Justia Criminal Law Opinion Summaries

Defendant Saad Moussa appealed his convictions, and sentences on three counts of stalking entered following a jury trial in Superior Court. In 2005, the Rockingham County grand jury returned three indictments against the defendant, each alleging a separate incident of stalking the victim, to whom he had been married for approximately eleven years. According to the victim's testimony, they were divorced at the time of trial. Each charged incident involved the defendant allegedly sending a letter to the victim "after having been served with or otherwise provided notice of a protective order issued by the Salem Family Court on 12/10/04, that prohibited him from having contact with [her]." The defendant argued on appeal to the Supreme Court that the trial court erred in: (1) requiring him to choose between self-representation and representation by a lawyer he wanted to dismiss; (2) making certain evidentiary rulings; (3) denying his request for counsel at sentencing; and (4) imposing felony sentences. Finding no error in the Superior Court record, the Supreme Court affirmed.

Defendant Josiah Davies appealed a district court order that partially denied his motion to withdraw his guilty plea and vacate his conviction. Defendant was charged with two counts of false imprisonment and one count of simple assault following a single incident of alleged domestic violence. On June 1, 2009, he appeared pro se for arraignment on the three class A misdemeanor charges. Prior to his arraignment, he spoke with the prosecutor regarding a potential plea agreement. During this discussion, Defendant indicated his intention to plead guilty, and then signed the acknowledgement and waiver of rights form that the prosecutor provided him. At this time, he was nineteen years old and had a GED and some technical college experience. The scheduled arraignment then went forward as a plea hearing. On appeal, Defendant argued that he did not enter a valid guilty plea because he was not advised of the essential elements of the simple assault charge. He contended, therefore, that his plea was not knowing, voluntary, and intelligent as required by Part I, Article 15 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. Finding no abuse of the trial court's discretion, and no violation of his constitutional rights, the Supreme Court affirmed the trial court's decisions to deny Defendant's motion to withdraw his plea.

Following a jury trial in Superior Court Defendant, Bryan Alwardt was convicted of second degree assault and criminal restraint based on accomplice liability principles. On appeal, he argued that the trial court erred in: (1) failing to dismiss the assault charge due to insufficient evidence; (2) failing to dismiss the criminal restraint charge as against the weight of the evidence; (3) not ordering disclosure of all of the victim’s counseling records; and (4) prohibiting cross-examination of the victim regarding certain drugs found in her boyfriend’s apartment. Finding no error, the Supreme Court affirmed.

D.B. appealed the Manchester Family Division's finding of delinquency based on misdemeanor sexual assault. D.B. was accused of inappropriately touching and subsequently threatening the female complainant while the two rode home on the school bus. On appeal, D.B. challenged the sufficiency of the evidence presented against him. Upon review, the Supreme Court found that the complainant’s direct testimony indicated that D.B. put his hand down her shirt and touched her breasts. She further stated that the he put his hand down her pants and “ran it” down to her ankle. This evidence failed to describe in what way the juvenile overcame her with the actual application of physical force. Nor did the surveillance video from the bus support the State’s position. Accordingly, the Court ruled that the State failed to present evidence sufficient to charge D.B. with misdemeanor sexual assault within the meaning of RSA 632-A:2, I(a). The Family Division's judgment was reversed and the case was remanded for further proceedings.

The Supreme Court granted an interlocutory appeal of a superior court order denying the State's request to compel Defendant Gary E. Marchand, to undergo a psychological evaluation by the State's expert. There were two issues presented to the Court: (1) does the right against self-incrimination prevent the State from compelling a defendant to undergo a psychological or psychiatric examination when he raises an insanity defense; and (2) if such examinations may be compelled, what procedures should trial courts use when ordering them? The Court answered the first question in the negative, and provide a procedural framework for courts to follow. Accordingly, the Court reversed in part, vacated in part, and remanded the case for further proceedings.

Defendant William Town was convicted after a jury trial of one count of aggravated felonious sexual assault which occurred sometime between 1990 and 1992. Defendant appealed his conviction, arguing the trial court erred in denying his motion to exclude a juror and by allowing the victim to testify about certain statements Defendant made. Furthermore, Defendant argued that the trial court erred in denying his motion for mistrial after testimony suggestive of uncharged acts of sexual misconduct and by providing a deadlock jury instruction after twice learning of the jury's split. Upon review, the Supreme Court reversed with regard to the disqualification of a juror, and remanded the case for further proceedings.

This case came before the Supreme Court pursuant to an order entered by the United States Supreme Court vacating the judgment in "New Hampshire v. Dilboy," (160 N.H. 135 (2010)) (Dilboy I), and remanding for further consideration in light of "Bullcoming v. New Mexico," (131 S. Ct. 2705 (2011)). On remand, the New Hampshire Supreme Court reconsidered only its holding on the Confrontation Clause issue. As to the other five issues, the Court's prior decision in Dilboy I remained unchanged. In Dilboy I, the Court affirmed the conviction of Defendant Anthony Dilboy, on two counts of manslaughter and two alternative counts of negligent homicide. The relevant issue before the Court in Dilboy I was whether the admission of certain evidence at trial violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. On appeal in Dilboy I, Defendant did not challenge the admission of certain blood evidence on "transmittal slips." Rather, he contended that the trial court erred in ruling that the blood test results were non-testimonial, and, accordingly, that an expert's testimony at trial about the test results violated the Confrontation Clause. In its reconsideration, the New Hampshire Supreme Court found that though the transmittal slips were admitted into evidence, the Court declined to address Defendant’s Confrontation Clause arguments because Defendant did not address the issue in his brief in Dilboy I. "Indeed, the defendant did not even brief the issue after the Supreme Court vacated Dilboy I, but rather raises the issue for the first time in a supplemental brief filed in response to an order issued by this court." After reconsidering its decision in light of "Bullcoming" and thoroughly reviewing the record, the Court affirmed its prior holding.

Defendant Steven Forest, appealed a superior court decision that denied his request for pretrial confinement on his sentences for conspiracy to commit burglary and accomplice liability for burglary. In 2007, Defendant was arrested on a parole violation warrant for various parole violations unrelated to the burglary charges. At the time of his arrest, he was also a suspect in a burglary at the A-1 Gas Station in Goffstown. That same day or shortly thereafter, he was formally arrested on charges arising out of the burglary and he was unable to post bail. A month later, a second parole violation warrant was issued in relation to the burglary charges. Defendant waived his right to a preliminary parole violation hearing pending resolution of the burglary charges. Following his arrest, Defendant was initially housed at the Hillsborough County House of Corrections; however, at some point, he was transferred to the New Hampshire State Prison as a result of the parole violation warrants. The burglary charges were not adjudicated until September 9, 2010. Defendant had been incarcerated for 1,154 days. Defendant filed a motion seeking pretrial confinement credit toward any sentence on the burglary charges for the entire period of his incarceration following his arrest in 2007. Defendant argued that since he had not yet had a parole revocation hearing, his parole had not been revoked and, thus, the entire period of his incarceration constituted pretrial confinement on the burglary charges rather than any other sentence of confinement. That same day, Defendant pled guilty to the charges in this case as part of a plea agreement. Under the plea agreement, Defendant was sentenced on each charge to three and a half to seven years, stand committed, with all but six months of the minimum sentence suspended. The sentences ran concurrent with one another but consecutive to any “parole setback.” This appeal followed. Upon review, the Supreme Court concluded that Defendant waived his rights and chose to wait for the burglary charges to be resolved before having a hearing before the parole board on the parole violation charges. "Had Defendant chosen to have a parole revocation hearing within forty-five days, he may have received a punishment for violating parole that he could have served pending resolution of the burglary charges. Any remaining time spent incarcerated before resolving the burglary charges would then have been allotted as pretrial confinement credit." The Court denied any pretrial credit and affirmed the superior court's order.

Free Bail Bonds appealed a district court's order that forfeited bonds guaranteeing the court appearance of Defendant Sean McGurk. Approximately one month before Defendant's scheduled appearance, he was arrested in Vermont and held in custody by the Vermont Department of Corrections pending trial there for offenses allegedly committed after the New Hampshire bonds were issued. The surety's representative then moved to revoke Defendant's bail. The trial court did not rule on this motion until Defendant's ongoing incarceration prevented him from appearing as scheduled. At that point, it forfeited bail over Defendant's objection. The surety moved to vacate the forfeiture order and, when its motion was denied, filed two motions to reconsider, both of which were also denied. The principal issue in this case concerned the forefeiture order and the denial of the surety's request for an evidentiary hearing. The Supreme Court rejected the surety's argument that the trial court treated the bonds as performance rather than appearance bonds. Although the court noted that Defendant's failure to appear resulted from his decision to travel to Vermont and commit crimes, the court's order made clear that it forfeited the bonds because Defendant failed to appear, not because of his criminal activity. The bonds guaranteed Defendant’s appearance, so the Court concluded forfeiture was entirely appropriate.

After a jury trial, Defendant Thomas Willey was convicted of one count of pattern aggravated felonious sexual assault. On appeal, he contended that the trial court erred in denying his motion for a mistrial or in the alternative, for further curative instructions to the jury. He also argued that the trial court sentenced him based upon improper considerations. Upon review, the Supreme Court affirmed Defendant's conviction, but vacated his sentence: "[b]ecause [the Court could not] conclude either that the trial court 'clearly gave no weight' to the improper factors [the Court] identified, or that it would have imposed the same sentence but for any improper factors that it may have considered, [the Court] vacate[d] the defendant's sentence and remand[ed] for resentencing."