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Bar News - December 21, 2016

Supreme Court At-a-Glance


November 2016


State v. Milton
No. 2015-0289 Nov. 17, 2016

  • Whether the trial court used an unsustainable exercise of discretion when it (1) admitted expert testimony regarding a prison gang, and (2) admitted evidence of the pre-trial assault on an inmate witness by another inmate with a tattoo of the same prison gang

The defendant, Thomas Milton, appealed his conviction by jury on one count of second-degree murder, one count of assault by a prisoner, and one count of falsifying physical evidence.

The NH Supreme Court identified the following facts as relevant: The defendant, a member of a prison gang known as the Brotherhood of White Warriors (BOWW), was ordered by a high-ranking member of the gang to assault the victim because the victim was believed to be a “rat;” specifically, the high-ranking member believed that the victim provided incriminating information about him to authorities. The defendant admitted to striking the victim once in the head, but denied striking him repeatedly thereafter. The victim died after being repeatedly struck in the head and face.

The trial court allowed the state to present an expert to testify to BOWW’s organizational structure and culture to establish a motive. The expert testified that BOWW’s members, all white males, formed the gang to protect themselves from other gangs at the prison. He testified that BOWW maintains a strict ranking structure, a common white supremacy ideology, and certain rules, including following orders under the chain of command and not “ratting.” The expert testified that BOWW’s motto is “God forgives and BOWW don’t.” Additionally, the trial court allowed evidence of the pretrial assault on an inmate witness by another inmate with a BOWW tattoo.

On appeal, the defendant argued that the trial court erred by failing to properly limit the introduction of evidence relating to BOWW. The defendant did not challenge the relevancy of either the expert testimony or the evidence of pretrial assault on the witness by another inmate with a BOWW tattoo. However, on appeal, he argued that the danger of unfair prejudice should have precluded admission of both pieces of evidence.

The defendant argued that the expert testimony was only minimally probative regarding his motive, opportunity, and intent. Specifically, the defendant contended that there was little need for the state to prove motive, because the defendant admitted that he committed the assault at the direction of BOWW. However, the Court observed that the defendant did not concede the issue of intent with respect to any of the three charges, and therefore, his motive and intent remained at issue.

Additionally, the Court found that the expert testimony was probative on the issues of witness credibility. The Court rejected the defendant’s argument that the danger of unfair prejudice should have precluded the admission of the expert testimony and afforded deference to the trial court.

The defendant did not challenge the relevancy of the testimony relating to the assault by the inmate with the BOWW tattoo, but argued that the probative value was outweighed by unfair prejudice, because, the jury could infer that he was involved with the second attack. The Court rejected this argument. The Court reasoned that the state elicited testimony that the attack did not involve the testimony and that the defendant testified that he had severed his connection with BOWW in the year leading up to trial.

Joseph A. Foster, attorney general, (John J. McCormack, assistant attorney general, on the brief) for the state. Richard Guerriero, Lothstein Guerriero, PLLC, of Keene, on the brief and orally, for the defendant.

Family Law

No. 2016-0160 Nov. 29, 2016
Reversed and Remanded

  • Whether the terms “convicted” and “conviction” in the context of petitions to terminate parental rights mean convicted in the trial court after a finding of guilt or after the appeals process has concluded.

The respondent appealed an order of the NH Circuit Court that terminated her parental rights over her minor child.

The NH Supreme Court explained the relevant facts as follows. In October 2013, the respondent mother brought her child to a doctor with a medical concern about the child’s eyes. She expressed concern that the child’s father may be hurting the child. A skeletal survey was conducted and multiple fractures of varying ages consistent with non-accidental trauma were revealed.

The New Hampshire Division of Children, Youth and Families (DCYF) was informed and immediately brought an ex parte petition to remove the child from the parents’ care. DCYF based its petition on the injuries the child sustained as evidence of imminent danger that the child faced and evidence of the parents’ inability to follow court orders, notably, an order which prohibited the father from having unsupervised contact with the child and the mother’s other two children.

DCYF filed petitions based on the child’s injuries and alleged abuse by the father and neglect by the mother under RSA chapter 169-C, the Child Protection Act. DCYF later amended its petition to include an incident involving the child in which the father had the child against his body and the mother grabbed the child’s legs and pulled and twisted to pull the child away. The doctor opined that it was possible that some of the child’s injuries could be consistent with the description of that incident.

The mother and father were arrested and charged with second-degree assault. The court awarded legal custody to DCYF. Over the next year and a half, DCYF remained involved, and the child spent time with her mother and in foster care.

In January 2015, after the child had been living with the mother for four months, the mother was convicted by a jury of second-degree assault based on the October 2013 incident and was sentenced to 10-20 years, three years suspended. The court ordered that DCYF have legal supervision of the child and that physical custody be with the child’s maternal grandparents.

In May 2015, the Circuit Court held a permanency hearing based on the December 2013 findings. The Circuit Court found that the mother had made progress, but that the child would be endangered upon returning home, because the mother was convicted of second-degree assault, which had resulted in jury to the child. Based on this, DCYF petitioned the court under RSA chapter 170-C, the Termination of Parental Rights statute.

In February 2016, the court terminated the mother’s parenting rights stating that the statutory grounds, including conviction, had been established beyond a reasonable doubt. In March 2016, the NH Supreme Court reversed and remanded the mother’s criminal conviction.

In this subsequent appeal, the NH Supreme Court framed the question presented as whether the statutory terms “convicted” and “conviction” in the context of petitions to terminate parental rights mean “convicted” in the trial court after a finding of guilt or after the appeals process has concluded.

The Court observed that this was an issue of first impression in New Hampshire. In its analysis, the Court noted constitutional concerns and the severity and irreversibility of the termination of a parent’s legal bond. The Court concluded that in New Hampshire, when a termination petition is based solely on the parent’s conviction of a crime specified in the termination statute, or incarceration resulting therefrom, and the parent timely exercises her right to a direct appeal of that conviction, and raises an issue of innocence, the parent-child relationship may not be terminated until the resolution of that appeal.

Joseph A. Foster, attorney general, (Elizabeth A. Lahey, assistant attorney general, on the brief and orally) for the Petitioner. Jacqueline C. Fitzgerald-Boyd, Fitzgerald-Boyd Law PLLC, of Plaistow, on the brief and orally, for the Respondent.

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