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Bar News - June 21, 2013

NH Supreme Court At-a-Glance: May 2013


Criminal Law

State of New Hampshire v. Todd Leavitt, No. 2011-452
May 14, 2013
  • Whether identically worded charges in indictments per se violate the double jeopardy clause
Petitioner Todd Leavitt kicked police officer Nicholas Alden in the leg on two separate occasions after being taken into protective custody. Leavitt was indicted on two counts of simple assault. The charging documents were worded identically in every respect except as to the “charge ID” number and the designation as either “Count 1” or “Count 2.” Petitioner moved to dismiss at the trial court level, arguing that the charges violated double jeopardy principles because the jury could not “differentiate what evidence goes to which indictment.” The trial court denied his motion and he was found guilty on both counts. Petitioner appealed, claiming the trial court erred in denying his motion to dismiss one of the charges.

The Supreme Court held that the jury was instructed that he was being charged for two separate offenses. The state produced evidence during trial of the two separate offenses. A guilty verdict was returned on each offense individually. The double jeopardy clause is not per se violated when multiple indictments are worded identically.

Brianna M. Sinon for the petitioner. Michael A. Delanay, attorney general, and Sarah T. Blodgett, assistant attorney general, for the State.

State of New Hampshire v. Daniel Matton, No. 2011-801
May 14, 2013
  • Whether the court was required to give a “mutual combat instruction”
  • Whether the court is required to give specific instructions that a witness’s prior criminal convictions can be used to evaluate credibility
While a prisoner at Strafford County House of Corrections, Daniel Matton had a heated argument with his cellmate. Matton punched his cellmate in the jaw causing multiple head injuries. Matton was charged under Class A and Class B assault by a prisoner. Three of the witnesses who testified against him were inmates. The trial court denied his requests for a mutual combat jury instruction and a specific jury instruction that prior felony convictions could be considered to assess credibility. He was found guilty on both charges, but only sentenced for the Class A felony.

The Supreme Court held that Matton was not prejudiced by the court’s failure to give a mutual combat instruction because he was sentenced only on the Class A felony, and the instruction is only relevant to the Class B felony. Furthermore, the Supreme Court ruled that the trial court’s general instructions regarding bias were sufficient. While permitted to do so, a trial court is not required to specifically instruct a jury that evidence of the convictions of a witness, other than the defendant, may be considered in assessing that witness’s credibility.

David M. Rothstein for the petitioner. Michael A. Delaney, attorney general, and Stephen G. Labonte, assistant attorney general, for the State.

State of New Hampshire v. David McLeod, No. 2011-809
May 14, 2013
Reversed in part, vacated in part, and remanded
  • Whether hearsay from unavailable witnesses can be admitted into evidence by direct examination of an expert
  • Whether an expert can rely on inadmissible hearsay in giving their opinion
  • Whether a wiretapped conversation is subject to the exclusionary rule when a written memorandum is not submitted to the court by the state detailing reasonable suspicion after the wiretap is conducted
A fire burned down an apartment complex in Keene. Initially, this was believed to have been an accident. However, it soon became apparent that the defendant, David McLeod, may have intentionally started the fire. Several years after the event, fire experts reevaluated the fire and concluded that, based on how the fire occurred and on statements from Sandra Walker, the fire was intentionally started by McLeod. Walker died shortly after. Soon after, the police, with permission of the Attorney General, who was acting pursuant to reasonable suspicion, and the permission of a party to the conversation, wiretapped a call with McLeod pertaining to the incident. The Attorney General failed to submit a written memorandum to the court detailing their reasonable suspicion for the wiretap after it occurred. At trial, the state called the expert as a witness, and he attempted to use Walker’s statement while testifying. The state also admitted the wiretapped conversation into evidence. McLeod objected to the expert witness and the use of the wiretapped conversation. The court denied his request and he was found guilty. He appealed the court’s decisions.

The Supreme Court held that the statements from Walker that pertained to the fire could not be offered at trial through direct expert testimony because the statements were testimonial in nature, and due to her unavailability, would violate the Confrontation Clause of the Constitution. Furthermore, an expert can rely on otherwise inadmissible statements in making their expert opinion provided it is of a type reasonably relied upon by experts in the particular field, it is not merely a conduit to bring in inadmissible statements, and the opinion is based on the expert’s independent judgment. Finally, a wire tap by law enforcement officials is not subject to the exclusionary rule merely because a memorandum setting out the reasonable suspicion for the wiretap is not completed, provided that there was reasonable suspicion before the wiretap occurred.

Michael A. Delaney, attorney general and Janice K. Rundles, senior assistant attorney general for the state. Stephanie C. Hausman, for respondent.

State of New Hampshire v. Brendan Bisbee, No. 2012-047
May 14, 2013
  • Whether perjurious statements need to be verbatim alleged in an indictment
  • Whether the use of the term “dirty cop” in the state’s closing argument was improper
The defendant, Brendan Bisbee, a former police officer, was convicted on five counts of perjury. In his indictment, the substance of his perjurious statements was summarized. Bisbee moved for a mistrial alleging that he was not properly notified of the charges against him because his exact statements were not in the indictment. Furthermore, Bisbee moved that the prosecutor’s use of “dirty cop” in reference to Bisbee during closing arguments was improper. The trial court denied these motions, and he appealed.

The Supreme Court cited previous cases holding that the exact words uttered by the defendant need not be in the indictment, rather a summary of the statement’s substance need only be provided because such an indictment properly informs the defendant of the perjurious statements. Consequently, the statements in Bisbee’s indictment were sufficient. Furthermore, the Court cited prior cases allowing prosecutors to draw reasonable inferences from facts proven at trial for use in a closing argument, provided they do not inject their personal opinions as to the guilt of the defendant or the credibility of witnesses. In the present case, the prosecutor had an adequate factual basis to assert that the defendant was a “dirty cop” and it “merely summarized the prosecutor’s contention that the defendant was guilty of perjury, and [was] not being used to express his personal opinion.”

Christopher M. Johnson for the petitioner. Michael A. Delaney, attorney general, and John J. McCormack, for the state.

The State of New Hampshire v. Christopher Gribble, No. 2011-258
May 7, 2013
  • Whether the interrogator’s statements constituted an interrogation in violation of the defendant’s Miranda rights
  • Whether a change of venue was proper
  • Whether proper jury instructions for the insanity defense were used
Defendant Christopher Gribble was brought to a police station and interrogated for the murder of Kimberly Cates and the attempted murder of her daughter. He was informed of his Miranda rights. During the initial interrogation, Gribble stated that he did not wish to continue answering questions, and his interrogator ceased questioning. A short while later, Gribble initiated conversation with his interrogator. In asking the interrogator what the most difficult part of his job was, the interrogator told him that it was when suspects did not tell him why they committed their crimes. Gribble then resumed the interrogation under his own free will and admitted to the charges.

Before the trial, Gribble requested that the venue be changed due to media coverage of the case. The trial court denied his request. At the end of the trial, the jury was given instructions on the insanity defense based on the 2005 draft model jury instructions that enumerated several factors. The defendant objected to these instructions but requested that if used, they also include other enumerated factors. The trial court denied this request, the state tailored their closing statement to these instructions, and Gribble was found guilty of all charges. He appealed the admission of his interrogation claiming it violated his Miranda rights. He also appealed on grounds that the trial should have been held in a different venue, and that the jury instructions pertaining to his insanity defense were improper.

The Supreme Court held that Gribble’s Miranda rights were not violated because he reinitiated the interrogation. The interrogator’s statements did not amount to the functional equivalent of an interrogation because it was not reasonably likely to elicit an incriminating response from Gribble. Furthermore, change of venue was not appropriate here. Jury exposure to news accounts of a crime alone does not necessarily require a change of venue. The four factors that determine if there is jury prejudice are the size of the community and the pervasiveness of the media coverage, the nature of the reporting, the timing of the trial in relation to the crime, and the effect of the media coverage. Furthermore, the court will not presume unfairness of a constitutional magnitude simply because the community was aware of the crimes and charges against the defendant. It is not required that jurors be totally ignorant of the facts and issues involved. The question is not whether the community remembered the case, but whether the jurors at the trial had such fixed opinions that they could not judge impartially the guilt of the defendant.

The issuance of the particular jury instructions regarding the insanity defense was upheld because it did not favor either side, it adequately informed the jury of the defense, and did not favor any one enumerated factor of insanity. Furthermore, it informed the jury that it could consider other, non-enumerated factors. Moreover, merely because the State tailored its closing argument to the enumerated factors does not mean that the instruction improperly support the State’s case theory.

Michael A. Delaney, attorney general, Jeffrey A. Strelzin, senior assistant attorney general, and Peter Hinckley, assistant attorney general for the state. Stephanie Hausman for the defendant.

The State of New Hampshire v. Allen R. Mercier, No. 2012-353
May 14, 2013
Reversed and remanded
  • Whether reasonable suspicion existed to stop the defendant based on the law requiring safety glass on vehicles
A police officer pulled over defendant Allen Mercier because his window was partially shattered, and the officer thought it violated the law requiring safety glass on vehicles. Mercier was then arrested and tried on charges of driving while a certified habitual offender and disobeying a police officer. He moved to suppress the evidence due to lack of reasonable suspicion for the stop. The trial court denied his motion and he appealed.

The Supreme Court ruled in Mercier’s favor. A partially shattered window does not provide reasonable suspicion that the window is not made of safety glass. Consequently, the officer did not have reasonable suspicion to pull over Mercier.

Michael A. Delaney, attorney general and Lisa L. Wolford, for the state. James P. Loring for the defendant.

Family Law

In re Guardianship of Raven G. & a., No. 2012-238
May 14, 2013
Vacated and Remanded
  • Whether the burden to prove a permanent guardianship should be dissolved falls on the parents or the guardian when there was no initial parental consent
In January 2008, respondent, Cheryl C. successfully retained temporary guardianship of her grandchildren over the protests of the parents, petitioner and Stacy G. The court found it to be in the best interests of the children and would not relinquish guardianship until the parents could comply with a number of conditions that would demonstrate their responsibility as parents. In May 2008, after the parents’ continued failure to follow the conditions, the court made the guardianship permanent. In February 2011, the petitioner moved to terminate the guardianship, asserting that she had complied with the court conditions, to which respondent objected. At the hearing, conflicting evidence was presented by both sides regarding whether terminating the guardianship was in the best interests of the children. The court terminated the guardianship, relying on the standard in In re Guardianship of Reena D., 163 N.H. 107 (2011), which places the burden of proving the propriety of the non-parental guardianship on the non-parental guardian by clear and convincing evidence that the parents are unfit to fulfill their parental roles, instead of RSA 463:15, V (2004), which places the burden on the party opposing the existing guardianship.

The Supreme Court held that Reena D. only applies when the guardianship was consensual by the parents. Once it is initially established under RSA 463:8 that the guardianship is in the best interests of the child, a party that later contests the guardianship must follow RSA 463:15, V and “show by a preponderance of the evidence, that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor and termination of the guardianship will not adversely affect the minor’s psychological well-being.” The case was vacated and remanded to the lower court to be decided under the correct standard.

Diane M. Puckhaber of Puckhaber Law Offices, for respondent. Michael A. Delaney, attorney general, and Jeanne P. Herrick, for the state, as amicus curiae.

Property Law

Christina M. Deyeso v. Jules R. Cavadi, No. 2012-315
May 14, 2013
Reversed and Remanded
  • Whether homestead protection applies when funds are used to purchase a home with the intent to defraud, hinder, or delay unsecured creditors
Steve Barnes was successfully sued by Jules Cavadi. Barnes then purchased a house with Christina Deyoso. Cavadi successfully obtained a judgment to attach and sell the house to satisfy her judgment against Barnes. Deyoso appealed claiming homestead protection, which provides protection of one’s home from unsecured creditors. Cavadi claimed that because Barnes fraudulently used nonexempt funds to purchase the home and avoid creditors, the homestead provisions did not apply.

The Supreme Court held that even if nonexempt debtor funds were used to purchase a home with intent to defraud, hinder, or delay creditors, debtors still receive homestead protection because the objective of homestead protection is, inter alia, to promote homeownership and protect the welfare of families.

Keriann Roman of Drummond Woodsum & MacMahon for the petitioner. Christine M. Craig of Shaheen & Gordon for the respondent.

Michael C. Kirwin

A native of New Hampshire, Michael C. Kirwin is an attorney at Heideman, Nudelman & Kalik in Washington, DC. The firm deals primarily in international civil litigation. Michael is a graduate of the University of New Hampshire and attended the George Washington University School of Law under a full presidential merit scholarship.

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