Bar News - January 18, 2013
NH Supreme Court At-a-Glance - December 2012
By: Summarized by Mary B. Cloutier
Carleton v. Balagur, No. 2012-061
Dec. 21, 2012
Bukk Carleton and Richard Balagur (“RB”) formed MTS in 1995. RB owned 400 shares, Adrienne Balagur (“AB”) owned 100 shares, and the trustee for Bukk Carleton’s daughters owned 500 shares. Carleton, LLC (“Carleton”) eventually purchased the trust’s shares. In May 2004, Carleton brought an action against MTS and RB to, among other things, dissolve MTS. In January 2005, AB successfully moved for leave to file an election to purchase shares in lieu of dissolution. Following the trial court’s ruling on the value of Carleton’s ownership interest, the court granted a motion to terminate Carleton’s rights and status as a shareholder of MTS and to consider Carleton a creditor of MTS. Soon thereafter, the court granted Carleton’s request for a security interest. On July 26, 2009, the trial court ordered that the election to purchase Carleton’s shares be accomplished within 90 days. This ruling was affirmed by the Supreme Court on May 13, 2010. On June 7, 2010, MTS filed a notice of intention to adopt articles of dissolution. Carleton objected, asserting that the notice was not timely filed.
- Whether the trial court erred in its application of RSA 293-A:14.34 and in failing to enforce its order making Carleton, LLC a secured creditor.
- Whether the trial court erred in failing to balance the competing interests of the parties.
- Whether Adrienne Balagur is estopped from avoiding her election to purchase Carleton, LLC’s shares of MTS.
In September 2011, the Supreme Court affirmed the trial court’s finding that the notice of intention to adopt articles of dissolution was timely filed. Carleton then moved to vacate and set aside the articles of dissolution filed by MTS, arguing that AB’s election to purchase Carleton shares was irrevocable and that shareholders could not validly authorize the later filed articles of dissolution. Carleton also filed a motion for an accounting of MTS and a renewed motion to enforce its creditor status. Carleton maintains that the trial court’s orders on “fair value” and on creditor status are now the law of the case and remain unaffected by the attempt to dissolve MTS. The trial court denied the motion but agreed a full accounting should occur.
Carleton first argues that the court’s order making it a secured creditor was not issued pursuant to RSA 293-A:14.34(e) and, thus, RSA 293-A:14.34(g) could not have voided the order. It also contends that the order establishing it as a secured creditor is a final order that could not be altered or vacated. The Court reviewed this issue de novo. The Court determined that once the articles of dissolution were filed under RSA 293-A:14.34(g), the order under RSA 293-A:14.34(e) no longer had any force or effect. The order granting creditor status to secure Carleton’s payment of shares was rendered moot because, in the absence of AB’s election to purchase, it had no practical significance.
Carleton next argued that RSA 293-A:14.34 does not constrain the trial court’s authority to issue equitable orders and that the court should have balanced the competing interests of the parties. The Court concluded that RSA 293-A:14.34(g) does not grant equitable authority once articles of dissolution have been filed pursuant to that subsection.
Lastly, Carleton argued that AB is equitably and judicially estopped from avoiding her purchase of Carleton’s shares. The Court concluded that under the plain language of the statute, equitable estoppel cannot be used to circumvent dissolution and that Carleton cannot avoid application of RSA 293-A:14.34(g) by asserting judicial estoppel.
Barry C. Schuster and Eric G. Derry, of Schuster, Buttrey & Wing, of Lebanon, for the petitioner. Geoffrey J. Vitt, of Vitt & Associates, of Norwich, Vermont, for the respondent.
State v. Bell, No. 2011-461
Dec. 21, 2012
Dover police went to the defendant’s apartment to investigate a noise complaint. After being told to “come in” they found the defendant lying on the floor. He appeared “confused and disoriented.” The defendant engaged in a “lengthy discussion” with officers when asked to produce identification. His speech was slurred, he was sweating, and his eyes were darting from side to side. The officers indicated they would be on their way after identification was produced, and the defendant eventually produced identification. An officer observed a clear plastic bag containing irregularly shaped pink pills and, upon taking the bag, observed that the pills were, in his training and experience, consistent with ecstasy. At some point in this encounter, an officer turned off the defendant’s music, which was “at an unreasonable level.”
- Whether the superior court erred in denying defendant’s motion to suppress evidence.
The defendant argues he was seized when the officers said they would be on their way if he produced identification and that they lacked reasonable suspicion for such seizure in violation of his State and Federal Constitutional rights. The Supreme Court assumed without finding that the defendant was seized when the officers conditioned their leaving upon his producing identification. However, this limited seizure was justified based upon reasonable suspicion that the defendant was “disturbing the peace.” Turning off the music did not eliminate reasonable suspicion, as reasonable suspicion can relate to past as well as present or future criminal activity.
The defendant also argued that the seizure of the pills did not fall under the plain view doctrine. The Supreme Court found that the circumstances considered as a whole were sufficient for the officer to have probable cause to believe the bag contained illicit drugs.
Brianna M. Sinon, assistant appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Jeffrey S. Cahill, senior assistant attorney general, for the State.
State v. Furgal, No. 2011-322
Dec. 21, 2012
The defendant was found guilty of second-degree murder of Christopher Vydfol. The defendant was at a party in Merrimack where a guest’s iPod went missing. The defendant refused to empty his pockets and brandished a knife. Vydfol helped persuade the defendant to put away the knife, a fight erupted, and some guests attempted to throw the defendant over the porch railing. Vydfol held onto the defendant to prevent his fall. The altercation moved to the driveway. At some point, Vydfol put his arms around the defendant and said none of the guests were going to do anything. The defendant once again pulled out his knife. Vydfol told him to put it away, and the defendant told Vydfol to “get off” him. The defendant felt Vydfol’s hands on his shoulders, heard the sound of metal dragging across concrete, and thought he saw someone approach with something in his hand. The defendant stabbed Vydfol in the chest and ran away.
- Whether the trial court erred in refusing to instruct the jury that he could use deadly force against the victim if he reasonably believed that the victim, acting alone or in concert with others, was about to use unlawful deadly force against him.
- Whether the trial court erred in granting the State’s motion in limine to exclude all evidence of a prior altercation involving the victim.
Before trial, the trial court granted the State’s motion in limine to exclude evidence of a prior altercation involving Vydfol where the defendant was not present. At trial, the defendant sought to instruct the jury that he was entitled to use deadly force if he reasonably believed Vydfol had confined or restrained him to allow others to use deadly force against him. The State objected that the law did not support such an instruction, and the trial court did not include an “in-concert” instruction because, “it is not consistent with the language of [the] statute.”
The Supreme Court concluded that the trial court sustainably exercised its discretion in finding that the prior altercation involving the victim, where the defendant was not present, was not relevant and, therefore, inadmissible at trial.
The Supreme Court reviewed de novo whether the statute provided a basis for the defendant’s requested jury instruction. The Court determined that the defendant’s “in-concert” instruction was not inconsistent with the terms of RSA 627:4, II(a). The Court instructed trial courts, in the future, to instruct the jury that a defendant is entitled to use deadly force in self-defense against a person that the defendant reasonably believed, acting alone or in concert with others, was about to confine him for the purpose of causing or with knowledge of a substantial risk of causing death or serious bodily injury, where such instruction is supported by some evidence in the record. However, the Court found that the defendant was not entitled to a new trial because the self-defense instruction, in its entirety, adequately and accurately explained to the jury the law governing the permissible use of deadly force.
David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Susan P. McGinnis, senior assistant attorney general, for the State.
State v. Gibbs, No. 2011-341
Dec. 21, 2012
Affirm in part, Vacate in part and remand
The defendant and another man broke into the victim’s house while he was sleeping. They pointed a gun at him and tied his hands while they ransacked the bedroom. They then took the victim downstairs to the kitchen where he was placed in a chair and then downstairs to the basement where he was tied to a column. The man with the gun stayed with him while the other man was upstairs. Finally, the victim was taken upstairs to the living room where he was tied to a chair. The defendant was charged with being an armed career criminal, armed robbery, burglary, and three counts of criminal restraint (tying the victim’s hands in the bedroom, tying the victim to a column in the basement, and tying the victim to a chair in the living room). The jury acquitted the defendant of criminal restraint for tying the victim’s hands in the bedroom and convicted him on all other charges.
- Whether the defendant’s right against double jeopardy was violated when he was twice convicted of a single criminal restraint.
- Whether the defendant’s right to effective assistance of counsel was violated.
- Whether there was insufficient evidence to find the defendant guilty beyond a reasonable doubt of the crime of being an armed career criminal.
The defendant argues that the two criminal restraint convictions violate his right against double jeopardy under the State and Federal Constitutions because they arose from one continuous period of confinement. The State argued that even if there was only one period of confinement, there were still “two episodes of illegal constraint.” The Supreme Court adopted the approach that “the unlawful confinement element of RSA 633:2 begins when the confinement is initiated and ends only ‘when the victim both feels and is, in fact, free’ from the confinement.” Using this approach, the Court determined from the record that the defendant engaged in one episode of criminal restraint and that the two convictions violated the Double Jeopardy clause of the New Hampshire Constitution.
The Court declined to address the defendant’s ineffective assistance of counsel argument because the defendant’s claims could not be determined solely from the trial record, and there was an absence of additional evidence. The Court also determined that there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that the defendant owned or possessed a handgun.
Stephanie Hausman, senior assistant appellate defender and Lisa L. Wolford, assistant appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.
State v. Lathrop, No. 2011-732Dec. 21, 2012Affirm
The defendant was found guilty of driving while intoxicated on Alderberry Lane in Moultonborough. Prior to trial, the defendant presented notice of his demand for formal proof that Alderberry Lane is a “way” as defined by RSA 259:125. The trial court determined that Alderberry Lane is a “way,” and the defendant appealed, arguing that Alderberry Lane is not “open for public use” and therefore not a “way.” The Supreme Court reviewed this issue of statutory interpretation de novo. The Court determined that the statute was ambiguous and looked to legislative history to determine the proper definition of “open.” It determined that Alderberry Lane is a way within the meaning of the statute.
- Whether the trial court erred in finding that Alderberry Lane in Moultonborough is a “way” for purposes of the DWI statute.
Joshua L. Gordon, Law Office of Joshua L. Gordon, of Concord, for the defendant. Michael Delaney, attorney general and Lisa L. Wolford, attorney, for the State.
State of New Hampshire v. Ouahman, No. 2011-756
Dec. 7, 2012
The defendant was convicted of two counts of kidnapping and two counts of robbery of two men. There were 29 potential jurors: 16 women and 13 men. The court clerk randomly drew names from a box containing the names of potential jurors, and the juror indicated whether he or she had a yes answer to any of the initial questions asked by the court. If a yes answer, the juror was questioned further by the court, and counsel had an opportunity to challenge for cause. This continued until six women and eight men were seated. The parties then took turns exercising their three peremptory challenges privately. After a juror was stricken, the clerk randomly chose the name of the juror to replace the stricken juror. The State ultimately struck three men, one of whom it had been unsuccessful in striking for cause. The defendant raised a “Batson challenge,” arguing the State was improperly striking jurors based on gender. The State indicated it had not noticed it had only stricken men. The trial court overruled the objection. The final jury panel consisted of nine women and five men.
- Whether the trial court erred by overruling the defendant’s objection to the State’s use of its peremptory challenges to strike male jurors.
The Supreme Court reviewed the defense’s argument as predicated on a violation of federal law. The Court determined that the trial court’s ruling was an implicit determination that the defendant failed to make a prima facie case of gender discrimination under Batson. The Court reviewed this ruling under the clearly erroneous standard. The Court found that the trial court did not err in denying the defendant’s Batson challenge. The Court also directed trial courts to carefully follow each of Batson’s three steps and to clearly articulate their findings and conclusions with respect to each step on the record.
Brianna M. Sinon, assistant appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.
State of New Hampshire v. Perri, No. 2010-816
Dec. 7, 2012
The defendant was convicted of kidnapping, aggravated felonious sexual assault, attempted aggravated felonious sexual assault, and criminal threatening. The victim, N.R., reported that a man approached her and proposed to pay her for a sexual act. He told her he was from out of town and working as a painter. When she rebuffed him, he attacked and raped her. She described her attacker to the police. About a month later, police received another report of a sexual assault occurring in approximately the same area and issued a “be on the lookout” alert for the man N.R. had described. The defendant was apprehended several days later, after being seen walking near the area and matching the description N.R. gave. The police created a photo array and N.R. identified the defendant as the man that attacked her. At a later interview, N.R. expressed uncertainty as to her identification of the defendant but re-affirmed her identification in July 2009, after a trooper told her he believed that she had chosen the right man and showed her the file. She said she second-guessed herself because “they kept harping at me.”
- Whether the superior court erred in denying defendant’s motion to suppress eyewitness identification evidence.
- Whether the superior court erred in limiting the defendant’s ability to cross-examine the victim.
- Whether the superior court erred in allowing the admission of evidence of a pocket knife discovered on defendant’s person when he was apprehended by the police.
The defendant contends that the identification procedure used by the police was unnecessarily suggestive in violation of his State and Federal Constitutional rights. The Supreme Court reviewed this ruling and found it was not contrary to the weight of the evidence. The Court’s review of the record found no suggestiveness in the photo array. In addition, the Court agreed with the trial court that consideration of the five Biggers factors supports a finding that N.R.’s identification in July 2009 was sufficiently reliable to warrant admission at trial, and as such, N.R.’s in-court identification was also admissible.
The defendant’s first jury trial ended in mistrial. The jury foreperson in that trial contacted the victim, and the two discussed ways in which the victim could improve her testimony. The defendant sought to elicit testimony from the victim on that interaction during cross-examination. The trial court permitted questioning on everything except those premised on the existence of a prior trial or prior fact-finder as a jury and the findings of that jury. The Supreme Court reviewed this decision under the unsustainable exercise of discretion standard and found the decision of the trial court sustainable.
The defendant had a pocket knife on him when he was arrested that he sought to suppress at trial, arguing that the police lacked the “reasonable belief that [he was] armed and presently dangerous to the officer or to others” as is required to justify a frisk search. The State contends the officer had reasonable suspicion that the defendant was armed and dangerous, and even if the search was unlawful, the knife was admissible under the inevitable discovery doctrine. The Court found the police were justified in conducting a protective frisk of the defendant.
Lisa L. Wolford, assistant appellate defender and Christopher M. Johnson, chief appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Susan P. McGinnis, senior assistant attorney general, for the State.
State v. Souksamrane, No. 2010-879
Dec. 21, 2012
The defendant was convicted of criminal threatening and felon in possession of a dangerous weapon. At his jury trial, the defendant testified and the prosecutor repeatedly asked him whether police officers and the defendant’s wife had “lied” to the jury. The defendant did not object to the prosecutor’s questions regarding police officers’ veracity but did object to the questioning regarding his wife. The State conceded that it was “highly improper” to question the defendant on the veracity of other witnesses and “is incompatible with the duties of a prosecutor.” The Court condemned “as forcefully as possible, prosecutorial cross-examination that compels a defendant to state that the police or other witnesses lied in their testimony” and directs trial courts to sustain defense objections of such questions in the future. Nevertheless, the Supreme Court upheld the conviction, because the overwhelming evidence of the defendant’s guilt made it harmless error to question him about the veracity of his wife’s testimony, and it was not plain error to question the defendant about the police officers’ veracity, because it did not affect the defendant’s substantial rights.
- Whether the trial court erred in allowing the State to question the defendant on the veracity of other witnesses.
Lisa L. Wolford, assistant appellate defender and Brianna M. Sinon, assistant appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.
State v. Thompson, No. 2011-373
Dec. 21, 2012
The defendant was convicted of DWI on a complaint alleging two prior convictions. The State did not enter evidence of the prior convictions in its case-in-chief but sought to admit evidence of such convictions during sentencing. The defendant argues that RSA 265-A: 18, IV requires the State to enter evidence of the prior convictions in its case-in-chief. The Supreme Court reviewed this question of statutory interpretation de novo and determined that the statute does not require the State to prove the prior convictions in its case-in-chief, because it is essentially a sentencing enhancement statute.
- Whether the district court erred in sentencing the defendant for a third DWI offense when the State failed to submit evidence of his two prior convictions in its case-in-chief.
Bruce E. Kenna, Kenna & Sharkey, P.A., of Manchester, for the defendant. Michael Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.
State of New Hampshire v. White, No. 2011-851
Dec. 7, 2012
Reverse and Remand
The State indicted the defendant for knowingly failing to report a MySpace account as required by RSA 651-B:4-a, which requires registered sex offenders to report to law enforcement any changes to an existing online identifier or the creation of any new online identifier. The defendant argued that the indictment should be dismissed because he used his own name and an already-reported e-mail address in the creation of the account. The trial court granted defendant’s motion to dismiss and ruled the defendant was not required to report the account under the statute.
- Whether the Superior Court erred in dismissing the indictment against the defendant for violating RSA 651-B:4-a (Supp. 2012), which requires registered sex offenders to report to law enforcement the creation of an “online identifier.”
The Supreme Court viewed the trial court’s ruling as a matter of statutory interpretation, which it decided de novo. The Court agreed with the State that a MySpace account constitutes an “online identifier” under RSA 651-B:4-a. The Court determined that MySpace membership requires the creation of a “personal profile” or “biographical account,” triggering an obligation to report its creation to law enforcement. In addition, the Court ruled that the statute was not unconstitutionally vague, as a MySpace account is “user profile information.” The Court did not address whether “chat or other Internet communication name or identity information” is unconstitutionally vague.
Christopher M. Johnson, chief appellate defender, of Concord, for the defendant. Michael Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.
Ellis v. Candia Trailers and Snow Equipment, No. 2011-613
Dec. 21, 2012
Affirm in part, Reverse in part and Remand
The Goffs owned and operated Precision Trucks. In 2006 they sold it to Ellis, memorializing the agreement in three documents: an Asset Purchase Agreement (APA), a Non-Compete Agreement (NCA), and an Inventory Purchase Agreement (IPA). Ellis signed the APA on Feb. 22, 2006. Among other things, the APA specified that Ellis’s obligations were conditioned on the Goffs executing the NCA and IPA. On March 23, 2006, the Goffs executed the NCA, which was to remain in effect seven years or until June 1, 2007, if Ellis breached the IPA. Within a few weeks of signing the NCA, Goff began competing with Precision Truck. Ellis thereafter failed to purchase all of Precision Truck’s inventory by June 1, 2007. Ellis sought rescission and restitution for breach of the NCA and violation of the Consumer Protection Act (CPA). The trial court found that the agreements were three separate agreements, that Ellis breached the IPA, and that Goff materially breached the IPA almost immediately after signing it. The trial court rescinded the NCA and awarded Ellis partial restitution.
- Whether the superior court erred in rescinding a non-compete agreement and ordering partial restitution as a remedy.
- Whether the superior court erred in finding the New Hampshire Consumer Protection Act inapplicable to respondents’ conduct.
Both parties argued that the trial court unsustainably exercised its discretion. The Goffs argued that the evidence presented was insufficient to support a finding of material breach justifying rescission and rescinding the NCA alone was improper, because it was not severable from the IPA and APA. Ellis argued that partial restitution did not go far enough to return him to the status quo.
The Supreme Court held that as a matter of law, the trial court erred when it ruled that the IPA, APA, and NCA were severable. The Court found the three agreements interdependent and, therefore, that the NCA was not severable from the IPA and APA and could not be rescinded without rescinding the IPA and APA as well.
The Court affirmed the dismissal of Ellis’ CPA claim because involvement in a single transaction, regardless of the fact that performance is to be completed over a period of time, is insufficient to constitute engagement in trade or commerce.
Lastly, the Court concluded that the trial court had sufficient evidence to support its finding that Goff materially breached the NCA. The Goffs argued that the materiality of a breach cannot be proved without evidence of damages. The Court disagreed and found that proof of damages is not dispositive of whether a breach is material.
James F. Laboe and Robert S. Carey, Orr & Reno, of Concord, for the petitioner. Emile R. Bussiere, Jr., of Manchester, for the respondent.
In re Guardianship of Matthew L., No. 2012-384
Dec. 21, 2012
Joan M., respondent, and Mary S., petitioner, were involved in a serious relationship. Mary S. became pregnant through artificial insemination and gave birth to Matthew L. in April 2007. In June 2007, the parties petitioned the court to appoint them as Matthew’s co-guardians. In March 2008, Mary S. ended her relationship with Joan M. and, in June 2008, she filed a motion to terminate guardianship. The motion was denied. She filed a new petition to terminate guardianship in June 2010. In December 2011, after the first day of the hearing on petitioner’s motion had concluded, the Court issued In re Guardianship Reena D. Under Reena D., the guardian opposing the termination of a consensual guardianship must bear the burden of proof and must meet a clear and convincing evidentiary standard.
- Whether the trial court erred in denying a motion to either continue the trial or for a new trial.
- Whether the trial court misinterpreted Renee D.
The hearing in this case resumed in March 2012. The parties agreed Reena D. applied. Respondent renewed an earlier motion to obtain an expert to testify as to the impact of termination on Matthew’s psychological well-being and asked for either a continuance or to start the trial anew. The court denied these motions and ultimately decided that the respondent failed to prove that it was necessary for Matthew’s essential physical and safety needs to substitute or supplement the petitioner’s parental care and supervision of him.
The Supreme Court could not conclude that the trial court’s decision not to continue the trial or order a new trial was an unsustainable exercise of its discretion. Reena D. was issued three months before the evidentiary hearing reconvened, and although it shifted the burden of proof, it did not change the substantive evidence involved in a termination hearing. In addition, the court appointed a guardian ad litem to specifically address the effect on Matthew.
The respondent also argued that the trial court misinterpreted Reena D. as requiring respondent to prove both that the guardianship remained necessary to provide for Matthew L.’s essential physical and safety needs and that terminating it would adversely affect his psychological well-being. Although this objection was not properly raised in the trial court, the Court chose to articulate petitioner’s and respondent’s positions on the issue, because the respondent raised public policy concerns that the Legislature might wish to address.
Kelly E. Dowd, of Bragdon, Dowd & Kossayda, of Keene, for the petitioner. J. Campbell Harvey, of Harvey & Mahoney, of Manchester, and Janson Wu, of Gay & Lesbian Advocates & Defenders, of Boston, for the respondent.
New Hampshire Independent Pharmacy Association v. New Hampshire Insurance Department, No. 2012-356
Dec. 21, 2012
New Hampshire Independent Pharmacy Association (NHIPA) is a trade and advocacy organization, and New Hampshire Insurance Department (NHID) is an independent regulatory agency. NHID initially interpreted RSA 415:6-aa and RSA 420-J:7-b, VIII, such that health insurers and health benefit plans could not limit coverage of 90-day supplies of prescription drugs to those filled through mail-order pharmacies. In 2010, NHID changed its position and began reading the statutes as permitting health insurers and health benefit plans to limit 90-day supplies to mail-order pharmacies. NHIPA brought an action for declaratory judgment and a writ of mandamus, asking the trial court to direct NHID to enforce the statutes in a manner that required coverage at retail pharmacies. The trial court granted NHIPA’s motion for summary judgment, ruling that the statute did not impose such a requirement.
- Whether the trial court erred in its interpretation of RSA 415:6-aa and RSA 420-J:7-b.
The Supreme Court found the language of the statutes to be clear and unambiguous and that NHID’s prior misinterpretation of the statute does not alter its plain meaning. The statutes require health insurers and health benefit plans to provide 90-day prescription coverage, but they merely permit, not require, insurers and benefit plans to allow such prescriptions to be filled at local retail pharmacies, rather than through mail order pharmacies.
Glenn R. Milner and Robert F. Berry, Jr., of Molan, Milner & Krupski, of Concord, for the petitioner. Michael A. Delaney, attorney general, and Laura E. B. Lombardi, for the respondent.
|Mary B. Cloutier
Attorney Mary B. Cloutier is an Assistant Cheshire County Attorney with the Regional Prosecutor Program in Keene, NH.