Bar News - October 17, 2003
Supreme Court at a Glance - September 2003
Criminal
- State v. Macelman, No. 2002-617 (motion to suppress)
Sept. 2, 2003
Affirmed
- Whether "exigent circumstances," "emergency," "emergency aid," or "community care taking" in exceptions existed to justify warrant-less search of occupants of automobile.
- Supreme Court adopts 3-part Mitchell standard to assess "emergency aid" exception.
- State v Ayer, No. 2000-513 (first degree murder; mistrial)
Sept. 26, 2003
Reversed and remanded
- Whether a criminal defendant has a constitutional right to proceed pro se in absentia after jury has been empanelled.
- Whether trial court's requiring defendant to proceed represented by counsel for two days of trial, contrary to defendant's specific request to represent himself, should afford defendant a new trial.
- Whether trial court's denial of defendant's motion to proceed pro se in absentia was "structural defect" or mere "trial error."
- Whether evidence consisting of partially recorded, post-Miranda interrogation will be admitted at new trial.
- Whether trial court's dismissal of 32 prospective jurors who claimed undue economic hardship violated juror selection statute or defendant's constitutional right to the trial by jury of peers.
- Whether trial court's denial of defendant's motion to recuse all judges who typically preside in Hillsborough County (South) Superior Court - because of defendant's threat to harm court personnel - violated defendant's due process rights.
- State v. Knapp, No. 2002-132 (DWI; admission of out-of-state "Abstract of Driver History Record")
Sept. 26, 2003
Affirmed
- Whether trial court's admission of New Jersey "Abstract of Driver History Record" without a raised seal was adequately authenticated under New Hampshire Rule of Evidence 902.
- State v. Goss, No. 2002-445 (motion to suppress)
Sept. 29, 2003
Reversed or remanded (4-1, one dissent)
- Whether search warrant for residence should not have been issued because supporting affidavit contained information obtained from two prior searches of defendant's trash bags.
- Supreme Court adopts 2-part "expectation of privacy" analysis from Katz v. U.S., 389 U.S. 347 (1967) as applicable to New Hampshire Constitution.
- Whether defendant exhibited an actual expectation of privacy in his trash because he placed it in black plastic bags with the expectation that it would be picked up by authorized personnel for eventual disposal.
- Whether society is prepared to recognize defendant's expectation as reasonable.
- State v. Mason, No. 2002-525 (sexual assault, witness tampering)
Sept. 29, 2003
Reversed and remanded
- Whether the evidence was sufficient to sustain the jury's verdict.
- Whether trial court committed reversible error by failing to sever sexual assault chargers from second degree assault and witness tampering charges.
- State v. Gonzalez, No. 2002-474 (sexual assault)
Sept. 30, 2003
Affirmed
- Whether trial court committed harmless error evidenced by admitting testimony of two lay witnesses regarding the tendency of sexual assault victims to later recount or deny abuse.
Civil
- Berliner v. Clukay, No. 2002-481 (RSA 227-J, timber trespass; damages for unlawful harvesting of more than 5,000 trees from 70 acre tract)
Sept. 30, 2003
Affirmed
- Whether counsel's chambers discussion with trial court judge directed at persuading judge to utilize a proposed jury instruction without more, constitutes a "specific, contemporaneous objection" sufficient to preserve the issue for appeal.
- Whether defendant preserved for appeal issue of whether jury's damage award for loss of recreational use of property could be based solely on plaintiff's dismay at the harvested condition of his land.
Probate
- Estate of Hallett, No. 2002-346 (prenuptial agreement)
Sept. 26, 2003
Reversed and remanded
- Whether prenuptial agreement should be set aside on account of duress, undue influence, insufficient financial disclosure, and lack of effective independent counsel.
Worker's Compensation
- Appeal of Woodmansee, No. 2002-154 (RSA 281-A; reduction in benefits from temporary total disability to diminished earning capacity)
Sept. 29, 2003
Vacated and remanded
- Whether insurer met its burden of proof to demonstrate a change in condition [under RSA 281-A:45] sufficient to reduce benefits from temporary total disability to diminished earning capacity.
- Whether change in condition necessary to justify reducing or terminating benefits need be a change in claimant's physical condition or a change in claimant's earning capacity.
Municipal
- Balke v. Manchester, No. 2002-469 (RSA 485:14; fluoridation of public drinking water)
Sept. 30, 2003
Affirmed
- Whether RSA 485 requires that a public hearing be held and voter approval obtained in municipalities in addition to the City of Manchester, which are serviced, at least in part, by Manchester Water Works.
Administrative
- Conservation Law Foundation v. NH Wetlands Council, No. 2002-282 (wetlands permit issued to New Hampshire Department of Transportation)
Sept. 12, 2003
Reversed and remanded (3-1, one dissent)
- Whether New Hampshire Wetlands Council Rule 302.04(a)(7) requires permit applicant to document existence of vernal and seasonal pools in every case.
- Whether wetlands permit applicant adequately addressed possibility of alternative traffic handling designs.
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Tom Hildreth practices corporate law, telecommunications law, franchise law, and immigration law with McLane, Graf, Raulerson & Middleton, Manchester. |
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