Articles Posted in Constitutional Law

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Defendants Anthony Barnaby and David Caplin were charged with two counts each of first degree and second degree murder in the deaths of two women that occurred in 1988. The State appealed a superior court order that denied in part, its motion to depose certain foreign witnesses pursuant to RSA 517:13 (2007). In 2010, the State reopened its investigation into the murders. As a result of that investigation, a grand jury indicted the defendants on the present charges in 2015. In April 2016, the State moved, pursuant to RSA 517:13, to take video depositions of eleven Canadian residents for potential use at the defendants’ trials. The State maintained that the prospective deponents were material witnesses who could not be compelled to testify at trial and, therefore, video depositions are necessary “to preserve their testimony and ensure a fair trial.” The defendants objected. The court found the State had met its burden of proving that the depositions of one witness in Caplin’s case and one witness in Barnaby’s case were necessary, but that it had failed to demonstrate a necessity for the other depositions. On appeal, the State argued the trial court applied the wrong standard in determining whether the State had met its burden to take the depositions under RSA 517:13, II(a). The New Hampshire Supreme Court concluded that whether a witness resides in a foreign country and is not subject to the jurisdiction of the New Hampshire courts is a factor that can be considered when determining whether a deposition is necessary to preserve the testimony of a witness who is unlikely to be available for trial due to one of the enumerated conditions in RSA 517:13, II(a). Because the trial court did not have the benefit of the Supreme Court’s interpretation of RSA 517:13, II(a) and it was not clear what weight, if any, that the trial court placed upon the fact that these witnesses were not subject to the jurisdiction of the New Hampshire courts, the Supreme Court vacated the trial court’s decision and remanded for consideration of whether the State met its burden pursuant to RSA 517:13, II(a). View "New Hampshire v. Barnaby" on Justia Law

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During a regularly-scheduled meeting, the SAU’s Board voted to go into a nonpublic session to discuss two topics: the superintendent’s evaluation, and “emergency functions.” While in nonpublic session, the Board voted to seal the minutes of the meeting. In June 2016, plaintiff David Taylor asked the executive assistant to the superintendent to send him the minutes of the May 12 nonpublic session by e-mail. She informed plaintiff that she could not provide him with those minutes because they were sealed. A month later, plaintiff e-mailed the executive assistant again, asking her to forward to him, by e-mail, a June 22 e-mail regarding the nonpublic session that had been sent to the Board. The executive assistant again denied plaintiff’s request, referring him to the SAU’s Right-to-Know procedure, requiring the public seeking electronic records to come to the SAU’s offices with a thumb drive in sealed, original packaging or to purchase a thumb drive from the SAU at its actual cost. In August, plaintiff filed a complaint in which he alleged the SAU had violated RSA chapter 91-A by voting in closed session to seal the minutes of the nonpublic session of the May 12 meeting and by refusing to e-mail the records he requested. He also challenged the SAU’s practice of charging 50 cents per page for hard copies of public records. Plaintiff sought: invalidation of the vote to seal the minutes of the nonpublic session; release of the sealed minutes; a declaration that the SAU’s thumb drive policy violated RSA chapter 91-A; an order requiring transmission of the requested records to him by e-mail; other injunctive relief; and litigation costs. After review, the trial court found the SAU’s policy for transmitting public records complied with RSA chapter 91-A. Because of the SAU’s decision to keep sealed only the portion of the nonpublic session with respect to emergency functions, the trial court also found that the plaintiff’s challenge of the SAU’s action was “moot in all but one respect,” specifically, the single redacted sentence of the superintendent’s evaluation. On this issue, the court ordered that the SAU provide it with an un-redacted copy of the public minutes for in camera review. The trial court also determined that petitioner’s lawsuit had been necessary to ensure the Board’s compliance with RSA 91-A:3, and, therefore, awarded him litigation costs. However, the trial court ruled that plaintiff had no standing to challenge the cost of paper copies, because there was no evidence that he had asked for, or paid for, such copies. The trial court also found that the Board did not violate RSA 91-A:3, III by producing two sets of minutes for the May 12 meeting, one containing the public portion and the other the sealed portion. Finally, the court declined to enter the injunctive relief sought by the plaintiff. Finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Taylor v. School Administrative Unit #55" on Justia Law

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The State appealed a superior court order granting news reporter Nicholas Reid’s (Reid) motion to quash the State’s subpoena compelling him to testify against defendant Carl Gibson. Republican candidate Yvonne Dean-Bailey (Dean-Bailey) was running in a May 19, 2015 special election for State Representative from Rockingham County District 32. On May 14, 2015, the defendant, a volunteer for the opposing Democratic Party candidate, allegedly issued a false press release stating that Dean-Bailey was dropping out of the race. Reid, who was covering the special election as a reporter for the Concord Monitor, received the e-mail with the attached press release and became suspicious because of the form and content of the e-mail and attached file. He contacted a representative of the New Hampshire Republican Party who was unaware of Dean-Bailey withdrawing from the race. Reid then wrote a short article for the May 15, 2015 issue of the newspaper titled “Email claiming Dean-Bailey is conceding called a hoax.” Reid reviewed the metadata of the press release which lead to him finding a way to contact Gibson. Based upon that conversation and his conversations with other sources, Reid wrote a second article published in the Concord Monitor on May 16 under the headline, “Man who sent hoax email from GOP candidate had ‘too many beers’ before ‘prank.’” Defendant was ultimately charged with “False Documents, Names or Endorsements,” attempted voter suppression, and voter suppression. Reid was served with a subpoena requiring him “to testify what [he] know[s] relating to a criminal matter to be heard and tried between the State . . . and Carl Gibson.” Reid moved to quash the subpoena on the ground that it violated his “newsgathering privilege” under Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. On appeal, the State argued that the trial court erred “by expanding the scope of the news-gathering privilege to include non-confidential sources.” Although Reid based his motion to quash upon the ground that it violated his newsgathering privilege under the State and Federal Constitutions, the trial court based its decision solely upon the State Constitution. The New Hampshire Supreme Court held the trial court’s determination was erroneous, and remanded for the trial court to consider, in the first instance, Reid’s federal constitutional claim. View "New Hampshire v. Gibson" on Justia Law

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Defendant Andrew Robbins appealed his conviction for being a convicted felon in possession of a deadly weapon. Upon approaching the vehicle, police immediately recognized three of the four occupants from prior traffic stops. Several of the occupants were known members of a national criminal street gang. Checking for outstanding warrants, the officer found one against defendant. Concerned for his safety, the officer asked defendant to step out of the car and informed defendant of the outstanding warrant. Defendant was placed under arrest; a subsequent search netted a knife in defendant’s right front pocket. On appeal of the subsequent charges and conviction, defendant argued the superior court erred in denying his motion to suppress the knife: the officer unlawfully expanded the scope of the traffic stop by questioning him and conducting a warrant check. Defendant maintains this unjustified expansion of the scope of the traffic stop violated his rights. The New Hampshire found no error in the superior court’s judgment and affirmed. View "New Hampshire v. Robbins" on Justia Law

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Jeremy Fiske was convicted on eight counts of aggravated felonious sexual assault, and one count of possessing child pornography. He appealed, arguing the superior court erred by: (1) denying his motion for in camera review of the counseling records of the victim; (2) allowing the State to present evidence that he admitted to having “perversion addictions”; (3) denying his motion to dismiss the child pornography indictment; and (4) informing the jury that certain indictments alleged alternative means of committing the same offense but then imposing separate sentences on each of the alternative charges. Finding no error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Fiske" on Justia Law

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Defendant Nathaniel Kibby appealed a superior court order that unsealed pleadings, hearings and letters related to the status of counsel and unsealing motions for services other than counsel that he filed ex parte during the pendency of his case. defendant was indicted on more than 150 charges including kidnapping, criminal threatening, witness tampering, second degree assault, criminal use of an electronic defense weapon, felonious use of a firearm, indecent exposure, falsifying physical evidence, sale of a controlled drug, aggravated felonious sexual assault, and felonious sexual assault. At a chambers conference, the defense raised an issue of status of counsel and requested that the court hold a closed, ex parte hearing on the matter. The trial court informed the parties that it had received two letters from defendant relevant to the status of counsel issue in the previous two days, that it had not sent the letters to the State, and that the letters were sealed in the court’s file. The State moved to unseal the letters and the record of the ex parte hearing. In granting the State’s motion, the trial court reasoned that “the rationale in support of the adjudication of issues on an ex parte basis no longer appear[ed] to apply” because the pleas resolved all pending criminal issues involving defendant. Defendant claimed the letters he sent to the trial court “contain information covered by the attorney-client privilege,” because four of them “raised general issues about counsel’s representation,” and one letter “related specifically to the issue that was the subject of counsel’s pleadings and two hearings.” The New Hampshire Supreme Court found that defendant had the burden of justifying the confidentiality of every document sought to be sealed, and he could not prevail upon his claim to keep the letters sealed merely by asserting a general claim that the record contains privileged attorney-client communications. Defendant conceded that unsealing the documents would not compromise his defense and that he sought a ruling on this issue only for “future cases.” Consequently, the Supreme Court held defendant failed, as a matter of law, to meet his burden of demonstrating with specificity a compelling interest in this case to justify maintaining the motions under seal. View "New Hampshire v. Kibby" on Justia Law

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In 2015, defendant Travis Paige led police on a high-speed vehicle chase. Defendant disregarded stop signs and nearly struck a cyclist and a minivan before losing control of the vehicle after passing through a covered bridge and crashed into a ditch. The vehicle came to rest on the passenger side. Leaving his girlfriend in the passenger seat of the vehicle, defendant climbed out of the driver’s side window and fled on foot into the woods. The police officer on scene chose not to pursue, opting instead to help the girlfriend get out of the car, which was smoking. Defendant was ultimately arrested and indicted on three counts of felony reckless conduct with a deadly weapon. Ordinarily, reckless conduct was an unspecified misdemeanor. However, it becomes a class B felony when a deadly weapon is used in the commission of the offense. Defendant also was charged by informations with two misdemeanor offenses, one alleging that he disobeyed a police officer, and the other alleging that he resisted arrest. The State filed notice it was electing to prosecute both misdemeanor offenses as class A misdemeanors. Defendant was thereafter tried by jury. The trial court instructed the jury on the elements of felony reckless conduct and, over the State’s objection, on the elements of the lesser-included misdemeanor reckless conduct offense. The jury acquitted defendant of all three felony reckless conduct charges, but convicted him of three counts of misdemeanor reckless conduct. The jury also convicted defendant of resisting arrest and disobeying an officer. For the charges of resisting arrest and disobeying an officer, the court sentenced defendant to consecutive twelve-month terms of incarceration; for each misdemeanor reckless conduct convictions, it imposed suspended twelve-month sentences that were concurrent with each other but consecutive to the stand committed sentences. Defendant appealed the sentences. Finding no error in sentencing, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Paige" on Justia Law

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Defendant James Fogg appealed a superior court order denying his motion to dismiss one of the two counts of aggravated driving while intoxicated (DWI) of which he was convicted. The State charged defendant with two counts of aggravated DWI: one count for the injuries sustained by each occupant of the vehicle that the defendant hit. On appeal, defendant argued the trial court’s interpretation of RSA 265-A:3 was unfaithful to the text of the statute and its legislative history, and violated the double jeopardy protections provided by the State and Federal Constitutions. RSA 265-A:3 set forth three requirements for an aggravated DWI offense: (1) driving or attempting to drive a vehicle upon a way; (2) while intoxicated; and (3) fulfilling any one of the four alternative conditions listed in RSA 265-A:3, I(a)-(d). These four alternatives were: (a) driving more than 30 miles per hour in excess of the speed limit; (b) causing a motor vehicle collision that results in serious bodily injury to the driver or another; (c) attempting to elude a law enforcement officer by increasing speed, extinguishing headlamps, or abandoning the vehicle; and (d) carrying a passenger under the age of 16. The New Hampshire Supreme Court concluded the legislature intended the gravamen of the offense to be the operation of a vehicle while intoxicated, and accordingly concluded that only a single aggravated DWI charge arises from operating a vehicle on a particular occasion. The Court concluded the legislature did not intend the “unit of prosecution” under subsection I(b) of the statute to turn upon the number of persons suffering serious bodily injury in a single collision resulting from operation of a vehicle on a particular occasion. Because the Court conclude that the trial court erred in interpreting RSA 265-A:3, it did not reach the State’s or the defendant’s constitutional arguments. The Court reversed defendant’s conviction on one of the aggravated DWI indictments, and remanded to the trial court with instructions that it determine which conviction and sentence to vacate. View "New Hampshire v. Fogg" on Justia Law

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Defendant Jason Candello was convicted by jury for second-degree assault. He appealed, arguing primarily the State offered insufficient evidence to prove the victim suffered serious bodily injury. He also argued he received ineffective assistance of trial counsel, and as such, the trial court erred in denying him a new trial. After review, the New Hampshire Supreme Court found no reversible error from the conviction, and affirmed. View "New Hampshire v. Candello" on Justia Law

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Petitioner’s receipt of developmental services was voluntary, and accordingly he retained the right to “seek a change in [developmental] services or withdraw entirely from the [developmental] service delivery system.” Petitioner Wayne Sawyer had a developmental disability and history of mental illness. He received state-administered developmental and mental health services and lived at the Laconia Designated Receiving Facility (Laconia DRF), a state-operated facility. Prior to his move to Laconia DRF, petitioner requested that his area agency affiliation for developmental services be changed to respondent Lakes Region Community Services (LRCS), the area agency serving Laconia. LRCS denied his request. Petitioner appealed to the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS). The AAU affirmed, finding that the petitioner failed to prove that his move to Laconia DRF constituted a change in legal residence. On appeal, the petitioner argues that, under RSA chapter 171-A and its implementing regulations, he had a right to change his area agency affiliation to LRCS. LRCS counters that, because the petitioner remains institutionalized and was not conditionally discharged, his move was involuntary and, therefore, he had no right to change area agency affiliation. The New Hampshire Supreme Court agreed with petitioner that he had a right to change his area agency affiliation. View "Petition of Wayne Sawyer" on Justia Law