J.T. v. J.B.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0267, J.T. v. J.B., the court on January
31, 2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant appeals a final stalking protective order
issued against him by the Circuit Court (Alfano, J.). See RSA 633:3-a (2018).
The defendant argues on appeal that the trial court erred when it “refused to
enter [his] surveillance video and screen shot into evidence.” (Capitalization
and bolding omitted). We remand for further proceedings in accordance with
this order.

The plaintiff’s stalking petition was based on two incidents — one
involving the defendant and his truck, and a second involving the defendant
and his shotgun. At the hearing on the petition, the plaintiff testified that in
the first incident, while the plaintiff was getting his mail in his own truck, the
defendant “swerved” his truck towards him, missing the plaintiff’s mirror “by
about an inch,” and scaring the plaintiff “incredibly.” The plaintiff testified that
in the second incident, which occurred approximately two weeks later, he had
driven his truck to the end of his driveway to trim branches from trees on his
property. While he was cutting the branches, the defendant came out of his
house with a gun “on his shoulder,” and started yelling at the plaintiff to “get
the eff out of here” and “[w]hat the eff are you doing?” According to the
plaintiff, the defendant then patted the side of his hip “where his gun was
slung and said, how effing tough do you think you are? Let’s go meet out on
the street; we’ll see how tough you are.” As a result, the plaintiff testified, he
was “extremely nervous,” “[s]tarted shaking,” has “been nervous since then,”
“will not walk down [his] driveway anymore,” and “keep[s] [his] doors locked.”

Prior to testifying, the defendant informed the court that he had “video
and audio of the words that were exchanged” during the second incident —
obtained through a surveillance camera on his house — and requested to
present that evidence. The trial court informed the defendant that, under New
Hampshire law, he did “not have the right to record a voice of any person
without their consent” and, therefore, it would violate the law to enter the video
into evidence. See RSA ch. 570-A. The court reasoned, however, that showing
a video “without a voice is different,” so if the defendant “want[ed] to show a
video that has no voice to it,” that would be allowed under the statute. When
the defendant then sought confirmation whether he could “mute the video and
show it,” the court replied that “muting it’s a different issue. The court then
stated that it would be the defendant’s decision whether to mute the video and
show the pictures, or the defendant could “just tell [the court] what happened”
and then the court would “figure out about the video.”

In his testimony, the defendant admitted that during his confrontation
with the plaintiff he had a shotgun on his shoulder on a sling, and that he
twice said to the plaintiff to “come on and meet [him] in the road.” He testified
that when he told the plaintiff to “get the eff out of here,” the plaintiff “laughed”
and “told [him] to shut up.” The defendant also testified that the video
surveillance camera showed that “a minute or so” after he had returned inside
his house, the plaintiff was driving down his driveway, which, the defendant
argued, proved that the plaintiff’s testimony that he “fle[d] for his life as [the
defendant] was standing there patting [his] gun [was] a complete falsehood.”
Despite indicating that it would do so, the trial court never reached a decision
whether the defendant should be allowed to introduce the surveillance video
without the audio.

On appeal, the defendant argues that the “surveillance video, including
the audio could in no reasonable manner” fall within RSA 570-A:1 because “no
reasonable person could claim to have a ‘reasonable expectation’” that his
words were not being recorded where “two neighbors [were] participating in a
shouting match adjacent to a town road.” He asserts that, due to the trial
court’s error, he “was unlawfully prevented from presenting his full defense”
and, therefore, the matter should be remanded to the trial court “to permit
[him] to present all evidence in his defense.”

With the exception of certain instances not applicable here, a person is
guilty of a class B felony if, “without the consent of all parties to the
communication, the person . . . [w]ilfully intercepts . . . any . . . oral
communication” or “[w]ilfully uses . . . any electronic, mechanical, or other
device to intercept any oral communication.” RSA 570-A:2, I(a), (b) (Supp.
2022). “Oral communication” is defined as “any verbal communication uttered
by a person who has a reasonable expectation that the communication is not
subject to interception, under circumstances justifying such expectation.” RSA
570-A:1, II (Supp. 2022). “Intercept” is defined as “the aural or other
acquisition of, or the recording of, the contents of any . . . oral communication
through the use of any electronic, mechanical, or other device.” RSA 570-A:1,
III (Supp. 2022). “Whenever any . . . oral communication has been intercepted,
no part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or other proceeding
in or before any court . . . if the disclosure of that information would be in
violation of this chapter.” RSA 570-A:6 (Supp. 2022).

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As applicable to this case, the recording of any oral communication is
prohibited by the statute only if the person who uttered the verbal
communication had “a reasonable expectation that the communication [was]
not subject to interception, under circumstances justifying such expectation.”
RSA 570-A:1, II; see Fischer v. Hooper, 143 N.H. 585, 590 (1999). The trial
court’s ruling that admission of the surveillance video and audio into evidence
would violate the law does not contain any analysis of this statutory
requirement. Given that resolving that issue requires factual findings, we
remand the matter to the trial court. See Fischer, 143 N.H. at 598 (declining to
address the issue whether RSA 570-A:1, IV(a) (1) creates a statutory exemption
for domestic eavesdropping because the application of that statute “requires
factual findings not made by the trial court”). Likewise, on remand, the trial
court should, if necessary, determine whether the video without the audio is
admissible.

Further processing of this appeal is stayed until the trial court provides
its ruling on the statutory requirement in RSA 570-A:1, II in accordance with
this order. We otherwise retain jurisdiction of this appeal. In light of our
decision, we need not address the defendant’s remaining arguments.

Remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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