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Bar News - July 4, 2003 NH Supreme Court Opinion Summaries Editor’s note: The following are excerpts from the first paragraph of opinions decided by the NH Supreme Court from September to October 2003, substituting for the summaries. Bar News added the head notes. To catch up with decisions that had not been summarized, Bar News will publish these excerpts over the next few months while also publishing the "Supreme Court at a Glance" feature, a guide to cases recently decided by the court. CITIZEN PROSECUTION/MISDEMEANOR The State of NH v. Angela Martineau (Rita Premo, Complainant) BROCK, C. J. This is an interlocutory transfer without ruling from the Berlin District Court (Patten, J.), see Sup. Ct. R. 9, asking what class of criminal actions may be instituted and prosecuted by a citizen without authorization from a prosecuting authority. Because we conclude that New Hampshire common law prevents a private complainant from prosecuting a class A misdemeanor, which is the charge at issue in this case, we do not reach the broader constitutional question of whether private prosecutions by an interested party violate a criminal defendant’s due process rights. SEXUAL ASSAULT / EVIDENCE State of NH v. Steven Newman BROCK, C. J. The defendant, Steven Newman, was convicted after a jury trial in Superior Court (O’Neill, J.) of aggravated felonious sexual assault against a victim younger than thirteen. See RSA 632-A:2, I (1996). He appeals, arguing that the trial court erred when it: (1) ruled that he could not cross-examine the victim about her knowledge of a friend’s recent sexual assault allegations; and (2) allowed a laboratory technician to render an expert opinion about the potential sources of red blood cells found in a vaginal smear. We affirm. MURDER / RECUSAL / EVIDENCE State of NH v. Seth Bader DALIANIS, J. The defendant, Seth Bader, was convicted of first degree murder, see RSA 630:1-a (1996), and conspiracy to commit first degree murder, see RSA 629:3 (1996), in the death of his former wife, Vicki Lynn Bader, following a jury trial in the Superior Court (Murphy, J.). The defendant appeals both convictions and the denial of his motion for a new trial. We affirm. This appeal has a convoluted procedural history. Following his convictions in the superior court, the defendant filed a notice of appeal, which alleged thirteen grounds for error. Subsequent to our acceptance of his appeal, the defendant filed a motion for a new trial in the superior court. We granted the defendant’s motion to remand the case to the superior court so that it could decide the five issues raised in the motion for a new trial. In one issue, the defendant contended that now-Chief Justice Walter L. Murphy(Judge Murphy) should have recused himself from presiding over the defendant’s trial, and he moved to recuse Judge Murphy from presiding over the motion for a new trial. After a hearing, the Superior Court (Murphy, J.) denied the defendant’s motion to recuse. ANTI-MONOPOLY/CONSUMER PROTECTION ACT Michael Guglielmo, Sr. & a. v. Worldcom, Inc. & a. DALIANIS, J. This is an interlocutory appeal from the order of the Superior Court (McHugh, J.) denying the motion by the defendants, WorldCom, Inc., ILD Teleservices, Inc. and ILD Telecommunications, Inc., to dismiss the plaintiffs’ claims for violations of the anti-monopoly statute, see RSA 356:2, :3 (1995), and the Consumer Protection Act (CPA), see RSA 358-A:2 (1995). See Sup. Ct. R. 8. The parties have transferred, and we have accepted, the following question of law: Does the federal filed rate doctrine bar the plaintiffs’ anti-monopoly statute and CPA claims? We answer the transferred question in the affirmative and reverse the denial of the motion to dismiss. We do not address issues briefed by the parties concerning questions we specifically declined. HABITUAL OFFENDER/SEARCH & SEIZURE State of NH v. Daniel Boyle NADEAU, J. The defendant, Daniel Boyle, was convicted of driving while certified as a habitual offender, see RSA 262:23 (1993) (amended 2000, 2001), and disobeying an officer, see RSA 265:4 (1993). On appeal, he argues that the Superior Court (Galway, J.) erroneously denied his motion to suppress evidence obtained during an allegedly unconstitutional seizure. We reverse and remand. TERMINATION PARENTAL RIGHTS In Re Jonathan T. & a. DUGGAN, J. The respondents, Bethany L. and Troy L., Sr., appeal an order of the Cheshire County Probate Court (Patten, J.) terminating the parental rights of Bethany L. over her sons, Jonathan T., Troy L., Jr., and Caleb L., and the parental rights of Troy L., Sr. over his son, Caleb L., pursuant to RSA 170-C:5, III (2002). The respondents argue that the probate court erred in: (1) admitting reports into evidence without requiring the persons generating the reports to be present and available at the termination hearing; (2) failing to consider the respondents’ cognitive and financial limitations in assessing the reasonableness of the State’s efforts to assist them and in terminating the respondents’ parental rights; and (3) allowing expert testimony despite non-compliance with Superior Court Rule 63(G). We affirm. PRIOR SEXUAL ASSAULT EVIDENCE State of NH v. Scott Mitchell NADEAU, J. The defendant, Scott Mitchell, was convicted in Superior Court (Groff, J.) of aggravated felonious sexual assault. See RSA 632-A:2 (1996) (amended 1997, 1998, 1999). On appeal, he argues that the trial court erred in refusing to admit evidence that the victim had previously been sexually assaulted and that judicial proceedings had followed as a result. We affirm. ASSAULT / PREJUDICIAL EVIDENCE State of NH v. Peter D’Amelio DUGGAN, J. Following a jury trial, the defendant, Peter D’Amelio, was convicted of attempted first degree assault, see RSA 631:1 (1996); RSA 629:1 (1996), and reckless conduct, see RSA 631:3, II (1996). On appeal, he argues that the Superior Court (McHugh, J.) erred in admitting into evidence a knife found in his possession at the time of his arrest. We affirm. BREACH OF CONTRACT / TITLE SEARCH Lawyers Totle Insurance Corp. v. David M. Groff, Esq. BROCK, C.J. The defendant, David M. Groff, Esq., appeals from a judgment in favor of the plaintiff, Lawyers Title Insurance Corp., on its claims for breach of contract and negligence. Following a bench trial, the Superior Court (Conboy, J.) ruled that the defendant was vicariously liable for a title search conducted by a third party. We reverse. ZONING APPEAL Joan Heartz & a. v. City of Concord & a. DUGGAN, J. In these consolidated appeals, the petitioners, Joan Heartz, Bruce Calkins, and Robert V. Johnson, II, challenge two Superior Court (Fitzgerald, J.) orders concerning development of a proposed parking lot at 66½ North State Street in Concord. The petitioners argue that the superior court erred in dismissing their claims on jurisdictional grounds for failing to appeal to the Concord Zoning Board of Adjustment (ZBA) prior to their appeal to the superior court. Petitioner Johnson also appeals the superior court’s grant of summary judgment to the intervenor, Professional Realty Corporation (PRC), concerning the use of an easement over his property. We affirm. WORKERS COMP / LIABILITY Appeal OF CNA Insurance Company (NH Compensation Appeals Board) DALIANIS, J. The petitioner, CNA Insurance Company (CNA), appeals a decision of the New Hampshire Compensation Appeals Board (board). The board held that CNA, rather than the respondent, Acadia Insurance Company (Acadia), was liable for the claimant’s, Charmaine Pescinski’s, disability benefits. We vacate and remand. ELDERLY TAX EXEMPTION Hilda Pennelli v. Town of Pelham DALIANIS, J. The defendant, the Town of Pelham (town), appeals from an order of the Superior Court (Hampsey, J.) reversing the town’s partial denial of an elderly tax exemption to the plaintiff, Hilda Pennelli. We affirm. RETROACTIVE CHILD SUPPORT In the Matter of State of NH Ex. Rel. Vickie Reitenour and Wendell Montgomery DUGGAN, J. The respondent, Wendell Montgomery, appeals a decision of the Portsmouth Family Division (DeVries, J.) ordering him to pay retroactive child support dating to the birth of his minor child who was born out of wedlock. We affirm. DRUG POSSESSION State of NH v. Mark Szczerbiak DALIANIS, J. Following a bench trial on stipulated facts, the defendant, Mark Szczerbiak, was convicted of possession of a controlled drug, see RSA 318-B:2, I (Supp. 2001). On appeal, he argues that the Superior Court (Fitzgerald, J.) erroneously denied his motion to suppress evidence obtained during an allegedly unconstitutional search and seizure. We affirm. ARSON / FORENSIC EVIDENCE State of NH v. Eileen Dowdle NADEAU, J. The defendant, Eileen Dowdle, was convicted by a jury of one count each of arson, see RSA 634:1 (1996) (amended 1998), insurance fraud, see RSA 638:20 (1996) (amended 1996, 2001), and reckless conduct, see RSA 631:3 (1996). On appeal, she argues that the Superior Court (Hampsey, J.) erred by: 1) admitting forensic evidence that the State failed to preserve for trial; and 2) failing to grant a mistrial or give sufficient curative instructions. We reverse and remand. LEGAL MALPRACTICE Allan Wong v. Donald M. Ekberg DUGGAN, J. The plaintiff, Allan Wong, appeals an order by the Superior Court (Fauver, J.) dismissing his claims of legal malpractice and breach of contract against the defendant, Donald M. Ekberg. We affirm. PERSONAL INJURY Petition of Dr. Jeffrey Haines NADEAU, J. The petitioner, Dr. Jeffrey Haines, seeks review of a decision of the Superior Court (McGuire, J.) compelling discovery of his medical records. We reverse and remand. UNAUTHORIZED ENTRY Steve Rood & a. v. Charles E. Moore NADEAU, J. The plaintiffs, Steve and Allie Rood, appeal the Milford District Court’s (Drescher, J.) dismissal of their RSA chapter 540-A action against the defendant, Charles E. Moore. We affirm. PERSONAL INJURY / POST-VERDICT MOTIONS Judith Kravitz & a. v. Beech Hill Hospital, L.L.C. & a. DUGGAN, J. The plaintiffs, Judith Kravitz and her daughter, Jane Doe, appeal a ruling of the Superior Court (Mangones, J.) denying their motion for additur, or in the alternative, for a new trial on damages. The plaintiffs maintain that the trial court erred by allowing defendant Beech Hill Hospital, L.L.C. (Beech Hill) to impeach the jury’s verdict by supplementing the record with evidence obtained during its post-trial conversations with the jurors and that the trial court was improperly influenced by this inadmissible evidence. The plaintiffs also argue that the trial court erred by admitting evidence of Doe’s prior consensual sexual activity and by refusing to strike testimony that referred to the race of individuals with whom Doe allegedly had prior consensual sex. Beech Hill cross-appeals, arguing that the court erred in denying its motion to set aside the jury verdict, or in the alternative, for judgment notwithstanding the verdict. Beech Hill also argues that the court erred in permitting Kravitz to amend her writ after the verdict was reached by the jury. We affirm in part and reverse in part. PERSONAL INJURY / DISMISSAL Carol and Gary Allen v. Dover Co-Recreational Softball League & a. DUGGAN, J. The plaintiffs, Carol and Gary Allen, appeal a Superior Court (T. Nadeau, J.) order dismissing all counts of their negligence action seeking recovery for injuries suffered when Carol Allen was hit in the head by an errantly thrown softball. We affirm. CHILD SUPPORT In the Matter of Cheryl Anne Coderre and Paul A. Coderre DALIANIS, J. The respondent, Paul A. Coderre, appeals from the final divorce decree recommended by a Master (Harriet J. Fishman, Esq.) and approved by the Brentwood Family Division (Taube, J.). Heargues that the court erred by: 1) ordering him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to child support under the child support guidelines; 2) failing to adjust his child support obligation downward to account for those expenses; and 3) increasing his support obligation as a substitute for alimony. We affirm in part and reverse in part. MURDER / JURY INSTRUCTIONS State of NH v. James Hall NADEAU, J. The defendant, James Hall, appeals his conviction in Superior Court (Smith, J.) of second-degree murder. See RSA 630:1-b, I (a) (1996). We reverse and remand. PERSONAL INJURY / JURY INSTRUCTIONS Michael Vachon v. New England Towing, Inc. BROCK, C. J. The defendant, New England Towing, Inc., appeals from a jury verdict issued in Superior Court (Brennan, J.). The defendant argues that the trial court erred: (1) by denying the defendant’s motions for non-suit and to set aside the verdict; and (2) when it instructed the jury on the plaintiff’s claim for lost earning capacity. We affirm in part, reverse in part, and remand.
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