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Bar News - November 19, 2010


NH Supreme Court At-a-Glance - October 2010, Part I

By:

NH Supreme Court At-a-Glance - October 2010, Part II

Constitutional

Ronald Buzzard, Jr. v. F.F. Enterprises & a.
No. 2009-718
October 19, 2010
Reversed and Remanded
  • Whether a district court can be required to permit a party to participate in a hearing telephonically.
Petitioner filed a small claim complaint in Nashua District Court while he was incarcerated in the State of Washington complaining he had purchased, but did not receive, various magazines and photographs from Respondent. The district court docketed the matter for a hearing on the merits and notified Petitioner by mail. Petitioner timely moved for a telephonic hearing, stating, "I am out-of-state in Washington, not in New Hampshire, and I am currently incarcerated and cannot appear in person, but I have a constitutional right to present my defense." The district court denied Petitionerís motion and entered judgment for the defendants because Petitioner failed to appear at the hearing.

In a case of first impression, the Court (Duggan, J.) reviewed settled state and Federal law balancing the Petitioners right to participate in court proceedings against the trial courtís broad discretion in managing the proceedings before it. The Court found ample support for the Petitioners right to be present and participate in civil actions, even if that participation is done telephonically. Conversely, the Court also recognized the trial courts need to efficiently manage its docket by recognizing countervailing considerations of expense, security and logistics, considerations that the Court noted were absent from the trial courtís decision. The Court remanded to allow a showing of such considerations sufficient to deny Petitionerís motion for the requested telephonic hearing.

Ronald Buzzard, Jr., by brief, pro se; F.F. Enterprises, pro se, filed no brief; Ariel Shea, pro se, filed no brief.


State v. Addison
No. 2008-945
October 6, 2010
Decided; opinion issued
  • What is the test to determine whether the death sentence is excessive or disproportionate.
Michael Addison was convicted of capital murder for the killing of a law enforcement officer acting in the line of duty and, under RSA 630, he was eligible to be, and a jury recommended that he be, sentenced to death. The sentence of death was imposed by the superior court. In this, the second opinion, the Court (Broderick, C.J.), reviewed the process to be followed in applying the provisions of RSA 630:5 to the mandatory review of the defendantís sentence of death. Specifically, comparative proportionality review was held to be a matter of statutory interpretation subject to de novo review where neither party bears the burden of proof in order to answer the following: What is the test to determine whether the sentence is excessive or disproportionate.

The Courtís comparative proportionality review was guided by three aspects of RSA 630:5, XI(c): (1) the meaning of "excessive or disproportionate"; (2) the meaning and scope of "similar cases"; and (3) the mechanics for discerning whether a death penalty is "excessive or disproportionate" to the "penalty imposed in similar cases, considering both the crime and the defendant."

The Court held the appellate monitoring function, by comparing the verdict with other similar cases in which a jury imposed the death sentence, ensures a death sentence is not arbitrary, capricious, wanton or freakish, in relation to penalties imposed by juries in similar cases, considering both the crime and the defendant. Therefore a death penalty is not excessive or disproportionate unless there is a pattern of jury verdicts which demonstrates that juries generally do not impose death in similar cases. The Court defined several key phrases including "similar cases," those in which a penalty of either death or life imprisonment without possibility of parole was imposed when the following procedural characteristics were present: the defendant committed the offense of capital murder; a separate sentencing hearing occurred; the jury found predicate aggravating factors; and the penalty imposed was either death or life imprisonment without possibility of parole.

Michael A. Delaney, attorney general (N. William Delker, senior assistant attorney general, & a. on the brief, and Mr. Delker orally), for the State; David M. Rothstein, deputy chief appellate defender, of Concord, & a. on the brief, and Mr. Rothstein orally, for the defendant; Cassandra Stubbs and Brian W. Stull, of Durham, North Carolina, staff attorneys, on the joint brief, for the American Civil Liberties Union Foundation, as amicus curiae; Barbara Keshen, of Concord, staff attorney, on the joint brief, for the NH Civil Liberties Union, as amicus curiae; Bernstein Shur, of Manchester (Andru H. Volinsky on the brief), for Chief Justice Deborah T. Poritz (Ret.) and Professor Carol S. Steiker, as amici curiae; Brennan Caron Lenehan & Iacopino, of Manchester (Michael J. Iacopino on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae; Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Jason R.L. Major on the brief), for NH Association of Chiefs of Police, The NH Sheriffís Association, The NH Police Association, and The New Hampshire Troopers Association, as amici curiae.


State v. Richard S. Pessetto No. 2009525
October 19, 2010
Vacated and remanded.
  • Which party bears the burden of proof as to whether an item is contraband under RSA 595A:6.
     
  • Whether State or the trial court can impose requirements beyond those contained in RSA 595-A:6, and then consider the defendantís refusal to comply with them to be "good cause" to withhold the seized item under the same statute.
The defendant was convicted of carrying a loaded firearm without a license and transporting alcoholic beverages. After the conclusion of the criminal proceedings, the defendant moved for the return of his firearm and submitted an affidavit that stated his name, address, and asserted legal ownership of the firearm. The affidavit was similar in content and form to affidavit Form NHJB-2055-DFS for the return of a firearm upon the expiration of a domestic violence protective order. Upon receipt of his affidavit, the trial court requested the defendant fill out Form NHJB-2055-DFS so it could complete a background check to ensure there were no outstanding protective orders or qualifying domestic violence misdemeanor convictions that would prohibit him from owning a firearm. The defendant did not fill out the form and the firearm was not returned.

To further define the terms "contraband" and "good cause" as they relate to the disposition of property under RSA 595-A:6, the Court (Hicks, J.) reviewed the trial courts ruling for an unsustainable exercise of discretion it saw as evidenced by a ruling that was clearly untenable or unreasonable. The Court stated it would consider the words of the statute as a whole, the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.

The State had introduced no evidence that the firearm was contraband or that the defendant could not lawfully possess it. Since prior to this case neither the courts nor the legislature had specifically addressed the burden of proof as to whether an item is contraband under RSA 595-A:6, the Court adopted the same burden of proof required in the context of forfeiture under the controlled drug act, RSA chapter 318-B, and held the State bears the burden of proof as to whether any item should be considered contraband.

The trial court had found it qualified as "good cause" to require a background check under RSA 595-A:6 before returning the firearm to ensure that the defendant was not ineligible under federal or state law from possessing it. The Court reversed holding "neither the State nor the trial court can impose requirements beyond those contained in RSA 595-A:6, and then consider the defendantís refusal to comply with them to be good cause to withhold the seized item." Consequently, the Court found the trial court erred in finding good cause would exist based upon the defendantís failure to submit to the background check, without the trial court showing beyond mere speculation by the State that he was legally disqualified from possessing the firearm. The Court vacated and remanded to allow the State to make such a showing and to introduce evidence that the item should be considered contraband.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the memorandum of law); for the State, Richard S. Pessetto, by brief, pro se.


State v. Gary Richard
No. 2009-516
October 6, 2010
Affirmed
  • Whether the trial court committed plain error when it failed to instruct the jury that the State had the burden to prove beyond a reasonable doubt that defendant did not act in self-defense.
     
  • Whether the trial court erroneously permitted the victim to testify about dental treatment for his damaged teeth.
The parties involved, father (defendant) and adult son, lived in an apartment in Merrimack with his fatherís fiancťe. A physical altercation between the parties resulted in significant damage to the sonís teeth. Prior to trial, the defendant filed a notice of self-defense, indicating that he might argue that his actions were a justifiable effort to defend himself from what he reasonably believed to be the imminent use of unlawful, non-deadly force. At the close of evidence the defendant submitted several proposed jury instructions related to self-defense, but the court declined to accept the instructions because the defendant had failed to submit them prior to trial. The trial court failed to instruct the jury that the State had the burden to prove, beyond a reasonable doubt, that the defendant did not act in self-defense. Defendant was convicted of first degree assault and two counts of second degree assault.

The Court found since it was, from the court record, unclear whether the defendant here invited the trial courtís error, a review of the case under the plain error doctrine would better serve the interests of justice and declined to adopt the rule that invited error precludes a review for plain error.

The Court, using the federal plain error analysis concluded that the trial court erred when it failed to instruct the jury that the State had the burden to prove, beyond a reasonable doubt, that the defendant did not act in self-defense. However, In the face of overwhelming evidence that the defendant did not act in self-defense the court concluded that the error did not "seriously affect the fairness, integrity or public reputation of judicial proceedings."

The threshold to meet to reverse the trial courtís admission of evidence is the unsustainable exercise of discretion. To meet, the defendant must show that the decision was clearly unreasonable to the prejudice of his case. The Court held the Stateís need to offer evidence of serious bodily injury overrode the potential unfair prejudice to the jury since the evidence of the injury was cumulative and inconsequential. Consequently, any error was harmless.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State; Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

NH Supreme Court At-a-Glance - October 2010, Part II



Paul J. Mansur


Paul J. Mansur, CPA is an associate attorney in the Beliveau Law Group in Waltham, MA. He is a graduate of DePaul University School of Law and is admitted to practice in New Hampshire, Massachusetts and Illinois.

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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