Bar News - October 20, 2006
NH Supreme Court At-a-Glance – September 2006
By: Melissa A. Kowalewski
State of New Hampshire v. Clyde Gauntt, 05-275
September 28, 2006
Reversed and Remanded
• Whether the trial court erred in denying Mr. Gauntt’s request for a lesser included jury instruction where evidence presented at trial provided a rational finding of not guilty on the more serious offense but a finding of guilty on the lesser included offense?
The Trial Court’s failure to instruct the jury on a lesser included offense was error and an unsustainable exercise of discretion.
The defendant was charged of operating a vehicle after being deemed a habitual offender. At trial, testimony was presented that Mr. Gauntt attended the certification hearing, where he was adjudicated a habitual offender and his license was revoked. Mr. Gauntt was provided a copy of that order. In 2000, Mr. Gauntt pled guilty to one count of driving after being a certified habitual offender and was sentenced to one year in the House of Corrections. At his trial, Mr. Gauntt testified that he believed that his 2000 conviction and jail sentence had wiped out his habitual offender status because he had paid his debt to society. Mr. Gauntt testified that he had no recollection of his certification hearing and had been told by a D.M.V. employee what he had to do to get his license back. At the close of evidence, the defendant requested a jury instruction for the lesser included offense of driving after revocation or suspension. The request was denied by the trial court and Mr. Gauntt was convicted of operating after deemed habitual offender.
The Supreme Court reasoned that a defendant is entitled to have the jury consider a lesser included offense when the lesser included offense is embraced within the legal definition of the greater offense and the evidence presented at trial supports a finding of guilt on the lesser offense as opposed to the greater offense.
State of New Hampshire v. Stephen J. Goupil, 05-444
September 28, 2006
• Whether the trial court erred in denying Mr. Goupil’s initial request to set aside the verdicts despite prima facie evidence of misconduct by Juror 2 in violation of Mr. Goupil’s right to a fair and impartial jury under Part I, Article 15 of the New Hampshire Constitution and the Sixth and Fourteenth amendments of the United States Constitution?
· Whether the trial court erred in denying Mr. Goupil’s request to set aside the jury verdicts after questioning the entire panel?
· Whether the trial court erred in failing to set aside Mr. Goupil’s verdict because of a late disclosure regarding evidence that would have led to Mr. Goupil using a peremptory challenge?
• Whether the trial court erred in failing to dismiss five counts of aggravated felonious sexual assault after the close of the State’s case based upon the language of the indictments?
• Whether the trial court erred in failing to allow Mr. Goupil to stand in the courtroom in order to demonstrate his height to the jury?
• Whether the trial court erred in failing to suppress statements that Mr. Goupil made on April 23, 2004 to police officers while at his grandmother’s house in violation of Part I, Article 15 and the Fifth Amendment?
• Whether the trial court failed to suppress photographs of his tattoo in violation of Part I, Article 19 because they were seized without his consent and without a warrant?
Mr. Goupil was convicted of five counts of aggravated felonious sexual assault and one count of theft by unauthorized taking. Soon after the jury rendered its verdict, the trial court was informed that Juror 2, the jury foreperson, had, prior to jury selection, referenced his upcoming jury duty in a Web log. Specifically, the Web log indicated a belief that the defendant was responsible for proving his innocence. Further voir dire was conducted with each of the jurors, including the alternates, at the conclusion of which the trial court found the jurors credible.
The Court upheld the trial court’s denials of Mr. Goupil’s requests to vacate the verdicts. In the first instance, the Court held that, in order for juror communication to be presumptively prejudicial, the communication must have been between jurors and persons associated with the case about matters unrelated to the case or between jurors and others about the case. Neither had been alleged or established by the defense in this matter. The defense also failed to establish actual prejudice because there was no indication that the jurors were aware of the blog or that Juror 2 was dishonest in the additional voir dire questions posed to him by the Court. In the second instance, the Court upheld the trial court’s denial of Mr. Goupil’s request to set aside the verdict because the Court found that the additional voir dire of Juror 2 was comprehensive and that Juror 2 was able to follow the Court’s instructions with regards to the burden in criminal matters and the presumption of innocence. The Court also held that a juror’s disqualification from one jury panel does not automatically disqualify him or her from a subsequent jury panel, especially, as in this case, where that determination was made after extensive voir dire.
The Court upheld the trial court’s determination as to the sufficiency of the evidence with regards to the five counts of aggravated felonious sexual assault. The Court reasoned that there does not need to be an overt, express verbal threat prior to each separate physical act in order to satisfy the requirements of RSA 632-A:2, I(c), especially where the evidence goes to show that the threat of injury was implicit and ongoing throughout the sexual assaults.
The Court upheld the trial court’s denial of Mr. Goupil’s request that he be allowed to stand up in the courtroom and demonstrate his height to the jury on the grounds that it was not relevant. The defendant has the burden of establishing that the ruling, under New Hampshire Rule of Evidence 401 and New Hampshire Rule of Evidence 402, was clearly untenable or unreasonable, to the prejudice of his case. Rule 401 states that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” In this case the Court affirmed the trial court’s determination that Mr. Goupil’s demonstration would have no tendency to make the height discrepancy between two perpetrators more or less likely under Rule 401.
The Court also upheld the trial court’s denial of Mr. Goupil’s motion to suppress his statements as he was not subjected to custodial interrogation. A person is in custody for Miranda purposes where he/she is subjected to formal arrest or a restraint of movement of the degree associated with formal arrest. In the absence of formal arrest, the Court must consider how much the suspect’s freedom of movement was curtailed and how a reasonable person in the suspect’s position would have understood the situation. In this case, the Court found that Mr. Goupil was not in custody because he was asked to answer questions in his grandmother’s home, was not physically restrained and terminated the interview when he no longer wanted to talk to officers.
The Court upheld the trial court’s determination that Mr. Goupil’s consent was voluntary. The Supreme Court assumed that a seizure had occurred. A free and voluntary consent is an exception to the warrant requirement in New Hampshire. The State must establish by a preponderance of the evidence that the consent was freely, knowingly and voluntarily given. Voluntariness of the consent is a question of fact to be determined by the totality of the circumstances. The trial court’s determination will not be reversed unless it is unsupported by the record. In this case, the record does not support reversal because Mr. Goupil was aware that he did not have to consent, he refused consent with regards to another seizure later in the contact with the police and he was not subjected to custodial interrogation.
State of New Hampshire v. Raymond Paul Thomas, 05-405
September 27, 2006
Reversed and remanded
• Whether the trial court erred by refusing to instruct the jury on the lesser-included offenses of attempted first-degree assault and reckless conduct, where the defendant was charged with first degree assault and attempted murder?
The Court held that the trial court erred in refusing to instruct the jury on lesser included offenses. In its reasoning, the Court conducted a two-step inquiry.
In the first step, the Court looked at whether the lesser-included offense was embraced by the greater offense. In reaching its conclusion in this first step, the Court compared the statutory elements of each offense, without reference to the elements. In the second step, the Court looked at whether the evidence adduced at trial provided a rational basis for a finding of guilt on the lesser offense rather than the greater offense.
For purposes of this appeal, the State conceded that the elements of reckless conduct under RSA 631:3, I and attempted first degree assault under RSA 629:1 and RSA 631:3 were subsumed by the attempted murder and the Court assumed those facts. With regards to the second step of the inquiry, Mr. Thomas would be entitled to jury instructions on lesser included offenses if he could show that the evidence provided a rational basis for the jury to conclude that he committed the acts recklessly or with the intent to commit serious bodily harm, pursuant to RSA 629:1 and RSA 631:3.
The Court found that the issue of intent was sufficiently disputed to provide a rational basis for the jury to conclude that the defendant acted recklessly or with a purpose to cause serious bodily injury. The Court specifically took into consideration Mr. Thomas’ statements to police that he “flipped out” in the face of the alleged victim’s infidelity, that he stabbed her as she came towards him, and his elevated Blood Alcohol Content, which was a .278 on the night in question, in making its determination. The Court further reasoned that RSA 626:4, while stating that intoxication is not a defense, allows the defense to introduce evidence of that impairment whenever it is relevant to negate an element of the offense charged. In this case, the Court determined that the jury could have concluded that the defendant was guilty of the lesser included offenses and should have been instructed on them.
State of New Hampshire v. Jae Pseudae, 05-628
September 27, 2006
• Whether the trial court erred in denying his motion to suppress evidence, a rifle, in violation of Part I, Article 19 of the New Hampshire Constitution and the Fourth and Fourteenth Amendments of the United States Constitution on the grounds that the search and seizure were justified pursuant to the exigent circumstances and the emergency aid exceptions to the warrant requirement.
• Whether the trial court’s determination was harmless error?
The Supreme Court held that the trial court’s decision was error under both the exigent circumstances exception and the emergency aid exception to the warrant requirement.
Under Part I, Article 19, warrantless searches are per se unreasonable unless they conform to one of the narrow exceptions to the warrant requirement. The Supreme Court has held that a search of a person’s home is subject to a particularly stringent warrant requirement because the suspect has a high expectation of privacy in his/her home. Under the exigent circumstances exception to the warrant requirement, the police can make a seizure without a warrant where they have probable cause to seize and exigent circumstances exist. Exigent circumstances exist where police have a compelling need for immediate official action and a risk that the delay inherent in obtaining a warrant will present a substantial risk of imminent danger to life or public safety or that evidence will be destroyed. In this case, the Supreme Court disagreed with the trial court that the number of people in the house with the potential to remove the gun warranted intrusion under the exigent circumstances exception because at the time that the officers had entered the residence, the defendant had already been taken into custody and his bedroom door was locked. Furthermore, the officers had been informed that there was no one else in the residence. As such, there was no reason to believe that evidence would be destroyed.
In order for the emergency aid exception to apply, the State must establish that: 1. the police have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; 2. that there is an objectively reasonable basis, approaching probable cause, to associate the emergency with the place or area to be searched; and 3. the search is not primarily motivated by intent to arrest and seize evidence. For the reasons that the Court enunciated in its discussion of exigent circumstances, it deemed the warrantless entry illegal under this exception as well.
An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error. The burden is on the State to establish that the error was harmless. An error may be harmless beyond a reasonable doubt where the alternative evidence of the defendant’s guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is cumulative or inconsequential in relation to the strength of the State’s case. The Supreme Court found that the State met its burden of establishing harmless error in this case because the defendant was convicted of a misdemeanor level criminal threatening, with enhanced penalties. In order to establish the defendant’s guilt at trial, the state had to prove that the defendant threatened to commit a crime, with the purpose to terrorize another person. To obtain an enhanced penalty, the State must establish that the defendant knew that the person that he threatened at the time was a law enforcement agent acting in the line of duty. Any evidence of a rifle locked in a room is not relevant to establish these elements and the Court found that the evidence used by the State to establish criminal threatening with enhanced penalties was, in fact, overwhelming.
State of New Hampshire v. Thomas Hall, 05-649
September 26, 2006
Vacated and Remanded
• Whether an indigent defendant seeking a new trial based upon a non-frivolous claim of ineffective assistance of counsel has a right to appointed counsel under the Due Process Clause of Part I, Article 15 of the New Hampshire Constitution?
• Even if the defendant had no absolute right to counsel, whether the trial court’s denial of his motion under these circumstances was an unsustainable exercise of jurisdiction?
The Court held that due process does not require that counsel be appointed to assist a defendant in making a post-conviction motion for a new trial. In reaching its decision, the Court adopted the three-prong test used in Matthews v. Eldredge, 424 U.S. 319, 335 (1976). The Court considered: 1. the private interest affected by the official action; 2. the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and 3. the government’s interest, considering the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.
With regard to the first prong, the Court found that while the criminal defendant retains some interest in post-conviction proceedings, the interest is not as high as in pre-conviction proceedings. The Court classified post-conviction proceedings, such as one for ineffective assistance of counsel, as civil in nature and proceedings in which punishment would not be increased. The Court indicated the defendant’s liberty interest had been curtailed as a result of his conviction. With regard to the second prong, the Court found that certain factors lessened the defendant’s need for assistance of counsel. For instance, the motion was initially determined by a Judge and not a jury, making it less necessary for the defendant to have the assistance of an attorney in making effective arguments. There were transcripts and other materials readily available to the defendant in preparing for arguments and the reliability of the conviction had been tested through trial and appellate review. With regard to the third prong, the Court found that the State would be subjected to a substantial fiscal and administrative burden.
The Supreme Court also held that, because the trial court denied the defendant’s motion to appoint counsel without a hearing or an explanation, the Court could not determine whether the Court did so because it did not believe the defendant had a constitutional right to counsel or because it concluded that the Duval factors did not require appointment. As such, the Supreme Court remanded the case on the issue of application of the discretionary factors cited in the case.
Petition of Chad Evans, 05-353, 05-354
September 6, 2006
• Whether the application of RSA 651:58, I violated the petitioner’s right to due process under both the New Hampshire State Constitution and the United States Constitution?
• Whether RSA 651:58, I, on its face, violates state and federal prohibitions against double jeopardy?
• Whether the application of RSA 651:58, I violated state and federal prohibitions against ex post facto laws?
• Whether retrospective application of RSA 651:58 ignored the rules of statutory construction?
With regard to the first question, the Court found that Mr. Evans’ right to due process under the New Hampshire State Constitution and the Federal Constitution were not violated. Mr. Evans argued that he did not have notice that the State could apply for sentence review. The Court disagreed. RSA 651:58 states that “Any person sentenced to a term of one year or more in the State of New Hampshire may file with the clerk of the superior court for the county in which the judgment was rendered an application for a review of sentence by the sentence division.” Furthermore, the Court recently held in Guardarramos-Cepeda, 153 N.H. ____ that the State ??? may file for sentence review.
The Court also held that RSA 651:58, I on its face did not violate double jeopardy protections. See, Guardarramos-Cepeda, 153 N.H. ___ ??? (holding that the defendant had no expectation of finality until the sentence review process had been completed).
With regard to ex post facto laws, the Court first analyzed the petitioner’s question under the New Hampshire Constitution. See State v. Ball, 124 N.H. 226. Under Part I, Article 23 of the New Hampshire Constitution, a law or application of a law is ex post facto if it “makes an action done before the passing of the law, and which was innocent when done, criminal and punishes such action; or…aggravates a crime, and makes it greater than when committed; or changes the punishment, and inflicts greater punishment than the law annexed to the crime when committed.” The Court reasoned that no greater punishment was given by a change in the statute. The only matters that changed were those related to procedure and that the purpose of the amendment was remedial, not punitive. The Court relied on federal cases in reaching this decision.
The Court held that the statute was applied retrospectively. Where the legislature is silent as to whether a statute should apply retrospectively or prospectively, the Court’s interpretation is based on whether the statute affects the defendant’s substantive or procedural rights. State v. Hamel, 138 N.H. 392. In this case, the amendment was a procedural modification, not a substantive one. As a result, it was applied retroactively.
Bel Air Associates v. Department of Health and Human Services, 05-522
Affirmed in part and Reversed in part
• Whether the trial court erred in dismissing one count of the plaintiff’s petition on the grounds that the petitioner had failed to allege facts sufficient to constitute either an equal protection or taking violation under the State or Federal Constitutions?
• Whether the trial court erred in determining that the petitioner had not properly brought a petition for declaratory judgment action pursuant to RSA 541-A:24?
• Whether the amendments to the State Medicaid reimbursement plan relating to capital cost caps and the budget neutrality factors violate the APA?
• Whether the trial court erred in barring the petitioner from amending the petition to allege breach of contract and for relief under chapter 541-A after the trial court had dismissed its amended complaint?
The Supreme Court held that the arguments relating to equal protection violations and takings violations under the New Hampshire Constitution and the Federal Constitution lacked merit and declined to analyze the issue.
RSA 541-A:24 holds that the applicability or validity of a rule may be challenged in an action for declaratory judgment in Merrimack Superior Court where it is alleged that the rule or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the plaintiff. On its face, RSA 541-A:24 only requires that a interference or impairment with a right or privilege be alleged. The petition in this case met that requirement according to the Court. As such, the trial court erred in dismissing that count of the plaintiff’s petition.
The Court held that the budget neutrality factor and the capital costs caps are rules that were not adopted in accordance with the APA and therefore, are not valid or effective against the petitioner. A rule was defined as each regulation, standard or other statement of general applicability adopted by an agency to implement, interpret or make specific a statute enforced or administered by the agency or prescribe or interpret an agency policy, procedure or practice on persons outside the agency, whether members of the general public or personnel of the agency. Where the agency’s efforts effect substantive changes on people outside the agency, those efforts constitute a rule that must be promulgated in conformance with the APA. The Court determined that RSA 151-E:6, I was the applicable statute in this case, as it specifically dealt with the subject matter of the petition. RSA 151-E:6, I required that DHHS act in conformity with the APA when adopting rules relating to reimbursement for nursing homes without exemption. As DHHS did not act in conformity with the statutes or the APA, the rules promulgated were not effective against the petitioner.
The Supreme Court upheld the trial court’s denial of the petitioner’s late motion to amend. Under RSA 514-9, the trial court may permit amendments to pleadings at any stage of the proceedings, upon such terms as the court deems just and reasonable, when it appears to the court that it is necessary for the prevention of injustice, unless the changes surprise the opposite party, introduce an entirely new cause of action or calls for substantially different evidence. The Court reasoned that the opportunities afforded to the petitioner prior to the dismissal were sufficient. In essence, the petitioner should have completed all of its amendments in the time allotted to it previously. Furthermore, the claims that the petitioner seeks to add are new causes of action.
In the Matter of Nancy Baker and Robert Winkler, 05-380
September 27, 2006
• Whether the trial court erred in failing to subtract his obligation to pay his adult child’s college education expenses from his gross income before calculating his support obligation for his minor child under the child support guidelines?
The trial court’s determination that the amount that Mr. Winkler was paying towards his adult daughter’s college education should not be subtracted from his gross income before calculation of his support obligation to his other minor child was correct. There is a rebuttable presumption that a child support award calculated under the guidelines is the correct amount for child support. The presumption may be overcome when the trial court finds by a preponderance of the evidence that the application of the guidelines would be unjust or inappropriate because of “special circumstances.” RSA 458-C:5, I states that special circumstances include the economic consequences to either party of providing voluntary or court-ordered postsecondary educational expenses of a natural child. RSA 458-C:2, I(a) allows for deductions from gross income to be made for court-ordered or administratively ordered support actually paid to others for adults or children. In In the Matter of Crowe and Crowe, 148 N.H. 212, 214 (2002), the Court had held that this portion of the statute was ambiguous with regard to the timing of the deduction and further went on to hold that this section of the statute allows for deductions for pre-existing spousal or child support obligations paid to persons other than the parties in the action under consideration, such as former spouses and children from former marriages. As the children in this matter are part of the case under consideration, the deduction was not available to Mr. Winkler.
Separation of Powers/Constitutional
Darren Starr v. Governor, 05-470
September 26, 2006
• Whether the legislature, when meeting in special section, is restricted to considering only those matters enumerated in the Governor’s resolution calling for such a session?
• Whether the enactment of 651:2, II-e violated the due process sections of the New Hampshire Constitution and the Federal Constitution?
The Supreme Court held that the first issue was a non-justiciable political question. The political questions doctrine is a function of separation of powers, existing to refrain the courts from inappropriate interference in the business of other branches of government. The justiciability doctrine prevents judicial violation of separation of powers by limiting judicial review of matters that lie within the provinces of the other two branches. A case presents a non-justiciable political question when there is a textually demonstrable constitutional commitment of the issue to another political department. Where the commitment exists, a court must decline to adjudicate the issue. Part II, Article 50 governs special meetings of the legislature, when called into session by the Governor. However, the State Constitution does not mandate that the Governor state what must be addressed by the legislature during those special sessions. The legislature is granted the “full power and authority” by the Constitution to enact laws from time to time for the benefit and welfare of the State, so long as they are not unconstitutional. The Court, therefore found, in this case, that there was a textually demonstrable constitutional commitment of the authority to make laws to the legislative branch. The Court further held that Part I, Article 50 places a limit on when the executive branch may call special sessions of the legislature but not on the legislature’s response to those special sessions.
The Supreme Court also held that there was no Due Process violation in this matter. Part I, Article 15 requires that the citizens of the State of New Hampshire be advised of what laws are changed or enacted during special session. The purpose of this provision is to inform interested parties of the action and allow them an opportunity to be heard on the matter. In this case, RSA 91-A:2, II and RSA 91-A:1-a mandate that all sessions of the legislature be open to the public. In this case, the petitioner does not allege that the Legislature failed to comply with these statutes. In fact, there was evidence that the House held a public hearing on the bill in question, that New Hampshire citizens had notice of the hearing and that New Hampshire citizens took the opportunity to speak for or against the bill. As such, the petitioner’s due process rights were not violated by the passage of this bill.
Londonderry School District SAU #12 & a. v. State of New Hampshire
September 8, 2006
Affirmed and Stayed
• Whether the trial court erred in determining that the State has failed to fulfill its duty to define a constitutionally adequate education, failed to determine the cost of an adequate education and failed to satisfy the requirement of accountability?
• Whether the trial court erred in determining that House Bill 616 created a non-uniform tax rate in violation of Part II, Article 5 of the Constitution?
The Supreme Court affirmed the trial Court’s decision that the State had failed to fulfill its duty to define a constitutionally adequate education. The remaining findings were stayed consideration of the remaining issues.
The Supreme Court held that the State had yet to isolate what parts of the statutory scheme encompassed by RSA 193-E:2 comprise constitutional adequacy. The Court further held that under this statutory scheme, a citizen or school district could not determine the distinct substantive content of a constitutionally adequate education. As a result of this inability, a cost of that constitutionally adequate education could not be determined. Defining a constitutionally adequate education was and is a job for the legislature (citing Claremont II, 142 NH at 475) as decisions relating to this matter are “replete with policy decisions, better suited for the legislative and executive branches, not the judicial branches.” The Court also indicated that the Legislature had until the end of the 2007 fiscal year in which to come up with a workable definition of what constitutes a constitutionally adequate education. Failure to do so would result in the Court taking steps such as invalidating the funding remedy proposed by Justice Galway, appointing a special master to aid in the determination of a definition of what is constitutionally adequate education or remanding the case to the trial court for further factual development as to whether the State is providing sufficient funding to pay for constitutionally adequate education.
Melissa A. Kowalewski is with the Public Defender Office in Nashua. She has been a member of the NH Bar since 2004 and is a graduate of Syracuse University.