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Bar News - March 4, 2005 Supreme Court At-a-Glance: January 2005, part II These summaries, compiled by Kelleigh L. Domaingue, cover opinions issued by the court in the second half of the month of January 2005. Summaries of opinions issued earlier in January were published in the Feb. 18 issue of Bar News . FELONIOUS SEXUAL ASSAULT State v. Francis Kepple The defendant, Francis Kepple, was convicted of two counts of felonious sexual assault, one count of criminal solicitation, and one count of endangering the welfare of a child. The defendant unsuccessfully moved to suppress a tape recording of a conversation between him and the victim and thus appeals the convictions, arguing that (1) the state wiretapping statute violates the Supremacy Clause of the Federal Constitution because it authorizes electronic surveillance for offenses not specifically enumerated in Title III; (2) the one-party intercept was unlawful since the felonious sexual assault charge did not involve any danger to the victim's life, limb or property; and (3) that the tape should have been suppressed since the state attempted to gather evidence for offenses not designated by the authorization. The Supreme Court affirmed the Superior Court, holding that (1) communications in which one party consents to have the conversation recorded are not protected from interception under Title III; (2) federal law does not apply to the interception, so the 'life, limb or property' analysis is inapplicable; and (3) statements made by the defendant on the tape recording were solely related to the felonious sexual assault charges, and not the other indictments. FELONIOUS SEXUAL ASSAULT State v. John Sweeney The defendant, John Sweeney, appeals convictions on charges of aggravated felonious sexual assault, and felonious sexual assault, arguing that the Superior Court erroneously denied several of his motions, including the right to fire his attorney, and failed to engage in a colloquy with him regarding waiving his privilege against self-incrimination. The New Hampshire Supreme Court reversed and remanded on the defendant's right to fire his attorney, holding that since the Superior Court held that he had no right to fire the attorney, he could have assumed that he had no choice but to continue with appointed counsel. Since the trial court did not make further inquiry when the defendant asked if he could fire his trial attorney, the Supreme Court held that there was no way of knowing if the defendant's waiver was knowing, intelligent and voluntary. As such, the New Hampshire Supreme Court directed that the defendant's convictions be set aside, and that the case be remanded for further proceedings. It should be noted, however, that the Court addressed the defendant's other motions and arguments, and concluded that they were largely without merit. REAL ESTATE Frank Van Der Stock v. Wayne Van Voorhees The plaintiff/seller of a parcel of real estate brought an action against the defendant/buyer upon the purchase and sales agreement, and under the NH Bad Check Statute, for stopping payment on a check for the purchase price, and refusing to complete the transaction. The defendant/buyer counterclaimed, inter alia, for fraud and misrepresentation, as the plaintiff failed to inform the defendant/buyer that he had previously applied for a building permit for the property that was denied. After deciding that the plaintiff's appeal was timely since the plaintiff properly waited for all issues in the case to be finally decided, the New Hampshire Supreme Court held that the trial court properly denied the plaintiff's summary judgement motion, which argues that the defendantcould not claim reasonable reliance upon the plaintiff's statements where the purchase and sales agreement contained the language "Seller makes no representations as to land use law or regulations." The Court held that such language would not put a reasonable person on notice that he could not rely upon the specific representation made in this case. The Court did, however, vacate the trial court's award of fees, reasoning that the defendant's counterclaims were causes of action and not established rights, and must be litigated in order to obtain relief. The Court further held that since the defendant did not prevail on his counterclaims, the award of costs must be vacated to give the trial court the opportunity of reconsidering it, but emphasized that such an award lies within the sound discretion of the trial court. INJURY State v. Kevin M. Armstrong While the defendant, Kevin M. Armstrong was being arraigned at the Derry District Court, he ran from the courtroom in an attempt to escape custody. A police officer who attempted to apprehend the defendant was injured during the chase when he fell down a flight of stairs. The defendant later pled guilty to the escape charge, and agreed to pay restitution for the officer's medical bills. Though the state initially moved to amend the defendant's sentence to remove the restitution provision due to lack of information regarding the officer's bills, the Court later granted a motion to vacate the order granting removal, upon receipt by the state of the total of the medical bills for the injured officer. The defendant then appealed, arguing that the injury to the officer was not a "direct result" of the crime as required by RSA 651:62 (III). The Court disagreed, however, and held that the injuries suffered by the officer in his attempt to apprehend the escaping defendant were suffered as a direct result of that escape. The defendant was therefore held liable for the resulting economic losses of the officer - in this case, his reasonable medical bills. CRIMINAL MISCHIEF State v. Wade Hudson Defendant contractor, after a brief exchange with a homeowner regarding tardiness, sped away from the job site, damaging the lawn and a small shrubbery in the process. The defendant was subsequently charged with and convicted of criminal mischief. The defendant appealed, arguing that there was insufficient evidence to prove that he damaged the property of another, since the state was required to prove pecuniary loss. The New Hampshire Supreme Court affirmed the decision of the District Court, holding that the criminal mischief statute is structured so that more serious variants of criminal mischief are defined in terms of pecuniary loss. The defendant, however, was charged with the least serious variant under RSA 634:2 (III). Under this section, the State merely had to prove that the defendant "recklessly damaged the property of another." The Court then held that the testimony of the aggrieved party, coupled with that of the officer, was sufficient for the trier of fact to infer that the yard had been damaged, and that it had value. The Court thus concluded that there was sufficient evidence supporting the conviction. About the Editor: Kelleigh L. Domaigne is an attorney with Devine & Nyquist in Manchester. She is a graduate of Vermont Law School and became a member of the New Hampshire Bar in 2004. |
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