Articles Posted in Criminal 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

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The State appealed a superior court order that granted defendant Daniel Jesus Cora’s motion to suppress all evidence obtained from the warrantless entry by the police into his vehicle. On appeal, the State contended that the police were allowed to enter the vehicle without a warrant either under the federal automobile exception to the warrant requirement, which the State asked the New Hampshire Supreme Court adopt under the New Hampshire Constitution, or because the defendant had a diminished expectation of privacy in the interior space of his vehicle that is visible to the public. Alternatively, the State asked that the Supreme Court conclude New Hampshire v. Sterndale, 139 N.H. 445 (1995) has been abrogated by our decision in New Hampshire v. Goss, 150 N.H. 46 (2003), and that the Court adopt a “slightly more narrow exception” to the warrant requirement based upon the defendant’s diminished expectation of privacy in the “publicly visible areas of his car.” The Court declined to overrule Sterndale. However, it agreed that Sterndale was abrogated by Goss, at least in part, and that its abrogation required reevaluation of whether to adopt an automobile exception to the State warrant requirement. The Court recognized a limited automobile exception to the warrant requirement pursuant to which the police do not need to obtain a warrant to enter an automobile when the vehicle has been lawfully stopped while in transit and the police have probable cause to believe that a plainly visible item in the vehicle is contraband. In this case, the police did not need a warrant before entering defendant’s vehicle because the vehicle was subject to a lawful traffic stop, and the police had probable cause to believe that the baggie and cigarette, which were plainly visible, were drugs. Accordingly, the Supreme Court reversed and remanded. View "New Hampshire v. Cora" on Justia Law

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Defendant, David J. Widi, Jr. appealed a superior court order denying his petition for a writ of coram nobis. In February 2004, the defendant filed a notice of intent to plead guilty to a charge of misdemeanor reckless conduct in exchange for a negotiated sentence. Almost four years later, defendant was charged with the federal offense of being a felon in possession of a firearm, with his felony reckless conduct conviction serving as the predicate felony. In 2010, the defendant filed in the trial court a “Motion to Correct the Record.” In that motion, the defendant asserted that it “ha[d] recently come to [his] attention that the [m]ittimus” for his conviction reflected that he was convicted of felony reckless conduct. He further asserted that a felony indictment for reckless conduct — instead of a misdemeanor information for reckless conduct - “was erroneously submitted at sentencing . . . causing the misclassification of [his] conviction in the [m]ittimus.” Consequently, he requested that the mittimus for his reckless conduct conviction be “correct[ed]” to reflect that he had pleaded guilty to misdemeanor reckless conduct, not felony reckless conduct. The trial court denied the defendant’s motion. In 2014, defendant filed this petition for a writ of coram nobis. He argued that the trial court erred by denying his petition without holding an evidentiary hearing. The New Hampshire Supreme Court held that the common law writ of coram nobis existed in New Hampshire. This case presented the distinct issue of whether a trial court may deny a defendant’s petition for a writ of coram nobis without holding an evidentiary hearing. The Court held that a trial court may deny a petition for a writ of coram nobis without holding an evidentiary hearing if the record clearly demonstrates that the defendant is not entitled to coram nobis relief. Here, because the record clearly demonstrates that no sound reason exists for the defendant’s failure to seek earlier relief, the trial court did not err when it denied the defendant’s petition without a hearing. View "New Hampshire v. Widi" on Justia Law

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Defendant Abraham DePaula appealed after he was convicted by jury on one count of burglary, five counts of theft by unauthorized taking, and two counts of conspiracy to commit theft by unauthorized taking. He argued the trial court erred when it: (1) ruled that his testimony opened the door to evidence of his alleged involvement in an unrelated homicide; (2) denied his motion in limine to preclude the State from introducing testimony regarding physical and sexual assaults that occurred during the burglary; (3) allowed the State to introduce lay testimony from custodians of cellular telephone records regarding the range of cell towers; and (4) sentenced the defendant on both conspiracy to commit theft convictions. The State conceded that, under the facts and circumstances of this case, it was plain error for the trial court to sentence the defendant on both conspiracy convictions. Accordingly, the New Hampshire Supreme Court vacated defendant’s conviction on one of the conspiracy indictments, but affirmed in all other respects. View "New Hampshire v. DePaula" on Justia Law

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Because the issuance of extraterritorial search warrants is not expressly prohibited by the legislature, and because the amicus did not identify any constitutional limitations applicable to these facts, the Court held that the circuit court would not have exceeded its territorial jurisdiction by issuing the search warrant at issue here. In February 2016, an Ashland police officer applied for a search warrant for certain cellular telephone records at an AT&T facility in Florida. New Hampshire sought these records in connection with a criminal investigation being conducted by the Ashland Police Department. Citing the New Hampshire Supreme Court’s decision in New Hampshire v. Mello, 162 N.H. 115 (2011), the circuit court denied the State’s application, reasoning that it “ha[d] no authority to issue a warrant against a foreign corporation.” Seeking reconsideration, the State argued that “[u]nder Florida law, [AT&T] is required to treat an out-of-state subpoena or warrant as if it were issued by a Florida Court.” It also argued, among other things, that our decision in Mello “d[id] not preclude the issuance of the warrant.” The circuit court denied the State’s renewed application, again relying upon “Mello.” The Supreme Court determined that “Mello” was not controlling here. Now, as a matter of first impression, the Court considered the issue of whether the circuit court would have exceeded the scope of its territorial jurisdiction by issuing an extraterritorial search warrant, specifically, a warrant authorizing the search and seizure of an electronic communication service provider’s records in Florida. The Court reversed. View "In re Search Warrant for Records From AT&T" on Justia Law

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Defendant Peggy Starr appealed her conviction on one count of second degree assault, as a lesser included offense of first degree assault. In 2010, at six and one-half years of age, D.A. was hospitalized at a weight of just 23.4 pounds. At the time of his hospitalization, he suffered developmental delays, was failing to gain weight, and was short for his age. Ultimately, D.A. was diagnosed with failure to thrive due to malnutrition and psychosocial dwarfism. D.A. had been in the care of the defendant and her daughter, Christina Thomas. In addition to administering physical discipline, she would control his eating to modify his behavior. She took food away from him to punish him even after one of his treatment providers instructed that she not do so. Although defendant knew that D.A. was not growing taller, was not gaining weight, and was developmentally delayed, she told authorities at D.A.’s school that he was not to be given an extra lunch if he ate his packed lunch on the way to school, and she continued to withhold food from him as punishment. Within ten months of D.A.’s removal from the care of defendant and Thomas, his weight nearly doubled. Defendant was charged with first degree assault for knowingly causing serious bodily injury to D.A. by causing his “failure to thrive” condition by failing to provide him with proper nutrition. She moved to dismiss the indictment, arguing that the first degree assault statute did not impose criminal liability upon defendants for omissions. The trial court denied the motion, ruling that “first degree assault as charged in this case may be established by conduct constituting a voluntary act or a voluntary omission.” The New Hampshire Supreme Court affirmed the trial court’s decision. View "New Hampshire v. Starr" on Justia Law