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Bar News - April 16, 2014

Supreme Court At-a-Glance


Tort Law
Kenneth Lahm v. Michael Farrington et al.
No. 2012-902
March 14, 2014
  • Whether police officers owe criminal suspects a duty to investigate claims, beyond establishing probable cause, before seeking to effectuate an arrest
Appellant sued the arresting police officer and town in negligence, after criminal charges against appellant were dropped. Even though there was a post-arrest hearing where a judge found probable cause that appellant had committed the assault, appellant’s private investigators were able to assemble sufficient “exculpatory evidence” to have the charges dropped.

The police officer and town moved for summary judgment on appellant’s claims, arguing that they had no duty to investigate, beyond establishing probable cause, before arresting and bringing criminal charges against appellant.

The Superior Court agreed, and the Supreme Court affirmed, reasoning that “police officers’ interest in conducting criminal investigations without fear of liability for negligence, which exists even in non-expedited cases, weighs heavily against” imposing the duty that was being urged by appellant.

Michael J. Sheehan, of Concord, for the appellant. Charles P. Bauer, Gallagher, Callahan & Gartrell, Concord, for the appellees. Joseph A. Foster of the Attorney General’s Office, Concord; Terence M. O’Rourke, Carroll County Attorney’s Office; Michael S. Lewis, Rath, Young & Pignatelli, Concord; William Hart, Derry; Brian J.S. Cullen & Shelagh C.N. Michaud, Cullen Collimore, Nashua; and Andrew B. Livernois, Ransmeier & Spellman.; for various amicus curiae.

Criminal Law
State of New Hampshire v. Tariq Zubhuza
No. 2012-078
March 7, 2014
  • Whether evidence at trial supported conviction of criminal restraint; and
  • Whether trial court erred in refusing to dismiss burglary indictment on basis of insufficient evidence
Appellant was convicted after a jury trial in the Hillsborough County Superior Court of, among other charges, criminal restraint and burglary.

Appellant and an accomplice went to an apartment where an acquaintance was staying, asked for him, and claimed that he owed them money. Appellant then pushed his way into the apartment, past an occupant. When another occupant asked the appellant what he was doing in the apartment, he held a gun to the visitor’s head and told him “if you move or say anything... I’ll blow your head away.”

Although appellant did eventually lower the gun and go outside to talk to the occupants of the apartment, he nonetheless made it clear that no one was leaving. Eventually, appellant’s accomplice left her phone number so that she could be contacted when the person they were looking for returned, and she and appellant left the apartment. When the police located appellant and searched his residence, they found a loaded handgun. Appellant was arrested, charged, tried and convicted on counts of burglary, criminal restraint and criminal threatening.

On appeal, appellant challenged the sufficiency of the evidence to support the criminal restraint conviction, arguing that he never pointed his handgun at the occupant who was the complainant on the criminal restraint charge. Appellant also challenged the sufficiency of evidence to support the burglary indictment, arguing that there was insufficient evidence of his criminal intent to support that indictment.

The Supreme Court affirmed each of the trial court’s decisions. First, the Supreme Court reasoned that appellant’s use of the gun, including putting it to another person’s head and threatening him in complainant’s presence, exposed complainant to “the risk of serious bodily injury,” a required element in a criminal restraint charge. The Court distinguished the case of State v. Burke, 162 N.H. 459 (2011), where the simple possession of a knife by a defendant did not support the “risk of serious bodily injury” element of a criminal restraint charge. Appellant did more than simply possess a gun during his restraint of the complainant, and so Burke was inapplicable and the criminal restraint conviction was affirmed.

Second, the Court ruled that there was more than enough circumstantial evidence for a rational jury to conclude that appellant entered the apartment with the intent to commit assault – ergo, sufficient evidence to support the intent element of a burglary indictment. Accordingly, all of the convictions were affirmed.

Elizabeth Woodcock, Attorney General’s Office, Concord, for the state. David M. Rothstein, Appellate Defender’s Office, for appellant.

State of New Hampshire v. Dennis Sulloway
No. 2012-268
March 20, 2014
  • Whether the trial court erred in admitting certain testimony of victim’s examining physician
  • Whether the trial court erred in admitting the testimony of victim’s stepfather
Appellant was convicted of pattern aggravated felonious sexual assault in the Merrimack County Superior Court. On appeal, he challenged the Superior Court’s admission of the testimony of the victim’s examining physician and stepfather.

Appellant argued that the physician’s testimony about his physical examination of the victim, and the victim’s demeanor, was irrelevant, unhelpful to the jury and prejudicial. The Supreme Court examined the testimony under the “clearly untenable or unreasonable” standard that applies to such issues, and found that the testimony at issue was relevant, that the admission of certain portions would have constituted “harmless” error at best, and that appellant had not preserved his objection to the admission of further portions of the testimony.

The appellant further challenged the admission of statements by the victim’s stepfather about the victim’s demeanor when he related facts about the abuse to the stepfather. Because the stepfather did not repeat the victim’s statements about the actual abuse, but rather testified about his personal observations of the victim’s demeanor, the Court ruled that admission of the testimony was not barred by the hearsay rule. Because a victim’s emotional state when he makes a complaint bears on his credibility, the Court likewise rejected the appellant’s relevancy argument.

Nicholas Court, Attorney General’s Office, Concord for appellee. Thomas Barnard, Appellate Defender’s Office, Concord, for appellant.

Constitutional Law
Lucien Vincent v. Davina Maclean
No. 2012-372
March 7, 2014
  • Whether there was sufficient evidence to support defense verdict in appellant’s small claims matter against an ex-girlfriend
  • Whether Court’s refusal to grant a motion allowing appellant, who was incarcerated, to personally appear to prosecute his small claims case, denied appellant his Due Process rights under the Fourteenth Amendment to the United States Constitution
Appellant was incarcerated in the New Hampshire State Prison when he filed a small claims action against an ex-girlfriend for what amounted to conversion claims.

Appellant moved, prior to the hearing, for a transport order so that he could personally appear at the hearing. His motion was denied and the hearing went forward with appellant attending via video-conference. Appellant appealed the judgment granted by the Court in favor of his ex-girlfriend, arguing that the “overwhelming” evidence required a plaintiff’s verdict, and also that he was deprived of his Due Process rights in not being allowed to participate in the hearing in person.

The Supreme Court affirmed the Circuit Court, District Division on both points. First, the Court reasoned that appellant’s testimony was the only evidence that supported his conversion claims. As his testimony was controverted by his ex-girlfriend’s testimony, there was sufficient evidence for the Court to grant a defendant’s verdict.

The Court also affirmed the lower court’s decision to require appellant to attend the small claims hearing by videoconference. Although prisoners do have a due process right to access the civil justice system, the Court reasoned that right is not absolute and does not invariably afford inmates the right to be physically present in court to prosecute lawsuits they file.

Because videoconferencing allowed appellant to prosecute his case, and appellant failed to demonstrate prejudice, the Court affirmed the trial court. The Court discussed the simplicity of appellant’s small claims matter, the fact that counsel was not involved (and so did not have to choose between being present in the courtroom or being in the same room as his client), and the lack of any witnesses other than appellant himself, in ruling that appellant’s due process rights were not violated.

Lucien Vincent, pro se. Davina MacLean, pro se. Kelly E. Dowd, Bragdon, Down & Kossayda., Keene, for amicus curiae New Hampshire Civil Liberties Union; Francis K. Fredericks, Attorney General’s Office, Concord, for amicus curiae State of New Hampshire.

Election Law
William L. O’Brien v. New Hampshire Democratic Party et al., No. 2013-043 March 7, 2014 Affirmed
  • Whether politician who was the subject of an automated telephone message had standing to bring a private lawsuit pursuant to the “Robo-call” statute, RSA 664:14-a
Appellant is a Republican who was running for reelection to the New Hampshire House of Representatives in 2010. Because the Democratic Party did not field enough candidates to fill all seats in his district, appellant sought Democratic write-in votes, so that he would appear on the ballot both as a Republican and a Democrat.

The New Hampshire Democratic Party put together a prerecorded message which was played on phone calls to 394 households – the gist of the prerecorded message was to inform the recipients that appellant had “join[ed] the Democratic Party ticket and [their] progressive agenda.” The message did not include the statutorily-required disclosures concerning the identity of the organization on whose behalf the call was made, and the identity of the person or organization paying for the call. Despite the unlawful pre-recorded message, appellant was handily reelected in November.

Appellant filed an action in September 2011, alleging a violation of New Hampshire’s “Robo-call” statute, RSA 664:14-a, II. The Democratic Party moved for summary judgment on the basis that appellant lacked standing to bring an action under the statute. The trial court granted that motion, and appellant appealed.

On appeal, the Supreme Court held that the plain language of the statute required a party to allege a (1) violation of the “robo-call” statute, (2) an injury, and (3) that the violation caused the party’s injury, to have standing to pursue a private right of action pursuant to the statute. Appellant did not assert any injury sufficient to confer standing upon him. Although he argued that the statute’s $1,000-per-violation penalty provided him damages, the Court reasoned that damages and injuries are distinct concepts, and that an “injury” was required to confer standing on appellant, rather than just “damages.”

The Court also discounted appellant’s other claimed injury – the slight confusion of one of his supporters who received the call. If anything, the Court reasoned, it was the supporter, and not appellant, who was damaged as a result of the confusion.

The Court did not reach the issue of whether a politician who was the target of the robo-call could ever have standing to assert a private right of action. Because the statute is ambiguous on that point, the Court urged the General Court to address the issue via legislation.

Edward C. Mosca, Mosca Law Office, Manchester for the appellant. Joshua L. Gordon, Law Office of Joshua L. Gordon, Concord for the appellee.

Professional Responsibility
State of New Hampshire v. Michael Addison
No. 2013-043
March 7, 2014
Motion to Disqualify Attorney General’s Office Denied
  • Whether the hire, by the State Attorney General’s Office, of an attorney who had previously worked on appellant’s appeal imputed a conflict of interest to the entire office sufficient to merit disqualification in light of screening procedures employed.
Appellant, Michael Addison, sought to disqualify the Attorney General’s office from further participation in his case. Appellant was convicted of capital murder and sentenced to death. An attorney who worked on the “aggravating factors” section of appellant’s brief following this conviction subsequently moved to the Attorney General’s office. Appellant moved to disqualify the attorney general’s office on the basis of the imputed conflict of interest created by the hiring of this attorney.

In denying the motion, the Court rejected appellant’s contention that a per se disqualification rule should be adopted, following the majority of courts that have examined the issue. Having rejected the per se approach, the Court analyzed whether the State had provided a sufficient record to overcome the presumption created when a former attorney subsequently affiliates with the prosecutor’s office. In those circumstances, the presumption arises that confidences will be shared or that an appearance of impropriety has been shown. A showing of proper screening will overcome this presumption, and it was this safe harbor that the Court ruled the State was entitled to claim.

The Court noted that the attorney at issue had been carefully and diligently screened from the Addison appeal. The attorney was locked out of electronic files (and an audit confirmed that none of the files had been accessed by the attorney). The attorney was instructed not to have any involvement in the Addison case, and the affidavits of all involved parties demonstrated that the screening procedures had been followed appropriately.

The attorney herself submitted an affidavit establishing that she had observed the screening rules, and that nobody at the attorney general’s office had attempted to contact her about the case except to respond to the motion at bar. As the State demonstrated that it implemented screening procedures that had prevented the disclosure of any confidential information concerning appellant, his motion was denied.

Richard W. Head, Attorney General’s Office, Concord for appellee. Andrew R. Schulman, Getman, Schulthess & Steere, Manchester, and David M. Rothstein and Christopher M. Johnson, Appellate Defender’s Office, Concord, for the appellant.

Pierre Chabot

Pierre A. Chabot of Hillsborough, an attorney at Wadleigh, Starr & Peters, focuses his practice on complex litigation, labor relations, and employment matters. He is admitted to practice before the state and federal courts in New Hampshire, the First Circuit Court of Appeals, and the United States Supreme Court.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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