|
|
|
 |
Bar News - January 23, 2004
Supreme Court at a Glance ~ December 2003
By: William J. Amann
Criminal
- State v. Nathan T. Poole, No. 2002-765
Dec. 5, 2003
Reversed and remanded.
Defendant appealed his conviction for simple assault under RSA 631:2-a. Defendant argued that the trial court’s response to a jury question constructively amended the complaint to his prejudice. HELD: Because of the particular way in which the state tried the case and the way in which the defendant presented his defense, the defendant was prejudiced when the court instructed the jury that it need not find that the offense occurred on the date alleged.
- Petition of the State of New Hampshire (sentence review decision), No. 2002-753
Dec. 5, 2003
Vacated and remanded.
The State of New Hampshire sought a Writ of Certiorari challenging the jurisdiction of the sentence review division to hear and decide constitutional claims. The sentencing judge did not inform the defendants, pursuant to RSA 651:58, I, that the state could later seek enhancement of the sentence by petitioning the division. In each case the state subsequently sought sentence enhancement. HELD: The court re-affirmed its decision in Petition of Turgeon, 140 N.H. 52 (1995) and held that the division exceeded its jurisdiction when it ruled that granting the state’s petition would violate the defendant’s due process rights.
- State v. Nicholas Allen, No. 2002-732
Dec. 5, 2003
Affirmed.
The defendant appealed his conviction for misdemeanor criminal mischief under RSA 634:2 and argued that his delayed trial violated his right to a speedy trial under the sixth amendment of the United States Constitution and Part I, Article 14 of the New Hampshire Constitution. The court held that the length of the delay did not weigh heavily against the state and that the defendant did not suffer prejudice as a result of the delay.
- State v. Terry Thomas, No. 2002-079
Dec. 9, 2003
Affirmed.
The defendant contended that the trial court erred by failing to conduct a "penetrating and comprehensive" Faretta colloquy before allowing him to proceed pro se at trial and by denying his request for a transcript of his earlier suppression hearing to use for impeachment purposes at trial. HELD: The trial court in this case had sufficient evidence to conclude that the defendant’s waiver was valid. The right to a transcript is not absolute and the court concluded that the denial of the defendant’s request for a transcript of the suppression hearing did not violate the state or federal constitutions.
- State v. Robert A. Tierney, Jr., No. 2002-065
Dec. 19, 2003
Reversed and remanded.
The defendant argued that the trial court erred by (1) denying his motion to sever; (2) preventing him from presenting "evidence about his character for truthfulness" under New Hampshire Rule of Evidence 608 (a); and (3) allowing the state to present expert testimony through a lay witness. HELD: The Court adopted the reasoning expressed in Griffith v. Kentucky, 479 U.S. 314 (1987) and agreed that "new rules for the conduct of criminal prosecutions are to be applied retroactively to all cases state or federal pending on direct review or not yet final with no exception for cases in which the new rule constitutes a ‘clear break’ with the past." Because the state had not attacked the defendant’s general character for truthfulness, the court found no unsustainable exercise of discretion when the trial court denied the defendant’s introduction of character evidence at trial under New Hampshire Rule of Evidence 608 (a). The court found that the testimony of a state police detective was expert testimony and therefore it was erroneously admitted as lay testimony.
- State v. David Michaud, No. 2001-341
Dec. 22, 2003
Affirmed.
The defendant appealed his conviction and argued that the trial court erroneously denied his motion to sever the charges against him. HELD: Applying the new Ramos standards, see State v. Ramos, 149 N.H. 118 (2003), the Court held that although the defendant had an absolute right to sever unrelated charges, such right does not exist to related offenses which are based upon the same conduct, upon a single criminal episode or upon a common plan under New Hampshire Rule of Evidence 404(b).
- State v. Joseph J. Turmel, No. 2003-589
Dec. 29, 2003
Affirmed.
The defendant appealed his conviction for marijuana possession under RSA 318-B:2, I and RSA 625:9, VII. The defendant argued that the motor vehicle stop was not supported by reasonable suspicion and that he was subjected to custodial interrogation without being advised of his Miranda rights. HELD: The Court held that the stop was founded on articulable facts and reasonable suspicion existed for the investigatory motor vehicle stop. Turning to the defendant’s Fifth Amendment claims, the court found that the defendant was not in custody for Miranda purposes, but rather the defendant was briefly detained after a valid, investigatory stop.
- State v. Ian J. McCarthy, No. 2002-774
Dec. 29, 2003
Reversed.
The defendant was convicted of stabbing an unemancipated minor and ordered to pay restitution to the victim’s mother for the lost wages she incurred to care for her son. The defendant argued that the victim’s mother was not entitled to restitution for lost wages under RSA 651:62, III (b). HELD: The Court held that RSA 651:62, III (b) does not provide an avenue of recovery for a minor victim’s mother who suffered loss of income.
- State of New Hampshire v. Chad Evans, No. 2002-287
Dec. 30, 2003
Affirmed.
The defendant was convicted of reckless second degree murder, see RSA 630:1-b, five counts of second degree assault, see RSA 631:2, endangering the welfare of a minor, see RSA 639:3, I and simple assault, see RSA 631:2-a following the death of the daughter of the defendant’s girlfriend. The defendant argued (1) that the Superior Court erroneously gave the jury a false exculpatory instruction, (2) that the evidence on the second-degree murder charge was insufficient and (3) that the court erroneously admitted statements under the excited utterance exception to the hearsay rule. See N.H.R. Ev. 803 (2). HELD: (1) Where the jury instruction permitted, but did not require the jury to infer consciousness of guilt from false exculpatory statements, it was not an improper comment on the evidence; (2) Sufficient evidence was presented for the jury to exclude all rational conclusions except that the defendant was guilty; and, (3) The statements of the victim’s mother were properly admitted into evidence under the excited utterance exception to the hearsay rule because her statements were the product of a sufficiently startling event or occurrence and not a result of reflective thought.
Constitutional
- Hippopress, LLC v. SMG et. al., No. 2002-786
Dec. 8, 2003
Reversed in part and affirmed in part.
The defendants, SMG, the City of Manchester and the Union Leader Corporation, appealed an order of the Superior Court ruling that SMG violated both Part I, Article 22 of the New Hampshire Constitution and the First Amendment of the United States Constitution by not allowing the plaintiff to distribute its newspaper in the Verizon Wireless Arena. The trial court found that SMG’s actions constituted state action. HELD: The Court found no state action and, further, that the distribution contract between SMG and the Union Leader did not transform the arena from a nonpublic forum into a designated public forum. The contract between SMG and the Union Leader was found to be reasonable because it was consistent with SMG’s interest in operating a financial viable commercial arena and because substantial alternative channels of distribution remained open to Hippopress.
- Opinion of the Justices re Request of Governor and Council, No. 2003-799 (appointment of the chief justice of the Supreme Court)
Dec. 19, 2003
Whether RSA 490:1 as amended by 2001 New Hampshire Laws 50:1, violates Part 2, Article 46 of the New Hampshire Constitution. Whether RSA 490:1, as amended by 2001 New Hampshire Laws 50:1, violates the Separation of Powers Clause of the New Hampshire Constitution, Part I, Article 37. The Court asked that it be excused from answering the Governor’s present inquiries, stating in part that it had no authority under Part 2, Article 74 to issue advisory opinions regarding existing legislation. That authority extends only to proposed legislation. In addition, the unusual nature of the private rights involved — because some of the parties could be the justices themselves — the court found that it should be disqualified from reaching the merits pursuant to Supreme Court Rule 38, Canon 3E(1).
Labor
- Appeal of Ann Miles Builder, Inc., No. 2003-122 (New Hampshire Compensation Appeals Board)
Dec. 8, 2003
Affirmed.
The petitioner appealed a decision that the respondent was not an independent contractor, but instead was the petitioner’s employee for purposes of RSA 281-A:II, VI. Petitioner argued that the board erred as a matter of law when it ruled that it had the burden of proving the respondent’s employment status. HELD: The Court held that the employer bears both the burden of producing evidence and the burden of persuasion on all five of the criteria set forth in RSA 281-A: II, VI (b)(1).
- Appeal of Edward Fay, III, No. 2003-150 (New Hampshire Compensation Appeals Board)
Dec. 8, 2003
Vacated in part and affirmed in part.
The Court held that the Board exceeded its authority when it ruled on issues that were not raised at the Department of Labor hearing. However, the Court also held that the Board did not err as a matter of law when it ruled that the petitioner failed to prove that his mental health treatments were a result of his workplace injury and that the board was entitled to reject the uncontroverted testimony of experts because it found that their opinions were not credible.
Insurance
- Stateline Steel Erectors, Inc. v. William Shields et. al., No. 2003-264
Dec. 9, 2003
Reversed and remanded.
Probate
- In Re: Guardianship of Jason Henderson, No. 2002-5787
Dec. 19, 2003
Reversed and remanded.
Domestic
- In the Matter of Gary F. Haller and Dawn Mills, No. 2003-106
Dec. 30, 2003
Affirmed.
Subsequent to a finding of paternity, a paternity test conclusively determined that the petitioner was not the father of Mills’ child. The petitioner requested a refund of the $750 in child support payments he made to the division prior to the paternity test results. HELD: The Court found that the original finding of the petitioner’s paternity was valid until it was judicially modified and therefore petitioner’s financial obligation remained in effect until it was determined that he was not the biological father of Mills’ child.
Civil
- Edward Silva v. Warden, New Hampshire State Prison et. al., No. 2003-196
Dec. 24, 2003
Reversed in part, vacated in part and remanded.
The plaintiff is an inmate of the New Hampshire State Prison who sued the state for civil assault following several strip searches. The Superior Court granted the state’s motion to dismiss Silva’s writ with prejudice. The court held that the plaintiff’s writ sufficiently described harm and thus the trial court erred in granting defendant’s motion to dismiss for insufficient allegations of harm. The trial court also erred by ruling that the plaintiff needed expert testimony to prove alleged emotional damages suffered as a result of the claimed assaults. The trial court dismissed the plaintiff’s case for failure to exhaust administrative remedies. HELD: The Court found that because the plaintiff’s case was dismissed for purely procedural reasons, subsequent judicial review was not precluded but rather deferred until after the exhaustion of remedies, and that this is proper.
- Leif Nilsson v. Joseph A. Bierman, No. 2003-028
Dec. 29, 2003
Affirmed.
The plaintiff was a passenger in a two-car accident. Prior to trial the plaintiff settled with his driver for $25,000. The jury awarded damages in the amount of $170,000 and apportioned 99 percent of the fault to the plaintiff’s driver and 1 percent to the defendant. On appeal the plaintiff asserted that RSA 507:7-e mandated apportioning fault only among parties, not between a non-settling and a settling tortfeasor. HELD: The Court held that for apportionment purposes under Section 7-e, I(b) the word "party" refers to "parties to an action, including. . . settling parties." The plaintiff argued that Section 7-e did not apply when the plaintiff was not negligent. The Court held that Section 7-e provides for apportionment of damages in all actions not only those involving contributorily negligent plaintiffs. See Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 344 (1987). The Court declined to address the plaintiff’s arguments that apportioning fault between the defendant and the plaintiff’s driver violated his constitutional rights because the plaintiff had not preserved those arguments for appellate review. See Weldy v. Town of Kingston, 128 N.H. 325, 334-35 (1986). The plaintiff argued that instead of apportioning fault under Section 7-e, I(b), the trial court should have followed Sections 7-h and 7-i. Following the majority rule, the Court held that the pro tanto credit, set forth in Section 7-h and 7-I, did not apply to the defendant because, under Section 7-e, I(b), he was only severally liable for his proportionate share of damages. Section 7-h and 7-i apply only to defendants who are both jointly and severely liable, not to defendants who are only severally liable. The court noted that Section 7-e was amended in part to protect minimally liable defendants and requiring the defendant in this case to be jointly and severely liable would "reintroduce joint liability for defendants who are less than 50 percent liable," which was the very liability the 1989 amendment to 7-e was intended to eliminate. See Rodgers v. Colby’s Ol’ Place, 148 N.H. 41, 44 (2002).
- Estate of Joshua T. et. al. v. State of New Hampshire, No. 2003-079
Dec. 29, 2003
Affirmed.
The plaintiffs claimed that the New Hampshire Division for Children, Youth and Families negligently caused the suicide of Joshua T by failing to place him in an appropriate foster home. The plaintiffs did not intend to offer expert testimony to support their negligence claim and the state moved for and was granted summary judgment on that basis. HELD: The Court found a jury would have to find that DCYF was a substantial factor in causing the child’s death and that his suicide would not have occurred without that alleged negligent placement. The Court held that the average person lacks the experience, training and education about the complexities of suicide to be able to assess this without expert testimony. Since the plaintiffs had not presented and did not intend to present any expert testimony, the trial court’s decision to grant the state’s summary judgment motion was proper.
- David Dillman v. New Hampshire College, No. 2003-109
Dec. 30, 2003
Affirmed.
The defendant appealed a jury verdict in favor of the plaintiff for breach of an employment contract. The defendant contended that the plaintiff was an at-will employee who could be terminated without cause and that the Superior Court erred in denying its motion for a directed verdict. HELD: The Court found that a reasonable jury could have concluded that the parties’ express agreements constituted a contract for a definite term.
Discipline
- Werme’s Case, No. 2002-719 (Committee on Professional Conduct)
Dec. 19, 2003
Affirmed.
The respondent represented a mother in a case involving allegations of child abuse by the New Hampshire Division for Children, Youth and Families. The mother acting at the direction of the respondent disclosed confidential court records and information regarding a court hearing to the Concord Monitor contrary to RSA 169-C;25, II (2002). The petitioner argued that the statute was unconstitutional as a prior restraint on free speech and as such violated Part I, Article 22 of the New Hampshire Constitution and the First Amendment of the United States Constitution. HELD: The Court found that attorney Werme had viable alternatives to violating the statute, including seeking permission from the trial judge to disclose the information, appealing to the Supreme Court or bringing a declaratory judgment action. The Court held that Werme did not make a good faith effort to determine the validity, scope, meaning or application of the law prior to counseling her client as required under N.H.R. Prof. Conduct 1.2 (d).
Real Estate/Tax
- William Porter et. al. v. Town of Sanbornton, No. 2002-680
Dec. 22, 2003
Affirmed in part and reversed in part.
First, the town of Sanbornton appealed an order of the Superior Court denying the town’s motion for summary judgment that allowed the plaintiffs to proceed on collective tax abatement petitions. See RSA 76:17. Second, the town appealed the rescission of the re-assessment. The Court held that it was proper to allow the plaintiffs to bring a collective abatement petition pursuant to RSA 76:17. However, the Court held that the plaintiffs had not individually or collectively carried their burden of proof by a preponderance of the evidence that they were paying more than their proportional share of taxes and that the town’s 18 percent reassessment was not retaliatory or done in bad faith.
Administrative
- Appeal of Roland E. Huston, Jr., D.V.M., No. 2003-103 (New Hampshire Board of Veterinary Medicine)
Dec. 29, 2003
Affirmed.
The petitioner challenged (1) the board’s denial of his motion to recuse board counsel and (2) hearing counsel’s failure to produce all potentially exculpatory evidence before the hearing. HELD: The Court affirmed its ruling in Appeal of Trotzer, 143 N.H. 64 (1998) and stated that while the appearance of bias might establish a due process violation when a state agency "commingles investigative, accusative, and adjudicative functions," actual bias must be shown. In the absence of actual bias "it is permissible for one assistant attorney general to represent the board in its quasi-judicial capacity and another assistant attorney general to prosecute the case before the board." The evidence claimed to be potentially exculpatory was held to be inculpatory and accordingly, the hearing counsel had no duty to produce these documents.
William J. Amann is a litigation associate with Cleveland, Waters and Bass, P.A., Concord, concentrating primarily in bankruptcy and commercial law.
|
|
