New Hampshire Supreme Court
Cases Accepted - October 1997
* denotes appealing parties
97-110 State of NH v. Robinson,* Bruce
Attorney General James E. Duggan
Jean Terranova
Probation violation - whether State proved
defendant had unsupervised contact with minor
based solely on unsolicited statement of
defendant, a mentally retarded probationer
97-433 Johnson,* Joanne, Appeal of
(personnel appeals board)
A.G. O'Neil, Jr. for Ms. Johnson
Attorney General for New Hampshire Hospital
Public employment - disciplinary suspension;
whether board erred under RSA 21-I:58, after
ruling that employer violated personnel rules in
terminating employee, in fashioning its own remedy
of a one-year suspension without pay; whether
suspension could be ordered where personnel rule
requires prior warning for same offense and
employee had never received prior warning; whether
one-year suspension was unreasonable and unjust
97-435 Basanta, Kathleen C. v. Basanta,* Raymond I.
III
Helen M. McKittrick William H.M. Beckett
Post-divorce proceedings - child support; failure
to reduce support; erroneous calculation of "net
bonus" as defined in permanent stipulation;
whether court erred in assessing attorney's fees
for "dilatory conduct"
97-461 In re Frank S.*
Michael J. Atkins for Frank S.
Attorney General
Imposition of suspended sentence - juvenile;
violation of right to jury trial, equal protection
and due process; whether juvenile court had
jurisdiction to impose suspended sentence and send
juvenile who is 17 years old to house of
corrections until his 18th birthday; violation of
right to counsel
97-471 Murphy, Penchan v. Murphy,* Bruce E.
Valerie C. Raudonis Mitchell P. Utell
Barbara Millar, GAL
Post-divorce proceedings - child custody; whether
court erred in dismissing motion to change custody
without an evidentiary hearing on grounds of res
judicata
97-476 Federal Bake Shop* v. Farmington Casualty
Company
Barry M. Scotch John A. Lassey
Building and personal property insurance - whether
flow of water caused by failure of plumbing
fixture falls within exclusion in insurance policy
for continuous or repeated seepage or leakage of
water that occurs over a period of 14 days or more
97-515 In re Brittany L.
Paul J. Bennett, for the father*
Kathleen Goulet, for the mother
Wayne R. Healey, GAL
Termination of parental rights - standard of
proof; failure to permit impeachment of
petitioner's brother; sufficiency of evidence;
denial of right to confront witnesses due to
inability of prisoner-father to be present at
hearing
97-529 Goss, David M., v. State of NH, City of
Individually and as Manchester*
Administrator of the
Estate of Kimberly S.
Goss
Charles G. Douglas, III Stephen J. Judge
James Kazan for State
Donald E. Gardner
for City
Wrongful death - municipal immunity, proximate
cause; whether City's action in releasing arrested
parolee on bail prior to receiving NCIC report
indicating parolee status and failure to include
report in arraignment file is entitled to
discretionary immunity; whether superior court
erred in denying City's motion for summary
judgment and in failing to rule that intervening
and superseding events broke chain of City's
liability; whether superior court erred in ruling
that City's alleged ministerial failures could be
considered proximate cause of decedent's death;
interlocutory appeal
97-548 State of NH v. Britch,* Alton
Attorney General James E. Duggan
Stephen T. Jeffco
Felon in possession of firearm, criminal
threatening - sufficiency of evidence that firearm
was operable or capable of discharge
97-554 State of NH v. Sargent,* Wayne
Attorney General James E. Duggan
Jonathan R. Saxe
Aggravated felonious sexual assault, felonious
sexual assault - numerous issues including failure
to appoint expert regarding improper interview
techniques and false memory implantation, and to
rebut State's expert regarding inconsistencies in
child victims' testimony; admission of evidence
regarding child sexual abuse accommodation
syndrome; exclusion of evidence of prior sexual
abuse suffered by victim; exclusion of evidence
favorable to defendant
97-574 State of NH v. Moses,* Elwin
Attorney General James E. Duggan
Julia M. Nye
Aggravated felonious sexual assault, simple
assault - erroneous jury instruction on
corroboration; limiting scope of cross-examination
of victim regarding prior consensual sex with
defendant where defense is consent; exclusion of
evidence of victim's dishonesty pursuant to NH
Rule of Evidence 608(b)
97-577 Goss, David M., v. State of NH,* City
Individually and as Manchester
Administrator of the
Estate of Kimberly S.
Goss
Charles G. Douglas,III Stephen J. Judge
James Kazan for State
Donald E. Gardner
for City
Wrongful death - sovereign immunity, proximate
cause; whether superior court erred in denying
State's motion for summary judgment on grounds of
proximate cause; whether superior court erred in
denying State's motion for summary judgment and in
ruling that State was not entitled to sovereign
immunity for the performance of discretionary
functions and/or for the non-performance of
recognized ministerial obligations; interlocutory
appeal
97-588 State of NH v. Sonthikoummane,*
Bountham
Attorney General James E. Duggan
Edward Philpot, Jr.
Conspiracy to sell or dispense controlled drug
within 1000 feet of school - admission of evidence
relating to evidence suppressed due to unlawful
search and seizure; admission of irrelevant
evidence of defendant's so-called "unexplained
wealth"
97-589 State of NH v. Goodale,* Warren III
Attorney General James E. Duggan
Brian McEvoy
Second degree assault - numerous issues including
denial of request for medical information from
victim and other discovery, denial of motion to
suppress, admission of two prior convictions,
failure to disqualify juror, whether court erred
in allowing deliberations to proceed when court
had knowledge of diametrically opposing statements
by victim both given under oath
97-614 State of NH v. Flynn,* Raymond X.
Attorney General Gillian Morrison
Thomas A. Hensley
Burglary, theft - sufficiency of evidence
97-617 State of NH v. Ford,* Scott
Attorney General James E. Duggan
Joseph C. Malfitani
Robbery while armed with deadly weapon, theft -
whether defendant's confessions were voluntary and
made pursuant to Miranda warnings; admission of
purchase orders without proper foundation and
without redacting hearsay statements; whether
sentences for both theft and robbery offenses
violated double jeopardy
97-657 Hungerford, Joel v. Jones, Susan L.
Robert W. Upton, II Edward M. Kaplan
Paul A. Maggiotto
Negligence, professional malpractice - duty;
whether mental care provider owes a duty to father
of adult patient to diagnose and treat patient
with requisite skill and competence of profession
when diagnosis is that father sexually abused the
patient; whether mental care provider owes a duty
to act with reasonable care to avoid foreseeable
harm to father resulting from treatment or other
action taken in relation to diagnosis;
certification from U.S. District Court
97-661 In re John C.
Janet F. DeVito, for the mother*
Attorney General
Judith A. Roman, GAL
Child abuse and neglect proceeding - whether court
erred in modifying dispositional order on new
grounds not specified in original petition;
failure to provide full evidentiary hearing;
whether DCYF demonstrated no physical harm to
child, whether evidence was sufficient to remove
child from home
97-682 Hacking, Chelsea, by her v. Belmont, Town of,
parents and next and Shaker
friends Nancy and Regional School
Charles Hacking, Jr. District
Gary Casinghino Donald E. Gardner
Personal injury - municipal immunity; whether
superior court erred in denying motion to dismiss
on grounds that defendants are not entitled to
discretionary immunity for actions of coaches and
referees during school basketball game and for
decisions regarding selection, training and
supervision of coaches and referees; whether
plaintiffs' action is barred by assumption of
risk; whether doctrine of respondeat superior
applies if coaches and referees are immune from
suit; interlocutory appeal