Administrative Law-fireworks license suspension; due process rights

Appeal of New Hampshire Fireworks Inc; 2003-589
August 30, 2004; Affirmed.

• What due process rights are impacted by the administrative suspension of a NH fireworks license?

Our court concluded due process rights were protected by: a written summary notice to appellant with a summary of the ground of complaint, along with copies of the police reports including extensive reporting by the officers, followed by a two-day adversarial hearing.

Also, this was the sort of in-state sale that would not trigger the federal Commerce clause. The court also noted the suspension here could exceed the life of the license in question.

Administrative Law-DMV-ALS ~ Criminal Law-DWI-ALS

Michael Saviano vs. Director, Division of Motor Vehicles; 2003-0772
August 26, 2004; Affirmed

• Can the implied consent law be triggered when a person is arrested for offenses other than DWI ?

Appellant was arrested for failing to stop for a police officer and then failed the preliminary breath test (0.14% ). He then refused to take the regular breath test. The implied consent law applies when the operator is under arrest for any offense while driving under the influence, not just DWI or like offenses. The other observations made of the operator at the scene were sufficient by themselves and made harmless any misleading comments by the officer about the test.

Criminal-DWI

1. State vs. John Wiggin; No. 2003-628
   August 26, 2004; Affirmed.

• Are motions to suppress and to dismiss properly denied where an officer, who was engaged in an on-going investigation of the sounding of a burglar alarm at an about-to-close restaurant: (a) observes a vehicle pull up to the dumpster at the rear of the building (knowing it does not belong to the owner), (b) approaches the driver, (c) makes typical DWI observations, and (d) the defendant-operator then fails the field sobriety tests?

The court concluded that these circumstances are "case-specific, objective facts supporting a finding that the officer had reasonable articulable suspicion that the defendant had been, was, or was about to engage in criminal activity sufficient to justify the seizure of the defendant".

2. State vs. Kristen Chace; 2003-682
   August 26, 2004; Reversed and remanded.

• Should the trial court dismiss a DWI case, when the prosecutor's pre-arraignment letter: (a) offered a recommendation of the DWI statutory minimum for a plea at arraignment, (b) made no reference to additional, consecutive ALS (Adminstrative License Suspension) penalties, and (c) did promise a tougher recommendation otherwise ?

No. This was a mere non-enforceable offer, made without vindictiveness and without prejudice and did not constitute prosecutorial misconduct. The trial court might have considered lesser remedies, other than dismissal, if appropriate.

Criminal-Stalking

State vs. Frank Simone; 2003-427
August 27, 2004; Reversed.

• Where a stalking restraining order is issued against an individual by the Superior Court, but no statutory authority for the issuance of the order is recited, can that order be used as the basis for a criminal prosecution under RSA 633:3-a, I(c), which specifies only certain statutory orders as a basis for prosecution ?

Where the criminal stalking statute requires the TRO to have been issued under specific provisions of law, a blanket TRO will not suffice.

Criminal-AFSA-joinder of cases

State vs. Thomas Cossette; 2003-142
August 31, 2004; Affirmed.

• Can the admittedly impermissible joinder of AFSA indictments be harmless beyond a reasonable doubt?

Three clusters of Aggravated Felonious Sexual Assault charges were joined on motion of the State, over defendant's objection. The jury convicted the defendant on one cluster, but acquitted on the others.

Joinder here can only be upheld upon a showing beyond a reasonable doubt that it was harmless, as by demonstrating that the other evidence was "of an overwhelming nature quantity or weight". Our court, reviewing the victim's testimony and the corroboration by other witnesses, including a statement by defendant to victim's mother that "something had happened...he knew it was wrong," and the defendant testifying to the sex being consensual with the 15-year old victim, concluded the other evidence was sufficient.

Justice Galway dissented, on the ground this was not "harmless" and constituted a "windfall" for the State.

Criminal-bail commissioners' fee

David Follansbee vs. Plymouth District Court; 2003-473
August 31, 2004; transferred question answered

• Does the bail commissioner's after-hours fee under RSA 597:20 constitute a "purchasing of justice" or a "denial of equal protection"?

No. Using a rational basis test, our court ruled that law was a form of "special accommodation for [defendants'] convenience" and not the "purchasing of justice" or denial of equal protection.

Criminal-MV stop-Anonymous tip

State vs. Christine Sousa; 2003-552
August 26, 2004; Vacated and Remanded.

• In a DWI case, does a mere anonymous tip, without more, constitute "reasonable suspicion" for a constitutionally-sufficient stop of the motor vehicle?

"All over the road" was not sufficient "predictive information" to allow some assessment of the tipster's credibility, nor were there independent pre-stop observations by the officer to build on the tip. The court discussed at some length the several factors to be weighed in a "totality of the circumstances" analysis and remanded the matter to the trial court, noting that a "fact-intensive inquiry" is best handled at that level.

Criminal-Parking Ticket-Sufficiency of notice of ordinance

State vs. Randall Hofland; 2003-265
August 27, 2004; Affirmed.

• Is filing of a copy of a parking ordinance in the City Clerk's Office and publication of a brief description lawfully-sufficient notice, or must the ordinance be posted at the locus in quo?

Defendant received a parking ticket at 4:30 a.m. for remaining in specified location for more than 30 minutes, contrary to the Concord parking ordinance. On direct appeal the court found that filing and publication will suffice. Also, prosecutorial objections at trial did not constitute "obstruction of relevant cross-examination" and there was no factual basis for the trial judge to recuse himself.

Criminal-AFSA-"opening the door"

State vs. Donald Morrill; 2003-654
August 27, 2004; Reversed and remanded.

• Was the trial court correct in ruling that the door had been "opened" by defendant in his cross-examination of the DCYF worker, by its finding that a "misimpression" had been created?

After the victim's recantation, DCYF marked its case as "unfounded' for lack of other substantiation. The trial court initially ruled the worker could not testify the case was closed "uncomfortably" and that she "felt something happened to this child", but later ruled that cross-examination had created a "misimpression" and allowed the testimony. The Supreme Court reviewed the facts, disagreed, and remanded.

Domestic-Restraining orders-jurisdiction over out-of-state noncustodial parent

Heidi Mcnair vs. Ryan McNair; 2003-704
August 30, 2004; Affirmed.

• Do phone calls into NH give a NH court jurisdiction under the long-arm statute in a proceeding under RSA 173-B?

NH courts have jurisdiction under RSA 510:4 (the long-arm statute) where multiple tortious telephone calls were made into NH as here, regardless of RSA 173-B. It is fair and reasonable to require the defendant to defend in NH, even though he was from Texas, because of the State's and Plaintiff's interest in relief and protection for domestic violence victims in NH. An out-of-state default divorce decree without notice does not justify "claim preclusion" here under res judicata or collateral estoppel.

Also, court-to-court communications and whether they can constitute impermissible ex parte communications were also discussed.

Real Property-tax deeds

Gordonville vs. LR1-A Limited Partnership; 2004-023
August 31, 2004. Affirmed.

• When the original owner buys back property lost under a tax deed, are encumbrances of record revived?

In 2000, the original owner of property bought back from the town property lost under a 1997 tax deed.

Our court said that the curative provisions of RSA 80:89, which generally revives encumbrances of record on repurchase by the original owner, did not apply here because the tax deed was dated 1997, prior to the effective date of this provision of law.

A graduate of Harvard College and Boston University School of Law, Laurence J. Gillis has been a prosecutor or criminal defense counsel in New Hampshire since 1972. He currently teaches college courses in criminal law, legal ethics and legal research. The Rye resident also hosts "A Piece of Your Mind," a weekly radio call-in show on WSCA-FM, in Portsmouth.

Tort-Legal malpractice-Summary judgment

Alfred Carbone vs. Nancy Tierney, Esquire; 2003-321
August 30, 2004; Affirmed in part; reversed in part; remanded.

• Is summary judgment available in a legal malpractice case, given that expert testimony is ordinarily required?
• Is any judgment against the attorney to be reduced by the amount of that attorney's contingency fee?
• In a legal malpractice case, does the collectability of damages in the underlying action limit the recovery against the lawyer?

Summary judgment for legal malpractice will not lie where there were still issues of fact and no expert had testified. The amount of the attorney's contingent fee is not deductible from the judgment. Also, non-collectability of the underlying action is an affirmative defense, to be pleaded by the defending attorney.

Justice Nadeau dissented, quoting Hamlet and says the grounds for summary judgment were obvious here: "There needs no ghost, my lord, come from the grave to tell us this."

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