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Bar News - July 17, 2009

NH Supreme Court At-a-Glance - June 2009


Appeal of Jean-Guyís Used Cars & Parts, Inc.; 2008-685
June 17, 2009

  • Whether responding to calls to tow vehicles as part of a contract with a police department is considered "in connection with business" for purposes of RSA 261:129 so as to justify using junk motor vehicle license plates on a businessís tow truck?
Defendant is a business that has a registered junk motor vehicle dealership and tow service. Defendant had a contract with the Pelham Police Department to tow disabled, stuck, abandoned and seized vehicles when called by the police. When Defendant towed a vehicle that was not ultimately claimed, Defendant kept the vehicle as part of its junk vehicle business. At some point Defendant was informed by a state trooper that it was illegal for it to use its junk dealer license plates on its tow trucks when responding to such calls. Defendant requested a hearing with the Department of Safety (DOS) and the DOS agreed with the State and issued an order suspending the Defendantís junk dealer license for 60 days and then held the order in abeyance for one year conditioned upon Defendant having no further violations of RSA 261:129, the statute regulating such licenses. Defendant filed a motion for reconsideration that was denied and then appealed.

RSA 261:129 sates, in relevant part, that an automotive recycling dealer [or junk dealer] that has vehicles registered with junk registration and plates, "shall not permit to be used motor vehicles so registered, except for demonstration purposes or service in connection with his business." The Court took a broad interpretation of "in connection with his business" and held that some of the police calls to Defendant resulted in Defendant towing cars that were ultimately not claimed and that Defendant was able to use as part of its junk dealer business so Defendantís use of its junk motor vehicle license plates was "in connection with [its] business" within the meaning of RSA 261:129 and the DOS decision was "clearly unreasonable and unlawful."

Munilaw Group, of Epsom (Tony F. Soltani on the brief and orally), for the plaintiff.

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

IMO Kathaleen A. Dufton and Terry L. Shepard, Jr.; 2008-712
June 3, 2009
Reversed and Remanded

  • Whether a grandmother who has relinquished her parental rights over her daughter is the "natural" grandmother of her daughterís children for purposes of the grandparent visitation statute, RSA 461-A:13?
The Petitioner, Kathaleen A. Dufton ("grandmother") was the biological mother of Vicki Shepard ("daughter"). The grandmother was only 16 when she gave birth to her daughter and relinquished her parental rights over her so that she could be adopted. The daughter later married the Respondent, Terry L. Sheppard, Jr. and the couple had children. When the daughter was 26 she reunited with her mother and they became very close. From that point on the grandmother was very much involved in the lives of her daughter and her grandchildren. The daughter later died of cancer and the Respondent denied the grandmother visitation with her grandchildren. The grandmother petitioned for visitation and the Respondent moved to dismiss the petition arguing the grandmother lacked standing because she was not the natural grandmother of the children for purposes of RSA 461-A:13, rather she was an "unrelated third party." The Marital Master (Forrest, M.) agreed and the Cheshire County Superior Court (Arnold, J.) granted the Respondentís motion to dismiss. This appeal followed.

The Court ruled the grandmother was the "natural" grandmother of the children. The Court reasoned a "natural parent is a parent who has conceived or Ďbegottení a child, as opposed to a parent who has adopted a child." The Court decided that the grandmother did not give up her standing as the "natural" grandmother when she gave up her parental rights over her daughter and the grandmother had standing to petitioner for visitation under RSA 461-A:13.

Nadeau Law Offices, PLLC, of Portsmouth (Justin P. Nadeau on brief and orally), for the grandmother.

Bradley & Faulkner, P.C., of Keene (Douglas F. Green and Susan R. Abert on brief, and Ms. Abert orally), for the father.

Nicholas Gilman, Trustee of the Nicholas Gilman Trust v. Lake Sunapee Properties, LLC; 2008-598
June 17, 2009
Reversed and Remanded

  • Whether a right to a jury trial attaches to an appeal of a petition to partition?
This case involves a petition to partition land located in New London, New Hampshire. Petitioner originally filed its petition to patrician in the Merrimack County Probate Court (Hampe, J.) which ordered physical partition of the property. Respondent appealed to the Merrimack County Superior Court requesting a jury trial pursuant to RSA 547-C:3(2007)(repealed 2008). Petitioner filed a motion to dismiss arguing there is no right to a jury trial in equitable matters and the Superior Court (Conboy, J.) granted the motion. Respondent appealed arguing it had a right to a jury trial pursuant to Part I, Article 20 of the New Hampshire Constitution and RSA 547-C:3.

The Court began its analysis by looking at RSA 547-C:3, which provides: "In cases where a right to jury trial is guaranteed by the constitution, a person may, at the time judgment by the probate court is declared, appeal therefrom to the superior court." Thus, Respondentís right to a jury trial is conditioned upon "whether it has a constitutional right to a jury trial." The Court engaged in a detailed analysis of the right to a jury trial under the New Hampshire Constitution as well as the history of the petition to partition that traced the cause of action back to English common law. The Court ultimately held "our constitution provides for a right to a jury trial when requested in partition matters". The Court noted the RSA 547-C:3 has recently been amended to provide the superior court with exclusive jurisdiction in a case in which there is a constitutional right to a jury trial, thus, "any future partition action where any party requests a jury trial must be originally heard in the superior court."

In a special concurring opinion by Justice Hicks, the Court stated that Superior Court Rule 73 gives superior court judges the right to "set aside the juryís decree if it offends the traditional notions of equity." The opinion goes on to state: "Consequently, I do not read the majorityís opinion as relieving the courtís duty to set aside an inequitable remedy."

Orr & Reno, P.A., of Concord (James P. Bassett & a. on brief, and Mr. Bassett orally), for petitioner.

Sheehan Phinney Bass & Green, P.A., of Manchester (Christopher Cole and Courtney H.G. Herz on the brief, and Mr. Cole orally), for the respondent.

William Soukup & a. v. Robert Brooks & a., 2008-749
June 12, 2009
Reversed and Remanded
  • Whether trial court erred in ruling that an easement did not exist over Petitionersí lot?
Petitioner sought to quiet title to property over which Respondents claimed an easement. The property at issue was originally owned by one party who subdivided it into three lots. The subdivision plan depicted an easement that ran through all three lots. Subsequently, Respondents purchased two of the lots and Petitioner purchased the third lot. Petitioner then filed a petition to quiet title claiming Respondents did not have an easement over Petitionersí lot because at the time the easement was noted on the plan, all three lots were owned by one person and he could not have created an easement over property he had a right to enter and traverse. The Grafton County Superior Court (Burling, J.) ultimately granted summary judgment in favor of Petitioner ruling no easement had been created and therefore no easement was conveyed to Respondents when they purchased their lots. Respondents filed a motion for a further hearing on their defenses of unclean hands, unjust enrichment and various theories of estoppels. The Superior Court (Bornstein, J.) granted summary judgment in favor of the Petitioners with regard to these defenses as well. Respondents appealed arguing that the Court erred in finding the original owner could not have created an easement over his own property and arguing the Superior Court had ignored the subdivision plan creating the lots and the easement.

The Court initially ruled that the subdivision plan itself was insufficient to create an easement and then went on to address whether an easement had been created by written conveyance, rather than by implication or by prescription. The Court ultimately concluded that the plan, in combination with the Respondentsí deed to their lots, created an easement over Petitionersí lot. The Court reasoned the Respondentsí deed expressly referenced the easement and, in combination with the subdivision plan, clearly evinced the original ownerís intent to create and convey the easement to Respondents.

Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P. Spinella, Jr. on brief and orally), for the petitioners.

Stan B. Brinkman, of Woodsville, by brief and orally, for the respondents.

The State of New Hampshire v. Lake Winnipesaukee Resort, LLC & a.; 2008-724
June 17, 2009
Affirmed and Remanded

This interlocutory appeal raised three issues:
  • Whether a civil action brought by the State to recover a monetary penalty under RSA 482-A and 485-A, is subject to the three-year limitations period set forth in RSA 508:4?
  • Whether the State has an unlimited period of time within which to bring suit under civil enforcement statutes like RSA 482-A and 485-A, which do not contain specific limitations periods?
  • Whether the State is immune from RSA 508:4 under the doctrine known as nullum tempus occuritt regi ("time does not run against the king)?
Defendants in this matter are Lake Winnipesaukee Resort, LLC and Peerless Golf, Inc. The case arises out of a project to build a golf course. In 2001 Defendants were contacted by the NH Department of Environmental Services (DES) and ordered to mitigate environmental damage and to cease disturbing soil. DES ultimately issued permits allowing the construction to be completed. In August of 2006 the State petitioned the Strafford County Superior Court for civil monetary penalties for alleged violations of RSA 482-A ("Fill and Dredge in Wetlands") and 485-A ("Water Pollution and Waste Disposal"). Defendants raised the defense of statute of limitations and moved to dismiss. The Superior Court (Fauver, J.) denied the motion and approved Defendantsí interlocutory appeal.

The Court held the doctrine of nullum tempus is recognized in New Hampshire and it has not been abrogated by statute. The Court distinguished the defense this defense from the doctrine of laches which Defendants did not raise in this matter. The Court held that RSA 508:4, I generally establishes a three year statute of limitations for personal injury and contract actions, but the instant matter was not within the statuteís ambit. Finally, the Court noted that due process generally protects against undue delay in bringing this type of action, but the Defendants failed to raise due process in its petition for an interlocutory appeal.

Kelly A. Ayotte, attorney general (Daniel J. Licata, attorney, on the brief and orally), for the State.

Hinkley, Allen & Snyder LLP, of Concord (Christopher H.M. Carter & a. on the brief, and Mr. Carter orally), for Lake Winnipesaukee Resort, LLC.

Hall, Morse, Anderson, Miller, & Spinella, P.C., of Concord (Frank P. Spinella, Jr. on brief and orally), for Peerless Golf, Inc.

The State of New Hampshire v. Mohamed Daoud; 2008-206
June 3, 2009

  • Whether Defendant was seized when he had an encounter with a police officer in the lobby of an Inn?
Defendant appealed the Hillsborough County Superior Court, Northern Districtís (Abramson, J.) denial of his motion to suppress based on an illegal seizure and his ultimate conviction of, among other charges, operating a motor vehicle while certified as a habitual offender (RSA 262:23). The arresting officer was monitoring traffic at 7:30 a.m. in Manchester. Defendant was operating a vehicle and was about to pull into the driveway of the Manchester Inn when he saw the officer and, after making eye contact, turned his vehicle out of the parking lot and drove away. The police officer followed the vehicle and saw Defendant pull into another entrance to the Inn. The police officer exited his vehicle and approached the entrance to the Inn on foot. The officer saw Defendant standing in the lobby of the Inn and found the door locked. The officer knocked on the door and told Defendant to open the door and Defendant complied. The police officer questioned the Defendant about where he was coming from and why he was there and then asked to see Defendantís identification. When Defendant produced a non-driverís identification the officer ran it and found out that Defendant was certified as a Habitual Offender. The Officer then arrested him.

The Court held Defendant was not seized until the police offer learned that he had been certified as a habitual offender and placed him under arrest. The Court reasoned that a reasonable person in Defendantís position would have felt free to leave prior to that point. The Court stated:

Nothing in the record, however, suggests that the officerís request to open the door conveyed that the defendantís compliance was required. To the contrary, the trial court expressly found that there was "no evidence that the defendant felt bound to open the door." The record is devoid of any evidence that once the defendant opened the door, Officer Tyler touched him or used authoritative language or tone. The officerís verbal exchange with the defendant while standing in the lobby conveyed the casual nature of the encounter. A reasonable person would not have taken the officerís question, "what they were up to," as a show of authority. Nor did the officerís request to see the defendantís identification constitute a seizure.

Kelly A. Ayotte, attorney general (Diana E. Fenton, assistant attorney general, on the brief and orally), for the State.

Theodore Lothstein, formerly assistant appellate defender and currently of Lothstein Law Offices, of Concord, orally , for the defendant.

The State of New Hampshire v. Jennings; No. 2008-289
June 12, 2009

Defendant appeals his conviction of prohibited uses of computer services.
  • Whether RSA 649-B:4 is limited to instances in which a defendant uses a computer online service, internet service or bulletin board to communicate with a complainant for a prohibited purpose?
Defendant was convicted of, among other charges, using his computer to show his daughter pornographic pictures in connection with Defendantís sexual assault of her. Defendant appealed his conviction and argued that RSA 649-B:4 requires proof that a defendant "utilize" a computer for purposes prohibited by the statute and that "utilize" means "communicate." Defendant argued since there was no evidence that he communicated with his daughter using his computer, the State failed to prove this charge. The Court took a much broader view of the ambit of the statute interpreting the word "utilize" as meaning "use." Thus, one who uses a computer for one of the prohibited purposes has violated the statute. The Court ruled that there was evidence that Defendant used his computer for a prohibited purpose and affirmed the conviction.

Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief), for the State.

Paul Borchardt, public defender, of Dover, on the brief and orally, for the defendant.

The State of New Hampshire v. Robinson; 2008-009
June 12, 2009
Reversed and Remanded

  • Whether the trial court erred by denying Defendantís motion to suppress warrantless search of his car performed by a police officer who took a key found at the scene of a robbery and inserted it into the car door to see if it fit?
  • Whether trial court erred by denying motion to suppress evidence obtained by police after they entered Defendantís apartment without a warrant and conducted a search of the apartment?
Defendant was convicted of robbery and first degree assault for entering a store in Manchester and stabbing the storeís clerk three times before leaving with cash taken from the register. After the robbery a witness gave a description to police officers who arrived at the scene that included a description of some of the clothing the assailant was wearing. At the scene a police officer found a set of keys near the cash register. The officer took the keys outside and fitted them into a nearby vehicle and determined that they fit. The police then ran the registration of the vehicle and identified Defendant as its owner. A number of police officers then went to Defendantís apartment and surrounded the building. Police officers knocked on the door to the apartment and no one answered. After going downstairs and showing a neighbor a picture of Defendant for identification, the police returned and knocked on the door again. This time a woman answered the door and the officers immediately ordered her down on the ground and pointed their weapons at her. The officers then entered the apartment and looked in a closet where they discovered clothing that matched the clothing the assailant was wearing. The woman then told the officers that Defendant was in the bedroom holding a knife to his chest. The police entered the bedroom and arrested Defendant.

Defendant moved to suppress the search of his car and the warrantless entrance into and search of his apartment. The Hillsborough County Superior Court, Northern District (Barry, J.) denied his motions focusing on the exigency that existed once the woman told the police he was holding a knife to his own stomach. The Court found the police did not rely on the information gleaned from fitting the key into the car door and did not rule on his request to suppress that warrantless search. Defendant appealed.

The Court held that the search of the vehicle was permissible because the police did not search the inside of the vehicle and only determined that the key fit the lock to its door. The Court stated that if the officer had searched the vehicle after opening the door, that search would have violated Defendantís rights under Part I, Article 19 of the NH Constitution.

The Court then assumed, for purposes of its analysis only, that there was probable cause for the police to enter the apartment. The Court went on to hold that the warrantless entrance into the apartment was unconstitutional under Part I, Article 19 of the NH Constitution. The Court ruled that there was not an exigency that would have allowed the warrantless search because "the police had no knowledge of any exigency until after they entered the home" and the Court ruled that the State could not rely on "the ensuing exigency to justify the initial entry." The Court declined to adopt a "fleeing suspect exigency" and also ruled that this was not a case of "hot pursuit" as 45 minutes had passed between the time of the incident and the time the police arrived at the apartment building. The Court reviewed the totality of the circumstances demonstrated and determined there was no reason to believe, prior to entry, that Defendant was a danger to himself or to anyone else, nor was there a reason to believe that there was danger that evidence would be destroyed or that Defendant would flee. Defendant returned to his residence which militated against finding an exigency and the police had the building surrounded and did not even attempt to obtain a warrant before entering Defendantís residence.

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

Theodore Lothstein, formerly assistant appellate defender and currently of Lothstein Law Offices, of Concord, on the brief and Paul Borchardt, assistant appellate defender, of Concord, orally, for the defendant.

The State of New Hampshire v. Ronald Tayag; 2008-380
June 17, 2009

  • Whether State presented sufficient evidence to prove that Defendant acted knowingly when he digitally penetrated Complainant?
  • Whether Complainantís testimony concerning her own age was sufficient, without corroboration, to establish her age for purposes of aggravated felonious sexual assault statute?
Defendant appeals Rockingham County Superior Courtís (Lewis, J.) denial of his motions to dismiss. Defendant was convicted, after a jury trial, of aggravated felonious sexual assault for digitally penetrating Complainant. The evidence at trial was that Complainant and Defendant stayed at a rented beach house with other members of their family. One night Complainant awoke to find Defendant digitally penetrating her while standing over her. As soon as Complainant awoke Defendant ran back to his cot. Complainant then testified that she was twelve years old and testified, over Defendantís hearsay objection, about her date of birth. This was the only evidence presented by the State to prove Complainantís age.

The Court held there was sufficient evidence to prove Defendant acted knowingly. The Court stated there was no evidence that the act was done negligently or recklessly and Defendantís conduct after Complainant awoke could have indicated that Defendant "knew what he was doing and knew that it was wrong."

The Court held that Complainant could testify about her date of birth and the State did not need to corroborate the testimony with a birth certificate. The Court distinguished State v. Ebelt, 121 N.H. 143 (1981), stating that corroboration of this kind of testimony would be required if there was evidence that a complainant may have had a different birthday or that indicated her testimony might otherwise be untrustworthy.

Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Todd Russell, defender, of Manchester, on brief and orally, for the defendant.

The State of New Hampshire v. Eric Tyler; 2008-079
June 3, 2009

  • Whether trial court erred by refusing to give jury instruction requested by Defendant regarding acquittal of charges?
Defendant was accused of assaulting the complainant as part of a domestic dispute. Defendant was originally charged with four counts of simple assault: one for striking Complainant with a souvenir bat; two counts for striking Complainant with soda cans; and one count for striking Complainant with hot candle wax. After trial in the District Court, Defendant was only convicted of the last count of assaulting Complainant with candle wax. Defendant took de novo appeal and during jury trial in the Rockingham County Superior Court Complainant testified that she was assaulted by the bat, the soda cans and the candle wax. Defendant requested a jury instruction that he was acquitted of former three charges at previous trial and Superior Court (Nadeau, J.) denied his request electing to instruct the jury "not to consider the other alleged assaults in reaching a decision on whether he [Defendant] is guilty or not guilty of this [candle wax] offense," and further instructing them not to "speculate or guess as to why it is that this is the one charge before you." The jury convicted Defendant and he appealed.

The Court reasoned that the jury is presumed to follow the instructions of the trial court and that there was nothing done by the court or the State that would have lead the jury to think that Defendant was convicted of those other charges.

Kelly A. Ayotte, attorney general (Peter Hinckley, assistant attorney general, on the brief, and Elizabeth J. Baker, assistant attorney general, orally), for the State.

Alexander E. Roth, public defender, of Dover, on the brief and orally, for the defendant.

The State of New Hampshire v. Whittaker; Nos. 2003-305, 2008-312
June 3, 2009
Reversed and Remanded

Negligent homicide case in which Defendant raised three issues on appeal:
  • Trial court erred by denying motion in limine to exclude testimony of Stateís accident reconstruction expert;
  • Trial court erred by granting stateís motion in limine to exclude portions of the testimony of a state trooper; and
  • Trial court erred by denying Defendantís motion for a new trial based on claim of ineffective assistance of counsel.
Defendant was convicted of negligent homicide after a jury trial. Defendant was accused of striking decedent with his vehicle while being under the influence of alcohol. The collision occurred on a rainy and foggy night and there was some question as to whether Defendant could have seen the decedent, who was wearing dark clothing, prior to striking him. The theory of defense was based on whether Defendantís impairment caused the collision. Defendant had filed a motion in limine to exclude testimony of the Stateís accident reconstruction expert which was denied by the Strafford County Superior Court (Fauver, J.) and the State filed a motion in limine to admit certain portions of the testimony of a state trooper, which was granted. After trial Defendant filed a motion for a new trial based upon an allegation of ineffective assistance of counsel for not consulting with an accident reconstruction expert of his own and this motion was also denied. Defendant appealed.

The Court declined to address the issues concerning the in limine rulings by the trial court because they were not properly preserved. The Court spent considerable time analyzing the claim of ineffective assistance of counsel. The Court relied on the statement of another accident reconstruction expert attached to Defendantís motion for a new trial, stating although a full accident reconstruction could not have been performed based on the evidence, the expert might have been able to render an opinion that the collision was unavoidable, regardless of Defendantís intoxication, if the expert was allowed to base his opinion on certain assumptions about the collision.

The Court ultimately held that it was ineffective for Defendantís counsel not to have consulted with an accident reconstruction expert. The Court stated:

Under the unique circumstances of this case, it was not sufficient for trial counsel merely to "poke holes" in the Stateís case. Rather, because he knew that the Stateís case relied upon expert testimony that used certain assumptions, it was constitutionally deficient performance for trial counsel not to consult with an expert to learn what the expert could conclude based upon these same or similar assumptions. Had he done so, he might have been able to present an affirmative case that the defendantís impairment did not cause [the decedentís] death.

The Court stated it did not intend to imply that defense counsel must always consult with an expert in all cases in which the prosecution calls an expert to prove an element of its case.

The Court ultimately remanded the case so the trial court could decide whether the result of the trial would have been different but for trial counselís errors.

Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the brief and orally), for the defendant.

Jonathan Cohen is with Cohen & Winters in Concord, NH. He specializes in criminal defense and personal injury law and has been a member of the Bar since 1999.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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