THE STATE OF NEW HAMPSHIRE
LACONIA DISTRICT COURT BELKNAP COUNTY

STATE V JEAN ALLAN

DOCKET # 09-CR-4147

MOTION FOR CLARIFICATION ATTACHED TO PETTION TO SUBPOENA DUCES TECUM ROBERT J MAC LEOD, DHA, DIRECTOR, OFFICE OF FORENSIC EXAMINIER, STATE OF NEW HAMPSHIRE TO PROVIDE DOCUMENTS AS DESCRIBED HEREIN, AND TO APPEAR PERSONALLY AS WITNESS TO TESTIFY IN HIS CAPACITY AS DIRECTOR/SUPERVISOR RSPONSIBLE FOR THE COMPETENCY REPORT ISSUED BY THE OFFICE OF FORENSIC EXAMINERS ON OCTOBER 13, 2009, AND THAT IS MATERIAL TO THE RESTORATION HEARING SCHEDULED FOR DECEMBER 20, 2010

NOW COMES, Jean E. Allan aka Allan Sovik, [fka Jean E. Quinn, Jean E. Vorisek and Jean E. Vorisek Quinn], pro se defendant, in re the above captioned matter, and in further support of this Motion for Clarification states as follows:

  1. On October 4, 2010 defendant filed a Motion Pursuant to NH Rules of Evidence Article VII. Opinions and Expert Testimony Rules 702-705, Disclosure of Facts or Data Underlying Expert Opinion.
  2. Material to the Motion, among other things, is the request that the Court Order, from the bench, pursuant to NH Rules of Evidence 705 that "the expert[s] will be required to disclose the underlying facts or data on cross examination."
  3. On October 6, although defendant was able to travel thousands of miles to be present, none of the State’s local witnesses were present. In fact, as the Court noted NO WITNESSES FOR THE STATE WERE PRESENT. The hearing was rescheduled to December 20, 2010.
  4. Just prior to defendant’s case being called, State’s Prosecutor offered two choices for the defendant to consider. One was to agree to a status quo of the case for an undetermined period going forward; and, two, for the defendant to request that she subpoena the experts responsible for the October 13, 2009 Report, upon which the May 5 Order of the Court relied upon to declare defendant ‘not competent’ to stand trial.
  5. On the horns of a dilemma, the defendant chose the second offer, and that is what was relayed to the Court by the Prosecutor, at the October 6, 2010 procedural hearing.
  6. Thereafter, on October 15, 2010 defendant, after hearing no response from her Ocotber 7, 2010, letter of request to Robert J. Mac Leod, Director of the NH Office of Forensic Examiners, to allow defendant’s request for voluntary discovery, defendant filed the above captioned Petition, on October 15, 2010; and Supplemental Motion with attached affidavit of financial condition, on October 26, 2010.
  7. Subsequent to those filings, and in preparation for the scheduled December 20, 2010 Restoration Hearing, defendant, as a pro se agent, began to research her constitutional rights, both state and federal, with respect to the Confrontational Clause.
  8. After a review of several New Hampshire Supreme Court cases, and US Supreme Court cases, defendant determined that she needed to file this instant Motion for Clarification.
  9. The first issue of Clarification is whether the subpoena requested becomes a ‘judicial’ one.
    1. The adjective "judicial" means "ordered or enforced by a court... belonging to or appropriate to a Judge or the judiciary... " WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1223 (1961). It describes an act involving the exercise of judgment or discretion, as distinguished from a mere ministerial act. BLACK'S LAW DICTIONARY 759 (rev. 5th ed. 1979). Therefore, a judicial subpoena issued under the statute is one ordered or enforced by the court upon a showing of probable cause.
    2. And, has the thresh hold issue of ‘probable cause’ been met, if the subpoena were to be a ‘judicial’ one?
  10. And further, the need for Clarification lies in DELAWARE v. FENSTERER, 106 S. Ct. 292, 474 U.S. 15 (U.S. 11/04/1985), and the US Supreme Court’s interpretation of the Confrontation Clause: "Noting that "[the] primary interest secured by the Clause is the right of cross-examination," 493 A. 2d, at 963". The defendant’s October 4, 2010 Motion raises this issue.
  11. Court's longstanding recognition that the "literal right to 'confront' the witness at the time of trial . . . forms the core of the values furthered by the Confrontation Clause." California v. Green, 399 U.S. 149, 157 (1970). Cases such as Ohio v. Roberts, 448 U.S. 56 (1980), and Dutton v. Evans, 400 U.S. 74 (1970), gave rise to Confrontation Clause issues "because hearsay evidence was admitted as substantive evidence against the defendants." Tennessee v. Street, 471 U.S. 409, 413 (1985). Cf. Bruton v. United States, 391 U.S. 123 (1968).
  12. As the Court stated in Davis, supra, at 315, "[confrontation] means more than being allowed to confront the witness physically." Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may "effectively . . . emasculate the right of cross-examination itself." Smith v. Illinois, 390 U.S. 129, 131 (1968).
  13. It would appear to this pro se that requiring her to issue her own subpoena on the State’s Expert witness for the scheduled December 20, 2010 hearing would be such a ‘restriction’; whereas, a ‘judicial’ subpoena would not be.
  14. By the Court requiring that the defendant serve her own subpoena it might "limit the scope or nature of defense’s cross-examination." "The Court has recognized that "the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but [also] . . . allowed to impeach, i. e., discredit, the witness." Davis, 415 U.S., at 316." The NH Office of Forensic Examiners may be more responsive to a ‘judicial’ subpoena that one from a pro se defendant.
  15. The Court further opined that "The main and essential purpose of confrontation is to secure {Page 20} for the opponent the opportunity of cross-examination.'" Id., at 315-316 (quoting 5 J. Wigmore, Evidence ? 1395, p. 123 (3d ed. 1940) (emphasis in original)). Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination."
  16. In New Hampshire v Allen Eason, 1990.NH.69 , 577 A.2d 1203, 133 N.H. 335, the Court found that "both the right to due process and the right to produce all favorable proofs are found in Part I, Article 15 of the New Hampshire Constitution. N.H. CONST. pt. I, art. 15; see State v. Castle, 128 N.H. 649, 651, 517 A.2d 848, 849 (1986). . In order to establish a violation of due process under Part I, Article 15, "a defendant must show that the testimony he was precluded from introducing would have been material and favorable to his defense in ways not merely cumulative of other evidence." Adams, 133 N.H. at 826, 585 A.2d at 857." Defendant believes that she has already made a showing that if agents of the Office of New Hampshire Forensic Examiners were to be cross examined by her after producing the responsive documents, she would be able to impeach the Report through cross examination; and, most likely show the court that the Report is inadmissible on its face.
  17. Pertaining to the subject of the subpoena request, the Director of the NH Office of Forensic Examiners, Coombs, 149 N.H. at 319-20 may be used as a precedent. The NH Supreme Court, "In holding that the admission of the blood test and the certifying analyst's testimony did not violate the State Constitution, we stated that "cross-examination of a certifying scientist can effectively substitute for the right to confront the actual analyst." In this instant request the Director is the appropriate person to subpoena as he does have control over all the responsive documents, and employees.
  18. Whether the October 13, 2010 Report will be considered ‘testimonial evidence’ the NH Supreme Court stated that, we believe that the Court's decision in Davis requires a case-by-case approach. See Davis, 126 S.Ct. at 2277-78; see also People v. Stechly, 870 N.E.2d 333, 363 (Ill. 2007) (Crawford and Davis make clear that determining whether statement is testimonial must be made on a case-by-case basis); cf. United States v. Brito, 427 F.3d 53, 61 (1st Cir. 2005) (decided before Davis) (determining whether statements made during 911 call are testimonial "require an ad hoc, case-by-case approach"), cert. denied, 126 S.Ct. 2983 (2006). Therefore, whether the October 13 Report would be considered testimonial evidence is up to the Court’s discretion.

    19. WHEREAS, for all of the reasons cited above, defendant requests that this Court Order;

      1. Clarification as to whether the subpoena duces tecum at issue herein would be classified as a ‘judicial’ one.
      2. And, if not then does the subpoena duces tecum cause a constitutional restriction to defendant’s rights under the confrontational clause.
      3. And, for any relief that the Court can find to allow the discovery requested in the subpoena duces tecum to go forward on schedule.
      4. And, for any other relief that is just and mete.

Respectfully Submitted:

Jean E. Allan aka Jean E. Allan Sovik, [REDACT]

(603) 581-6183 Dated: October 29, 2010

Certification of Delivery

Defendant Allan aka Allan Sovik hereby certifies that she hand delivered a true copy of this Motion to State’s Prosecutor Libby @ Bristol Police Dept, Bristol NH, on this 29, Oct 2010

[This Page Last Updated on October 31, 2010]