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Bar News - April 15, 2011

NH Supreme Court At-a-Glance - March 2011


Criminal Law & Procedure

State v. Brian A. Beauchemin, No. 2010-171
March 31, 2011
  • Whether the trial court erred by denying the defendantís motion to suppress evidence, including a photograph of the defendantís property, taken by a conservation officer while standing on the defendantís porch.
  • Whether corn and salt-rich mineral blocks are covered substances within the definition of baiting for wildlife.
Following a bench trial, Beauchemin was convicted of a violation-level offense of baiting for wildlife during the closed season in violation of RSA 207:3-d. He argues that the conservation officer violated his right to be free from unlawful search and seizure when the officer stood on the defendantís porch and that any evidence obtained as a result of this act should have been suppressed.

The Court recognized that, pursuant to statute, conservation officers are permitted to go on any property to enforce wildlife rules and regulations, but that a warrant is required to enter buildings. The Court held that the defendantís porch was outside his house and that the officer was within his statutory powers to be there. The Court rejected the defendantís argument that the officerís presence on the porch violated his rights under the Fourth Amendment and Part I, Article 19 on the basis that the porch is a place where visitors can be expected to go.

Finally, the Court held that corn and salt-rich mineral blocks are covered by the definition of "baiting" and that the list of specific types of food substances contained in the statute did not preclude other types of food substances.

Justice Duggan delivered the opinion of the Court. Evan F. Nappen, E.F. Nappen Attorney At Law, for the defendant. Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State.

State v. Michael Euliano, No. 2009-797
March 16, 2011
  • Whether the trial court violated the defendantís Fifth and Sixth Amendment rights by commenting on the evidence in the presence of the jury.
  • Whether the trial court erred in denying the defendantís motion to dismiss the reckless conduct indictments where the indictments failed to allege that his vehicle was used as a deadly weapon.
Euliano was convicted of second degree assault, conduct after an accident and reckless conduct, based upon evidence that he drove his vehicle onto the sidewalk and hit three pedestrians.

Under a plain error review, the Court held that the three comments identified by the defendant that were made by the trial court did not affect the defendantís substantial rights because: the first comment could not reasonably be construed to imply that the trial court believed that the defendant was a bad person; a trial judge is not prohibited from summarizing evidence; and the there was no indication that the trial judgeís third comment referred solely to the defendant. Further, the Court held that the defendant failed to demonstrate that the trial courtís comments affected the outcome of the proceeding, given that the defendant admitted driving onto the sidewalk and hitting one person with his car. The Court, however, offered a word of caution about commenting from the bench.

The Court rejected Eulianoís argument that the two reckless conduct indictments were insufficient, noting that that the indictments tracked the language of RSA 631:3, II which sets forth the crime of reckless conduct.

Justice Hicks delivered the opinion of the Court. Lisa L. Wolford, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general), for the State.

State v. Joseph A. Munroe, No. 2009-535
March 31, 2011
Affirmed in part and Vacated in part.
  • Whether the trial court erred by finding the victim competent to testify.
  • Whether the trial court erred by permitting hearsay testimony from a pediatrician.
  • Whether the trial court erred by denying the defendantís motion to dismiss charges of aggravated felonious sexual assault based upon insufficient evidence.
  • Whether the trial court erred by giving jury instructions that constructively amended on of the indictments.
Munroe was convicted of aggravated felonious sexual assault, felonious sexual assault, felony indecent exposure, and misdemeanor child endangerment.

The Court rejected the defendantís argument that the minor victim was not competent to testify, holding that witnesses are presumed competent to testify and that the victimís direct testimony and answers during voir dire did not show that the victim lacked sufficient capacity to observe, remember, narrate or understand the duty to tell the truth.

The Court held that the testimony of the physician who conducted an examination of the victim following the incidents was admissible under the "Statements for Purposes of Medical Diagnosis of Treatment" exception to the hearsay rule. The fact that the examination was conducted as part of an investigation did not render this exception inapplicable where the evidence showed that the victim made statements to the physician with the understanding that the physician was examining her for a medical purpose.

The defendantís argument that there was insufficient evidence to support the aggravated felonious sexual assault charges was based upon his argument that the victimís statements to the physician were inadmissible hearsay. Given that the Court rejected this argument, the Court held that the evidence was sufficient for a rational jury to conclude that the defendant committed aggravated felonious sexual assault.

Finally, the Court vacated the defendantís convictions for felonious sexual assault based upon the trial courtís jury instruction which eliminated the distinction between this charge and the aggravated felonious sexual assault charge.

Justice Conboy delivered the opinion of the Court. Lisa L. Wolford, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State.

State v. George Reid, No. 2009-280
March 16, 2011
  • Whether the trial court erred by admitting a videotape of the victimís interview with police.
  • Whether the trial court erred by declining to grant a mistrial after the State introduced evidence regarding the defendantís silence.
Reid was convicted of aggravated felonious sexual assault and felonious sexual assault for events that took place in 2003 and 2004. During the trial in 2009, the State introduced the victimís videotaped statement as a recorded recollection. The victim gave the statement fourteen days after the disclosure of the incidents. The victim testified at trial that she did not remember all of the events she described in the videotape, but that she remembered giving the interview, that her memory of the events at that time was better than it was at trial and that at the time she gave the videotaped statements, she had a clear memory of the events.

The Court upheld the trial courtís decision to admit the videotape based upon a finding that the videotaped interview was a recorded recollection and therefore an exception to the hearsay rule. The Court rejected Reidís argument that the admission of the videotaped statement violated his right to confrontation under the Sixth Amendment on the basis that the victim was present and available for cross-examination at the trial. The Court affirmed its ruling in State v. Legere, 157 N.H. 746 (2008) that this principle applies even if the witness has no recollection of the events.

Finally, the Court held that the defendantís Fifth Amendment rights were not violated and that the State did not engage in prosecutorial overreaching when the State introduced testimony from an officer that he "tried" to talk to Reid during his investigation. The Court held that this line of questioning was immediately cut off, that the question did not so prejudice the defendant as to require a mistrial and that the trial court offered to cure this testimony with a jury instruction, which offer the defense counsel rejected.

Justice Duggan delivered the opinion of the Court. Theodore Lothstein, Lothstein Law Office, for the defendant. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general), for the State.

Family Law

In the Matter of Martin F. Kurowksi and Brenda A. Kurowski, No. 2009-751
March 16, 2011
  • Whether the trial court erred in ordering the mother to enroll the partiesí minor daughter in public school at the request of the father, whereas the mother desired to home school their daughter.
The mother appealed the trial courtís order granting the fatherís request to compel the mother to enroll the partiesí minor daughter in public school.

The parties disagreed as to whether their daughter should be home-schooled or enrolled in public school. The mother desired home-schooling based in part upon her religious beliefs. The father filed motions in the trial court seeking an order compelling the mother to enroll their daughter in public school. The appointed GAL recommended a transition into public school unless the parties jointly agreed to continue home-schooling.

The Court held that the trial court properly applied the best interests standards to resolve the school placement issue as opposed to the modification standard in RSA 461-A:11 on the basis that the parties never reached an agreement on schooling.

The mother argued that the trial courtís order was subject to strict scrutiny because it infringed upon her fundamental rights as a parent and her free exercise of religion. The Court rejected this argument, holding that this matter involved a dispute between two parents that had equal constitutional parenting rights and decision making authority and that the trial court had the authority to adjudicate this dispute based upon the best interests standard in RSA 461-A:6, I.

Under plain error review, the Court held that the trial court did not improperly base its order exclusively upon the recommendation of the GAL, but also considered other relevant information.

Emphasizing that its role is limited to deciding whether the trial court committed legal error or unsustainably exercised its discretion, the Court further held that the trial courtís specific reasonings, findings and rulings were supported by the record.

Justice Lynn delivered the opinion of the Court. Joshua L. Gordon, Law Office of Joshua L. Gordon, for the petitioner. John Anthony Simmons. Sr., Hampton, for the respondent. Michael Donnelly, Purcellville, Virginia, Home School Legal Defense Association, Christian Home Educators of N.H., and Catholics United for Home Education, as amici curiae. Lisa A. Biron, Welts, White & Fontaine, Cornerstone Policy Research, as amicus curiae.

In the Matter of James J. Miller and Janet S. Todd, No. 2009-806
March 31, 2011
Vacated and Remanded.
  • Whether the trial court erred in finding it was in the childrenís best interest to continue to reside with their mother despite the motherís interference with fatherís parenting time and a pattern of behavior that caused the children to have a negative relationship with their father.
The petitioner appealed an order of the Portsmouth Family Division requiring the partiesí two minor daughters to continue to live primarily with the respondent. The parties were never married, but had two daughters together. Toward the end of 2003, the partiesí relationship broke down and the parties began a series of protracted litigation concerning parenting time of the children, allegations that Miller molested his daughter, Laurel, sexual abuse investigation, DCYF investigations resulting in findings of "unfounded"psychological evaluations of both parents. The psychological evaluation revealed that the respondent likely, but unintentionally, caused Laurel to believe that she had been molested by her father, Miller, and that she had failed to protect the children from her negative feelings about their father.

Because Miller had not had a relationship with his children for a significant period of time, immediate reunification counseling was ordered by the trial court. The parties unsuccessfully participated in reunification counseling with two separate counselors. The court increased Millerís time with his children and noted that Todd continued to be rigid in her belief, despite evidence to the contrary, that Miller had molested the girls. The trial court noted that Todd had alienated the children from Miller. The trial court eventually created a visitation order and appointed a GAL. The GAL then moved to suspend visitation because Todd again alleged that the children had disclosed sexual abuse by Miller. DCYF investigated again and the allegation was determined as "unfounded." Miller subsequently filed an ex parte order for modification of custody, as the children were then alleging that Miller was making physical threats against Todd.

Following a three-day hearing, the court found that it was in the best interest of the girls to remain in NH with their mother. Miller raises three issues on appeal. First, he argues that the trial court erred in awarding Todd parenting responsibility when she has "engaged in a sustained campaign to alienate the children from [him], and to interfere with his parenting rights, by making multiple accusations of sexual abuse." Second, he argues that the trial court erred in not providing him a timely opportunity to view videotaped interviews with Laurel. Third, he argues that Supreme Court Rule 3 providing for mandatory review of appeals involving married parents, but discretionary review of appeals involving non-married parents, is unconstitutional.

The Court held that the trial courtís order did not cite RSA chapter 461-A, nor the application of the statutory factors to the specific facts. The Court held that the negative ramifications of Toddís unfounded belief that Miller had sexually abused his children, and continues to do so, are several and serious, especially as the false allegations of abuse significantly interfered with Millerís visitation and deprived him of any relationship with his children for years. Further, as a result of the false allegations, both children have been subjected repeatedly to invasive physical examinations, they have been interviewed by DCYF and law enforcement, they have been evaluated by Dr. Ward, they have had two guardians ad litem and they have twice participated in reunification therapy. These actions were not in the childrenís best interests.

The Court vacated the award of parental rights and responsibilities, ordering on remand that the trial court must consider the factors set forth in RSA 461-A, I(e)-(g) in determining the childrenís best interests in this case. Also, the court should consider the applicability of the recent amendment to RSA 461-A:6, IV.

The petitioner admitted on appeal that the issue of timely viewing of videotapes of the children was moot.

The Court held that because it exercised its discretion to accept this appeal, the question concerning the constitutionality of Rule 3 as applied to this case was moot. Any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.

Joshua L. Gordon for the petitioner. John P. Carr and Elizabeth B. Olcott for the respondent.

In Re Jack L., No. 2010-169
March 16, 2011
  • Whether the trial court erred under the ADA for failing to appoint guardians in the underlying abuse/neglect matter for the parents before terminating their parental rights.
  • Whether the trial court erred in failing to hold that that the parentís relationship with the grandmother constituted an agency and that said agency precluded a finding of abandonment where the grandmother inquired about Jack L.ís welfare on their behalf.
The respondents appeal an order of the Henniker Family Division terminating their parental rights over their son, Jack L., on the grounds of abandonment. Jack L. was born in 1999. In January 2004, the Coos County Probate Court granted, with the consent of the parents, a guardianship over the child to his paternal grandmother. Three years later, DCYF filed a neglect petition against the grandmother. A GAL was appointed. At a 2007 hearing, because the trial court determined the parents were at risk for losing their parental rights, both were appointed attorneys. In August, both parents had a psychological evaluation. In September, both parents left the State of New Hampshire. In a November 2007 dispositional hearing, the grandmother was found to have neglected Jack and DCYF was awarded custody. The parents failed to appear for this hearing.

The parents again failed to appear for a three-month review hearing in 2008. The next month the father contacted DCYF to visit with Jack. After being told he was required to participate in reunification counseling, the father attended a counseling session and then had unauthorized contact with Jack. At the six-month review hearing, DCYF had no address or contact information for the parents. After a nine-month review hearing, DCYF ordered the parents to attend the next hearing. DCYF learned what state the father was living in, but still had no contact information. In December of 2008, DCYF filed to terminate both parentsí parental rights.

The Court held that the parents did not preserve the issue to attack the neglect proceedings directly, by predicating error on a failure to provide GALs or guardians for them in that case. The parents did reserve the issue to collaterally attack a failure to provide GALs or guardians for them in the neglect proceedings as a basis to dismiss the TPR petitions. The Court held that this argument was without merit as the parents were not arguing that it would have changed the underlying finding of neglect.

With regard to the agency argument, the Court held that it need not decide whether an agency theory can ever be successfully asserted as a defense to a TPR proceeding alleging abandonment because no such defense is available to the parents in this case, given the factual circumstances presented.

Michael A. Delaney, attorney general and Laura E. B. Lombardi, assistant attorney general, for DCYF. Deb Bess Urbaitis, for the respondent father Todd H. Prevett, for respondent mother.

Insurance Law

Northern Security Insurance Company v. Michael Connors & a.
No. 2010-152
March 31, 2011
  • Whether the respondentís insurance company was obligated to defend him in a civil law suit.
The civil suit that underlies this case involves the 2005 murder of Jack F. Reid. The plaintiffs in that case, who are also respondents in the instant action, are Reidís estate and several individual family members; the defendants are John Brooks (Brooks), Robin Knight, Michael Benton, Joseph Vrooman, Jesse Brooks, and Michael Connors. The writ identifies four causes of action against Connors: civil conspiracy, wrongful death, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Connors was covered by a homeownerís insurance policy issued by Northern Security. Following the filing of cross-motions for summary judgment, the trial court ruled in favor of Connors, concluding that Northern Security has an obligation to defend Connors on two claims. While the trial court recognized that "[t]he parties generally agree that intentional acts are not covered by the policy," it found that (1) negligent infliction of emotional distress and conspiracy to commit false imprisonment were acts covered by Connorsís policy, and (2) the covered alleged acts were not inextricably intertwined with any non-covered alleged acts.

Pursuant to RSA 491:22-a (2010), the burden of proving lack of insurance coverage is on the insurer. The Court considered the reasonable expectations of the insured in determining whether a duty to defend exists. The Court held that an insured would reasonably expect that if there is coverage for false imprisonment, there is also coverage for conspiracy to commit false imprisonment. The trial court ruled that Northern Security has a duty to defend respondent Connors in the civil lawsuit.

Doreen F. Connor and Gary M. Burt, Wiggin & Nourie, for the petitioner. Kevin E. Sharkey, Kenna & Sharkey, for respondent Connors. Gary S. Lenehan and Jaye L. Rancourt, Brennan, Caron, Lenehan & Iacopino, for respondents Estate of Jack F. Reid, Sr., Jay Klos, James Reid, Laurie Zic, and Catherine Reid.

Tax Law

Appeal of Ned Wilson & a., No. 2010-286
March 31, 2011
  • Whether Rule 203.02(d) requiring property owners to certify their abatement application conflicts with RSA 76:16, IV, which provides that an applicantís failure to use the abatement application form set forth in RSA 76:16, III that "shall not affect the right to seek tax relief."
Ned and Theresa Wilson, appeal the decision of the New Hampshire Board of Tax and Land Appeals (BTLA) to dismiss their appeal of the denial by the respondent, Town of Sugar Hill (Town), of their request for an abatement of real estate taxes.

In a request for an abatement of taxes, the petitioners failed to sign the document requiring them to certify that all information was true and their representative likewise failed to sign, certifying they had signed it. Instead, their non-attorney representative attached a form showing he was the petitionerís agent and could sign on their behalf. The Town denied the abatement request, and the petitioners appealed to the BTLA.

The BTLA dismissed their appeal because they had failed to sign the abatement application form. The BTLA found that because there was no reasonable cause for the petitionersí failure to sign the form and because the agentís failure to obtain their signatures constituted willful neglect, dismissal of their appeal was warranted.

On appeal, the petitioners did not contest that they had failed to sign their application; rather, they argued that administrative rule (Rule 203.02(d)) requiring their signatures and certification is unlawful and that the BTLAís decision was likewise unlawful. The Court disagreed and held that the BTLAís administrative rules were not in conflict with statutory scheme. The Court likewise disagreed with the petitionersí assertion that requiring the taxpayerís signature and certification was inconsistent with allowing the taxpayer to have a representative.

Fred K. Mayer III for the petitioners. Adele M. Fulton and J. Justin Sluka, Gardner Fulton & Waugh, for the respondent.
Keriann Roman
Attorney Roman is an appellate and litigation associate at Donahue, Tucker and Ciandella, which has offices in Exeter, Portsmouth and Meredith, NH. She has been a NH Bar member since 2006.
Enrique F. Mesa Jr and Melissa S. Penson
Enrique F. Mesa Jr and Melissa S. Penson are a married legal team who practice in Manchester and Nashua, respectively. Enrique is licensed in Florida and practices solely immigration law in Manchester. Recently, he was elected Chair of NH Governorís Advisory Commission on Latino Affairs. Melissa is a member of the New Hampshire, Massachusetts and Florida bars and practices criminal, family and appellate litigation with Smith-Weiss, Shepard in Nashua.

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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