Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - June 2001

01-165 State of NH v. Hokenstrom,* Kevin
Attorney General Donna Brown
Jaye Rancourt Vigue
David M. Rothstein
Aggravated felonious sexual assault – numerous issues including denial of speedy trial; exclusion of expert testimony on child suggestibility; failure to give missing witness jury instruction; failure to exclude photograph of victim; failure to permit cross-examination about prior bad act of victim
01-166 State of NH v. Rivera,* Ernesto
Attorney General Raylene Wentz-Fischer
David M. Rothstein
Simple assault – allowing cross-examination of defendant about prior bad act; use of term "victim" by court during jury instructions; dismissal of juror without consulting or informing defendant
01-172 State of NH v. Watkins,* Bruce
Attorney General Todd R. Russell
David M. Rothstein
Driving after certification as habitual offender, disobeying a police officer – failure to dismiss indictment; allowing State to use prior conviction for driving after habitual offender certification in State's case-in-chief; misrepresentation of law by State in closing argument
01-185 Jenkins,* Amanda, by her Parents and Next Friends, Elizabeth McNeill Jenkins and David Jenkins, Elizabeth McNeil Jenkins and David Jenkins, Individually v. The Hitchcock Clinic, Ellene Andrew, M.D. and Elliot Hospital
Bruce W. Felmly
Ralph F. Holmes
Peter Mosseau
Ronald Snow
Medical malpractice – whether evidence supported verdict for defendants on informed consent claim and negligent treatment claim
01-189 In re Estate of Geraldine Raduazo
John P McGee, Jr. for petitioner, Terry D. Ashe*
Attorney General
Medicaid lien – effect of tobacco litigation settlement; whether State, by bringing action against tobacco companies for Medicaid payments and by settlement of suit, released its Medicaid lien against petitioner's homestead under principles of subrogation and unjust enrichment; whether State required to release its lien pursuant to 42 U.S.C. §1396K(b)
01-191 State of NH v. Couture,* Wayne M.
Attorney General Linda J. Slamon
Greg O’Connell
David M. Rothstein
Aggravated felonious sexual assault – prohibiting cross examination of victim regarding frequency of sexual activity, regarding prior criminal jury trials she had seen, and regarding prior use of klonopin; failure to rule prior to trial on motion in limine to exclude hearsay; use of rules of evidence book by prosecutor during closing argument
01-192 In the Matter of Nancy J. Gilmore and William E. Gilmore, Jr.*
Robert A. Shaines for Nancy
Edwinna C. Vanderzanden for William
Post-divorce proceedings – ordering respondent to pay sums in addition to tuition, books, fees, room and board for adult child
01-201 Kenneth M. Desjardins Builder, L.L.C. v. Adams, Laurel and Estate of John Humphrey*
Frank P. Spinella Paul R. Cox
Robert S. Ross, Jr.
Construction contract – whether plaintiff bears burden of proof as to reasonableness and necessity of the builder's costs in an action by builder for owner's breach of cost-plus contract; cross-appeal – whether attorney's fees award should have been determined by jury or by court
01-206 State of NH v. Dupuis,* Michael
Attorney General John G. Vanacore
Probation violation – where defendant's wife was not residing at family homestead at time defendant entered home, did defendant thereby violate protective order; lack of notice of what constituted wife's residence; due process
01-207 State of NH v. Lantas,* Alexander
Attorney General Anthony F. DiPadova, Jr.
Probation violation – denial of right to confrontation; admission of "individual specimen report" without requiring testimony of analyst or other laboratory employee; inadmissible hearsay
01-217 Vachon, Michael v. New England Towing, Inc.*
Thomas Craig Richard E. Mills
David P. Eby
Negligence – whether court erred by instructing jury on plaintiff's lost earning capacity; whether medical expert's testimony was based on medical degree of certainty or probability; admission of lay opinion not based on personal knowledge; sufficiency of evidence
01-219 Heartz, Joan, Bruce Calkins*

Johnson,* Robert V., II

City of Concord and Professional Realty Corporation, Intervenor
City of Concord and Professional Realty Corporation, Intervenor
Grant Kidd
Robert V. Johnson, II
Paul Cavanaugh
Mark Rouvalis
Municipal regulation – whether planning board engaged in site plan/site plat review appealable under RSA 677:15 and requiring abutter notice and a public hearing; whether appellants were required to appeal interpretation of RSA 676:4, I, to zoning board of adjustment before challenging planning board's failure to comply with RSA 676:4, I; whether right of way may be used to benefit non-dominant third estate; whether proposed use of right of way overburdens right of way; application of "rule of reason"; whether court erred in granting summary judgment
01-222 Radion,* Paul v. Nelson, Audrey
William E. Conner Susan Hankin-Birke
Accounting, recovery of personal and business property – default; whether court erred by defaulting plaintiff when defendant prevented plaintiff from carrying out court-ordered inventory; whether default and order requiring payment of $5,000 to vacate default were abuse of discretion; res judicata
01-223 State of NH v. Foss,* Duane B.
Attorney General Andrew F. Cotrupi
Sexual contact with inmate – numerous issues including sufficiency of evidence; failure to dismiss after victim testified she sought out and initiated contact; erroneous jury instructions; denial of discovery depositions and bill of particulars; late disclosure by State of recantations; whether requiring defendant to register as a sex offender because of this conviction violates State or Federal Constitutions
01-224 Shallow River Properties, Inc.,* Appeal of
George R. Moore, Daniel J. Callaghan, and Daniel E. Will for Shallow River
Timothy Bates for Town of Northumberland
Attorney General
Property taxes – charitable exemption; whether petitioner lacks a charitable mission or purpose; whether lease arrangements are in clear excess of fair market value
01-235 Petition of Colleen M.*
Judy T. Constantian for Colleen M.
Paul DeCarolis for Thomas L.
David Sandberg for GAL (CASA)
Ann Larney for Attorney General
Child abuse and neglect – whether district court orders remained in effect during pendency of appeal from superior court order dismissing matter; whether district court erred by vacating protective orders issued to protect child; whether district court erred by ruling it would close case with prejudice prior to ruling by supreme court on appeal
01-238 State of NH v. Bernard,* James A.
Attorney General David M. Rothstein
Randy Hawkes
Aggravated felonious sexual assault – whether defendant opened the door to admission of prior bad acts
01-240 State of NH v. Glodgett,* Rodney
Attorney General David M. Rothstein
Donna J. Brown
Felonious sexual assault – admission of prior bad acts; exclusion of evidence regarding victim's alleged sexual relationship with State's witness; denial of mistrial after witness disclosed to jury that defendant was in prison; failure to exclude prejudicial photograph
01-250 State of NH v. Lamontagne,* Henry
Attorney General Mark L. Sisti
Attempted burglary – failure to dismiss in light of intentional destruction of physical evidence; sufficiency of evidence
01-255 City of Manchester, NH,* Appeal of
Thomas I. Arnold, III
Thomas F. Irwin
Attorney General
Robert B. Culliford
Railroad appeals board – whether Conservation Law Foundation alleged all statutory elements of its claim; whether federal statutes preempt department of transportation's ability to preserve railroad rights of way; whether board erred in ruling that RSA 228:62 requires department of transportation to establish State plan regarding rail properties; whether City of Manchester complied with RSA chapter 228 in the notification, purchase and sale of rail line; whether hearings examiner on remand may consider second amended petition for declaratory ruling and other relief regarding preservation of railroad line
01-256 In the Matter of Barbara A. Mahoney and Daniel P. Mahoney*
Steven Shadallah for Barbara A. Mahoney
James B. Hobbs for Daniel P. Mahoney
Mary Ann Callanan, GAL
Divorce – failure to enumerate reasons for custody decisions; failure to deviate from child support guidelines; failure to allow GAL to obtain psychological evaluations of the parents
01-260 State of NH v. Galvin,* Gerald "Sven"
Attorney General David Horan
Burglary, kidnapping, violating protective order, resisting arrest, false imprisonment – double jeopardy; denial of motion to dismiss where State’s police witness violated court order limiting his testimony; admission of victim's testimony that she believed defendant was going to kill her; insufficient indictment
01-262 State of NH* v. Roache, Donald
Attorney General Andru H. Volinsky
Aggravated felonious sexual assault – motion to suppress; whether right against self-incrimination in State Constitution requires police to inform suspect during custodial interrogation of an attorney's efforts to contact him in order for the suspect's waiver of his Miranda rights to be valid
01-264 State of NH v. Pratt,* Robert
Attorney General Mark L. Sisti
Probation violation – sufficiency of evidence that petitioner lied to probation officer and obstructed investigation; whether court erred by ordering incarceration
01-266 Wilcox,* Joseph, Kathleen Wilcox v. Concord Orthopaedics, P.A. and Ronald B. Resnick, M.D.
Thomas Craig Robert Larsen
Medical negligence – prohibiting plaintiff from arguing that defendant was liable for negligence of a co-employee; admission of evidence that plaintiff's intoxication at time of injury was indicative of his inability to comply with bracing, casting or surgical treatment for his spinal deformity
01-267 Dube,* Dennis P., Appeal of
Shawn E. Nichols
Andrew A. Merrill
Attorney General
Workers' compensation – whether board acted ultra vires by terminating benefits in retroactive abrogation of parties' express agreement