Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - July 2001

0-673 State of NH v. Auger,* Ryan
Attorney General Jaye Rancourt Vigue
Interlocutory transfer - Imposition of sentence - whether a non-criminal violation level offense triggers imposition of a suspended sentence
01-083 State of NH v. Demeritt,* Robert
Attorney General Sven D. Wiberg Sven D. Wiberg
Negligent homicide, reckless conduct – numerous issues including allowing
evidence of defendant’s invocation of his right to remain silent; misleading introduction of prior convictions; exclusion of evidence of victim’s history of reckless driving; failure of judge to recuse herself; State’s failure to preserve exculpatory evidence; failure to give requested jury instruction; double jeopardy; hearsay
01-092 Perry, I. Chester v. Haley, Elmer C., Evelyn Haley,
Intervenors G. Malcolm McNeil,* Gordon B. McNeil, Trustee of the McNeil Trusts
Peter G. Hastings Fay E. Melendy
David J. KillKelley
for intervenors intervenors
Boundary dispute – petition for new trial; whether court erred in summarily denying new trial based on newly discovered evidence; due process
01-132 Rose,* Maureen

Grant Kidd
v. Town of Derry
Steve Clark
for intervenor Freedom Park Park Associates:

Paul DeCarolis
Municipal regulation – site plan approval; whether Freedom Park acquired vested rights to seek site plan review; whether failure to submit site plan is a minor procedural violation
01-139 In the Matter of John N. Hoxie* and Debra D. Hoxie
R. James Steiner for John N. Hoxie
Eaton W. Tarbell, Jr. for Debra D. Hoxie
Divorce decree –whether court erred in concluding parties had meeting of the minds concerning disposition of personal property
01-195 Kelsea,* Richard v. Town of Pembroke
pro se Robert Upton, II
R. James Steiner for intervenor, Wright Communications, Inc.
Municipal regulation – special exception; whether special exception was for a tower of a specific size; whether evidence supported finding that all conditions were met for special exception; whether court erred in finding that ZBA could reasonably disregard testimony of expert
01-214 Devanna, William,* E. Calvin Daughtrey, Homeplate Corp., Steven Hopkins, Sally Hopkins, Tatjana Lane, Philip Lussier, Daniel McAvoy, Herbert Newton, Craig Rawnsley, Jeff Robie, Julie Robie, Donald Snell, JoAnn Snell v. Town of Kingston
Russell F. Hilliard Peter J. Loughlin
Road reclassification – whether town legally and constitutionally reclassified road as class A trail; whether plaintiffs suffered damages as a result of the trail classification
01-218 Lamarche,* Eric, Petition of
Behzad Mirhashem
Attorney General
Sentence review division – whether sentence review division erred by increasing sentence to the statutory maximum
01-229 City of Nashua v. Scrap Metals, Inc.* (Successor in interest to ASG Disposal Services, Inc. and ASG Services, Inc.)
James M. McNamee, Jr. Gary H. Bernier
Municipal landfill – quantum meruit and contract action; failure to dismiss action based on successor liability; allowing plaintiff to amend writ; statute of limitations; sufficiency of evidence; failure to recuse plaintiff's counsel
01-241 State of NH v. Wright,* Brian
Attorney General Appellate Defender
Andrew S. Winters
Possession of narcotic drug – whether police may impound vehicle without express contemporaneous request of property owner; whether exclusionary rule applies to results of inventory search after vehicle was unlawfully impounded; failure of police to comply with established policy for inventory searches; whether officer had probable cause to believe defendant committed a violation in his presence
01-242 State of NH v. Hammell,* Michael
Attorney General pro se
Driving after certification as a habitual offender – motion to dismiss indictment and amend sentence – whether indictment alleges only misdemeanor offense rather than felony; due process; failure to allege and prove predicate offense necessary for felony conviction
01-244 State of NH v. Connor,* Nicholas
Attorney General Appellate Defender
Patrick W. Fleming
First degree assault – denial of funds to hire expert for psychological evaluation of defendant
01-258 State of NH v. Savini,* Donald E.
Attorney General Appellate Defender
Dennis P. O’Connor
Indecent exposure – statute of limitations; sufficiency of evidence; admission of prior bad acts
01-259 State of NH v. Dupont,* Timothy
Attorney General Appellate Defender
Julia M. Nye
Aggravated felonious sexual assault, felonious sexual assault – numerous issues including sufficiency of indictments; denial of bill of particulars; sufficiency of evidence; denial of mistrial; failure to suppress police interrogation; admission of various statements defendant made to victim; hearsay; admission of uncharged acts; whether court erred by telling jury that defendant's statement constituted direct evidence
01-270 State of NH v. Rosario,* Lorenzo
Attorney General Appellate Defender
Raylene Wentz-Fischer
Sale of controlled drug, sale of drug while on bail – admission of certificate of analysis over objection; sufficiency of evidence; double jeopardy; whether RSA 597:14-b applies when defendant was not on bail when he was convicted; cruel and unusual punishment; whether court erred by imposing consecutive state prison sentence contrary to RSA 597:14-b
01-275 State of NH v. Reyes,* Jose
Attorney General Appellate Defender
Paul J. Bennett
Criminal restraint, obstruction of justice, simple assault – denial of motion for new counsel, requiring defendant to proceed pro se; double jeopardy
01-284 Lawrence J. Dupont d/b/a Pine Garden Mobile Home Park v Hypse,* Ronald, Therese Hypse
William Philpot, Jr. Alvin E. Nix, Jr
Landlord-tenant – eviction from manufactured housing park; whether eviction was retaliatory; whether landlord waived eviction case; whether tree sap dripping on car materially affected leasehold; whether landlord acted in bad faith; whether park rule regarding tree trimming was reasonable; whether tenants violated tree trimming rule
01-286 State of NH* v. Ware, Benjamin
Attorney General Andrew Cotrupi
First degree assault, reckless conduct with firearm – motion to suppress; whether court applied incorrect legal standard in determining that defendant was in custody; whether facts support finding that defendant was in custody
01-287 Liberty Mutual Insurance Company,* Appeal of
John B. Schulte
Richard J. Walsh
Attorney General
Workers' compensation – whether board erred in awarding attorney's fees based on contingency fee agreement; erroneous award of interest on medical bills; failure to consider evidence on motion for rehearing that contradicted finding that petitioner failed to timely pay respondent's medical bills
01-288 In the Matter of Cheryl A. Coderre and Paul A. Coderre*
Keri J. Marshall for Cheryl Coderre
Mary Ann Callanan for Paul Coderre
Elizabeth Cazden for Paul Coderre
Divorce – child support; absent finding of special circumstance, may court order parent to pay support under guidelines plus all uninsured medical expenses and 78% of children's expenses for extracurricular activities; whether court imposed substitute for alimony upon respondent without making findings required for an alimony award; whether child support ordered is unjust
01-290 State of NH v. Glanville,* Charles
Attorney General Paul Twomey
Attempted armed robbery – motion to suppress; whether officer had reasonable suspicion of criminal activity to detain defendant on the street; whether police had reasonable belief that defendant was armed; whether search exceeded scope of protective frisk; whether defendant was arrested without probable cause
01-292 Von Handorf,* James, Appeal of
Peter G. Webb for Von Handorf
Paul L. Salafia for City of Nashua
Attorney General
Workers' compensation – whether employer is relieved of obligation to pay disability benefits when injured employee received replacement income in the form of sick leave during his disability
01-294 State of NH v. Ellison, Marie*
Attorney General Philip Desfosses
Resisting arrest, simple assault – application by court sua sponte of federal tort law to exclude evidence; failure to hold evidentiary hearing; exclusion of evidence of pattern of police conduct supporting claim that police arrested defendant for no good reason in racially charged atmosphere
01-302 In the Matter of Laurier A. St. Onge* and Diane M. St. Onge
Peter M. Solomon for Laurier A. St. Onge
Joseph L. Hamilton for Diane M. St. Onge (Serinsky)
Post-divorce proceedings – whether court erred by declining to reduce alimony
01-303 Marin Way Investments Corp v True Products Sampling Inc.*
Arthur Randlett Mark F. Sullivan
Landlord-tenant – commercial lease; whether terms of lease prevent application of right to cure under RSA 540:9; whether tenant had cured non-payment of rent three times within 12 months; whether notice to quit was sufficient; whether parties to commercial lease may waive terms of RSA chapter 540
01-306 State of NH v. Brown,* Kevin C.
Attorney General Paul Twomey
Driving while intoxicated – admission of result of horizontal nystagmus gaze test; sufficiency of evidence; imposition of maximum sentence without hearing from parties beforehand
01-307 Richards,* Tina E., Robert J. Richards v. Conway, Kevin
Kevin M. Leach
David L. Nixon
Carol L. Hess
Linda E. Frass
Negligence – personal injuries; use of defense-oriented pattern jury instructions; whether damages awarded were insufficient; failure to award damages for loss of consortium; cross-appeal – exclusion of cross-examination of plaintiff's expert regarding possible alternative explanations for herniated disc; excluding testimony regarding expert's reliance upon learned treatise; exclusion of evidence of prior personal matters related to marital relationship and personal history when plaintiff claimed loss of consortium and hedonic damages
01-308 McGrath, David* v. Town of Canaan
Daniel G. Smith Timothy Bates
Municipal regulations – water and sewer service; whether minimum charge for sewer and water is reasonable; failure of court to consider town's failure to adhere to its water ordinances; whether quarterly availability charge is illegal; failure to find town in violation of statutory requirement to make annual reports on condition of water and sewer systems; denial of attorney's fees
10-314 State of NH v Bridgewater,* Brian
Attorney General Appellate Defender
Christine Haydinger
Criminal mischief – sentencing; whether court violated due process by considering unsubstantiated belief that defendant forced defense witnesses to commit perjury when it imposed sentence
01-320 In re Adam M.
Attorney General for the State *
Robert Daniels for father
Paula Werme for mother
Stacy Evans GAL
Child neglect petition – whether court erred by not finding that the child was neglected in light of father's inability to discharge his responsibilities to and for the child because of his incarceration
01-322 In the Matter of Louise P. Werden and David B. Werden*
Patrick T. Hayes for David Werden
Thomas P.Mullins for Louise Werden
Post-divorce proceedings – failure to vacate default judgment; whether court erred by issuing final divorce decree based on petitioner's proposed order without a hearing; failure of trial court to recuse itself
01-323 Petition of K & N Hospitality Group, Inc.*
Richard Nolan Foley for K & N Hospitality Group, Inc.
Robert P.Sullivan for City of Portsmouth
Aiden J. Moore for Bureau of Liquor Enforcement and Licensing
Attorney General
Liquor license application – whether liquor commission violated due process by failing to follow its own rules and orders; whether denial of license violated equal protection
01-330 Vickerry Realty Co. Trust* v. City of Nashua
Francis L. Cramer James M. McNamee, Jr.
Property tax abatement – failure to consider actual net income from building; whether court erred by including reimbursable expenses adopted by defendant's expert as part of net income