Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - August 1997

         * denotes appealing parties

96-838         State of NH                v.  Porter*, Gary
               Attorney General               James E. Duggan
                                              Gary Apfel

               Kidnapping, rape - numerous issues including 
               improper consolidation of charges, failure to
               require State to elect between alternative
               theories of kidnapping, failure to conduct in
               camera review of DWI Multiple Offender program
               report concerning victim, failure to suppress
               search warrant results, evidentiary issues,
               sufficiency of evidence, sentencing issues
                                

97-144         Hughes,* Susan             v.  DiSalvo, Giacomo
               Ruth P. Gulick                 Scott A. Trendell

               Lease-purchase agreement - whether plaintiff is
               subject to Consumer Protection Act


97-161         Keating,* John J.,         v.  United Instruments, 
                 Administrator of Estate        Inc., Mooney     
                 of Michael J. Keating          Aircraft Corp.,  
                                                Tokyo Aircraft
                                                Instruments Co., 
                                                Inc.             
               W. Michael Dunn                Robert E. Murphy,
                                                Jr. and Don Swaim
                                                for United
                                                Instruments and
                                                Tokyo Aircraft
                                                Instruments
                                              Sara C. Shirley and
                                                Hugh G. McBreen
                                                for Mooney
                                                Aircraft

               Strict liability, negligence - wrongful death;
               admission of evidence of whether federal aviation
               administration considered altimeter safe without
               allowing evidence to show extent that FAA's
               determination was based on subsequent remedial
               measures


97-218         In re: Justin J.
               Sven D. Wiberg, for mother*
               Paul G. Sanderson, GAL
               Attorney General

               Child abuse and neglect - consent agreement;
               denial of motion to vacate consent agreement where
               district court failed to comply with colloquy
               requirements of RSA 169-C:17 with regard to
               consent orders


97-230         Liberty Mutual Insurance   v.  Coleman, * David N.
                 Company                        d/b/a Yankee
                                                Traditions
               Jay M. Niederman               Michael P. Bentley

               Worker's compensation insurance premiums -
               admission of hearsay; exclusion of rebuttal
               evidence


97-286         State of NH*               v.  Cotell, Kevin
               Attorney General               James E. Duggan
                                              Jennifer Bensinger

               Aggravated felonious sexual assault, felonious
               sexual assault - failure to provide discovery
               materials; whether dismissal of grand jury
               indictments is proper remedy for prosecutorial
               negligence absent showing of prejudice; whether
               defendant's right to due process or speedy trial
               was violated


97-287         Routhier,* Richard, Appeal of
               (workers' compensation appeals board)
               David C. Dunn for Mr. Routhier
               Nelson A. Raust for Wayne and Vera Young
               Attorney General

               Workers' compensation - whether homeowner's
               insurance policy provided workers' compensation
               coverage; whether claimant was a "domestic" or
               "domestic servant"; whether claimant was employee
               entitled to workers' compensation coverage


97-299         Sommers, Joanne F.         v.  Sommers,* Joseph F.
               James Hobbs                    Janine Gawryl

               Post-divorce proceedings - whether court erred in
               reforming divorce decree and substantially
               modifying property division; authority to order
               defendant to pay property debt via wage
               assignment; failure to consider documents attached
               to defendant's motion for reconsideration


97-349         The Cadle Company*         v.  Proulx, Dennis
               Marc W. McDonald               Bertrand A.  
                                              Zalinsky

               Promissory note, assignment - voluntary nonsuit; 
               whether superior court erred in denying
               plaintiff's motion for voluntary nonsuit without
               prejudice; whether denial of voluntary nonsuit
               bars suit on note by new corporation which was
               assigned note by plaintiff
               
97-363         Franklin ElectroPlating    v.  American Universal
                 Company, Inc.*                 Insurance Com-
                                                pany, New
                                                Hampshire In-
                                                surance Guaranty  
                                                Association,     
                                                Travelers Indem-
                                                nity Company     
               R. Timothy Phoenix             Gregory A. Holmes
                                                for N.H.         
                                                Insurance Guar-
                                                anty Assoc., as
                                                liquidator for   
                                                American
                                                Universal 
                                                            
               General liability insurance - hazardous waste
               clean-up; whether insured's breach of contract
               claim is a "covered claim" under RSA 404-B:5, IV;
               whether insured is entitled to recover expenses
               for clean-up and defense costs from NH Insurance
               Guaranty Association; whether NH Insurance
               Guaranty Association is liable for breach of
               contract committed by predecessor insolvent
               insurer


97-373         Keating, John J.,          v.  United Instruments,
                 Administrator of the           Inc.,*  Mooney 
                 Estate of Michael J.           Aircraft Corp.,
                 Keating and Diane and          Tokyo Aircraft
                 Robert Maloney, Admin-         Instruments Co., 
                 istrators of the Estate        Ltd.              
                 of Karen Maloney                
               W. Michael Dunn for Estate     Robert E. Murphy,
                 of Michael J. Keating          Jr. and Don Swaim 
               Edmund Daley for Estate of       for United        
                 Karen Maloney                  Instruments and
                                                Tokyo Aircraft 
                                                Instruments
                                              Sara C. Shirley and 
                                              Hugh G. McBreen for 
                                                Mooney Aircraft  
                                                              
               Indemnification - whether court misconstrued
               indemnification clause in purchase order; whether
               claims against Mooney Aircraft Co. arose solely on
               the sale of the altimeter; whether court erred by
               applying New Hampshire law


97-378         Donahue Realty Trust       v.  Harrington, Warren
                                                and Charles
                                                Burkett
                                                
               Warren Harrington          v.  Dimmick,* Russell
               John H. McEachern for          Peter C. Scott for 
                 Donahue Realty Trust           Mr. Dimmick
               Mr. Harrington, pro se

               Sale of defective trailer - default; whether court
               has authority to enter judgment for plaintiff
               against third-party defendant where plaintiff
               never filed claim against him; failure to give
               third-party defendant notice of assessment of
               damages; failure to allow interrogatories directed
               to damages; erroneous award of interest; failure
               to grant motion to set aside default 


97-405         Purdie, G. William & a.    v.  Attorney General*
               Frederic K. Upton              Attorney General

               Property rights; boundary between public and
               private beach property - due process; whether
               legislature has authority to establish public
               boundary elevation within the ebb and flow of the
               tide; common law boundary between public and
               private beach property; whether superior court
               erred in ruling that RSA chapter 483-C, which
               establishes high water mark as boundary between
               public and private beach property, and defines
               high water mark as furthest landward limit reached
               by highest tidal flow during a 19 year cycle,
               constitutes a taking of private property without
               just compensation 

97-406         State of NH                v.  Bunker,* James
               Attorney General               James E. Duggan
                                              John P. Newman

               Aggravated felonious sexual assault - exclusion of
               evidence regarding prior inconsistent statements
               by victim; failure to permit defendant to question
               victim about disciplinary problems at school and
               home as evidence of motive to fabricate
               allegations against defendant (her father)

97-410         State of NH                v.  Johnson,* David
               Attorney General               Francis G. Holland

               Attempted aggravated felonious sexual assault -
               sufficiency of indictment; failure to require
               State to elect indictments; failure to permit
               defendant to question victim regarding numerous
               matters; exclusion of photographs; sufficiency of
               jury instructions

97-412         State of NH                v.  White,* Delvin
               Attorney General               James E. Duggan
                                              James D. Quay

               Aggravated felonious sexual assault, felonious
               sexual assault - exclusion of evidence that
               victims lied in past about similar allegations;
               exclusion of opinion evidence of victims'
               character for truth-telling; exclusion of evidence
               relevant to victims' sexual knowledge and
               vocabulary; admission at sentencing of defendant's
               criminal record that was not properly
               authenticated; whether court erred in sentencing
               defendant to term of 50 years to life
97-415         State of NH                v.  McMinn,* Robert R.
                                                Jr.
               Attorney General               James E. Duggan
                                              James D. Quay

               Receiving stolen property - whether probable cause
               existed to obtain search warrants; whether police
               recklessly misled magistrate by alleging that
               drug-sniffing dog had never given false
               indication; double jeopardy; whether court erred
               in giving extended sentence based on uncharged bad
               acts considered by federal court to support upward
               departure under federal sentencing guidelines


97-418         State of NH                v.  Connolly,* David
               Attorney General               James E. Duggan
                                              Sven D. Wiberg

               Second degree assault, criminal threatening - ex
               parte and off-record meeting between trial judge
               and juror; failure to allow defendant to change
               locations in courtroom; allowing State to argue to
               jury not to be concerned with technical language
               of charges or with fancy legal principles and
               jargon lawyers use; sufficiency of evidence


97-429         State of NH                v.  French,* Darrell J.
               Attorney General               James E. Duggan
                                              R. Peter Decato

               Theft by deception - failure to instruct jury that
               proof of a course of conduct was an element of
               offense; denial of motion for directed verdict;
               failure of trial judge to answer jury question
               correctly


97-430         State of NH                v.  Montgomery,* Robert
                                                L.
               Attorney General               James E. Duggan
                                              David M. Rothstein

               Aggravated felonious sexual assault, felonious
               sexual assault - numerous issues including failure
               to allow deposition of victim, denial of motion to
               present exculpatory evidence to grand jury,
               admission of uncharged sexual misconduct, denial
               of motion to discover confidential records,
               various evidentiary rulings, and failure to strike
               statements from presentence investigation report


97-437         State of NH                v.  Racine,* Kelly A.
               Attorney General               James E. Duggan
                                              Chris McLaughlin,
                                                Jr.

               Possession of controlled drug with intent to sell
               - whether search and seizure of motor vehicle was
               proper inventory search; whether search and
               seizure of fanny pack was proper Terry search;
               whether officer had probable cause to arrest;
               sufficiency of indictment; admissibility of
               evidence; exclusion of codefendant's statements
               that tended to exculpate defendant; allowing
               officer to testify that paper found on defendant
               was a drug ledger


97-438         State of NH                v.  Gavell,* Steven
               Attorney General               James E. Duggan
                                              Thomas A. Ficarra

               Second degree assault - denial of motion to
               suppress photo lineup identification; denial of
               right to impeach victim with prior conviction for
               possession of property without a serial number,
               and with pending indictments for criminal
               threatening, theft and armed robbery


97-443         State of NH                v.  Nadeau,* Ernest
               Attorney General               James E. Duggan
                                              Mona Ingram

               Driving after certification as habitual offender -
               failure of police to give Miranda warnings;
               failure of trial judge to give missing witness
               jury instruction; consideration at sentencing of
               substance abuse interview held without counsel
               being informed or present; failure to permit
               cross-examination of police officer regarding
               unrelated matter in which judge found officer's
               testimony not credible; whether court erred in
               questioning individual jurors regarding bias
               during deliberations


97-453         State of NH                v.  Seligman,* Michael
               Attorney General               James E. Duggan
                                              Eric R. Wilson

               First degree assault - admission of expert
               testimony of shaken baby syndrome absent evidence
               linking defendant to injuries; sufficiency of
               evidence; admission of hearsay test results and
               medical findings of non-witness health care
               providers


97-454         State of NH                v.  Morand,* Kenneth
               Attorney General               James E. Duggan
                                              Sven D. Wiberg

               Aggravated felonious sexual assault - admission of
               hearsay statements of victim; failure to order
               State to produce exculpatory evidence;
               inflammatory cross-examination by State regarding
               sexual practices of homosexuals; exclusion of
               impeaching videotaped interview of victim;
               inflammatory argument to jury regarding how child
               molesters work and misstatements of evidence


97-459         State of NH                v.  Dingman,* Robert
               Attorney General               James E. Duggan
                                              Caroline L. Smith

               First degree murder, conspiracy to commit murder -
               whether court impermissibly modified Wentworth
               reasonable doubt jury instruction; failure to
               obtain clarification of ambiguous jury question
               before answering it; failure to instruct jury in
               accordance with allegations in indictment; denial
               of due process and speedy trial; Miranda
               violations; denial of mistrial; denial of request
               that communications with his brother in
               preparation for trial be recorded