Articles Posted in Constitutional Law

by
Defendant Jeremy Surrell appealed a superior court order denying his petition to suspend his sentence under RSA 651:20, I (2016). Defendant was indicted on four counts of aggravated felonious sexual assault (AFSA). These indictments alleged that, on four occasions, the defendant engaged in fellatio with a child under the age of thirteen. In May 2013, defendant pleaded guilty to two of the AFSA charges and the State entered a nolle prosequi on the other two. The trial court sentenced defendant to a stand committed sentence of seven and one-half to fifteen years and to a suspended sentence of ten to twenty years. On appeal, defendant argued RSA 651:20, I, prohibited a trial court from denying “a petition on the basis, even in part, of the nature of the offense conduct” and, therefore, the trial court erred when it denied his petition on that basis. He also argued that, even if pursuant to RSA 651:20, I, a trial court can take account of the nature of the offense, the court erred when it denied the petition to suspend solely on that basis without “weigh[ing] [his] rehabilitative success against the need for further punishment.” In affirming the superior court's decision, the New Hampshire Supreme Court determined it was evident the trial court, after considering both the defendant’s rehabilitative efforts and the punitive purpose of his sentence, simply reached a conclusion opposite of that desired by the defendant. View "New Hampshire v. Surrell" on Justia Law

by
Richard Exline appealed a circuit court order denying his motion for the immediate return of seized property on the ground that the affidavit supporting the search warrant under which the seizure occurred failed to establish probable cause. In March 2017, a warrant was issued to search “any computer, computer system, mobile digital device, camera, router, wi-fi device, cellular telephone, smart phone, [and] commercial software and hardware” located at 1832 Candia Road in Manchester, New Hampshire (Exline’s residence). The warrant stated that there was probable cause to believe that the property so described was relevant to the crimes of identity fraud, and tampering with public or private records. The affidavit submitted in support of the warrant application avers that, on August 5, 2016, the affiant, a state police detective, received an e-mail message from the assistant commissioner for the New Hampshire Department of Safety (DOS) regarding e-mail messages that had been received by State of New Hampshire officials and employees. The assistant commissioner was concerned that there had been a “cyber-attack.” Based upon the totality of the circumstances as reflected in the circuit court record, the New Hampshire Supreme Court concluded that the affidavit afforded the magistrate a substantial basis for believing that there was a fair probability that Exline’s residence and the objects seized contained evidence of the crime of identity fraud. View "In re Search Warrant for 1832 Candia Road, Manchester, New Hampshire" on Justia Law

by
Defendant David Burris was indicted on three counts of felony reckless conduct. The indictment alleged defendant engaged in reckless conduct when, during a home visit to a probationer he was supervising, he discharged a firearm three times at a motor vehicle operated by the probationer. The Superior Court denied defendant’s motion to dismiss the charges but approved an interlocutory appeal. Because the New Hampshire Supreme Court concluded defendant was not entitled to transactional immunity under Part I, Article 15 of the New Hampshire Constitution, it affirmed and remanded. View "New Hampshire v. Burris" on Justia Law

by
Defendant Kevin Drown was convicted by jury on three counts of aggravated felonious sexual assault, and one count of felonious sexual assault. On appeal, he argued the Trial Court erred by permitting the prosecutor to: (1) argue that it was difficult for the victim to testify, and because she did so, she must be credible; (2) ask the defendant for his opinion about the victim’s credibility; and (3) argue that the defendant’s opinions about the victim’s credibility were inculpatory and contradicted his counsel’s argument. Finding no reversible error, the New Hampshire Supreme Court affirmed Drown’s convictions. View "New Hampshire v. Drown" on Justia Law

by
Defendant Bailey Serpa appealed a superior court order requiring him to register as a sexual offender. On appeal, defendant argued registration as a sexual offender for a conviction of violating RSA 649-B:4 was contrary to the manifest objectives of RSA 632-A:4 and violated constitutional requirements that all penalties be proportional to the offense. Finding no reversible error, the New Hampshire Supreme Court affirmed the superior court order. View "New Hampshire v. Serpa" on Justia Law

by
Defendant Brian Watson appealed his conviction by a jury for felony sale of a controlled drug with death resulting. On appeal, he argued the superior court erred by: (1) denying his motion to suppress statements allegedly obtained in violation of his Miranda rights; and (2) allowing a forensic toxicologist, Dr. Daniel Isenschmid, to testify to the results of toxicology tests that he did not conduct. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Watson" on Justia Law

by
Darlene Washburn was convicted by jury of possession of a schedule II controlled drug. On appeal, she argued the Trial Court erred when it: (1) denied her motion to suppress evidence seized in warrantless searches of her purse, vehicle, and home; and (2) instructed the jury on a lesser-included offense that did not ensure jury unanimity and failed to protect her against double jeopardy. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Washburn" on Justia Law

by
Darlene Washburn was convicted by jury of possession of a schedule II controlled drug. On appeal, she argued the Trial Court erred when it: (1) denied her motion to suppress evidence seized in warrantless searches of her purse, vehicle, and home; and (2) instructed the jury on a lesser-included offense that did not ensure jury unanimity and failed to protect her against double jeopardy. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Washburn" on Justia Law

by
Defendant James Bazinet was convicted by a jury of negligent homicide for driving a motor vehicle while he was intoxicated and causing a fatal collision. He appealed the rulings of the Superior Court denying his motions to suppress the results of testing done by the State on a blood draw sample taken by the hospital after he arrived there unconscious. The court ruled that the defendant did not have a reasonable expectation of privacy in the hospital blood draw sample, and that the State acted lawfully in obtaining and testing it for blood alcohol content without a warrant. Citing a case discussing the emergency exception to consent in the civil context, the court found that the defendant implicitly consented to medical treatment. The court further concluded that “no ‘search’ occurred within the meaning of [the federal and New Hampshire] constitutions when the police later tested the defendant’s blood for DNA.” The New Hampshire Supreme Court concurred with the Superior Court’s judgment, noting in particular to the admission of the DNA evidence that given the other evidence presented by the State to establish that the defendant was the driver, the DNA evidence was cumulative. View "New Hampshire v. Bazinet" on Justia Law

by
Defendant Dominick Stanin, Sr. appealed after a jury convicted him for first degree assault, robbery, and being a felon in possession of a deadly weapon. On appeal he argued the evidence was insufficient to convict him of robbery, and that the trial court erred when it did not individually question each juror about the impact that a photograph (which had not been admitted into evidence, but which was visible in the defense counsel’s file) had on that juror’s ability to render an impartial verdict. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Stanin" on Justia Law