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Bar News - January 15, 2014

Supreme Court At-a-Glance: December 2013


Criminal Law

State v. Daniel C. Thompson
No. 2013-096 Dec. 24, 2013
  • Whether the circuit court erred in denying defendant’s request for an appeal to the superior court for a de novo jury trial
  • Whether the superior court erred in denying defendant’s petition to allow a misdemeanor appeal
The defendant was convicted of driving while intoxicated, and at sentencing, the circuit court admitted evidence of his two prior convictions and sentenced the defendant to enhanced penalties for his third DWI offense. Consequently, defendant was convicted of a class A misdemeanor. In State v. Thompson (Thompson I), the defendant challenged the imposition of the enhanced sentence, but the court affirmed the conviction of a class A misdemeanor. The defendant then notified the trial court of his intent to appeal the conviction and sentence to the superior court and asserted his right to a de novo jury trial. After the trial court’s denial, defendant petitioned the superior court to allow a misdemeanor appeal, and the court denied the motion.

Although the court acknowledged defendant’s constitutional right to a jury trial in superior court, the court concluded that RSA 502-A:12 allows a person convicted in circuit court of a class A misdemeanor either to appeal directly to the NH Supreme Court or to appeal for a jury trial in superior court. In this instance, the defendant appealed directly to the court in Thompson I, and therefore, the court deemed him to have waived his right to a jury trial in the superior court. The court further held that defendant’s deemed waiver did not violate his constitutional right to a jury trial.

Finally, the court rejected defendant’s contention that the superior court should have held an evidentiary hearing to determine whether his waiver was the result of honest mistake, accident, or misfortune, reasoning that defendant failed to establish that the court’s decision was clearly untenable or unreasonable to the prejudice of his case.

Bruce E. Kenna, Kenna & Sharkey, Manchester, for the defendant. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general) for the state.

State v. David Lantagne
No. 2013-069 Dec. 24, 2013
Reversed and Remanded
  • Whether the trial court erred in denying the defendant’s motion to suppress evidence
The defendant appealed his conviction on stipulated facts of three counts of possessing child sexual abuse images. Lantagne was caught taking photographs of other patrons (including juveniles) using his cell phone at a water attraction at Canobie Lake Park. The defendant made certain admissions and was subsequently arrested for disorderly conduct. Following his arrest, the police obtained search warrants for the defendant’s bedroom and computer equipment. Analysis of his computer equipment revealed images that led to his eventual conviction. The disorderly conduct charges, however, were not pursued.

Prior to trial, the defendant moved to suppress all of the evidence obtained following his arrest for disorderly conduct, contending, inter alia, that his arrest lacked sufficient probable cause and therefore was unconstitutional under the state and federal constitutions. The trial court denied the motion, reasoning that “the police ‘had information that defendant had taken pictures of young girls’ and had stored those pictures on his cell phone and home computer,” and therefore, the facts, taken as a whole, provided the police sufficient probable cause to arrest the defendant.

On appeal, the court rejected the state’s argument that there was probable cause to believe that the defendant engaged in “threatening” behavior by surreptitiously photographing the backsides of children, causing discomfort to patrons visiting the park. See RSA 644:2, II(a) (emphasis added) (providing that a person is guilty of disorderly conduct if he or she “[e]ngages in fighting or in violent tumultuous or threatening behavior in a public place.”). Interpreting the phrase “threatening behavior” in the context of the statute, the court held that the phrase “encompass[ed] conduct posing a threat of imminent harm to other persons present, and not conduct that merely causes discomfort.” Thus, the court concluded, photographing appropriately clothed children in a public portion of Canobie Lake Park, even if surreptitiously and with suspect motive, did not warrant a reasonable belief that the photographer posed a threat of imminent harm to any of the patrons. Accordingly, the officer lacked probable cause to arrest the defendant for disorderly conduct.

Because the defendant’s arrest was unlawful, the court held that all of the evidence and/or statements obtained therefrom, including the evidence obtained from the search warrant, must be suppressed under the fruit of the poisonous tree doctrine and the exclusionary rule.

John A. Macoul, of Salem, for the defendant. Joseph A. Foster, attorney general, (Nicholas Cort, assistant attorney general), for the State.

State v. Jessica Botelho
No. 2012-447 Dec. 24, 2013
  • Whether the trial court erred by admitting into evidence the name and description of the website the defendant visited while leaving her young children unattended in the bathtub
  • Whether the trial court erred by excluding certain portions of a recorded police interview
The defendant left her 1-year-old and 2-year-old children unattended in the bathtub while she sat on an outdoor porch using her laptop. The younger child died from complications related to a near drowning. Subsequently, the defendant was convicted of manslaughter, negligent homicide, and reckless conduct following a jury trial.

On appeal, the defendant argued that the trial court erred in denying her motion in limine to exclude all evidence pertaining to the website, “,” which she visited during the time she left her children unattended in the bathtub.

The defendant contended that the evidence was not relevant and, if relevant, “any probative value [was] substantially outweighed by the danger of unfair prejudice.” NH R. Ev. 403. The NH Supreme Court declined to address whether admitting the website information was erroneous and instead concluded that any error was harmless because the alternative evidence of the defendant’s guilt was overwhelming. The overwhelming evidence revealed that the defendant left her children unattended for an extended period of time, that she understood the risk to her children of such conduct, and that her reckless conduct caused the death of her son. The court held, therefore, that any references to were inconsequential in relation to the strength of the evidence of guilt.

The court also rejected the defendant’s contention that the trial court erred by excluding certain portions of her police interview. The court disagreed that the doctrine of completeness required the admission of the disputed sections to prevent misleading impressions about the defendant’s qualities as a mother and to bolster the defendant’s recollection of how long she had been on the computer. Finally, the court rejected the defendant’s contention that admission of the disputed sections would have counterbalanced the supposed prejudice caused by admitting the evidence.

James B. Reiss, assistant appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general) for the State.

State v. Jason Durgin
No. 2012-467 Dec. 6, 2013
  • Whether the trial court erred in denying the defendant’s motion in limine to admit alternative perpetrator evidence
  • Whether the court erred in excluding certain impeachment evidence regarding the key witness’s “theft and unauthorized use of [the defendant’s EBT] card”
  • Whether the trial court erred in denying defendant’s motion to set aside the verdict as conclusively against the weight of the evidence
The defendant was convicted by a jury of second-degree assault and negligent homicide after the victim died from injuries sustained from the defendant’s assault on him. Prior to trial, the defendant moved in limine to admit evidence that Gerald and Robert York had motive and opportunity to assault the victim, because Gerald had recently been assaulted inside the defendant’s trailer, and therefore, the Yorks sought revenge. The trial court denied the motion.

Assuming without deciding that Rule 404(b) applies to alternative perpetrator evidence, the NH Supreme Court affirmed the trial court’s ruling, finding the evidence irrelevant and reasoning that the defendant failed to show a “clear connection” between the purposes for which he sought to introduce the evidence and the Yorks’ other bad acts. Specifically, the defendant did not establish the requisite nexus between the Yorks’ motives to seek revenge on the person who assaulted Gerald and their motive to assault the victim. The court also affirmed the trial court’s ruling denying the defendant’s motion in limine, which sought the admission of evidence to impeach the credibility of his roommate, Tracy Herbert. The defendant alleged that after his arrest, Herbert took his EBT card and used it without his authorization, and that this evidence was relevant to show that Hebert was prejudiced against him and was motivated to lie about her eye-witness account of the assault, to “curry favor with the police.”

The court concluded, however, that the defendant, who elicited testimony on cross-examination regarding Herbert’s lies to police about the incident, as well as her faulty memory and compromised mental state, was allowed a threshold level of inquiry on Herbert’s prejudice and motive to fabricate. Accordingly, his right to impeach Herbert’s credibility, a right incidental to his state and federal constitutional confrontation rights, was not violated.

Finally, the court rejected the defendant’s argument that he was entitled to a new trial as the verdict was conclusively against the weight of the evidence and concluded that the record established an objective basis to support the trial court’s decision.

Brianna M. Sinon, assistant appellate defender, Concord, for the defendant. Joseph A. Foster, attorney general (Benjamin J. Agati, assistant attorney general) for the State.

Contract Law

Robert Audette & a. v. Suzynne D. Cummings & a.
No. 2012-496 Dec. 24, 2013
  • Whether the trial court erred in ruling that the plaintiffs did not fail to mitigate their damages
  • Whether the trial court erred in ruling that the defendants’ breach of contract was the legal cause of the plaintiffs’ damages
  • Whether the trial court erred in ruling that expert testimony was not required in order for the plaintiffs to prevail on the issues of liability and causation
The defendants appeal a final order awarding $44,403 to the plaintiffs for breach of contract. The plaintiffs hired the defendants to place a mechanic’s lien on certain property where they completed subcontract work, but remained unpaid. In a representation letter that defendant Cummings drafted, she detailed a number of services that the defendants would provide with regard to collecting the money owed to plaintiff, H&S Construction Services, for its work on the property. The defendants failed, however, to timely record a mechanic’s lien and failed to take any action to recover the money as promised in the representation letter. Accordingly, the plaintiffs brought suit for breach of contract.

In upholding the trial court’s ruling and subsequent award, the NH Supreme Court first rejected the defendants’ argument that the plaintiffs failed to mitigate their damages by not responding to telephone calls from the contractor and property owner indicating that the issues with the town were resolved and H&S would be paid if it completed the work.

The court noted that Cummings explicitly instructed the plaintiffs to refer all calls from the involved parties to her. Additionally, the plaintiffs did not learn of the defendants’ breach until more than a year after the property had been transferred and the statutory mechanic’s lien had lapsed. The court also rejected the defendants’ second mitigation argument, that the plaintiffs allegedly failed to bring suit against the general contractor or subsequent property owners, reasoning that the defendants offered no evidence to show that it was reasonable for the plaintiffs to file an action against the general contractor, whom they believed was insolvent and whose whereabouts were unknown.

Second, the court concluded that the record established that the defendants caused the plaintiffs’ damages by failing to perform under the representation letter. The defendants’ failure to act led to the lapse of the plaintiffs’ statutory mechanic’s lien and the loss of the plaintiffs’ opportunity to collect monies owed them.

Finally, the court rejected the defendants’ argument that expert testimony was required for the plaintiffs to prevail on the issues of liability and causation. Because this was a breach of contract action, not an action for negligence of legal malpractice, it was not beyond the ken of the average layperson to determine whether the defendants breached their explicit obligations under the representation letter.

Peter E. Hutchins, Law Offices of Peter E. Hutchins, Manchester, for the defendants. Daniel R. Hartley, Casassa and Ryan, Hampton, for the plaintiffs.


Daniel A. Eaton v. Mary Louise Eaton & a.
No. 2012-703 Dec. 20, 2013
  • Whether the trial court erred in ruling that the absence of an acknowledgement executed by the petitioner and affixed to the durable general power of attorney precluded the petitioner from acting under the power
This is the second appeal arising from the petitioner’s attempts to be compensated for legal fees he incurred in guardianship proceedings involving his mother and her guardian. The petitioner contends that he is entitled to legal fees incurred while challenging his brother’s petition for guardianship over their mother, because he acted as his mother’s attorney-in-fact, pursuant to a durable general power of attorney (DPA) executed in October 2004.

The trial court partially granted the respondents’ summary judgment motion, ruling that the petitioner had no authority to act under the DPA, because it lacked the acknowledgement required by RSA 506:6, VII(a) (2010), and therefore, as a matter of law, he could not be his mother’s attorney-in-fact when he undertook the acts and incurred the subject legal lees.

Affirming the lower court’s decision, the NH Supreme Court first noted that there are two pertinent requirements for a DPA: 1) it must have affixed to it a properly executed disclosure statement by the principal, and 2) it must have affixed to it a properly executed acknowledgement by the attorney-in-fact. Without the required acknowledgment, the attorney-in-fact has no authority to act under the DPA. Although the parties purportedly agreed that the DPA was “valid,” their divergent views on the meaning of validity suggested otherwise.

Relying on RSA 506:6, VIII(a) (2010), which sets forth the requirements for the validity of a power of attorney, the court explained that in determining validity, “courts must apply the law as specified in RSA 506:6, including the acknowledgement requirement unless another provision of the statute specifically excepts the power of attorney in question from the need to comply with the acknowledgement requirement. Thus, the court reasoned, RSA 506:6, VIII(a)(1) functions as a “grandfather” provision that serves to validate DPAs which, although not complying with the acknowledgment requirement of RSA 506:6, II (a), were valid under prior governing law in effect when they were executed.

Here, the DPA was executed in October 2004, when an acknowledgment was a mandatory prerequisite to the use of the power. Therefore, the court rejected the petitioner’s argument that he the DPA was valid under RSA 506:6, VIII(b) (2010). Because the DPA was not “otherwise valid,” the petitioner’s failure to affix the executed acknowledgment invalidated the DPA.

Kerri Tasker and John Laboe of Laboe Associates, Concord, for the petitioner. Gary J. Kinyon of Bradley & Faulkner, Keene, for the respondents.

Petition of Stephen Stompor
No. 2012-555 Dec. 6, 2013
  • Whether the trial court erred in finding an exception to the attorney-client privilege and granting the parties access to the file of the attorney who drafted estate planning documents for the parties’ parents
  • Whether the trial court erred in ordering the disclosure of certain correspondence between the petitioner and the attorney
In 2001 and 2002, the parties’ parents met with an attorney regarding their estate plans. The attorney drafted estate plan documents for them, but subsequently withdrew from representation due to a conflict, and the estate plan documents were not executed. Subsequently, in 2004, the petitioner wrote the attorney asking the attorney to resume representation. The attorney declined, so the petitioner helped the parents prepare and execute certain estate plan documents. These documents bequeath the parents’ assets to the petitioner and his family, to the exclusion of the parents’ other children. Additionally, the parents gave the petitioner power of attorney to act as their agent.

The respondent filed a petition in the probate division, on the parents’ behalf, challenging the legality of certain acts of the petitioner and alleging that in 2004 the petitioner exercised undue influence over the parents. During the pendency of his petition, the respondent sought disclosure from the attorney of any information he had regarding his contact with the parents in connection with the challenged 2004 estate plan. The court granted the parties’ access to the attorney’s entire client file.

The NH Supreme Court affirmed, reasoning that the communications between the parents and the attorney were not privileged pursuant to New Hampshire Rule of Evidence 502(d)(2), because the privilege was being asserted for the protection of the claimant to the testators’ estate. The court further concluded that the attorney’s file was relevant to an issue between the parties, namely, whether the parents were unduly influenced by the petitioner.

Similarly, the court affirmed the lower court’s ruling that the 2004 correspondence between the petitioner and the Attorney was discoverable. As with the attorney’s file, this correspondence was relevant to the evaluation of the undue influence allegation and the determination of whether the 2004 estate plan documents reflected the parents’ true intent.

Roy McCandless, Concord, for the petitioner. Christopher Seufert, Seufert, Davis & Hunt, Franklin, for the respondent.

Family Law

Nathalie Hurley v. Craig Hurley
No. 2013-263 Dec. 20, 2013
  • Whether the evidence was sufficient to support the trial court’s granting of a domestic violence final order of protection to the plaintiff
A heated text message conversation between divorced individuals ended in the defendant texting, “Whatever. Wish you would die in a fiery crash.” Although the ex-husband defendant had not previously threatened or abused the ex-wife plaintiff prior to this text message, the trial court found that the defendant committed criminal threatening and issued a domestic violence final order of protection to the plaintiff.

In reversing the lower court, the court first noted that relief for domestic violence under RSA 173-B:5, I, is predicated on a showing of “abuse” by a preponderance of the evidence. Next, the court explained that “abuse,” in the context of criminal threatening, requires a credible present threat that is “more than a generalized fear for personal safety.”

Viewing the evidence in the light most favorable to the plaintiff, the Supreme Court held that the text message did not constitute criminal threatening. Moreover, the court concluded that the plaintiff failed to demonstrate, by a preponderance of the evidence, that the defendant threatened to commit a crime or sent the text message with a purpose to terrorize her. Because the plaintiff’s testimony focused only on the one message, the court held that the evidence was insufficient to establish “abuse,” and therefore, the trial court erred in entering a domestic violence order of protection against the defendant.

Allen J. Lucas, Dame & Lucas, Gilford, for the defendant. Nathalie Hurley, for the plaintiff.

State Retirement Benefits

Petition of Michael Carrier
No. 2012-334 Dec. 6, 2013
  • Whether the NH Retirement System’s (NHRS) board of trustees (board) properly ruled that the petitioner, the fire chief of Hampstead, was required to be a member of the NHRS
The petitioner initially worked in Londonderry as a full-time firefighter and later as the town’s fire chief. The petitioner was enrolled in the NHRS when he worked in Londonderry. Subsequently, he retired from this position and began receiving retirement benefits. Later, the petitioner became a full-time fire chief for Hampstead, but he did not re-enroll in the NHRS. Consequently, he received both his NHRS retirement benefits and his Hampstead fire chief salary. Ultimately, however, the NHRS notified petitioner that his Hampstead employment was subject to NHRS mandatory enrollment.

Following his appeal to the NHRS board, the board determined that he was overpaid in retirement benefits and medical subsidy benefits, ordered him restored to service, and required that the overpaid amounts be recouped from petitioner’s future benefits payments.

The Supreme Court upheld the board’s finding that the petitioner met the statutory definition of a permanent firefighter and rejected the petitioner’s contentions that he was not a permanent firefighter because his fire certification lapsed and because his duties entailed “only indirect, occasional, or short term exposure to the hazards of firefighting.”

The court also rejected the petitioner’s assertion that he was appointed for a fixed term and therefore not required to be a member of NHRS, which makes membership optional for “officials appointed for fixed terms.” The court explained that the legislative history of the NHRS statutes, as well as the board’s longstanding statutory interpretation, establishes that “officials appointed for fixed terms” does not apply to group II members, such as Carrier.

Finally, the court concluded that the record demonstrated that the board considered and rejected the petitioner’s request to waive recoupment. Because petitioner failed to provide a transcript of the board proceedings, the court declined to further address petitioner’s argument that his waiver request should have been granted “in the interest of justice and fairness.”

Robert F. Berry Jr., Molan, Milner & Krupski, Concord, for the petitioner. Andrew R. Schulman, Getman, Schulthess & Steere, Manchester, for the respondent.

Talesha L. Caynon

Talesha L. Caynon is an associate at Bernstein, Shur, Sawyer & Nelson. She is a member of the firm’s litigation and labor and employment practice groups and an active member of the NH Women’s Bar Association.

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