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
felony
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
himself
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,
Inc.,
Peerless Insurance
Company*
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
valid
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
reasonable
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
separately
00-580 In the Matter of Gayle Satterfield and Scott
Satterfield*
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
horse
00-607 In the Matter of Bruce P. Bunker* and Gretchen L.N.
Bunker
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
540:16-a
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
proof
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.
Crowe
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,
LLC
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