Articles Posted in Criminal Law

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The State of New Hampshire appealed a superior court order denying a motion for a bench warrant filed by the New Hampshire Division of Administrative Services, Office of Cost Containment (OCC) to secure the appearance of defendant John Brawley, at a show cause hearing. Defendant was charged with two criminal offenses that were transferred to the Superior Court for a jury trial. Because defendant was indigent, the trial court appointed a public defender to represent him. At that time, the trial court issued an order defendant to reimburse the OCC for the costs and expenses associated with his public defense and directed him to contact the OCC, within 5 days of the court’s order, to verify his mailing address and to make payment arrangements. The trial court set bail at $50; defendant paid that and confirmed his address. OCC thereafter requested another hearing, alleging defendant made no other payments toward his obligation. Hearing was set, and defendant again failed to appear. The trial court denied OCC's motion for a second bench warrant, finding he was "unconditionally discharged" from the criminal case, and that it lacked jurisdiction to enforce its repayment order or require the defendant to show cause why he cannot, or should not, be required to reimburse the OCC for the costs associated with his public defense. The New Hampshire determined the trial court misinterpreted RSA 604-A:9, I-c, contradicting the plain meaning of the statute. "[A]n OCC obligation constitutes an 'assessment' under RSA RSA 604-A:2-f. We have ruled that RSA 604-A:9 applies to acquitted defendants who have received the benefit of appointed counsel at the State’s expense. It logically follows that the procedural protections set forth in RSA 604-A:2-f similarly apply to indigent defendants confronting a final hearing for nonpayment of the costs associated with the services of court-appointed counsel - regardless of the outcome of the underlying criminal matter." The trial court's rulings were reversed and the matter remanded for further proceedings. View "New Hampshire. v. Brawley" on Justia Law

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Following an evidentiary hearing on the merits, petitioner Edward White appealed a trial court order denying his petition to be relieved of the obligation to register as a sex offender in New Hampshire. In January 1994, as a New Hampshire resident, petitioner became subject to lifetime registration as a sex offender for his Massachusetts convictions. Because of constitutional limitations, a Tier III offender, like petitioner, whose convictions pre-dated the establishment of the sex offender registry, may be subject to the registration requirement “only if he is promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he is permitted to demonstrate that he no longer poses a risk sufficient to justify continued registration.” An assessment of petitioner was conducted, with findings that petitioner was then "a minimal risk to reoffend and therefore does not meet criteria for continued listing on the Sex Offender Registry." Following the evidentiary hearing, the trial court concluded that the petitioner failed to meet his burden of proof he was no longer a danger to the public and no longer posed a risk sufficient to justify continued registration. The New Hampshire Supreme Court determined the record submitted on appeal established an objective basis sufficient to sustain the trial court's denial of petitioner's petition, and therefore upheld its decision. View "White v. New Hampshire" on Justia Law

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Defendant Daniel Allain appealed a superior court order denying his request for pretrial confinement credit toward a suspended sentence imposed for violating a good behavior condition. Defendant was arrested on October 10, 2015 for a burglary that took place August 31, 2015. Unable to post bail, he remained incarcerated until trial. In February 2016, the State obtained eight indictments against him relating to burglaries and thefts that took place during the late summer of 2015, including the August 31 burglary. On July 8, 2016, the State moved to impose defendant’s 2011 suspended sentence because he violated the good behavior condition by committing the August 31 burglary. On August 15, 2016, the State entered a nolle prosequi on the charge involving the August 31, 2015 burglary. On appeal, defendant argued the trial court erred by denying him “presentence confinement credit beginning October 10, 2015.” He contended that had he posted bail on October 10, 2015, he would serve a total of three to six years of the 2011 sentence, but “[b]ecause he is indigent and the court denied credit, he will serve three years, 332 days to six years, 332 days.” Requiring him to serve more time because of his indigency, he argues, “involves precisely the discrimination” the presentence confinement credit statutes seek to prohibit. The New Hampshire Supreme Court concurred with defendant's argument and reversed the trial court's order's denying his request for pretrial confinement credit. The case was remanded for that court to grant pretrial credit toward defendant's sentence. View "New Hampshire v. Allain" on Justia Law

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Defendant Shawn Plantamuro appealed his convictions by jury on two counts of aggravated felonious sexual assault, one count of felonious sexual assault, and one count of felony indecent exposure and lewdness. In May 2016, defendant was convicted of sexually abusing the victim, who was born in 2007. At the time of the abuse, which occurred between 2012 and 2014, the victim and her mother lived in the same neighborhood as defendant. The victim would often go to defendant’s house to visit him and his mother. The victim testified that the assaults took place in defendant’s bedroom, which was, essentially, a porch converted into a bedroom. The victim testified that defendant showed her videos in which “[r]eal people” were “naked and . . . having sex”; she also testified that defendant told her that he was “going to do this to [her] one day.” According to the victim, defendant subsequently engaged in sexual activity with her and masturbated in front of her. She testified that this activity occurred on four occasions. On appeal, he argued that the Superior Court erred by: (1) excluding “evidence about the circumstances of” the victim’s disclosure of the assaults to her mother; and (2) prohibiting the defendant’s ex-wife from testifying that he “is sexually attracted to women, not to children.” Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Plantamuro" on Justia Law

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Defendant David Martinko appealed a superior court order denying his motion to vacate guilty pleas he entered in 2014 to three felony informations. The informations charged him with aggravated felonious sexual assault under the pattern sexual assault statute. He argued on appeal to the New Hampshire Supreme Court: (1) the informations violated his state and federal constitutional protections against double jeopardy; and (2) his trial counsel provided ineffective assistance because he did not advise the defendant of these violations. After review, the Supreme Court determined that under the federal Constitution, the State was permitted to seek separate convictions on the charged informations. Further, the Court determined trial counsel was not ineffective for failing to advise defendant his pleas were in violation of the State and Federal Double Jeopardy Clauses. View "New Hampshire v. Martinko" on Justia Law

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Sixteen-year-old E.G. was petitioned as a delinquent for having committed the offenses of falsifying physical evidence, and possession of drugs. The petitions also alleged that E.G.’s case had been screened and deemed inappropriate for diversion because E.G. was “being petitioned as a delinquent for a felony level charge, and has several previous police contacts where he was involved in disturbances, criminal mischief and reckless conduct.” E.G. filed a motion to suppress, among other things, “all evidence obtained in violation of [his] right against self-incrimination.” Specifically, he contended that he had been subjected to custodial interrogation by police without having been informed of his rights in accordance with Miranda and New Hampshire v. Benoit, 126 N.H. 6 (1985). The trial court denied the motion. Considering the totality of the circumstances of the encounter, the New Hampshire Supreme Court concluded a reasonable juvenile in E.G.’s position would not have believed himself to be in custody, and therefore, that E.G. was not in custody for Miranda purposes when he made the incriminating statements to the officer. View "In re E.G." on Justia Law

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Defendant Michael Hanes appealed after a jury convicted him for improper influence. The charges arose over Pembroke New Hampshire's Department of Public Works plowed the town's roads and sidewalks; defendant contacted David Jodoin, town administrator, and complained about the snow removal on his street and the fact that he had been “plowed in.” Defendant left an expletive-laden voicemail for Jodoin. Jodoin testified that defendant’s message “started out pretty calm, reasonable, and then it just went from like zero to 60 and accelerated within like three seconds. It was loud, yelling, screaming, threatening, wanted somebody fired, and then the threats came in.” After listening to the message, Jodoin contacted the police because “[a]ny time anybody . . . threatens another individual, that . . . becomes a police issue,” and because he was concerned about the safety of town employees. Defendant argued on appeal there was insufficient evidence to sustain the verdict, that the speech underlying his conviction enjoyed constitutional protection, and that the trial court committed plain error in failing to sua sponte strike part of a witness’s testimony. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Hanes" on Justia Law

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Defendant Brittany Boggs appealed two felony convictions by jury on charges relating to issuing bad checks. She argued on appeal: (1) that the evidence presented at trial was insufficient to convict her of either felony; and (2) as to one of the charges, the trial court violated her due process rights, as guaranteed by the State and Federal Constitutions, by instructing the jury on the presumption of knowledge set forth in RSA 638:4, II (2016). The two checks were used to pay for defendant's wedding reception. The New Hampshire Supreme Court concluded: (1) a reasonable juror could have understood the jury instruction to create a mandatory presumption that shifted the burden to the defendant on the element of intent with respect to one of defendant's convictions, and because the trial court’s instructions, read as a whole, did not explain or cure this deficiency, the instruction violated the defendant’s state constitutional right to due process; and (2) defendant did not meet her “burden to demonstrate that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” Therefore, the Court reversed in part, affirmed in part, and remanded for further proceedings. View "New Hampshire v. Boggs" on Justia Law

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Defendant Robert Norman appealed his convictions on seven counts of possession of child sexual abuse images following a bench trial on stipulated facts in Superior Court. On appeal, he argued the superior court erred by denying his motion to suppress in which he argued that the affidavit submitted in support of the search warrant application failed to establish probable cause that his electronic devices would contain child sexual abuse images. He also argued the evidence was insufficient to prove, beyond a reasonable doubt, that the images associated with the seven indictments depicted sexually explicit conduct. Furthermore, defendant challenged three of the indictments on the ground that the images associated with them did not depict a child. Viewing the affidavit in a common-sense manner and considering the totality of the circumstances, the New Hampshire Supreme Court concluded the magistrate did not have a substantial basis for finding that there was a fair probability that child sexual abuse images would be found on defendant’s electronic devices. In this case, the images that the officers viewed on defendant’s laptop were of adult women “in various stages of undress and positions,” girls in sundresses, and female teenagers in cheerleader outfits. The affidavit did not allege that any of the images the police viewed constituted child sexual abuse images. The Supreme Court reversed defendant's conviction and remanded for further proceedings. View "New Hampshire v. Norman" on Justia Law

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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