New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

A confidential, independent resource for NH lawyers, judges and law students.

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - December 19, 2008


NH Supreme Court At-a-Glance November 2008 Ė Part 1

By:

NH Supreme Court At-a-Glance November 2008 Ė Part 2

Administrative Law

Appeal of Vicky Morton (Nos. 2008-105, 2008-107)
November 7, 2008
Two consolidated appeals affirmed.

Whether the proper remedy for Petitioners layoff included reinstatement to her previous position; and

Whether the boardís decision that Petitioner did not qualify for the position of Associate Vice President of Academic Affairs was proper.

Vicky Morton appealed two decisions of the New Hampshire Personnel Appeals Board (PAB) ruling that: (1) the proper remedy for her layoff did not include reinstatement to her previous position; and (2) that she did not meet the minimum qualifications for the position of Associate Vice President of Academic Affairs.

In July 2007, the NH Community Technical College System (NHCTCS) notified Peitioner of her layoff because it had abolished her position of Program Coordinator. At the time NHCTCS abolished the position of Program Coordinator and laid her off, there were arguably two other full time Program Specialist II positions within NHCTCS. NHCTCS did not offer Morton either position in lieu of layoff. Petitioner appealed her layoff to the PAB, pointing out that seven part-time employees within her classification had not been laid off.

While the PAB appeal was pending, Petitioner applied for the position of Associate Vice President of Academic Affairs. The position is classified as "Administrator III," which requires seven years of "relevant experience." In addition, four of the required seven years of relevant experience must be "in a management level position involving administrative or supervisory duties concerned with program administration, program planning and evaluation or related management experience." Petitionerís application was disqualified because she did not meet the minimum requirements. Morton asked for her application to be reconsidered. Petitioner appealed that decision to the PAB as well.

he PAB held one hearing to decide both appeals and issued separate decisions for each. In its first decision, the PAB ruled that Petitioner should not have been laid off if there were any positions within the same class filled by less senior employees. The PAB ordered NHCTCS to assign one of the Program Specialist II positions to Petitioner if she met the minimum requirements because she was more senior than the current holder. In its second decision, the PAB found that Petitioner did not meet the minimum work experience requirements to qualify as a candidate for the Associate Vice President of Academic Affairs position. Petitioner appealed both decisions.

Petitioner argued that the proper remedy under RSA 21-I:58, I for her layoff is reinstatement to her prior position as opposed to reassignment to a different position. Second, she argued that the PAB erred in finding she was not qualified for the Associate Vice President of Academic Affairs position because NHCTCS is not permitted to create additional minimum requirements.

Petitionerís argument is twofold: (1) that the rules do not permit her layoff; and (2) that RSA 21-I:58, I, requires she be reinstated to the abolished position of Program Coordinator.

The regulation states that so long as there are part time positions within her class, she cannot undergo a "complete separation . . . from the state classified service." 102.34, 1101.02(d). It says nothing about NHCTCS abolishing her position. Thus, once her position was abolished, NHCTCS was required to examine the other Program Specialist II positions and offer Morton one of those positions in lieu of layoff if she is qualified and more senior than its present holder. 1101.02(e). This is what the PAB found NHCTCS failed to do, and in turn ordered NHCTCS to make such a determination.

At the time of her layoff, Mortonís position no longer existed. Rather, she was an employee awaiting the NHCTCS decision who would be laid off as a result of the positionís abolition. Restoring her to her previous position does not mean reinstatement as Program Coordinator. Rather, it requires a determination of the proper remedy from the moment of the abolition forward.

Did the PAB err in finding that Morton did not meet the minimum requirements for the Associate Vice President of Academic Affairs position?

The language of RSA 21-I:42, II, states that classes are created so that the "same qualifications may reasonably be required" for all positions. The statuteís plain meaning suggests that not all positions within a class will have the exact same qualifications, but rather reasonably similar qualifications. This allows state agencies to group reasonably similar jobs into the same class, but require specific skills for each to ensure the best candidate is hired.

Various positions within state agencies may have the same classifications and general qualifications, as well as the same basic duties, but the specific nature of those positions can require specialized knowledge or experience. "[T]he same" in RSA 21-I:42, II, does not require the exact same requirements in the SJD and class specification. Rather, the SJD must contain substantially and reasonably similar qualifications as those in the class specification. Morton has not shown such a rule to be unjust or unreasonable. Because the SJD in this case contains substantially the same qualifications as the class specification, we affirm the PABís determination that it was valid and that Morton did not meet the requirements.

State Employeesí Association of New Hampshire, Inc., of Concord (Michael C. Reynolds, general counsel, on the brief and orally) for the petitioner.

Kelly A. Ayotte, attorney general (Laura E. B. Lombardi, assistant attorney general, on the memorandum of law and orally), for the State.



Appeal of Parkland Medical Center, Derry Medical Center and Catholic Medical Center (New Hampshire Health Services Planning and Review Board) No. 2007-800
November 7, 2008
Affirmed.

Whether the board erred in applying the CON statute (RSA ch. 151-C) for three reasons: (1) the board ignored its unanimous decision on March 15, 2007, that the Elliot Medical Center requires CON review; (2) the board failed to include the operating lease payments in determining whether the costs exceeded the statutory threshold; and (3) the board failed to require a CON for the transfer of ownership.

Petitioners appeal the decision of the New Hampshire Health Services Planning and Review Board that the Elliot Health System is not required to obtain certificate of need (CON) review for the Elliot Medical Center at Londonderry project. See RSA ch. 151-C.

On August 19, 2005, Elliot notified the board of its intent to build a Medical Office Building exempt from CON review pursuant to RSA 151-C:13, and on October 4, 2006, Elliot requested a determination that the installation of a third fixed magnetic resonance imaging (MRI) scanner would not require a CON. At the October 19, 2006 meeting on the petition, Elliot "suggested the facility would be more than a physiciansí office building and would include services of a hospital outpatient department."

After a hearing on March 15, 2007, the board decided that, with the exception of the "costs associated with Primary Care, Senior Care and Behavioral Health," Elliot Medical Center is subject to CON review.

The Elliot Medical Center was to be developed in three phases. On July 19, 2007, Elliot filed a petition for determination that Phase I of the project is not subject to CON review (NSR petition). The board conditionally approved the NSR petition.

Petitioners requested reconsideration and rehearing. The requests were denied and petitioners appealed.

On appeal, the petitioners argue that the board erred in applying the CON statute for three reasons: (1) the board ignored its unanimous decision on March 15, 2007, that the Elliot Medical Center requires CON review; (2) the board failed to include the operating lease payments in determining whether the costs exceeded the statutory threshold; and (3) the board failed to require a CON for the transfer of ownership.

A CON is needed for the transfer of ownership of an existing health care facility, see RSA 151-C:5, II(b), and the development of a health care facility requiring a capital expenditure in excess of a set amount, see RSA 151-C:5, II(f)(1). There are, however, facilities and services that are exempt from CON review pursuant to RSA 151-C:13. RSA 151-C:13, I(f) provides that such exemptions include: "Facilities and services which are intended to serve only outpatients and which do not require construction of greater than the appropriate threshold level, as determined under RSA 151-C:5, II(a) or RSA 151-C:5, II(f) or new equipment costing more than [an amount adjusted for inflation]."

Petitioners argued that the board erred in ignoring its prior decision. The petitioners argued that the Elliot Medical Center was already constructed and the costs exceeded the statutory threshold. The petitioners argue that the Elliot Medical Centerís very existence violated the CON statute. The petitioners further argue that Elliot did not appeal the boardís prior decision that a CON was required, and thus that decision became final. The petitioners point out that the only change in the NSR petition was the ownership structure.

The petitionersí argument requests application of the doctrine of administrative finality. NH has not adopted the doctrine of administrative finality, although NH has, however, applied a similar test for zoning board of adjustment review in Fisher v. City of Dover, 120 N.H. 187 (1980), and its progeny. Assuming Fisher would apply, Elliotís NSR petition had a material change in circumstances in restructuring the ownership of Phase I. The board determined that "a CON was required for Elliotís project as structured."

RSA 151-C:5, II provides, in pertinent part: "The board shall develop standards for new institutional health services. These include the following: . . . (f)(1) . . . the construction, development, expansion, renovation, or alteration of any . . . health care facility requiring a capital expenditure of more than [$1,537,744]." "Capital expenditure" is defined as:

an expenditure which, under generally accepted accounting principles consistently applied, is not properly chargeable as an expense of operation or maintenance, and includes acquisition by purchase, by transfer, or by lease or comparable arrangement, or through donation, if the expenditure would have been considered a capital expenditure if acquisition had been by purchase.

RSA 151-C:2, VI.

The operating lease is not included within the definition of capital expenditures pursuant to RSA 151-C:2, VI and that the board acted properly in not including the lease payments in considering the NSR petition pursuant to RSA 151-C:5, II(f).

Was CON review was required when Elliot transferred ownership of the facility? Under the plain meaning of the language in RSA 151-C:5, II(b), CON review is required in transferring even part of an existing health care facility. Thus, the issue becomes whether any of the transfers involved an existing health care facility. RSA 151-C:2, XV-a defines "health care facility" to mean "hospitals, ambulatory surgical facilities, specialty hospitals and licensed nursing homes including all services and property owned by such. Phase I currently offers primary care, senior care and behavioral health services. These services do not require a license. See RSA 151-C:2, II(e) (Supp. 2008). Elliot represents, and the petitioners do not dispute, that Phase I is not licensed. The transfer of these services did not trigger CON review.

With the NSR petition, Elliot intends to offer urgent care. Although the addition of urgent care would require licensing, see RSA 151-C:2, I(d), this service was not offered when any of the transfers occurred. Phase I, therefore, is not an existing health care facility. Because none of the transfers involved existing health care facilities, the board did not err in not requiring CON review.

Orr & Reno, P.A., of Concord (John A. Malmberg and Jessica E. Storey on the brief, and Mr. Malmberg orally), for the petitioners.

Shaheen & Gordon, P.A., of Concord (Steven M. Gordon and Arpiar G. Saunders, Jr. on the brief, and Mr. Gordon orally), for the respondent.


Attorney Malpractice

Jose Hilario v. Neil J. Reardon;
2007-390
November 7, 2008
Reversed and Remanded

Whether a legal malpractice claim post-conviction is barred by Mahoney v. Shaheen, Capiello, Stein & Gordon, P.A., 143 N.H. 491 (1999), or in the alternative, whether Mahoney should be overruled.

In 2004, Plaintiff Jose Hilario was indicted in Rockingham and Hillsborough Counties on various charges. He entered into a plea agreement with the State which provided that if he met certain conditions, including cooperating in other prosecutions, the State would petition for the suspension of a portion of his sentence.

In September 2004, Plaintiff began serving a 7-1/2 year minimum sentence. Later that month, Defendant Neil J. Reardon, who was representing Plaintiff, filed a motion to withdraw the plea regarding the Hillsborough County charges. Plaintiff avers that he did not authorize, and was not even aware of, the motion to withdraw. The motion was denied.

In late March 2006, Plaintiff, acting pro se, filed a motion to suspend a portion of his sentence on the theory that he had met the conditions for a suspension agreed to in the plea agreement. The State objected, arguing that by attempting to withdraw his plea, Plaintiff had breached the terms of the agreement. The trial court agreed and denied Plaintiffís motion.

Subsequently, Plaintiff, again acting pro se, filed a civil complaint against Defendant alleging legal malpractice and negligence.

In April 2007, Defendant, relying upon Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491 (1999), moved to dismiss the civil complaint. The trial court granted Defendantís motion to dismiss in an order stating only: "MOTION GRANTED, NO OBJECTION HAVING BEEN FILED." Plaintiffís objection to the motion to dismiss, arguing that Mahoney did not apply to his claims, was not filed until the same day that the trial court issued the order granting the dismissal. Plaintiff appealed, arguing that the trial court erred in granting the motion to dismiss because Mahoney does not bar his claim.

The apparent basis of the trial courtís ruling was not the merits of the partiesí claims, but simply that Plaintiff had not timely objected. The Court held that the trial courtís ruling constitutes plain error.

Plaintiff also argues that Mahoney should either be overruled, or that it does not bar claims such as his, where the claimant is alleging malpractice leading to a wrongful conviction.

Where the alleged legal malpractice occurred after the plea and sentencing, where the claim is unrelated to any strategic or tactical decision relating to Plaintiffís convictions, and where Plaintiff does not argue that but for his attorneyís negligence he would have obtained a different result in the criminal case, the legal malpractice action is not barred by Mahoney.

Jose Hilario, by brief, pro se.

Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz on the brief and orally), for the Plaintiff.

Nelson, Kinder, Mosseau & Saturley, PC, of Manchester (William C. Saturley and Christopher D. Hawkins on the brief, and Mr. Hakins orally), for the Defendant.


Constitutional Law

The State of New Hampshire v. Michelle Chrisicos;
2008-135
November 7, 2008

Reversed and affirmed.

Whether the home confinement provisions of RSA 262:23 violate the Equal Protection Clause of the New Hampshire Constitution.

In August and November 2006, Defendant Michelle Chrisicos was indicted for driving a motor vehicle while deemed a habitual offender, in violation of RSA 262:23. The State prosecuted both indictments jointly. Defendant pled guilty to both counts under a capped plea agreement, pursuant to which the State requested two concurrent sentences of one to two years in the New Hampshire State Prison, stand committed, with home confinement at the discretion of the prison administration in accordance with its rules and regulations.

At the sentencing hearing, the trial court noted even if Defendant was eligible for home confinement, Hillsborough does not have a home confinement program. The trial court noted that due to its lack of a home confinement program, Hillsborough County is the only New Hampshire county "in which a defendant is doomed to serve the full minimum mandatory sentence at the House of Corrections." The court then ruled RSA 262:23, I, facially unconstitutional as violating Defendantís State constitutional right to equal protection.

Notwithstanding that ruling, the court found that Defendant did not qualify for home confinement where she had been charged with two distinct violations of RSA 262:23. The court therefore sentenced Defendant, on both indictments concurrently, to 12 months at the House of Corrections, stand committed.

On appeal, Defendant argues that the trial court erred in finding her ineligible for home confinement. For purposes of this appeal, the Court assumed, without deciding, that Defendant is correct that she is eligible for home confinement under RSA 262:23 despite having been charged with two violations of that statute. The sole issue is the constitutional ruling appealed by the State.

The Court chose to reach the constitutional issue, without deciding the statutory question, for reasons of judicial economy. In light of the uncertainty raised by the trial courtís ruling, the issue of RSA 262:23ís constitutionality will likely continue to arise.

On appeal, neither party seeks application of a more stringent standard than rational basis.

The trial court found and ruled:

"[T]he classification of allowing home confinement only in counties with a home confinement program does not have a rational relationship to the legislative intent and purpose of RSA 262:63 and RSA 262:18. The legislative history indicates that the goals behind home confinement were to minimize the disruption to the offender and family, to lessen the economic loss to the family unit, and to save the Department of Corrections the expense of housing habitual offenders. The failure of the legislature to provide for home confinement programs in each county actually contradicts its expressed intent." (Citation omitted.)

It is not unreasonable that providing sentencing judges in counties with a home confinement program the option of sentencing habitual offenders to home confinement is rationally related to the goals of "minimiz[ing] the disruption to the offender and family, . . . lessen[ing] the economic loss to the family unit, and . . . sav[ing] the Department of Corrections the expense of housing habitual offenders."

Further, it is not inconceivable that the legislature could have intended to allow each county to undertake a separate cost-benefit analysis with respect to a home confinement program. We also cannot conclude that such a purpose is irrational.

Kelly A. Ayotte, Attorney General (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Bernstein, Bartis & Mello, PLLC, of Nashua (Adam Bernstein on the brief and orally), for the Defndant.


Contracts

Bel Air Associates v. New Hampshire Department of Health and Human Services (No. 2008-051)
November 20, 2008
Reversed and remanded.

Whether the 1992 Medicaid provider agreement between petitioner and respondent is a contract.

In 1992 Bel Air Associates (Bel Air), a state-licensed nursing home in Goffstown, entered into a Medicaid provider agreement with the State. Nursing homes are reimbursed on the basis of per diem, per resident rates determined by totaling five rate components, including capital costs. Twice per year, DHHS establishes rates of reimbursement for providers of services to Medicaid-eligible persons through the state medical assistance program. RSA 161:4, VI.

In the mid-1990s, Bel Air received approval from NH Health Services Planning and Review Board to build an addition costing approximately $2 million. At the time Bel Air undertook its new construction, the Medicaid rate-setting process allowed nursing homes to recover most capital costs.

In 2002, DHHS capped on capital cost recoveries at the 85th percentile. In 2006, relying upon RSA 491:8, and the 1992 Medicaid provider agreement, Bel Air brought a claim for breach of contract against DHHS.

The trial court held that the 1992 Medicaid provider agreement was not a contract, and granted DHHSís motion to dismiss.

The agreement was signed by both Bel Air and DHHS, and states that its purpose is "establishing eligibility for payment under the New Hampshire Title XIX Medical Assistance Program." It further states that Bel Air agrees "[t]o comply with such standards for participation as a Skilled Nursing Facility . . . and the making of payments under Title XIX of the Social Security Act as are prescribed by [DHHS]" and that Bel Air will "accept payments by [DHHS] as payment in full." The agreement is "binding upon [Bel Air] and [DHHS]." It "may be terminated by either party at any time following at least 30 days written notice of such intent to terminate" and requires that DHHS hold Bel Air harmless for "any violation of the Federal Privacy Act for any disclosure, public or otherwise, of patientís personal, financial, or medical records where such disclosure is made by [DHHS]."

The 1992 provider agreement contains the essential elements of a contract Ė offer, acceptance, consideration and a meeting of the minds. It is reasonably clear that pursuant to the 1992 provider agreement, Bel Air and DHHS agreed that Bel Air would provide nursing home services to Medicaid-eligible individuals in exchange for reimbursement by DHHS as required by the provisions of Title XIX of the Social Security Act, specifically incorporated by reference in the agreement.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles and Shelagh C.N. Michaud on the brief, and Mr. Quarles orally), for the petitioner.

Kelly A. Ayotte, attorney general (Laura E.B. Lombardi, assistant attorney general, on the brief and orally), for the respondent.


Criminal Law

The State of New Hampshire v. Paul Formella (No. 2007-866)
November 21, 2008
Conviction affirmed.

Whether trial court erred in failing to make findings of fact relative to the timing of Defendantís withdrawal from the theft and the completion of the theft

Whether the defendantís later acts terminated his liability as an accomplice

Defendant Paul Formella appeals his conviction following a bench trial in the Lebanon District Court (Cirone, J.) for criminal liability for the conduct of another. See RSA 626:8.

On June 13, 2007, Defendant, then a junior at Hanover High School, and two friends, returned to the school after it had closed for the day to retrieve some books from their lockers. Upon entering the school, they encountered another group of students who said they intended to steal mathematics exams from the third floor. Defendant and his companions were asked to serve as lookouts during the theft, which they agreed to do. Defendant and his friends then changed their minds and left the school building, but waited in the parking lot. Eventually, the other students exited the school with the stolen examinations and all of the students shared the exam questions.

The next week, someone informed the dean of students about the theft of the exam questions. The police were called, they interviewed Defendant, who admitted his involvement in the theft. Defendant was later charged with criminal liability for conduct of another under RSA 626:8. Following his conviction, Defendant appealed.

On appeal, Defendant contends that the trial court erred in failing to make findings of fact relative to the timing of his withdrawal from the theft and the completion of the theft because, he argues, without such findings the trial court could not properly apply RSA 626:8.

RSA 626:8 provides, in relevant part, that an individual is criminally liable for the conduct of another when he acts as an accomplice in the commission of an offense. A person is an accomplice when with the purpose of promoting or facilitating the commission of an offense, he aids or agrees or attempts to aid another person in planning or committing the offense.

RSA 626:8 further provides, however, that a person is not an accomplice if he "terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness in the commission of the offense or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense."

Defendant became an accomplice in the first instance when he agreed to act as a lookout. The issue is whether Defendantís later acts terminated his liability as an accomplice.

To avoid accomplice liability, an accomplice must make some affirmative act, such as an overt expression of disapproval to the principals. Additionally, any withdrawal must be communicated far enough in advance to allow the others involved in the crime to follow suit. The terminating accomplice need not actually prevent the crime from occurring. Instead, he need only make some act demonstrating to the principals of the crime that he has withdrawn, and he must do so in a manner, and at such a time, that the principals could do likewise.

Defendant did, in fact, terminate his complicity. The issue as framed by Defendant whether he terminated his complicity before the crime was committed. The Court disagreed with this characterization of the issue. The issue for the Court is whether Defendant had terminated his complicity, done so before the crime was committed, and wholly deprived that complicity of its effectiveness.

The relevant portion of the statute is phrased in the conjunctive. For a person not to be an accomplice he must terminate his complicity prior to the commission of the offense and wholly deprive that complicity of its effectiveness. See RSA 626:8, VI(c). Even assuming Defendant terminated his complicity prior to the commission of the offense, he did not wholly deprive his complicity of its effectiveness.

Defendant testified that he and his companions simply left the scene. He did not communicate his withdrawal, discourage the principals from acting, inform the custodians, or do any other thing which would deprive his complicity of effectiveness. In fact, the principals remained unaware of his exit. Thus, the defendant did not do that which was necessary to undo his complicity. As there was no evidence that Defendant had wholly deprived his complicity of its effectiveness, it was not error for the trial court to refuse to make findings on the timing of the offense because such findings would not have altered the result.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State.

Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and orally), for the defendant.


The State of New Hampshire v. Graham Jensen (No. 2007-667)
November 21, 2008
Conviction affirmed.

Whether Defendant, who attempted to pay a toll with tokens, when he knew that tokens were no longer accepted, was properly convicted of theft of services under RSA 637:8.

Defendant Graham Jensen was convicted of theft of services, following a bench trial in Rochester District Court (Ashley, J.).

March 23, 2006, Defendant attempted to pay a toll with two tokens. As of January 1, 2006, tokens were no longer an accepted form of payment on toll roads; a sign posted on the outside of the toll booth indicated this change.

Defendant knew that tokens were no longer accepted and he insisted upon paying with tokens. The attendant asked him to drive into the parking lot to speak with the toll station supervisor and a police officer. Defendant complied, but refused to pay the toll. The police officer issued the defendant a court summons. After a bench trial, the trial court found him guilty of theft of services, a class B misdemeanor.

On appeal, Defendant argues that he cannot be guilty of theft of services because he gave the tokens to the attendant with the intent to pay the toll, and, therefore, the State cannot prove the mental state necessary for theft.

RSA 637:8, I, provides: "A person commits theft if he obtains services which he knows are available only for compensation by deception, threat, force, or any other means designed to avoid the due payment therefor." The use of the Spaulding Turnpike is a service pursuant to RSA 637:8, I, which requires compensation. Defendant focuses upon whether he intended to "avoid the due payment." Defendant argues that because he attempted to pay the toll with tokens, he did not act purposely.

RSA 637:8, I, states that a person is guilty of theft of services "if he obtains services which he knows are available only for compensation by . . . means designed to avoid the due payment therefor." RSA 637:8, I, does not specify a mental state. Although the Court has not previously determined the mental state for theft of services, it assumed that theft of services requires evidence sufficient to show Defendant acted purposely.

At trial, Defendant testified that he "paid the toll" in that he "gave the tokens." He further testified: "I firmly believe that this is a valid form of payment." On cross-examination, he admitted that he knew that the tokens were no longer accepted. Defendant offered the tokens, knowing that they were not accepted, and therefore acted purposely to "avoid due payment." There was sufficient evidence that Defendant had the requisite mental state to be guilty of theft of services.

The legislature passed a law prohibiting the use of tokens. Defendant testified that he was unsure as to when he purchased the tokens and therefore there is no evidence that Defendantís tokens had an expiration date when he purchased them. Furthermore, if the legislatureís decision to stop the use of tokens resulted in a Consumer Protection Act violation, Defendantís remedy is pursuant to the Consumer Protection Act, see RSA 358-A:10 (1995), and not to violate the criminal law.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the memorandum of law, and Susan P. McGinnis, senior assistant attorney general, orally), for the State.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.


The State of New Hampshire v. Matthew Kincaid (No. 2007-398)
November 20, 2008
Conviction affirmed.

Whether by failing to hold a hearing on Defendantís competency, the trial court violated his right to due process.

Defendant Matthew Kincaid was convicted by a jury in Superior Court (Mangones, J.) on two counts of negligent homicide under RSA 630:3.

In September 2004, following a single vehicle crash during which a passenger in his vehicle was killed, Defendant was indicted for negligent homicide. Prior to trial, he moved to suppress evidence of his blood alcohol content, post-arrest statements, and field sobriety tests. The Trial Court (Fitzgerald, J.) denied his motions, and Defendant was subsequently convicted.

Defendant filed a motion to stay sentencing, pending a competency hearing and evaluation. He claimed he could not remember the accident due to a head injury, and thus "could not intelligently and rationally discuss the case with his [attorney]." The trial court denied the motion without a hearing and imposed sentence.

Defendant appealed, arguing that by failing to hold a hearing on his competency, the trial court violated his right to due process. A trial court, in order to comply with due process, must order an evidentiary hearing on the issue of competency where there is a bona fide or legitimate doubt about whether a criminal defendant is competent to stand trial.

In this case, Defendant claimed amnesia. He did not allege that he behaved irrationally or that his demeanor at trial was out of the ordinary. He argued that because he is not able to remember the crash, the events leading up to it, and what transpired immediately thereafter, he lacked "a sufficient present ability to consult with and assist his [trial counsel] with a reasonable degree of rational understanding."

The Concord Hospital Radiology report from the night of the crash lists the diagnosis as "facial laceration," and notes "no evidence of mandibular fracture." The Concord Fire Department Patient Record Report concerning Defendant states: "Level of Consciousness: Alert," and "[patient has] minor facial injuries." Defendant told a police officer at the scene that "he had not hit his head."

Nevertheless, the Court assumed, without deciding, that Defendant has no memory of the accident. That claim alone, however, does not automatically raise a bona fide or legitimate doubt triggering a due process right to a competency hearing. There are many ways a defendant can consult with and assist his trial counsel with a reasonable degree of rational understanding without necessarily remembering the details or circumstances of an event that led to his arrest.

The record before the trial court essentially contained only a representation that Defendant suffered amnesia. In the exercise of its discretion, the trial court could reasonably have concluded that no bona fide or legitimate doubt arose as to the defendantís competency.

Kelly A. Ayotte, attorney general (Nicolas Cort, assistant attorney general, on the brief and orally), for the State.

Sisti Law Offices, of Chichester (Mark L. Sisti and Adam Cook on the brief, and Mr. Sisti orally), for the defendant.


The State of New Hampshire v. Dante Silva (No. 2007-536)
November 20, 2008
Conviction affirmed.

Whether the fact that the victim was a willing participant in the drug use is a defense to a conviction of dispensing a controlled drug with death resulting that under RSA 318-B:26, IX(b)(2).

Defendant Dante Silva appealed his conviction after a jury trial in Superior Court (Nadeau, J.) on one count of dispensing a controlled drug with death resulting, see RSA 318-B:26, IX (2004), arguing that: (1) there was insufficient evidence to convict him; and (2) his rights under Part I, Article 15 of the State Constitution and the Sixth Amendment of the Federal Constitution to confront witnesses against him were violated when the State failed to produce the laboratory technician who tested the victimís blood.

March 14, 2006, Defendant contacted his drug dealer to buy heroin. They agreed to meet. The victim accompanied Defendant. The dealer sold Defendant two bags of heroin, interacting solely with the Defendant.

Later that day, Defendant contacted the dealer for a second purchase. The dealer told Defendant to meet him in another parking lot. Defendant, again accompanied by the victim, drove to the location. The dealer noticed the victim but did not recognize her and observed only that she was a "small girl [with] dark hair." The dealer was unaware that the heroin was for both the defendant and the victim.

Defendant and the victim injected the heroin back at Defendantís residence. Early the next morning, the defendant woke up and left for work. Later, someone from Defendantís residence called the police and informed them that the victim was unconscious and unresponsive. She was transported to a hospital where she was later pronounced dead.

Defendant admitted that he and the victim had been using heroin every day for the previous three weeks. He was charged with one count of dispensing a controlled drug with death resulting, under RSA 318-B:26, IX, which provides that "[a]ny person who . . . dispenses . . . [certain] controlled drugs . . . is strictly liable for a death which results from the injection."

To convict Defendant, the State had to prove, among other things, that he "dispense[d]" heroin to the victim. RSA 318-B:26, IX (2004). "ĎDispenseí means to distribute, leave with, give away, dispose of, deliver, or sell one or more doses of . . . a drug." RSA 318-B:1, VII (2004).

The victim was present during both drug transactions, withdrew money from an automated teller machine to buy the heroin, and wanted to purchase the heroin. However, the jury could have reasonably concluded that Defendant dispensed heroin to the victim only after acquiring the heroin from the dealer. It is not a defense to dispensing a controlled drug with death resulting that the victim was a willing participant in the drug use. See RSA 318-B:26, IX(b)(2).

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Dennehy Law Group, PLLC, of Salisbury (James W. Dennehy on the brief and orally), for the defendant.


Criminal Law / Statutory Construction

The State of New Hampshire v. Evelyn Bernard; 2007-822
November 6, 2008
Reversed and remanded.

∑  Whether a flood constitutes a scene of emergency within the meaning of RSA 154:9.

The State appeals an order of the Hooksett District Court (LaPointe, J.) dismissing a complaint against Defendant Evelyn Bernard for failure to obey a command at the scene of an emergency.

On April 16, 2007, the Chief of the Allenstown Fire Department declared a state of emergency in portions of Allenstown that had become flooded and instructed his officers to enforce a mandatory evacuation of the area. At around 7:15 p.m., the fire department called Allenstown Police to assist them in evacuating Defendant and her husband. Defendant became confrontational and indicated that she did not want to leave. She was arrested.

On September 11, 2007, the State filed a complaint, pursuant to RSA 154:9, alleging that Defendant had failed to obey a fire officialís command at the scene of an emergency. Before trial, the State filed a motion in limine requesting that the trial court find that a flood constitutes an emergency under the applicable statutes. Defendant moved to dismiss the complaint on the ground that a flood is not an emergency. The trial court dismissed the complaint, and denied reconsideration.

The Court reviewed the trial courtís statutory interpretation de novo.

"While any duly constituted fire department recognized by the state fire marshal is responding to . . . a fire, service call, or other emergency, the fire officer in charge shall have . . . the authority. . . [t]o order any persons to leave any building or place in the vicinity of such sceneÖ." RSA 154:7, II(b). Further, "[r]efusing or neglecting to obey the commands of . . . the fire department" at the scene of "a fire, emergency, or service call" is a violation. RSA 154:9.

The plain meaning of the phrase "other emergency" includes floods. An emergency is "an unforeseen combination of circumstances or the resulting state that calls for immediate action," "a pressing need" or "a usu[ally] distressing event or condition that can often be anticipated or prepared for but seldom exactly foreseen." Websterís Third New International Dictionary 741 (unabridged ed. 2002). A flood meets this definition.

Kelly A. Ayotte, Attorney General (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Peter J. Leahy, of Concord, by memorandum of law and orally, for the Defendant.


The State of New Hampshire v. Gladys Durgin; 2008-033
November 6, 2008

Reversed.

∑  Whether evidence at trial was sufficient to convict Defendant of harboring or concealing another within the meaning of RSA 642:3, I(a).

∑  Whether lying to the police about the whereabouts of a suspect constitutes harboring or concealing another within the meaning of RSA 642:3, I(a).

In August 2007, members of the Webster Police Department went to Defendantís home with an arrest warrant for her daughter. They did not have a search warrant for the house. When the officers informed Defendant that they had a warrant for her daughterís arrest, she denied that her daughter was there. An officer asked if he could check inside the home; Defendant said that she would not allow this absent a search warrant. The police left shortly thereafter.

Defendantís daughter was, in fact, in Defendantís home at the time. Less than an hour after the police left, Defendant, her daughter and her son-in-law went to the Webster police station, where the daughter was arrested.

RSA 642:3, I(a) provides: "A person is guilty of an offense if, with a purpose to hinder, prevent or delay the discovery, apprehension, prosecution, conviction or punishment of another for the commission of a crime, he: (a) Harbors or conceals the other." The phrase "harbors or conceals" is not defined.

The issue is whether lying to the police, without more, constitutes "harboring or concealing" within the meaning of RSA 642:3, I(a).

The facts of this case are distinguishable from State v. Maloney, 126 N.H. 235, 237 (1985). In Maloney, The defendant in Maloney lied to the police, telling them that her husband was not at home. She then informed her husband about the warrant and secreted him upstairs. The defendant in Maloney "rendered actual aid to the fugitive" by telling him about the warrant and hiding him upstairs. Therefore, the acts of the defendant in Maloney were sufficient to constitute "harboring" as used in the statute.

Convicting a defendant of harboring or concealing another under RSA 642:3, I(a) requires proof of a physical act of assistance beyond merely lying in response to police inquiries about the otherís whereabouts.

The evidence was insufficient to have convicted the Defendant of "harboring or concealing." Upon learning of the warrant for her daughterís arrest, Defendant lied to the police and required them to obtain a warrant before entering her home but, soon after the police left, went with her daughter to the police station so that the daughter could turn herself in. Requiring the police to obtain a warrant did not constitute harboring or concealing under the statute.

Defendantís lie in response to police inquiries, standing alone, is insufficient to convict her of "harboring or concealing" her daughter.

Kelly A. Ayotte, Attorney General (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law, and Susan P. McGinnis, senior assistant attorney general, orally), for the State.

Pizzamenti & Immen, of Concord (Dennis Pizzamenti on the brief and orally), for the Defndant.


The State of New Hampshire v. Dennis Pratte; 2007-923
November 6, 2008
Reversed.

∑  Whether, under the circumstances of this case, a bow and arrow constitutes a deadly weapon under RSA 159:3, I

Defendant Dennis Pratte appeals the denial of his motion for judgment notwithstanding the verdict (JNOV) by the Superior Court (Nadeau, J.), following his conviction for being a felon in possession of a deadly weapon.

At trial, the State introduced evidence that Defendant had a bow, with several arrows in his residence. The State also presented evidence that Defendant had used the bow and arrow to shoot and kill a porcupine on his property at some point in the past. Defendant was convicted by a jury of being a felon in possession of a deadly weapon. Subsequently, the defendant moved for JNOV. The trial court denied the motion.

The primary issue is whether, under the circumstances of this case, any rational trier of fact could have found that the bow and arrow constitutes a deadly weapon.

RSA 159:3, I, provides that a person is guilty of a class B felony if he "[o]wns or has in his possession or under his control, a pistol, revolver, or other firearm, or slungshot, metallic knuckles, billies, stiletto, switchblade knife, sword cane, pistol cane, blackjack, dagger, dirk-knife, or other deadly weapon as defined in RSA 625:11, V" and has been convicted of a proscribed felony.

A bow and arrow is not one of the enumerated weapons under RSA 159:3, I(a); therefore, to be considered a "deadly weapon" for purposes of that statute, a bow and arrow must fall within the definition of a deadly weapon under RSA 625:11, V (2007). RSA 625:11, V defines deadly weapon as "any firearm, knife or other substance or thing which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury."

The State was required to prove not only that the defendant possessed the bow and arrow, but that in the manner the defendant used, intended to use, or threatened to use the bow and arrow, it was capable of producing death or serious bodily injury.

The State asserts that it satisfied this element by proving that the defendant actually used the bow and arrow in the past to cause a death, the death of the porcupine and that the death of an animal in the past is sufficient to prove that the defendant used the bow and arrow in a manner capable of producing death or serious bodily injury for purposes of RSA 625:11, V. Defendant, however, argued that RSA 625:11, V should be construed to include only death or serious bodily injury to a human, not that of an animal. The Court agrees with the defendant.

RSA 625:11, V does not specify that the phrase "death or serious bodily injury" pertains to a human being. However, to hold otherwise renders the statute impermissibly vague. Taking the Stateís interpretation to its logical conclusion, any "substance or thing" used to produce the death of any living thing is a deadly weapon under RSA 625:11, V. Under the Stateís interpretation, the terms "death" and "serious bodily injury" are simply too vague to adequately notify the ordinary person of what may be included under the statute, thus ultimately rendering the statute unconstitutional. Here, the more logical reading of the statute, and the constitutionally permissible one, is to interpret RSA 625:11, V as limited to causing death or serious bodily injury to a human. If the legislature did not intend this interpretation, it is free to amend the language of the statute as it sees fit.

The only evidence in this case demonstrating actual use involved the use of the bow and arrow to kill a porcupine. There was no evidence presented from which any rational trier of fact could have concluded that the manner in which the defendant used, intended to use, or threatened to use the bow and arrow was known to be capable of causing the death of, or serious bodily injury to, a human. Because the death of the porcupine, standing alone, was insufficient to convict the defendant under RSA 159:3, I, the trial court erred in denying his request for JNOV.

Justice Dallianis dissented because, unlike the majority, [she] believe[s] that the bow and arrow that he used to kill a porcupine is a deadly weapon.

Kelly A. Ayotte, Attorny General (Francesca Stabile, attorney, on the brief and orally), for the State.

Jeffco, Starbranch & Soldati, of Portsmouth (Harry N. Starbranch, Jr., on the brief and orally), for the Defendant.

NH Supreme Court At-a-Glance November 2008 Ė Part 2



Jill Dinneen is an attorney at Rath, Young and Pignatelli, P.C. in Concord. She practices primarily in project finance of renewable energy projects and corporate transactions. She is admitted in New Hampshire, and in New York, where she began her legal career.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer