Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - December 2000

	 * denotes appealing parties

99-802    State of NH             v.    Gordon,* Steven
          Attorney General              James E. Duggan
                                        Philip Desfosses

          Aggravated felonious sexual assault, kidnapping -
          numerous issues including violation of doctrine of
          specialty where defendant was tried on charges other
          than those for which he was extradited from Belgium;
          admission of hearsay; denial of mistrial when witness
          testified to prejudicial evidence previously excluded
          from trial; sufficiency of evidence; whether court
          erred by imposing sentence of life without parole under
          RSA 632-A:10-a when at time of the convictions
          defendant had not been twice previously convicted

00-096    State of NH              v.   Long,* Stephen J.
          Attorney General              James E. Duggan
                                        David M. Rothstein

          Burglary - restitution; whether victim's claim of
          $28,600 in lost sales volume as a result of burglary
          was supported by competent evidence; whether court's
          award of 50% of $28,600 as restitution award was
          supported by competent evidence

00-347    State of NH              v.   Koschara,* W. Fred
          Attorney General              James E. Duggan
                                        Jennifer W. Riggs

          Driving after certification as habitual offender -
          failure of court to reexamine underlying misdemeanor
          conviction where defendant lacked proper notice of the
          charge, discovery, an attorney, and opportunity for
          jury trial; whether habitual offender statute violates
          Part I, Article 18 of State Constitution by equating
          lightest offenses with most flagrant offenses; denial
          of motion to dismiss felony indictment and sentence on
          misdemeanor offense where indictment did not allege an
          underlying conviction necessary to upgrade offense to a

00-450    State of NH              v.   Gardner,* Robert
          Attorney General              James E. Duggan
                                        Dorothy E. Graham

          Probation violation - admission of hearsay; whether
          court erred in permitting testimony of police officers
          in lieu of live testimony of victim; whether court
          erred in deciding that victim's hearsay statements were
          reliable based upon information communicated to judge
          on an ex parte basis

00-451    State of NH              v.   Reed,* Randall
          Attorney General              James E. Duggan
                                        E. Jason Blankenship

          Probation violation - whether court violated due
          process and double jeopardy by finding defendant
          chargeable for conduct for which he had previously been
          sanctioned; whether court erred in ruling that for
          defendant to obtain in discovery records of department
          of corrections concerning his admissions defendant
          would have to waive his right not to incriminate

00-462    State of NH              v.   Smalley,* Steven
          Attorney General              James E. Duggan
                                        Joseph C. Malfitani

          Possession of cocaine, driving after suspension -
          denial of right to speedy trial; sufficiency of
          evidence; admission of statements made by defendant at
          time of arrest that were not provided to defense
          counsel in pretrial discovery

00-487    State of NH              v.   Sargent,* Wayne B.
          Attorney General              James E. Duggan
                                        Mark Larsen
                                        Caroline Hill

          Aggravated felonious sexual assault, felonious sexual
          assault - failure of trial court to review records
          relating to victims in camera; failure to authorize
          depositions of police officers, guardian ad litem,
          investigative social workers, victims' family members
          and victims' counselors; exclusion of expert testimony
          on reliability of child witnesses' memories in light of
          interviewing techniques used; admission of evidence of
          uncharged sexual contact; failure to prove that alleged
          acts occurred in county where defendant was tried

00-495    State of NH              v.   Gordon,* Steven
          Attorney General              Philip Desfosses

          Aggravated felonious sexual assault, attempted
          aggravated felonious sexual assault, kidnapping -
          failure to dismiss for lack of jurisdiction where
          charges were not mentioned in extradition request to
          Belgium, thus violating doctrine of specialty; failure
          to suppress defendant's statements; whether court erred
          in sentencing defendant to life in prison without
          parole under RSA 632-A:10-a, III when at time of acts
          leading to convictions defendant had not been twice
          previously convicted

00-513    State of NH              v.   Ayer,* Daniel Sr.
          Attorney General              James E. Duggan
                                        Julia M. Nye

          First degree murder - numerous issues including denial
          of motion to change venue; denial of motion to recuse;
          whether defendant asserted his right to counsel during
          unrecorded portion of interrogation; denial of request
          to present defenses of justification or manslaughter;
          hearsay; prior bad acts; whether jury selection is
          unconstitutional for failure to adequately compensate
          jurors; failure to allow defendant to proceed pro se;
          granting request for a view

00-524    State of NH              v.   Novak,* Charles
          Attorney General              James E. Duggan
                                        Donna J. Brown

          Possession of narcotic drug - denial of motion to
          suppress after officer testified that defendant was not
          incapacitated when he was taken into protective custody
          and searched

00-527    State of NH              v.   Spaulding,* Bert Jr.
          Attorney General              James E. Duggan
                                        Paul Twomey

          Aggravated felonious sexual assault, felonious sexual
          assault - numerous issues including denial of mistrial;
          denial of right to trial by jury when court informed
          jury that victims were minors; admission of hearsay;
          limitation on cross-examination of victim; exclusion of
          evidence regarding showers taken by victims

00-530    Squires, David W.,       v.   Cerva, Carolyn J.,        
          Susan E. Squires              Matthew Pepin,
          Kenneth C. Brown              Carparts 
                                        Distribution Center,
                                        Peerless Insurance
                                        James E. Owers
                                        Blake M. Sutton
                                        Cindy Robertson

          Workers' compensation lien - failure to give insurance
          carrier notice and ten days to object to petition to
          approve settlement agreement that compromised workers'
          compensation lien; failure to require that insurance
          carrier be impleaded; whether court erred by approving
          settlement agreement that prevents insurance carrier
          from enforcing its lien

00-531    State of NH              v.   Glodgett,* Rodney
          Attorney General              James E. Duggan
                                        Donna J. Brown

          Felonious sexual assault - numerous issues including
          failure to exclude evidence that defendant provided
          alcohol and drugs to victim; allowing State to bring
          additional indictments after convictions were reversed
          on appeal; limiting cross-examination of victim about
          sexual relationship with key witness for State;
          improper closing argument by State; failure to exclude
          photograph of victim

00-532    State of NH              v.   Foote,* Charles
          Attorney General              James E. Duggan
                                        Jeanne P. Herrick
                                        Bryan A. Clickner

          Violation of protective order, contempt of bail -
          failure of court to obtain written waiver of right to
          jury trial and to engage in on-the-record colloquy to
          ensure waiver was knowing and voluntary; whether court
          erred by relying solely on letter from defendant's
          attorney to find that defendant waived jury trial

00-538    Goldsmith, Ronald        v.   Stahle,* Millard
          William C. Sheridan           Barclay, Henry
                                        Albert Stahle, Jr.
                                        Catherine A. Feeney

          Foreclosure sale - statute of limitations; whether
          procedures at temporary injunction hearing satisfied
          due process

00-548    Leonard,* Barry S. Sr., Appeal of
          (department of labor)
          Robert P. Leslie
          Simon C. Leeming
          Attorney General

          Whistleblower's Protection Act - whether employee
          failed to make a report as required under Act; whether
          employee quit or was discharged; whether a grievance
          procedure existed that employee failed to utilize

00-553    HCA Health Services of   v.   Commissioner, NH
          New Hampshire, Inc. d/b/a     Department
          Portsmouth Regional Hospital  of Labor
          and Pavilion*                 Attorney General
          Ralph R. Woodman, Jr.         

          Wage adjustment decision - numerous issues including
          whether court correctly interpreted hospital's pay
          policy for per diem employees; whether rule requiring
          employer to notify employees in writing of their pay is

00-555    Costco Wholesale         v.   City of Nashua, City of
            Corporation*                Nashua Planning Board

          Cumberland Farms, Inc.   v.   City of Nashua, City of
                                        Nashua Planning Board

          Kashex Limited           v.   City of Nashua
          Partnership                   Stephen M. Bennett
          Ellen L. Arnold          
          Malcolm R. McNeill
          Robert B. Welts
          Paul Apple

          Municipal regulation - numerous issues including
          whether court erred by reversing ZBA's grant of
          variance; whether evidence supports court's finding of
          other reasonable use of property; exclusion of evidence
          of legislative history; whether denial by planning
          board of site plan based on traffic impact was

00-556    In the Matter of Janice Yannalfo and Gary Yannalfo*
          Steven G. Shadallah           John C. Sullivan

          Divorce - whether court erred in finding it would be
          unconscionable to enforce antenuptial agreement;
          whether court erred in relying upon "subtle form of
          duress" as grounds for voiding antenuptial agreement

00-560    Dennett, Diana L.        v.   City of Portsmouth,
          Francis X. Bruton             Jerome Gittlein,* Joan   
          Robert A. Shaines             Gittlein
                                        Robert P. Sullivan
          Municipal regulation - variance; failure to dismiss
          issue not included in request for rehearing before ZBA;
          failure of trial court to hear evidence; whether ZBA
          applied correct standard of review; whether use of
          first floor for beauty parlor was a permitted natural
          expansion of existing variance

00-571    State of NH              v.   Gelinas,* Susan P.
          Attorney General              James E. Duggan
                                        Stephen T. Jeffco

          Conspiracy to sell cocaine - whether court erred by
          advising jury that entrapment was not an umbrella
          defense and that jury should consider each indictment

00-580    In the Matter of Gayle Satterfield and Scott
          Matthew J. Lahey
          Robert Hemeon

          Divorce - allowing alimony as issue when it was waived
          at final pretrial conference; whether court erred by
          casting obligation to pay second mortgage as alimony in
          order to circumvent federal bankruptcy law; unequal
          property division

00-601    State of NH              v.   Stanley,* Cornelius
          Attorney General              Philip R. Desfosses

          First degree assault, reckless conduct, second degree
          assault, conduct after an accident, driving after
          certification as a habitual offender, resisting arrest
          - sufficiency of evidence; whether elements of conduct
          after an accident were subsumed in charge of first
          degree assault, violating double jeopardy; failure to
          allow defendant to use a truck as demonstrative
          evidence at trial

00-606    Fletcher, Robert         v.   Gillespie,* Brett N.
          pro se                        James S. Clark-Dawe

          Negligence - small claim; whether court erred by
          applying res ipsa locquitor standard to determine that
          defendant breached duty of properly fencing in horse;
          whether plaintiff was negligent in failing to avoid

00-607    In the Matter of Bruce P. Bunker* and Gretchen L.N.
          Philip R. Waystack, Jr.
          Thomas A. Rappa, Jr.

          Divorce - sufficiency of evidence; whether court erred
          by ordering petitioner to pay more than $100,000 to
          respondent within 60 days; requirement that educational
          trust of $100,000 be set up; misapplication of RSA
          458:16-a, II(n) to respondent's inheritance and
          equitable rights in property of her deceased parents;
          whether appearance of impropriety was created 

00-609    Campbell, Gilbert        v.   Pelkey,* Robert
          Francis T. Talty              Brian C. Shaughnessy

          Landlord-tenant - eviction; whether notice to quit
          sufficiently specified factual basis for eviction;
          whether actions of tenant must be based on objective
          determination of whether those actions adversely affect
          health and safety of other tenants; whether hearsay
          exception in RSA 540:16-a violates due process; whether
          court erred in applying hearsay exception in RSA

00-611    Taylor,* Joseph, Appeal of
          (compensation appeals board)
          Vicki S. Roundy
          James Owers
          Attorney General

          Workers' compensation - whether claimant sustained
          work-related injury; whether injury has insidious
          onset; whether board applied appropriate standard of

00-614    State of NH              v.   Michalik,* Adam T.
          Attorney General              Richard N. Foley

          Driving while intoxicated - sufficiency of evidence

00-615    Caswell,* Peter, Carla   v.   Acadia Insurance Company
          Foster, Caswell Pump          Andrew D. Dunn
          Company, Inc.
          Jack B. Middleton        

          Uninsured motorist coverage - failure to construe
          insurance policy as a whole; failure to consider
          totality of circumstances in determining whether
          insured reasonably believed he had coverage; denial of
          attorney's fees

00-617    CNA Insurance Company,* Appeal of
          (compensation appeals board)
          James E. Owers
          Edward F. Patch
          Bryan W. Clickner
          Attorney General

          Workers' compensation - ordering payment for medical
          expenses for cumulative trauma injury where claimant
          was never disabled or lost earning capacity; whether
          date of cumulative trauma injury was a date after
          claimant began experiencing symptoms but before seeking
          medical treatment rather than date board found that
          claimant lost earning capacity

00-621    Union Leader Corporation,* Petition of
          Gregory V. Sullivan
          Attorney General

          Public access to court records - whether superior court
          is required to provide records, including minutes, of
          meetings of the superior court judges

00-623    Hardy,* Lavona, Appeal of
          (compensation appeals board)
          Robert J. Rabuck
          Donna Daneke
          Attorney General

          Workers' compensation - whether board erred by denying
          requests for findings of fact; failure of board to find
          second, distinct and trauma-inducing incident that
          caused the claimant's symptoms

00-625    State of NH              v.   Sullivan,* Brian
          Attorney General              Bruce E. Kenna

          Negligent homicide, second degree assault, aggravated
          driving while intoxicated - whether State knowingly
          presented false testimony; whether prosecutor misstated
          evidence in closing; sufficiency of evidence

00-626    Humphrey,* Gordon J.     v.   Governor
          Alfred Rubega                 Attorney General

          Right-to-Know Law - whether court erred by ruling that
          plaintiff has cited no authority for proposition that
          public's right to know requires unfettered access to
          every file drawer in every State office when plaintiff
          didn't make that argument; whether court erred in
          finding that defendant responded fully to plaintiff's
          requests that could be construed as satisfying
          requirements of RSA 91-A:4, IV

00-630    In the Matter of Christopher W. Crowe* and Jennifer M.
          Marilyn Billings McNamara
          Robert J. Foley

          Divorce - whether property distribution, alimony, and
          child supports awards were excessive; whether court
          applied proper standard in distributing property;
          whether court erred by subsuming period of cohabitation
          into the period of marriage; whether Rahn v. Rahn, 123
          N.H. 222, applies to short term marriage when parties
          have children; erroneous calculation of monthly income;
          failure to deduct alimony from income when calculating
          child support

00-643    Price,* Adam, Appeal of
          (compensation appeals board)
          John E. Lyons
          Charles T. Giacopelli
          Attorney General

          Workers' compensation - whether injury arose out of
          course of employment

00-646    Irving Oil Corporation*  v.   Town of Newport
          Howard B. Myers               Adele Fulton

          Property tax abatement - whether underground petroleum
          storage tanks, piping, gasoline dispening pumps,
          gasoline station canopies, and convenience store
          coolers are personal property or taxable as fixtures

00-650    State of NH              v.   Hatch,* Robin
          Attorney General              pro se

          Cruelty to animals - reduction of felony to class B
          misdemeanor on date of trial; double jeopardy; whether
          defendant should be entitled to return of animals

00-667    Corcoran, Michael*       v.   Buckley, George K, III
          Elizabeth Cazden              d/b/a Buckley Ins. Agency
          Eugene D. Loo                 Robert J. Meagher

          Malpractice - whether statute of limitations
          discovery rule properly applied; whether
          conduct of insurance agent tolled application
          of discovery rule; whether discovery rule is
          tolled during administrative hearing

00-669    Evans, Jeffrey A.*       v.   Town of Sutton, 
          Donald E. Gartrell            Arkadi Nikiforow,
                                        Catherine Nikiforow
                                        Walter L. Mitchell
                                        Charles P. Bauer

          Municipal regulation - planning; whether
          modifying board's decision was abuse of
          discretion; whether decision is reasonably
          supported by evidence

00-670    Cricklewood on the       v.   Cricklewood on
          Bellamy Condominium           the Bellamy Trust,
          Assoc.*                       Cricklewood Trust,
          Christopher E. Grant          Bellamy River Village,
                                        Paul McEachern
                                        Christopher Cole 

          Easement rights - whether finding that sewer,
          utility and transportation easements survived
          foreclosure was erroneous as a matter of law

00-672    Brown, Linda,* Appeal of 
          (compensation appeals board)
          Kathryn J. DePree
          Eric Falkenham
          Attorney General

          Workers' compensation - whether board erred
          in finding claimant failed to meet her burden
          of proof; whether board erred in failing to
          consider supplemental medical records in
          motion for rehearing; numerous issues
          relating to board's findings

00-675    State of NH              v.   Gabusi,* Lorraine G.
          Attorney General              Mark L. Sisti

          Theft by unauthorized taking or transfer,
          theft by deception - whether allowing State
          witnesses to testify regarding decedent
          victim statements while denying defendant to
          testify to same was error; whether concluding
          testimony of witnesses was untrustworthy was
          erroneous as a matter of law; whether
          awarding civil attorney's fees as restitution
          was error