has an interest in the prosecution of crimes, and the availability of discretionary discovery sanctions does not furnish a

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defendant with a procedural device to escape justice. When a court dismisses charges for prosecutorial negligence, absent actual prejudice and consideration of lesser remedies, the defendant benefits from a windfall, and the price is paid by the public, not by the [prosecutor].

143 N.H. at 281 (internal citations and quotation marks omitted); see State v. Stickney,

148 N.H. 232, 236 (2002) (“The sanction of dismissal with prejudice affords a criminal

defendant a windfall, the price of which is paid by the public rather than the State.”).

This rationale is in accord with that provided by other courts that have addressed the

issue. As one appellate court similarly reasoned:

Dismissal of an information or indictment is an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists. The obvious rationale for limiting the sanction of dismissal of criminal charges to only those cases where no other sanction can remedy the prejudice to the defendant is to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct. And, of course, where the prosecutor’s failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public, not the prosecutor, and results in a windfall to the defendant. Because the rule authorizing the imposition of sanctions for discovery violation was never intended to furnish a defendant with a procedural device to escape justice, even when a defendant has been tried and convicted without having been furnished discovery material to which he was entitled, and the material is thereafter disclosed and made available to him, the relief granted is not dismissal of the charges, but a new trial.

State v. Del Gaudio, 445 So.2d 605, 608 (Fla. Dist. Ct. App. 1993) (internal quotation

marks and citations omitted). Another of many examples is the following pertinent

passage written by the Supreme Court of Rhode Island in State v. Musumeci:

Although punishment and deterrence are valid and important considerations in selecting a sanction [for a discovery violation] and the trial justice should choose a sanction sufficiently potent to achieve such goals when the circumstances call for such a result, even weightier policy considerations favor resolution of criminal charges on their merits. Thus dismissals of all pending criminal charges for the state’s commission of discovery violations are to be disfavored save in the most extreme circumstances. Indeed, we conclude that dismissal is an appropriate

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sanction only as a last resort and only when less drastic sanctions would be unlikely or ill suited to achieve compliance, to deter future violations of this kind, and to remedy any material prejudice to defendant. . . . [T]he burden of any dismissal sanction ultimately falls squarely on the people of this state and not solely upon the Attorney General’s office. And although we agree with the second trial justice’s observation that defendant is entitled to a “trial by jury, not trial by ambush,” we are also of the opinion that as a general rule, and subject to constitutional safeguards, a criminal defendant should not go free because the constable [or the prosecution] has blundered.

717 A.2d 56, 63 (R.I. 1998) (internal citations omitted); e.g., Commonwealth v. Mason,

906 N.E.2d 329, 332 (Mass. 2009) (“The dismissal of a criminal case is a remedy of last

resort because it precludes a public trial and terminates criminal proceedings. Absent

egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal

infringes too severely on the public interest in bringing guilty persons to justice.”)

(internal citations and quotation marks omitted); Naple, 143 P.3d at 362-63 (“A court’s

dismissal of a criminal case is a remedy of last resort, and a trial judge abuses his or her

discretion by ignoring intermediate remedial steps. Such dismissal is reserved for severe

situations because dismissal of a charging instrument frustrates the public interest in the

prosecution of crimes.”) (quoting 21 Am. Jur.2nd Criminal Law §784 (2006)).

25. This State’s jurisprudence on the appropriate judicial response to

Discovery violations is consistent with that of the federal and other states’ judiciaries.

Time and again, appellate courts have rejected the imposition of the sanction of dismissal

with prejudice, even for grievous and willful discovery violations. See, e.g., Government

of the Virgin Islands v. Fahie, 419 F.3d 249, 254 n.6 (3rd Cir. 2005) (“Our research

discloses no case where a federal appellate court upheld dismissal with prejudice as a

remedy for a Brady violation.”); United States v. Dennison, 891 F.2d 255, 260 (10th Cir.

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1989) (“The instances where an appellate court has upheld a district court’s dismissal of

an indictment because of alleged prosecutorial misconduct are few and far between.”)

(internal quotation marks omitted); Commonwealth v. Lewin, 542 N.E.2d 275, 286

(Mass. App. Ct. 1989) (“We have sometimes remarked that outrageous police conduct,

not shown to be prejudicial to a fair trial, may require the dismissal of charges, but we

have never dismissed charges in such a circumstance.”). Indeed, the State’s research has

found no prior decision in New Hampshire in which a criminal case properly was

dismissed with prejudice in the face of established discovery violations, and has

uncovered very few such cases from other jurisdictions.5 Notably here as well, the

defense has not pointed to a single case in which such a sanction was an appropriate

sanction, under similar factual and legal circumstances.

26. The relevant underlying themes on the issue are consistent and clear.

Dismissal with prejudice is extreme and rare, and is warranted only when the misconduct

at issue not only rises to an egregious level, but also only in the face of demonstrable

actual prejudice to a defendant. See, e.g., Cotell, 143 N.H. at 279 (“The supervisory

authority of the [trial] court includes the power to impose the extreme sanction of

dismissal with prejudice only in extraordinary situations and only where the

5 In that regard, the State conducted a plain word search in Westlaw of “dismissal with prejudice for discovery violations,” first in the “New Hampshire, criminal” jurisdiction, and then more broadly in the “All States and All Federal, criminal” jurisdictions. The former produced twenty-one cases, all of which the State reviewed. The latter produced about 2500 cases, a sampling of which the State reviewed. Of those non-New Hampshire state cases, the vast majority either denied the request for a dismissal with prejudice, upheld such a denial, or reversed such a dismissal. Those very few cases that found such a sanction to be appropriate are either factually inapposite, involve a different legal framework, or both. See, e.g., United States v. Stellato, 74 M.J. 473, 489-91 (Crim. App. 2015) (dismissal appropriate where government engaged in systematic ignoring of discovery obligations that resulted in, inter alia, lost evidence, evidence left in hands of interested parties, and defense inability to call key witness, and trial court considered and rejected less severe remedies and sanctions); State ex rel. Rosen v. Hill, 455 S.E.2d 427, 436-38 (W.Va. 1994) (dismissal not abuse of discretion where discovery violation twice required trial to be continued; appellate court held that under applicable court rules no finding of actual prejudice required for sanction of dismissal).

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989121106&pubNum=521&originatingDoc=I0c0af21d2eaf11db8ac4e022126eafc3&refType=RP&fi=co_pp_sp_521_585&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_521_585https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989121106&pubNum=521&originatingDoc=I0c0af21d2eaf11db8ac4e022126eafc3&refType=RP&fi=co_pp_sp_521_585&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_521_585

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government’s misconduct has prejudiced the defendant.”) (quoting United States v.

Welborn, 849 F.2d 980, 985 (5th Cir. 1988)) (emphasis added); State v. Carpenter, 899

So.2d 1176, 1182 (Fla. Dist. Ct. App. 2005) (“Dismissal of an information is . . . an

extreme sanction that should be used with caution, and only when a lesser sanction would

not achieve the desired result. Before a court can dismiss an information for a

prosecutor’s violation of a discovery rule or order, the trial court must find that the

prosecutor’s violation resulted in prejudice to the defendant.”) (internal quotation marks

and citations omitted; emphasis in original); Lewin, 542 N.E.2d at 286-87 (vacating order

of dismissal with prejudice despite repeated perjury and cover-ups by police officers,

characterized by the court as perfidious, contemptible, disgusting, and in blatant violation

of their sworn duties, as well as by failure by prosecutors to comply with discovery

orders); Commonwealth v. Lam Hue To, 461 N.E.2d 776, 783-84 (Mass. 1984)

(prosecutorial misconduct in not disclosing exculpatory evidence due to ineptitude and

“bungling” police performance, as opposed to intentional misconduct, not sufficient for

dismissal with prejudice); Musumeci, 717 A.2d at 63 (“Absent substantial prejudice and a

showing that no other available discretionary measures can possibly neutralize the

harmful effect [of the prosecution’s discovery violations], some other remedy(ies) and/or

sanction(s) . . . should generally be imposed – at least in the first instance – upon the

court’s learning of a material discovery violation, even when, as here, the prosecution is

guilty of grossly negligent misconduct.”) (internal quotation marks and citations omitted).

As to what constitutes a situation in which a showing of actual prejudice is not required,

it should involve even more than willful misconduct. See Bain, 145 N.H. at 373.

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989121106&pubNum=521&originatingDoc=I0c0af21d2eaf11db8ac4e022126eafc3&refType=RP&fi=co_pp_sp_521_585&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_521_585https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1984112179&pubNum=521&originatingDoc=I0c0af21d2eaf11db8ac4e022126eafc3&refType=RP&fi=co_pp_sp_521_310&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_521_310

19

27. As to prejudice to the defendant that may warrant a dismissal, such

prejudice must be real and demonstrable, rather than possible or speculative. Indeed,

even that untimely disclosure may have compromised a defendant’s constitutional rights

does not in itself constitute actual prejudice. See State v. Colbath, 130 N.H. 316, 320-21

(1988) (defendant entitled to no relief beyond production of untimely produced Brady

material unless defendant “could demonstrate that the delay in producing it ultimately

harmed him in some way.”). Rather, actual prejudice exists “if the defense has been

impeded to a significant degree by the nondisclosure.” Cotell, 143 N.H. at 280; State v.

Brooks, 164 N.H. 272, 288 (2012); State v. Gamester, 149 N.H. 475, 479 (2003).

28. Guided by these widely-accepted principles, based upon the supported

factual findings already made by Judge Houran on the matter as well as the additional

facts submitted by the State, and for the factual and legal reasons set forth below, the

Court should not dismiss the defendant’s charges with prejudice.

ARGUMENT

29. At the outset, and as the State has acknowledged previously and will

continue to acknowledge, significant Discovery violations have occurred in this case.

The State has recognized and continues to recognize the gravity of this error, and how it

has resulted in the expenditure of scarce judicial and litigation resources. The State

wholly agrees that remedies and some sanctions are warranted. Where the State differs

with the defense, is whether the extreme sanction of dismissal with prejudice is required.

Additionally, the State disputes some of the defendant’s factual arguments, both with

respect to culpability and with respect to actual prejudice. Moreover, in determining

what remedies and sanctions are appropriate, the Court should consider the actual harm to

20

the prosecution caused by the Discovery violations – which undermines the defendant’s

claims both as to culpability and prejudice – as well as the reality that the punitive aspect

of dismissal falls disproportionately on the families of the victims and society, in a case

the nature of which – a double murder – those legitimate interests deserve independent

and weighty consideration.

A. Culpability

30. Inexcusable Discovery violations have occurred in this case, for which the

State is solely at fault. In Judge Houran’s prior Order he rightly acknowledged so, and he

also made relevant factual findings as to the State’s culpability in those violations. The

State does not challenge any of those findings, which were highly critical of the State.

Specifically, Judge Houran found “inexcusable governmental error that was the product

of sloppiness, oversight, and poor management practices.” Initial Order, at p.16. As a

result of the extent of the nondisclosure, Judge Houran correctly and appropriately

determined that the violations rose to the level of culpable negligence. Id. at p.18.

31. But Judge Houran, based on the hearing testimony provided, as well as a

review of the untimely disclosed materials at issue, also found that “there was no bad

faith or intent to deprive the defense of the evidence” and that “there is simply no

evidence from which it is reasonable to infer that the Major Crime Unit or any other

government actor was intentionally suppressing information favorable to [the

defendant].” Id. at p.16. So too did Judge Houran find that the violations resulted from

individual culpable conduct, rather than institutional nonfeasance or malfeasance. Id.

With respect to the individual conduct, Judge Houran recognized in his initial order that

“the failure here belongs to the Major Crimes Unit of the New Hampshire State Police

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and not to the prosecutors,” while also acknowledging that as a matter of law, the State is

the State. Id. at p.6.

32. In his present motion, the defendant argues that the culpability here was

wilfull, and rose to an institutional level that demonstrates an atmosphere of malfeasance

by the Attorney General’s Office and the New Hampshire State Police. E.g., Defendant’s

Motion, at pp. 1, 4 & ¶¶ 157-59.6 To be sure, since the time when Judge Houran made

those findings and issued his earlier Order, additional undisclosed materials have been

identified and provided to the defense. See infra and attached Appendix. Those items

were itemized for the defense, and the detailed listing was also provided to Judge Houran

as an attachment to the State’s November 8, 2019, status report. An even more detailed

accounting of the newly-disclosed materials is contained in the separate Appendix to this

objection, as well as in the discussion on prejudice, infra.

33. The defendant is correct that the additional items disclosed since Judge

Houran’s Initial Order are numerous. Specifically, about 390 pages of written material,

as well as twenty-nine media disks and a flash drive.7 But those additional materials,

either in their volume or as to their content, do not provide a basis for the Court to change

any of the earlier findings made by Judge Houran as to culpability. Notably, he made

those findings after full and fair consideration of the testimony given by the investigators

involved in the late disclosures at issue at that time, as well as a thorough review of the

6 In instances of rhetorical overreach, the defendant even suggests that the investigators, trial prosecutors, and Attorney General’s Office engaged in criminal conduct, purposefully withholding exculpatory information from the defense. E.g., Defendant’s Motion, at ¶ 46 (accusing Attorney General’s Office and State Police of willfully deceiving and misleading). The State is mindful that this is an adversarial proceeding, and the State is rightly subject to rebuke and criticism for the failures that occurred in this case. That being said, zealous advocates should be mindful of striking blows that are hard but fair. 7 As to the discrepancy between the State’s calculations and those of the defendant, see Defendant’s Motion, at ¶¶ 129-30, the defendant has included materials that were subject of the initial motion to dismiss, litigated and ruled upon prior to the declaration of a mistrial.

22

untimely disclosed information in the context of the case and defense tactics and

strategies undertaken therein.

34. As to volume of materials, with respect to those documents and media that

are not the equivalent of materials previously and timely provided in Discovery,8 the vast

bulk of that material is neither exculpatory nor helpful to the defense in terms of

impeachment, tactical choices, overall strategy, or otherwise. See Appendix. Even with

respect to those materials claimed by the defendant to be exculpatory and supportive of

his claim of prejudice, an objective view of them in the context of the trial and the

defense presented reveals that no real, unremediable prejudice exists. See infra

(discussion of prejudice). Indeed, the most useful of the newly-disclosed materials is

inculpatory to the defendant, and is information that the prosecutors almost certainly

would have used to further inculpate the defendant in the charged offenses had the

prosecutors known of such materials prior to trial.

1. Individual Culpability

35. There was individual culpability here. Judge Houran discussed so in his

Initial Order. The lead investigator in the case did not provide materials in his

possession. A few of the dozens of other investigators involved in the case also did not

affirmatively provide materials in their possession to the lead investigator, but it was

incumbent upon him to gather and otherwise account for that information.

8 Some of the newly-provided materials are duplicative of Discovery that already had been given to the defense prior to trial. Examples include a report synopsizing the contents of a recorded interview and a recorded interviews provided in formats different than those previously provided (i.e., video recordings rather than audio recordings). The duplicative equivalent disclosures are identified and detailed in the Appendix to this objection. Of the newly-disclosed materials, the duplicative equivalent disclosures constitute about fifty-five of the roughly 390 pages of written material, five of the twenty-nine media disks, and all but a few pages of data in the flash drive.

23

36. The factual finding made by Judge Houran in his Initial Order with respect

to individual culpability – culpable negligence, not malice or bad faith – is still valid.

Indeed, a review of the additional materials that have been disclosed since that Order

only reinforces the earlier finding that nondisclosure was the result of gross

mismanagement at the individual level rather than the institutional level. A full review is

provided in the attached Appendix and in the discussion in the section on prejudice that

follows. There, frankly, is no particular rhyme or reason to the materials not timely

provided (i.e., a particular witness/es, particular information, particular timeframes).

Those materials can fairly be described as a hodgepodge of reports and other materials on

a motley and largely unrelated array of topics and people, fairly reflective of a lack of

organization. Some of those materials are either directly inculpatory or bolster the

accounts or information provided by State witnesses. That they were not provided at all

to prosecutors prior to trial only supports the earlier judicial finding that the

nondisclosure was the product of mismanagement rather than tactical design or a desire

to procure some advantage over the defense.

37. The defendant attempts to ascribe a willful selectivity to Lieutenant

Strong’s Discovery disclosure omissions. Defendant’s Motion at ¶ 159(d) (“By failing to

have a system that included documentation of each assignment, Strong was able to

exclude interviews of witnesses which were not helpful to the State’s theory, but

contained exculpatory information for the defense”). That was not borne out by the

evidence before Judge Houran when he issued his ruling on the matter, and is also not

borne out by the post-mistrial disclosures. Indeed, the defendant’s actual bases of

claimed prejudice constitute a minor portion of those disclosures, and objective analysis

24

establishes that the defendant’s claim that his identified disclosures contained exculpatory

information largely lack merit. See infra (discussion of prejudice).

38. Moreover, that claim ignores the fact that the vast bulk of materials that

formed the basis of the defense case, to wit, Dean Smoronk as alternative perpetrator,

were gathered and timely provided to the defense with ample time to use in preparation

for and at trial by the very same lead investigator responsible for the untimely provided

materials – Lieutenant Strong. Indeed, the witnesses who the defense called at trial all

came to be known to the defense through the investigation conducted by State Police.

And, the various threats against victim Christine Sullivan voiced by Dean Smoronk, as

well as her voiced concerns about him, were well known to the defense far in advance of

trial, based upon law enforcement investigation and interviews timely provided in

Discovery. Had the late disclosures at issue truly been the effort of a deliberate design to

withhold exculpatory information, all of these timely reports and interviews germane to

the heart of the defense case would have been the ones not provided. That they were

provided, as well as the largely innocuous nature of the undisclosed materials, only

reinforces Judge Houran’s factual finding of no bad faith.

39. Moreover, although it is clear that the “State” is responsible for the

Discovery violations, see State v. Lucius, 140 N.H. 60, 63 (1995), it is notable that none

of the information at issue was known to prosecutors, and would not be known in the

normal course. None of the materials was referenced either directly or indirectly in

materials timely provided to prosecutors. In addition, a review of the materials at issues

show no known nexus to provided Discovery that would have alerted prosecutors to the

materials’ omission. The fact that prosecutors were actually unaware, and would not

25

have been aware, of the very existence of the materials at issue through review of

received materials and absent assurances that material had been provided, also

underscores that the violations were not willful.

40. With respect to those few materials that can be considered exculpatory,

their earlier disclosure would not have altered or assisted the defense. Specifically, some

material contained information to the effect of threats made by Dean Smoronk to or with

respect to Christine Sullivan, or statements that the latter made of fear as to the former.

But the defense already was able to, and did, elicit such information from numerous trial

witnesses, in a variety of forms (i.e., statements, text messages), in the first trial, largely

without objection. And, even more importantly, none of this was ever disputed by the

State. In fact, that Dean Smoronk may have wanted to cause harm to Ms. Sullivan was a

topic discussed by prosecutors with every one of the prospective jurors in voir dire, and a

motive that the State utilized to further bolster its case against the defendant (i.e., that the

defendant was the instrument through which Smoronk effectuated his voiced threats).

Additional evidence along these same lines, provided through newly-disclosed materials,

would not have added to the defense case but would have been merely cumulative. As to

culpability, that such information was duplicative in substance to a host of information

already provided to the defense in a timely manner further belies any claim that the late

disclosure was other than grossly negligent.

41. By no means can the nondisclosure of the materials at issue be viewed,

even with the most jaundiced eye, as something that was deliberate in design. Nor could

omission reasonably be determined in any way to be a tactical decision to withhold

information from the defense. In fact, the omission prejudiced the prosecution, both in

26

terms of ending a lengthy trial in which prosecutors provided a compelling case of the

defendant’s guilt, and in terms of depriving prosecutors of even more evidence that

supported guilty verdicts. See infra. For these reasons, as well as the reasons fully

articulated by Judge Houran in his earlier ruling, this is not an instance of malfeasance,

either by a single or multiple members of state police, or by prosecutors. The prior

judicial findings on the matter should remain unchanged.

2. Institutional Culpability

42. The newly-disclosed materials also should not change Judge Houran’s

finding that no institutional misconduct occurred necessitating the severe sanction of

dismissal with prejudice. Almost all of the materials at issue were in the possession of a

single person: the lead investigator. Moreover, as to those other items not in his

possession, as the lead investigator he should have known about and had them as well.

Again, returning to the New Hampshire Supreme Court’s decision in Cotell:

If there has been a consistent pattern and practice of negligent nondisclosure, resulting in actual prejudice to defendants, the court might conclude that government misconduct has reached a level warranting the extraordinary relief of dismissal. When the court identifies such a pattern, its resort to dismissal, in lieu of less severe measures, requires a finding that other remedies would not have a deterrent effect. Furthermore, the misconduct constituting the “last straw” in the pattern cannot be a case of nonfeasance that falls short of actually prejudicing the defendant.

143 N.H. at 281 (citations and internal quotation marks omitted; emphasis added).

43. First, there has not been “a consistent pattern and practice of negligent

nondisclosure,” id., let alone a pattern and practice that has “result[ed] in actual prejudice

to defendants.” Id. There have plainly been Discovery violations in this case. Just as

plainly, what occurred here is an aberration. The three prosecutors assigned to the case

have combined prosecutorial experience of over thirty years, in three states, with no

27

similar issue arising. A recent review of all other active cases within the Major Crime

Unit uncovered no similar Discovery issue.

44. Moreover, the Court can draw on its own experience over the past several

years as a sitting judge, with respect to law enforcement units and prosecutors in general,

and the Major Crime Unit and the Attorney General’s Office in particular. The

misconduct that has happened in this case is not routine or regular. Although the Court

likely has encountered occasional discovery issues, they undoubtedly are specific to the

case at hand rather than the result of misconduct at the organizational level. In short, this

case presents an anomaly.

45. Nor do the defendant’s attempts to assign culpability beyond the

parameters of this case, to an institutional “atmosphere” of reckless disregard of statutory

and constitutional Discovery obligations, have factual merit. Defendant’s Motion, at ¶

159. As an example, the defendant asserts that “[t]he [Attorney General’s Office]

purposefully does not review what the investigators have collected, abdicating the

responsibility of determining what is Brady material to the investigators.” Id., at ¶

159(c). That neither was shown in this case, nor, as the defendant more broadly posits, is

an institutional defect. As to this case, the record reflects a fundamental breakdown in

the Discovery collection and reporting process by the lead investigator. That in hindsight

prosecutors’ good-faith reliance on representations of full disclosure to them was

misplaced in no way amounts to an abdication of the prosecutors’ constitutional duties.

And, the defendant’s attempt to elevate the obvious and regrettable Discovery

shortcomings in this case to an agency-wide problem – either by the State Police, the

28

Attorney General’s Office, or both – has absolutely no factual basis.9 Indeed, the

defendant has pointed to no case similar in nature to what occurred here, let alone a series

of cases that would demonstrate the “atmosphere” that he claims exists. As well, the

Court can draw on its own experience now as a sitting jurist, and from prior criminal

litigation as a practicing attorney, as well as experiences from fellow jurists. There

simply is no atmosphere or history.

46. Because there is no pattern and practice of institutional wrongdoing by the

“State,” however broadly or narrowly the Court construes that term, there is no such

misconduct to deter in the first instance. Deterrence presupposes a practice that warrants

curtailment, and this case has presented an anomaly. But even if deterrence were a valid

consideration in such an isolated case, that effect has been or can be achieved by

measures other than dismissal with prejudice. As to specific deterrence, the lead

investigator is no longer assigned to the case, and generally is no longer in a position in

which he has similar duties of Discovery oversight and processing. Further, the

meaningful sanctions that Judge Houran already has imposed, see Initial Order, at pp. 19-

20, as well as the wide array of numerous other sanctions still available to the Court, see

infra, constitute adequate and effective specific deterrent.

47. Turning to general deterrence, again, given the individual nature of the

violations that have occurred, there is no general misbehavior to change, through sanction

9 Similarly groundless is the defendant’s belief that the Attorney General’s Office operates a Discovery procedure whereby particular Discovery is not provided unless asked for by the defense. Defendant’s Motion, at ¶ 159(e). That was neither the practice here, nor is the practice generally. The standard practice, since institution of the “Felonies First” procedures, is that the lead investigator provides prosecutors whatever Discovery is in his or her possession on a “rolling basis” – that is, a continuing duty to provide as new reports are generated or materials obtained. The prosecutors, in turn, provide their received materials to defense counsel. There is no, nor has there ever been, withholding of Discovery until specific request is made, and the latter was never shown to occur in this case, despite the defendant’s characterization attempt to the contrary.

29

of dismissal or otherwise. But that being said, those violations that occurred in this single

case have prompted action at an institutional level, as outlined in the attached affidavit of

Captain Ebert. In particular, as set forth in that affidavit, because of this case, the Major

Crime Unit undertook reviews in order to verify Discovery compliance in other cases.

That process also verified the anomaly presented by this case.

48. Moreover, in order to ensure that the lapses in records documentation and

management that occurred here are not repeated in the future, new institutional

prophylactic verification procedures have been implemented, and a new records

management system will soon be used. These concrete steps clearly will address the

deficiencies in communication and recordkeeping relied upon by the defendant in his

motion, e.g., Defendant’s Motion, at ¶¶ 5, 7, and that resulted in such negligent oversight

in this oneinstance..

49. To be sure, this case has had individual and institutional consequences,

and an effect on law enforcement and the prosecution. Dismissal with prejudice will not

further highlight or remedy the error that has occurred. As the Massachusetts Supreme

Judicial Court discussed in a situation involving at its core misconduct – perjury – far

more pernicious and condemnable than the gross negligence at issue here:

The only reason to dismiss criminal charges because of nonprejudicial but egregious police misconduct would be to create a climate adverse to repetition of that misconduct that would not otherwise exist. . . . The officers’ attempts to cover up their misconduct were not designed to aid in the conviction of the defendant of murder and other crimes and in fact may have seriously hampered, rather than aided, proof of the defendant’s guilt. The police perjury and cover-up were not entwined in proof of the charges against the defendant but rather concerned a largely separate matter (illicit drug dealing) that, to be sure, may have some connection with proof of the defendant’s guilt. These acts do not require dismissal of the charges for prophylactic reasons.

30

Repetition of such conduct by others will be sufficiently discouraged without dismissal of the charges. The officers’ police careers are over, their reputations are greatly damaged, and they face serious criminal charges. Knowledge of these adverse consequences to the police officers should be a deterrent to similar future misconduct. A properly constructed and diligently supervised police department procedure for monitoring and controlling the content of applications for search warrants based on information from undisclosed informants should also provide a deterrent to misconduct, provided it is endorsed by responsible superiors and contains provisions for discipline when prescribed procedures are not followed. . . . The likelihood that misconduct of the type involved in this case will not be uncovered, unless the dismissal of charges is assured when one is caught in such wrongdoing, is not so great as to require dismissal of the indictments in this case in order to encourage earlier disclosure of wrongdoing in future cases. In the absence of a demonstrated need for deterrence, a prophylactic remedy is inappropriate. In order to express its outrage at the reprehensible police conduct in this case, society need not punish itself by freeing a man who may be guilty of murder in the first degree and other serious crimes. If the defendant can receive a fair trial in spite of the police misconduct . . . that misconduct provides no reason to dismiss the charges in this case.

Lewin, 542 N.E.2d at 287 (internal quotation marks and citations omitted).

50. Here, because of the noncriminal nature of the misconduct that occurred

there will be no pending criminal charges to act as a deterrent. But that being said, the

other deterrent consequences and effects discussed by the Massachusetts Supreme

Judicial Court exist and provide powerful incentive for the “State” – both police agencies

and prosecutors – to ensure that no further errors occurs in this case going forward.

Moreover, the adverse consequences to the State that have already transpired – including

but not limited to mistrial in a lengthy case that had established guilt beyond a reasonable

doubt of serious crimes – serve as weighty reminder to all state actors of the need to be

diligent in satisfying Discovery obligations and adhering to judicial directives.10

10 So too can the Court take judicial notice of the state-wide publicity received from the mistrial that occurred as a result of the State’s Discovery violations, which focused on that error and the State’s sole

31

51. In short, dismissal will not promote change beyond that which has

occurred. Rather, dismissal will solely punish. And, even if this case was one in a

pattern and practice of institutional nondisclosure, “the misconduct constituting the ‘last

straw’ in the pattern cannot be a case of nonfeasance that falls short of actually

prejudicing the defendant.” Cotell, 143 N.H. at 281. As discussed infra, the nonfeasance

here, albeit extraordinary and grave, has not actually prejudiced the defendant.

B. Prejudice

52. Turning next to prejudice, as Judge Houran has found, the Discovery

violations in this case were the product of culpable negligence. Consequently, in order

for the possibility of dismissal with prejudice to be warranted, the defendant must have

suffered actual prejudice from the untimely disclosure that cannot be adequately

addressed by alternative sanctions and remedial measures. Michaud, 146 N.H. at 33

(“We . . . decline to hold that automatic dismissal is required upon a showing of culpable

negligence alone. In this case, where the court found the State acted in good faith but

with culpable negligence, we conclude that a showing of prejudice was required before

the court could dismiss the indictment.”). Indeed, even were the Court to find, upon

consideration of the materials disclosed after Judge Houran’s ruling on the defendant’s

initial motion to dismiss, that the violations have elevated to an even greater level of

culpability, requiring a showing of actual prejudice is still appropriate. Compare Bain,

responsibility for the mistrial. E.g., https://www.fosters.com/news/20191031/we-failed-mistrial-declared-in-double-murder-case; https://www.unionleader.com/news/courts/nh-state-police-apologize-to-families-for-mistrial-in-double/article_5e448488-8380-5fee-9f07-bf45619ce435.html; https://www.unionleader.com/news/courts/mistrial-declared-in-farmington-double-murder-state-police-withheld-evidence/article_bb5b6713-e707-5023-a67c-81b14a713bc6.html; https://apnews.com/21061b66fe7747b9881d8cc87a5cc547; https://www.wmur.com/article/judge-declares-mistrial-in-farmington-double-homicide-case/29670702. To be sure, any possible preconceived notions held by prospective jurors at a retrial – that the State withheld information from the defense – would inure to the defendant’s benefit.

https://www.fosters.com/news/20191031/we-failed-mistrial-declared-in-double-murder-casehttps://www.fosters.com/news/20191031/we-failed-mistrial-declared-in-double-murder-casehttps://www.unionleader.com/news/courts/nh-state-police-apologize-to-families-for-mistrial-in-double/article_5e448488-8380-5fee-9f07-bf45619ce435.htmlhttps://www.unionleader.com/news/courts/nh-state-police-apologize-to-families-for-mistrial-in-double/article_5e448488-8380-5fee-9f07-bf45619ce435.htmlhttps://www.unionleader.com/news/courts/mistrial-declared-in-farmington-double-murder-state-police-withheld-evidence/article_bb5b6713-e707-5023-a67c-81b14a713bc6.htmlhttps://www.unionleader.com/news/courts/mistrial-declared-in-farmington-double-murder-state-police-withheld-evidence/article_bb5b6713-e707-5023-a67c-81b14a713bc6.htmlhttps://apnews.com/21061b66fe7747b9881d8cc87a5cc547https://www.wmur.com/article/judge-declares-mistrial-in-farmington-double-homicide-case/29670702https://www.wmur.com/article/judge-declares-mistrial-in-farmington-double-homicide-case/29670702

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145 N.H. at 373 (where intentional misconduct at issue did not impede trial court’s ability

to administer justice, “under the circumstances of this case, the court was required to find

prejudice before dismissing the charges as a sanction for [such] misconduct.”). After all,

as just discussed supra, there is no institutional level of misconduct that needs to be

remedied, and, as will be discussed infra, harm caused by dismissal in a case such as this

is disproportionately borne by the victims’ families as well as by society as a whole.

1. Prejudice to the Defendant

53. As to prejudice to the defendant, the State addresses such harm in two

distinct contexts. The first is overall prejudice to the defendant. That is, whether the

delayed disclosure of Discovery has caused him prejudice that should have entitled him

to relief beyond the mistrial that he received. For this assessment of prejudice, the State

analyzes any actual substantive detriment to overall defense trial strategy and tactics, as

well as potential effect on the newly disclosed information on the first trial’s potential

outcome. The second context is prejudice to the defendant at his retrial.

a. Overall Prejudice

54. The defendant argues that he was prejudiced at the first trial by the late

disclosure. Judge Houran already thoroughly addressed the matter with respect to the

materials that were the subject of the Initial Order, and found that whatever prejudice

suffered by the defendant could be addressed by the curative measures and the imposition

of numerous substantive penalties. Initial Order, at pp. 10-15, 19-20. The defendant has

not articulated how the materials disclosed since the issuance of that Order changes those

relevant findings.

33

55. Turning to the defendant’s claims of irremediable prejudice flowing to

him from subsequently disclosed materials, those claims are unpersuasive. The State

infra, as well as in a separate Appendix to this objection individually identifies and

describes in detail the materials at issue, and also addresses the potential use of those

materials by the defense either at trial, or in formulating particular trial tactics or broad

trial strategy. As that full analysis reveals, none of those materials, viewed objectively,

would have changed in any substantive manner or degree overall defense trial strategy.

56. In fact, very little of the newly disclosed information that could be used at

trial is even germane to legitimate trial issues. Most of the information involves events

that have at best tangential relevance to the murders, such as canine searches,

nonsubstantive message exchanges between investigators and interviewees, the reporting

of additional patently false hearsay about the murders, and synopses of unrelated criminal

matters. Such information neither exculpates the defendant directly or indirectly, nor

supports his theory of defense as advanced at trial. That information also could not be

used effectively to impeach the State’s witnesses or otherwise legitimately undermine or

rebut its case.

57. Moreover, particular defense trial tactics would not have deviated in a

significant degree. Most of the material also would have had (and has) absolutely no

value for use at trial either for supporting the defense case or for impugning that of the

State. The defense has pointed to very few materials that it claims would have, for

example, altered how witnesses presented by the State were cross-examined, or who the

defense would or would not have called to testify. And, with respect to those materials,

as discussed infra no irremediable prejudice has occurred.

34

58. Admittedly, the amount of newly provided materials is large. But those

materials pale both in quantity and in actual usefulness to the defense to the Discovery

timely provided to the defense in this particular case as a whole – over ten thousand

pages of written material and 275 media disks. More to the point as to the lack of actual

prejudice to the defense, as the analysis set forth below and in the attached Appendix

reveals, there are no new materials that would have had significant substantive use for the

defense. Furthermore, to the extent any materials could have had an actual use by the

defense at the first trial, remedies and sanctions similar to those instituted by Judge

Houran in his initial Order would have alleviated that prejudice.

59. Lastly, none of the materials would have legitimately changed defense

preparation for trial. Again, an objective review of the materials uncovers no new areas

of investigation to be pursued by the defense. Nor has the defense identified any actual

new avenues that they would have or could have explored had they received the materials

when they were supposed to. This reality further supports the conclusion of an absence

of actual prejudice by the defense from late disclosure.

b. Prejudice at Retrial

60. The defendant claims prejudice as to retrial, in that his attorneys have

“showed their hand” with respect to particular tactics and strategies. Defendant’s

Motion, at p. 84. But the reality is that such tactics and strategies before trial even began

were well known to the prosecutors, based on the extensive pretrial litigation that

occurred, and the information that the defense sought to introduce at trial, in terms of

alternative perpetrator evidence, alleged ties between Dean Smoronk and “motorcycle

gangs,” Smoronk’s threats against Christine Sullivan, and the like.

35

61. The reality also is that the defense saw the entirety of the State’s

presentation of evidence, and at retrial can change tactics accordingly. Indeed, at the

defendant’s trial the State made a series of tactical choices – chief among them not

calling Dean Smoronk to testify – of which counsel for the defendant is now aware, and

can prepare for in a second trial. In terms of adjustment by the State at retrial, frankly

little would be done in retrospect – the State presented a compelling case of the

defendant’s guilt. See infra.11

62. Next, the defense has received the untimely disclosed materials, and

counsel have had (or at the very least, by the time of retrial will have had) ample time to

review them in order to conduct any investigative follow-up they deem to be warranted.

So too has the defense been afforded – and rightly so – extraordinary latitude in

developing further investigative leads, such as unopposed requests for depositions.

Furthermore, the defense has had (or at the very least, by the time of trial will have had)

ample time and opportunity to possibly incorporate any of the newly-provided materials,

or any investigative leads derived therefrom, either in supporting the defense or in

attacking the State’s case at retrial, whether broadly or more discretely, through the use of

impeachment through inconsistencies and the like.

63. The defendant makes no claim that the passage of time has inured or will

inure to his detriment – i.e., making witnesses otherwise available to him unavailable, or

creating recollection issues that harm his case. To the contrary, any such ill effects of

retrial likely will be borne by the State, given the disproportionate amount of factual

11 Along those same lines, although prosecutors at this point can contact jurors to discuss aspects of the case, a practice typically conducted after a mistrial in order to gain insight into a case’s presentation and make any adjustments that can be made, the prosecutors here have deliberately not contacted or had any communications with jurors in this case, nor will they do so in the future, in order to maintain a status quo.

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witnesses that the State produced at the first trial. Those State witnesses also would be

disproportionally subject to possible impeachment from prior sworn inconsistent

statements made at the first trial.

c. Specific Claims of Prejudice

64. In the Appendix to the State’s Objection, the State has specified the

materials disclosed since Judge Houran’s ruling on the defendant’s initial motion to

dismiss, and has discussed each in the context of prejudice. Below, the State addresses

the specific claims of prejudice articulated by the defendant in his present motion.

Tanner Crowley (Defendant’s Motion, at ¶¶ 163-67)

65. The defendant is correct that to date he has not received any report or

recording of an interview conducted of Tanner Crowley by a federally-designated

investigator. The State has inquired of the United States Attorney’s Office and was

notified that the interview was not recorded and that no report or notes for the interview

were generated. The State has attempted to make the investigator who conducted that

interview available to the defense for deposition; however, as said investigator was a

Task Force Officer with the DEA at the time, the DEA has taken the position that the

Touhy process needs to be followed.12 It is the State’s understanding that the defendant

has begun or will soon begin the Touhy process. The State assents to any supplement

that the defendant files to his motion based on that deposition.

Jenna Guevara (Defendant’s Motion, at ¶¶ 168-77)

66. For context to this particular claim of prejudice, prior to trial the defendant

had in his possession, through Discovery timely provided by the State, a transcript of an

interview investigator conducted with Jenna Guevara, reports of additional conversations 12 See the below section about the drug investigation for more information on the Touhy process.

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that investigators had with her, and photos of text messages between her and Dean

Smoronk taken from her cellphone. See Defendant’s Motion, at ¶ 168. The defendant

also had his own investigator interview Guevara prior to trial. The defendant called

Guevara to testify in his case.

67. After the declaration of a mistrial, the defendant received a recording of an

additional conversation between Lieutenant Strong and Guevara, as well as text messages

exchanged between the two. The defendant’s claim of prejudice with respect to these

materials is his assertion that a single text message contained corroboration of the claim

of Fidencio Arellano – someone who the defendant was well aware of prior to trial and

had not called to testify at trial at the time when the mistrial was declared – that Dean

Smoronk attempted to hire him to kill victim Christine Sullivan, as well as an Edgar

Morales. Id., at ¶ 169.

68. As an initial matter, although the defendant appears to assert that the

March 19 recording contained information pertaining to Smoronk’s alleged solicitation of

Arellano, upon review of that recording it appears that no such information is conveyed

either directly or indirectly. The volume of the recording admittedly is low. To the

extent that the defendant does in fact claim that the recording contains a direct or indirect

reference to the alleged solicitation, the State invites him to specify for the State and the

Court where in the recording such reference is made.

69. In any event, more dispositive of the defendant’s claim of prejudice is that

its underlying premise is, as he well knows, false. It is undisputed that the defendant

knew well before trial, based on Discovery provided by the State, of the existence of

Arellano, as well as his claims that Smoronk had solicited him to kill Morales and

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Sullivan. Defendant’s Motion, at ¶ 34. According to the defendant, “prior to trial the

defense had at best only a supposition, unsupported with specific evidence, that Guevara

had made the statements demonstrating knowledge of Smoronk’s solicitation and

therefore was denied the opportunity to obtain this corroborations,” and that “[h]ad the

defense received this information pre-trial, as they were constitutionally entitled to,

Guevara could have been questioned about her knowledge of Smoronk’s solicitation of

Arellano and potentially offered trial testimony in corroboration of Arellano.” Id., at ¶

177.

70. As noted, the defendant through timely provided Discovery knew of Jenna

Guevara, and had his investigator interview her well before trial. The relevant portion of

the defense investigator’s written report, dated May 18, 2018 – over a year before trial –

directly refutes the defendant’s claim that he was unaware of the information about

Arellano possessed by Guevara:

Fedencio Arellano “Chencho” is Jenna’s best friend. They met when Chucho defended Jenna when she was being robbed outside her business in Naples. Jenna said that Chucho saved her life. Chucho confided to Jenna that Dean [Smoronk] wanted to pay him to kill Edgar and Christine. Dean gave Chucho the key to the van Edgar was driving also the address in Bonita. Jenna convince Chucho to speak with the NH State Police. . . .

(Emphasis added).13

71. The reality is that, over a year before trial, the defendant’s trial team not

only knew of Guevara, but also knew from her directly of the information that she

possessed regarding Arellano. As to why his trial lawyers did not elicit such information

13 Should the defendant actually dispute these contents of the report prepared by his own investigator, and given to the State by his trial attorneys as part of reciprocal discovery, the State will provide a copy to the Court.

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from her at trial, the answer is not that they were ignorant of such because of untimely

Discovery, but because the information was inadmissible. The information was plain

hearsay (reflecting not what Guevara heard from Smoronk directly, but second-hand

through Arellano), inadmissible under any exception. And, because Arellano had not

testified at the time when defense counsel called Guevara to testify,14 to the extent her

information could be admitted as a prior consistent statement or other means of

rehabilitation, there was no testimony to rehabilitate.

72. In short, any prejudice with respect to Guevara resulted – and would result

upon retrial – not from untimely Discovery, but from application of the pertinent rules of

evidence.

Jessica Rodrigue (Defendant’s Motion, at ¶¶ 178-79)

73. The material pertaining to Jessica Rodrigue was a subject of the

defendant’s first motion to dismiss; there were no additional materials pertaining to her

disclosed after the declaration of a mistrial. The defendant raises no different claim of

prejudice with respect to her material that he did not address before Judge Houran. The

State relies on the oral arguments that the State made at the hearing on the initial motion,

as well as Judge Houran’s ruling on that matter, including his ordered sanction/remedy.

Initial Order, at pp. 10-11, 19. The State does emphasize that, as to claimed prejudice,

the same evidentiary impediments just discussed with respect to the Guevara would have

and do apply to the actual use of the information provided by Rodrigue; that is, the

defendant could at best offer the information for rehabilitation, for a witness that in the

14 Nor was it likely that the defense would call Arellano before resting its case. The evidence that Arellano had regarding alleged solicitations made by Smoronk were inadmissible hearsay, as Smoronk was available to testify. See N.H. R. Evid. 804.

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first trial they likely would not have called, because his proffered exculpatory testimony

was inadmissible hearsay.

Lieutenant Strong’s text messages and emails with witnesses (Defendant’s Motion, at ¶¶ 180-88)

74. The defendant points to only a few of the text messages that were

disclosed post-mistrial as having caused actual prejudice. The first is a text from Lt.

Strong to Fidencio Arellano from September 21, 2017. Defendant’s Motion, at ¶ 182.

The defendant claims that had this text message been timely disclosed, it may have led to

Jessica Rodrigue’s interview being disclosed. However, as noted above, and as Judge

Houran correctly found in his Initial Order, there is no irremediable prejudice with

respect to the Rodrigue material. Therefore, a text message which, at best, would have

the Rodrigue materials being disclosed sooner, cannot itself be the cause of actual

prejudice.

75. The defendant also points to text messages between Lt. Strong and Arnold

Bennett as being a source of actual prejudice. Defendant’s Motion, at ¶¶ 183–84. Mr.

Bennett, together with his wife, Jen, and their son, Michael, were individuals known to

the defense through timely disclosed discovery. The defendant chose not to interview

any of the three in advance of trial. The defendant’s claim of prejudice based on the late-

disclosed text messages is speculative, at best. As the defendant notes, “other[ text

messages] indicate that Arnold Bennett seems to have additional information about

witnesses in the case.” Id. (emphasis added). Since receiving the late-disclosed text

messages approximately six months ago, the defendant has had ample opportunity to

interview M