Bar News - February 15, 2017
Supreme Court At-a-Glance
By: Michael Listner
Petition of Kelly Hagenbuch
Jan. 13, 2017
- Whether a distribution from made by a trustee from an irrevocable (special needs) trust to third parties is considered income for purposes of determining food stamp benefits under federal law
Practitioner’s Alert: This is a case of first impression before the Court. Practitioners in this area of law should take the time to review the opinion and in particular Justice Lynn’s concurring opinion.
This appeal was made by writ of certiorari filed by the petitioner per Supreme Court Rule 10(1), which appealed the decision of the New Hampshire Department of Health and Human Services’ determination to deny food stamps. Petitioner asserts the presiding officer’s decision to deny her food stamps was in error because distributions from the trust distributions should have been excluded as income when determining her eligibility for food stamp benefits.
Because distribution of food stamp benefits by the states is governed by federal law, the Court looked to federal regulations, specifically 7 CFR Section 273.8(e)(8) (2016), which sets forth the requirements for an irrevocable trust to be considered an excludable resource. Critically, the Court noted the parties stipulated the trust in question, a special needs trust, was an excludable resource per Section 273.8, which the presiding officer accepted, i.e. there was no dispute as to whether the trust was an excludable resource.
The Court examined 7 CFR Section 273.9(c)(1)(vii) and noted funds are “owed to the household” when the household has a legal right to receive the funds.” Further, the Court determined “a distribution by a trustee to a third party is an excluded vendor payment if the household does not have a legal right to receive the funds that are used to pay the third party.”
Examining the trust in question, the Court noted that the petitioner “did not have the legal right to receive the funds used to pay the third parties for trust expenses and legal fees,” nor did the trustee exercise his discretion in a way that would give the petitioner the legal right to receive the distributions from the trust. Thus, the Court determined the trust did not “owe” distributions to the petitioner, which means they are excluded as income for purposes of food stamps.
NH Supreme Court Justice Robert Lynn wrote a substantial concurring opinion for the Court and took note of the fact that both the petitioner and presiding officer stipulated the trust was an excludable resource. Lynn cautioned that the Court’s opinion may not be controlling during the petitioner’s next eligibility review, should that stipulation not be agreed to by both parties.
Barbell & Brodich Professional Association, of Concord (Friedrich K. Moeckel on the brief), for the petitioner.
State of New Hampshire v. McInnis
Jan. 13, 2017
- Whether the trial court erred when it denied defendant’s motion to suppress because he was seized without reasonable suspicion when the officer requested the warrant check; and
- Whether the bench warrant, upon which the defendant was arrested, was improperly issued, thus depriving the arresting officer of probable cause.
The defendant argued a “reasonable person” would not feel free to leave from an investigatory stop when the law enforcement officer called in for a warrant check and, thus, he contends he was seized without reasonable suspicion.
The NH Supreme Court first applied the two-prong test outlined in State v. Joyce (2009), and determined the officer approached the defendant as part of an investigation into a crime, but did not take any actions or give any instructions to the effect that would imply the defendant was not free to leave. Considering the totality of the circumstances, the Court determined “a reasonable person in the defendant’s position would have believed that he or she was free to leave when the officer requested the warrant check and, therefore, the defendant was not seized when the officer did so.”
Defendant then invoked Part I, Article 19 of the New Hampshire Constitution when challenging the validity of the bench warrant. Specifically, the defendant asserts the bench warrant for unpaid fines could not be issued because he was incarcerated when it was issued and had a reasonable excuse, which means the warrant was issued due to clerical error.
The defendant also asserted the warrant issued by the magistrate violated the prohibition against unreasonable seizures, because the Circuit Court knew he was incarcerated and failed to issue a transport order for his appearance. The Court rejected this argument, noting that the defendant never raised the validity of the warrant with the trial court, nor did he raise a due process argument, which deprived the trial court from considering those arguments. Because of this, the defendant failed to preserve these issues for appeal, which moved the Court to disregard them and decide the bench warrant was valid.
Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State; Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant
State of New Hampshire v. Robert Grimpson Smith
Jan. 31, 2017
- Whether the trial court erred in denying the defendant’s motion to suppress evidence retrieved from the common area of his house and, specifically, whether a tenant had a reasonable expectation of privacy in a common room
- Whether the trial court erred when it excluded testimony of a defense investigator as hearsay
Practitioner’s Alert: This opinion expands on the “expectation of privacy” of tenants under the New Hampshire Constitution with regards to common areas. Practitioners are encouraged to review this opinion carefully.
The Court applied the State Constitution with regard to the expectation of privacy of a “common area” of a rooming house.
The Court relied on authority outside of New Hampshire and noted varying conclusions have been reached based on the particular facts of the living situation in question. The Court noted the living area was not self-contained, i.e. no separate bathrooms or kitchens, which worked in favor of finding an expectation of privacy.
However, the Court further noted, several other factors weighed against an expectation of privacy: the rooms of the building are individually numbered, and, similar to an apartment building, each room is secured by a lock; the front door is customarily unlocked; the common hallway was accessible by many people, including the landlord, several tenants and guests of those tenants. Summarily, because of these factors, the Court determined the defendant did not have an expectation of privacy.
The defendant further argued that entry into the common area by law enforcement was an invasion of a constitutionally protected area under the Federal Constitution, making the search illegal.
To prevail on this trespass theory, three conditions must be met: 1) a physical intrusion 2) on an enumerated interest (“persons, houses, papers, and effects”) that 3) is not supported by an implicit license based on social norms (State v. Mouser, 2015).
The Court noted the law enforcement officer entered the building and the common area, as any other visitor would, to initiate a conversation. He knocked on the door to room 1 and informed the defendant that his girlfriend was being taken to the hospital. Thus, the officer did not commit a trespass under the Federal Constitution, which means the trial court did not err when it denied the defendant’s motion to suppress.
The defendant also argued the investigator’s statements regarding an interview were admissible under Rule 804(b) as a statement of interest. The exception is permitted when 1) the declarant is shown to be unavailable; and 2) the statement is against the declarant’s penal interest.
An additional factor is considered when, as in this case, the statement is offered to exculpate the defendant, which requires the statement be corroborated by circumstances clearly indicating its trustworthiness. While the Court agreed with the defendant that the first two factors had been met, the Court found the circumstances surrounding the statements, coupled with repeated invocation of the 5th Amendment, made the statements unreliable.
Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
State of New Hampshire v. William Edic
Jan. 31, 2017
- Whether the trial court erred when it excluded defendant’s evidentiary arguments relating to the third audio recording
- Whether the defendant’s argument that exclusion of the third recording violated his state and federal constitutional rights to confrontation and to present all proofs favorable
- Whether collectively, the defendant’s evidentiary arguments relating to the exclusion of the first recording, the limitation of cross-examination of an inmate about his prison disciplinary history, and the exclusion of the correctional officers’ testimony are harmless error
Note: The Court dismissed several of defendant’s issues as they were not preserved by objection at trial.
First, the NH Supreme Court addressed the evidentiary exclusion of the third audio recording. The defendant argued that the trial court had erred when it excluded the third audio recording per NH Rule of Evidence 608(b). The NH Supreme Court observed that the trial court has broad discretion to determine the admissibility of evidence, which the Court would not upset unless the trial court’s decision was an unsustainable exercise of discretion.
The Court also observed that the trial court initially excluded the third audio recording as hearsay under Rule 608(c), to which defendant did not object. Since the Court’s hearsay ruling provides a secondary ruling as to the admissibility of the third audio file, the Court did not address the Rule 608(b) claim.
The defendant also argued that the trial court’s decision to exclude the third recording violated “his state and federal constitutional rights to confrontation, and to present all proofs favorable.” The Court relied on Part I, Article 15 of the State Constitution. The Court noticed that the defendant did not argue the exclusion of the third audio recording limited or denied his ability to cross-examine a witness. Rather, he argues that “by preventing counsel from playing the recording in the jury’s presence during cross, the [trial] court deprived counsel of the opportunity to persuade the jury of the validity of the line of attack on [the witness’s] credibility. The Court found this argument unpersuasive as the Court found the defendant had ample opportunity to cross-examine the witness.
In determining whether the trial court’s evidentiary ruling was in error, the Court recited the standard for “harmless error” in State v. Peters (2011), whereby “the State must prove beyond a reasonable doubt the error did not affect the verdict.” The Court determined the evidence of defendant’s guilt was overwhelming and the evidence excluded did not prejudice the defendant.
Joseph A. Foster, attorney general (Peter Hinckley, senior 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.
State of New Hampshire v. Remi Gross-Santos
Jan. 31, 2017
- Whether evidence of a marijuana grinder had no probative value, because to the extent that the evidence had any probative value, that value was outweighed by its prejudicial impact and was otherwise harmless error
- Whether the police had probable cause to arrest the defendant for DUI
The Court examined the probative value of evidence of a marijuana grinder that was allowed at defendant’s trial for second-degree assault with a specific jury instruction: “to evaluate the credibility of statements that the defendant gave to the police, as well as to evaluate [the passenger’s] testimony in this case.”
The NH Supreme Court found the probative value of evidence of the grinder was outweighed by its danger of unfair prejudice; however, the Court found that the state had met its burden that the trial court’s allowance of the evidence of the grinder was harmless error. The Court elaborated on the trial court’s error, ruling that allowing the evidence of the marijuana grinder was offset by the nature of the overwhelming evidence pointing to defendant’s conviction for second-degree assault.
The defendant also argued that the trial court had erred when it made its probable cause determination, because it “failed to limit its review of the circumstances to those facts known to [the arresting officer]…” The State argued Defendant did not preserve the issue for appeal, but the Court assumed without deciding that the defendant had preserved his challenge.
The Court applied it standard in State v. Ducharme (2015) where it will “affirm a trial court’s determination of probable cause unless, when the evidence is viewed in the light most favorable to the state, the decision is contrary to the manifest weight of the evidence.”
The Court further elaborated it would “accept the trial court’s findings unless they lack support in the record or are clearly erroneous” and would review the trial court’s legal conclusions de novo. State v. Lantagne (2013). The Court determined the evidence in the record supported probable cause for the officer to arrest Defendant.
Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.
Harriet E. Cady v. Town of Deerfield
Jan. 18, 2017
- Whether RSA 40:13, IV(c) prohibits a town from amending a petitioned warrant article in a manner that changes or eliminates the intent or subject matter of the warrant article.
This was an appeal from a Rockingham County Superior Court ruling denying an injunction against the Town of Deerfield. Petitioner sought injunction against the town, alleging that amendments of two warrant articles during a Jan. 20, 2016, deliberative session violated RSA 40:13, IV(c). The trial court denied injunctive relief, ruling that the amendments did not violate RSA 40:13, IV(c) as they did not remove or eradicate the subject matter of the original articles. The Court reviewed the trial court’s decision de novo and examined RSA 40:13, IV(c).
Petitioner argued that “amendments that change the intent or purpose of an article effectively eliminates the subject matter of that article,” making those changes violations of RSA 40:13, IV(c). The crux of Petitioner’s argument is the statute should be applied narrowly. The town argued it should be construed broadly.
The Court rejected both arguments, noting the phrase “subject matter” within the statute is ambiguous, as it has more than one reasonable interpretation. The Court also noted the legislative history of RSA 40:13, IV(c) “demonstrates the statute was intended to prohibit warrant articles from being amended in a manner that eliminates their subject matter entirely,” making it impossible for voters to understand what the article is about at a subsequent session. This means RSA 40:13, IV(c) does not prohibit amendments, so long as they do not eliminate the substance of the warrant articles.
Petitioner also argued RSA 40:13, IV(c) “prohibits warrant articles from being amended to change the intent of the articles.” The Court rejected this argument, noting the text of RSA 40:13, IV(c) directly prohibits only amendments that eliminate the subject matter of a warrant article and to rule otherwise would require the Court to read the word “intent” into the statute, which is outside the scope of its de novo review.
Consequently, the amendments to the articles in question did not eliminate the subject matter, which means the amendments did not violate RSA 40:13, IV(c).
Harriet E. Cady, self-represented party, by brief. Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P. Courtney on the brief, and Mayer orally), for the respondent.