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Bar News - May 23, 2008

NH Supreme Court At-a-Glance April 2008



State v. Langill, No. 2007-300 (April 4, 2008).

The Court held admissible, expert opinion testimony resulting from the "ACE-V" method by which fingerprint analysts decide whether a latent print matches that of a suspect. The trial court had excluded such testimony under RSA 516:29-a, as well as the standards for admissibility of expert scientific evidence established in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Thus, in a State’s appeal, the Court reversed the trial court’s decision to exclude the fingerprint evidence.

The accused’s attack on the evidence focused on two points: the state forensic laboratory did not employ blind verification for single latent prints such as the print analyzed in this burglary prosecution, and the analyst did not memorialize her observations in contemporaneous bench notes as mandated by a national oversight organization. The trial court held that these deficiencies rendered the evidence unreliable and inadmissible under Daubert.

The Court, while acknowledging that a small number of misidentification cases using ACE-V methodology do exist, held that these issues went to the weight of the evidence, not its admissibility. In a scholarly opinion, the Court adopted recent interpretations of Daubert from two federal circuit courts, establishing a new framework for determining whether errors in the application of an otherwise-reliable methodology render the expert testimony inadmissible.

Richard E. Samdperil, Samdperil & Welsh, PLLC, of Exeter for the defendant. Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general), for the State.


Elmer E. Chesley v. Harvey Industries, Inc., No. 2007-682 (April 22, 2008).

The Court held that the trial court erred in dismissing plaintiff’s civil action for failure to file within the three year statute of limitations. Chesley had filed his writ on the third anniversary date of the incident, and thus filed within the three year statute of limitations, based on RSA 21:35, which establishes the general rule excluding the date of an occurrence from the computation of time periods and time limits.

Josph Kelly Levasseur, of Manchester, for the plaintiff. Kenneth G. Bouchard, Bouchard, Kleinman & Wright, of Hampton, for the defendant.


State v. William Joseph Sullivan, Jr., No. 2005-594 (N.H. April 18, 2008).

The Court reversed Sullivan’s convictions for first degree murder and conspiracy to commit murder, because the trial court erred in removing a juror on the second day of deliberations without just cause, and erred in the manner in which it substituted in an alternate juror. The juror had called attention to himself by engaging in idiosyncratic conduct over the course of the trial, ultimately inducing a complaint by other jurors by bringing Black’s Law Dictionary into the deliberation room. The juror had not, however, consulted the dictionary.

The Court held that the record did not support the conclusion that the juror’s attempt to use a dictionary had any adverse impact on his own ability to deliberate or that of his fellow jurors, nor did the record support the conclusion that his conduct demonstrated an inability or unwillingness to follow the court’s instructions. Further, the court erred in substituting in an alternate juror without ascertaining through voir dire of each individual juror whether they "can and will start the deliberations anew," instead merely instructing them to do so.

The Court stressed that the "discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error," such that "their mere failure to follow instructions, in and of itself, is not a meritorious reason to dismiss a juror per se." The jury room is "sacrosanct," such that any "inappropriate interference, with or intrusion upon, the deliberative process" implicates the defendant’s fundamental right to have a fair and impartial jury decide his case.
The Court, however, rejected Sullivan’s claim that the trial court erred in denying his motion to suppress statements that Sullivan claimed were the fruit of an illegal seizure in violation of the state and federal constitutions. The court determined that Sullivan was never seized by the police, but rather initiated contact with the police by returning to the crime scene and voluntarily agreeing to answer questions at the police station.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney) for the State. Christopher M. Johnson, chief appellate defender, for the defendant.


State v. Peter Munoz, No. 2007-159 (N.H. April 18, 2008).

The Court affirmed the trial court’s decision to deny Munoz’s motion to quash an indictment for attempted burglary of the Fairways apartment complex, rejecting Munoz’s argument that the indictment was inadequate because it did not allege which crime he intended to commit inside the building. The attempt statute requires the State to identify the intended offense, but the State need not plead and prove the elements of the intended offense. Therefore, a jury could convict Munoz, even if it was not unanimous as to the nature of the specific crime Munoz intended to commit within the building.

Further, admission into evidence of a hearsay statement of an anonymous informer made to a police officer did not violate Munoz’s federal constitutional right to confrontation. The tipster had said he knew the defendant, gave a physical description of the defendant, and said the police should "look at" the defendant in reference to its investigation of the Fairways break-in. The Court agreed with the trial court that this testimony was admissible not for its truth, but to explain why the police focused its investigation on Munoz and conducted a fingerprint analysis which implicated Munoz. Neither the hearsay rule, nor the federal confrontation clause, excludes out-of-court statements offered for a purpose other than the truth of the matter asserted.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney) for the State. Phillip Desfosses, Desfosses Law firm, for the defendant, with Richard E. Samdperil, Samdperil & Welsh, of Exeter, on the brief.


State v. Luis A. Rodriguez, No. 2007-107 (N.H. April 8, 2008).

The Court upheld the trial court’s decision to deny Rodriguez’s motion to suppress evidence of his possession of controlled drugs, discovered as a result of a warrantless entry by the police into his hotel room. While investigating an unrelated matter, police officers smelled the odor of "burning marijuana" emanating from a particular hotel room. The officers knocked on the door and eventually gained entry by threatening to forcibly open the door. Inside, the officers observed drugs and drug-related material, at which point they secured the room and obtained a search warrant.

Under Part I, Article 19 of the State Constitution, warrantless entries into the home are per se unreasonable and illegal unless within the narrow confines of an exception to the warrant requirement. The Court held that this warrantless entry was justified by probable cause and exigent circumstances, because possession of marijuana was a jailable offense, not a minor offense; because the odor of burning marijuana, as opposed to burnt marijuana, represented the destruction of evidence; and because the hotel room had indoor plumbing, further facilitating the ready destruction of evidence. The Court stressed that its holding was based on the totality of the circumstances, including the reasonableness of the officers’s behavior prior to the entry into the hotel room. The officers did not create the exigency upon which they relied, as the situation was not forseeable prior to their arrival at the hotel, and they did not have ample opportunity to obtain a search warrant prior to smelling the burnt marijuana.

Justice Hicks dissented, of the opinion that "the totality of the circumstances in this case did not present a compelling need for immediate official action." He noted that the expectation of privacy of a hotel room occupant is equivalent to that of an occupant of a private home, a proposition left undecided but assumed by the Court for purposes of its opinion, and found it "unsettling" that the precedent would allow a warrantless entry into a private home based upon similar facts.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney) for the State. David M. Rothstein, deputy chief appellate defender, for the defendant.

State v. Joseph Panarello, No. 2007-554 (N.H. April 22, 2008).

The issue in this case was the scope of the exclusionary rule. The State conceded that the police made an unlawful warrantless entry into Panarello’s home, in violation of Part I, Article 19 of the State Constitution. The State, however, appealed from the trial court’s decision to suppress evidence that Panarello reacted to the unlawful intrusion by pointing a gun at a police officer.

In an issue of first impression, the court joined "the overwhelming weight of authority" by adopting a "new crime exception" to the State Constitution’s exclusionary rule. In doing so, the court, quoting a Connecticut decision, stated that the "limited objective of the exclusionary rule is to deter unlawful police conduct," and that this purpose would not be served by suppressing evidence of a physical attack or threat of same against the police officers involved. The court, however, affirmed the trial court’s order here, because the State did not preserve its argument below, and could not rely on the plain error rule where the issue was one of first impression.

The Court’s characterization of the "limited objective" of the State Constitution’s exclusionary rule contradicts that of other opinions, where the Court has stressed that our exclusionary rule differs from that of the fourth amendment because it exists not only to deter police misconduct, but "’to redress the injury to the privacy of the search victim.’" State v. Martin, 145 N.H. 362 (2000)(quoting State v. Canelo, 139 N.H. 376, 387 (1995)).

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general) for the State. Mark L. Sisti, Sisti Law Offices, for the defendant.

NOTE: State v. William Joseph Sullivan, summarized here under the topic heading "Criminal Procedure – Jury Deliberations," also decided a search and seizure issue.


Coffey’s Case, No. JD-2007-003 (April 18, 2008).

The Court upheld the determination of the New Hampshire Supreme Court Committee on Judicial Conduct (JCC) that Superior Court Judge Patricia C. Coffey engaged in "serious misconduct" in violations of Canons 1 and 2 of the Code of Judicial Conduct. The Court, however, substantially increased the sanction imposed by the JCC, from a three-month suspension to a three-year suspension. The case arose out of JCC proceedings against Judge Coffey’s husband John Coffey, who was ultimately disbarred. A trust created by Judge Coffey to shelter family assets created an appearance of impropriety, and amounted to a fraudulent conveyance, where it was created contemporaneous with John Coffey’s ongoing failure to pay the approximate $75,000 cost of prosecuting the JCC proceedings against him as ordered by the Court.

For the first time, the Court adopted standards for the determination of the appropriate sanction in a judicial misconduct case, adapted from a study of judicial conduct decisions conducted by the American Judicature Society. In so doing, the Court declined to utilize the American Bar Association’s Standards for Imposing Lawyer Sanctions, because those standards "fail to adequately address situations where, as [in Coffey’s case,] the judge’s conduct has created an appearance of impropriety."

Justice Galway, dissenting, would have imposed an "indefinite" suspension, because he believed a three-year suspension was insufficient in view of the gravity of the offenses. The Court, however, believed that an indefinite suspension was unjustified due to the existence of mitigating factors. Moreover, the Court questioned whether an indefinite suspension could be imposed by the judiciary, where the State Constitution assigns the power to remove judges by impeachment or bill of address to other branches of government.

Richard B. McNamara, Wiggin & Nourie, P.A., of Manchester for the Judicial Conduct Committee. Russell F. Hilliard, Upton & Hatfield, of Portsmouth, for the respondent.


Appeal of James Geekie (N.H. Dept. of Labor), No. 2007-411 (N.H. April 22, 2008).

Petitioners, members of the International Longshoreman’s Union, Local 1947 (ILA), appealed from the decision of the N.H. Dept. of Labor (DOL) dismissing their claims under the Whistleblower’s Protection Act (WPA). For 40 years, the ILA had provided line handling for every ship docking at the Port of Portsmouth. In recent times, the ILA members were employed by a "pay agent," a company which contracted with the Pease Development Authority, Division of Ships and Harbors (division) to provide line handling services, pay the workers their wages, withhold taxes and issue W2 statements. Less than a month after petitioners participated in an investigation by the attorney general’s office and accused the port director of being incompetent and of violating anti-discrimination laws, the petitioners learned that the division had contracted with a different company to provide line handling services for certain vessels. The petitioners sued for lost wages under the WPA. However, the Court upheld the finding of DOL that petitioners could not bring claims under the WPA, because they were not employees of the division, but instead were employees of the pay agent.

Michael E. Chubrich, Chubrich & Harrigan, of Portsmouth, for the petitioners. Debra Dyleski-Najjar and Stephanie V. Rosseau of the Wagner Law Group, Boston, MA for respondent.

 Appeal of Donald R. Carreau, No. 2007-595 (N.H. April 8, 2008).

The Court dismissed Carreau’s appeal from the decision of the Board of Trustees of the City of Manchester Employees’ Contributory Retirement System to offset his disability retirement pension by a worker’s compensation claim settlement. Carreau filed his appeal one day after the expiration of the statutory thirty-day appeal deadline, and thus the Court lacked jurisdiction to hear the appeal.

Mark D. Morrissette, McDowell & Osburn, of Manchester for the petitioner. Linda S. Johnson and Michael J. Kenison, McLane, Graf, Raulerson & Middleton, of Manchester, for the respondent.


Colonial Village v. Robert Pelkey, 2007-349 (N.H. April 4, 2008).

The landlord served the tenant with a notice to quit, but thereafter accepted rent from the tenant, subject to written notice that "[the landlord’s] acceptance of . . . future rent should not be construed as a waiver to issue a notice to quit." Tenant, relying on Miller v. Slania Enterprises, 150 N.H. 655, 657 (2004), argued that the landlord’s acceptance of future rent created a new tenancy, and therefore the trial court erred in granting landlord possession of the apartment. The Court affirmed, finding Miller distinguishable because in Miller, the landlord did not provide notice to the tenant, as did the landlord here, that acceptance of future rent did not waive landlord’s right to evict tenant.

Holly J. Kilibarda, Devine, Millimet & Branch, P.A., of Manchester for the plaintiff. Brian C. Shaughnessy, Kazan & Shaughnessy, PLLC, of Manchester, for the defendant.


Barry O. Upton v. Town of Hopkinton, No. 2007-574 (N.H. April 8, 2008).

The Court affirmed the Superior Court’s decision to uphold a decision of the Planning Board (board) for the respondent Town of Hopkinton, to condition the approval of Upton’s subdivision plan upon an impact fee. Flooding from heavy rains had closed the Branch Londonderry Turnpike, a class V gravel road surrounded by wetlands, six times in the last two years, making it difficult for the police and fire department to respond to an emergency, and affecting other services such as school bus access and road upgrading. The subdivision would double the number of homes along the Turnpike. The board approved the subdivision, conditioned upon Upton paying one-third of the cost of raising the road and building a box culvert or bridge to rectify the flooding issues.

The Court rejected Upton’s claim that the board made him subject to an unreasonable impact fee that bore no rational nexus to the needs created by the proposed subdivision. Although the need for the improvements predated Upton’s proposal, the impact fee represented a reasonably proportionate share of the total cost of improvements.

Daniel D. Muller, Jr. and John G. Cronin, Cronin & Bisson, of Manchester, for the petitioner. Russell F. Hilliard and Matthew R. Serge, Upton & Hatfield, of Concord, for the respondent.

 Paul McNamara v. Barry R. Hersh, No. 2007-225 (April 4, 2008).

Petitioners and respondents owned abutting lots in Sanbornton. Respondents obtained a permit to build a residence that violated the zoning ordinance by occupying 13 percent of the land rather than the maximum 10 percent. Petitioners sought a declaratory judgment that the permit was unlawfully issued and thus void.

Petitioners, however, never appealed the decision to issue the building permit to the local zoning board of adjustment. Moreover, the underlying issue was not one "peculiarly suited for judicial treatment or resolution," but rather was of a type routinely resolved by local zoning boards. Accordingly, the declaratory judgment action was barred because petitioners failed to exhaust their administrative remedies.

Robert H. Miller, Sheehan Phinney Bass + Green, of Manchester, for the petitioners. Andrew W. Serell, Rath, Young and Pignatelli and Christopher Boldt, Donahue, Tucker & Ciandella, of Portsmouth, for the respondents.

 Community Resources for Justice, Inc. v. City of Manchester, No. 2007-646 (April 18, 2008).

Plaintiff CRJ sought to build and operate a "halfway house" under contract with the Federal Bureau of Prisons. The City of Manchester, applying a zoning ordinance that prohibited correctional facilities in all of its districts, denied CRJ permission to build a halfway house. In the final chapter of litigation that had previously led the Court to revise its standards for intermediate scrutiny review of the constitutionality of legislation under the State Constitution; Cmty. Res. For Justice v. City of Manchester, 154 N.H. 748 (2007); the Court affirmed the trial court’s decision holding Manchester’s zoning ordinance unconstitutional as applied to plaintiff.

The ordinance denied the plaintiff equal protection, as the government failed to demonstrate that the ordinance was substantially related to an important governmental objective. The defendant’s purpose was to address concerns that federal prisoners in a halfway house would pose some threat to the surrounding community or affect property values, but these concerns constituted mere speculation, unsupported by any factual evidence.

The case illustrates the difference between intermediate scrutiny and rational basis review. Under rational basis review, the government may rely upon overbroad generalizations, and justifications that are hypothesized or invented post hoc in response to litigation, to defend legislation against equal protection and substantive due process challenges. Under intermediate scrutiny, the government must back up its assertions with evidence, which the City of Manchester failed to do here.

David A. Vicinanzo, Nixon Peabody LLP, of Manchester, for the plaintiff. Thomas I. Arnold, III, deputy city solicitor, of Manchester, for the defendant.

 Clinton A. Johnson v. Town of Wolfeboro Planning Board, No. 2007-653 (April 4, 2008).

Petitioners, the Johnsons, own a unit at Pine Harbor Condominiums (PHC) in Wolfeboro along Lake Winnepesaukee. Intervenor Sheepshead Bay acquired a neighboring cottage separated by a PHC common area. Sheepshead Bay contracted with PHC to obtain its support to replace the cottage with a much larger dwelling. The planning board granted a special use permit. The Johnsons appealed to the Superior Court, which held that they lacked standing to challenge the permit because PHC acted on behalf of all unit owners in contracting with Sheepshead Bay.

The decisive factor was that the development affected the Johnsons’ rights not only with respect to the shared common area, but regarding their own unit. Other jurisdictions limit the exclusive authority of condominium associations to act on behalf of individual owners over common areas only. Under Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 545 (1979), the Johnsons were a person "aggrieved" by the planning board’s decision, and thus the Court reversed the trial court and held the Johnsons had standing to sue.

James P. Bassett and Jeffrey C. Spear of Orr & Reno, P.A., of Concord for the petitioners. Regina A. Nadeau of Normandin, Cheney & O’Neil, PLLC, of Laconia for the Intervenor, Sheepshead Bay.

Theodore Lothstein is a Litigation Support Attorney for NH Public Defender and the Appellate Defender, Theodore Lothstein has litigated over 60 appeals in the New Hampshire Supreme Court, resulting in a number of significant precedents, including first amendment law, criminal procedure, and evidence.

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