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

Clio is the most widely-used, cloud-based practice management system in the world.

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
Member Login
Member Portal

Bar News - December 17, 2010

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


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

Criminal Procedure

State v. Bird
No. 2009-372
October 27, 2010
  • Whether the superior court erred in excluding evidence of a witness’ prior animal cruelty.
  • Whether the indictment was sufficient to allege the crime of felony criminal threatening.
  • Whether the verdict against him should have been reversed because the evidence was insufficient to establish that he committed felony criminal threatening.
  • Whether the state failed to negate his asserted justification of defense of property.
  • Whether the superior court committed reversible error in enhancing his sentence under RSA 651:2, II-g (2007).
The defendant was on trial for felony criminal threatening for having waived a fire arm at the victim, when she inadvertently ended up on his property while attempting to view a neighboring property that was listed for sale. The defendant sought to cross-examine the victim regarding her prior misdemeanor offense of cruelty to animals after testifying regarding her purpose for visiting the neighboring property for sale. As part of the defendant’s cross-examination, the defendant inquired into how the victim planned on caring for the animals on her intended educational farm.

The defendant argued that this "opened the door" to admitting evidence of the victim’s cruelty to animal convictions, and thus the Court examined the "specific contradiction doctrine" of the "opening the door doctrine." This prong of the opening the door analysis applies when a party elicits evidence that, if uncontradicted, gives that party "a misleading advantage." In reviewing the trial court’s decision to exclude such evidence, the Supreme Court agreed with the trial court that the testimony had not created an impression that would reasonably mislead the jury. Further, the Court noted that it was the defendant’s cross-examination that elicited the testimony the defendant argued was misleading. Accordingly, the Court found that the trial court had not committed an unsustainable abuse of discretion in disallowing evidence of the convictions.

The defendant further argued that the state’s case should be dismissed because the state could not prove that the defendant’s gun was a "deadly weapon" or negate the defendant’s defense that his actions were in defense of his property. The defendant also argued that because the state could not prove that the gun was a "deadly weapon," it was improper for him to receive an enhanced sentence under RSA 652:2, II-8 which enhances the mandatory minimum sentence for anyone convicted of a felony with an element of possession of a deadly weapon when that weapon is a firearm. In reviewing the defendant’s defense to property defense, the Court noted that, while deadly force is never permitted to protect property, the defendant’s belief that the use of even non-deadly force by the defendant had to be reasonable. Thus, the Court focused on the prong of the crime involving whether or not it "was reasonable for the defendant to believe it necessary to use such [non-deadly] force." Such reasonableness is determined by an objective standard. The Court considered the evidence that the Defendant was given warning that the victim was coming down to view the neighboring property, but might miss the turn-off and end up on his property, and evidence that the victim believed she was on the parcel that was for sale, and communicated this to the defendant. The Court upheld the findings that it was unreasonable for the defendant to believe that force was necessary for the protection of his property.

The Court next considered the defendant’s argument that the indictment was not sufficient to allege felony threatening. The Court found that to be sufficient, the indictment had to set forth "that by physical conduct, the defendant ‘purposely placed or attempted to place another in fear of imminent bodily injury or physical contact,’ while using a deadly weapon." (RSA 631:4, I (a), II(a)(2).) In turn, a deadly weapon is defined in RSA 625:11, V as "‘any firearm...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 Court concluded that the indictment sufficiently alleged that the defendant used a deadly weapon "in a manner that ‘is known to be capable of producing death or serious bodily injury"’ by reciting that the defendant was waiving about a "forty-five caliber handgun" while demanding the victim off his property. Further, the Court held that upon the evidence, "a rational jury readily could have found that the defendant’s actions...constituted felony criminal threatening."

In assessing the defendant’s argument that the trial court erred in imposing the enhanced sentence under RSA 651:2, the Court noted that the jury was properly charged with the allegations in the indictment, and that the evidence properly allowed the Court to conclude that "a reasonable jury would have understood that to find the defendant guilty it must find that the defendant used a firearm as a deadly weapon." The defendant further challenged the constitutionality of his enhanced sentence, arguing that "it was disproportionate to his crime." The Court reiterated that the NH constitution does not prohibit statutory minimum mandatory sentences, and that the defendant had not demonstrated that "the sentencing scheme...necessarily results in sentences that are disproportionate.

Michael A. Delaney, attorney general and Nicholas Cort, assistant attorney general, of Concord for the state. Mark L. Sisti and Adam K. Cook, of Sisti Law Offices, Chichester, for the defendant.

State v. Kinne
2009-569 & 2009-691
October 27, 2010
  • Whether the defendant’s sentence for a greater class felony than properly indicted violated his right to due process because his sentence was greater than the maximum sentence under the lesser-class crime.
  • Whether the trial court erred in finding that the defect in the indictment was "evident on its face" and that the defendant had waived his challenges to the indictment.
  • Whether the trial court erred in denying the defendant’s motion to vacate his sentence upon finding that even had he challenged the indictment earlier, he would have been re-indicted.
The defendant was on trial for conspiracy to commit robbery. The indictment alleged that the defendant conspired with two others, and "as an overt act in furtherance of the conspiracy, did gather masks and items of clothing for use in said robbery and did go to" the place to be robbed with the other two individuals." The indictment indicated that the crime was a "Class A felony," and referenced RSA 629:3. The indictment failed to allege additional facts, those necessary to support aggravating factors, as would be required to elevate the charge from Class B to Class A. The defendant pled guilty to the Class A felony upon which he was indicted, and was sentenced.

The defendant had asked to waive the offer of proof at the plea hearing and sentencing. He was not advised by the Court at these hearings of the elements of Class A felony robbery. After having violated his parole, the defendant filed a motion seeking to vacate his sentence. The Court examined the "procedural default rule" in addressing defendant’s argument that a procedural default could not prevent review of his sentence. The Court reiterated that it has long confirmed "the common law rule that habeas corpus is not a substitute for direct appeal." However, an exception allowing a defendant to "‘collaterally attack a proceeding by filing a petition for writ of habeas corpus after the time for direct appeal has expired [] if he can establish a harmful constitutional error.’" This exception, however, has been limited to claims of ineffective assistance to counsel and an "illegal sentence," which was not alleged in this case by the defendant. Here, the defendant’s sentence was not "illegal" because the defendant’s sentence undisputedly applied to the Class A crime. The defendant’s only grounds for his motion was that the indictment was insufficient to allege that Class A crime, the crime to which the defendant had pled guilty.

The Court noted that the inquiry into whether or not the defendant’s plea was knowing and voluntary is distinct from the sufficiency of the indictment. In order to be valid, the defendant only had to know and understand the elements of the Class A crime with which he was charged. The defendant did not raise a state law constitutional challenge, but the Court recognized that in arguing that his plea was not knowing, voluntary, and intelligent, the argument "implicates the due process rights guaranteed by the Fourteenth Amendment" of the federal constitution.

In order for a plea to be knowing, voluntary, and intelligent, a defendant must "‘have adequate notice of the charges against him [and] understand the charge." In his motion, his collateral attack of the sentence, the defendant bore the initial burden of "‘describ[ing] the specific manner in which the waiver was in fact involuntary or without understanding’" and is required to put forth "‘evidence sufficient to indicate that his specific claim presents a genuine issue for adjudication.’" Only after this initial showing does the court examine whether the trial court "affirmatively inquired" that the plea was knowing and voluntary. If the court did, the burden remains with the defendant to show otherwise by clear and convincing evidence. If the court did not so affirmatively inquire, the burden rests with the prosecution.

The court may usually rely on plea when the defendant is represented by competent counsel. Here, the defendant was represented, and both he and his counsel signed the acknowledgment of rights. This form stated that the plea was to the Class A crime. The same representations were made at sentencing, during which the defendant continued to be represented.

Michael A. Delaney, attorney general and Nicholas Cort, assistant attorney general, of Concord for the state. Lisa L. Wolford, of Concord, public defender’s office, for the defendant.

State v. Nelson
October 27, 2010
  • Whether the trial court properly concluded that reasonable and necessary good cause existed to toll the 180 days between the time a defendant requests a speedy trial and the date of the trial under the Interstate Agreement on Detainers (IAD).
The defendant was indicted on a criminal charge in New Hampshire while he was incarcerated in Maine. The defendant made a request under the IAD for a speedy trial. This request was received by the state on January 14, 2009. The defendant was arraigned without representation about a month later, and was given a trial date of March 9, 2009. However, the defendant requested that defense counsel be appointed to his case. At that time, the judge advised the defendant that his request for counsel would mean that his trial would not be reached within the 180 day time period under IAD, because the attorney would need time to review the file and prepare his defense, and that such time period would not be counted toward the 180 days. The defendant expressly acknowledged his understanding and assent to the enlarged time period, and the Court scheduled a status conference for March 23, 2009. Counsel was appointed seven days following the arraignment.

When counsel appeared for the defendant at that status conference, trial was selected with the agreement of defense counsel for August 3, 2009. On the date of the pretrial, the defendant moved to dismiss the indictment as violating the IAD. At the date of the conference, 183 days had passed since the defendant’s original request under the Act for a speedy trial.

The Court reviewed of the question of law raised by the Defendant’s motion to dismiss under the IAD, a federal statute, de novo under a federal construction. Though the defendant did not address all issues in his opening brief, the Court assumed without deciding that he had not waived any of the issues.

The Court noted the three exceptions to the 180 day time period of the IAD: "‘for good cause shown in open court, the prisoner or his counsel being present, the court...may grant any necessary or reasonable continuance"’; a tolling "‘whenever and for as long as the prisoner is unable to stand trial’"; and "in certain circumstances, a defendant may waive his IAD speedy trial rights.’" The Court upheld the trial court in its finding that the "good cause" exception was met, and further found that the defendant had waived the Act’s time limits between the date of his arraignment and March 26, 2009. The Court did not need to reconcile earlier case law in which the Court had found that silence alone did not constitute a waiver or US Supreme Court case law that counsel’s scheduling of a trial outside the 180 days constituted a waiver, because in this case, the defendant expressly assented.

Michael A. Delaney, attorney general and Nicholas Cort, assistant attorney general, of Concord for the state. David M. Rothstein, of Concord, deputy chief appellate defender, for the defendant.

Employment Law

Board of Trustees of the NH Judicial Retirement Plan, & a. v. Secretary of State
October 27, 2010
Reversed and remanded
  • Whether certain statutes prohibiting investment in, and requiring divestment of assets in certain companies violated Part I, Article 36-a of the NH Constitution.
  • Whether Part I, Article 36-a of the NH Constitution establishes a "constitutional trust" for the assets of the state judges and employees’ retirement plans.
  • Whether certain statutes prohibiting investment in, and requiring divestment of assets in certain companies violated NH statutory or common law fiduciary law.
The plaintiff and intervenor are both plans through which state employees, judges and employees of the state and its political subdivisions respectively, receive statutorily defined pension benefits. The plan’s trustees owe a fiduciary duty to the employees in the investment and management of the employees’ contributions into the plan. This case followed the enactment of the federal SADA (Sudan Accountability and Divestment Act of 2007) and the NH counterpart. These acts require state and local government to divest any assets in "scrutinized companies," and prohibit investment of their assets in such companies. The plaintiff and intervenor plans brought litigation alleging that these statutes violated Part I, Article 36-a of the NH Constitution. The trial court agreed, but the Supreme Court did not.

The Supreme Court reviews constitutionality question de novo as a question of law. Statutes are presumed constitutional, and any doubts are to be resolved in favor of upholding the statute. Thus, only when there are "inescapable grounds," or a "clear and substantial conflict" with the constitution will a statute be declared invalid.

To determine its purpose and intent, the Court interpreted Part I, Article 36-a in "the simplest and most obvious" way within the context of circumstances surrounding its adoption. In deciding the issues, the Supreme Court reviewed statements made during the Constitutional Convention and the ballot question presented to voters when Part I, Article 36-a when it was enacted. The Court found that the primary concern in the convention was the recent diversion of plan funds to fund other government functions. Similarly, the ballot question asked voters whether they were "in favor of amending the constitution to provide that all the assets of both the NH retirement system and any other retirement system for public officers and employees...shall be used exclusively for the benefit of any such retirement system and shall not be directed or used for any other purpose...." Accordingly, the superior court found that the clear and plain meaning of the ballot question and convention notes "make clear" that the purpose was to address "the use of retirement system assets to fund other state operations." The Court found that the statutes put in issue were not inconsistent with the NH Constitution because these statutes "did not prevent the retirement systems from using their assets for the exclusive purpose of providing retirement benefits."

The Plans contended that the "exclusive purpose doctrine" under the constitution and ERISA rendered the statutes unconstitutional because the "exclusive purpose doctrine" "prohibits the plan trustees from taking any action tat does not benefit the plan beneficiaries, including divesting the retirement systems’ investments in ‘scrutinizing companies...’" However, the Court found that the Plans’ interpretation of Part I, Article 36-a was incompatible with the plain meaning of the provision, particularly where the issue of the trustees’ duties to plan beneficiaries was not even raised in the ballot question presented to the voters who enacted the amendment. However, regarding the trial court’s declination to determine to what standard a trustee would be held in determining whether compliance with the statutes also met his fiduciary duties, the Court remanded the case "to the trial court to determine whether the Act impermissibly interferes with the trustees’ statutory or common law fiduciary duties."

Charles G. Douglas, III of Douglas, Leonard & Garvey, Concord, and David M. Howe of Concord for the plaintiff. Michael A. Delaney, attorney general and Richard W. Head, associate attorney general, of Concord for the defendant. Andrew R. Schulman of Getman, Schulthess & Steere, Bedford for the intervenor, NH Retirement System.

Grimard v. Rockingham County Department of Corrections
October 27, 2010
  • Whether the Department of Labor, and Superior Court erred in determining that the deduction from "earned time" for time out of the office spent by a salaried employee was not a wage violation.
  • Whether "salary," like "wages" includes non-money compensation, such as employee benefits.
The superior court’s review of the Department of Labor’s decision was limited to questions of law, and thus the Supreme Court reviewed the superior court’s rulings de novo. The employer, Rockingham County Dept. of Corrections, had a published policy regarding earned time. Time could be earned and applied to any category of personal time. It could be used in quarter-hour increments, and as it was used, the portions used would be subtracted from the total hours of Earned Time. The plaintiff was a salaried employee and thus, under RSA 275:42, VI was required to be paid his salary each pay period "without regard to the number of days or hours worked" with some enumerated exceptions. When deductions were made from the plaintiff’s Earned Time, he filed a wage violation action with the Department of Labor.

However, the Superior Court determined that "salary" was defined under RSA 275 as "limited to money received, and thus distinct from "employee’s leave time." Thus, while an employer cannot reduce "salary," it may permissibly reduce "leave time in a manner consistent with the employer’s plan or policy." Accordingly, "salary," unlike "wages," elsewhere defined in the statute was not the equivalent of "compensation" which does include benefits and non-money types of compensation.

J. Joseph McKittrick of McKittrick Law Offices, North Hampton, for the plaintiff. Elizabeth A. Bailey of Sheehan Phinney Bass + Green, Manchester, for the defendant.


Concord General Mutual Insurance Company v. Jane Doe & a.
October 27, 2010
  • Whether the trial court erred in determining that Jane Doe’s injuries did not arise out of the use of the insured’s perpetrator’s motor vehicle within the meaning of Concord General Mutual’s motor vehicle insurance policy.
Jane Doe was a minor who claimed coverage under her auto insurance for physical and psychological damage she allegedly sustained after having been sexually assaulted by Mount Washington Assurance Company’s insured, her school teacher and drama coach. The assaults took place in the perpetrator’s motor vehicle. Thus, Jane Doe sought coverage under her motor vehicle policy for the damages she sustained from the assaults.

All parties moved for summary judgment. The trial court granted the plaintiff’s motion for summary judgment, finding no coverage under the auto policy. The Court’s review involved resolution of the question of law of the interpretation of the terms of the auto policy.

The policy provided coverage for ‘bodily injury’ when "‘liability for [the claimed] damages [] arise out of the ownership, maintenance, or use of the "uninsured motor vehicle."’" Thus, the Court focused its inquiry on the meaning of "arising out of" use of a motor vehicle.

The Court acknowledged jurisprudence which provides that "arising out of" has been "‘ mean that the injury must originate from, grow out of , or flow from the use of the vehicle in its inherent nature as a vehicle].’" Here, the Court found that the connection with the vehicle and Jane Doe’s injuries were too tenuous. Instead, the "vehicle act[ed] as merely the situs of [the] injury." The Court held that "it is not sufficient that the vehicle was in use." To have the requisite nexus, the injury must result from "an act that is part of using an automobile."

The Court specifically rejected Jane Doe’s argument that a sufficient nexus existed because the vehicle was the only way in which the perpetrator could gain access to her, as this only established "but for" causation. Only when the "‘injury [is] foreseeably identifiable with the normal use of the vehicle’" will the injury be "arising out of" the use of the vehicle within the meaning of the auto policy. The Court further rejected Jane Doe’s argument that the perpetrator should be held to the standards of a common carrier because the Court found no support for "the proposition that an individual who voluntarily transports another impliedly assumes the common carrier duty of safe passage as a matter of law, and we decline to so hold here."

Gordon Rehnborg and Mary Ann Dempsey of Wiggin & Nourie, Manchester, for the plaintiff. David S.V. Shirley and Jeffrey B. Osburn of McDowell & Osburn, Manchester, for Jane Doe. Christine Friedman of Mallory & Friedman, Concord, for Mount Washington Assurance Corporation.

Mortgage, Foreclosure and Truth in Lending

Brunelle & a. v. Bank of New York Mellon & a.
October 27, 2010
  • Whether the trial court properly denied the plaintiffs’ petition to enjoin a foreclosure.
  • Whether the trial court properly considered evidence in ordering that the plaintiffs pay back the loan principal in order to rescind the mortgage.
The plaintiffs had loaned $346,500.00 from Novastar Mortgage. The associated mortgage, through a number of assignments, was held at one time or another by the co-defendants. In July 2008, the Plaintiffs wrote to "officially rescind or cancel the loan..." The letter further indicated that the Plaintiffs had discovered that the address for the mortgagee was missing from the documentation, which was a violation of the Truth in Lending Act.

Following receipt of this letter from the plaintiffs, the defendants agreed not to foreclose and allow the rescission, upon the plaintiffs repaying the amounts loaned minus costs of the closing associated with the mortgage. However, this proposal was rejected by the plaintiffs who in turn asserted that they were entitled to $67,260 from the defendants. Thereafter, the plaintiffs petitioned the trial court for relief.

The petition alleged that the foreclosure should have been enjoyed because "the lender did not have the original note, the annual percentage rate disclosed on the truth-in-lending disclosure was incorrect, and the notice of the right to cancel provided to the plaintiffs at closing on the loan did not contain the address of the lender." The lower court only found merit in the lack of address, but found that it "did not prejudice the plaintiffs." At the time of the closing, the plaintiffs were working for the lender and thus, the trial court concluded knew the lender’s address. After failing to find any legal or equitable basis for preventing the foreclosure, the trial court nonetheless gave the parties a collective 60 days to rescind after the plaintiffs paid back the loaned amounts.

The plaintiffs argued on appeal that the defendants failed to perform their obligations with respect to the rescission. The plaintiffs further argued that the defendant’s failure to perform their rescission duties never triggered their duty to tender the loaned amounts, and thus rescission became a complete bar on the foreclosure without repayment. 15 U.S.C.A. § 1635(b) provides in part that ‘"[w]ithin 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money...." following which the obligor tenders, and then, "[i]f the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation to pay for it."’ However, the Act goes on to provide that "‘[t]he procedures prescribed by this subsection shall apply except when otherwise ordered by a court.’" Regulation Z of the Truth in Lending regulations provides for similar procedures, and further that (d)(4) "‘[t]he procedures outlined ...may be modified by court order.’"

The Court rejected the plaintiff’s arguments that the Act and Regulation Z rendered the mortgage "automatically" void, with a simultaneous loss of the mortgagee’s right to foreclose, holding instead that the mere assertion of a right to rescind is insufficient. Instead, "the lender’s security interest becomes void only when the right to rescind is available, either by agreement between the borrower and lender, or by court order." The Court likewise rejected the Plaintiffs’ argument that the Act and Regulation required the defendants to file a petition for declaratory judgment within 20 days after receiving notice of rescission from the plaintiffs in order to dispute the notice. Lastly, the Court found that the trial court acted within its discretion and "inherent power to condition rescission under proper circumstances" when it conditioned the release of the mortgage upon repayment of the loaned amounts. Further, the lower court had made findings to support its equitable modification, in particular where it found that the plaintiffs knew the address of the mortgagee even though it did not appear on the documents of the closing.

Stephen and Ellen Brunelle, plaintiffs, pro se. Sulloway & Hollis (with Derek D. Lick on the brief) of Concord, for the defendants.

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

Shenanne R. Tucker

Shenanne R. Tucker is an attorney with Bouchard Kleinman & Wright in Hampton. She has been a NH Bar member since 2002.

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

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
© NH Bar Association Disclaimer