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Bar News - February 7, 2003 NH Supreme Court Opinion Summaries INSTITUTIONAL HEALTH SERVICES - CERTIFICATE OF NEED DUGGAN, J. The New Hampshire Health Services Planning and Review Board (board) decided that the Northeast Surgical Care Project (the project), owned and developed by the respondent, Northeast Surgical Care, LLC (Northeast Surgical), was exempt from regulations under RSA chapter 151-C (1996). The petitioner, Portsmouth Regional Hospital (Portsmouth Regional) appealed that decision. The Supreme Court affirmed. All new institutional health services must obtain a certificate of need (CON) from the board before developing or offering certain services within the state, See RSA 151-C:4, I, unless a facility meets the requirements of an exclusion under RSA 151-C:13. Northeast Surgical requested a waiver from CON review pursuant to RSA 151-C:13, I(f), because the projected costs were under the CON thresholds. Portsmouth Regional petitioned to intervene based on the project's effects on Portsmouth Regional's surgical facilities and on the projected costs. The board considered whether certain equipment and real estate costs should be considered in the project costs, and determined that the cost did not exceed the statutory threshold amount. Therefore, the board decided that the project did not require a CON. Portsmouth Regional argued on appeal that the board erred in determining the cost of the project because it failed to include the value of leased real estate. Northeast Surgical argued in response that the board only had to determine whether the construction costs would exceed the threshold amount. Further, Northeast Surgical argued that even if all capital expenditures were to be included, lease payments are an operating cost and not a capital expenditure. The court first considered whether the board could consider only construction costs and not all capital expenditures in determining whether the project was excluded from statutory regulation. The court disagreed that all capital costs had to be considered, and found that the board only had to determine whether a project was exempt under RSA 151-C:13. The court stated that the plain language made it clear that the only consideration in determining whether a facility is excluded from the regulation is whether the construction costs exceed the statutory threshold level. The court further concluded that interpreting all capital expenditures as being included would be overbroad. Thus, the court concluded that the acquisition of real estate in this case is not a construction cost under RSA 151-C:13, I(f).
NEGLECT PETITION DUGGAN, J. The division for children, youth and families (DCYF) appealed the decision of the Superior Court (Hollman, J.) denying its neglect petition against the respondent. The Supreme Court reversed and remanded. The respondent, the biological father of Adam M., was convicted of robbery and terrorizing and sentenced to twelve years in the Maine State Prison. After the Nashua District Court found that Adam's mother was neglecting him, DCYF was given legal custody of Adam, and physical custody was given to his maternal grandmother and step-grandfather. When the couple could no longer care for Adam, he was placed in foster care. DCYF then filed a neglect petition against Adam's father, alleging that he was unable to discharge his parental duties because of his long-term incarceration. See RSA 169-C:3, XIX(c) (Supp. 2001). The district court found that Adam was a neglected child within the statutory definition. On appeal, the superior court determined that Richard was a devoted father who played a role in nurturing Adam, and denied the petition for neglect based on the relationship between the father and son. DCYF argued on appeal to the Supreme Court that the trial court erred because it did not consider important parental responsibilities and numerous factors relevant to determining Richard's ability to fulfill parental obligations. The court reasoned that the Superior Court focused on the positive relationship between father and son, but that it did not consider other responsibilities that a parent owes a child. The court held that contact alone was not sufficient, concluded that Richard is unable to discharge his parental responsibilities, and noted that Richard cannot provide for Adam's physical needs until at least 2008. Though the court commended Richard's efforts, it explained that a finding of neglect under the statute is based upon the inability of the parent to discharge his or her responsibilities to and for the child, which includes more than providing emotional support.
CUSTODY MODIFICATION NADEAU, J. The petitioner appealed an order of the Salem Family Division (Reardon, J.) denying her motion to modify the visitation rights of the respondent, by permitting her to relocate to the Commonwealth of Virginia with their two minor children. The Supreme Court reversed and remanded. After a long-term marriage, the parties divorced. In their uncontested divorce, the parties agreed upon custody, education, support, and visitation of their two minor sons. The parties had joint legal custody of the boys with the petitioner having primary physical custody. The respondent had liberal visitation rights. Three months after the divorce, the petitioner was offered a job out of state. She wrote to the respondent to tell him about her job offer and to discuss with him the possibility of her relocating. She also filed a motion to ask the trial court to modify the respondent's visitation schedule to allow her to relocate with the boys. The respondent objected, and filed a cross-motion asking the court to either maintain the status quo for custody and visitation, or to grant him physical custody of the boys. Evidence showed that the boys wished to remain with the petitioner, that they wanted to move with her, and that they did not wish to live with the respondent. A counselor opined that the boys would not be harmed by the move. The trial court denied the petitioner's motion, finding that the move was not in the minor children's best interests because it would: (1) remove the boys from their present school system; (2) terminate their current counseling relationship; and (3) significantly interfere with their father's visitation and parental relationship with them. On appeal the petitioner contended that the trial court's order was an unsustainable exercise of discretion and an improper modification of custody. In reviewing the trial court's finding for an unsustainable exercise of discretion, the court noted that the trial court's overriding concern in structuring custody and visitation is the best interests of the child. Even visitation by the non-custodial parent must be based on the best interests of the child. The court stated that the first two reasons given in the trial court's decision had no support in the record. The court stated that the third finding was an unsustainable basis for denying the motion because it sought only to enforce the respondent's visitation rights. The court found that the trial court's order lacked any deference to the preferences of the two teenage boys, and that the court issued the order without waiting for the counselor's input. The court concluded that the trial court's decision could not be sustained, and thus reversed and remanded.
BOUNDARY AGREEMENT - QUIET TITLE DALIANIS, J. The State and the respondent own adjacent parcels, originally part of one large tract, and share a common boundary line. The parties' predecessors in interest had entered into a boundary line agreement that did not reference any survey, but that matched a recorded survey of the land. The respondent disputed the location of the boundary, but the State maintained that the boundary was correct. The respondent then cut trees and excavated gravel from the State's portion of the land. The State petitioned for injunctive relief and damages from the encroachment, and the respondent filed a cross-petition to quiet title. The Superior Court (T. Nadeau, J.) relied exclusively on a boundary line agreement of the parties' predecessors in interest to quiet title. The Supreme Court reversed and remanded. The court relied on RSA 472:1, et seq. (1992), which governs the criteria for creating a boundary line agreement, to conclude that the boundary line was unenforceable. The statute provides the mechanism for parties to enter an agreement; requires the agreement to be in writing; and states that there must be a survey with courses and distances. The court disagreed with the respondent that the agreement was invalid because it did not refer to a survey, as the statute only required that the agreed upon boundary line be surveyed and established by courses and distances. The court also disagreed with the state's argument that the agreement should be upheld even if it failed to comply with the statutory formalities. Because the trial court's decision was based solely on the boundary line agreement, the court remanded. DUGGAN, J. dissenting. The dissent agreed that the statute should be followed in establishing a boundary, but disagreed with the majority's conclusion that the failure to follow the statute required an automatic invalidation of the agreement. Because the legislature did not provide an enforcement mandate, the enforcement must be judicially mandated. The dissent would have upheld the agreement, as it would neither defeat the object of the statute nor prejudice the respondent.
SURCHARGE - DISPROPORTIONATE TAXATION NADEAU, J. The plaintiff appealed from an order of the Superior Court (Manias, J.) granting the State's motion to dismiss. The Supreme Court reversed and remanded. The New Hampshire State Prison system operates a commissary where the inmates are able to purchase a variety of items. All goods sold are assessed a 1% surcharge for the maintenance and operation of the commissary. Additionally, in July 1999 the legislature enacted RSA 622:7-b which assessed a surcharge of 5% of the sales price of every item sold. The collected funds were for the victims' assistance fund. The plaintiff, an inmate in the prison system, challenged the 5% surcharge. The trial court dismissed the plaintiff's challenge to the 5% surcharge. On appeal the plaintiff argued that the surcharge: (1) was applied ex post facto and retrospectively; (2) violated his State and federal due process rights; (3) violated his State and federal equal protection rights; and (4) violated New Hampshire's prohibition against disproportionate taxation. The court decided the appeal on the issue of disproportionate taxation. The court looked to the statutory language of RSA 622:7-b and the purpose of the 5% surcharge to hold that the surcharge was a tax. Pursuant to the New Hampshire Constitution, Part I, Article 12, the court had previously required that taxes be proportional and that similarly situated taxpayers must be treated similarly. Pursuant to Part II, Article 5, the court had determined that taxation must be proportionate, reasonable, uniform, and just. Pursuant to Part II, Article 6, the court had concluded that the legislature has broad authority to classify types of property for taxation, but that the court will invalidate a classification if it is unreasonable of if its purpose is to discriminate. The court concluded that the 5% surcharge tax was disproportionately applied and was, therefore unconstitutional.
FIRST DEGREE MURDER - COMPETENCE BROCK, C.J. The defendant appealed his first degree murder conviction. See RSA 630:1-a (1996). The Supreme Court affirmed. The defendant was charged with first degree murder for acting in concert with and aiding two others in strangling the victim to death. The victim's body was recovered from the Merrimack River after one of the accomplices reported it to the police. After the police arrested the defendant, he gave a taped interview in which he described the murder and made incriminating statements. At a hearing to determine the defendant's competency, the State's psychiatric expert determined that although the defendant had a psychological impairment, it did not render him incompetent to stand trial. The psychiatric expert for the defense testified that the defendant's cognitive impairments rendered him incompetent to stand trial. The trial court found that the defendant's cognitive deficits did not render him incompetent to stand trial. At a second competency hearing in which the defendant testified, the court found that the defendant could communicate, could consider his counsel's advice, and could make decisions. Subsequently, a jury found the defendant guilty of first degree murder and found the defendant sane. On appeal, the defendant argued that the Superior Court (McGuire, J.) erred by finding him competent to stand trial and by excluding his expert psychologist's testimony regarding his ability to formulate the requisite mens rea to commit the charged offense. The court considered the two prong test for competency, which requires that the defendant have: (1) a sufficient present ability to consult with and assist his lawyer with a reasonable degree of rational understanding; and (2) a factual as well as rational understanding of the proceedings against him. The court agreed with the trial court that the defendant had demonstrated his ability to consider the advice of counsel and to make his own decisions. The court stated that the evidence supported the trial court's finding that the defendant's account of the murder was "plausible and consistent" and "corroborated by physical evidence and otherwise." The court further concluded that the State's psychiatric expert did not apply an improper competency standard. As to the defendant's argument that the trial court excluded expert psychological testimony on the issue of intent, and therefore that he was deprived of his right to present all proofs favorable, the court found that it is a factfinder's responsibility to determine intent, not the expert's. The court concluded that the trial court did not err by excluding the proferred testimony.
MOTION TO SUPPRESS - CUSTODIAL INTERROGATION - MIRANDA BROCK, C.J. The State appealed orders of the Superior Court (Hollman, J.) granting, in part, the defendant's motion to suppress statements. The trial court ruled that Part I, Article 15 of the New Hampshire Constitution requires the police to inform a suspect, during a custodial interrogation, of an attorney's efforts to contact him or offer assistance in order for the suspect's Miranda waiver to be valid. The Supreme Court affirmed. The defendant willingly accompanied two Nashua Police Department detectives to the police station to answer questions about an investigation involving his stepdaughter. Before leaving his house, the defendant called his wife to tell her he was going to the station. The defendant's wife called and retained an attorney to represent the defendant. After preliminary questioning, the detective gave the defendant a Miranda waiver form, which the defendant reviewed and signed. The detective then asked the defendant if he knew why he was being questioned. In response, the defendant stated that it was because he had molested his stepdaughter. A detective again read the defendant Miranda warnings. During the questioning, the attorney retained by the defendant's wife tried to contact the defendant. He was told that the defendant was being questioned and that the department had a practice of not interrupting interviews unless the client had requested counsel. The defendant moved to suppress statements he made at the Nashua Police Department. The trial court ruled that: 1) the defendant was in custody for the purposes of invoking Miranda; and 2) the police department's failure to inform the defendant of his attorney's efforts to contact him vitiated his waiver of his Miranda rights. The State argued on appeal that the police department's failure to inform the defendant of his attorney's efforts to contact him did not render inoperative his waiver of the presence of counsel. The court considered whether the New Hampshire Constitution requires law enforcement officers undertaking custodial interrogation of a suspect to inform the suspect that an attorney retained on his or her behalf is attempting to contact the defendant. The court concluded that the New Hampshire Constitution, under Article 15, requires a higher standard of protection than does the federal constitution, as interpreted in Moran v. Burbine, 475 U.S. 412 (1986). The court held that when an attorney calls or arrives at a police station and identifies himself or herself as counsel retained for the suspect to an agent of the State in a position to contact the interrogating officers, the interrogating officers have a duty to stop questioning the suspect and inform the suspect that the attorney is attempting to contact him or her. DALIANIS and NADEAU, JJ. dissenting. The dissent stated that the standards imposed by Miranda v. Arizona, 384 U.S. 436 (1966), and by the New Hampshire Constitution sufficiently protect a suspect's privilege against self-incrimination. The dissent believed that the rule adopted by the majority would lead to incongruous and unfair results.
POSSESSION OF CONTROLLED SUBSTANCE - PRETRIAL DISCOVERY DALIANIS, J. The defendant was convicted by a jury of possession of a controlled substance, see RSA 318-B:26, II (1995), and driving after suspension, subsequent offense, see RSA 263:64, VI (1993). The Supreme Court reversed the possession conviction and remanded. A police sergeant stopped the defendant's vehicle after observing suspicious behavior. The defendant did not have a license, gave the officer a temporary registration that was not in the defendant's or the passenger's name, and admitted that he did not know the name of vehicle's owner. The officer learned through checking records that that the defendant's license was suspended and that he had a prior conviction for driving after suspension. The defendant consented to a search. Officers found a wad of cash, an open beer can, a cooler, Camel cigarettes, and, next to the Camels, a red cloth containing cocaine residue. The sergeant determined that the defendant was smoking Camel cigarettes and the passenger was smoking Dorals. The sergeant arrested the defendant for possession of a controlled substance and driving after suspension, subsequent offense. At trial, the sergeant responded that he knew the defendant was smoking Camel cigarettes because the defendant wanted them and indicated they were his. The statement referenced by the sergeant was not disclosed prior to trial, as required by Superior Court Rule 98. On appeal the defendant argued that the Superior Court (Murphy, C.J.) erred by allowing the State to introduce a statement made by the defendant that was not provided to him during pretrial discovery. Further, he argued that there was insufficient evidence to prove beyond a reasonable doubt that he was in possession of a con trolled substance. First, the court addressed the defendant's argument that the evidence was insufficient to support a finding beyond a reasonable doubt that he was in possession of cocaine. The court stated that if the drug was not in the defendant's physical possession when the police found it then the State had to prove constructive possession. The court concluded that a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of being in possession of a controlled substance. Next, the court considered the defendant's argument that the trial court erred in failing to strike the sergeant's testimony regarding the defendant's statement. The state conceded that it should have disclosed the statement, but that nothing in the record showed the State deliberately withheld the information and that admission of the statement did not create prejudice to warrant striking the testimony. The court reasoned that the purpose of the discovery rule was to prevent surprise. In this case, the defendant could not have anticipated the statement's introduction. Therefore, the admission of the statement was highly prejudicial, as it provided critical evidence in the possession case. The court held that the trial court committed reversible error by failing to strike the sergeant's testimony referring to the defendant's alleged statement.
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