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Bar News - June 18, 2014

Supreme Court At-a-Glance


May 2014
Administrative Law
Appeal of Town of North Hampton (Public Employee Labor Relations Board)
No. 2012-798
May 7, 2014
  • Multiple questions raised on appeal concerning the Board’s finding that the town engaged in unfair labor practices
The town of North Hampton, while negotiating a collective bargaining agreement with the union representing certain public safety personnel, implemented a program that proposed additional working conditions and a 5 percent “stipend” over base pay for firefighters with paramedic certification.

The town suggested that this category of paramedic personnel should be included in the union’s bargaining unit and asked the union if it wanted to engage in bargaining over the wages, hours and working conditions of the new paramedic position.

The union amended a pending PELRB complaint against the town to include a new charge based on the town’s adoption of the paramedic program, which the union alleged adopted “a plan to increase pay of firefighters for obtaining additional training. Following a hearing, the PELRB found that the town had committed an unfair labor practice by unilaterally establishing a wage schedule and other conditions of employment for the preexisting category of firefighter EMTs with paramedic licensure.

The town appealed the board’s finding, arguing 1) that adoption of the paramedic program was within the town’s “managerial prerogative;” 2) that the paramedic program created a new category that was not previously subject to the CBA; 3) that the town had no obligation to negotiate the terms of the paramedic position until it voluntarily agreed to or the board ordered it to include the position in the bargaining unit; and 4) that the town did not violate its duty to bargain and was not otherwise motivated by anti-union animus.

The court applied a three-step analysis to conclude that the town’s creation of the paramedic program did not fall within the “managerial prerogative” exception of RSA 273-A:1, XI (2010).

The court rejected the town’s argument that the paramedic position was a newly created position to be added to the bargaining unit, concluding that firefighter paramedics were already included.

Based on that determination, the court rejected the town’s argument that it had no obligation to negotiate the initial pay and working conditions of the new position. Finally, the court dismissed the town’s argument that no evidence of anti-union animus had been presented, ruling that no such finding was required for the town’s violation.

J. Joseph McKittrick, North Hampton, for the petitioner. John S. Krupski, Concord, for the respondent.

David Montenegro v. New Hampshire Department of Motor Vehicles
No. 2012-624
May 7, 2014
Reversed and Remanded
  • Whether New Hampshire Code of Administrative Rules, Saf-C 514.61, which regulates vanity motor vehicle registration plates, violates petitioner’s right to free speech or is otherwise unconstitutionally vague
Petitioner applied to the DMV for a vanity motor vehicle registration plate reading “COPSLIE.” The DMV denied petitioner’s application. As grounds for its denial, the DMV concluded that a reasonable person would find petitioner’s expressed, intended meaning of the plate, “cops lie,” to be “offensive to good taste” in violation of New Hampshire Code of Administrative Rules.

Petitioner exhausted his administrative remedies and ultimately filed suit in the Superior Court, seeking an injunction directing the DMV to issue him the “COPSLIE” plate. Petitioner also argued, inter alia, that Saf-C 514.61(c)(3) violated his guarantee to free speech under the New Hampshire and United States Constitutions. The trial court upheld the code and DMV’s denial of petitioner’s application.

On appeal, the petitioner argued that the trial court erred in ruling that the DMV did not violate his free speech rights, contending (a) that vanity plates are a “designated public forum” requiring government intrusion to be narrowly tailored to serve a compelling government interest, (b) alternatively, that plates are a “nonpublic forum” requiring government intrusion to at least be “viewpoint-neutral;” and (c) that Saf-C 514.61(c)(3) is facially invalid as unconstitutionally vague and overbroad.

The Court passed on the “forum analysis,” ultimately deciding that the restriction in Saf-C 514.61(c)(3), on its face, “authorizes or even encourages arbitrary and discriminatory enforcement,” see State v. MacElman, 154 N.H. 304, 307 (2006), and is, therefore, unconstitutionally vague. Based on the vagueness of the regulation, the court held that the restriction violated petitioner’s right to free speech guaranteed by Part I, Article 22 of the New Hampshire Constitution.

David Montenegro, self-represented party. Michael A. Delaney, attorney general (David M. Hilts, assistant attorney general, on the brief, and Richard W. Head, associate attorney general, orally), for the respondent.

Appeal of Niadni, Inc. d/b/a Indian Head Resort Motel (NH Dept. of Employment Security (DES))
No. 2013-313
May 8, 2014
  • Whether a performer at Indian Head Motel was an employee for purposes of RSA 282A (2010 & Supp. 2013)
Niadni, Inc. d/b/a Indian Head Resort Hotel, (the resort) located in Lincoln, is a resort-type business with a restaurant, rooms, and live entertainment. Norman Coulombe (Coulombe) appeared as a musical entertainer at the resort beginning in 1980 and was paid weekly for his performances. The relationship between the resort and Coulombe was terminated June 2, 2012. He subsequently filed for unemployment benefits with the NH Department of Employment Security (DES).

DES initially determined that Coulombe was eligible for unemployment benefits. The resort appealed this determination to the DES Appeal Tribunal (tribunal). Following a hearing, the tribunal concluded that Coulombe “did not provide services in employment” under the exception contained in RSA 282-A:9 III(2010). Specifically, the tribunal concluded that the resort is in the business of, among other things, “coordinating” entertainment, which it distinguished from “the business of singing, playing instruments, or other forms of entertainment.” Coulombe’s request for reconsideration was denied.

Coulombe then appealed to the board, which initially denied the appeal, but upon reconsideration, ruled that the tribunal’s decision was erroneous because it drew a “distinction without substance.” Accordingly, the board awarded Coulombe unemployment benefits. The board denied the resort’s subsequent motion to reconsider, and this appeal followed.

The resort challenged Coulombe’s employment status based upon the exemption provided in RSA 282-A:9, III, which excludes certain workers from the definition of “employment.”

The court determined that the appeal hinged on the meaning of RSA 282-A:9, III(b), which sets forth two circumstances under which a service will not be considered employment: when a service is “outside the usual course of the business for which such service is performed” or when a service is “performed outside of all the places of business of the enterprise for which such service is performed.”

The court focused on whether Coulombe’s services were outside the resort’s usual course of business relying upon the approach of the Supreme Court of Connecticut in Mattatuck Museum v. Unemployment Comp., 679 A.2d 347, 351 (Conn. 1996).

The court rejected the resort’s arguments that Coulombe’s services were not within its usual course of business, and that Coulombe’s services merely contributed to the resort’s ambience, analogous to decorative floral arrangements. The court found that the resort’s arguments ignore the significance of Coulombe’s services to the resort’s business and that his services were not incidental but integral to the resort’s business.

The court thus rejected the resort’s contention that Coulombe is an independent contractor.

Because the court found that the resort failed to meet the test of RSA 282-A:9(b), it did not need to consider whether the resort satisfied the two remaining requirements set forth in RSA 282-A:9(a) and (c).

Elizabeth Bailey, of Sheehan Phinney Bass & Green, Manchester, for the petitioner. Daniel Feltes and Sarah Mattson, of New Hampshire Legal Assistance, Concord, for the respondent. Christopher Vrountas and Adam Chandler of Vrountas, Ayer & Chandler, Manchester, for the New Hampshire Lodging & Restaurant Association (as amicus curiae).

Appeal of New Hampshire Right to Life (Board of Pharmacy)
No. 2012-828
May 22, 2014
  • Whether the New Hampshire Right to Life lacked standing to appeal licensing decisions
The New Hampshire Right to Life (NHRTL), appealed the Board of Pharmacy’s (the Board) decision that NHRTL lacks standing to participate in administrative actions involving the renewal of Planned Parenthood of Northern New England’s (PPNNE) limited retail drug distributor license.

As a limited retail drug distributor, PPNNE operates in New Hampshire pursuant to a contract with the New Hampshire Department of Health and Human Services (DHHS). PPNNE must reapply annually to the board to renew its licenses.

Between April 2012 and September 2012, NHRTL sent three written complaints to the board. Initially, NHRTL alleged that PPNNE’s contract with DHHS had expired and was not renewed. PPNNE then submitted renewal applications for its clinics to the board. On Sept. 19, 2012, the Board approved PPNNE’s applications.

In response, NHRTL filed a motion for a rehearing, asking the board to reconsider the renewals of PPNNE’s licenses. The board denied the request for a rehearing on the grounds that NHRTL “is neither a party nor an aggrieved person in the license renewal proceeding.” The board also advised that NHRTL could not intervene in such proceedings, as it had not complied with the applicable statutory provisions necessary to be granted intervenor status. This appeal followed.

NHRTL argues that the Board erred in finding that it did not have standing to challenge the renewals because RSA 318:29, I(b) (Supp. 2013) grants standing to intervene in licensing proceedings to “any person” who files a written complaint alleging misconduct by a licensee. The Court disagreed. Additionally, the Court found that because, in this case, the material facts were not in dispute; only their legal effect, that the issue of standing is a question of law, which the Court reviewed de novo.

The Court considered the plain meaning of the relevant statutes, finding that “[n]othing in RSA 318:29, I(b) pertains to licensing requirements or license renewal...[r]ather, it focuses upon when the Board may take disciplinary action, the type of misconduct sufficient to support disciplinary action, and appropriate actions the Board may take in response to licensee misconduct.”

The court found that an entirely separate statutory section (RSA 318:51-b) deals with the licensing of limited retail drug distributors like PPNNE.

The Court also found unavailing NHRTL’s argument that under the Administrative Procedure Act (APA), filing a complaint automatically grants it intervenor status. Finally, the Court rejected NHRTL’s argument that it had standing under RSA 541:3 to seek rehearing of the license renewal.

Michael J. Tierney, of Wadleigh, Starr & Peters, Manchester, for the petitioner. Joseph A. Foster, attorney general, and Lynmarie C. Cusack, assistant attorney general, for the state.
Civil Procedure
Tamara Dukette v. Daniel Brazas
No. 2013-230
May 8, 2014
  • Whether the trial court erred in preventing counsel from addressing and examining the jury panel during attorney-conducted voir dire.
Following a two-day trial in Superior Court, the jury determined that respondent was not legally at fault for injuries sustained by petitioner when she slipped and fell on ice at her apartment, of which respondent was the owner. Petitioner appealed the jury verdict arguing that the trial judge erred by preventing her attorney from addressing and examining the jury as a panel during attorney-conducted voir dire.

The trial judge issued a written order following the final pretrial conference, which required the parties to submit individual voir dire questions to the court in advance. The trial court informed counsel that any juror wishing to respond to one of the questions would have to approach the bench and answer the question for the judge and counsel, out of hearing of the other members of the jury panel.

Petitioner moved for reconsideration of the trial court’s order regarding vior dire, asking the court to waive the requirement to submit questions in advance and authorizing counsel to address the whole jury panel so that all members could hear the questions and answers presented. The trial court denied the motion for reconsideration and petitioner sought interlocutory relief from the NH Supreme Court.

The court vacated the trial judge’s order as to prior submission of vior dire questions, but otherwise left the order intact.

At jury selection, the trial court asked general voir dire questions of the entire panel and then turned the questioning over for attorney-conducted voir dire, which was conducted at the bench. Petitioner’s counsel waived asking questions of the individual jurors and was not later afforded an opportunity to address the panel as a whole. Petitioner argued that the trial court’s process was inconsistent with the statute governing attorney-conducted voir dire.

Reviewing the plain language of the statute, the Court held the trial court did not deviate from the requirements of RSA 500-A:12-a, III (“counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause”) because nothing in the statute’s language required the trial court to allow counsel to address the jury as a group. Petitioner failed to adequately preserve her other arguments for appeal.

In spite of the its holding that the trial court did not violate RSA 500-A:1 2-a, III, the Court nevertheless took the opportunity to remind the trial court of RSA 500-A:12-a, II and its requirement that “[c]ounsel for each party shall be allowed a reasonable amount of time to address the panel of prospective jurors... ”

Justice Conboy, concurring specially, went even further to voice a general preference for open voir dire, especially given the time constraints of jury trials and the NH Legislature’s stated purpose of allowing counsel “liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” RSA 500-A:12-a, III.

Michael McGrath, Concord, for the petitioner. Gary Burt, Manchester, for the respondent.
Plea of Title - Eviction
Leigh Mae Friedline & a. v. Eugene Roe
May 16, 2014
Vacated and remanded
  • Whether the Circuit Court had jurisdiction to hear a Plea of Title
  • Whether a notice of eviction requires the signature of all property owners
In 1959, defendant purchased property in Greenville, and has resided there since. In 1971, defendant conveyed the property to Brookwood Ecology Center Inc. (Brookwood). Brookwood reconveyed the house and barn on the property to defendant in 1999 and, in 2004, defendant conveyed the house and barn to his son, plaintiff Kellogg-Roe. In 2009, Kellogg-Roe transferred a 20 percent interest in the buildings to plaintiff Friedline and gave her a power of attorney to act as his agent.

In March 2012, Friedline served defendant with an eviction notice, ordering him to vacate the premises within 30 days. Although the eviction notice stated that the buildings were owned by both Kellogg-Roe and Friedline, only Friedline signed the notice. When defendant did not vacate, plaintiffs filed a landlord and tenant writ.

Defendant filed a plea of title in response to the writ, arguing among other things that the case should be dismissed because both owners did not signed the eviction notice. Defendant also challenged plaintiffs’ title to the property arguing that Brookwood, as a charitable trust, was without authority to give the buildings to the defendant in 1999 and therefore plaintiffs, as assignees without consideration, did not own title to the house.

Following a hearing, the Circuit Court – District Division awarded plaintiff a writ of possession, finding that Friedline filed the eviction notice on behalf of both owners and that defendant’s deed from Brookwood was not void because the 1999 transfer was for valuable consideration. This appeal followed.

The NH Supreme Court held that the determination as to whether the district division had jurisdiction in this case is a question of law, subject to de novo review. The Court noted that the filing of a plea of title in the district court does not immediately halt the possessory proceedings. Rather, RSA 540:17 requires the defendant to enter his action in the superior court for the county and authorizes the district division to require defendant to post a monetary bond (recognizance).

Further, RSA 540:18 provides that once recognizance is entered, no further proceedings shall be had in the district division and the action may be entered in the superior court. The Court thus held that if the defendant fails to enter his action in the superior court, then the possessory proceedings in the district division may resume.

As such, the Court found that the statute places the burden to institute the action in the superior court on the defendant. The Court recognized, however, that because the district court lacks jurisdiction to decide a plea of title, it must provide the defendant with an opportunity to enter his action in the superior court and, if so ordered, to enter a recognizance. If the defendant fails to initiate the action or does not enter the specified recognizance, then the district division may resume the possessory proceedings.

Here, the Court found that the district division did not provide defendant with the opportunity to enter his action in superior court, nor did it address the issue of recognizance. Consequently, the Court ruled that the district division exceeded its jurisdiction by ruling on the merits of the plea of title. The Court did find, however, that the district court correctly ruled that the eviction notice did not require dismissal of the action.

Donald Sienkiewicz, Milford, for the plaintiffs. William Keefe, of Keefe & Keefe, Wilton, for the defendant.
Probate and Family Law - Alimony
In the Matter of John G. Lyon and Kimberly Anne White Lyon
No. 2013-401
May 30, 2014
Vacated and remanded
  • Whether the trial judge erred by denying petitioner’s request for a modification of alimony based on her failure to show a substantial change in circumstances
Petitioner and respondent divorced in May 2007. Their divorce decree incorporated a permanent stipulation, which required respondent to pay petitioner $3,000 per month from Jan. 1, 2007, through June 30, 2007, and $5,000 per month from July 1, 2007, through June 30, 2012.

On May 31, 2012, petitioner filed with the family court to extend the soon-to-expire alimony award for another three years. She alleged that she needed the additional alimony because she was newly diagnosed with ADHD and, without alimony, could not afford the medication that would enable her to finish her education.

Respondent moved for summary judgment on the requested extension, arguing that petitioner had failed to establish that there was an unanticipated or unforeseeable substantial change in circumstances that warranted extending the existing payments for another three years. Petitioner opposed the motion for summary judgment, arguing that the proper standard for extending the term of an award was not the “substantial change in circumstances” standard applicable to modifications of the amount of an award, but rather the “need and ability to pay” standard applicable to new awards. The family court granted summary judgment for respondent, and this appeal ensued.

The court held that neither respondent nor petitioner articulated the proper standard to be employed on a request to renew an expired (or expiring) alimony award. Conducting a statutory interpretation of RSA 458:19, the Court found that both the plain language of the statute and the legislative history of the 2001 amendments to the statute were silent with regard to the standard to apply to petitions to renew.

Finding no guidance within the statute itself or from the legislative history, the Court concluded that nothing in the 2001 amendments to the statute was intended to abrogate prior judicially-created standards governing renewal of expired alimony awards.

“Our prior cases make clear that when an alimony order has terminated and the issue is whether it should be ‘extended or renewed, either in modified or unmodified form, the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount[,]... in the light of all the circumstances then existing.’” Taylor v. Taylor, 108 N.H. 193, 195 (1967).

John Loftus III, of Norwich, Vt., by brief for the petitioner. Rebecca Wagner, of West Lebanon, by brief for the respondent.
Criminal Law
State v. Theadore Mitchell, No. 2012-827 May 16, 2014 Affirmed in part; vacated in part; remanded for resentencing
  • Whether the trial court erred by excluding evidence that defendant offered to take a polygraph test
  • Whether the trial court erred when it allocated his pretrial confinement credit
Theadore Mitchell was convicted of one count of aggravated felonious sexual assault and two counts of violation of a protective order. The Court held that the trial court properly excluded defendant’s offers to take a polygraph test during a recorded interview with the police at the time of his booking. Before trial, the state moved to exclude the portions of defendant’s recorded interview in which he offered to take a polygraph test. Defense counsel objected, arguing that defendant’s offers should be admitted under the doctrine of completeness and pursuant to the defendant’s right to present “favorable proofs” under the state and federal constitutions. The trial court first determined that the doctrine of completeness did not apply and further held that defendant’s offers were inadmissible hearsay.

The Court rejected defendant’s challenge to the trial court’s determination regarding the doctrine of completeness. The Court recognized that the doctrine is a common law rule, partially codified by NH Rule of Evidence 106, which expressly states that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require at that time the introduction of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” The Court agreed with the trial court’s view that in this case that excluding the polygraph offers did not create a misleading impression.

The Court also agreed with the trial court’s finding that any probative value of the polygraph offers would be substantially outweighed by their prejudicial effect and by the danger that their admission would cause confusion. With respect to prejudice, the Court held that it had long followed the general rule that evidence derived from a polygraph test is inadmissible.

The Court next rejected defendant’s contention that the trial court’s refusal to admit the polygraph offers violated his rights to present “all proofs favorable” and to due process under both the state and federal constitutions.

The Court agreed with the trial court’s exclusion of the offers to take a polygraph because defendant did not contend that his right to produce witnesses was infringed; only that he was unable to produce evidence. The Court further held that defendant was not deprived of due process because he has no right under Article 15 to introduce evidence that will have little effect other than to confuse the issues or confound the jury.

Finally, based upon RSA 651:18, II (2007), the Court found that the imposition of a 175-day jail sentence on one of the violation of protective order charges, to be served stand committed, with the allocation of all of his pretrial confinement credit to this sentence, was plainly erroneous. Holding that the sentences deprived the defendant of the opportunity to earn time off for good behavior, the Court vacated the sentences and remanded for resentencing.

Joseph Foster, attorney general (Susan McGinnis, senior assistant attorney general) for the State. James Reis, Concord, for the defendant.

State v. Barion Perry
No. 2012-561
May 22, 2014
  • Whether the trial court’s declaration of a mistrial over defendant’s objection lacked the “manifest necessity” and, thus, whether the double jeopardy provisions of the state and federal Constitutions barred retrial.
At a jury trial alleging counts of theft by unauthorized taking and burglary against the petitioner, the state introduced a recording of petitioner’s post-arrest interview by police. The recorded statement inadvertently included three prejudicial statements that should have been redacted: one where petitioner referred to his prior conviction for theft and burglary; one where petitioner referred to his parole officer; and one where petitioner referenced his time in prison.

Defense counsel failed to flag the first two statements for redaction. The third statement had been flagged for redaction but had not been redacted.

The quality of the recording was poor, as were the acoustics in the courtroom, and there was some question as to whether the jury actually heard the prejudicial statements. Both prosecution and defense counsel had heard the statements, the trial judge had not, but petitioner claimed he noticed “at least four or five of the jurors” looking at him when the statements played, and he believed they had heard the references.

Defense counsel requested neither a mistrial nor a curative instruction. The state urged a mistrial declared on “manifest necessity,” notwithstanding defendant’s decision not to request one. The trial court ultimately concluded that manifest necessity required a mistrial (defense counsel could not adequately advise defendant due to his failure to flag the prejudicial statements for redaction and failure by independent counsel to request a mistrial “could be ineffective assistance of counsel”). Mistrial was declared and a new trial was scheduled.

Prior to the new trial, petitioner moved to dismiss the indictment with prejudice, claiming the mistrial was not based on manifest necessity, and the double jeopardy provisions of the state and federal constitutions barred his retrial. Petitioner’s motion to dismiss was denied, and this appeal ensued.

“The Double Jeopardy Clause does not bar retrial after a mistrial when the defendant consents to the mistrial, or, if he objects, upon a finding of the trial court that there is manifest necessity for the act, or that the ends of public justice would otherwise be defeated.” State v. Ojo, 165 NH (decided Feb. 21, 2014). “Determining whether manifest necessity exists... requires a balancing of competing concerns: the defendant’s interests in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial.” State v. Solomon, 157 NH 47, 52 (2008). “A trial court must therefore take all circumstances into account, and should allow counsel to comment as well as consider alternatives before declaring a mistrial.” State v. Howell, 158 N.H. 717, 720 (2009).

In affirming the trial court’s determination that a mistrial was manifestly necessary, the Court refused to second-guess the trial court’s discretion: The recorded statements were highly prejudicial; petitioner’s own statements suggested that four or five jurors may have heard those statements; no non-prejudicial curative instruction could have been fashioned; it could have been ineffective assistance of counsel for an independent attorney to advise petitioner not to seek a retrial. The Court agreed with the trial court that these factors outweighed petitioner’s preference to proceed with the original tribunal.

David Rothstein, deputy chief appellate defender, Concord, for the petitioner. Michael Delaney, attorney general (Susan McGinnis, senior assistant attorney general), for the state.
Criminal Procedure
State v. Robert Letoile Jr.
No. 2012-674
May 16, 2014
  • Whether evidence of child pornography found on petitioner’s computer should be suppressed because the police affidavit in support of the search warrant failed to set forth sufficient facts linking child pornography to petitioner’s computer
  • Whether references in the police affidavit to evidence seized pursuant to an invalid first warrant prejudiced the fair and impartial determination of whether probable cause existed for issuance of a second warrant
Petitioner’s ex-wife complained to police that she clicked the browsing history while using petitioner’s computer and found disturbing links to websites that potentially contained child pornography. Based on information provided by the ex-wife, police secured a search warrant and seized petitioner’s computer.

The trial court allowed petitioner’s motion to suppress the evidence obtained on the grounds that the warrant and supporting affidavit failed to describe the pornographic material with sufficient particularity to establish probable cause.

A second warrant, relying on further statements by petitioner’s ex-wife describing the material in greater detail, was applied for and obtained. Petitioner sought to suppress the evidence obtained under the second warrant, again claiming lack of probable cause and further arguing that, even if probable cause did exist for the second warrant, it was tainted by the first unlawful search and seizure.

The trial court denied the second motion to suppress, finding that the more detailed descriptions of the images provided by the ex-wife provided an independent basis to “lead a reasonable person to believe there was a substantial likelihood that child pornography would actually be found.” At the subsequent trial, petitioner was found guilty of 26 counts of possession of child pornography, and this appeal ensued.

The Court affirmed petitioner’s conviction, holding that probable cause requires neither certainty, nor proof beyond a reasonable doubt, nor even proof by a preponderance of the evidence; only a “fair probability” that contraband will be found in a particular place is sufficient. Thus, the Court rejected petitioner’s contention that his ex-wife’s statement described downloaded images from the Internet, not files stored on his computer.

Rejecting petitioner’s argument that the second warrant was tainted by reference to the first, the Court held that, even after excising all reference to the first warrant, the more detailed description provided by the ex-wife for the second warrant provided sufficient independent basis for finding probable cause.

James Reis, assistant appellate defender, Concord, for the petitioner. Joseph Foster, attorney general (Elizabeth Woodcock, assistant attorney general), for the state.

State v. Bryan Maga
No. 2012-716
May 16, 2014
  • Whether a certificate of a state crime lab employee attesting to the working condition of a breathalyzer machine was sufficiently testimonial to trigger petitioner’s rights under the confrontation clause
  • Whether police otherwise had probable cause to arrest petitioner
Petitioner Bryan Maga, a 19-year old, was stopped by police for a defective brake light. Approaching the car, the police officer detected the smell of alcohol and observed that petitioner’s eyes were red and glassy. The officer asked petitioner for his license, which he did not produce. Maga initially admitted to having consumed one beer, but later claimed to have consumed two.

Petitioner agreed to a field sobriety assessment and allegedly failed two of the three tests. Petitioner was taken into custody and transported to the police station, where a breathalyzer showed his blood-alcohol concentration to be 0.09 percent.

Among the testimony at bench trial was a certificate from an employee of the state crime lab attesting that the breathalyzer used to obtain petitioner’s BAC after his arrest was in good working order. Petitioner argued that the breathalyzer certificate should be excluded unless the state produced the laboratory employee for cross-examination. The trial court allowed the certificate.

At the close of trial, petitioner moved to dismiss the charges claiming that there had been no probable cause for his arrest. The trial court denied the motion to dismiss and found petitioner guilty of operating a motor vehicle with a BAC over 0.02 percent while under 21-years of age. Petitioner appealed his conviction.

The Court clarified that only “testimonial statements” put a declarant in the position of being a “witness” within the meaning of the confrontation clause. If the statement is not testimonial, then the declarant is not a witness, and thus not subject to cross-examination by a criminal defendant.

Petitioner attempted to equate the breathalyzer certificate at issue here with the certificate of a drug lab employee that was held to be subject to Confrontation Clause challenge under Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Court disagreed, distinguishing the two certificates on the basis of their relative purposes. Unlike the drug lab certificate in Melendez-Diaz, which provided direct evidence of the composition, quality and weight of the analyzed substance the defendant in that case was accused of having possessed, the breathalyzer certificate did not seek to satisfy a necessary element of the offense to be proved.

Rather, the breathalyzer merely provided a foundation to show that the test device used to read petitioner’s BAC was operating properly. Additionally, the Court noted that the certificate at issue here had been produced several months before petitioner’s arrest and, thus, was not created specifically for the litigation of this case.

As to Petitioner’s claim that there was no probable cause to support his arrest, the Court held that the officer had “knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense.” Ojo v. Lorenzo, 164 NH 717, 722 (2013): Petitioner failed to produce his license, admitted to having consumed alcohol, presented with an odor of alcohol and red, glassy eyes, and he failed two of three field sobriety tests. The factors as a whole provided adequate probable cause for the arrest.

Mark Stevens, Salem, for the petitioner. Michael Delaney, attorney general (Nicholas Cort, assistant attorney general), for the state.

State v. Thomas Jur
No. 2013-075
May 8, 2014
  • Whether the trial judge erred by denying petitioner’s pre-trial request for an interpreter, thus violating his right to a fair trial and effective assistance of counsel.
Petitioner, indicted on the habitual offender charge, filed a pre-trial motion to be provided with an interpreter. Petitioner is an immigrant from Sudan, and his primary language is Dinka. Petitioner represented in support of his motion that he has difficulty understanding English.

Efforts were undertaken by the court and counsel to obtain an interpreter with no success. To determine how to proceed, the trial judge engaged petitioner in a colloquy to assess his English language skills, asking about his background, education and work experience. Petitioner had never studied English before moving to Manchester, but had been taking some ESL classes for about two years. Petitioner indicated that he was able to communicate with his attorney with some additional back-and-forth effort.

Based on his colloquy with petitioner and the expectation that the trial would be fairly simple (only two expected witnesses), the trial judge decided to proceed with the trial, without an interpreter. Instead, the trial court gave petitioner accommodations for additional breaks and opportunities to confer with his counsel during the course of the proceedings.

Petitioner availed himself of the opportunities afforded, taking several additional breaks, and, at several points in the testimony, requesting that prosecution counsel and the witnesses speak more slowly so he could understand. At the close of the state’s evidence, petitioner was a witness in his own defense, producing expansive testimony that spanned 63 pages in the transcript of the two-day trial. The jury convicted petitioner, and this appeal ensued.

The Court rejected petitioner’s argument that the trial court’s failure to assign an interpreter deprived him of a fair trial and effective assistance of counsel. Noting that “the trial court must balance the defendant’s rights to due process, confrontation of witnesses, effective assistance of counsel, and to be present at his trial against the public’s interest in economical administration of criminal law,” United States v. Edouard, 485 F.3d 1324, 1338 (11th Cir. 2011), the Court essentially deferred to the sound discretion of the trial judge.

The judge’s colloquy with petitioner, the accommodations afforded for additional time to confer, the requests for witnesses and counsel to speak more slowly, and the petitioner’s own extensive testimony in his defense – “there is perhaps no better indication for an appeals court that a defendant can speak and understand English than when the record reflects he gave testimony or offer some other oral statement,” State v. Selalla, 744 N.W.2d 802, 810 (SD 2008) – all supported the trial judge’s decision to proceed without an interpreter.

The decision to affirm the conviction aside, it should be noted that the trial in this case predated implementation of the New Hampshire Judicial Branch’s Language Services Plan. The Court took the opportunity to point out that under the new plan “[w]hen it appears that an individual has any difficulty communicating, it is the NHJB’s policy to err on the side of providing an interpreter to ensure full access to the court.”

James B. Reis, assistant appellate defender, Concord, for the petitioner. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general), for the State.

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New Hampshire Bar Association
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