Bar News - March 5, 2004
Supreme Court at a Glance ~ January 2004
By: Robert J. Bradfield
CRIMINAL
- State v. Barka, No. 2002-643; In re Grand Jury Subpoena for Medical Records of Curtis Payne, No. 2002-384; In re Grand Jury Subpoena for Medical Records of Scott Carta, No. 2002-390
Consolidated Cases — Evidence
January 6, 2003: Vacated and Remanded
- Whether, and under what conditions, the State may utilize a subpoena to obtain medical records privileged by RSA 329:26 and by N.H.R.Ev. 503 (in this case to establish "serious bodily harm" element of felony aggravated DWI, RSA 625:11, VI).
- Whether the state can employ RSA 631:6, the physician reporting statute, to compel, by subpoena, disclosure by hospitals or medical providers of privileged medical records when the State believes medical providers have failed to comply with reporting obligations.
Supreme Court establishes rule that any subpoena issued to a hospital or medical provider must also be served upon the individual whose records are sought.
Supreme Court establishes requirement of an in camera review if a party objects to production of medical records and the State can establish a legal right to override the physician-patient privilege.
- State v. Johnston, Jr., No. 2003-232 (Motion to Suppress)
January 8, 2004: Affirmed
- Whether State’s use of the "knock and talk" procedure violated defendant’s right against unconstitutional searches and seizures as to (a) the warrantless entry by police upon the curtilage of defendant’s home; and (b) the voluntariness of defendant’s consent to enter and search his home.
- Whether the Court should adopt a rule requiring police officers employing the knock and talk procedure to advise citizens of their right to refuse consent.
- State v. Small, No. 2002-592 (Stalking)
January 16, 2004: Affirmed
- Whether a single act of following, by an individual who has notice of an active protective order, can constitute the crime of stalking. RSA 633:3-a,I(c)
- Whether defendant, who does not admit the substance of the allegations against him, is entitled to a "legitimate purpose" jury instruction.
- State v. Reno, No. 2003-152 (Motion to Suppress)
January 26, 2004: Affirmed
- Whether arresting police officer had reasonable suspicion that defendant had committed a crime and therefore did not violate the State constitution’s prohibition against unreasonable searches and seizures, where officer relied upon information concerning the owner of the vehicle, including fact of owner’s suspended driver’s license, via radio transmission from police dispatcher who received owner’s license plate number from an anonymous tip, as opposed to the officer’s personal observation of defendant’s vehicle. RSA 263:64.
CONSTITUTIONAL
- State v. Rezk, No. 2002-618 (Evidence)
January 30, 2004: Affirmed in Part, Reversed in Part, Vacated in Part, and Remanded for Resentencing (one partial dissent)
- Whether promises of leniency by police in inducing confession of accused defendant, during custodial interrogation when defendant had no counsel and was detained over five hours, violated NH constitutional prohibition on involuntary confessions.
- Whether trial court’s admission of an involuntary confession was harmless error beyond a reasonable doubt, when viewed against the remainder of the evidence against the defendant.
ADMINISTRATIVE
- Appeal of Laconia School District, No. 2002-670 (School / Labor)
January 30, 2004: Affirmed
- Whether the Public Employee Labor Relations Board (PELRB) lacks jurisdiction to directly review an arbitrator’s original decision on school district’s demand for arbitration when the school district’s collective bargaining agreement with the local education association mandates binding arbitration, and where district’s demand for arbitration and unfair labor practice complaint contained identical substance and requested remedies, and when there has been no subsequent complaint alleging that the arbitrator’s award has not been implemented.
- Bacon v. Town of Enfield, No. 2002-591 (Zoning Variances)
January 30, 2004: Affirmed (3-2, two concurring specially, two dissenting)
- Whether trial court erred because it upheld ZBA decision denying variance to build shed in rural residential district within fifty feet of Crystal Lake, such decision which appellant claimed was arbitrary and without sufficient evidence.
- Whether trial court’s decision was based upon facts not properly in evidence.
- Whether the trial court improperly failed to rule on appellant’s claim that the ZBA decision violated her right to equal protection of the law.
Supreme Court employed its previously established five-part test for the granting of variances.
 Robert J. Bradfield III obtained his J.D. and M.S.E.L Degrees from Vermont Law School in 1989 and practiced in a large Detroit, MI law firm from 1990 to 1995 before returning to New Hampshire; he currently enjoys a general solo practice in Concord concentrating primarily on contract, family, administrative, environmental and labor/employment matters.
|
