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Bar News - August 14, 2009

NH Supreme Court At-a-Glance - July 2009


Administrative Law

Appeal of NH Dept. of Transportation;
No. 2008-649
July 2, 2009

  • Whether a DOT Board of Claims award of damages was in error where Stateís warning signs on a road project were found deficient and contributed to claimant driving a tall truck under a low bridge.
The Board of Claims determined the Stateís signage was inadequate, and awarded $1,300 to claimant for damage to his truck for the DOTís 55% negligence. The Court reversed because it found the State was immune from liability for DOTís discretionary functions. Immunity protects essential government activities from tort claims and preserves the separation of judicial review from legislative and executive decision-making. Ministerial follow-through is not protected, whereas public policy judgments, such as the DOTís signage planning, are.

Kevin R. Gray, by brief and orally, pro se.

Kelly A. Ayotte, attorney general (Edith L. Pacillo, assistant attorney general, on the brief and orally), for the State.

Dan Garand v. Town of Exeter & a.
2008-606 & 2008-721
July 31, 2009

  • Whether it was error for the Superior Court to dismiss an appeal of a decision refusing plaintiff a gun license where RSA 159:6 requires appeals to be made to the District Court.
Plaintiff was denied a license to carry a loaded pistol by the Chief of Police due to his alleged disregard for the law, displays of violent behavior, threats to kill police officers and other conduct. RSA 159:6 provides for appeals of such denials to the district or municipal court in the jurisdiction. The statute, however, also provides for petitioning the superior court for injunctive relief where there are alleged violations of the licensing law. Although plaintiff argued the two avenues supplied him with a choice of forums, the Court found that appealing the denial of a license is distinguishable from seeking injunctive relief for violations of the statute. Violation connotes a breach of duty rather than error in deliberative decision-making. Here, the Chief of Police decided that the plaintiff "was not a suitable person to be licensed," and although the exercise of his licensing authority may be challenged, the Superior Court lacked statutory jurisdiction to review the plaintiffís appeal.

Law Offices of Penny S. Dean, of Concord (Penny S. Dean on the brief and orally), for the plaintiff.

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


State of NH v. Putnam Breed;
No. 2007-654
July 2, 2009
Affirmed in part; reversed in part; remanded

  • Whether it was error to convict under RSA 638:2, making the fraudulent handling of recordable writings a class B felony, when applied to cremation certificates.

  • Whether it was error to convict for theft by unauthorized taking or for theft by deception where defendant was not licensed in this state to examine bodies yet accepted fees for doing so from another state.
The Court reversed the conviction for fraudulent handling of recordable writings on statutory interpretation grounds since RSA 638:2ís enumerated recordable writings (wills, deeds, etc.) were all found to effect property rights. Cremation certificates were found not to involve property.

The Court also reversed the conviction for theft by unauthorized taking despite evidence that the Massachusetts examiner received payment for examining bodies in New Hampshire, where he was not licensed to submit certificates. Where the examiner actually did review certain bodies, he could not be found to have intentionally committed theft by unauthorized taking simply because the fees received from Massachusetts failed to comply with New Hampshireís law requiring a New Hampshire certificate.

The Court affirmed, however, convictions for theft by deception where the defendant had not actually viewed certain other bodies and yet accepted fees for submitting their cremation certificates.

Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief, and Elizabeth C. Woodcock, attorney, orally), for the State.

Hinckley, Allen & Snyder LLP, of Concord (Michael J. Connolly and Christopher H.M. Carter on the brief, and Mr. Carter orally), for the defendant.

State of NH v. Michael Addison;
No. 2008-945
July 9, 2009
Procedural rulings issued prior to review merits

  • Whether special appellate rules are required in order to hear an appeal of a death sentence and murder conviction.
In the wake of the US Supreme Courtís Gregg v. Georgia, 428 US 153, in 1976, states have carefully drafted death penalty statutes to avoid violating the US Constitutionís Eighth Amendment prohibition of cruel and unusual punishment. Although the New Hampshire legislature passed its capital murder appeals statute (RSA 630:5) in 1977, there have not been any death penalty cases. Until now. The December 22, 2008 imposition of a death sentence after a jury found M. Addison guilty of capital murder presents the Court with its first consideration of the death penalty.

The Court rejected defendantís motion to stay his appeal until special appellate rules for capital cases may be adopted by the Court. Although the State Constitution guarantees defendants a fair appellate procedure, it does not require formal rulemaking by the Court in order to apply the legislatureís capital murder statute.

RSA 630:5ís plain language merely requires the court to follow those appellate rules already in existence and applied to other appeals, not create special new ones. RSA 630:5 requires that the death sentence may not be imposed from passion or prejudice; the evidence must support the juryís finding of aggravated circumstances; and the sentence may not be excessive to the penalty given in similar cases.

The Court ruled that the defendantís appeals of four other convictions for non-murder crimes must be decided prior to the Court hearing his capital murder appeal. Considered aggravating factors in the murder trial, the results of those appeals may impact the appeal of his murder conviction and death sentence. The Court invited defendant to brief whether certain Massachusetts convictions should also be reviewed during the appeal.

The Court announced it will issue its determination of what standard it will apply to each of the factors of RSA 630:5 prior to reviewing the merits of defendantís appeal. RSA 630:5ís requirement for a proportionality review presents a challenge as, "Unlike in other jurisdictions, our case law interpreting our death penalty is underdeveloped." As of yet, there are no comparisons against which to assess whether the sentence was proportionate to "similar cases."

Kelly A. Ayotte, attorney general (N. William Delker, senior assistant attorney general, and Jeffery A. Strelzin, senior assistant attorney general, on the memorandum of law, and Mr. Delker orally), for the State.

David M. Rothstein, deputy chief appellate defender, Richard Guerriero, director of litigation services, and Christopher M. Johnson, chief appellate defender, of Concord, on the memorandum of law, and Mr. Rothstein orally, for the defendant.

New Hampshire Association of Criminal Defense Lawyers (Michael J. Iacopino on the memorandum of law), for the defendant, as amicus curiae.

State of NH v. Delvin White;
No. 2008-219
July 9, 2009

  • Whether it was an unsustainable exercise of discretion for the trial court to admit prior consistent statements into evidence to rehabilitate the credibility of a witness/victim after impeachment.
M.G., age eight, was impeached by defense counsel with prior inconsistent statements as to whether she had told her parents, the initial investigating officers, and a medical examiner that defendant had "penetrated" her with his finger. The Court sustained the conviction for felonious sexual assault after finding that the trial court had supplied sufficient limiting instructions by telling the jury not to rely upon the statements as substantively true and only to consider them for the limited purpose of evaluating the credibility of M.G.

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

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

State of NH v. Tommy Rogers;
No. 2007-627
July 2, 2009

  • Whether the trial court erred in its denial of defendantís motions to dismiss kidnapping charges where the State refused to immunize defense witnesses and the trial court prevented defense from inquiring into witness bias.
Under RSA 516:34, the State, not the trial court, is given authority to grant immunity to witnesses. When the State refuses to grant immunity, whether a defendantís right to a fair trial guaranteed by the NH Constitution requires the court to dismiss is determined by a two-part test that balances preventing cooperative perjury between witnesses and defendants with the need to have courts respect the separation of powers by not interfering with prosecutorial decisions.

Here, defendant failed to show the testimony at stake would have likely prevented his conviction. The proffered testimony of non-immunized witnesses was not directly exculpatory or in material variance with the Stateís evidence. Other available evidence established defendantís involvement in the kidnapping, and the testimony was largely redundant to that of other witnesses, including defendant, hence merely cumulative.

The Court did find that the trial court erred when it sustained the Stateís objection to defense counselís questions about witness bias. Impeaching credibility through cross-examination is protected by NH Const. Part I, Article 15ís right to confront witnesses and be fully heard in defense of charges. Yet here the Court found the error harmless, as the State established beyond a reasonable doubt that there was overwhelming alternative evidence to convict.

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

Theodore Lothstein, assistant appellate defender, of Concord, on the brief, and Stephanie Hausman, assistant appellate defender, of Concord, orally, for the defendant.

State of NH v. Shawn R. Cunningham
July 10, 2009

  • Whether the trial court erred by denying defendant-correctional officerís motion to dismiss simple assault charges where evidence showed his belief as to the necessity of his use of force was unreasonable.
Defendant shoved a prisoner as they walked to a cell and grabbed his foot out from under him when the prisoner refused to sit. Defendant raised the defense of justification for law enforcement officers to use non-deadly force under RSA 627:5, but that requires a reasonable belief that it is necessary to effect an arrest or detention, to prevent escape from custody, or to defend against the imminent use of non-deadly force.

Although the victim displayed some defiant conduct while in custody, he complied with orders of correctional officers to enter a holding cell. Other officers present testified they did not perceive the handcuffed inmate to be a threat once in his holding cell, such that defendantís use of force was neither necessary nor objectively reasonable. Simple assault is typically a misdemeanor, but sentence enhancement was appropriate pursuant to RSA 651:6 where the assaults were committed by an on-duty correctional officer.

Kelly A. Ayotte, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State.

Kimberly Thayer, public defender, of Concord, on the brief and orally, for the defendant.

State of NH v. Kurt Costello
July 23, 2009

  • Whether it was error to admit evidence of a heroin addiction to support defendantís conviction for burglary.
One element of the crime of burglary is that the defendantís entry into the premises was for the purpose of committing a crime therein. The prosecution introduced evidence of defendantís heroin addiction to show that he was in desperate need of cash to support his addiction and intended to commit theft in the premises. Under New Hampshire Rule of Evidence 404(b), evidence of other bad acts is not admissible to prove character or conforming conduct. Evidence of other bad acts may, however, be admissible for other purposes, such as proof of motive or a plan.

A three-part test is applied to determine admissibility under the rule: (1) the evidence must be relevant for a purpose other than proving the defendantís character; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to the defendant. Here, the evidence tended to show defendantís intention to commit theft, not drug use, in the premises, and other evidence supported finding defendant had attempted to enter the abode of another without permission. As for the third prong, the trial courtís limiting instructions minimized potential misuse or prejudice by the jury.

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

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

State of NH v. Sean Miller
July 31, 2009
Reversed and remanded

  • Whether it was error to deny defendants motions to suppress statements made to police after Miranda rights were read and waived where defendantís initial arrest was admitted by the prosecution to be illegal.
Police stopped a vehicle after neighbors reported the car parked in front of a residence for ten minutes in an area where there had recently been a vehicle. After dispatch cleared defendantís license, the officer had defendant exit the vehicle and patted him down. Subsequent pat-down searches of a passenger and search of the car revealed two handguns. Defendant was booked at the police station, placed in an interrogation room, and read his Miranda rights, which he waived. After confessing to stealing the gun from a different town, police from the town came to do further interrogation after again reading defendant Miranda rights, which he again waived. Defendant admitted to taking the gun from the home of police officer while she was away.

Typically, fruits of an unlawful search and illegal arrest (which the State conceded) are suppressed. Yet voluntary confessions following an illegal arrest may be admissible as determined by a four-factor balancing test: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct.

Here, the Court found the second and third factors favored suppression and outweighed the fact that defendant spoke of his own free will after waiving his Miranda rights twice and that the police conduct was not particularly offensive. Defendant remained in custody the entire time for solely investigatory purposes without having appeared before a magistrate or the opportunity to consult with an attorney. Without any significant intervening events, the taint of the illegal arrest remained and spoiled the subsequent confession.

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

Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

State of New Hampshire v. Shawn Johnson
July 23, 2009

  • Whether it was error to deny motions to suppress warrantless aerial surveillance and seizure of marijuana from a field behind defendantís home.
New Hampshire State Police used aerial surveillance by helicopter to detect marijuana growing. Upon entering defendantís property without a warrant, they found such plants in an overgrown field a substantial distance from defendantís house. Defendant moved to suppress the seized plants from evidence.

New Hampshireís Constitution under Part I, Article 19 protects citizens from unreasonable searches and seizures in their homes, including the area directly surrounding the home, known as "curtilage." However, those protections diminish with distance from the abode. Here, the location of the illegal plants was observed to be at a considerable distance from the curtilage and neither convenient nor habitually used for family purposes or domestic employment. Moreover, there were no barriers blocking entry. Consequently, the defendantís expectations of privacy were greatly diminished and no Constitutional violation was found. As the search of the field and seizure of the plants did not require a warrant, the Court declined to decide whether aerial observation of the property by the State Police fit within the plain view exception to the warrant requirement.

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

Law Offices of Richard N. Foley, of Portsmouth, (Richard N. Foley on the brief and orally), for the defendant.

Family Law

In the matter of David Duquette and Amanda Duquette;
No. 2008-743
July 9, 2009

  • Whether the trial court erred by not considering parole evidence that the terms of a QDRO failed to reflect the actual agreement of the parties.

  • Whether the court erred by modifying child support upward due to the child primarily residing with his mother rather than the parties sharing residential custody as contemplated at the time of the divorce.
The husband argued that a QDRO provision as to the wifeís renunciation of survivor death benefits upon remarriage was intended to renounce all retirement benefits despite its unambiguous language. The trial court rejected parole evidence offered by the husband as generally inadmissible to vary or contradict a writing. The Court affirmed where it found the partiesí clear intent was captured in the final divorce decree which specifically stated that the QDRO was fully incorporated in the decree.

The husband also challenged the trial courtís increase of child support payments shortly after entering a Uniform Support Order. Although the USO originally provided a downward adjustment to the fatherís support obligations because the parties had expected their 16-year-old son to choose to live with each equally, the son instead preferred his mother for primary residence. The Court affirmed, finding a substantial change in circumstances under RSA 458-C:7 and that additional support was required as a rebuttable presumption according to New Hampshireís child support guidelines.

Molan, Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and orally), for the petitioner.

Hanlon & Zubkus, of Rochester (Mark D. Hanlon on the brief and orally), for the respondent.

In re Zachery G. & a.
July 31, 2009

  • Whether the termination of a motherís parental rights was in error where the New Hampshire Division for Children, Youth and Families (DCYF) showed she would likely continue to expose her children to violent and abusive men, including their father, despite her other efforts to correct issues of neglect.
DCYF removed children from their home after it made initial findings of abuse and neglect, including photographs of bruises on the children. The mother corrected certain complaints, including divorcing her violent husband who had been ordered by the court to have no contact with the children. The children returned to the home upon a finding that they would not be endangered and the matter was closed. Unfortunately, multiple persons reported that the mother proved unable to keep potentially harmful men out of her life. The guardian ad litem (GAL) reported a high probability that the fatherís continued access to the children would be permitted by the mother and recommended terminating the parental rights of both parents. The father voluntarily relinquished his parental rights; the mother appealed.

The mother asserted collateral estoppel as to the previous determination that the children will not be endangered by exposure to violent men, however the potential impact on public interest here warranted re-litigation. Similarly, judicial estoppel was rejected despite DCYF having taken clearly inconsistent positions in successive phases of the litigation. The overriding need to ensure that the childrenís best interests are protected made it proper to considered subsequent and recent incidents of abuse and neglect substantially similar to those in the earlier, closed action.

Statutory grounds for termination of parental rights under RSA 170-C require proving beyond a reasonable doubt a finding of child neglect or abuse that remains uncorrected for a period of twelve months after the initial determination. The Court chose not to elevate form over substance despite DCYF improperly relying upon its earlier findings that had been remedied. Although the DCYFís prior determinations had gone stale, recent evidence of exposure to abuse, including photographs of bruising and testimony by several persons that they observed the father at the home on multiple occasions, supplied sufficient evidence to satisfy the statute.

Kelly A. Ayotte, attorney general (Suzan M. Lehmann, senior assistant attorney general, on the memorandum of law), for the State.

Elliott, Jasper, Auten, Shklar & Wellman-Ally, LLP, of Newport (Bruce R. Jasper on the brief), for the mother.

Personal Injury Ė Slip and Fall
Geoffrey J. Rallis v. Demoulas Super Markets, Inc.
July 10, 2009
Reversed and remanded

  • Whether slip and fall jury instructions that fail to inform jurors recovery can be found where the owner should have known of an unsafe condition despite not having created it constitute reversible error.
Plaintiff was injured due to slipping on green beans in the self-service section of defendantís grocery store. New Hampshire law requires premises owners to exercise reasonable care and take precautions to protect entrants from foreseeable dangers. The instructions given to the jury at the end of trial substantially misled them regarding applicable law by limiting the circumstances under which defendant could have been found to have constructive knowledge of the danger. Here, had the jury been given proper instruction on New Hampshire premises liability law, it could have found that the defendant should have known that green beans regularly fall on the floor creating a hazard requiring remedy.

Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and Laurie A. Lacoste on the brief, and Mr. Shaines orally), for the plaintiff.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (John A. Curran and Edwinna C. Vanderzanden on the brief, and Mr. Curran orally), for the defendant.

Tort - Medical Malpractice

Joseph Smith & a. v. HCA Health Services of NH, Inc. d/b/a Portsmouth Regional Hospital
July 31, 2009

  • Whether it was error to grant summary judgment for the defense due to plaintiffsí failure to introduce expert opinions to support an action for medical injury where the alleged misconduct is also covered by the Patientsí Bill of Rights, RSA 151:21.
Plaintiffs alleged false imprisonment, negligence and loss of consortium against defendant-hospital after the wife submitted herself into a detoxification facility and was subsequently placed in "lockdown," isolated from family visitors and prevented from leaving. Plaintiffs disclosed a nurse practitioner as an expert witness, yet during her deposition she admitted that she did not consider herself an expert on the standard of care for in-patient detoxification programs. Subsequent attempts to cure her lack of qualification through affidavit were found insufficient to permit her testimony as an expert as to causation.

The New Hampshire legislature has enacted a statutory scheme, RSA 507-E, to contain the costs of medical malpractice claims through elevating the evidentiary burden to plaintiffs. This includes the requirement that any action against medical providers for tort, contract or other cause of medical injury be supported by expert testimony as to standards for reasonable professional practice.

The Patientsí Bill of Rights, RSA 151:30, provides a separate cause of action for involuntarily secluding patients or preventing free communication with family members. However, plaintiffs did not request relief under that statute. Consequently, the standard of care articulated in RSA 151:21 may not substitute for the requirement of expert testimony under RSA 507-E.

Fitzgerald & Nichols, P.A., of Laconia (Paul T. Fitzgerald on the brief and orally), for the plaintiffs.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Todd Hathaway on the brief and orally), for the defendant.

New Hampshire trial attorney Scott Wanner has been practicing for nine years. Although he focuses on plaintiffís civil litigation, he also handles a wide range of other matters including domestic, criminal, contract, and appellate cases. He works in Manchester for the firm Normand & Associates.

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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