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Bar News - November 9, 2001 NH Supreme Court Summaries CRIMINAL – EXCULPATORY TESTIMONY The State of New Hampshire v. Jason King Nadeau, J. The defendant appeals his conviction of criminal threatening, conspiracy to commit simple assault and criminal trespass. The defendant alleged the trial court violated his constitutional rights to present all proofs favorable by barring relevant exculpatory testimony of his co-venturer and brother, Christopher King. The supreme court affirmed. A group of people including the defendant, Christopher, Wendell Trombley and Michael Wentworth went to the home where the relevant events took place. A State witness testified that he saw all four men standing "just inside the doorway," and that they were yelling and angry. There was further testimony that Christopher removed a baseball bat from his pocket and made threatening comments and gestures. At trial, the defendant denied ever being inside the victim’s home and also denied ever having a plan to commit any crimes with the other three men. At a pretrial motions hearing, defense counsel indicated his intention to call Christopher to the stand to buttress the defendant’s position that he never entered the victim’s home. The court indicated its concern regarding Christopher’s right against compelled self-incrimination and allowing him to answer questions without his attorney. During trial, the defendant called Christopher to the stand. Defense counsel requested that the court ask Christopher whether or not he wished to assert his Fifth Amendment rights. The court refused, stating that he would not allow Christopher to waive his Fifth Amendment privileges and accordingly excused him from the stand. The defendant asserts that Christopher would have testified that the defendant did not enter the house, that he did not brandish a bat, and that there was no plan to commit assault. The State argues that Michael Wentworth and the defendant testified that the defendant did not enter the victim’s home. Wendell Trombley offered this same account via his probable cause hearing testimony, which was in evidence. Further, Michael and Wendell recounted that there was no plan or agreement to assault or injure anyone that evening. The supreme court concluded that Christopher’s testimony would have been only cumulative of this other testimony. The supreme court also concluded that the court erred when it sua sponte asserted the privilege against self-incrimination on the witness’s behalf. Nevertheless, because this testimony would have been only cumulative, it did not offend the defendant’s constitutional rights. CRIMINAL – EVIDENCE – MOTION IN LIMINE The State of New Hampshire v. Kenneth Munson Nadeau, J. The defendant appeals his jury conviction on one count of first degree murder, arguing that the superior court erred in: (1) precluding cross-examination of a State’s witness regarding a court order finding her incompetent to stand trial; and (2) instructing the jury on accomplice liability when, according to the defendant, the indictment only charged him as a principal. The supreme court affirmed. The defendant, Michael Gourlay and Leslie Noonan were all indicted on first-degree murder charges. The State negotiated a plea agreement with Noonan whereby she would enter pleas of guilty to conspiracy to commit murder and to hindering apprehension in exchange for testifying against the defendant and Gourlay. Under the agreement, Noonan would have served a seven-and-one-half to fifteen-year sentence on the conspiracy charged, and a two-and-one-half to seven-year sentence on the hindering apprehension charge. After the plea agreement was negotiated, the superior court granted a motion to find Noonan incompetent to stand trial. Subsequently, the State and Noonan entered into a use immunity agreement with respect to Noonan’s testimony. Prior to the defendant’s trial, the superior court issued an order finding Noonan competent to testify. Subsequently, the State filed a motion in limine to exclude evidence that Noonan had been ruled incompetent to stand trial because, according to the State, the evidence was irrelevant and its prejudicial effect outweighed any probative value in that it would confuse jurors. The defendant objected, arguing that the ruling that Noonan was incompetent to stand trial placed her in a better position for release from custody than she would have been under the plea agreement, and, therefore, it was relevant to establish her bias in favor of the State. The superior court granted the State’s motion, but specifically noted that the defendant would be permitted to cross- examine Noonan regarding both the plea agreement and the grant of use immunity. The supreme court concluded that any inquiry into the incompetency ruling had only minimal probative value, and the risk that it would confuse the jury was substantial. Thus, the trial court properly exercised its discretion to exclude inquiry into the incompetency ruling. The supreme court also rejected the defendant’s argument that it was error for the trial court to instruct the jury on accomplice liability where the indictment charged both that the defendant was aided by two others in the commission of the crime, and that he strangled the victim. WORKERS’ COMPENSATION – PERMANENT IMPAIRMENT Appeal of Louis Cote (New Hampshire Compensation Appeals Board) Dalianis, J. The petitioner appeals a New Hampshire Compensation Appeals Board (board) decision regarding his permanent impairment award. The supreme court vacated and remanded. In February 1985, the petitioner injured his back while working as a towel machine operator for the respondent, James River Corporation. On June 9, 1997, Dr. James Forbes reported that the petitioner had reached maximum medical improvement and assigned him a ten percent whole person impairment rating based on Table 75 of the American Medical Association’s Guide the Evaluation of Permanent Impairment (Guide), which is within the range of motion model section of the Guide. On October 29, 1997, Dr. Bruce Myers prepared a report on behalf of the petitioner. After reviewing the petitioner’s medical records and performing a physical evaluation, Dr. Myers evaluated the petitioner’s permanent impairment rating at twenty percent based upon the range of motion model in the Guide. The DOL found that the petitioner was entitled to a ten percent permanent impairment award at the compensation rate of sixty percent of his average weekly wage. The petitioner appealed to the board for a de novo hearing. The board heard testimony from the petitioner, Dr. Myer and Dr. Gerald DeBonis. Dr. Debonis testified on behalf of the respondent. He had not examined the petitioner, but testified that based upon his review of the petitioner’s medical records, the injury model should have been used in determining the petitioner’s permanent impairment, thus contradicting Dr. Myers’ opinion. Dr. DeBonis testified that according to the injury model, the petitioner was entitled to a permanent impairment rating of five percent. The supreme court concluded that even assuming that the petitioner is correct that a physical examination is required to make a permanent impairment assessment, it is within the board’s discretion whether to accept that assessment when it has another expert opinion that contradicts the evaluation. The supreme court rejected the petitioner’s argument that the board erred in setting the date of the maximum medical improvement as June 1997, the month Dr. Forbes prepared his report, for purposes of computing his average weekly wage. The supreme court also rejected the petitioner’s argument that he reached maximum medical improvement upon receiving the 1993 occupational therapy report. The supreme court held that the petitioner is entitled to compensation at the sixty-six and two-thirds percentage rate because the legislative intent was that the sixty percent compensation rate applies only to injuries that occur after February 8, 1994 and his injury occurred in 1985. The supreme court concluded that the board erred in denying the petitioner’s motion for rehearing to which he attached a permanency impairment evaluation by Dr. Myers using the injury model. TAX – CHARITABLE EXEMPTION Appeal of the City of Laconia Dalianis, J. The defendant appeals a New Hampshire Board of Tax and Land appeals (BTLA) decision granting a charitable tax exemption to property owned by the plaintiff, the Taylor Home (Home). The supreme court affirmed. The Home operates a large elderly housing complex in Laconia, including independent living, assisted living and nursing care facilities. Residents pay entrance fees and monthly fees. The Home sought a tax abatement for tax year 1996 and a complete exemption for tax year 1997, with an alternative claim for an abatement for tax year 1997. The BTLA denied the tax abatement claims, but granted the full tax exemption. The BTLA ruled that all aspects of the Home’s operations are tax-exempt under the terms of the original legislative charter granted in 1907. The supreme court concluded that the BTLA’s ruling that the Home is a "charitable" organization was neither unreasonable nor unlawful based upon several factual findings the BTLA made to support its conclusions. The City contended that the Home’s property is not used and occupied directly for its charitable purpose. The City alleged that the Home imposes entry fees that average well over $100,000 and requires residents in the independent living units to pay monthly fees of between $500 and $1000. The City also asserted that the Home’s services are not offered at rates substantially below market rate and that relatively few of the Home’s residents receive financial assistance. The record did not support those assertions. Even if true, the City’s allegations would not necessarily disqualify the Home for a charitable tax exemption. The supreme court held that the BTLA did not err in granting the Home a charitable tax exemption. JUVENILE – RIGHT TO A JURY TRIAL In re Jeffrey C. Dalianis, J. The juvenile appeals a district court decision finding that RSA 169-B:19, III and III-a (Supp. 1999), which authorize the confinement of juveniles to adult facilities without a jury trial, are constitutional. The supreme court vacated the dispositional order and remanded. Three juvenile delinquency petitions were filed with the district court alleging that Jeffrey C., then sixteen years old, had committed one count of first-degree assault and two counts of criminal threatening. The court entered a finding of true on the first-degree assault petition. On the criminal threatening petitions, the court entered a finding of true on one count and found that the juvenile committed the lesser-included offense or reckless conduct on the other petition. Prior to the dispositional hearing, the juvenile filed a motion arguing that he could not be committed to the house of correction because he was not afforded a jury trial. The court denied his motion and sentenced him to the house of correction for a total of twenty-four months, with six months stand committed, nine months suspended and nine months deferred. The court ordered that the juvenile be held at the Youth Services Detention Unit and transferred to the house of correction upon his seventeenth birthday, which occurred six days after the dispositional hearing. On appeal, the juvenile asserts that RSA 169-B:19, III and III-a violate his right to a trial by jury pursuant to Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. The supreme court held that RSA 169-B:19, III and III-a are unconstitutional to the extent that they authorize commitment of juveniles to adult correctional facilities without first affording them the right to a jury trial. The supreme court rejected the State’s argument that juveniles facing imprisonment in adult correctional facilities are not entitled to jury trials because juvenile proceedings are fundamentally different from adult criminal trials. The supreme court also rejected the argument that the statute does provide the juvenile with the right to obtain a jury trial because it permits a juvenile to petition the court to be tried as an adult and thus have his case dealt with in the same manner as any other criminal proceeding. PROPERTY – ADVERSE POSSESSION - PRESCRIPTIVE EASEMENT Marilyn Billings McNamara & a. v. Robert J. Moses & a. Duggan, J. The defendants appeal the superior court’s award of damages and penalties for the unlawful cutting of trees on a lot owned by the plaintiffs. The supreme court affirmed. The plaintiffs and the defendants own property and reside in a residential subdivision. Since 1977, the defendants have used an unpaved roadway, Eagle Rock Drive to access their lot. Plot plans depict the access to the defendants’ lot to be a shared driveway connecting the lot with Colonel Wilkins Drive. The driveway is steep and difficult to use during the winter; consequently, since 1977, the defendants have used an unpaved roadway, Eagle Rock Drive. Until approximately 1998, the defendants and other residents of the subdivision believed Eagle Rock Drive was located within the subdivision’s common land, which is owned by the Eagle Rock Estates Association (association). When the plaintiffs bought their lot, they were informed, and therefore believed, that Eagle Rock Drive was located on the common land that abutted the rear of their property. After a proposal to pave Eagle Rock Drive made at an association meeting, the plaintiffs researched the location of Eagle Rock Drive and discovered that it traversed their lot. They shared their discovery with the other association members. In response to a query from another landowner at the meeting, Moses indicated that the association members had adverse possession of the roadway. The plaintiffs subsequently wrote a letter to the defendants granting permission to use Eagle Rock Drive for the time being, but urging them to upgrade their deeded driveway and to begin using it instead. The letter also stated that the plaintiffs would not agree "to pave the roadway under any conditions." The plaintiffs later discovered a workman employed by the defendants cutting trees along the roadway on their property. The workman indicated that he was preparing the road for further work at the request of the owner. McNamara told the workman that the property was hers and that she had not given permission to cut the trees. The following Sunday the plaintiffs returned from a weekend away to discover that the defendants had hired a contractor who had regraded the roadway and widened it. The defendants’ widening effort included the felling of at least twelve of the plaintiffs’ birch and pine trees that did not interfere with passage over the roadway. The plaintiffs brought an action in superior court to enjoin the defendants from accessing their lot by way of Eagle Rock Drive and to obtain damages and penalties for unlawfully cutting trees on the plaintiff’s lot along the roadway. The court concluded that the defendants had a prescriptive easement to use the roadway to access their lot, but that cutting trees on the plaintiff’s property in an effort to widen the roadway had been an unreasonable use of the easement. The court awarded the plaintiffs compensatory damages of $1200, the market value of the trees cut in the widening and penalties of five times that amount, $6,000 for a total of $7,200. The supreme court rejected the defendant’s arguments that the court erroneously admitted McNamara’s testimony as to the value of the felled trees and that the court erred in awarding damages based on speculation or approximation of the value of the trees. The supreme court held that RSA 227-J:8, which provides a penalty for cutting down trees without the owners’ permission and which was in force at the time of the events alleged by the plaintiff, was properly invoked. The supreme court also concluded that ample evidence in the record supported the trial court’s finding that the defendants willfully caused the cutting of trees on the plaintiff’s property, thereby amply justifying a multiplier at the low end of the range specified in the statute. CRIMINAL PROCEDURE – UNLAWFUL DETENTION – CONSENT SEARCH – EXCLUSIONARY RULE The State of New Hampshire v. Dorian Hight Nadeau, J. The defendant appeals his conviction for possession of a controlled drug in violation of RSA 318-B:2 (1995). The defendant challenges the denial of his motion to suppress evidence obtained during a consent search conducted following a traffic stop. The supreme court reversed and remanded. The defendant, an African-American male, was pulled over by a Chesterfield Police Officer for speeding and having a defective taillight. Two Caucasian passengers accompanied the defendant in the vehicle. The officer asked the defendant to produce his driver’s license and registration, which he did. After determining that the defendant’s license and registration were valid, the officer returned to the defendant and asked him to step out of the vehicle to answer some questions. At this time, the officer still had possession of the defendant’s license and registration. The officer twice asked the defendant to state his place of origin and his destination. The defendant responded that he had come from Boston, where he and his passengers had been "hanging out" and that he was going to Vermont. The officer, indicating that he was concerned the defendant had picked up drugs in Boston, asked him for permission to search the vehicle for drugs. The defendant consented to the search, which yielded no contraband. The officer then asked and was given permission to pat the defendant down for weapons and to search his person and his wallet for drugs. The officer found a container that held a small amount of marijuana and a package of rolling papers. The two passengers were not searched. On appeal, the defendant argues that the officer unlawfully detained him longer than necessary to write a traffic ticket, and, therefore, his subsequent consent to search was "tainted" by the unlawful detention. The supreme court concluded that there were no intervening circumstances that would purge the taint of the unlawful detention and support the conclusion that the consent was an act of free will. In fact, the seamless transition from the valid traffic stop to the unlawful detention and subsequent consent and the officer’s continued possession of the defendant’s license and registration strongly suggested that defendant’s consent was not an act of free will independent of the unlawful detention. Finally, the officer – a Caucasian – had just accused the defendant of drug trafficking and had not informed the defendant that he had a right to refuse to consent.
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