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Bar News - May 21, 2014

Supreme Court At-a-Glance


APRIL 2014
Constitutional Law
Dennis G. Huckins v. Mark McSweeney
No. 2013-184
April 11, 2014
  • Whether RSA 507-B:2 and RSA 507-B:5 are constitutional under Part I, Article 14, of the NH Constitution, to the extent they prevent recovery for plaintiff’s claim for civil battery and damages against the Town of Sanbornton under a theory of respondeat superior
The question in this case was certified for review by the US District Court for the District of New Hampshire. The NH Supreme Court held that both RSA 507-B:2 and RSA 507-B:5 are constitutional under Part I, Article 14, of the NH Constitution, to the extent they prevent recovery for plaintiff’s claim for civil battery and damages against the Town of Sanbornton under a theory of respondeat superior.

Plaintiff Dennis Huckins sued Sanbornton police officer Mark Mcsweeney and the town over McSweeney’s use of his stun gun “multiple times” against plaintiff. Huckins sought damages, alleging a battery claim against McSweeney and town liability for the battery under the doctrine of respondeat superior. The trial court denied the defendants’ motion for summary judgment on both claims. With respect to the Town’s motion, the court denied it without prejudice pending certification on the question of whether RSA 507-B:2 (2010) and RSA 507-B:5 (2010) violated Part I, Article 14 of the state constitution.

Engaging in a statutory construction, the NH Supreme Court found that the town is a “governmental unit” within the meaning of Chapter 507-B and, as such, it could be found liable in a bodily injury action “caused by its fault or the fault attributable to it, arising out of the ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”

Noting the scope of the plaintiff’s constitutional challenge, the Court first looked at it as an “as-applied challenge,” whereby a statute may be constitutional in many of its applications, but not under the particular circumstances of the case. If the statutes were constitutional as applied to the plaintiff, then both of the plaintiff’s challenges must have failed.

In examining Part I, Article 14, the Court stated its purpose is to make civil remedies available while guarding against “arbitrary and discriminatory infringements upon access to courts.” It noted, however, that Part I, Article 14 did not guarantee all injured persons would receive full compensation for their injuries. Citing Ocasio v. Fed. Express Corp., the Court rejected Plaintiff’s argument that any remedy maintained against officer McSweeney was “constitutionally inadequate” and a “hollow recovery.” It found that RSA 507-B:2 and 507-B:5 did not infringe on plaintiff’s rights to bring a direct claim against officer McSweeney. As a result, plaintiff was not deprived of his right to a remedy under the state constitution.

The Court also rejected plaintiff’s argument that RSA 507-B:2 and 507-B:5 violated his constitutional right to equal protection because they resulted in different treatment of plaintiffs injured by municipal employees and those injured by state employees. The Court concluded no such difference existed based on its prior jurisprudence. It reasoned it is constitutional to circumscribe the liability of the state “because unbridled liability exposure… would discourage diligent service on the part of [government] personnel and… would impair government functioning.”

In addition, because the statutes provide immunity to municipalities under the same terms and conditions as RSA 541-B:19 (providing sovereign immunity to the state for any intentional tort committed by a state employee), there is nothing that resulted in the different treatment of plaintiffs injured by municipal employee intentional torts as compared to plaintiffs injured by state employee intentional torts.

As a result, the Court held the statutes are constitutional, including as applied to plaintiff.

Douglas, Leonard & Garvey, of Concord (Charles Douglas III on the brief and orally), for the plaintiff. Gallagher, Callahan & Gartrell, of Concord (Charles Bauer and Samantha Elliott on the brief, and Bauer orally), for the defendants.

Criminal Law
State of New Hampshire v. Arthur Mottola
No. 2012-179
April 4, 2014
  • Whether the 30-day appeal period in criminal appeals set forth in New Hampshire Supreme Court rule 7(1)(C) begins to run on the date of sentencing or the date on which the mittimus is issued
Defendant Arthur Mottola was convicted of one count of possession of heroin. He was sentenced July 30, 2012, but a mittimus was not issued until Sept. 14, 2012.

After receipt of the mittimus, defendant filed his notice of appeal Oct. 11, 2012. The NH Supreme Court originally dismissed defendant’s appeal as untimely, pursuant to Rule 7(1)(C), which stated for criminal appeals that “the time for filing a notice of appeal shall be within 30 days from the date of sentencing.”

Defendant’s trial counsel responded by filing a motion to accept a late filing of the appeal on the basis that the trial court did not issue the mittimus until Sept. 14, 2012. Defendant’s counsel also reasoned the appeal filed on Oct. 11, 2012 was timely since it was filed within 30 days of receiving the mittimus.

The Court stated Rule 7(1)(C) was clear on its face in that, when no timely post-trial motion is filed, “a notice of appeal in a criminal appeal must be filed ‘within 30 days from the date of sentencing.’” The Court ruled the date of sentencing is the date on which the court pronounced the sentence, which means a criminal appeal must be filed within 30 days of sentencing.

The Court then rejected two alternative arguments set forth by the defendant. First, the Court rejected the notion that other court rules dictate that a mittimus must be attached to the notice of appeal in a criminal appeal in which no timely post-trial motion had been filed. The Court stated the issuance of the mittimus is irrelevant for this purpose, because the defendant was notified of the trial court’s sentencing decision when it was pronounced.

The Court also rejected an argument for a waiver of the Rule 7(1)(C) requirements on the basis of “good cause,” because it was not the proper standard. Rule 21(6), which governs the late entry of appeals, states that late entry is granted only for “exceptional circumstances.” Since there was neither an argument nor demonstration of “exceptional circumstances” by the defendant, the Court dismissed his appeal as untimely.

Christopher Johnson, chief appellate defender, Concord, for the defendant. Joseph Foster, attorney general (Susan McGinnis, senior assistant attorney general), for the state.

State of New Hampshire v. David Pyles
No. 2012-045
April 4, 2014
  • Whether the trial court erred in denying defendant’s motion to suppress statements allegedly obtained in violation of his Miranda rights
Defendant David Pyles appealed his convictions for three counts of pattern aggravated felonious sexual assault.

During the investigation, Pyles was called to the Salem Police Department to discuss allegations of sexual abuse made against him. Salem police detectives took him to an interview room and informed him that the interview was being recorded. One of the detectives also began reading him his Miranda rights from a standard form, but failed to read the final provision regarding waiver of his rights. Instead, the detective told Pyles the form was a waiver that Pyles needed to sign for the detective to be able to speak to him.

Pyles asked the detective whether he was being arrested and was again informed that he had to sign the waiver in order for detectives to speak to him. After a further exchange, whereby the defendant expressed that he did not know what the detective was talking about or why he was being charged, the detective stated he could not get into the nature of the allegations unless the defendant wanted to talk about it. He also reminded defendant he could “stop at any time.”

The detective also stated it would be a good time for Pyles to “help himself.” Defendant finally signed the waiver, “for now,” and the detective asked whether defendant understood everything that was read to him. Defendant responded in the affirmative and declined an offer to have the form reread.

On appeal, Pyles argued his motion to suppress was denied in error because there was a reasonable doubt as to whether he knowingly, intelligently, and voluntarily waiver his Miranda rights.

The defendant first argued the detective was both coercive and deceptive in telling him that no information about the accusations could be provided unless he waived Miranda. He argued the detective could not make provision of the information contingent upon his waiver. He cited State v. Jones, where the Court found investigators employed a strategy of dangling “defendant’s prior invocation of his rights as an impediment to any further information…” and that was designed to provoke a specific response.

The NH Supreme Court rejected the analogy. First, it ruled Pyles’ case was not one where the detective failed to “scrupulously honor” a defendant’s invocation of his rights. Second, Pyles was already informed of the charges against him. In addition, the Court did not find any form of coercion because, as the videotaped recording of the interview showed, defendant was again informed of the charges against him.

Defendant further argued it was deceptive for the detective to tell him he could not get into the allegations unless Defendant wanted to talk about it, as it was a misstatement of the law. The Court noted that Defendant’s only request to be advised of the charges against him was satisfied. Defendant did not ask for any further specifics or information about the charges.

Agreeing with the state’s argument that it was prudent for the detective not to provide further information concerning the allegations, the Supreme Court recognized there were risks in divulging such information without first obtaining a waiver. Providing such information straddled the lines of becoming a custodial interrogation and, therefore, the Court could not conclude it was a deceptive practice to withhold the information without a waiver.

Finally, defendant argued his waiver was not knowing, intelligent, and voluntary because the detective spoke about Miranda as a “matter of necessity, as opposed to choice.” The Court noted it was entirely up to Defendant whether he wanted to talk; he did not have to answer questions; and he had the right to stop at any time. In addition, the Court held the detective’s failure to read the waiver portion of the standard Miranda form did not invalidate Defendant’s waiver.

Thomas Barnard, assistant appellate defender, Concord, for the defendant. Joseph Foster, attorney general (Nicholas Cort, assistant attorney general), for the state.

State of New Hampshire v. Gregory Collins
No. 2013-266
April 18, 2014
Reversed and Remanded
  • Whether the trial court properly denied defendant’s motion for new trial on three counts of pattern aggravated felonious sexual assault, four counts of aggravated felonious sexual assault by individual acts, and one count of misdemeanor sexual assault, where such denial was based on the trial court’s conclusions that defendant counsel’s performance was not constitutionally deficient
After the defendant’s appeal of his convictions for aggravated felonious sexual assault were upheld by the NH Supreme Court, he moved for a new trial on the ground that he did not receive effective assistance of counsel.

The trial court found that while his attorney’s performance did fall below an objective standard of reasonableness on several fronts, it was not constitutionally deficient because it did not prejudice the defendant. Defendant filed an appeal challenging the trial court’s findings.

According to the test for ineffective assistance of counsel, a defendant must show that the representation was constitutionally deficient and that counsel’s deficient performance actually prejudiced the outcome of the case.

To satisfy the first prong, defendant must show that counsel’s performance fell below an objective standard of reasonableness and that counsel made such egregious errors that she failed to function as the legal counsel the state constitution guaranteed. To satisfy the second prong of the test, defendant must establish that there was a reasonable probability that, but for Counsel’s unprofessional errors, the result of the proceeding would have been different.

Defendant first pointed to counsel’s failure to object to improper expert witness opinion testimony by the complainant’s therapist. Without objecting on direct examination, counsel allowed the therapist to testify that the complainant’s behaviors perfectly fit into symptoms that would have been seen in a sexually abused child; and also that the therapist realized he was no longer dealing with a “major depressive disorder” but instead a “post-traumatic stress disorder” in a sexually abused child. The trial court concluded it was not objectively reasonable to allow the therapist to provide such an opinion and cited Supreme Court case law that the testimony was of a type that was prohibited when trying to prove a particular child was sexually abused. The Supreme Court agreed with this conclusion. Moreover, the Court concluded it was not objectively reasonable, nor could it have been a part of trial strategy, for Counsel not to have objected to the therapist’s improper witness testimony.

Next, regarding the prejudice prong, the Court concluded the prejudice was manifest. Due to counsel’s errors, and because the case turned on the complainant’s credibility, the complainant’s credibility was impermissibly bolstered. Counsel’s failure to object allowed the jury to hear that, in the expert therapist’s view, complainant’s disclosures of sexual abuse “came out of the blue, and thus made the allegations more credible.”

As a result of Counsel’s failure to object, the Court reasoned the errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Consequently, the Court determined Counsel’s performance was deficient under the State Constitution.

Andrew R. Schulman, Getman, Schulthess & Steere Manchester, for the defendant. Joseph Foster, attorney general (Nicholas Cort, assistant attorney general), for the state.

State of New Hampshire v. Hillman Blesdell-Moore
No. 2012-475
April 15, 2014
Reversed and Remanded
  • Whether the police officer impermissibly expanded the scope of an otherwise lawful traffic stop when he began conducting a criminal drug investigation after completing a license check on defendant, without reasonable suspicion that any criminal activity was afoot
The defendant, Hillman Blesdell-Moore, appealed his convictions for possession with intent to distribute marijuana and psilocybin (mushrooms) on the theory that the trial court erroneously denied his motions to suppress evidence seized during a motor vehicle stop.

In this case, an officer from the Enfield Police Department stopped a truck for a defective taillight violation. No erratic behavior was observed. The officer approached the vehicle and noticed the defendant had bloodshot eyes with trembling hands and concluded the driver was nervous. The officer asked Blesdell-Moore to step out of the truck while he conducted a license check.

Upon completing the license check, the officer again approached the driver and asked him to stick out his tongue. When he did so, the officer noticed a green film coating that he believed was consistent with marijuana use. The officer then learned the defendant had previously used marijuana and asked whether any drug paraphernalia was in the truck. Blesdell-Moore denied having paraphernalia and agreed to a pat-down search of his person. The officer found two “wads” of cash in the defendant’s back pocket.

The Officer then returned to the defendant his license and registration. He also issued a verbal warning regarding the taillight violation. After the defendant received a telephone call from his father, the officer told him he was free to go. He also told the defendant’s father that he was releasing Blesdell-Moore from the scene.

As the two were walking away from one another, the officer asked if he would be willing to answer another question. The officer asked whether there was marijuana in the truck. Defendant denied this and also denied consent to a search of the truck. Subsequently, the officer informed defendant, again, that he was free to go, but then asked whether a police dog would find drugs in the vehicle. Blesdell-Moore said he did not think so. The officer then asked dispatch to request a canine unit. While doing so, he overheard the defendant say he was “screwed.” At this, the officer asked how much marijuana was in the truck. The defendant replied he had “a couple ounces” of marijuana and mushrooms. At trial, defendant filed four motions to suppress concerning the evidence found at scene. Specifically, defendant moved to suppress the officer’s examination of defendant’s tongue, the initial questioning regarding marijuana use, the officer’s pat-down search of defendant, and the subsequent drug interrogation. The tongue examination was suppressed by the trial court, but the defendant’s remaining motions were denied. On appeal, defendant argued the trial court erred in denying his motions.

The NH Supreme Court first examined whether the officer impermissibly expanded the scope of the motor vehicle stop. Using the test enunciated in State v. McKinnon-Andrews, the Court found the scope of the lawful traffic stop was unlawfully expanded when the officer asked to see defendant’s tongue and also when he took the additional steps to investigate whether defendant had marijuana on his person or in the truck. According to the officer’s own testimony, the investigation of the defendant’s tongue was not related to the purpose of the initial stop.

The Court then turned to whether the officer’s subsequent actions were justified by reasonable suspicion that defendant was, or “was about to be, engaged in criminal activity.” The Court concluded the officer did not have reasonable suspicion. Again citing his testimony, the Court noted the officer did not observe any erratic behavior or otherwise indicate any observations of impairment.

Moreover, the Court rejected the state’s argument that defendant’s nervousness and bloodshot eyes were enough to justify the officer’s actions. The Court noted previous case law that nervousness is “entirely consistent with innocent behavior.” The Court concluded the nature of the stop was “fundamentally changed” by the officer when he began his drug investigation by asking to see the defendant’s tongue. The Court last looked at whether the evidence obtained should have been suppressed under the fruit of the poisonous tree doctrine. The Court rejected the state’s contention that the primary illegality was purged.

The Court ruled that the officer’s actions and the circumstances surrounding his investigation gave “rise to the appearance, even if not the reality, that the officer’s purpose was to engage in a ‘fishing expedition’ for incriminating evidence…” Consequently, the Court concluded the trial court erroneously denied defendant’s motions to suppress.

Michael Delaney, attorney general (Elizabeth Woodcock, assistant attorney general, on the memorandum of law and orally), for the state. Brianna Sinon, assistant appellate defender, of Concord, on the brief, and Thomas Barnard, assistant appellate defender, of Concord, orally, for the defendant.

Family Law
In Re G.G.
No. 2012-873
April 18, 2014
Affirmed in Part, Vacated in Part, and Remanded
  • Whether trial courts have the discretion in abuse and neglect proceedings to determine whether any witness, including the child, should be compelled to testify
The respondent, who is the father of G.G., appealed the superior court’s denial of his request to cross-examine or subpoena G.G. after the court admitted her videotaped interview into evidence. The NH Division for Children, Youth, and Families (DCYF), petitioner, sought to introduce into evidence a videotaped recording of G.G. by a Child Advocacy Center worker. Respondent’s attorney objected to its introduction without G.G. testifying at the hearing, arguing that respondent had a statutory right to cross-examine and subpoena her.

After review of the video, the court concluded it could be introduced without G.G. being called to testify. The court also concluded that the respondent had no right to subpoena G.G. and rejected respondent’s assertion that he had a “compelling need” for her to testify.

The NH Supreme Court examined RSA 169-C:18, III, RSA 169-C:12 (2002), and RSA 169-C:11. The Court disagreed with Respondent’s argument that RSA 169-C:12 constituted the “only limitation upon an accused parent’s ability to present witnesses on his own behalf.” It also rejected Respondent’s assertion that the trial court did not have discretion over whether to allow Respondent to call G.G. as a witness. It would lead to an “illogical result, particularly when applied to the child who is the subject of an abuse and neglect proceeding,” the Court held.

In addition, the Court stated that following Respondent’s construction of the relevant statutes would allow an accused parent “to compel the testimony of the child in every abuse and neglect proceeding,” which would be contrary to the purpose of the Child Protection Act.

Based on its findings, the Supreme Court held the trial court did not err in deciding that the respondent did not have an “absolute” right to subpoena G.G., even though her testimony would have been relevant and material.

Acknowledging the unique issues presented by compelling the testimony of a child who is the subject of an abuse and neglect proceeding, the Supreme Court exercised its supervisory authority and set forth a list of six factors courts should consider when deciding whether such testimony should be compelled, including the child’s age, the specific potential harm to the child from testifying, and the indicia of reliability surrounding any admitted out-of-court statements describing the child’s allegations, among others.

The Court stated the list is not exhaustive and that courts were not required to consider them all or give them equal weight.

Lastly, because the record was unclear as to whether the trial court adequately considered the competing interests of Respondent and the child, and also because it did not have the benefit of the factors, the Court vacated its decision and remanded the matter for further proceedings.

Howard Gross, Dover, for the respondent. Joseph Foster, attorney general (Stephen Labonte, assistant attorney general, on the brief, and Susan Gorman, senior assistant attorney general, orally), for the state.

Labor Law
Appeal of Town of Brookline
No. 2013-253
April 18, 2014
  • Whether the Public Employee Labor Relations Board erred in deciding it had jurisdiction to decide whether the Town of Brookline’s participated in an unfair labor practice
  • Whether the Public Employee Labor Relations Board erred in determining the Town of Brookline participated in an unfair labor practice
The Town of Brookline, respondent, appealed the decision of the New Hampshire Public Employee Labor Relations Board (PELRB), which found the town engaged in unfair labor practices by refusing to negotiate with AFSCME, Council 98 (Union), petitioner. Respondent argues, on appeal, the PELRB erred in ruling that respondent had a duty to bargain with the union, even though it contained fewer than 10 employees.

The Brookline Police Officers Association, at the time it was certified in 2001 contained at least 10 employees, including patrol officers and a sergeant. Respondent later filed a petition to modify the unit to exclude the sergeant position. The PELRB amended the certification in 2002 and excluded the sergeant, but in 2004, the position of corporal was included in the description of the unit.

When the proceeding in this matter was heard, it was found that the bargaining unit had fewer than 10 bargaining unit employees.

On Dec. 31, 2011, the collective bargaining agreement expired. Before its expiration, the parties began negotiations for a successor agreement. Subsequently, respondent informed the union it would no longer participate in the collective bargaining process, reasoning the bargaining unit had fewer than 10 employees. The Union thereafter filed an unfair labor practice charge against respondent. Respondent denied the charge and argued the PELRB lacked jurisdiction over the unfair labor practice charge. PELRB found its jurisdiction had not been divested just because the bargaining unit had fewer than 10 employees. It then found respondent committed an unfair labor practice by refusing to bargain with petitioner. Respondent appealed the PELRB decision that it had jurisdiction over the bargaining unit’s unfair labor practice charge.

The NH Supreme Court stated the appeal requires statutory interpretation, as the standard of review in this matter was governed by RSA 541. The burden was on Respondent to show PELRB’s decision was “clearly unreasonable or unlawful.” The Court also looked to RSA 273-A governing the 10-employee minimum.

Under the principle espoused in In the Matter of Gray and Gray, the Supreme Court concluded the PELRB had subject matter jurisdiction over the union as well as jurisdiction to adjudicate the unfair labor practice charge. The Court noted that, pursuant to the plain meaning of RSA 273-A:8, it was PELRB’s responsibility to determine whether a bargaining unit consisted of at least 10 employees.

The Court stated that there was nothing within the statute costing PELRB its power to adjudicate controversies surrounding the certification of bargaining units as well as the regulation of the relationship between public employers and public employee unions. The Court stated that construing provisions concerning the PELRB’s powers and authority as jurisdictional would “completely undercut the PELRB’s authority to carry out the important duties assigned to it by the legislature…” It finally concluded the 10-employee minimum was merely “one of the many mandatory substantive provisions of the law” the PELRB must follow in carrying out its responsibilities.

The Court also addressed, and found unpersuasive, the union’s argument that the 10-employee minimum requirement applied only with respect to the initial certification of a bargaining unit. The Court noted the PELRB had adopted regulations that addressed the issue of decertification and whether a certified unit qualified for further certification when the number of employees fell below the statutorily required minimum.

Based on its findings, the New Hampshire Supreme Court held the PELRB did not err when it concluded it had jurisdiction to decide the unfair labor practice charge. The Court also held the PELRB did not err in its decision that respondent engaged in an unfair labor practice by refusing to bargain with bargaining unit’s representative.

Law Offices of Shawn J. Sullivan, of Concord (Shawn Sullivan on the brief), for the petitioner. Devine, Millimet & Branch, of Manchester (Donald Smith and Anna Peterson on the brief), for the respondent. James Allmendinger, of Concord, by brief, for NEA–New Hampshire, as amicus curiae.

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