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