Criminal

1. State v. Roldan, No. 2002-743
   July 23, 2004: Affirmed

• Whether the trial court erred by permitting witnesses who had assisted in the State's criminal investigation of defendant's activities to testify as experts at trial regarding the accuracy of transcriptions and English translations of recorded telephone calls in Spanish on cellular telephone lines belonging to the defendant and his associate, and whether the State's pre-trial disclosure of these witnesses, which did not include a summary of each expert's qualifications, was inadequate.

The admission of testimony of Spanish-speaking officers who assisted in the translation of intercepted phone calls on cellular phone lines belonging to the defendant and his associate, and the admission of testimony of a co-conspirator who testified as to the meaning of a number of telephone conversations in Spanish containing slang and code words referring to narcotics, did not violate Superior Court Rule 109, which prohibits any person who has assisted in the preparation of a case from acting as an "interpreter" at the trial thereof, if objection is made. The rule does not apply to translators retained by the parties to translate and verify foreign language testimony and translations, or to witnesses presented by either party offering testimony regarding the meaning of foreign language evidence or the accuracy of foreign language transcripts and translations. In addition, the defendant failed to meet his burden to show that the testimony of the Spanish-speaking officers prejudiced his case notwithstanding that he was not provided a summary of their expert qualifications as required by Superior Court Rule 98 (A)(2)(i).

2. State v. Moore, No. 2003-544
   July 23, 2004: Affirmed

Defendant was arrested at a traffic stop for violating the State's open container law and was then found to be in possession of drugs, which gave rise to the charges involved in this case.

• Whether the law enforcement officer had a reasonable, articulable suspicion to justify his request that the defendant exit the truck in which she was riding as a passenger where the truck had been stopped initially for a defective headlight, the officer detected an odor of alcohol coming from the truck while questioning the driver about her license and registration, the driver insisted that there was no alcohol in the vehicle and that her passenger had not been drinking, and the driver acknowledged consuming one beer and submitted to and passed a field sobriety test.

After the officer had determined that the driver was not the source of the alcohol odor, it was reasonable for him to suspect that it might be coming from some other source, such as a passenger or an open container within the vehicle, and that further investigation was necessary, especially in view of the driver's insistence that there was no alcohol or open containers in the vehicle and that her passenger had not been drinking. It was also reasonable for the officer to conclude that in order to establish the source of the odor, it was necessary to remove the passenger from the vehicle.

3. State v. Hearns, No. 2003-314
   July 15, 2004: Affirmed

Defendant appealed his conviction on four counts of aggravated felonious sexual assault and two counts of simple assault.

• Whether the trial court erred in granting the State's motion to compel him to provide blood and saliva samples for DNA analysis in violation of his privilege against self-incrimination under both the US and NH Constitutions.

The scope of the privilege against self-incrimination is limited to "testimonial" compulsion and does not extend to compelling an accused to provide "real or physical evidence." The difference in wording between the state ("No subject shall … be compelled to accuse or furnish evidence against himself.") and federal ("No person … shall be compelled … to be a witness against himself….") constitutions does not require a different result.

• Whether the trial court erred in denying the defendant's motion for mistrial following improper comments made by the prosecutor during closing arguments, and whether the defendant's objection to those comments were timely to preserve his claim on this issue for appeal.

Although a prosecutor's comment in closing argument was improper, the comment was isolated. The trial court clarified to the jury that the defendant bore no burden of proof in the case, and the evidence of the defendant's guilt was "overwhelming." The comment did not require a reversal of the verdict. Defendant's claim on this issue was preserved for appeal when objections to the prosecutor's statements were raised immediately following the prosecutor's closing argument.

• Whether the trial court erred in improperly instructing the jury on the definition of "household member" under RSA 632-A:2, I(j)(1), and whether there was sufficient evidence to find that the defendant and the alleged victim were members of the same household.

Although the phrase "member of the same household" is not defined in the statute, the defendant's proposed definition, which included spouses but excluded minor children, was inapplicable. The trial court's instruction defining "household members" to include "children who are under parental-type control of a person other than a parent" fairly covered the issues of law and fact. There was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant and the victim were members of the same household.

• Whether the trial court violated the defendant's constitutional right to due process under the New Hampshire Constitution by ruling that he could present alternative source DNA evidence at trial, only if he agreed to a continuance to allow the State to analyze the evidence and question the defendant's witnesses.

The trial court did not impermissibly require the defendant to choose between his constitutional right to a speedy trial and to present all proofs favorable where the defendant filed his motion to present the evidence "just days before the start of trial," when it could have been presented much earlier, negating any need for a continuance.

4. State v. Nadler, No. 2003-835
   July 15, 2004: Affirmed and Remanded

Interlocutory appeal from Superior Court order denying defendant's pretrial motion to dismiss two felony counts for engaging in "unnatural and lascivious" acts.

• Whether, because the alleged acts took place 36 years prior to the indictment when the defendant was a college student and because he thereafter left the State, the State is barred from prosecuting the defendant because the six-year statute of limitations under former RSA 603:1 has expired.

The tolling provisions of the statute, which include "time during which the party charged was not usually and publicly resident within this state," apply here. A "party charged" does not refer to a person who has been accused of a crime and then leaves the jurisdiction to escape prosecution.

• Whether the delay in prosecution, attributable to the alleged victim's not reporting the incidents until shortly before the indictments were issued, violated defendant's state and federal constitutional rights to due process.

As the pre-indictment delay was attributable not to the prosecution but to the alleged victim, it was neither unreasonable nor arbitrary. The defendant did not show that the delay was "a deliberate device employed by the State to gain an advantage over him."

Contract

LeTarte v. West Side Development Group, No. 2003-830
July 23, 2004: Reversed and Remanded

• Whether the plaintiff was entitled to the total contract price of $35,000 under an agreement for his landscaping services, which provided that such amount "shall be paid in increments of not less than One Thousand Dollars ($1,000) [, to] be paid upon the sale of individual house lots located within the … Development," where the defendant failed to pay the plaintiff any amount even though the defendant had sold nineteen house lots over a period of nearly three years.

The plaintiff was entitled to the entire contract price of $35,000 in light of defendant's anticipatory breach arising from its "repeated and unjustified failure" to make any of the first nineteen payments required by the contract. The view of the Restatement (Second) of Contracts, that relief for anticipatory breach cannot be granted until the time for payment arrives, does not apply. Whether future payment is triggered by a specified due date or subsequent events, as here, makes no difference to the analysis.

• Whether the trial court erred in ruling that a claim for breach of the agreement was not ripe because time for performance had not arrived, where the agreement required defendant to convey to plaintiff a house lot within the development, and further provided that plaintiff would have "first choice" of all available lots, that such conveyance "may not be able to be accomplished until such time as the outstanding indebtedness to Philip Rogers Trust is resolved and, thereafter, the lot will be conveyed," that plaintiff "shall take title to the house lot at such a time in such a manner that he receives good and marketable title free and clear of any and all encumbrances," and where plaintiff notified defendant of his choice of house lots and defendant thereafter sold that lot to a third party.

Plaintiff and defendant were not required to wait until the entire indebtedness under the senior mortgage to the trust was resolved, because the agreement stated only that the conveyance "may not be able to be accomplished," not that it shall not occur until the indebtedness was paid. The sale of the house lot to a third party was "a clear manifestation of the defendant's intention not to perform its part of the bargain."

County Government

Linehan v. Rockingham County Commissioners, No. 2003-826
July 16, 2004: Affirmed

• Whether the trial court erred in ruling that the county sheriff did not have authority with respect to non-law enforcement functions, including authority to set standards for the purchase of non-law enforcement goods and services for the sheriff's department, and that the county commissioners have authority (1) to establish county-wide personnel policies and procedures regulating terms and conditions of employment of non-deputy personnel, (2) to make line-item transfers within the sheriff's budget and from that budget into the budgets of other county departments, and (3) to institute a county-wide spending freeze, which freezes expenditures from the sheriff's budget.

Although the county sheriff is a constitutional officer, his duties are not immutable or exclusive (except as prescribed in the Constitution), but are subject to legislative alterations and control. The State Constitution grants to sheriffs the authority to deliver writs of impeachment, but they have no other express constitutional powers. The county sheriff maintains his common law powers, duties and responsibilities as chief law enforcement officer of the county, except to the extent the legislature has modified those responsibilities by vesting authority to manage and control county affairs in the county convention and the county commissioners. Such authority currently includes setting personnel policies and procedures for non-deputy personnel, and making line-item transfers between county departments, including the sheriff's department, and instituting a countywide spending freeze that affects the sheriff's budget. The sheriff must further comply with the commissioners' countywide policies and procedures governing competitive bidding.

The sheriff, on the other hand, has the express authority to set the terms and conditions of employment for deputy sheriffs, so long as the sheriff complies with the overall budget constraints relating to the employment of those persons. In addition, the county commissioners may not directly interfere with the sheriff's and his deputies' performance of their law enforcement duties.

Family Law

In the Matter of Glaude and Fogg, No. 2003-694
July 16, 2004: Reversed and Remanded

• Whether the trial court erred by ordering the respondent to pay child support for his former stepchild whom he did not adopt.

The respondent had no duty to support his stepchild pursuant to RSA 546-A because, upon dissolution of a marriage, absent a valid adoption, the stepparent relationship ceases as well. Equitable estoppel did not require a different result here where the respondent had physical custody of the stepchild for several years following the divorce, and custody and "all financial responsibilities" were later transferred to the petitioner.

• Whether the trial court erred in suspending petitioner's child support obligations for the period from February 2002 to September 5, 2003 (the date of the court's order), where petitioner filed her petition for modification on June 17, 2003 and the respondent was served on June 25, 2003.

The trial court's order violated the clear language of RSA 458-17, VIII and RSA 458-C:3, IV(c), prohibiting the modification of any support order so as to alter any arrearages due prior to the date of filing the motion for modification, and establishing that modification shall be effective from the date of service of the petition upon the respondent. The Superior Court did not have jurisdiction to modify the order pursuant to RSA 546-A:6, allowing modification "where justice requires"; the more specific child support provisions of RSA 458:17 and RSA 458-C:3 control. The dissent argued that justice required modifying the support order in this instance; otherwise, under the majority's holding, petitioner was required to pay child support to the respondent even though respondent no longer had custody of the child.

Landlord/Tenant

1. Bean v. Red Oak Property Management, No. 2004-026
   July 15, 2004: Affirmed

Plaintiff-tenant appealed the District Court's judgment for the defendant-landlord in a small claims action for return of plaintiff's security deposit. Plaintiff failed to provide a transcript of the lower court proceeding.

• Whether the plaintiff was entitled to a default judgment when the defendant failed to show for the first scheduled hearing, even though the plaintiff herself filed a motion to continue at that time.

The record does not demonstrate that the plaintiff requested a default judgment, but in fact filed a motion to continue.

• Whether the plaintiff was entitled to the return of her security deposit because the lease did not authorize the defendant to retain it, and where in any event she left the apartment clean and undamaged and it was rented within three days after she moved out.

Because the plaintiff failed to provide a transcript of the lower court hearing, the Court was required to assume that the evidence was sufficient to support the result reached by the lower court.

2. White Cliffs at Dover v. Bulman, No. 2003-454
   July 16, 2004: Affirmed

• Whether the trial court erred when it held that the statutory presumption of retaliation under RSA 540:13-b was available to the defendant-tenant.

Tenant was not entitled to the statutory presumption of retaliation because the plaintiff-landlord received no notice of an alleged violation of a regulation or housing code within six months prior to its instituting an action to evict the tenant. Service of a Notice to Quit does not constitute instituting a possessory action for purposes of the statute.

• Whether the trial court erred in holding that the landlord's eviction proceeding was not retaliatory in light of several complaints made by the tenant about her living arrangement (including smells in the apartment and difficulty in accessing the dumpster for garbage disposal due to her severe arthritis) during the three-year period prior to this eviction action.

Landlord's possessory action was not retaliatory but had a legitimate basis in view of (i) the lease requirement that tenant place her garbage in the dumpster, (ii) landlord's repeated requests to tenant that she remove her garbage instead of placing it in the hallway or in the laundry room, (iii) tenant's refusal to comply with the requests, and (iv) complaints from other tenants about where she placed her garbage, and the unsafe and unsanitary conditions it created.

• Whether the trial court erred when it held that the landlord had made reasonable efforts to accommodate her disability and, therefore, had not violated the federal Fair Housing Amendments Act, 42 USC § 3601 et seq. (2000) (FHAA).

Landlord's offers of accommodation – which included removing her garbage during inclement weather and attempting to arrange a pickup schedule when she began placing the garbage in the hallway, and placing railings on both sides of the stairs leading into her building –were reasonable and not in violation of the FHAA. Tenant refused to cooperate with the landlord in these efforts. Moreover, the FHAA requires only that a landlord provide a reasonable accommodation for tenants, not ideal accommodation.

Municipal

Verizon New England v. Rochester, No. 2003-572
July 16, 2004: Affirmed in part, Vacated in part, Reversed in part, and Remanded

• Whether RSA 72:23, I(b) allows the defendant-municipality to tax the plaintiff-telecommunications services provider, that has obtained licenses from the defendant-city for the placement of its poles, wires, cables and other equipment on city-maintained highways, for its use of those public ways.

Although pole licenses do not ordinarily constitute a property interest that is taxable as real estate, the rights of the plaintiff under its license agreements with the city constituted more than an intangible right to use the city's public ways, and accordingly were subject to properly assessed real estate taxes under RSA 72:23, I(b). Under the plain language of RSA 231:163 (1993), the city may unilaterally change the terms and conditions of its license agreements with the telecommunications services provider in order to implement the standards set forth in RSA 72:23, I(b), as required by the public good.

• Whether the municipality's proposed tax under RSA 72:23, I(b) violates the equal protection rights of the telecommunications services provider under both the state and federal constitutions.

Because RSA 72:23 does not involve a suspect classification such as race, creed, color, gender, national origin or legitimacy, or affect a fundamental right, the question of whether the plaintiff's right to equal protection has been violated must be examined in light of the rational basis test, under which a law is presumed valid and will be sustained if the classification is rationally related to a legitimate state interest. In applying this test, a trial court may properly consider whether differences between the telecommunications services provider and gas, cable, and electric companies that utilize the city's public ways justify varying treatment by the legislature.

• Whether the city's amendment of the telecommunications services provider's pole licenses is consistent with the public good.

A measure or act is in the public good if it is not forbidden by law and is to be reasonably permitted under all of the circumstances. Because RSA 72:23, I(b) requires the city to amend the plaintiff's pole licenses, the amendments are required by the public good.

• Whether the trial court erred in granting in part the plaintiff's petitions for abatement on the basis that its real estate interest in the city’s public ways has no value and that the city's methodology in determining market value was flawed.

To be successful in a petition for tax abatement, a taxpayer must prove that its property is assessed at a higher percentage of fair market value than the percentage at which property is generally assessed in the municipality. While it is possible that a flawed methodology may lead to a disproportionate tax burden, the flawed methodology does not by itself prove disproportionality.

Social Security Benefits

In the Matter of Angley-Cook and Cook, No. 2003-514
July 16, 2004: Vacated and Remanded

• Whether the lower court erred in ordering the respondent to pay $659 per month under the child support guidelines while refusing to credit monthly payments of $762 in Social Security retirement dependency benefits received by the petitioner on their child's behalf.

(Case of first impression) For purposes of determining a non-custodial parent's child support obligation under RSA 458-C:2, II, the parent is entitled to a credit equal to the Social Security retirement dependency benefits received by the custodial parent. Such benefits are to be considered "gross income" to the non-custodial parent when calculating child support. The dissent argued that whether such benefits are to be considered for purposes of the child support guidelines should be left to the discretion of the trial court and not mandated by a judicially created per se rule.

Tort

Sweeney v. Ragged Mountain Ski Area, No. 2003-719
July 15, 2004: Reversed and Remanded

Plaintiff brought a negligence claim for injuries resulting from a collision on a run designated solely for snow tubing.

• Whether the lower court erred in granting defendant's motion to dismiss on the basis that the "sport of skiing" under RSA 225-A:24 includes snow tubing.

Nothing in the definitional or policy provisions of the statute "clearly expresses the legislative intent" to prohibit a snow tuber from recovering for injuries sustained while sliding down a run used exclusively for snow tubing.

Zoning

Shopland et al v. Town of Enfield, No. 2002-812
July 15, 2004: Reversed and Remanded

• Whether the Superior Court erred in vacating the decision of the Zoning Board of Adjustment denying a variance to the plaintiffs.

The Superior Court must consider whether the case should be remanded to the Zoning Board of Adjustment to allow further evidence and proceedings at which the parties may address the unnecessary hardship standard for an "area" variance established in Boccia v. City of Portsmouth, 151 NH __ (decided May 25, 2004). The lower court had applied the less restrictive standard established in Simplex Technologies v. Town of Newington, 145 NH 727; it needed also to consider the Boccia factors. Two justices dissented, arguing that Boccia had been wrongly decided and should not apply here.

James T. Lombardi counsels and represents clients in the areas of business law, real estate, employment law and estate planning. He has degrees from Yale University and Boston College Law School. His office is in Manchester.

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