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Bar News - January 14, 2011


NH Supreme Court At-a-Glance - December 2010

By:

Criminal Law

State v. Harold Oakes
No. 2009-145
December 7, 2010
Affirmed

  • Whether the trial court erred in (1) denying the defendantís motion to dismiss for insufficient evidence, (2) denying his motion to compel discovery, (3) permitting the state to amend its indictments, (4) granting the stateís motion to exclude evidence of the victimís prior and subsequent allegations of sexual assault, (5) granting the stateís motion to exclude the defendant from testifying about the duration of his interview with police, and (6) ordering restitution.
The defendant was convicted of two counts of aggravated felonious sexual assault and one count of felonious sexual assault. The Court addressed multiple motions filed by both the defendant and the state in its opinion.

The Court first found that there was sufficient evidence introduced at trial for a jury to convict the defendant of the crimes charged beyond a reasonable doubt. At trial the victim testified to each of the assaults and to statements the defendant made to her around the time of the assaults. In two statements to police, the defendant admitted to being alone with the victim four times, he made the statement that he thought "everyone thinks about [touching a kid]," he admitted to "tickle wrestling" with the victim, and inserting his finger into her vagina. He also told police that he stopped the assault because "he knew it was wrong." At trial, the defendant testified that any touching of the victim may have been accidental. He further stated that during the interview his "brain was fried" and that the officers were aggressive towards him. The Court ruled that a reasonable person could have come to the same conclusion as the jury based on the conflicting testimony of the parties. Therefore, the Court would not overrule the juryís verdict.

Second, the Court upheld the trial courtís denial of the defendantís motion to compel depositions. The Court reasoned that, although the defendant was denied the opportunity to depose the two officers who interviewed the defendant and the administrator of a polygraph examination to develop evidence that the defendant had given a false confession, the defendant still could have filed a motion to suppress based on the voluntariness of his statements. The defendant would have had an opportunity to cross-examine these witnesses at a hearing on the motion to suppress.

Third, the Court ruled that the stateís amendment to expand the time frame on the indictments was allowed as a "change in allegation." Because the defendant denied ever touching the victim at trial and because the trial court granted the amendment to the indictment six weeks prior to the trial, the amendment did not have an effect on the defendantís ability to "understand properly the charges" or "prepare his defense."

Fourth, the Court held that the defendant was not entitled to cross-examine the victim on other allegations she had made of sexual assaults. Although the trial court decided that this testimony was inadmissible under NH Rule of Evidence 403, the Court analyzed the issue using the nine factors set out under State v. Kornbrekke, 156 N.H. 821 (2008). The Court held that the trial court did not unsustainably exercise its discretion in prohibiting the defendant from cross-examining the victim on these allegations. The defendant could not show that the allegations of the other sexual assaults were false, and therefore, the evidence would not be relevant to show the victimís "untruthfulness."

Fifth, the Court upheld the trial courtís ruling that the defendant was not allowed to testify about the time he spent at the police station while taking a polygraph test unless the State could offer the evidence as to what the defendant was doing at the station during this time. The Court reasoned that under the "specific contradiction" branch of the "opening the door" doctrine, it would have been unfair to the state to leave the jury with the inference that the defendant had been at the police station being interrogated for an additional three hours while he was actually taking the polygraph test.

Finally, the Court ruled that nothing in NH RSA 651: 61-a, I (2007) precludes a trial court from ordering a defendant to pay restitution for future economic loss to a victim. Thus, the trial courtís order was appropriate when it ordered the defendant to pay up to $10,000 in restitution for future costs that the victim may incur.

Mark L. Sisti, Sisti Law Offices, Chichester, for the defendant. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general) for the state.


State v. Jacob Davis
No. 2009-315
December 17, 2010
Reversed and Remanded

  • Whether the Stateís acquisition of blood test results without a search warrant during an investigation into the defendant driving under the influence of alcohol violated Part I, Article 19 of the NH Constitution.
The Sutton Police Department appealed an order granting a motion to suppress that found the state unlawfully obtained a defendantís medical records by making a request to the treating hospital under New Hampshire RSA 329: 26. Sutton Police investigated the defendant for driving under the influence of alcohol after he had been taken to the hospital. The defendant successfully argued at the district court that the manner in which the state obtained the defendantís hospital records violated the NH Constitution as well as federal law.

The Court disagreed with the district courtís ruling. The Court reasoned that, under an "expectation of privacy" analysis, the defendantís expectation of privacy in a blood draw when the defendant is suspected of driving while intoxicated is not one which society is prepared to recognize as reasonable. The legislature has "carved out" an exception to the physician-patient privilege under NH RSA 329: 26 which specifically states that the privilege does not apply to tests when there is an investigation into driving under the influence of alcohol or drugs. This exception and the "Implied Consent" law (RSA 265-A: 4) recognize that people "encounter a diminished expectation of privacy" when they drive.

Michael Cornelio, New London, for the defendant. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general) for the state.


State v. Michael Addison
No. 2009-047
December 22, 2010
Affirmed

  • Whether the trial court erred in informing the jury venire that the defendant had been separately charged with the murder of a police officer.
     
  • Whether the method used to select prospective grand and petit jurors violates the requirement under RSA 500-A: 6 (2010) that juror selection process be random.
The defendant was convicted of conspiracy to commit criminal threatening and reckless conduct. These crimes occurred less than 24 hours before the defendant shot and killed Manchester Police Officer Michael Briggs. The murder of Officer Briggs attracted widespread media attention. Before jury selection, the defendant submitted proposed voir dire questions. The trial court declined to ask these questions because it found that they "could create confusion and speculation among potential jurors and hinder the attempt to select fair and impartial jurors." Instead the court modeled an instruction to the jurors based on an instruction previously given in State v. VandeBogart, 136 N.H. 107 (1992). This instruction told the potential jurors that the defendant had been charged in Officer Briggsí murder.

The Court upheld the trial courtís instruction to the jury venire. The Court held that a jury need not be totally ignorant of the facts of the case it is deciding. As in VandeBogart, the trial courtís instruction was proper because it "emphatically informed the panel of their duty to be impartial and gave [the jurors] an opportunity to express any reservations or doubts in this regard."

Next, the defendant argued that the method used to select prospective jurors was not "random" as required by RSA 500-A. The Court rejected this argument, declining to adopt an "equal odds" definition of "randomness." Rather, the Court looked to prior case law and the legislative history of RSA 500-A: 6 to explain that the definition of random under the statute refers to a "fair cross-section of the population of the area served by the court."

David M. Rothstein, deputy chief appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general (N. William Delker, senior assistant attorney general), for the state.


State v. Ricardo Prudent
No. 2009-831
December 22, 2010
Affirmed

  • Whether the trial courtís admission of evidence of a prior bad act was harmless error.
     
  • Whether the trial courtís instruction to the jury venire on jury nullification was improper.
The defendant was convicted of Criminal Mischief for purposely causing damage to the victimís television set. The defendant appealed the trial courtís decision to allow the victim to testify that the defendant had grabbed the back of her jacket earlier in the evening and thrown her into a car. The defendant also appealed the trial courtís instruction to the jury panel on the morning of jury selection in response to a group that had been passing out literature on jury nullification in front of the court house.

The Court found that the evidence against the defendant was overwhelming to support his conviction. Therefore, the state had shown that, even if the victimís testimony about what happened earlier in the night was inadmissible under Rule 403 or 404(b), any error was harmless beyond a reasonable doubt. The Court cited the defendantís admissions to police, the victimís testimony and evidence of the damage done to the victimís television in reaching this conclusion.

Next, the Court held that the trial courtís instruction that expounded upon the jury nullification instruction adopted in State v. Wentworth, 118 N.H. 832 (1978) was not plain error. The trial courtís instruction was found not to be plain error because the Court has yet to decide whether an instruction that expands on the instruction adopted in Wentworth is improper as a matter of law.

Stephanie Hausman, assistant appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general), for the state.


State v. Michael Pandelena
No. 2009-878
December 22, 2010
Affirmed

  • Whether the trial court may impose a period of license suspension as part of a violation of probation.
The defendant was convicted of the sale of a controlled drug under RSA 318-B and conspiracy to commit the sale of a controlled drug in February, 2009. The court may impose a loss of license for a conviction under 318-B, but chose not to at the time of sentencing. Instead, the defendant was sentenced to time in prison and placed on probation. In November 2009, the trial court found that he violated his probation by being arrested for driving under the influence of alcohol and failing a drug test. He was sentenced to additional prison time and a three-year license suspension once released from incarceration. The defendant appealed the trial courtís sentence with regard to the license suspension.

The Court reviewed the issue under the plain-error rule. The Court found that, although the trial court did not have the statutory authority to suspend the defendantís license under his probation violation, the error did not constitute plain error because the Court had never addressed the precise issue raised by the defendant. The Court further clarified, however, that a sentencing court is limited to imposing a fine or imprisonment for a defendant who violates probation if the court has retained a portion of its sentencing power.

David M. Rothstein, deputy chief appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general (Diana E. Fenton, assistant attorney general), for the state.


Family Law

In the matter of Kenneth R. Canaway and Mary N. Canaway
No. 2009-918
December 7, 2010
Affirmed

  • Whether the trial court erred in denying a petition to terminate alimony payments where the petitioner claimed he no longer had the ability to pay.
The parties were divorced in 1994 following 24 years of marriage. At that time, the petitioner (husband) was ordered to make alimony payments to the respondent (wife). After three years, the petitioner was ordered to pay $1,000 to the respondent indefinitely. He sought and was denied a modification to his alimony payments in 2003. In 2007, his payment was reduced to $750 per month, indefinitely.

The trial court denied the petitionerís third modification request in 2009. The petitioner based this request on the fact that he could not afford to continue paying alimony. I n support of this claim he offered evidence that he had to pull equity from his home and liquidate investments to "make ends meet," and that he had little or no income.

The Court upheld the trial courtís decision that the petitioner had the ability to pay the respondent alimony each month. The trial court was not forcing the petitioner to liquidate assets or borrow against the equity from his house. Rather, the trial court properly assessed the defendantís ability to continue paying alimony, the respondentís continuing need for alimony and any substantial change in circumstances that would warrant a modification to the payments. The burden of proof was on the petitioner, as the moving party, to show there had been a substantial change in his circumstances or the circumstance of the respondent for the modification to be proper. Ultimately, the Court agreed with the trial court that the petitioner chose to focus his resources on his new fiancť rather than his ex-wife.

Debora R. Reynolds, Conklin & Reynolds, Plymouth, for the petitioner. Paul M. Colella, Law Offices of Paul M. Colella, Winchester, MA, for the respondent.


In the matter of Tammy Rupa and Alan Rupa
No. 2009-829
December 22, 2010
Vacated and Remanded

  • Whether each factor set out under RSA 461-A: 13, II should be weighted equally when determining third-party visitation.
     
  • Whether RSA 461-A: 6 gives the court authority to order unsupervised communications and the sharing of transportation responsibilities with a third party.
The petitioner, Tammy Rupa, appealed a visitation order from the family division allowing her childís grandparents visitation on one weekend each month. The modification also called for unsupervised weekly mail, e-mail and telephone contact between the grandparents and child, and for the petitioner to share in the responsibility of transporting the child part of the way to the grandparentís home.

The Court clarified that RSA 461-A: 13, "requires a narrow construction to comport with state and federal constitutional requirements," because a parentís determination of what is in the childís best interest must be given special consideration by the trial court. Therefore, the trial court must weigh the first two factors set out in RSA 461-A: 13 more heavily than the remaining factors. These factors are (1) whether such visitation would be in the best interest of the child and (2) whether such visitation would interfere with any parent-child relationship or with a parentís authority over a child. Moreover, the Court instructed the trial court to make express findings of fact with respect to the factors considered under 461-A: 13 and the weight given to each factor. As the Court was unable to determine the weight given to each factor listed in RSA 461-A: 13 from the record, the case was remanded to the trail court for an order consistent with this ruling.

The petitioner next challenged the trial courtís statutory authority to order unsupervised communications between the child and the grandparents and order the petitioner to share in transportation responsibilities with the grandparents. The Court ruled that RSA 461-A: 4 gave the court authority to grant both of these conditions, if grandparent visitation is awarded.

Barbara L. Parker, Newport, for the petitioner. Jane M. Schirch, Shanelaris & Schirch, Nashua, for the intervenors.


In the matter of Anthony J. Laura and Ericka P. Scott
No. 2010-183
December 22, 2010
Affirmed

  • Whether a private agreement between parties can modify a final Uniform Support Order.
The respondent, Anthony J. Laura, was initially ordered by the trial court to pay Ericka Scott $57 per week in child support. This amount falls within the child support guideline under RSA 458-C. Shortly after this order, Laura and Scott privately agreed to reduce the payments to $50 per month, but never filed for a modification with the court.

When Laura failed to pay Scott the agreed upon child support, the stateís Division of Child Support Services ("the Division") became involved with the case. The Division sent notice to Laura that he owed weekly child support and arrearages to Scott based on the trial courtís original order of $57 per week. Later, the trial court found that the private agreement between parties did not modify Lauraís original obligation of $57 per week.

The Court agreed with the trial court. RSA 458-C: 4, IV specifically requires judicial approval of any agreement that departs from the child support guidelines. The trial court must make a determination that payments within the child support guidelines would be "inappropriate or unjust" to a party. The Court listed several policy considerations behind their opinion. First, it has been previously decided that standing orders of the court may not be modified through private agreements. Next, the trial court considers and protects the best interest of the child when determining payments. Finally, judicial approval is necessary to prevent collusion or unfair pressure by one party towards the other.

James F. Laura, The Law Offices of James F. Laura, Concord, for the respondent. Michael A. Delaney, attorney general (Rebecca L. Woodard, assistant attorney general) for the state.



David Tencza


A graduate of Suffolk University Law School, David Tencza joined the NH Bar in 2007 and has been a prosecutor in the Hillsborough County Attorneyís Office in Nashua since July of that year.


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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