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Bar News - September 20, 2013

NH Supreme Court At-a-Glance: August 2013


Criminal Law

State v. Oriol Dor
No. 2012-823
Aug. 7, 2013
  • Whether the definition of a ‘loaded pistol or revolver’ [under RSA 159:4 (2002)] encompasses... a firearm with no cartridge in the firearm and no magazine in the magazine well [,] but with a loaded magazine located next to it and easily accessible
On May 8, 2012, police searched the defendant’s vehicle and found a .40 caliber semi-automatic pistol adjacent to a loaded magazine in the vehicle’s glove compartment. The pistol did not have a cartridge in the chamber or a magazine in the magazine well. The state charged the defendant with a class A misdemeanor for “knowingly carry[ing] a loaded pistol as defined in RSA 159:4 in a vehicle without a valid license.”

The defendant moved to dismiss, arguing that “[t]he firearm at issue was not loaded and therefore no license was required and no crime was committed.” The trial court found RSA 159:4 “potentially ambiguous” and transferred the question on an interlocutory transfer without ruling from the 9th Circuit Court – Manchester District Division.

The court, following its review and interpretation of the statute, concluded that for a pistol or revolver to be considered “loaded” within the meaning of RSA 159:4, the pistol or revolver must contain a cartridge in the chamber or must contain a magazine, cylinder, or clip inserted in or otherwise adjoined to the firearm such that the firearm can be discharged through normal operation.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Criminal Procedure

State v. William Decato
No. 2012-083
August 28, 2013
  • Whether the defendant’s amnesia rendered him incompetent to stand trial
At about 10 p.m. on Aug. 25, 2009, the defendant, William Decato, broke into the victim’s home through a window and encountered the victim asleep on her living room sofa. He put a cloth over her face and began to sexually assault her. The defendant remained in the victim’s home for about two hours, assaulting and attempting to assault her numerous times in the living room, bathroom, and bedroom.

Before trial, the defendant was evaluated by Dr. Daniel Comiskey, the New Hampshire Department of Corrections’ chief forensic examiner. Thereafter, the defendant sought a ruling that he was incompetent to stand trial on the ground that he had no memory of the period during which the charged offenses took place, and, therefore, could not communicate facts relevant to possible defenses to his counsel.

At the competency hearing, Dr. Comiskey testified that the defendant related that he had consumed 11 beers between 6 p.m. and 10 p.m. on the night of the charged offenses, and that he had no memory of events between 10 p.m. and 3 a.m. the next day, when he was found by police.

Dr. Comiskey concluded that the most likely explanation for the defendant’s periods of amnesia was “consumption of a large amount of alcohol” and stated that in his opinion, the defendant was competent to stand trial. The trial court concluded that “[w]hatever the extent of the defendant’s amnesia, it is not so severe as to affect his requisite understanding of the proceedings or the rationality of his discussions with counsel.”

After a jury trial, the defendant was found guilty on nine counts of aggravated felonious sexual assault, four counts of attempted aggravated felonious sexual assault, one count of kidnapping, one count of burglary, and two counts of falsifying physical evidence.

The Court concluded that the defendant met the two-pronged competency test established in Dusky v. United States, 362 US 402 (1960) based on Dr. Comiskey’s testimony. The Court also concluded that the circumstantial evidence against the defendant, including his DNA and personal effects left at the scene of the crime, was very strong and claims that “amnesia has prevented [the defendant] from raising any tenable defense” have failed where the evidence against the defendant was “both overwhelming and scientific in nature.” United States v. Andrews, 469 F.3d 1113, 1121, 1120 (7th Cir. 2006).

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Professional Responsibility

Appeal of Dr. Kevin D. Boulard, DMD
No. 2012-532
Aug. 28, 2013
Affirmed in part; and vacated in part.

Licensed dentist Dr. Kevin Boulard, the petitioner, obtained a moderate sedation–unrestricted permit from the New Hampshire Board of Dental Examiners (board) in 2010. A moderate sedation–unrestricted permit allows the permit holder to use anesthesia on patients to perform certain dental procedures. In December 2011, the board received a complaint from one of the petitioner’s former employees. In the complaint, the former employee raised multiple concerns about the petitioner’s practice, including that it “was not equipped to handle a sedation emergency.”

The board conducted two investigations, one unannounced and a second, scheduled investigation by the New Hampshire Anesthesia and Sedation Evaluation Committee (committee). The committee gave the petitioner a passing grade for his moderate sedation–unrestricted permit, contingent on the petitioner acquiring one required medication, one piece of required equipment, and required certifications for his staff.

Before considering the committee’s report, the board issued a finding of misconduct, after which Dr. Boulard moved for reconsideration so that the board could consider the report. After considering the report, the board reissued its finding of misconduct and the indefinite suspension of the permit. The petitioner appealed, contending that the board’s reading of a committee’s evaluation constituted evidence of bias.

The Court found that the board’s decision to reject the committee’s passing grade did not establish that it entertained ill-will towards the petitioner, or unalterably prejudged the facts of the case against him. The Court concluded that the petitioner’s violations – failing to have a required medication and adequately trained staff – are not too complex as to be outside the competence of the board to decide without the aid of expert testimony.

The board had also ordered that the petitioner’s permit would not be reinstated until the board had received and reviewed “information from other practice issues currently being investigated by the board.” The Court agreed with the petitioner that this aspect of the board’s order could not be upheld. The Court ruled that the mere fact that the board is conducting other investigations of the petitioner’s practice does not justify the continued suspension of his permit and vacated this part of the board’s order.

Thompson & Bowie, of Portland, Maine (Mark V. Franco on the brief), for the petitioner. Michael A. Delaney, attorney general (Anthony I. Blenkinsop, senior assistant attorney general, on the brief), for the New Hampshire Board of Dental Examiners.


In re Estate of Richard B. Wilber
No. 2012-368
Aug. 21, 2013
Reversed and remanded

Richard and Josephine Wilber were married for about 50 years. Richard owned property in both Maryland and New Hampshire. On March 19, 2007, the Wilbers executed a contract (the Agreement) in which Richard agreed to transfer his Maryland property to Josephine and she, in turn, agreed to allow him to live in the house on the property until his death or until he no longer wished to live there. Richard also agreed not to make any claims on the Maryland property during his life or “after [his] death,” and Josephine, in return, agreed not to make any claims on Richard’s New Hampshire property (the Property) during her life or “after [her] death.”

Richard died testate on Oct. 18, 2010, omitting Josephine from his will. The executor of Richard’s estate in Maryland, his state of domicile, filed ancillary administration in the 9th Circuit – Nashua Probate Division to distribute property he owned in New Hampshire. In December 2010, Josephine filed a waiver by surviving spouse in the probate division, seeking a statutory share of the property under RSA 560:10, which allows a surviving spouse to waive the decedent spouse’s will and take a specified portion of the estate.

Josephine died March 12, 2011, leaving the executor of her estate, Rosemary Heyne, to pursue her claim. Richard’s estate opposed the waiver on several grounds, among them: (1) Josephine had already petitioned the Orphans’ Court for Prince George’s County, Maryland for a statutory share of his estate, and had been denied for untimeliness; and (2) Josephine waived her right to pursue a statutory share by promising in the Agreement to make no claims on the property during her life or after death.

The probate division disagreed on both grounds, ruling that it had ancillary jurisdiction over the property and that the Agreement did not satisfy “the necessary criteria to be a valid and enforceable postnuptial agreement.”

On appeal, the Court reversed the ruling of the trial court and remanded for further proceedings because Josephine’s estate, as the party challenging the Agreement, failed to meet its burden to demonstrate that the Agreement was unfair to Josephine and no evidence was introduced suggesting fraud, mistake, or duress.

Ransmeier & Spellman, of Concord (Frank E. Kenison and John T. Alexander on the brief, and Mr. Alexander orally), for the respondent. Upton & Hatfield, LLP, of Concord (Douglas S. Hatfield and Matthew R. Serge on the brief, and Mr. Hatfield orally), for the petitioner.

Real Property

Town of Newbury v. Steven P. Landrigan & a.
No. 2012-039
Aug. 21, 2013

In 1935, the Town of Newbury deeded two contiguous lots, known as lot 3 and lot 4, to a private party (the original owner). The town also deeded to the original owner four small “cottage lots” adjacent to lots 3 and 4. In 1961, the original owner recorded a plan depicting lots 3, 4 and the cottage lots. The plan identified boundary lines separating the “cottage lots,” but did not show an internal boundary line between lots 3 and 4.

Eleven years later, in 1972, the original owner deeded the southern portion of lot 4 to an abutter. The following year, the town deeded to the original owner an adjacent triangular parcel of land. Around this time, the town began assessing lot 3, the remaining portion of lot 4, the “cottage lots,” and the triangular parcel of land as a single lot (the property). Subsequently, the property was transferred by deed three times. The property description in all deeds did not refer to any internal boundary lines and each deed in the chain of title referred to the previous deed.

In 2004, the property was transferred by deed to the respondents. At the time the respondents purchased the land, they understood that they were buying a single lot and applied for a building permit later that year, describing setbacks measured from the property’s exterior boundaries and not from the 1935 lot line between lots 3 and 4.

Later survey plats of the property showed a dotted or solid line separating lots 3 and 4 and in 2010, the respondents executed two deeds purporting to transfer the property to themselves as separate lots, without ever seeking subdivision or planning board approval. The town then filed an action in superior court claiming that the respondents had subdivided their property without planning board approval in violation of RSA 676:16.

The trial court ruled that the respondents had unlawfully subdivided their property in violation of RSA 674:35 and RSA 676:16, finding that “[g]iven the manner in which the current and former owners have treated the property, it has been merged and treated as a single lot for 50 years or more.”

The NH Supreme Court ruled on appeal that the evidence supported the trial court’s finding that, as early as 1961, when the plot plan showing no boundary line between lots 3 and 4 was recorded, the respondents and their predecessors, through their conduct, abolished the line between the two lots described in the 1935 deed.

Upton & Hatfield, of Concord (Barton L. Mayer on the brief and orally), for the petitioner. D’Amante, Couser, Pellerin, & Associates, of Concord (Bruce J. Marshall on the brief and orally), for the respondents.

Tax Law

Granite State Management & Resources v. City of Concord
No. 2012-436
Aug. 21, 2013
Affirmed in part; reversed in part; and remanded.

Granite State Management & Resources (GSMR), a New Hampshire nonprofit, provides low-cost or alternative financial assistance to eligible students and parents, custodians or guardians of students attending educational institutions or participating in educational programs in the US and its territories.

GSMR owns four parcels of land on Barrell Court in Concord that are used for its offices and parking. In 2008, the city assessed taxes on two of the lots based on their full values, even though one had been subject to a payment-in-lieu-of-taxes (PILOT) agreement entered into in February 2001. The city informed GSMR in 2003 that the PILOT had expired, and began taxing that lot at full value. Two of the other lots were taxed as a combined parcel under a separate PILOT entered into in September 2000. Although the September 2000 PILOT applied solely to a single lot, in 2003 the city started using the combined value of two lots when appraising the consolidated lot for PILOT purposes. GSMR paid the assessed taxes on all four lots, but informed the City that it believed the tax bill “include[d] a substantial overpayment.” GSMR subsequently brought a petition for declaratory judgment.

After applying, unsuccessfully, for a full abatement of its 2009 taxes, GSMR filed a second petition for declaratory judgment. The trial court consolidated GSMR’s petitions, and the parties filed cross-motions for summary judgment. The trial court granted GSMR’s motion for summary judgment and denied the city’s motion.

On appeal, the Court affirmed the trial court’s denial of the City’s motion for summary judgment. The Court also found that the trial court erred in granting GSMR summary judgment and remand for further proceedings consistent with the opinion.

Sulloway & Hollis, of Concord (Margaret H. Nelson on the brief and orally), for the petitioner. City Solicitor’s Office, of Concord (James W. Kennedy and Danielle L. Pacik on the brief, and Mr. Kennedy orally), for the respondent.

Jennifer Litwak

Jennifer Litwak is the executive director of Housing on Merit (HOM). She is a graduate of the University of Denver Strum College of Law and was admitted to the New Hampshire bar in November 2012.

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