New Hampshire Supreme Court
May 6, 2004
Oral Argument Case Summaries

 Case #1

STATE OF NEW HAMPSHIRE v. TROY ZWICKER, No.  2003-0082

Attorney Richard N. Foley for the appellant, Troy Zwicker
Attorney Nicholas Cort for the appellee, State of New Hampshire

Legal Issues Presented:
Unreasonable search and seizure; violation of right against self-incrimination; speedy trial

What is this case about?

• How 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?

• Is 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?

• If 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 been denied?

Procedural History

          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.

Statement of Facts
          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” long time. 

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CASE  #2

Alaina Sweeney v. Ragged Mountain Ski Area Inc., No. 2003-0719

Attorney Peter E. Hutchins for the appellant, Alaina Sweeney
Attorney Robert E. Murphy Jr., for the appellee, Ragged Mountain Ski Area

Legal Issues Presented:
Assumption of risk; immunity from liability.

What 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 gravity.

Procedural History

          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.

Statement of Facts

          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 the legislature.

          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.

         
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