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Bar News - August 17, 2016

Supreme Court At-a-Glance


June 2016

Criminal Law

The State of New Hampshire v. Dominick Stanin Sr.
No. 2015-0155
July 12, 2016

  • Whether the trial court erred in imposing two previously suspended sentences
  • Whether the trial court erred by denying the defendant’s pretrial motion in limine
  • seeking to limit the state’s cross-examination of him, or alternatively to “sever” the bases for the motion to impose

In April 2014, the defendant was convicted for various crimes and received time served on one sentence and two consecutive three-and-one-half-year to seven-year sentences, both suspended for 10 years on the condition of good behavior. In September 2014, he was tried for loitering and resisting arrest. The resisting arrest charge was placed on file without a finding. In October 2014, the state moved to impose the defendant’s two suspended sentences.

The defendant filed a pretrial motion in limine seeking to “limit the State’s cross-examination of him or, alternatively to sever the bases for the motion to impose” and the Court ruled he could not testify selectively. The defendant did not testify or put on an affirmative case. The trial court found the defendant had violated the condition of good behavior and imposed the two suspended sentences.

The defendant contends the trial court violated the privilege against compelled self-incrimination when it ruled in limine that the state could cross-examine him about all charges, even though he intended to testify only on the June arrest charges. The state argues, relying on Luce v. United States, where this Court has applied to constitutionally based claims, that “the defendant’s decision not to testify at the motion to impose hearing renders unreviewable his argument.”

The facts of this case are a question of first impression for the Court in applying Luce, but numerous federal courts and two state courts have applied Luce in similar circumstances. The Court finds United States v. Turner (5th Cir. 2012) persuasive. The Court held 1) that testifying to one set of charges waives the privilege against compelled self-incrimination as to the other charges; and 2) “without any record of what [the defendant] would have said, [it] cannot review the relevance and appropriateness of a hypothetical cross-examination on a particular subject.”

Alternatively, the Court stated his reliance was misplaced, that the trial court “erred in denying the alternative relief of severance of the June charge from the August charges” because they were not related, and it was in the “interest of justice.” The trial court has broad discretion in managing the proceedings before it, and the Court cannot say that it “unsustainably exercised its discretion.”

Joseph A. Foster, Attorney General, (Sean R. Locke, assistant attorney general, on the brief and orally) for the state. Christopher M. Johnson, chief appellate defender, of Concord (on the brief and orally), for the defendant.

The State of New Hampshire v. Christopher Gay
No. 2015-0174
July 27, 2016

  • Whether the Superior Court erred in denying a motion to suppress evidence from an allegedly unconstitutional search and seizure
  • Whether the trial court erred in excluding evidence of an “alternative perpetrator”
  • Whether the trial court erred in allowing the state’s expert witness to testify regarding certain footwear impressions

The defendant was charged with conspiracy to commit robbery, and alternative counts of first- and second-degree murder and convicted. Prior to trial, a number of rulings came down unfavorable to the defendant. The defendant appealed these rulings.

The defendant appealed the denial of his motion to suppress evidence and the Court on appeal reviewed de novo. First, the defendant argued the evidence obtained by “the entry of an officer onto his property with a trained police dog” constituted an unlawful warrantless search.

The Court found probable cause did not need to be addressed and conducted a “totality review” to find there were exigent circumstances that justified entry onto the defendant’s property. The police were conducting a homicide investigation and the dispersal of the scent trail for tracking purposes in time to obtain a warrant required emergency entry onto the defendant’s property. The police carried out the search by the dog in a minimally intrusive manner.

Although it was foreseeable that the dog tracking could end at the defendant’s home, when the Court examined the “totality of the circumstances,” the record does not show that the officer’s behavior was unreasonable nor was there sufficient opportunity to obtain a warrant before conducting the canine track. Therefore, the Court agrees with the trial court that “the warrantless entry onto the defendant’s property was justified by the exigencies of the situation.”

Second, the defendant argues, on appeal of the denial of his motion to suppress, that he was unlawfully seized when he was approached by two police officers in the driveway of his residence. The trial court found that a “‘seizure occurred’ when the officers spoke to the defendant in his driveway, but nonetheless found that sufficient reasonable suspicion exited for an ‘investigatory stop.’”

The Court found that the defendant was not subject to the functional equivalent of arrest because in view of all of the circumstances surrounding the investigatory stop, he was free to leave. He agreed to meet with the officers and was not confined or physically restrained during questioning. He held his beer can, did not look nervous according to police, and went inside to get his girlfriend and later to turn on music.

The Court found that because the seizure did not escalate to the equivalent of an arrest they were not going to address the defendant’s “contention the officers lacked probable cause to subject the defendant to the functional equivalent of arrest.”

Next, the defendant appealed the trial court’s decision to “exclude evidence proffered by the defendant that a third person was guilty of the crimes.” The defendant argues, and the Court disagrees that the trial court failed to address a clear nexus between the purpose for which he seeks to introduce evidence and the person’s other bad acts and there was no error in the trial court’s analysis and conclusion as to the Rule 404(b) issue.

The Court points out that the defendant could have moved for reconsideration if he believed the court had misunderstood his argument and did not do so. Although the Court did not allow the defendant to introduce substantive evidence of the third party’s presence at the scene, his right to produce witnesses was not infringed, and the Court found this “did not violate his right to produce all favorable proofs.”

Finally, the defendant appealed the trial court’s decision to allow the state’s expert witness to “testify that certain footwear impressions found at the scene could have been made by a particular type of footwear.”

The defendant argued, and the trial court disagreed, that the technique employed was unreliable and the opinion would not be helpful because the expert was unable to positively identify the footwear as the source of any impression. The expert witness brought general knowledge of footwear comparisons and an ability to examine the shoeprints for similar characteristics. Therefore, the Court concluded that including the expert witness’s testimony was “not untenable or unreasonable to the prejudice of the defendant’s case and the trial court did not unsustainably exercise its discretion in admitting it.”

Joseph A. Foster, attorney general (Sean P. Gill, attorney on the brief and orally) for the state. Kelly E. Dowd, of Law Offices of Kelly E. Dowd, of Keene (on the brief and orally) for the defendant.

Probate Law

Petition of Estate of Thea Braiterman
July 12, 2016
Petition Denied

  • Whether the Administrative Appeals Unit (AAU) erred in upholding the determination that the trust was includable as an asset pursuant to the current Medicaid law

The petitioner, the Estate of Thea Braiterman, appealed a final decision by the AAU of the New Hampshire Department of Health and Human Services (DHHS) that determined that Braiterman was ineligible for Medicaid Old Age Assistance (Medicaid-OAA) because her assets, which included an irrevocable trust, exceeded the eligibility threshold. The estate petitioned for and was denied a writ of certiorari. The Court instead reviewed de novo because it involved an interpretation of a statute, which is a question of law (Dube v. NH Dep’t of Health & Human Services, 2014).

The Court began with a general overview of Medicaid, highlighting that to be eligible for Medicaid, it must be determined whether the applicant was categorically needy or medically needy (Appeal of Huff, 2006). Every state must provide assistance to the categorically needy. Medical assistance to the medically needed is not required, but if offered, it is subject to federal and regulatory restrictions in “determining to whom medical assistance should be extended” (Lewis, 2012). Under federal law, only “available” assets are used to determine eligibility for Medicaid benefits and if the applicant’s assets exceed a “statutory ceiling, then coverage is denied” (Ramey, 1st Cir., 2001).

Due to changes in the law to address the use of trusts to “reduce (on paper) the amount of assets owned” for Medicaid eligibility, the Court laid out the law prior to 1986 and the current law, before applying the current law to the Braiterman trust. The Court turned to the State Medicaid Manual, giving it “respectful consideration” (SD ex. Rel. Dickson v. Hood, 5th Cir. 2004), even though the pertinent sections were effective after the trust was created, because it contains the official interpretation of the law that applies to the trust.

This cases turns on “whether, given the trust provisions and the facts of the case, there are ‘any circumstances’ under which ‘payment’ from the trust could have been ‘made to or for the benefit of the applicant’ taking into account ‘use restrictions, exculpatory clauses or limits on trustee discretion that may be included in the Trust.’” (State Medicaid Manual). Examining the provisions, the Court found 1) that the “applicant as donor retained at least some powers over the trust corpus.” (Doherty v. Director of Office of Medicaid, Mass. App. Ct. 2009); 2) that the applicant as trustee had even more authority to adjust between income and principal, and the authority without limitation to terminate the trust by distributing the income and principal; and 3) there was nothing in the trust agreement to preclude her requiring her children, as a condition of receipt of the trust, to use the funds for her benefit.

Although the applicant was not a trust beneficiary, the Court held that that the AAU “lawfully and reasonably concluded that there were circumstances under which payment from the Trust could be made to benefit the applicant,” so the trust is countable as an asset under current law.

The Court does not find the petitioner’s use of Heyn and Appeal of Lowy as authority compelling. The petitioner with both cases asks the Court to take the applicant’s intent to exclude the trust as an asset into account, which the Court cannot do. Here, unlike in Heyn, the applicant was once a trustee, and there is a clause showing the applicant’s general intent that the trust disbursements be used for her benefit. Therefore, the Court does not find the AAU’s decision to include the trust as a “countable” asset to be infirm as a matter of law.

David J. Braiterman, of Braiterman Law Offices, of Concord (on brief and orally) for the petitioner. Joseph A. Foster, Attorney General (Megan A. Yaple, attorney on the brief and orally), for the Department of Health and Human Services.

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