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Bar News - November 5, 2004 Supreme Court at a Glance ~ September 2004 Criminal Aggravated Felonious Sexual Assault Sufficiency of circumstantial evidence. Trial court did not err in not dismissing the indictments for cunnilingus and digital penetration due to insufficient evidence. Although there was no direct testimony, circumstantial evidence provided ample ground for concluding that the defendant's mouth came into contact with the victim's genital area and excludes all rational conclusions, except guilt. Based on the evidence of victim's sensation, the sexual arousal of the defendant, his verbal description of events, and the sperm found inside the victim's vagina, a rational jury could have concluded beyond a reasonable doubt that the defendant used his finger to sexually penetrate the victim. Multiplicitious indictments. The defendant's argument that two indictments should be dismissed as multiplicitious was rejected because he was only convicted of one of the two offenses - the defendant is not entitled to the remedy he seeks because the alleged double jeopardy violation has already been resolved in his favor at trial. Means versus prohibited act. The court held that the element the State needed to prove was that a sexual penetration occurred, while the method by which that alleged penetration occurred merely established the means of committing the prohibited act. The court held the grand jury did not have to agree on the body part or object used by the defendant to commit the penetration. Because the grand jury agreed upon the element of penetration, it is clear that the defendant was convicted of the charged offense. Limitation of cross examination. The court held that the trial court did not err in limiting defendant's right to cross-examine the victim regarding her husband's and the defendant's prior drug use in the apartment where there was no indication that the victim had drunk alcohol or smoked marijuana on these prior occasions. Ineffective assistance of counsel. The court rejected the defendant's claim of ineffective assistance of counsel finding he had not demonstrated that any actual prejudice had occurred. Civil Practice Arbitration Failure to raise a defense before arbitrator. The court affirmed the superior court's finding that the Whitcomb defense was untimely, holding that the defendant cannot predicate error on an issue it failed to bring at trial, in this case before the arbitrator. The court refused to apply a plain mistake analysis. Failure to provide arbitration transcript. Because of the defendant's failure to produce a transcript of the arbitration, the court found it was unable to review the arbitrator's conclusion that the plaintiff had meritorious claims in both tort and contract. Insurance/Negligence Marikar v. Peerless Ins. Co., No. 2003-701, (Accident: inherently injurious.) In the underlying case the petitioner operator of a Montessori school was sued for negligence (count I); assault and battery (count II); and breach of contract (count III) in connection with the petitioner's discipline of a student. The underlying writ alleged that the petitioner engaged in "corporal punishment, ridicule, verbal abuse, deprivation of lunches as punishment, and other forms of discipline in child care that was inappropriate" against the student. The only issue before the court was the negligence count because the petitioner did not argue that the policy covered counts II and III. The trial court granted the respondent's motion for summary judgment finding that there was no "occurrence", which was defined under the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions" finding that "the acts remain outside the definition of an accident because the petitioner's acts were inherently injurious." The supreme court reversed the grant of summary judgment finding that verbal abuse is not certain to result in some injury and that unlike a sexual assault, a punch to the face, or a blow to the head combined with a chokehold, verbal abuse, although unpleasant and often demeaning, is not inherently injurious. The court also disagreed with the trial court that all acts involving some physical discipline, such as making the child stand in a corner, are inherently injurious. The court did not address corporal punishment which the petitioner conceded was not covered by the policy. Insurance DeWyngaerdt v. Bean Ins. Agency, No. 2004-025 (exclusion of coverage) Plaintiff sued the defendant insurance agency asserting that the agency was negligent in failing to advise him that his insurance policy excluded coverage for "wrongful cutting." No special relationship. Because the writ of summons did not allege a special relationship between the agency and Superior Tree, the court affirmed the trial court finding that the agency did not owe Superior Tree any duty beyond that of reasonable care and diligence. Sintros v. Hamon, 148 N.H. 478, 480 (2002). Request for "full coverage". Superior Tree's request for "full coverage," was too broad and too vague to constitute a specific request for the particular coverage of "wrongful cutting." "A request for 'full coverage,' 'the best policy,' or similar expressions does not place an insurance agent under a duty to determine the insured's full insurance needs, to advise the insured about coverage, or to use his discretion and expertise to determine what coverage the insured should purchase." Municipal/School Law Town of Acworth v Fall Mountain Regional School District, No. 2003-791 (articles of agreement for regional school district). Affirmed the superior court's denial of petition to declare an amendment to the articles of agreement of the Fall Mountain Regional School District unlawful. The amendment reapportioned the district's operating and capital expenses among member towns. The court held it was permissible for articles to require each member town to pay for what they use or to allocate expenses in proportion to the resident student population. Personal Injury/ Evidence Carignan v. NH International Speedway, No.2003-407(negligence action) Voluntary assumption of a duty - directing traffic. Because Speedway voluntarily placed its employee on its property to signal potential patrons from Route 106 onto its property, it voluntarily assumed a duty to direct traffic traveling on a public highway, and in doing so, had a duty to act with reasonable care and is liable to the plaintiff for a foreseeable harm resulting from the breach of its duty of care. Causation. Jury could have found employee waived traffic in without being able to see flow of traffic on highway and caused plaintiff's injury, therefore trial court properly denied Speedway's motion for directed verdict. Denial of remittitur. Trial judge did not commit an unsustainable exercise of discretion in upholding the jury award of $1.2 million where plaintiff injured knee and hip, which required immediate surgery and a four-day hospital stay, extensive physical therapy, ultimately total hip replacement surgery, medical bills exceeding $72,000, lost wages over $22,000, probably a second hip replacement, and future medical bills and lost wages. Failure to admit police report. The police officer in addition to recording witness statements, took measurements, prepared a diagram and made observations. Upon completion of his investigation, the officer concluded that "the driver of the motorcycle made a wrong decision in his attempt to pass the RV." The court ruled that this conclusion amounted to a factual finding as contemplated by Rule 803(8)(C) which is admissible unless the sources of information or other circumstances indicate lack of trustworthiness. The supreme court remanded the case against one of the defendants for the trial court to apply a four-factor test to determine admissibility [trustworthiness]: (1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) the level at which the investigation was conducted; and (4) whether the report was made with any improper motive. Estate Law In re Estate of King, No.2003-829 (Missing will) The supreme court affirmed the probate court order declaring the decedent to be intestate because the petitioner failed to prove by a preponderance of the evidence that the decedent's will, never found, was more likely lost than destroyed. The supreme court determined that probate court applied the correct standard on remand by determining whether the petitioner proved by a preponderance of the evidence that the will was more likely lost rather than destroyed and the probate court correctly did not apply a presumption of revocation. Attorney's fees. In will contests, attorney's fees may be allowed if the respondents' primary motive was to benefit the estate as a whole, rather than themselves. The supreme court found that respondents challenged the will for their own benefit in this case and not for that of either the estate or the court, and therefore the supreme court reversed the probate court's award of attorney's fees. Libel Personal Jurisdiction Thomas v. Telegraph Publishing Co.No. 2003-700 (personal jurisdiction; denial of motion to amend) Personal jurisdiction. New Hampshire has specific personal jurisdiction in a libel and slander suit against four Massachusetts defendants who were contacted by and spoke to a Nashua Telegraph reporter who verbatim reported the four defendants' comments. The court ruled that under the Federal Due Process Clause, the exercise of specific personal jurisdiction was proper. Denial of motion to amend writ. The court affirmed the trial court's denial of the plaintiff's motion to amend his "Defamation - Libel and Slander" writ after the statute of limitations had run to add a count for "invasion of privacy - false light". Generally, a court should allow amendments to pleadings to correct technical defects, but need only allow substantive amendments when necessary to prevent injustice. A substantive amendment that introduces an entirely new cause of action, or calls for substantially different evidence, may be properly denied. Invasion of privacy is a new cause of action; as such, absent a showing of injustice, it was within the trial court's discretion to deny the plaintiff's motion to amend his writ. To allow the plaintiff to amend his writ after the statute of limitations had run would unfairly prejudice the defendants and therefore the decision of the trial court is sustainable. Recusal Lorenz v. N.H. Administrative Office of the Courts, No. 2004-552 (recusal not required) Recusal not required of all current and retired supreme court justices who participated in issuing Administrative Order 2004-02 because: (1) petitioners challenge an administrative order in which the justices participated or because (2) their lawsuit names the New Hampshire Supreme Court "as a body . . . as a defendant." Neither basis is a valid ground for disqualification. Justices Dalianis, Duggan and Galway conditionally [see below] disqualified themselves because this is a proceeding in which their impartiality might reasonably be questioned citing Sup. Ct. R. 38, Canons 2A, 3E(1). "Resolution of this appeal thus requires us to interpret and evaluate the conduct and statements of two of our current colleagues. Should the petitioners prevail in this appeal, their litigation could proceed to trial and our two colleagues could be called as material witnesses. Under these unusual circumstances, although this is a close case, we believe that in the interests of justice it is better for us to resolve all doubts in favor of recusal. ... [A]n objective person, fully informed of these atypical facts, might reasonably doubt our impartiality." The court did not rule upon the petitioners' motion to disqualify retired members of the court. Each appellate judge must individually decide whether recusal is required. ("no one judge may, as a matter of discretion, disqualify others"). The recusal was conditioned on there being substitute judges available to sit on the case. In the event that no substitute judge is available, the Rule of Necessity might compel their participation in this case.
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