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Bar News - November 18, 2011

NH Supreme Court At-a-Glance - October 2011


Criminal Law

State of New Hampshire v. Brooks, No. 2010-262
October 27, 2011
  • Whether the trial court erred when it allowed the state to enter prior recorded statements of a witness and found that witness competent to testify
  • Whether the trial court erred in denying defendantís pre-trial motion to dismiss for lack of a speedy trial.
In 2003 defendantís father (John) hired two of the defendantís friends (Carter and Benton) to murder Jack Reid, whom he suspected of stealing his trailer. A month later, the defendant visited his father from California and went with Carter and Benton to Dennis Chamberlainís home to ask whether he or Reid were involved in the theft. Later Carter drove the group to Reidís house where the defendant and Benton were dropped off. The incident resulted in Reid firing his gun and calling police. The group decided to leave Reid alone for awhile and the defendant returned to California and his father to Las Vegas. Approximately one and half years later the defendant called Benton about John returning to New Hampshire to take care of Reid. The defendant, John, and Joseph Vrooman met in Las Vegas to discuss killing Reid. Reid was murdered by John, Benton, Vrooman, and Robin Knight (a friend of Johnís) and defendant was arrested for conspiracy to commit murder.

Dennis was called at trial to testify. He had recently had surgery for brain cancer that affected his memory but after a competency hearing he was found to be a competent witness. Dennis testified and portions of two prior recorded statements of his were admitted by the State under New Hampshire Rule of Evidence 803(5). Both statements were with regards to the 2003 conversation between Dennis and the defendant. One prior statement was made to police in 2007 and one was made at Johnís trial in 2008. The Supreme Court assumed, without deciding, that the trial court erred in admitting the prior recorded statements but found that their admission was harmless under the harmless-error doctrine.

The Supreme Court determined that Dennisí competency to testify was committed to the trial courtís discretion. The Supreme Court concluded the trial court did not unsustainably exercise its discretion in finding Dennis competent to testify.

The defendant also argued that a thirty-two month delay between arraignment and trial violated his right to speedy trial under the State and Federal constitutions. The Supreme Court defers to the trial courts factual findings and considers de novo the trial courtís conclusions of law. The Supreme Court concluded that the defendant was not denied his right to a speedy trial under the State constitution and that because the Federal constitution is no more protective of the defendantís rights than the State constitution the same conclusion is reached under the Federal constitution.

Getman, Schulthess & Steere, of Bedford and Dwyer & Collora, of Boston, Massachusetts, for the defendant. Michael Delaney, attorney general and Janice K. Rundles, senior assistant attorney general, for the State.

State of New Hampshire v. Ortiz, No. 2010-269
October 27, 2011
  • Whether the superior court erred in failing to dismiss the pattern aggravated felonious sexual assault (AFSA) indictment and making the sentence on the pattern AFSA charge consecutive to the sentence he received for the other AFSA charge after having initially informed the defendant the sentences would run concurrently.
  • Whether the trial court committed plain error when it instructed the jury on the wrong mental state for the felonious sexual assault (FSA) charge and admitted certain lay testimony.
At the close of the Stateís case the defendant moved to dismiss the pattern AFSA charge because the indictment failed to include the definition of a pattern. The State argued that the motion was untimely or, in the alternative, that the indictment adequately apprised the defendant of the crime with which he was charged. To the Stateís assertion that the motion was untimely the defendant responded that the indictments failure to allege an essential element of the charged offense deprived the trial court of subject matter jurisdiction and, therefore, left him free to raise the issue of its defectiveness at any time in the proceedings. The trial court ruled the indictment was not defective. The Supreme Court first assumed, for the purpose of analysis, that the indictment was defective, and determined that a defective indictment does not deprive the trial court of subject matter jurisdiction. The Supreme Court then determined that the defendantís challenge to the indictment was untimely. Rather than precluding appellate review the untimely challenge confines review to plain error. The Supreme Court held that the defendant failed to demonstrate the trial court committed plain error by allowing the pattern indictment to stand.

The Supreme Court analyzed the defendantís other arguments under the plain error rule and found that while the trial court committed a plain error in instructing the jury that the mens rea for FSA was "knowingly" instead of "purposely" this error did not, under the fourth prong of the test, seriously affect the fairness, integrity or public reputation of the judicial proceedings.

The Supreme Court further determined that the trial court did not commit plain error in allowing improper lay witness opinion testimony in that it did not affect the defendantís substantial rights under the third prong of the test.

At the sentencing hearing the trial court initially sentenced the defendant, in part, to ten to twenty years in prison on one AFSA charge to run concurrent with an identical sentence on the pattern AFSA charge. The trial court recessed the hearing and nine minutes later reconvened and informed the defendant that it had read the sentence incorrectly and the sentences on those two charges was meant to be consecutive not concurrent. The defendant moved that the originally read sentence be imposed. The trial court denied the motion and asserted that it had the authority to correct what was essentially a clerical error and that the defendantís due process rights were not violated. The Supreme Court reviewed this constitutional issue de novo. The Supreme Court analyzed the issue under the State Constitution and agreed with the trial court. The Supreme Court clarified prior case law and held that a sentencing judge always has jurisdiction to correct a clerical error and that the Supreme Court can look beyond the language of the original sentencing order to determine whether a clerical error has occurred.

Dorothy E. Graham, assistant appellate defender, for the defendant. Michael Delaney, attorney general and Thomas E. Bocian, assistant attorney general, for the State.

State of New Hampshire v. Quintero, No. 2009-832
October 12, 2011
  • Whether the superior court erred when it conditioned the giving of a so-called "Williams instruction" on defendant agreeing to an amendment of the indictment to conform to the evidence presented at trial.
  • Whether State v. Williams, 137 N.H. 343 (1993) should be overruled.
The State alleged the defendant was guilty of sexually assaulting his niece when she was eight years old. The indictments alleged the assaults had occurred on or between January 1, 2007 and April 30, 2007. At trial, evidence, primarily a dated photograph, was introduced that indicated the assault occurred in September 2006. At the close of evidence the State sought a jury instruction that time is not an element of sexual assault and to amend the indictments to have a time frame which begins on September 1, 2006 through April 30, 2007. The defendant sought an instruction that the State was required to prove the offense occurred within the timeframe alleged in the indictment. The defendant argued he was allowed such an instruction under State v. Williams because the indictment had alleged a specific time frame and he had relied on a substantial time based defense. The defendant further argued that allowing the State to amend the indictments would circumvent the grand jury that issued them. The State responded that because time is not an element of sexual assault the proposed amendments related to form and not substance. Further the State argued that the defendantís turning over the photograph to the State the day before trial constituted a discovery violation and prevented that State from amending the indictments well before trial.

Given the defendantís delay in turning over the photograph, the trial court allowed the State to amend the indictments and also gave the jury instruction that the State must prove the assault occurred during the time frame alleged in the indictments. Responding to defendantís motion for reconsideration, the trial court asserted that amendment did not circumvent the grand jury because time is not an element of the offense and gave defendant the choice of amendment with a Williams instruction or no amendment and no Williams instruction. The defense chose the latter and the jury members were instructed that time was not an element of the offense. Defendant was convicted of one count felonious sexual assault and one count of aggravated felonious sexual assault.

The Supreme Court first ruled that Williams should be overruled prospectively. It justified overruling Williams by addressing how it defies practical workability, how related principals of law, in this case discovery rules, have developed to undercut the Williams rule, and how the Williams rule does not lend itself to any reliance that would lend a special hardship to overruling. The Supreme Court further stated that no other jurisdiction followed a rule similar to Williams. A concurring opinion by Justice Lynn addressed other factors beyond the four looked at by the Supreme Court in deciding the appropriateness of overruling Williams. The Supreme Court addressed these factors in response to the concurring opinion but declined to modify stare decisis doctrine.

The Supreme Court then assumed, without deciding, that Williams must still be applied in this case and analyses whether the defendant was entitled to a Williams instruction. It deemed the trial courtís actions appropriate and not a violation of defendantís due process rights. The Supreme Court next determined that the State would have been able to amend the indictment had it been in possession of the photograph earlier.

Pamela E. Phelan, assistant appellate defender, for the defendant. Michael Delaney, attorney general and Elizabeth C. Woodcock, assistant attorney general, for the State.

Labor Law

Appeal of Town of Deerfield, No. 2010-764
October 27, 2011
  • Whether the New Hampshire Public Employee Labor Relations Board (PELRB) was right in certifying the petitioner, the New England Police Benevolent Association, as the exclusive bargaining representative for a bargaining unit consisting of certain employees in the town police department.
On March 24, 2010, the petitioner petitioned for certification seeking to represent certain employees of the Town of Deerfieldís (Town) police department. The Town objected to the petition. The Town argued that the proposed bargaining unit did not include the statutory minimum of ten employees because three proposed members were not proper members of the bargaining unit. On June 27, 2010, a hearing officer granted the petition for certification. The Town sought review and the PELRB denied the Townís motion and upheld the hearing officerís decision. The PELRB subsequently certified the petitioner as the representative of the bargaining unit.

The Supreme Court determined that under the plain language of the statute the PELRB may not certify a bargaining unit that contains less than ten members. It confined its analysis to whether an on-call, part-time patrol officer should have been included in the count of bargaining unit employees. The officer in question was working a regular shift when the petition was filed and later became an on-call employee. The timing was such that the officer was a regular employee when the petition was filed but an on-call employee when the petition came before the hearing officer and the bargaining unit was certified. Thus, the Supreme Court found the PELRB erred in including him in the count because at the time of certification he did not meet the statutory definition of public employee.

Nolan Perroni Harrington, of Lowell Massachusetts, for the petitioner. Upton & Hatfield, of North Conway, for the respondent.

Property Law

Curtis Avery & a. v. New Hampshire Department of Education & a., No. 2010-798
October 27, 2011
  • Whether the superior court rightly dismissed a petition for declaratory judgment relating to a lot size waiver granted to respondent Concord School District (District) by respondent New Hampshire Department of Education (DOE).
In December 2009, the District voted to demolish and rebuild Kimball School. The lot size for the proposed new school building did not meet lot size requirements set forth in New Hampshire Administrative Rules, Ed 321.03(f)(1). The District filed an application for waiver with the DOE. The waiver was granted and the District received school building aid.

The petitioners own rental property adjacent to the Kimball School lot. They filed for declaratory judgment that the waiver was invalid and void because it failed to satisfy statutory requirements in that it did not include pertinent data relative to land values and availability of other property. They claimed the waiver threatened to diminish the value of their property. Respondents asserted petitioners lacked standing.

The trial court determined that petitioners lacked standing because the purported injury, protection of property values within a municipality, is unrelated to the purpose of the waiver rules and the school building aid statutes under which the District sought the waiver.

The Supreme Court found that the trial court did not err in its application of the law and that the petitioners conceded that if the trial court applied proper standing law its decision was correct. The Supreme Court also declined to find that abutters should be afforded standing to challenge the grant of a lot size waiver under the waiver rules and the school building aid statutes as a matter of public policy.

Hall, Morse, Anderson, Miller & Spinella, of Concord, for the petitioners. Michael Delaney, attorney general and Anne M. Edwards, assistant attorney general, and Kristen A. Fiore, attorney, for the respondent New Hampshire Department of Education. Upton & Hatfield, of Concord, for respondent Concord School District.

Brandt Development Company of New Hampshire, LLC v. City of Somersworth, No. 2010-641
October 12, 2011
Reverse and Remand
  • Whether the facts and circumstances surrounding a 2009 application for variance constitute material changes in circumstances from a 1994 application such that the zoning board of adjustment is required to conduct a full review of the variance request.
In 1994 Brandt was denied a variance from size and frontage requirements to convert a duplex into a four dwelling unit. The City of Somersworth zoning board of adjustment (ZBA) denied application for variance after finding it did not meet the five criteria set forth in RSA 674:33, I(b) (1986). Brandt did not appeal but rather obtained permits and added four bedrooms to the upstairs unit. In 2009, Brandt again applied to the ZBA for variance in the area, frontage, and setback requirements in order to convert the property into a four dwelling unit. The ZBA determined circumstances had not sufficiently changed and declined to decide the merits of the application. Brandt unsuccessfully moved for rehearing and appealed.

On appeal the superior court affirmed the ZBA decision. Brandt argues that material changes occurred between the 1994 and 2009 applications including changes in case law, the Cityís zoning ordinance and policy documents, and the physical layout of the property. The City denied that any material changes occurred and contended that even if they had 1994 application was denied on all prongs of the test not just undue hardship.

The Supreme Court decided that given recent changes in the law governing the standard to be applied to variance applications the ZBA unreasonably declined to hear Brandtís 2009 application. Specifically, the Supreme Court cited Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001) and Boccia v. City of Portsmouth, 151 N.H. 85 (2004) as changing the law as well as other instances where the Supreme Court has clarified the meaning of the five prong test.

Donahue Tucker & Ciandella, of Portsmouth, for the petitioner. Mitchell Municipal Group, of Laconia, for the respondent.

Alfred R. Marshall, Jr. & a. v. James J. Burke, Jr. & a., No. 2010-812
October 12, 2011
Reverse and Remand
  • Whether the trial court properly granted summary judgment in favor of the defendants when it determined that a tax deed cuts off ripened prescriptive rights as a matter of law.
Plaintiffs and defendants own property around Lake Ossipee. At a point prior to defendantís purchase of their property title was acquired by the Town of Ossipee by tax collectorís deed. Plaintiffís argued they met the elements of prescriptive easement over defendantís property prior to the tax collectorís deed.

The trial court relied on Burke v. Pierro, 159 N.H. 504 (2009) to determine that regardless of whether or not a prescriptive easement had ripened it was extinguished by the tax collectors deed. In deciding this, the trial court claimed Burke overruled Gowen v. Swain, 90 N.H. 383 (1939) sub silencio.

The Supreme Court disagreed and held that Burke did not overrule Gowen and a tax sale does not extinguish prescriptive easements that have ripened into vested property rights prior to recording of the tax deed.

Cooper, Cargill & Chant., of North Conway, for the plaintiffs. Orr and Reno., of Concord, for the defendants.

Mary B. Cloutier

Attorney Cloutier is a New Hampshire native and 2010 graduate of the University Minnesota School of Law. She resides in Franklin, NH.

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