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Bar News - March 18, 2015


Supreme Court At-a-Glance

By:

February 2015

Constitutional Law

Greg Dupont v. Nashua Police Department;
Gregory Dupont v. Peter McDonough & a.
Nos. 2013-513 and 2014-017
February 20, 2015
Reversed and remanded

  • Whether the Circuit Court erred in affirming the revocation of a license to carry a loaded pistol or revolver and whether the Superior Court erred in denying a motion for preliminary injunctive relief

The petitioner had a 1998 Massachusetts conviction for operating a motor vehicle under the influence of alcohol, which rendered him ineligible under Massachusetts law to possess or carry a firearm.

In 2005, the Massachusetts Firearm Licensing Review Board restored the petitioner’s right to possess a firearm. The petitioner was issued a license to carry a pistol or revolver in 2007 by the City of Nashua, which renewed the license thereafter. The petitioner was issued an armed security guard license by the NH Department of Safety in 2009. In 2010, the Department of Safety revoked the petitioner’s armed security guard license.

After his unsuccessful appeal of the revocation to a hearings examiner, Dupont appealed the hearing examiner’s decision to the Superior Court. The Superior Court action was resolved by a 2011 settlement. In 2013, the petitioner’s license to carry was revoked by the City of Nashua after a background check was conducted.

These consolidated cases arose out of the Circuit Court’s order affirming the revocation of the petitioner’s license to carry a loaded pistol or revolver and the Superior Court’s order denying his motion for preliminary injunctive relief in an action challenging the denial of his request for an armed security guard license.

Although federal law prohibits possession of any firearm for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” under 18 USC § 922(g)(1) (2012), the Court found that the 1998 Massachusetts conviction should not have been considered a conviction under 18 USC § 921 (a)(20).

The Court concluded that “civil rights” contemplated by 18 USC §921 (a)(20) are not limited to the three “core” civil rights of the rights to vote, hold office and serve on a jury and that the Second Amendment right to keep and bear arms is a civil right within the statute’s ambit.

The Court concluded that the right to keep and bear arms is a civil right for purposes of §921 (a)(20) and, therefore, because the petitioner was found to be “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth,” that he had in fact had one civil right “restored” and therefore would not be precluded from eligibility for the §§ 921 (a)(20) exemption.

Penny Dean, Concord (by brief and orally) and Jay Edward Simkin, non-attorney representative (by brief and orally) for the petitioner. Stephen M. Bennett, corporation counsel, Nashua, for the respondent City of Nashua. Joseph A. Foster, Attorney General, Rebecca L. Woodard, Assistant Attorney General (on the memorandum of law and orally) for respondents Peter McDonough, Christopher B. Casko, John J. Barthelmes, and Sean Haggerty.


John Doe v. State of New Hampshire
No. 2013-496
Feb. 12, 2015
Affirmed in part, reversed in part, and remanded

  • Whether the trial court erred in granting summary judgment in favor of the State on the petitioner’s declaratory judgment action

The petitioner pleaded guilty to aggravated felonious sexual assault in 1987 and was sentenced to two and a half to five years in prison, which was deferred for two years. He was placed on probation for four years and required to attend counseling, which he attended weekly for two years. Thereafter, the petitioner was required to register as a sex offender under an earlier sex offender registry law. Permanently disabled, the petitioner applied for public housing and his approval was later revoked because of his sex offender.

The petitioner filed a declaratory judgment action seeking a ruling that RSA 651-B (“the act”) was unconstitutional as applied to him because it violated the prohibition against retrospective laws and the due process clause of the New Hampshire Constitution.

The trial court granted summary judgment for the state. On appeal, the petitioner argued that the act was unconstitutional as applied to him because it violated the ex post facto and due process clauses of the New Hampshire Constitution.

The Court concluded that the legislative intent of the act was regulatory and not punitive. The Court found the lifetime duration of the act to be excessive when considered with all of the other requirements of the act. The presumption in favor of a statute’s constitutionality was overcome because, as the Court found, the punitive effects clearly outweighed the act’s regulatory intent.

Because the court found the act punitive in effect, it next addressed the question of a remedy for the ex post facto violation. The Court explained that the act can be enforced against the petitioner only if he is given an opportunity to be heard at either a court hearing or an administrative hearing subject to judicial review at which he is permitted to demonstrate that he no longer poses a risk sufficient to justify continued registration. The Court left to the Legislature or the department to create by statute or regulation the particulars of the hearing process with the caveat that the hearing must be conducted with reasonable promptness and must meet standards of fundamental fairness.

The petitioner also argued that the act as applied to him violates his procedural due process rights under the New Hampshire Constitution because he was not on notice of the requirements that would be imposed on him before he pleaded guilty and that he was not given an opportunity to demonstrate that he should not be subject to the act’s requirements. Because the petitioner was afforded due process during the proceeding that led to his criminal conviction, the Court held that there is no further process due.

William L Chapman, Orr & Reno, Concord, and Gilles Bissonnette (on the brief), New Hampshire Civil Liberties Union, for the petitioner. Joseph A. Foster, Attorney General and Dianne H. Martin, (on the brief and orally), Attorney, for the State. Michael J. Sheehan (by brief), Concord, as amicus curiae for Citizens for Criminal Justice Reform. Michael J. Iacopino, Iryna N. Dore, and Jenna M. Bergeron (on the brief), Brennan Caron Lenehan & Iacopino, Manchester, as amicus curiae for New Hampshire Association of Criminal Defense Lawyers.


Construction Law

Dean Igram & a. v. Michael C. Drouin & a.
No. 2013-543
Feb. 12, 2015
Affirmed

  • Whether the trial court erred in granting the defendant’s summary judgment motion

The defendant, Drouin Builders Inc. (Drouin Builders) purchased a lot in Laconia in January 2000 and later conveyed the lot to its sole shareholder, defendant Michael Drouin.

The defendants completed the construction of a house on the lot in 2001 where Drouin lived until 2005 when he sold the house to the plaintiffs. The plaintiffs submitted that they did not notice problems with the house before 2008.

The plaintiffs filed a writ against the defendants in 2011 seeking damages for their failure to properly construct the house. The trial court granted the defendants’ motion for summary judgment because the plaintiffs’ claims were barred by the eight-year statute of repose for damages from construction under RSA 508:4-b, I (2010).

On appeal, the plaintiffs argued that the trial court erroneously determined that the statute of repose barred their claims. The Court reviewed the construction of RSA 508:4-b, I (2010) de novo.

Because the plaintiffs did not dispute that their writ was an action to recover damages arising out of alleged deficiencies in the home’s construction or that the home’s construction was substantially completed in 2001, the plaintiff’s claims were barred because they were brought in 2011 – more than eight years after the substantial completion of the home’s construction.

The plaintiff’s also argued that the eight-year statute of reposed should not bar their claims because the defendants were not entitled to the protection of the statute of repose when in addition to constructing it, they once owned and possessed it. The Court disagreed because the plaintiffs did not bring any claims against the defendants for negligence in the repair, maintenance or upkeep of the house that would render the eight-year state of repose inapplicable under RSA 508:4-b, VI. The Court explained its agreement with the majority of courts addressing the issue that when a builder-owner is sued for his construction-related activities, the statute of repose applies.

Finally, the plaintiffs argued that even if the statute of repose applies to their claims, that their claims are timely because the statute did not begin to run until either Drouin sold the home in 2005, or January 2011, when the plaintiffs knew of the damage to the house and the defendants’ conduct proximately caused the damage.

The Court found that the statute of repose was not tolled until the time when Drouin sold the home because the Court concluded that the statute of repose can and does apply to a builder-owner. The Court also disagreed that the statute of repose was tolled until 2011 because the plaintiffs claimed that the defendants fraudulently concealed or misrepresented the home’s defects which would make the statute of repose inapplicable under RSA 508:4-b, V(a). The Court also rejected the plaintiffs’ argument that the statute of repose was tolled until 2011 by the discovery rule.

Friedrich K. Moeckel, Tarbell & Brodich, Concord, for the plaintiffs. Elizabeth L. Hurley and Clara E. Lyons (on the brief), Getman, Schulthess & Steere, Manchester, for the defendants.


Criminal Law

State v. Brian Craig
No. 2013-229 Feb. 12, 2015
Affirmed

  • Whether the trial court erred in denying the defendant’s motion to dismiss witness tampering and stalking charges

After a superior court jury trial, the defendant was convicted of criminal threatening, witness tampering and stalking based on a series of Facebook messages directed at the victim that he posted in April 2012.

The superior court denied the defendant’s motion to dismiss the three charges. The defendant appealed the trial court’s denial of his motion to dismiss the witness tampering and stalking charges for insufficient evidence.

On appeal, the defendant argued that there was insufficient evidence that he stalked the victim because he did not take an action to communicate with the victim as required by the definition of contact under 173-B:1, IV. The defendant also argued that his conduct was insufficient to constitute an action to communicate as require by RSA 173-B:1, IV and that the victim’s affirmative act of searching for and reading his Facebook posts precludes his conduct from constituting conduct to communicate as defined in the law.

In this case, the Court found that the defendant created a message, posted messages addressing the victim on his public Facebook page and directed the victim’s attention to his page thereby creating a message and taking steps to convey it to the victim. The Court found the defendant’s conduct was an action to communicate pursuant to RSA 173-B:1, IV.

The Court also rejected the defendant’s argument that he had not violated the restraining order because the victim voluntarily retrieved the defendant’s messages when searching for his Facebook page. The Court concluded that to deny protection to a victim who viewed publicly available Facebook posts and alerted the police to the threatening messages would frustrate the purpose of the stalking statute.

The defendant also argued that there was insufficient evidence on the witness tampering charge because the State failed to prove that the defendant acted purposely.

The Court looked to the circumstances surrounding the victim’s interactions with the defendant to determine whether a reasonable jury could find that he acted purposely or believed the statements he sought to induce with his Facebook posts to the victim were false. The defendant received a stalking warning letter from law enforcement, a no-trespass notice from the victim’s employer and the restraining order issued against him, combined with his admission in a letter that he knew the victim wasn’t “into [him]”, all of which led the Court to find that a rational jury could find that the statements the defendant told the victim to make were in fact false and the defendant believed they were false.

The Court agreed with the State that the defendant was trying to intimidate the victim into giving false testimony at the final restraining order hearing via his Facebook posts, which included that the victim would have to “lie under an oath of God” and suggested that she could “go to jail for perjury.”

Joseph A. Foster, Attorney General and Natch Greyes (on the brief and orally), fellow, for the State. Christopher M. Johnson, Chief Appellate Defender, Concord, for the defendant.


State v. Josiah Mayo
No. 2013-869
Feb. 20, 2015
Reversed and remanded

  • Whether the trial court erred in its jury instruction on the use of force in defense of another

After a jury trial, the defendant was convicted of first-degree assault with a deadly weapon and reckless second-degree assault. The defendant appealed the convictions, arguing that the trial court erred in failing to instruct the jury that his use of force in defense of his cousin was justified if he reasonably believed that his cousin was not the initial aggressor or provoker, in denying his motion to dismiss the first-degree assault charge on the grounds that his foot could not constitute a deadly weapon under RSA 625:11, V (2007), and in allowing the admission of evidence of the defendant’s prior convictions for impeachment purposes.

The defendant had been at a restaurant and bar with his cousin, Daniel Mayo. The victim and a group of his friends had also been at the same establishment. The defendant testified that he saw his cousin and a group of individuals when he heard racial slurs and believed that his cousin was in danger.

The defendant noticed the victim approaching fairly quickly and assumed that he was going after his cousin, to which he responded by kicking the victim. The witnesses testified that the defendant kicked the victim once in the face rendering him unconscious and causing him to fall, hitting his head on the pavement. At trial, the defendant claimed that he acted in defense of his cousin.

The defendant’s first argument was that the trial court erred by failing to instruct the jury that his use of force in defense of his cousin was justified if he reasonably believed that his cousin was not the initial aggressor or provoker of a physical encounter with the victim and his friends. The defendant argued that the instruction included an incorrect statement of law in that it required the defendant to be factually correct that his cousin was not the initial aggressor or provoker for his use for force to be justified.

The Court explained that a plain reading of RSA 627:4 did not support and was inconsistent with the trial court’s addition of the phrase “or the third person” into the limitation on the defensive use of force.

The Court did not agree with the defendant’s argument that the trial court erred in finding sufficient evidence to prove that his foot met the statutory definition of a deadly weapon because he was wearing ordinary sneakers and delivered a single kick to the victim’s head.

The Court also disagreed with the defendant’s argument that the trial court erred by allowing the State to introduce evidence of his three prior felony convictions for purposes of impeachment.

Joseph A. Foster, Attorney General and Susan P. McGinnis (on the brief and orally), Senior Assistant Attorney General, for the State. Patrick A. Mulvey, Mulvey, Cornell & Mulvey, Portsmouth, for the defendant.


State v. Jason McGill
No. 2013-776
Feb. 12, 2015
Reversed and Remanded

  • Whether the trial court erred in instructing the jury that it had to find the defendant acted “knowingly” to convict him of felony delivery of an unlawful article to a prisoner

The defendant was charged with knowingly delivering to an inmate at the Grafton County House of Corrections an article that was unlawful for the defendant to possess, namely a pill of a prescription drug.

The defendant was an inmate at Grafton County House of Corrections at the time, but this was not alleged in the indictment. The trial court denied the defendant’s motion to dismiss the indictment for failing to alleged that he acted with the intent that the inmate receive or obtain the article as required by RSA 30-B:9.

The state objected to the trial court’s draft jury instruction. The state argued that the mens rea for the charged offenses was not “purposely” but “knowingly,” because the charge alleged delivery of a prohibited article from one inmate to another. The state also requested that the word “intent” be eliminated and that the phrase “with the intent that a prisoner…shall receive or retain said article” be replaced with “knew that a prisoner shall receive or obtain the article.”

The trial court revised the jury instruction over the defendant’s objection and delivered it to the jury. After a jury found the defendant guilty, the defendant appealed his conviction on the sole basis that the trial correct improperly instructed the jury as to the mens rea for the charged offense, arguing that the correct mens rea is “purposely” and not “knowingly.”

The trial court’s decision on the jury instruction was reviewed for an unsustainable exercise of discretion. To determine the correct mens rea for the charged offense, the Court interpreted RSA 30-B:9, a question of law, which the Court reviewed de novo.

Because the defendant was not charged as a prison inmate and because he was charged with delivering an article to a prisoner not receiving an article from a prisoner, the Court found the first part of RSA 30-B:9 to be at issue in the case. The Court agreed with the defendant’s argument that because the first part of RSA 30-B:9 specifies that a defendant must act with the “intent that a prisoner shall receive or obtain” the delivered article and because, “intentionally” and “purposely ” are synonymous terms, the correct mens rea for the charged offense is “purposely.”

The Court held that the trial court’s instruction was reversible error because knowingly is a lesser mental state than purposely, and the defendant was convicted under the lesser standard.

Joseph A. Foster, Attorney General and Lisa Wolford (on the brief), Assistant Attorney General, for the State. Thomas Barnard, Senior Assistant Appellate Defender, Concord, for the defendant.


State v. Stanley R. West II
Feb. 25, 2015
Affirmed

  • Whether the trial court erred in instructing the jury on the use of force in defense of premises and in denying the defendant’s motion to dismiss the resisting arrest or detention charge

After a jury trial, the defendant was convicted on three counts of simple assault and one count of resisting arrest or detention.

After midnight on Dec. 19, 2012, a Deerfield police officer was dispatched to the defendant’s home after receiving a 9-1-1 call and hang-up from the home. The officer responded and rang the doorbell and knocked and announced himself as a police officer. The defendant said he did not call 9-1-1 and refused the officer’s request to come inside the residence. As the defendant was closing the storm door, the officer reached for the handle when the defendant charged at him, knocking him down, landing on top of him and punching him in the face several times. The officer and the defendant exchanged punches and the defendant charged him, sat astride him and struck him.

At the conclusion of the state’s case, the trial court denied the defendant’s motion to dismiss the resisting arrest or detention charge. The defendant argued that there was no evidence that the officer attempted to arrest or detain the defendant.

At the conclusion of the trial, the defendant objected to the trial court’s instruction to the jury on the use of force in defense of premises. On appeal, the defendant claimed that the trial court’s jury instruction requiring that no reasonable lawful alternatives to the use of force existed was an improper interpretation of RSA 627:7. The defendant also argued that the trial court erred in failing to dismiss the resisting arrest or detention charge because there was no evidence that the police officer attempted to arrest or detain the defendant.

The Court found that the defendant’s argument did not consider the instruction in its entirety. The Court also disagreed with the defendant’s argument that the trial court’s instruction allowed the jury to make an after-the-fact determination of whether the defendant’s actions were reasonable.

Although the Court held that the trial court’s instructions were not erroneous, it chose to provide future guidance to trial courts and recommended a specific jury instruction to be used. The Court’s recommended jury instruction was included in the opinion.

The Court also rejected the defendant’s argument that the evidence did not support the conviction for the resisting arrest or detention charges. The Court rested its opinion on the facts that a reasonable jury could have found that the officer was attempting to detain the defendant when the officer seized the defendant by the hair during the fight and after the defendant knocked him to the ground twice and hit him repeatedly.

Justices Lynn and Conboy dissented in part with the portion of the Court’s decision that held that the evidence was sufficient to support the defendant’s conviction for resisting arrest or detention in violation of RSA 642:2.

Joseph A. Foster, Attorney General and Nicolas Cort (on the brief and orally), Assistant Attorney General, for the State. Terence M. O’Rourke, Hoefle, Phoenix, Gormley & Roberts, PA, Portsmouth, for the defendant.


Personal Injury Law

Jillian Lennartz v. Oak Point Associates & a.
No. 2014-160
Feb. 20, 2015
Affirmed

  • Whether the trial court erred in granting summary judgment in favor the defendants on the grounds that the statute of repose in RSA 508:4-b,I barred the plaintiff’s negligence claims against them

In 2012, the plaintiff filed a negligence claim against the defendants for toxic fume exposure injuries suffered in a University of New Hampshire (UNH) research laboratory due to a faulty vent pipe.

In 2003, the defendants Oak Point Associates (Oak Point) and Ambient Temperature Corporation (Ambient) had substantially completed a project that included the design, construction and installation of ventilation system in the lab.

The plaintiff had previously settled her claim against UNH. The trial court granted the defendants’ motions for summary judgment, agreeing that the plaintiff’s action was barred by the statute of repose in RSA 508:4-b, I because the action was filed more than eight years after the ventilation system was substantially completed.

The trial court did not agree with the plaintiff’s argument that, as applied to her, RSA 508:4-b, I, violated her rights to a remedy, equal protection and due process under part I, articles 1, 2, 12 and 14 of the New Hampshire Constitution.

The plaintiff argued that RSA 508:4-b, I violates principles of equal protection because it barred her cause of action without application of the discovery rule contained within the limitations period of RSA 508:4, I.

The Court disagreed, applying an intermediate level of scrutiny to the important substantive right involved – the right to recover for one’s injuries. The Court clarified its intermediate scrutiny test and analyzed the challenge under the clarified standard. The Court held that the purpose of RSA 508:4-b, I, preventing potentially infinite liability in the building industry under the discovery rule, is an important government objective and the statute bears a substantial relationship to this purpose and did not violate principles of equal protection under the New Hampshire Constitution.

John P. Fagan, Bussiere & Bussiere, Manchester, for the plaintiff. Michael E. Coghlan and Kelly Martin Malone (on the brief) Donovan Hatem, Boston, for defendant Oak Point Associates. Heather Silverstein and Debra L. Mayotte (on the brief), Desmarais, Ewing & Johnston, Manchester, for defendant Ambient Temperature Corporation.

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