Bar News - March 19, 2014
Supreme Court At-a-Glance: February 2014
By: Summarized by Stacie Ayn Murphy Corcoran
In Re: Trevor G
Feb. 7, 2014
The juvenile challenged the Court’s denial of his motion to dismiss the delinquency petition against him in an interlocutory appeal. The juvenile was arraigned July 31, 2012. Less than a month later, at the adjudicatory hearing, the juvenile moved to dismiss on grounds that the state’s witnesses were not present. The state did not object, but requested leave to file a motion for reconsideration in the event there was a good reason the witnesses were not present.
- Whether the refiling by the state of a delinquency petition, previously dismissed for lack of prosecution at the request of the juvenile, violates the time limit in RSA 169-B:14, II
The state discovered the subpoenas had not been served and, on Oct. 1, 2012, the state refiled the petition, which the juvenile moved to dismiss Oct. 8, arguing the adjudicatory hearing would not be held within 30 days of the arraignment, as prescribed in RSA 169-B14,II. The court denied the juvenile’s motion, because the juvenile initiated the dismissal.
The interlocutory appeal was reviewed de novo because it involved statutory interpretation of RSA 169-B. The court recognized the impact that delays in court proceedings may have on a juvenile and interpreted the statutory time limits as “a legislative pronouncement of a child’s right to the expeditious resolution of his alleged delinquency… [reflecting] the legislative concern for procedural due process.” In re Eric C., 124 N.H. at 224 (quotation omitted).
The juvenile argues that the trial court erred in concluding the state could refile the petition because although he moved to dismiss, he did not cause or invite the delay. The state argued and the trial court agreed that the “dismissal and refiling of the petition… were not of a character that threatens the policy behind the time limits in RSA 169-B:14,II.” Here, the Court disagrees with the state. The Court reviews In re Kirsten P. There, it was not improper to allow the state to refile the petition and to restart the clock because the juvenile had filed the motion that prevented the hearing from occurring. The court reversed the trial court’s order denying the juvenile’s motion to dismiss.
Christopher M. Johnson, chief appellate defender, for the juvenile. Joseph A. Foster, attorney general, (Nicholas Cort, assistant attorney general), for the state.
State v. Adam Mueller
Feb. 11, 2014
Reverse and Remand
The defendant founded Copblock.org, a police accountability website. He recorded himself making phone calls that he posted on the website, along with recordings of the calls. These recordings were made without advising the individuals or asking permission to record the conversations. After the defendant commented on a radio program regarding these recorded conversations, the police investigated, and charges were brought against the defendant for felony wiretapping.
- Whether the Superior Court committed plain error by instructing the jury that the felony wiretapping statute requires a mental state of “purposely” rather than the applicable mental state of “wilfully”
The defendant appealed, arguing the Superior Court had committed plain error by instructing the jury that the required mental state of the statute is “purposely” rather than “wilfully.” The state agrees the trial court’s instruction regarding the requisite mental state were erroneous. However, they argued the defendant’s conviction should not be reversed because the prerequisites for the plain error doctrine haven’t been met.
The plain error doctrine allows the court to exercise their discretion to “correct errors not raised before the trial court.” State v. Moussa, 164 N.H. 108, 118 (2012). The Court found that the error was plain because the erroneous mental state required a showing that the defendant had a “conscious object” to record the conversations without consent, rather than proving the defendant was either aware of or recklessly ignorant that recording the conversations without consent was against the law.
Next, the Court examined whether the trial court’s error affected the defendant’s substantive rights. The defendant argued the improper jury instruction was prejudicial because it lessened the state’s burden of proof regarding mental state. The state contended the evidence would have permitted the jury to infer the defendant knew the recordings were unlawful, and that the erroneous instruction didn’t affect the trial’s outcome. The Court ruled that it couldn’t “state with confidence the jury would have found the defendant guilty if it had been properly instructed to decide whether the defendant ‘wilfully’ recorded the conversations without consent,” finding that the erroneous instruction likely affected the outcome.
The Court also examined whether the trial court’s error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Moussa, 164 N.H. at 118. The Court found the mental state was far from overwhelming, and that there was a potential for the jury to return a different verdict if properly instructed. The Court reversed the convictions and remanded for a new trial.
Brandon D. Ross, Law Office of Brandon D. Ross, Manchester, NH, for the defendant. Joseph A. Foster, attorney general (Lisa L. Wolford, attorney), for the state.
State v. Chad Belleville
Feb. 11, 2014
The defendant was involved in a motor vehicle crash and convicted of injuring the child of another motorist. The defendant’s SUV was observed drifting into the median and hitting the driver side of the Subaru in which the injured child was traveling. The SUV proceeded to hit the car behind the Subaru, which in turn skidded into the side of the Subaru.
- Whether sufficient evidence was presented to prove the reckless element for second-degree assault in a motor vehicle crash
When the cars came to a stop, the Subaru’s passenger, Flanders, noticed her son wasn’t in the car. He was found outside the vehicle. He sustained a traumatic brain injury, loss of his “left eye socket” and dislocation and fracture of his jawbone.
At the accident scene, the defendant was asked if he had made any calls and was asked to show his phone. The defendant was asked about the call history and said he had “erased the history or something.”
Eight months after the crash, the defendant admitted to checking a text message at the time of the accident, saying that he “looked down and the next thing you knew I crashed.” The police investigation showed the defendant struck the two vehicles by crossing the line, and there was no evidence the defendant braked or “had taken any evasive action to avoid the vehicles prior to the collision.” The Defendant was charged with second-degree assault and vehicular assault.
At trial, records were introduced that showed the defendant was checking a text message, consistent with his admission. The defendant moved to dismiss the charges on “the ground that the evidence was insufficient to prove that his conduct was either criminally negligent or reckless.” The motion was denied. The defendant was found guilty and later appealed.
The Court limited its analysis to the sufficiency of the evidence to prove recklessness for second-degree assault. The Court also analyzed criminal negligence in order to highlight the difference between the two, because under the criminal code both conducts “constitute a gross deviation from the conduct of a reasonable person.”
The Court found the defendant checking a text while driving was reckless. The Court made several conclusions about what a rational trier of fact would have concluded, namely 1) “that the risk that another driver would suffer serious injury in this situation was substantial and unjustifiable.” 2) that “a law abiding citizen would not have voluntarily remained inattentive for such an appreciable length of time over such a distance,” 3) that “the defendant was aware of the risk that looking down to check a text message while driving could cause an accident, and that he chose to disregard that risk,” and 4) although not dispositive, that the defendant erasing his call history was demonstrative as to his awareness.
The Court rejected the defendant’s argument, ruling that his conduct was not a case of momentary distraction. The Court affirmed the conviction for second-degree assault.
David M. Rothstein, deputy chief appellate defender, for the defendant. Michael A. Delaney, attorney general (Diana E. Fenton, assistant attorney general) for the state.
State v. Adam Wells
Feb. 13, 2014
The defendant was indicted on four counts of aggravated felonious sexual assault. One count was dismissed. The defendant appealed his conviction on three counts, arguing that the trial court erred by 1) failing to grant a mistrial after uncharged acts were testified to; and 2) admitting testimony regarding out-of-court disclosures made by child.
- Whether the trial court erred by 1) failing to grant a mistrial after uncharged acts were testified to; and by 2) admitting testimony regarding out-of-court disclosures made by a child
Some of the testimony at trial was eventually ruled inadmissible by the court. The Defendant argued the testimony was “so prejudicial that the [limiting instructions given by the court] could not cure the taint.”
The Court agreed with the state that the testimony was an essential part of the sequence of events and that the trial court correctly ruled that a mistrial was not necessary.
The Court ruled that a mistrial was not warranted in this case, because “the stricken testimony was evidence of a single criminal episode…. [therefore] there was no improperly rung bell that needed to be unrung.”
The Court found that the stricken testimony could have been considered in determining the issue of guilt and should not have been excluded under Rule 404(b). To be admissible, intrinsic evidence that is “inextricably intertwined with the charged act” must satisfy the balancing test in Rule 403 where the court considers the probative value of the evidence and whether the probative value is outweighed by the danger of unfair prejudice. The Court found this was the case here. The jury would have been unlikely to use the testimony regarding the uncharged act as propensity evidence, because the testimony described a sequence of events rather than a discrete incident, nor would the evidence have more of an emotional impact than testimony of the charged act. Therefore, the Court held the trial court committed no reversible error by denying the motion for a retrial.
Next, the Court turned to the out-of-court statements made by the child to her counselors. The defendant had asserted that the child had fabricated the allegations, and the state introduced statements made to her guidance counselor to provide context for the child’s disclosure.
The trial court allowed the testimony, but gave limiting instructions. The defendant objected to the testimony, on hearsay grounds, and its admission into evidence, arguing that it was admitted for the truth of the child’s statements.
The Court ruled that any error was harmless and did not analyze whether hearsay or fresh complaint doctrine would apply. The Court determined the error was harmless because the testimony was inconsequential, was focused on the fact and context of their conversations, and alternative evidence of guilt was overwhelming.
Brianna M. Sinon, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general) for the state.
State v. Osahenrumwen Ojo
Feb. 21, 2014
The defendant stood trial in February 2012 for theft by deception. The jury was given instructions by the court after a bench conference. The jury deadlocked, and the court declared a mistrial over the defendant’s objections.
- Whether the conviction for theft by deception, following a previous jury trial that ended in a mistrial, constituted double jeopardy
On April 20, 2012, the state obtained two substitute indictments, each alleging theft by deception for a single invalid check, and nolle prossed the original indictment. On June 4, 2012, the court denied the defendant’s motion to dismiss, but did dismiss one of the indictments, after being informed of the state’s evidence. The defendant was convicted for theft by deception on the other indictment and appeals on the grounds of double jeopardy.
Based on the defendant’s arguments, the Court only considered double jeopardy under the New Hampshire Constitution.
The Court stated that it must be determined whether “the trial court terminated jeopardy in a way that prevents reprosecution.” A hung jury represents “manifest necessity” to allow the public a full and fair opportunity to try the defendant.
The defendant asked the court to hold that manifest necessity doesn’t exist where “the deadlock is based on legally insufficient evidence.” He presented several arguments to the court proposing double jeopardy rules that the Court refused to adopt.
The Court held that “absent a determination of insufficiency, a declaration of a mistrial based upon a genuinely deadlocked jury which we have held constitutes manifest necessity,’ Kornbrekke, 156 N.H. at 830, ‘is not an event that terminates the original jeopardy.” Richardson, 468 U.S. at 326. Here, the Court did not determine that the evidence was insufficient, jeopardy did not terminate and retrial was not barred by double jeopardy.
Thomas Barnard, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general) for the state.
In the Matter of the Rehabilitation of the Home Insurance Company
Feb. 13, 2014
Century Indemnity Company (CIC) appealed an order granting the respondent, the Liquidator of the Home Insurance Company (Home), an award of statutory prejudgment interest on monies owed to Home by CIC.
- Whether the trial court erred in awarding prejudgment interests on monies owed
There were three documents that governed aspects of CIC and Home’s relationship: 1) Claims Procedures Order; 2) Claims Protocol; and 3) Joint Report. The Court highlighted the different purposes and provisions of these documents and mentioned that there have been other decisions regarding this liquidation. The facts at issue in this appeal arise from the fact in Home IV, 158 NH 677 (2009). The issue before the Court on appeal is “whether Home’s estate was entitled to prejudgment interest [under RSA 524:1-a (2007)] on the payments CIC wrongfully withheld based upon set off [of 8 Million],” Id. at 684, and if so, what is the correct accrual date.
The Court disagreed with CIC’s arguments related to the entitlement of prejudgment interest. The Court stated the appeal required the interpretation of both statutes and contracts between the parties. From a statutory perspective, CIC argued that RSA 524:1-A doesn’t apply. The Court found that based on legislative history, RSA 524:1-a and RSA 524:1-b provide the same protection and that statutes “dealing with the same subject-matter are to be considered in interpreting any one of them.” Nault v. N & L Dev. Co, 146 NH 35, 38-39 (2001).
The legislature intended that where the trial court “awarded money to the party entitled to be compensated, interest at the legal rate is to be added to the award.” N.H.S. Jour. 478-79 (1963) (statement of Sen. Samuel Green). The difference between sections 1-a and 1-b is that they apply to different kinds of judgment, but there is no meaningful the different types of actions, and therefore no difference in terms of the interest statute. In this case RSA 524:1-a applied.
From a contract perspective, CIC argues the agreement was “comprehensive” and didn’t provide for interest on disputed set-offs. The Court disagreed with CIC that the trial court “rewrote the parties agreements by imposing prejudgment interest under RSA 525:1-a.” The Court reviewed the case law presented by CIC. The court found that silence is a “circumstance where the default rule established by RSA 524:1-a applies most clearly.” John A. Cookson Co. v. N.H. Ball Bearings, 147 NH 352, 361-62 (2001).
Unless an agreement provides that no interest applies, RSA 524:1-a applies. Here, none of the documents provided for a different interest rate other than the statutory rate, and certain documents show clear intent that New Hampshire statutory law be applied where the agreements are silent. The Court found that CIC’s arguments that the agreements were “comprehensive” failed, because of the plain language used in the agreements.
The Court then turned to the accrual date of the interest. The trial court awarded interest from the date of the Liquidator’s Oct. 12, 2007 letter, which CIC claims didn’t constitute a demand under RSA 524:1-a, because it did not request interest. The Court disagreed.
CIC also claims they are not obligated to pay per the Claims Protocol until the resolution of the proceedings per the Claim Protocol agreement. The Court agreed with Home that CIC did not read the Claims Protocol in context as part of the whole document, which made clear that the proviso didn’t apply, because it “pertains to an inward insurance claim filed by an AFIA Cedent, not a claim by CIC itself.” Therefore, Court affirms the trial court’s judgment related to the prejudgment interest accrual date.
Lisa Snow Wade of Orr & Reno in Concord, NH, on the brief and orally for the appellant. Harry P.Cohen and Ellen M. Farrell, Crowell & Moring, New York, NY, and Washington, DC, on the brief for the appellant. Michael A. Delaney, attorney general (J. Christopher Marshall, attorney on the brief) and Rackmann, Sawyer & Brewster, Boston, Mass. (J. David Leslie and Eric A. Smith on the brief and Mr. Leslie orally) for the respondent.
In re Estate of Lucien Couture
February 21, 2014
Affirmed and Remanded
The decedent married his wife after the birth of a female child, making both she and the child beneficiaries under his insurance policy. His son petitioned the court for a constructive trust for the proceeds on the claim that the marriage was induced through “fraud, deceit and misrepresentation.”
- Whether the trial court erred in granting a constructive trust for the benefit of the decedent’s heirs over certain life insurance proceeds
The decedent was listed as the child’s father, but the decedent had had a vasectomy and did not reside with the wife. The wife, unbeknownst to the defendant, maintained a concurrent relationship with John Tamara, which the court found was “more likely than not a marriage.” The wife, moved to Hawaii with Tamara and, upon returning to New Hampshire, the decedent instituted divorce proceedings.
The decedent died intestate before the divorce was finalized, and the insurance proceeds were disbursed to the beneficiaries. An action was brought for a constructive trust. The trial court imposed a constructive trust on the insurance proceeds because they were “spousal based,” and the wife would be unjustly enriched because she wrongfully induced the decedent to marry her.
The Court reviewed the probate decision by statute. The respondent put forth multiple arguments as to why the petitioner did not have standing. The Court determined the petitioner did have standing 1) because he was one of the decedent’s heirs and “has a direct legal or equitable interest in the decedent’s estate.” RSA 561:1 (2007); In re Estate of Kelly, 130 NH 773, 778 (1988); 2) because of the imposition of a constructive trust, the respondent merely holds the life insurance proceeds as a constructive trustee for the benefit of [the decedent’s] heirs; and 3) because while the petitioner is not named on the beneficiary form, it’s immaterial to him pursuing a constructive trust on the respondent’s shares of the proceeds.
The respondent argued the court has no jurisdiction over an ERISA claim. The Court disagreed, holding that this was “not a civil action under [ERISA], but even if it were, “the petitioner is not a person to whom section 1021(f)(1) refers.” The respondent argued the petitioner’s claim was expressly preempted.
The Court identified three categories of state laws that “relate to ERISA plans such that their preemption furthers the purpose of ERISA.” Hampers v. W.R. Grace & Co., 202 F.3d 44, 51 (2000). The respondent argues and the Court disagrees that the petitioner’s action is also an action to redress an ERISA violation. It is instead a state law action to “impose a constructive trust on benefits that have already been paid according to the life insurance policy;” none of the parties have an issue with the plan.
The respondent also asserted that the petitioner’s state law claim is preempted by the anti-alienation provision. The court found there was nothing in the provision’s language showing the intent to preclude an action by the estate to recover benefits already paid to a plan beneficiary. The US Supreme Court held that regardless of a state law waiver divesting the beneficiary of their rights, the plan administrator must distribute the proceeds to the named beneficiary. Kennedy, 555 US 289, 304. The estate cannot sue the plan administrator because ERISA is concerned with “straightforward administration of the plans and avoidance of potential liability [of multiple pay outs].” The imposition of a constructive trust under a state law action challenges the right of the beneficiary to keep the proceeds of an ERISA plan, in line with federal court cases cited by the Court. The Court treats disbursed funds differently than non-disbursed funds.
The Court found that the trial court had correctly applied the law of constructive trust to this case, because the petitioner met the requirements that a constructive trust was warranted. The respondent asked the Court to apply Patey v. Peaslee, 101 NH 26 (1957), which the Court refused to apply generally, because of the allegations of that complaint.
Here, the trial court focused correctly on “whether the circumstances rendered it unconscionable ‘for the respondent to and enjoy [her] beneficial interest.’” Next, the Court found that, as a matter of law, there was sufficient evidence (the wife’s relationship with Tamara as testified to by a pastor, and the inducement of marriage with the decedent) to support the imposition of a constructive trust. The Court held that the respondent would be unjustly enriched if she was allowed to profit from her misconduct, so it was necessary to impose a constructive trust.
R. Peter Taylor, McNeill, Taylor & Gallo, Dover, NH, for the petitioner. David C. Wing, Wing & Weintraub, Milford, NH, for the respondent.
Stacie Ayn Murphy
Corcoran is a 2011 graduate of Suffolk University
Law School and is licensed to practice in
Massachusetts and New Hampshire.