 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - March 18, 2005 Supreme Court At-a-Glance: February 2005 By: Compiled by Gretchen Swanz CRIMINAL State v. Ainsworth The defendant went to the home of his former wife and fired a gun at her through her window. He then went to his mother’s home, where he fired at two police officers. He was convicted of two counts of attempted murder, one count of reckless conduct, and one count of attempted first-degree assault.
The trial court did not err in failing to give a jury instruction on self-defense because the defendant did not object contemporaneously to the jury instructions provided, thus failing preserve the issue for appeal. It was also not error to deny the defense access to the officers’ personnel files when the defense only alleged that the files might have some bearing on the self-defense theory. The defendant must establish a reasonable probability that the files contain material, relevant information to even trigger an in camera review of the files. The admission of the 911 tape was permissible because its probative value as to the defendant’s intent outweighed the potential prejudicial impact. The trial court acted within the bounds of its discretion in denying a motion for mistrial because the prosecution’s statements in closing argument were supported by the evidence. In re Juvenile 2004-0469 A juvenile’s dispositional hearing after adjudication was recessed to permit the juvenile probation/parole officer to secure a residential placement for him.
RSA 169-B:16, V requires only that a hearing be held within 21 days of the adjudicatory hearing, and does not require completion or prevent a recess in the hearing. State v. Hannon The defendant was charged with and convicted of numerous counts of discrete sexual assaults against a juvenile, including several "pattern" charges of aggravated felonious sexual assault.
Because different evidence was required to prove each of the discrete offenses, as well as the "pattern" charge, and proof of the "pattern" charge would not sustain a conviction for the other offenses, the indictment scheme did not violate the defendant’s right to be free from double jeopardy. Based on this, the jury could not be unfairly prejudiced because each charge was distinct. The defendant had adequate ability to prepare his defense because a "pattern" charge by its very nature is not required to specify each specific predicate act giving rise to the "pattern" offense. State v. MacInnes The defendant was convicted of felony criminal threatening with a firearm based upon the following facts: he walked through an apartment parking lot and walked past the victim, scanning him from head to toe, and asking if he had a problem with him. He took off his shoes and put down his cigarettes and attacked the victim. After a fight, the victim told the defendant to leave. The defendant pulled out a gun and pointed it at the victim, asking if wanted the defendant to shoot him. The victim and his friend ran into an apartment, and later when they emerged in to the hallway, they saw the defendant coming at them with his arm raised and a dark-colored object in his hand, threatening to kill them.
Holdings: Rule 609 of the New Hampshire Rules of Evidence explicitly states that a witness can be impeached by prior convictions. Here, the victim-witness’s guilty pleas had not yet been accepted, and therefore he had not yet been convicted of the offenses that defense counsel wanted to introduce for purposes of impeachment. The trial court also did not err in denying the defense’s request for a directed verdict because there was sufficient evidence in the record at trial to defeat his theory of self-defense. In addition, because there is no case addressing whether the act of pointing a gun at an individual constitutes deadly or non-deadly force in a self-defense claim, the Court ruled that it was not plain error to decline to direct a verdict. The trial court’s instructions were proper and no curative instruction was necessary where the court instructed the jury to ignore counsel’s statements of the law if they differed from the way the court had stated it. The State’s comments in closing regarding self-defense did not relate to the acts for which he was charged but to the subsequent acts in the hallway of the apartment building. Finally, the trial court did not abuse its discretion in giving a deadlocked jury instruction, and based on the record, the denial of the motion for mistrial was not in error. CONTRACT A & B Lumber Co., LLC v. Vrusho et al. The plaintiff brought an unjust enrichment action against the owners of property in Northwood, after having entered into a contract with their son, who lived on the property, to build a barn and riding arena on the property. The son never made any payments on the contract, and twice entered into a stipulation acknowledging the debt. The defendant owners of the property were never parties to the original contract or to the stipulations acknowledging the debt.
Holding: Upon a de novo review of the facts, the court concluded that the statute of limitations is not tolled by the son’s promise to pay where the parents were not parties to the original contract, nor his subsequent acknowledgement of the debt, and where they themselves had never acknowledged the debt. CORPORATIONS Durham v. Durham et al The plaintiff was one of four shareholders in Sunset Ranch Camp, Inc. Each of the shareholders was also a director and officer of the corporation. The plaintiff brought suit against the defendants in their capacity as shareholders, officers and directors, but not against the corporation itself, when he was excluded from management, and for other actions depleting the value of the corporation’s property.
The Supreme Court reversed the trial court’s dismissal of the plaintiff’s direct action against the defendant, determining that where there are only two sets of shareholders at odds in a closely-held corporation, the requirement of proceeding first with a derivative action might be overly burdensome and may not serve any beneficial purpose to the corporation. The Court therefore remanded this portion of the case for the trial court to use its discretion to determine whether a direct action, taking into account all the factors, was appropriate. The Court upheld the trial court’s dismissal of the plaintiff’s request for access to corporate records as moot, as the records had been produced upon order in response to interrogatories. Because the documents were produced under order, and not under RSA 293-A:16.04(a), the plaintiff could not recover attorney’s fees and costs for their production under RSA 293-A:16.04(c). FAMILY In re Juvenile 2003-604-A et al A father was found to have abused his three sons based upon the testimony of a child protective worker, who testified about the content of interviews he conducted without videotaping them.
Because the interviews conducted by the child protective worker were conducted on the grounds of a private school, the interviews were not held in a public place, and therefore, the recording requirements of RSA 169-C:38 do not apply and were not violated. The Court declined to address the remaining issues because they were based upon an assumption that the statute was violated. In the Matter of Kosek and Kosek The petitioner, Roberta Kosek, and respondent Michael Kosek shared legal custody of their children, while the petitioner had primary physical custody. She wanted to enroll the children in religious education classes, but the classes conflicted with the respondent’s visitation schedule. The children were enrolled anyway, and the respondent brought a motion for contempt, which was granted by modifying the visitation schedule.
Distinguishing between awards of custody and awards of visitation, the Court determined that where the parties share legal custody, and the petitioner failed to argue that the change to the visitation schedule was not in the children’s best interest, it was not necessary for the trial court to find explicitly that the change was in their best interest. The punishment of changing the visitation schedule for the children did not alter the nature of the proceeding which was a civil proceeding designed to compel the petitioner to obey its orders. In the Matter of Nyhan and Nyhan The respondent, William Nyhan, appealed an order following remand regarding division of property. Specifically, the petitioner, Joyce Nyhan, was to receive 45 percent of the proceeds from the sale of respondent’s Office Environments of New England stock.
The Court relied upon the text of its remand instructions contained in In the Matter of Nyhan and Nyhan, 147 N.H. 768 (2002), which only instructed the court to determine whether interest was warranted to determine that the trial court had not erred; the issue of offsets of expenses paid was not a matter to be decided. In addition, the trial court’s numerical calculation was not erroneous when it was supported in the record by the identical calculations of the parties’ experts. The Court did not determine whether the respondent was entitled to a hearing upon the motion prohibiting dissipation of the assets, but did determine that the respondent had ample opportunity to address the motion in the remand hearing, and thus the trial court was within its discretion to grant the petitioner’s motion and order the respondent to pay within 10 days. INSURANCE Catholic Medical Center et al. v. Executive Risk Indemnity, Inc.
In order to "give notice," as required by the insurance policy, the notice must be received in order to be effective. Because of the special nature of claims-made policies, failure to give timely notice forfeits coverage as a matter of law, even without proof of prejudice to the insurer. ZONING Vigeant v. Town of Hudson The plaintiff was denied a variance from the road setback requirements and a special exception for a temporary encroachment into a wetland buffer zone by the Hudson Zoning Board of Adjustment. The multifamily dwelling that the plaintiff sought to construct on the property was a permitted use for the property, which was zoned as a business district. The Superior Court vacated the ZBA’s decision.
Under the first factor in Boccia, that is, whether an area variance is needed to enable the applicant’s proposed use of the property given its special conditions, it is implicit that the proposed use must be reasonable. The proposed project is presumed to be reasonable if it is a permitted uses, as in this case. Under the second factor, there must be no reasonable way for the applicant to achieve the reasonable use without a variance, considering the relative expense of available alternatives. It is immaterial to consider alternative uses in the context of an area variance. Gretchen Swanz is a Senior Compliance Services Advisor with Integrity Interactive Corporation of Waltham, MA, a provider of Web-based corporate ethics and compliance training programs. Previously, she was Assistant Vice President at Manulife Financial, and a law clerk at the NH Superior Court. She is a graduate of the University of Notre Dame Law School and Williams College. She is admitted to practice in New Hampshire, Massachusetts, and Connecticut. |
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
