Hampshire Supreme Court
May 6, 2004
Oral Argument Case Summaries
OF NEW HAMPSHIRE v. TROY ZWICKER, No. 2003-0082
Richard N. Foley for the appellant, Troy Zwicker
Attorney Nicholas Cort for the appellee, State of New Hampshire
Unreasonable search and seizure; violation of right against self-incrimination; speedy trial
is this case about?
much evidence do the police have to collect before they can justify getting
a warrant to legally search your home, your car or your land?
the possession of “shake,” the seeds, stems and stalks leftover after
production of marijuana, enough to constitute a felony charge for possession
with intent to distribute marijuana?
the police make mistakes in their testimony that causes your trial to be
stopped twice, and almost a third time, has your right to a speedy trial
Zwicker’s first trial ended in a mistrial after an experienced Berlin
police officer let the jury know that police found a prison ID card in
Zwicker’s apartment. The defense contended it was an effort to "poison
the well” with information that would surely prejudice the jury against
Zwicker because they now knew he had already served time in jail. The judge
called for a second trial, but again, a mistrial was declared after another
experienced police office let the jury know that the defendant might have been
visiting his parole officer on the day of his arrest. Again, Zwicker argued this
information was highly prejudicial and the judge called for a third trial.
After a third trial, during which the defense contends the police
again tried to introduce highly prejudicial evidence and a mistrial was
“narrowly averted,” Zwicker was convicted of possession of crack cocaine and
possession of marijuana with intent to sell. Zwicker, who had been in prison for
five years for drug possession and was released just prior to this arrest, was
sentenced to 15 to 30 years in prison. He is now asking the Supreme Court to
overturn his convictions.
On September 12, 2001, members of the Berlin Police Department and other members of law enforcement executed a search warrant at the defendant’s apartment. Zwicker contends that four individuals had provided uncorroborated information to police and that some of them were biased against Zwicker because they believed that a victim of a fatal car accident had been using drugs with or purchased from Zwicker prior to the accident. Zwicker said the information was not enough to legally support a search warrant because it did not add up to “probable cause” for the police to believe they would find illegal substances.
But the government says three sources had seen illegal drugs in the
defendant’s house prior to the search and a known drug dealer had said he was
selling drugs for the defendant. Police using an informant then also executed a
controlled marijuana buy from the defendant. All of that information was viewed
in a "common sense manner under the totality of the circumstances
test." In the apartment the police found marijuana in the attic and a pipe
with crack residue.
The defendant says he only
possessed "shake," which is the residue
of marijuana processing, such as seed, stems and stalks, and did not have in
excess of one ounce of marijuana as the law requires for prosecution.
The defense says the court was wrong when it said possession of
"shake" could amount to possession with intent to distribute.
The government notes that
this was never raised at trial and cannot be raised now in the appeals court. It
notes the defendant acknowledged he kept marijuana in the attic. The government
also says shake can be used to dilute more potent marijuana and you can separate
out about an ounce of marijuana buds out of every pound of shake and sell this
for a profit.
The defendant made certain incriminating statements when he returned with
police to the residence. Zwicker claims the police did not “scrupulously”
honor his right to remain silent under Miranda v. Arizona, 384 U.S. 436
(1966). But the government argues that Zwicker had been read his rights, and
waived them, before making incriminating statements to the police officer such
as "he would give up everything, including his supplier if he got his
'walking papers…” and was not charged.
The government also says that Zwicker admitted he had been buying
marijuana in five pound bags and ecstasy.
Zwicker argues that the government’s conduct, through the police
officers during the first two trials, denied his constitutional right to a
speedy trial. The government
however argued that Zwicker’s first trial was held within 8 months; the second
after five and the third after one month which is not an "impermissibly”
Sweeney v. Ragged Mountain Ski Area Inc.,
Peter E. Hutchins for the appellant, Alaina Sweeney
Attorney Robert E. Murphy Jr., for the appellee, Ragged Mountain Ski Area
Assumption of risk; immunity from liability.
is this case about?
New Hampshire law (RSA Chapter 225-A) says that ski areas are protected
from law suits for injuries suffered by skiers using a ski area or passenger
tramway. The law is premised on the theory that there is a built in danger to
skiing and skiers assume the risks and hazards when they decide to ski.
But the appellant in this case says “snow tubing” is not
“skiing,” and even if it was, her injuries were not caused by snow tubing,
but by a man-made snow berm or incline that Ragged Mountain had negligently
constructed at the end of a snow tubing run to slow riders down by the force of
The trial judge threw the case out of court. He said that state law defines a skier as a person who “utilized the ski area for the purpose of utilizing ski slopes, trails, jumps or other areas." The judge found that a snow tube run qualifies as an “other area” and that while the law does not explicitly list snow tube runs, there is a clear public policy declaration at the outset of the statute which says "the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities…."
Alaina Sweeney and her lawyer have taken her case to the Supreme Court
and asked that her lawsuit be reinstated and that she be allowed to go back to
the trial court to try to prove her case.
On March 21, 2001, Alaina Sweeney was snow tubing during a company outing
at Ragged Mountain Ski area in Danbury. Sweeney received a serious head injury
when at the end of her ride in the snow tubing park she and another rider
collided at a high rate of speed in what is known as a “run off area” and
hit their heads. Sweeney was struck by the other rider as Sweeney slid back down
the berm into a common run off
area. She continues to experience symptoms of her head injury today.
Sweeney contends that snow tubing is not skiing, that snow tubing is not even a “sport.” She argues that snow tubing does not come under the “immunity” statute because while skiers can and must control their speed and direction, snow tubers cannot; skiing takes skill, snow tubing does not; snow tubers don't take lessons and don't choose their equipment or trails.
Ragged Mountain argues however that while that may be the dictionary
definition of a skier, the legislature, when it wrote the “immunity law”
defined “skier” as “a person utilizing the ski area”
which means more than traditional alpine skiing. Ragged Mountain argues
that there simply wouldn’t be any other reason for the legislature to include
that language unless they intended to include activities other than traditional
alpine skiing. If the law is going to be rewritten, they say that is a job for
Sweeney argues that because skiers can control their speed, course,
direction, and stopping, it is fair to hold skiers to a duty of care in order to
prevent lawsuits for injuries that the skiers could have anticipated and
avoided. But a snow tuber "rides down the hill following the whims of
gravity and terrain until the tube comes to a stop in the snow tubing run off
area." She argues that the entire concept of control and care by the skier
which underlies the immunity statute, does not apply to snow tubers because they
don’t have control over their movement.
Sweeney contends her injury was caused solely and exclusively by the negligence of Ragged Mountain in the design and construction of the snow berm because it funneled tubers from two side-by-side tracks into a common area without taking any steps to avoid collisions at high speed. Even if the immunity statute applied, Sweeney contends her injuries weren’t due to the inherent risks of snow tubing, but rather to the negligence of Ragged Mountain in putting up the snow berm.