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Bar News - January 20, 2016

Supreme Court At-a-Glance


December 2015

Criminal Law

State of New Hampshire v. Christopher M. Palermo
No. 2013-0076
Dec. 18, 2015

  • Whether the trial court’s ruling on the authentication of Facebook messages was proper
  • Whether the trial court erred by admitting evidence of the defendant’s prior incarceration, parole status, and lawsuit against the state prison
  • Whether the trial court should have allowed the state to introduce a photograph of the defendant

The defendant was convicted of aggravated felonious sexual assault, criminal trespass, and two counts of simple assault. At the time of the incident, he had been an invited guest in the victim’s home. After he left, the victim’s son found that defendant’s Facebook account was still open. The defendant’s postings included a question about how he could “crack” the car owned by the victim, and that he almost did the landlord’s wife, but that her husband had walked in on them, and that the victim was playing hard to get.

Before trial, the defense sought to exclude Facebook messages unless the state could properly authenticate them. The state proffered evidence of authentication, and following a hearing, the messages were admitted pursuant to NH Rule of Evidence 901.

The defendant argued that the ruling was erroneous because (1) someone else could have sent the messages while his Facebook account was still open (2) defendant presented evidence that the victim and her family had the opportunity to alter the Facebook messages and (3) defendant presented evidence that Facebook messages sent by the family were altered. He contends that the proffer offered by the state was inconsistent. The NH Supreme Court disagreed.

The issue of foundational evidence for the admission of Facebook messages was a new issue before the Court. It concluded that the rules already established were sufficient to address the issues in the instant case. The burden of proof to connect an evidentiary exhibit to a defendant under Rule 901 is not particularly high. The necessary proof may be made by circumstantial evidence. The proponent need not rule out all possibilities inconsistent with authenticity, or prove beyond all doubt that the evidence is what it purports to be.

In the state’s proffer, the Court noted, the victim’s son would testify that he took a photo of the defendant, he showed the defendant how to use Facebook, and that he created an account for the defendant using the photograph. In addition, the state would present evidence that the defendant was using the device at the time the messages were sent, that the messages were sent from a specific device, and that the defendant’s release from prison coincided with the creation of the account. Moreover, the state also asserted that it would present evidence that the messages contained information that only a few people would know, and that the information pertained to the actions of the defendant.

The Court was not persuaded that the state has to present testimony from the recipients of Facebook messages. The defendant pointed to specific language in Ruggiero requiring the recipients of emails to testify to their authentication. The Court clarified that the recipient of an electronic message does not have to testify to the authenticity of electronic messages. The Ruggerio case involved fraudulent emails and, thus, it was important to the recipients to testify. The Court noted that the defendant’s assertion that someone could have posed as him to send the messages did not preclude authentication based on the state’s evidence. The state was only required to provide sufficient evidence that the messages could have been authored by the defendant.

The defendant asserted that the victim did not print the relevant messages directly from Facebook. Rather, they were pasted into a word processing document. Thus, the victim could have altered the messages. The Court noted that although the trial court did not make a finding as to the “Facebook experiment,” the Court must assume that the trial court made subsidiary findings to support its general ruling.

The Court held that the trial court made a suitable exercise of its discretion when it found that the Facebook messages were authenticated.

Before trial, the defendant sought to exclude evidence of bad acts, arrests, and convictions pursuant to NH Rules of Evidence 403 and 404(b). The state objected on the grounds that such evidence would be used to establish the context of the victim’s relationship with the defendant and why she let him parole to her home. The state maintained that any possible prejudice could be contained by a curable instruction.

The defendant argued on appeal that the evidence was prejudicial because it conveyed his criminal history to the jury. Although the extent of the evidence admitted in this case alarmed the Court, it cannot conclude that the admittance of the evidence was an unsustainable exercise of discretion. The conduct underlying the defendant’s previous incarceration was never revealed at trial. Further, the trial court issued two limiting instructions.

At trial, the state sought to introduce a photograph of the defendant. The state asserted that the photograph was necessary to explain why the victim did not call the police right away. The state wanted to demonstrate that the victim was afraid of the defendant and that he was “a big scary guy.”

The trial court ruled that the photograph was inadmissible because the victim never testified that the defendant’s style scared her. However, the court did allow the state to introduce a redacted photo of the defendant. On appeal, the defendant argued that the redacted photo had no probative value and was unfairly prejudicial. The state countered that the defendant did not object to the admission of the redacted photograph and, thus, it was not preserved for the Court’s review. And, that if the admission of the redacted photo was error, the error was harmless beyond a reasonable doubt.

The Court assumes, without deciding, that the issue was preserved by the defendant for its review. The Court agrees with the state that any error made in the introduction of the photograph was harmless. The Court cited the overwhelming nature of the alternative evidence of the defendant’s guilt and the cumulative inconsequence of the redacted photograph in concluding that the redacted photograph did not affect the verdict.

Joseph A. Foster, attorney general (Nicholas A. Cort, assistant attorney general on the brief and orally for the state). David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant.

State of New Hampshire v. Christopher Michael Sanborn
No. 2013-0082
Dec. 18, 2015

  • Whether the trial court erred when it deviated from the statutorily prescribed process of selecting jurors
  • Whether there was sufficient evidence to prove the defendant caused the victim’s death because supervening accidents defeated the element of causation
  • Whether the trial court undermined the state’s bill of particulars by failing to require the state to prove each accusation beyond a reasonable doubt and by failing to require that the jury’s verdict be unanimous
  • Whether the defendant’s state and federal protections against double jeopardy were violated when he was sentenced on the more serious manslaughter convictions

Defendant Christopher Sanborn was convicted on two counts each of manslaughter and negligent homicide resulting from an explosion at his gunpowder factory. The court sentenced him to consecutive terms on the manslaughter convictions only.

The trial court informed counsel before trial that the court would select the alternate jurors at the conclusion of the trial. The defense requested an additional peremptory challenge to keep the proportion in keeping with the number of jurors being selected. The trial court denied the request, stating that the defense was entitled to three peremptory challenges.

The defendant contends that the action of the trial court hindered his ability to use his peremptory challenges. The NH Supreme Court analyzed the statute (RSA 500-A:13) and found that nothing in the plain language required courts to distinguish alternate jurors from the regular jurors before the jury is sworn in.

Counsel for the defense requested attorney-directed voir dire because of the case’s complexity and the publicity the case has received. The trial court denied the request and stated that the court’s questions were more than adequate to discover potential bias. When counsel persisted, the court stated that the general voir dire and the specific questioning that counsel would give potential jurors if they had concerns about individuals would be sufficient to impanel a fair and impartial jury. The court stated that it would consider allowing counsel to ask questions of potential jurors who did not answer their questionnaires completely.

The NH Supreme Court disagreed with the defendant’s contention that attorney-directed voir dire would be more effective at ferreting out bias and impaneling an impartial jury, noting that the trial court afforded counsel for both sides had ample opportunities to question potential jurors. The Court concluded that the trial court sustainably exercised its broad discretion over the voir dire process.

The defendant next argued that, for the state to prove he caused the victim’s deaths, the state must also prove that he caused the explosion. The Court disagreed.

The defendant also argued that there was insufficient evidence to sustain his conviction. He contended that no rational juror could have found that supervening accidents did not break the chain of causation between his conduct and the death of the victims. The state argued that the evidence demonstrated, beyond a reasonable doubt, that the victims would not have died if they had been remotely operating equipment at the gunpowder factory. The Court found that the state presented ample evidence of the defendant’s awareness of the risk to his employees. Thus, a rational jury could conclude that, no matter the cause of the explosion, the defendant’s conduct was the “but for” and the proximate cause of the deaths.

Sanborn argued that he was unfairly prejudiced by the trial court failing to require the state to prove every allegation set forth in its bill of particulars. He alleged that he was hindered in his preparation of an adequate defense and did not get adequate protection against double jeopardy.

The trial court decided that the bill should be read to the jury after the indictment. It did not determine at that time whether the state would be required to prove each indictment beyond a reasonable doubt. The state’s proposed jury instructions regarding the bill of particulars reflected the state’s position that it did not need to prove each indictment beyond a reasonable doubt.

The Court found that none of the allegations in the bill was an enumerated element of manslaughter or negligent homicide. The allegations enumerated in the bill merely provided details as to the manner in which the crimes alleged were committed by the defendant.

The defendant also argued that he was deprived of a 12-member jury when the trial court did not require a unanimous verdict as to the factual predicates. The Court agreed with the state in that the jury only needed to be unanimous in its finding that the defendant caused the victim’s deaths and held that the trial court made a sustainable exercise of discretion when it did not tell the jury that the jury’s verdict had to be unanimous as to the factual predicates of each offense.

The Court found that no double jeopardy violation was committed when the defendant was sentenced on the more serious manslaughter convictions rather than the less serious negligent homicide convictions. The Court further concluded that the verdicts against Sanborn were not unalterably ambiguous and did not violate the double jeopardy clauses of the state or federal constitution.

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general on the brief and orally for the state). Sisti Law Offices, of Chichester, Mark L. Sisti and Jared Bedrick on the brief, and Sisti orally for the defendant.

Domestic Relations

In the Matter of Terrie Harman and Thomas McCaron
No. 2015-0273
Dec. 2, 2015

  • Whether the trial court had authority to vacate a divorce decree upon reconciliation of the parties

In July 2014, the parties were granted an uncontested decree of divorce. In March 2015, the parties jointly filed a “petition to change court order,” which asked the trial court to vacate the divorce decree. The trial court denied the petition, citing a lack of authority. Harman appealed and McCaron did not file an opposing brief. The Court appointed an amicus curiae to defend the judgment.

Harman argued that when a request to vacate a divorce is agreed to by both parties, there is no need to require a showing that the divorce decree was invalid. It would be inequitable to deny the parties the opportunity to restore their marriage.

The amicus argued that the trial courts demurral was proper because there is no statue that allows courts to vacate divorce decrees once they become final. The amicus pointed out that no grounds of fraud, mistake, or misfortune were alleged by the parties and, therefore, the decree cannot be set aside. The amicus responded to the equitable argument by asserting that there is no basis for determining whether a prejudice occurred. Further, there is a remedy at law. Nothing prevents the parties from re-marrying.

The Court cited prior cases and opinions which found that the ability to grant divorces is purely statutory (Veino, 1951, Walker, 1979, Daine, 2008). It pointed out that Harman does not cite any statutory authority to support her argument that courts have authority to vacate final divorce decrees. Although Harman may be correct in saying that many jurisdictions allow a divorce decree to be vacated upon agreement of the parties, in most cases the authority comes from specific statutory authorization. Indeed, courts in other jurisdictions have found that they are not empowered to vacate divorces without statutory authority.

The Court held that in the absence of a statutory authority allowing the trial court to vacate a final divorce decree, the court did not err in its concluding that it had no authority.

Terrie Harman, self-represented party, by brief. Thomas McCarron, self-represented party, filed no brief. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief), as amicus curiae.

In the Matter of Lynn Mortimer and Theodore Mortner
No. 2015-0115
Dec. 18, 2015

  • Whether Estate’s appeal should be dismissed because it lacks standing
  • Whether the NH Circuit Court erred by abating the divorce action

The temporary administrator of Theodore Mortner’s Estate (Estate) appealed an order of the Circuit Court. Lynn Mortner (wife) cross-appealed the order.

Theodore Mortner (husband) and his wife were married in 1987. Wife filed a petition to divorce in 2013, when she was 70 years old and husband was 90 years old.

In June 2014, the parties signed a Memorandum of Understanding (MOU) that purported to settle the divorce action. The MOU required wife to pay husband $250,000 within 30 days of the divorce decree. Further, wife’s entire interest in a limited partnership was divided, with the wife receiving 55 percent and the husband receiving 45 percent.

The MOU could not go to judgment until the distribution of wife’s limited partnership interest was executed. The MOU was filed with the court in September with a cover letter noting that the court could not issue a decree until it received a go-ahead from counsel.

On Oct. 29, counsel for husband delivered a letter stating that the divorce decree could now issue. On Oct. 30, the MOU was approved by the court and incorporated into a divorce decree. On Oct. 29, without the court’s knowledge, the parties entered into an amendment to their final divorce decree and MOU. The amendment provided that, should it be impossible to divide the wife’s partnership interest, husband, estate, and his heirs shall receive 45 percent of every payment, distribution, or dividend paid by the limited partnership, as a result of wife’s status as limited partner. Also, unbeknownst to the court, husband died on Oct. 28 or 29.

Wife filed a motion to reconsider the issuance of the divorce decree on the grounds that husband died before the decree was issued. Husband’s counsel objected and requested that the court enter a decree nunc pro tunc. The court granted wife’s motion and denied husband’s motion on the grounds that the husband’s death had abated the divorce. The court vacated the divorce decree.

The Court found that the estate suffered an injury when the divorce was abated by the trial court. The estate’s injury amounted to the removal of $250,000 and a 45 percent stock interest from its assets. Thus, the estate has been aggrieved by the abatement and has standing to prosecute the appeal.

The general rule in New Hampshire is that a divorce action abates upon the death of either party. The Court noted exceptions to the rule where one party has died after a judgment for divorce had been rendered but not necessarily entered. The Court concluded that, while a hearing is no longer required before a divorce decree can be entered, agreements between the parties must be reviewed by the court to determine if they are fair. In the instant case, the MOU had not been reviewed by the trial court before husband’s death. The Court held that the husband’s death abated the divorce action.

Couglin, Rainboth, Murphy, & Lown of Portsmouth (Timothy C. Coughlin on the brief and orally for the petitioner). Bianco Professional Association of Concord (Jason B. Dennis on the brief and orally for Judith Mortimer, temporary administrator of the estate of the respondent, Theodore Mortner.

Municipal Law

Town of Londonderry v. Mesiti Development Inc. &a
No. 2014-0291
Dec. 4, 2015
Affirmed and Remanded

  • Whether the trial court erred in dismissing a negligence claim filed by the respondent.

The Town of Londonderry filed a bill of interpleader to determine whether surplus impact fees should be refunded to the developers who paid the fees, or to the current owners of the properties for which the fees were paid.

Londonderry’s ordinance specified that current property owners were entitled to the impact fee refunds. Londonderry wanted confirmation that its impact fee ordinance is consistent with the governing statute. Several parties moved to add counterclaims alleging violations of RSA 674:21 V, negligence, violation of fiduciary duty, violation of the public trust, and violation of the municipal budget law. Londonderry filed a motion to dismiss the counterclaims, which was granted by the trial court. This appeal followed. Respondents contend that the court erred in dismissing their negligence claims.

The Court addressed Londonderry’s contention that respondents lacked standing to bring their counterclaims. The Court found, however, the respondent’s counterclaims are not limited to a reimbursement of impact fees. The respondents alleged that impact fees were improperly assessed and improperly spent. A fiduciary duty arises, according to the respondents, because RSA 674:21 V renders the town an escrow agent for impact funds.

The Court held that Londonderry is not required to hold the impact fees for the benefit of the respondents. The statute’s mandate may be satisfied by the return of unspent fees to the current properties. The Court ruled that RSA 674:21 V does not designate the town as an escrow agent and does not impose fiduciary duties owed to the respondents.

The Court did not consider whether Londonderry acted negligently when it established impact fee amounts, because the respondents did not address whether the legislature intended a violation of RSA 674:21 V to give rise to civil liability.

The respondents further alleged that this negligence breached a standard of care imposed by RSA 674:21 V. The trial court characterized the claim as an implicit action for negligence per se but did not address whether the respondents demonstrated the existence of a common law right of action.

The trial court concluded that the respondents failed to state a cause of action for negligence per se and that their alleged harm is not the type of harm that the statute intended to protect. The Court reached the same conclusion, but on different grounds.

It ruled that respondents have failed to identify a common law duty underlying their claims. A plaintiff cannot maintain a negligence action without the existence of a common law duty. The Court did not address the trial court’s ruling on whether the respondents are members of a class that the legislature intended to protect or its ruling on whether the harm alleged was of a type that the legislature intended to protect.

Respondents devoted a portion of their brief to a discussion of an amendment to RSA 674:21 V dealing with the use of impact fees on state highways. The Court inferred that the respondents would like the Court to strike down the amendment on constitutional grounds. The Court declined to consider it, as the argument was not raised in the respondent’s brief and is not found within the respondent’s notice of appeal.

Ramsdell Law Firm, of Concord (Michael D. Ramsdell and Patrice M. Scott on the brief, and Ramsdell orally), for the petitioner. Baroff Professional Association, of Bedford (Patricia M. Panciocco on the brief and orally), for the respondents.


John Farrelly v. City of Concord & a
No. 2014-0480
Dec. 23, 2015

  • Whether the trial court erred by granting summary judgment to two police officers employed by the City of Concord.

Plaintiff John Farrelly brought claims against the City of Concord, police officer Picher, and police Lt. Carroll. Farrelly’s claims were for malicious prosecution, false imprisonment, violations of his right of free speech and against unreasonable searches and seizures, and negligence.

Farrelly appealed the lower court’s grant of summary judgment, dismissing his claims for malicious prosecution and false imprisonment. He asserted that the trial court should not have found that the officers were immune, because the record contains evidence that they acted in bad faith. He contended that the trial court should have relied on both a subjective and an objective standard, rather than on the police officer’s subjective belief. Farrelly also argued that summary judgment was granted in error because there exists a genuine issue of material fact as to whether the defendant acted wantonly or recklessly.

The Court found that Farrelly’s argument on appeal was adequately preserved, finding that the defendants should have understood that Farrelly was arguing that objective reasonableness was a requirement for immunity to apply.

Farrelly argued that the Court’s decision in Everitt (2007), which was followed by the trial court, conflicts with the more recent Huckins decision. The Everitt Court ruled that immunity doctrines are designed to protect particular government entities and are rooted in the common law.

Everitt held that police officers are immune from personal liability for decisions or acts that are (1) made within the scope of their official duties during their employment, (2) discretionary rather than ministerial, (3) not made recklessly or wantonly.

The Court agreed with Farrelly that official immunity must be subject to the constitutional requirements as those that were articulated in Huckins. The defendants in this case were entitled to official immunity only if they reasonably believed that their actions were lawful. Farrelly argues that, for the court to determine the officer’’ reasonable belief, the court should have examined (1) whether the officers actually held that belief and (2) whether that belief was objectively reasonable.

The Court has never explained what “reasonable belief” means in the context of immunity. The Court looked at cases featuring “reasonable belief” in other areas of law and found that the term encompasses the dual standard that Farrelly advocates. For immunity purposes, however, the term “reasonably” must connote more than negligence. The lack of reasonable belief must mean that a public official acted recklessly or wantonly. The lack of probable cause is an element of a claim for malicious prosecution. Probable cause is a defense to a claim of false imprisonment. Negligence, which equates to a lack of reasonableness required for probable cause, remains a critical part of the analysis for the plaintiff’s claims. The Court noted that the proper standard for objective reasonableness considers the perspective of the actor in question.

Farrelly also argued that the trial court erred when it did not apply an objective standard to determine whether the defendants were entitled to immunity. The trial court found that, although the conduct of the officers might be negligent, the officers were not acting wantonly or recklessly. The Court found that the record demonstrates, as a matter of law, that the officers’ actions did not rise to the level of wanton or reckless conduct sufficient to strip them of the objective component of official immunity.

The Court was not persuaded by Farrelly’s argument that there was a genuine issue of material fact as to the officer’s subjective belief in the lawfulness of their actions.

The Court held that policy considerations weigh in favor of granting immunity to these officials, especially in a situation of domestic violence.

Backus, Meyer & Branch, of Manchester (Jon Meyer on the brief and orally), for the plaintiff. Gallagher, Callahan & Gartrell, of Concord (Samantha D. Elliott on the brief and orally), for the defendants. ACLU of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Nixon, Vogelman, Barry, Slawsky & Simoneau, of Manchester (Lawrence A. Vogelman on the brief), for American Civil Liberties Union of New Hampshire and Gay & Lesbian Advocates & Defenders, as amicus curiae.

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