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STATE OF NEW HAMPSHIRE SUPREME COURT
2010 TERM MAY SESSION
NO. 2009-0750
STATE OF NEW HAMPSHIRE
VS.
HAROLD GILL
MANDATORY APPEAL PURSUANT TO SUPREME COURT RULE 7
BRIEF OF DEFENDANT, HAROLD GILL
ROBERT J. MOSES, ESQUIRE 69 Route 101-A
P.O. Box 8 Amherst, NH 03031-0008
(603) 673-5260 Bar ID# 1814
(15 minute oral argument)
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TABLE OF CONTENTS PAGE NUMBER
TABLE OF AUTHORITIES ……………………………………………..…………ii QUESTIONS PRESENTED ……………………………………………………..…v RELEVANT STATUTORY PROVISIONS …………….……………….vi STATEMENT OF THE CASE AND FACTS ………………………………………1 SUMMARY OF ARGUMENT …………………………………………………….4 ARGUMENTS ………………………………………………………………7
I. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION IN CONTINUING THE TRIAL, OVER DEFENDANT’S OBJECTION, AFTER IT HAD ALREADY COMMENCED, UPON THE REVELATION OF A SUBSTANTIAL DISCOVERY VIOLATION COMMITTED BY THE STATE INSTEAD OF PRECLUDING THE TESTIMONY AND EVIDENCE TO BE OFFERED BY THE STATE’S WITNESS ……………………………………………………..7 II. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO EXCLUDE OR SUPPRESS THE DEFENDANT’S CHEMICAL TEST RESULTS ………………………..…………………………………………13 III. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION BY FORCING THE DEFENDANT TO APPEAL DE NOVO TO THE SUPERIOR COURT IN LIEU OF IMMEDIATE INCARCERATION BY ATTEMPTING TO REVOKE DEFENDANT’S BAIL DESPITE THE REPRESENTATION OF DEFENSE COUNSEL THAT DEFENDANT INTENDED TO FILE A MANDATORY APPEAL PER SUPREME COURT RULE 7 AND WITHOUT A HEARING PURSUANT TO RSA 597:1-A (IV) AND RSA 597:2…....21 IV. WHETHER THE DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUITTAL N.O.V. AS A MATER OF LAW BUT FOR THE TRIAL COURT’S IMPROPER DECLINATION TO RULE THEREON…………………………………28 CONCLUSION…..…………….……………………………………..………….…..…30 APPENDIX TABLE OF CONTENTS…….. ……...……….………………………… 32
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TABLE OF AUTHORITIES
CASES: PAGE NUMBER
Harkeem v. Adams, 117 NH 687 (1977) …………………………………………….26
Hudson v. Director, DMV, 155 NH 197 (2007)………………………………….14, 15
Opinion of the Justices, 131 NH 583 (1989) ………………………………….16, 17
Opinion of the Justices, 141 NH 562 (1997) …………………………………15
Opinion of the Justices, 159 NH ___ (dec’d 4/27/10) ……………………………….20
State v. Ayer, 150 NH 14, 21 (2003) ……………………………………….22, 25, 28
State v. Barnett, 147 NH 334, 337 (2001) …………………………………………..27
State v. Carver, 69 NH 216 (1897) …………………………………………………23
State v. Cassady, 140 NH 46 (1995) ……………………………………………14
State v. Coleman, 133 NH 713 (1990) …………………………………………….15
State v. Cornelius, 122 NH 925 (1982) …………………………………………….17
State v. Cotell 143 NH 275 (1998)…………………………………………….9, 10, 12
State v. Denney, 130 NH 217, 233 (1987)……………………………………………23
State v. Flynn, 110 NH 451 (1970) ………………………………………………….24
State v. Fortier, 146 NH 784, 788 (2001) …………………………………………..22
State v. Huffman, 154 NH 678, 685 (2007) ………………………………………….29
State v. Jenkins, 128 NH 672 (1986) ……………………………………………….22
State v. Kousounadis, 159 NH 413, 421 (2009) …………………………………28, 29
State v. Lambert, 147 NH 295 (2001) ……………………………………………10, 11
State v. Laurie, 152 NH 542 (2005) ………………………………………………….18
State v. Lorton, 149 NH 732 (2003) ………………………………………………..18
iii
State v. Lucius, 154 NH 60 (1995) ………………………………………passim
State v. Mason, 150 NH 53 (2003) ……………………………………….18
State v. O’Maley, 156 NH 125 (2007) ……………………………………………12,18
State v. Paul, 116 NH 252 (1976) …………………………………………………..18
State v. Pseudau, 154 NH 197 (2006) …………………………………………..19
State v. Sullivan, 144 NH 541 (1999) ……………………………………15, 17, 19, 20
State v. Symonds, 131 NH 532 (1989)……………………………………………19, 20
State v. Tarasuik, 159 NH __ (dec’d 5/20/10)………………………………………..22
State v. Walters, 142 NH 239 (1997) ……………………………………………15
State v. Wheeler, 120 NH 496, 500 (1980)…………………………………………..24
STATUTES AND RULES
RSA 263:75 (II) ……………………………………………………………………14
RSA 265-A:5 (IV)...................................................................................................14, 16
RSA 265-A:7 (II) ………………………………..………………………8, 13, 14, 16
RSA 265-A:II …….……………..…………………………………………………7, 8
RSA 505-A:12 (II) …………………………………………………………….5, 22, 26
RSA 597:1 …………………………………………………………………………21
RSA 597:2 (II) ……………………………………………………………….22, 23, 27
RSA 597:1-a (IV) …………………………………………………………….22, 23, 27
RSA 599:1 …………………………………………………………………passim
Saf-C 6304.01 (e) ………………………………………………………………passim
Sup. Ct. R. 7…………………………………………………………………..21, 22, 23
Sup. Ct. R. 38 ………………………………………………………………………23
iv
CONSTITUTIONAL PROVISIONS
Pt. I, Art. 15 of the N.H. Const. ……………………………………………14, 16, 18
US Const. Amend. 8 ……………………………………………………………22, 24
MISCELLANEOUS
Canon 2 of the Code of Judicial Conduct …………………………………………..23
v
QUESTIONS PRESENTED
I. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION IN CONTINUING THE TRIAL, OVER DEFENDANT’S OBJECTION, AFTER IT HAD ALREADY COMMENCED, UPON THE REVELATION
OF A SUBSTANTIAL DISCOVERY VIOLATION COMMITTED BY THE STATE INSTEAD OF PRECLUDING THE TESTIMONY AND EVIDENCE TO BE OFFERED
BY THE STATE’S WITNESS
Tr. I at pp. 58
II. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO EXCLUDE OR SUPPRESS THE DEFENDANT’S CHEMICAL TEST RESULT
Tr. II at pp. 88-89
App. at p. 48
III. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION BY FORCING THE DEFENDANT
TO APPEAL DE NOVO TO THE SUPERIOR COURT IN LIEU OF IMMEDIATE INCARCERATION BY ATTEMPTING TO REVOKE DEFENDANT’S BAIL DESPITE THE REPRESENTATION OF DEFENSE COUNSEL THAT DEFENDANT INTENDED
TO FILE A MANDATORY APPEAL PER SUPREME COURT RULE 7 AND WITHOUT A HEARING PURSUANT TO RSA 597:1-A (IV) AND RSA 597:2
Sent. Tr. at pp. 8-9
App. at p. 48
IV. WHETHER THE DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUITTAL N.O.V. AS A MATER OF LAW BUT FOR THE TRIAL COURT’S
IMPROPER DECLINATION TO RULE THEREON
App. at pp. 49 & 55
vi
RELEVENT STATUTORY PROVISIONS
RSA 263:75 (II)
RSA 265-A:5 (IV)
RSA 265-A:7 (II)
RSA 265-A:II
RSA 502-A:12 (II)
RSA 597:1
RSA 597:1-a (IV)
RSA 597:2 (II)
RSA 599:1
1
STATEMENT OF THE CASE AND FACTS
The Defendant was charged with Driving While Intoxicated – Second Offense (“DWI”),
a Class A Misdemeanor, alleged to have occurred in Manchester, New Hampshire on September
30, 2007 at approximately 9:24 p.m. The charge stemmed from a motor vehicle stop conducted
by the Manchester Police Department which eventually blossomed into an arrest for DWI.
Following his arrest the Defendant was taken to Manchester Police Department (“MPD”) where
he was read his so-called Implied Consent/Administrative License Suspension Rights
(hereinafter collectively referred to as “ALS”). The State alleged, and sought to introduce as
evidence at trial, the results of the breath alcohol test (“BAC”) which the Defendant agreed to
take a which the State alleged to be above the legal limit of .08.
When the case eventually came to trial on October 15, 2008 the State sought to call
Officer Mark Aquino (“Aquino”) as a witness. Aquino was the Intoxilyzer Operator for the
BAC test. Aquino had apparently prepared a supplemental police report in connection with his
involvement in the case on September 30, 2007. Aquino was the third of three MPD officers
involved in this case but his report was not turned over to the Defendant in discovery until the
commencement of the Defendant’s trial on October 15, 2008. Although there was no dispute
that Aquino’s report was both material and discoverable, counsel for the State indicated that he
had just come into its possession and turned it over to defense counsel although the State had
possessed the report for over a year. It is unclear whether Aquino ever turned the report over to
his department or not. Defense counsel unsuccessfully sought to have the Court preclude
Aquino’s testimony based upon a clear discovery violation. The Court instead offered the
Defendant only two options, namely to proceed with the matter regardless of the very tardy
discovery revelation or continue the matter to examine the materials. Inasmuch as the Court
would not preclude Aquino’s testimony, the Defendant had no choice but accept a continuance
and the matter was then adjourned until December 4, 2008.
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The trial resumed on December 4, 2008 at which time Aquino testified. In the course of
his testimony the State proffered a document purporting to be a receipt for the sample capture
tubes preserved as part of the Defendant’s breath test. Despite the language of the receipt
indicating delivery of the samples to the Defendant, cross-examination of Aquino revealed that
he had never placed the sample capture tubes in the hands of the Defendant and, in fact, Aquino
had no idea what became of them once he terminated his contact with the Defendant. At that
precise time the sample capture tubes remained in Aquino’s possession. The State offered
neither additional testimony nor evidence as to any distribution of the sample capture tubes.
Consequently, defense counsel argued that the Court not consider the results of the chemical test
based on a claim that the State had failed to comply, based upon the trial record, with the
Department of Safety Regulations and the applicable statutory law regarding preservation and
delivery of captured samples. The Court received the BAC results for identification purposes
only and took the matter of admissibility of those results under advisement and the matter was
adjourned. Thereafter, the trial judge issued an order whereby he determined that any
shortcomings in the handling of the sample capture tubes went only to the weight of the evidence
rather to its admissibility, obviously admitted and considered the BAC results, and further
returned a verdict of guilty. A sentencing hearing was thereafter scheduled.
The sentencing hearing was scheduled for January 20, 2009 at which time the trial court
imposed a sentence which included a term of incarceration in excess of the minimum mandatory
term provided by law. Defense counsel sought to invoke RSA 599:1, advised the Court that a
Motion to Set Aside the Verdict would be timely filed and sought a continuation of bail pending
further appellate proceedings. The trial court, at first, ordered the Defendant remanded to
custody without considering bail but, in essence, informed the Defendant that if he wished to
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avoid immediate incarceration then he could take an appeal de novo to the Superior Court. After
conferring with counsel, and being confronted with having to take an appeal to avoid immediate
incarceration, the appeal to Superior Court was taken. At that time the Defendant was provided
with a preprinted form utilized only by the Manchester District Court which provided that in the
event that the case was remanded then bail would be summarily revoked and the Defendant
would be committed to jail without further hearing.
Defense counsel filed a Motion to Set Aside the Verdict and Judgment of Acquittal
N.O.V. however, the District Court denied that motion because, it claimed, no jurisdiction
existed to rule upon it because the case had been appealed to Superior Court. The case had been
appealed because the Defendant was faced with immediate bail revocation and certain
incarceration without any consideration given to bail pending appeal despite the statutory
entitlement that the Defendant have bail since the charge was a Class A Misdemeanor.
Eventually the case was remanded from the Superior Court based upon Defendant’s Motion for
Remand which included a request that there be bail pending appeal. The Superior Court entered
an order remanding the matter but required that personal recognizance bail as originally set be
maintained subject to any hearing the District Court chose to conduct. Following remand the
matter was appealed to this Court pursuant to Supreme Court Rule 7 and the original bail
conditions remained in effect.
4
SUMMARY OF THE ARGUMENTS
I. At the conclusion of the trial the State sought to call its last witness who was the
breath test operator. That witness, a police officer, had prepared a discoverable report over a
year prior to the trial date but that report was never turned over the defense. The Defendant
sought to have the testimony of the witness excluded together with any derivative evidence
which included the results of the breath test. The Defendant cited a blatant discovery
violation for which the State had no explanation. The State conceded that the report was
discoverable and that a discovery violation had occurred because it had not been turned over
until the day of trial but argued that no sanction was appropriate but that a continuance
would not be opposed. The trial court judge concluded that the discovery violation was
simply an oversight although the Court received no evidence nor information to support that
conclusion and afforded the Defendant only two options, namely to proceed with the trial
with the report in hand or adjourn the trial, order a continuance and resume the trial at a later
date. The nature of the violation, the substance of the discoverable materials, the absence of
any explanation for the delay in producing it and the complete absence of any responsibility
on the part of the Defendant prompted the defense to move to exclude the witness. The trial
court declined to do so and the Defendant asserts it was an unsustainable exercise of
discretion to have done anything other than exclude the witness and the derivative evidence.
Had the unsustainable exercise of discretion not been committed, the result would have been
an exclusion of the breath test results and a corresponding acquittal in favor of the
Defendant.
II. The trial record reveals that the Defendant agreed to submit to a chemical test
and one was conducted along with a capture of sample tubes required by statute and
5
Department of Safety Regulations; however, the State, including the breath test operator,
established on the record that while the Defendant signed a receipt for the samples that the
breath test operator never physically gave them to the Defendant and neither further
evidence nor witnesses were offered by the State to sustain its burden of proving that the
sample capture tubes were delivered. The Defendant sought suppression of the breath test
result initially for a violation of both statutory and regulatory requirements regarding
captured samples and attempted to additionally argue a due process violation under Pt. I, art.
15 of the NH Const. in a motion to set aside the verdict. The trial court initially ruled the
State’s result admissible and that it was a matter of “weight” of the evidence rather than
admissibility. The trial court never ruled on the alleged due process violation because it
refused to act on the Motion to Set Aside the Verdict, citing the fact that the matter had been
appealed de novo to the Superior Court despite the fact that the de novo appeal was taken by
the Defendant only in order to avoid immediate incarceration since the trial court refused to
consider bail pending appeal in a Class A misdemeanor case even thought the Defendant is
entitled to it as a matter of right. The trial record of non-compliance is a matter of
admissibility and not simply the weight to which the evidence is put and, in any event, it
constituted a due process violation despite the fact that the trial court refused to act on a
motion seeking that relief. The trial court erred in considering the results of the Defendant’s
BAC test and, in doing so, convicted the Defendant improperly whereas the Defendant
would not have been convicted had the evidence been suppressed as requested.
III. Misdemeanor defendants in New Hampshire are entitled to bail as a matter of
right when they appeal their cases directly from the District Court to the Supreme Court
which is permitted by RSA 599:1 and RSA 502-A:12 (II). Regardless of these statutory
6
rights, the trial court sought to immediately incarcerate the Defendant and forced him to take
an appeal de novo to the Superior Court and further refused to consider a timely filed
Motion to not only set aside the verdict but to reconsider its actions. The trial court
intentionally failed to apply the applicable law despite the Defendant having invoked RSA
599:1 at the sentencing hearing and it took an Order from the Superior Court upon remand
to permit the Defendant his appeal from the District Court to the Supreme Court and to have
bail pending that appeal which the Defendant should have had from the outset. The
Defendant’s due process and statutory rights were violated by the District Court and both as
a matter of law as well as under the supervisory authority of the Supreme Court the practice
employed by the District Court which results in either immediate incarceration or immediate
revocation of bail without a hearing despite the right to an appeal of a misdemeanor charge,
requires that the Court reverse the Defendant’s conviction and dismiss the complaint in this
case and enter such further and/or additional orders as it deems appropriate to prevent this
practice from continuing in the future.
IV. The district court had an obligation to address and adjudicate the Defendant’s
Motion to Set Aside the Verdict and Enter Judgment of Acquittal N.O.V. but it failed to do
so for the reasons set forth in Issue III, supra. Had the trial court consider and properly
adjudicated the Defendant’s Motion to Set Aside the Verdict and for Judgment of Acquittal
N.O.V. it would have necessarily been granted based on the remaining evidence and the
law.
7
I. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION IN CONTINUING THE TRIAL, OVER DEFENDANT’S OBJECTION, AFTER IT HAD ALREADY COMMENCED,
UPON THE REVELATION OF A SUBSTANTIAL DISCOVERY VIOLATION COMMITTED BY THE STATE INSTEAD OF PRECLUDING THE TESTIMONY
AND EVIDENCE TO BE OFFERED BY THE STATE’S WITNESS
At the end of the State’s case-in-chief the state sought to call Aquino as a witness and the
defense objected. Tr. I at p. 54.1 The objection to Aquino’s testimony, and derivative evidence,
was based upon the fact that Aquino had apparently prepared a police report which the parties
agreed was both discoverable and material as Aquino was the breath test operator. This report
had never been provided to the Defendant in discovery, an assertion with which the State
concurred. Tr. I at p. 55. As the breath test operator, Aquino was going to be asked about the
result of the BAC test, a potentially very critical evidentiary fact in determining the Defendant’s
guilt or innocence. See, RSA 265-A:11. Aquino’s report had apparently been prepared on the
night of the incident, namely September 30, 2007 and was never revealed to defense counsel
until trial on October 15, 2008, approximately 13 months after its creation. The prosecutor for
the State claimed that he had just received if from Aquino; however, defense counsel argued that
it did not matter when the prosecutor got the report because the Supreme Court had previously
determined that, essentially, “the State is the State” and that failures on the part of law
enforcement agencies to disclose discoverable information will have the same consequences
whether committed by the law enforcement agency or by a prosecutor further down the line.
State v. Lucius, 140 NH 60 (1995). Indeed, defense counsel invoked the Lucius case during his
oral presentation to the trial court. Tr. I at p. 57. In Lucius, this Court opined as follows:
1 Throughout this Brief, the Trial Transcript Volume I is referred to as “Tr. I”; Trial Transcript Volume II is referred to as “Tr. II” and Sentencing Hearing Transcript is referred to as “Sent. Tr.”
8
“There is no doubt that the prosecution has a duty to disclose evidence favorable the accused where the evidence is material either to guilt or to punishment…[A]lthough the misconduct may be attributable to the State Police rather than the County attorneys Office, failure of the Police to disclose exculpatory evidence to the Prosecutor, who in turn would have turned it over to the defense, is treated no differently than if the Prosecutor failed to turn it over to the defense…” Id. at p. 63 internal citations and quotations omitted.
The Lucius test requires first that a determination be made about the exculpatory value of
the materials. In this case, Aquino’s report clearly revealed that the extent of his involvement, as
the breath test operator, ended when he had the Defendant sign a receipt but did not give the
Defendant the samples himself; rather, he merely stated that he assumed they would to be placed
with the Defendant’s property for “safekeeping". At trial Aquino admitted that he never
physically gave the samples to the Defendant. Tr. II at p. 84. The State presented no evidence as
to what became of the samples after they left Aquino’s possession and the Defendant argued that
point. Tr. II at pp 88-90. It cannot reasonably be argued that a report which is devoid of proof of
delivery of sample capture tubes to the Defendant and which, in fact, makes reference to the
samples specifically not being given to the Defendant by the instrument operator is exculpatory
because it establishes, without additional evidence, a violation of Saf-C 6304.01 (e) and RSA
265-A:7 (II). Apart from that, the State had possession of the discovery materials for over a year
and never disclosed them. Moreover, it certainly cannot be said that not providing the breath test
operator’s report demonstrating arguable non-compliance with both Safety Regulations and
statutes relative to breath testing would not have affected the verdict because the breath test in
this case was crucial to the eventual conviction. RSA 265-A:11. Consequently, the Defendant
respectfully submits that he met the Lucius standard and then argued that the remedy should be
9
to preclude the testimony of Aquino based upon this discovery violation, citing State v. Cotell,
142 NH 275 (1998).
In Cotell the dismissal of four indictments was reversed by this Court where this Court
determined that the dismissal with prejudice was too extreme a remedy under circumstances
where a prosecutor had failed to comply with discovery requirements. The holding made it clear
that discovery sanctions should be appropriately measured so that there is some insurance that
defendants will not be unduly or inappropriately prejudiced contrary to their due process rights
under Pt. I, art. 15 of the NH Const. while, at the same time, avoiding circumstances where
defendants are able to “escape justice” because of arguably benign discovery violations. Cotell,
supra, at p. 281. The Court’s holding in essence requires that the Court consider a declining
number of discovery sanctions beginning with dismissal with prejudice ostensibly all the way
down to nothing. Being obviously familiar with Cotell, defense counsel did not argue for a
dismissal and even conceded that such a remedy would not be reasonable. Tr. I at p. 58; rather,
defense counsel argued for the exclusion of the witness and his testimony, a particularly
appropriate remedy in this case, and certainly within the ambit of the “…lesser sanctions and
procedural curative measures…” that this Court contemplated in Cotell, Id. at p. 280. Defendant
argued against a continuance because the Defendant was blameless, there was no reasonable
explanation for the failure to comply with discovery, the discovery was exceptionally long in
coming and no justification for the violation was advanced by the State. Tr. I at p. 55. Lucius,
supra was decided to avoid precisely these types of problems where it is clear that either Aquino,
the Manchester City Solicitor’s Office, the prosecutor or somebody else along the State’s
administrative bureaucratic line failed to comply with discovery. The “remedy” of a continuance
was indeed no remedy whatsoever given the background of this discovery violation. The
10
Defendant was deprived of the benefit of the report and its contents and could only prepare to
deal with it if he agreed to an adjournment. The Defendant bore the cost of adjourning the trial
and having to resume for reasons having nothing to do with his conduct and the State, at no time,
provided the Court with any explanation whatsoever as to how any of this happened. With much
the same disdain for the Defendant’s right to bail pending appeal, see, Issue III, infra, the trial
judge summarily dismissed the complaints about this discovery violation made by the Defendant
in a manner clearly intended to favor the State knowing that granting the relief sought by the
Defendant would preclude the Court from considering the Defendant’s BAC, a piece of factual
evidence clearly critical to the determination of guilt or innocence. This, the Defendant argues,
is an unsustainable exercise of discretion.
A defendant must demonstrate that the Court’s ruling was clearly untenable or
unreasonable to the prejudice of his case in order to establish that the ruling is not sustainable.
State v. Lambert, 147 NH 295, 296 (2001) (defining “unsustainable exercise of discretion”).
Cotell, supra instructs the trial court to consider a continuum of remedies in the face of a
discovery violation. Where, as here, there is no doubt that a discovery violation occurred it falls
upon the State to establish reasons for it. The trial court also should have taken into
consideration the length of time the proceedings had been pending, the severity of the charge, the
timing of the revelation and the like. Moreover, defense counsel asked the Court to make the
record clear as to why it was not going to do anything other than grant a continuance for further
preparation and although the trial judge stated that his “…reasons have been set forth on the
record…” Tr. I at p. 59, the trial judge in fact did not make any findings nor afford any
explanation on the record other than to generically make reference to “due process” and a
determination that this “…appears to be the kind of oversight…” Tr. I at p. 56. The fact remains
11
that there is no evidence that it was an oversight nor was there evidence that it was intentional.
Indeed, there is no information at all and the Court made no effort to inquire into that issue
whatsoever. In other words, there is nothing in the record which makes the Court’s ruling
tenable. No inquiry was ever made of the State for an explanation as to how this happened and
the only facts known for sure were that there was a discovery violation involving information the
State had in its possession for over a year and never disclosed it to the defense and that the
Defendant was blameless in this process. It is frankly stunning that the prosecutor would
consider Aquino’s involvement in the case “…strictly on the administrative end. He is the breath
test administrator”. Tr. I at p. 55. The prosecutor asserted, and defense counsel accepted, the
fact that it was not intentional on the part of the prosecutor himself, Tr. I at p. 56 but what
becomes untenable is the Court’s determination that “…this is not an intentional act on the part
of the government from what I can see…” Tr. I, at p. 56. The “government”, according to
Lucius, includes everybody down the line and defense counsel set forth a cogent chronology of
events and likely culprits involved in the discovery violation and it clearly was of no interest to
the trial court any more than was the inconvenience and cost to the Defendant to be additionally
incurred. Tr. I at pp 56 – 59. The trial judge, in reality, saw nothing because he declined to even
look for anything.
While there may be circumstances contemplated under both Cottel, supra and Lambert,
supra where a continuance would be in order as a procedurally curative measure, it is not a
benefit to be given to the State in all instances. As is learned from Lucius, supra, the problems
rarely stem from prosecutorial misconduct and as this Court has known for many years, the
State was let off the hook because prosecutors could routinely argue successfully that it wasn’t
their fault and that they were the only “discovery link” between the State and the defendant.
12
Lucius changed all that but the trial court’s ruling in this case makes it clear that the lesson from
Lucius was never learned. What is perhaps even more surprising is that the State indicates that
upon discovering the report, Aquino was asked about the report, presumably when he prepared
it, why it wasn’t turned over and/or to whom it was given when it was prepared and yet the
prosecutor offered no further information but merely leapfrogs over that issue to an assertion that
he made a copy and gave it to defense counsel, which is undisputed. Somewhat more
shockingly, the prosecutor went on to agree that Cotell supra would apply and that the remedy
would be a continuance but he didn’t even think that was necessary “…for what his [Aquino’s]
limited involvement in this case is”. (emphasis added). Aquino ran the breath test. The impact
of a breath test in a DWI case is likely to be the most significant of almost any other evidence in
the case and this Court has most recently recognized that when addressing concerns about
proposed legislation seeking to eliminate the “second sample” requirement and determining that
such legislation would violate due process under Pt. I, art. 15 of the NH Const. Opinion of the
Justices, 159 NH __ (Dec’d 4/27/10).
The trial court committed an unsustainable exercise of discretion in not excluding
Aquino, his testimony and derivative evidence from the Defendant’s trial. Moreover, the error
committed by the trial court in adjourning the trial in order that the State might present Aquino
as a future witness, knowing that his testimony would relate to the BAC test, was not harmless.
State v. O’Maley, 156 NH 125 (2007) (burden is on the State to prove harmless error). 2
Therefore, the Defendant’s conviction must be reversed.
2 The admissibility of the BAC test relates to not only this Issue but Issue II, infra, addressing the admissibility of the BAC test for a violation of regulatory and statutory rules. Consequently, the “harmless error” analysis in this Issue will be argued in Issue II, infra.
13
II. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO EXCLUDE OR SUPPRESS THE DEFENDANT’S CHEMICAL TEST
RESULT
At the outset it should be noted that the Issue originally listed referenced a Motion to
Suppress and Dismiss. A review of the transcript of trial proceedings reveals that a dismissal
was not requested but only that the results of the BAC be excluded and the Issue, as noted above,
more properly frames the Issue raised for appellate review notwithstanding that the Defendant
would argue that he would have been entitled to an acquittal had the Court not erred by admitting
the BAC result.
During the course of the second day of trial on December 4, 2008, Aquino testified as to
his administration of a BAC test to the Defendant. During those proceedings a receipt for
sample capture tubes was admitted into evidence as State’s Exhibit #4. Tr. at pp 78-79. Defense
counsel examined Aquino at length regarding the disposition of the sample capture tubes,
including his understanding that these tubes were to be given to the person who successfully
completed the test, Tr. II at p. 83. Aquino acknowledged that the very first line of Exhibit #4
states that “you have been given captured sample tubes of your blood alcohol”. Although Aquino
originally disagreed with defense counsel about the sample delivery, he then testified that the
defendant “…did not physically touch them…” and that Aquino “…never physically gave them
[samples] to him [defendant]”. Tr. II at p. 84. Although Aquino testified about an assumed
procedure, in the end he did not know where the sample capture tubes went or whether or not the
Defendant ever got them. Tr. II at p. 85. As a consequence, defense counsel argued that upon the
state of the trial record, the State had not satisfied its burden of proving that there was
compliance with delivery of the sample capture tubes to the Defendant as required by Saf-C
6304.01 (e) and RSA 265-A:7 (II), which delegates to the commissioner of the Department of
14
Safety the task of determining how samples shall be given to the test subject. The specific
regulation, to wit Saf-C 6304.01 (e) provides as follows:
(e) Each subject who submits to a breath test and successfully completed the requirements of Saf-C 6302.02 (e) shall be given the captured samples of his/her breath at the completion of the test” (emphasis added).
In the case at bar there was neither evidence nor exhibits introduced after Aquino testified
with regard to this issue and the Defendant again here, relying specifically upon the trial record,
submits that the State has not established compliance with Saf-C 6304.01 (e). Consequently, the
Court should not have considered the results of the BAC test because RSA 265-A:5 (IV)
precludes the admissibility of the test result “…unless such test is performed in accordance with
methods prescribed by the Commissioner of the Department of Safety”. Id.
The trial court interpreted this factual scenario neither as a failure to perform the test in
accordance with methods prescribed therefor by the DOS Commissioner nor as a matter of due
process under Pt. I, art 15 of the NH Const. despite the trial record making it clear that the State
offered no support to demonstrate compliance with Saf-C 6304.01 (e) or RSA 265-A:7 (II). The
Defendant squarely raised this issue to the trial court, Tr. II at pp 92-94, and raised the due
process issues in his Motion to Set Aside the Verdict. App. at p. 49.
In the first instance, the trial court’s reliance on Hudson v. Director, DMV, 155 NH 197
(2007) is misplaced. At the outset it is clear that Hudson, supra, was an appeal of an ALS case
and by legislative fiat the test subject in an ALS appeal bears the burden of proof. RSA 263:75
(II) This is entirely different from the burden of proof imposed upon the state in a criminal case.
See, State v. Cassady, 140 NH 46 (1995). Additionally, Hudson, supra, was not a case that
involved a trial record which failed to demonstrate that the State had satisfied its burden of proof
15
regarding compliance with the regulations as it related to the delivery of a sample capture; rather,
it appears that Hudson was notified that the lab was holding the sample but that Hudson’s
complaint was about procedural irregularities in labeling and the like, a circumstance entirely
different than one where a defendant is deprived of the opportunity to either obtain the second
sample or the trial record fails to prove that it was given to him. State v. Sullivan, 144 NH 541
(1999).
In Sullivan a blood test was at issue and a second sample was preserved as required;
however, the State notified the defendant of results in a tardy fashion and, as a result, the
defendant did not receive notice of the results and the availability of his second sample in time,
according to statute, before the sample had been destroyed by the State. Under that circumstance
this Court determined that suppressing the result of the State’s blood test was appropriate. In
that case the burden was on the State to demonstrate compliance with the second sample
requirements, could not do so and the result was rejected. As a matter of law, the party offering
evidence generally bears the burden of demonstrating its admissibility State v. Walters, 142 NH
239 (1997) citing Opinion of the Justices, 141 NH 562 (1997) and State v. Coleman, 133 NH
713 (1990). Contrary to that holding, it appears that the trial court in this case placed a burden of
proof on the defendant to demonstrate that he had not received the samples, an untenable result
as a matter of law. Indeed, defense counsel even noted that there certainly would be an easy way
for the State to sustain its burden of proof merely by having the law enforcement officer who
delivered the samples to the Defendant, if they were so delivered, sign a receipt and the booking
officer could come to court and testify that the defendant’s sample capture tubes had been
delivered to him as required by Saf-C 6304.01 (e). Defense counsel even conceded that the
delivery of the tubes need not necessarily be made by the breath operator himself or that the
16
word “immediately” did not necessarily mean contemporaneously with the conclusion of the test
but could be within a reasonable period of time while the Defendant was still at the police
department. Tr. II at pp 93-94; however, where the State proffered none of this type of evidence,
the failure by the trial court, on the state of this record, to conclude that the State was not
compliant wit Saf-C 6304.01 (e) and/or RSA 265-A:7 was clearly erroneous.
Even assuming arguendo that the trial court’s analysis was correct with regard to the
application of RSA 265-A:5 (IV), the trial court overlooked the due process violation that
resulted from that very same non-compliance under Pt. I, art. 15 of the NH Const. as well as
Opinion of the Justices , 131 NH 583 (1989) which was decided obviously prior to the trial of
this case, not to mention Opinion of the Justices, 159 NH __ (dec’d 4/27/10) both of which found
that any legislative attempt to derail and eliminate the obligation to provide second sample of a
breath test to a DWI defendant to be offensive to Pt. I, art 15 of the NH Const. and,
correspondingly, a denial of due process. It is no leap whatsoever to conclude as equally
offensive a State constitutional result under circumstances where there’s no proof on the trial
record that a second sample was captured then there is under a scenario where there is similarly
no proof that a second sample, although captured, was ever delivered to a defendant contrary to
Saf-C 6304.01 (e) and RSA 265-A:7 (II). Indeed, the Defendant sought to bring this oversight to
the trial court’s attention when he filed his Motion to Set Aside the Verdict App. at p. 49 but as
the trial court had so deftly squeezed the Defendant into having to take a de novo appeal as the
only means to avoid unlawful incarceration as the trial court would not consider bail pending
appellate proceedings, the trial court abdicated its responsibility of having to deal with the issue
17
quite likely knowing that the merit of that argument would have required that a motion to set
aside the verdict be granted. 3
When an arrested person submits to a chemical test, he is entitled to obtain a sample of his
test for independent analysis whether it be a breath test or a blood test. State vs. Cornelius, 122 NH
925 (1982). Consequently, the State must preserve a second sample. Opinion of the Justices, 131
NH 583 (1989) (holding unconstitutional a proposed statutory amendment eliminating the
requirement to preserve a second sample). A failure to do so would be fundamentally unfair,
according to this Court. Id. It therefore follows that the requirement to preserve a second sample
would obviously be meaningless if, upon judicial review and scrutiny of the trial court record, it was
not established that the preserved sample was properly distributed, hence Saf-C 6304.01 (e). In
Sullivan, supra, this Court ruled that although a Defendant always has alternative means of
attacking the State’s evidence, including an Intoxilyzer breath test, such evidence nevertheless is not
likely to have the same evidentiary value as a second sample showing a different blood alcohol
reading. Failing to preserve a second sample deprives the suspect of a potent piece of evidence with
which to test the integrity of the State’s use of the test result. Id at p. 545, citing Opinion of the
Justices, at p. 587. Moreover, the State constitutional result under Pt. I, art. 15 of the N.H. Const. is
no different under circumstances where the second sample is preserved but there is no evidence that
it was given to the Defendant than there is if the second sample were not preserved at all. Again,
this consideration has been addressed in the DOS regulations and is specifically mandated by Saf-C
6304.01 (e). In Sullivan, supra, a second sample was preserved, the same as the case at bar. The
State administratively sent notice to the Defendant of his results in a tardy fashion and it permitted
the 30 day “hold period” to expire before the Defendant had an opportunity to obtain it and, in the
meantime, it was destroyed. In sustaining the trial court’s suppression of the blood test result, this
3 The Defendant addresses the matter of the trial court’s failure to address the Motion to Set Aside in Issue IV
18
Court, on State constitutional grounds, found the circumstances to have been fundamentally unfair
and contrary to precedent as it related to this particular issue. While the physical handling of
samples of blood or breath differ due to the different means and methods of collection, a trial
record which fails to establish delivery of the breath sample capture tubes contemporaneously with
the completion of the test (or ever, based on this trial record) and the untimely notice of the results
which trigger a Defendant’s ability to obtain the second blood sample before its destruction is a
distinction without a difference. This is not a question where the trial evidence supports a finding
that, for example, the Defendant got his sample capture tubes in a bag that was not sealed, properly
identified, perhaps even missing the identification labels or otherwise ministerially defective; rather,
it is more grievous than that based specifically on the state of this trial record. Consequently, the
application of the “weight of the evidence standard” under these circumstances, is erroneous as it is
indeed an “admissibility” standard that must be applied and Pt. I, art 15 of the NH Const., the
mandatory regulations, statutes and case law all require that the same result should have been
reached, namely that the trial court should not have admitted the results of the chemical test.
Compare, State v. Paul, 116 NH 252 (1976) (decided under prior law) and State v. Laurie, 152 NH
542 (2005).
The State is likely to argue that even if the trial court erred regarding the admissibility of the
BAC test, that error was harmless; however, there is no way this error can be construed as
“harmless” nor, on the state of the record, can the State bear its burden of proving that such error in
wrongfully admitting the Defendant’s BAC was harmless beyond a reasonable doubt which is the
standard this Court has established. State v. O’Maley, supra citing State v. Lorton, 149 NH 732
(2003). It is well settled that an error is harmless only if it is determined beyond a reasonable doubt
that the verdict was not affected by the error. State v. Mason, 150 NH 53 (2003). The State bears
19
the burden of proving that an error is harmless. Id. An error may be harmless beyond a reasonable
doubt if the alternative evidence of a defendant’s guilt is of an overwhelming nature, quantity or
weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the
strength of the State’s evidence of guilt. State v. Pseudae, 154 NH 196 (2006).
In this case Sgt. Fuller made some observations of the defendant’s vehicle operation and
stopped him. Fuller claims that he had some difficulty exiting the vehicle. Tr. I at p. 11; however,
shortly thereafter he was turned over to Officer Cunningham who did not recall making any direct
observations about the Defendant’s vehicle exit although he was standing back from Sgt. Fuller. Tr.
I at p. 45. Cunningham administered the field sobriety tests but, upon cross-examination, it became
clear that he likely failed to comply with the prerequisites to HGN testing, failed to document, or
was unable to recall Defendant’s missteps with any specificity whatsoever, passed him on the one-
leg stand test and performed a non-standardized finger-to-nose test. Tr. I at pp 45 -53. On the other
side of the ledger, we have the BAC test.
In State v. Symonds, 131 NH 532 (1989) this Court, at that time, suggested that a Defendant
could raise a “plethora of attacks” on the State’s evidence when confronted with what was described
as particularly potent evidence, namely a chemical test. In State v. Sullivan, supra, this Court
concluded that while alternative means of attacking the State’s evidence can be significant, it is
certainly not likely to have the same evidentiary value as a second sample showing a different blood
alcohol reading and that a failure to preserve a second sample deprives a suspect of an equally
potent piece of evidence with which to test the integrity of the State’s use of the test results.
Sullivan, supra at p. 544 citing Opinion of the Justices, supra at p. 587. This is precisely the
reasoning that makes a harmless error analysis inapplicable to the instant case. Not only are there
inconsistencies in the State’s evidence with regard to any alleged impairment of the Defendant,
20
which hardly would make the State’s case against him “overwhelming” without the BAC test, but
a key evidentiary fact considered by the Court was the BAC result which “sealed the deal” in
convicting the Defendant. At the same time, the Defendant was deprived of an ability to test the
integrity of the State’s use of the test results based specifically upon the trial record as already
argued herein. To affirm the trial court’s ruling in this case would be to effectively make illusory
the State’s obligation to prove the capture, preservation and delivery of second samples to a DWI
defendant since the chemical testing process, once it went beyond capturing the samples the State
wanted to use, could be treated with utter alacrity and there would be no remedy left to a DWI
defendant except for the type of attacks that had, at one time, been contemplated in Symonds, supra,
but which were superceded not only by the first Opinion of the Justices, supra, on the topic of
preservation of second sample but most assuredly the reaffirmation of that principle not one month
ago in Opinion of the Justices, 159 NH ___ (dec’d 4/27/10) with State v. Sullivan, supra, having
been decided right in between.
The trial court erred when it admitted the results of Defendant’s BAC test and those results
clearly were responsible for the Defendant’s conviction. It was error for the trial court to admit
those results and upon finding error as the Defendant claims, his conviction must be reversed.
21
III. WHETHER THE TRIAL COURT ERRED OR COMMITTED AN UNSUSTAINABLE EXERCISE OF DISCRETION BY FORCING THE DEFENDANT TO APPEAL DE NOVO
TO THE SUPERIOR COURT IN LIEU OF IMMEDIATE INCARCERATION BY ATTEMPTING TO REVOKE DEFENDANT’S BAIL DESPITE THE REPRESENTATION OF DEFENSE COUNSEL THAT DEFENDANT INTENDED TO FILE A MANDATORY APPEAL PER SUPREME COURT RULE 7 AND WITHOUT A HEARING PURSUANT
TO RSA 597:1-A (IV) AND RSA 597:2
The District Court conducted a sentencing hearing on January 20, 2009. After hearing
arguments the Court imposed a sentence which, firstly, exceeded the statutory minimum for the
underlying offense and then sought to immediately remand the Defendant to the custody of the
Department of Corrections. Sent. Tr. at pp 7 – 8. Upon this occurrence defense counsel informed
the Court that there existed a right to file a motion to set aside the verdict and that such a motion
would be filed and additionally invoked RSA 599:1. Sent. Tr. at pp 8-9. Further, defense counsel
argued that the Defendant cannot be placed in a position of having to elect between incarceration
pending an appeal of this Class A Misdemeanor (including a ruling on the motion to set aside the
verdict) or to take an appeal de novo to the Superior Court. The assertions made by the Defendant
feel on deaf ears insofar as the trial court was concerned and the trial court forced the Defendant to
take an appeal to the Superior Court in lieu of incarceration which the Defendant submits could not
have happened under ordinary appellate circumstances except in the most narrow of circumstances.
The legislature amended RSA 599:1 most recently in 2006. Although the language of the
amended statute focused primarily on discouraging appeals under circumstances where a disposition
other than that imposed by the District Court would be permitted, what the legislature did was create
an incredibly unworkable and confusing morass of appellate remedies.
In essence a defendant convicted of a Class A misdemeanor in the District Court can take an
appeal de novo to the Superior Court but, upon arrival, there are but two options, the first being a
trial de novo and the second being a waiver of that trial with a mandatory remand to the District
Court for the imposition of the original sentence. Moreover, in the latter case a convicted defendant
would have the same right of appeal to this Court to consider errors of law upon such remand
pursuant to Sup. Ct. R. 7 as would that defendant have had if the appeal was directly from the
22
District Court under RSA 599:1 or RSA 502-A:12 (II). On its face, the most recent iteration of
RSA 599:1 makes little or no sense. Ostensibly, the statutory scheme was developed so that a
defendant who felt that the District Trial Court has committed an error can avail himself of a direct
appeal to the Supreme Court pursuant to Sup. Ct. R. 7 while a defendant who more likely feels that
the trial court made erroneous factual findings may alternatively choose to retry the case anew in the
Superior Court and then appeal errors of law that may have been committed by the Superior Court
to this Court. What the legislature could not possibly have reasonably intended would be for an
individual believing that a District trial court had erred in a Class A misdemeanor case would have
to take a trial de novo simply to avoid an unwarranted and illegal incarceration where, as here, a
district trial court utterly ignored the provisions of RSA 597:1-a (IV) which grants to such an
appellant the right to bail pending appeal as a matter of right unless the Court, after hearing,
“…determines that such release will not reasonably assure the appearance of the person as required
or will endanger the person or any other person or the community”. RSA 597:2 (II). Of course,
even if bail is set, it is constitutionally impermissible to make the bail so excessive that a person
cannot make it and thus is incarcerated. U.S. Const., Amend. 8. What happened in this case was
unconscionable.
Defense counsel invoked RSA 599:1 in conjunction with a representation to the Court that a
Motion to Set Aside the Verdict would be filed. Sent. Tr. at pp 8-9. It has long been the law in this
jurisdiction that issues to be properly presented and preserved for appellate review must be properly
presented to the trial court. State v. Fortier, 146 NH 784, 788 (2001). As this Court most recently
opined:
“This rule is grounded in common sense and judicial economy and allows the trial court to consider errors as they occur and to remedy them as necessary…an argument is properly preserved if the trial court has the ‘opportunity to rule on issues and to correct errors before they are presented to the appellate court’”. State v. Tarasuik, 159 NH ___ dec’d 5/20/10 citing State v. Ayer, 150 NH 14, 21 (2003).
23
This would apply regardless of whether the defendant’s claim of error was based upon a statutory or
regulatory error or, as the Defendant asserted in his Motion to Set Aside the Verdict, App. at p. 49,
or whether it was predicated upon a State constitutional violation. What is clear from the events
which unfolded at this Defendant’s sentencing hearing is that, firstly, the trial judge was so intent
upon incarcerating the Defendant that he utterly ignored not only the bail statute, RSA 597:1-a (IV)
but, even worse, seems to have deliberately ignored Canon 2 of the Code of Judicial Conduct which
requires that a judge “…shall respect and comply with the law and shall act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary”. Sup. Ct. R. 38,
Canon 2.
Moreover, this Court has routinely held that “[E]very citizen is presumed to know the law,
else there would be no law”. State v. Denney, 130 NH 217, 233 (1987) (dissent of Souter, J.) citing,
State v. Carver, 69 NH 216 (1897). Also State v. Jenkins, 128 NH 672 (1986) (police not required
to advise DWI defendants that more serious charges may be brought based upon BAC because
citizens are already presumed to know the law). Complying with the law means adhering to those
existing legislative provisions such as the bail statute which makes it clear that a defendant
appealing a misdemeanor and who is awaiting imposition or execution of sentence is entitled to bail
as a matter of right unless certain determinations are made in accordance with RSA 597:2 (II)
which, naturally, cannot be determined absent a hearing. Indeed, it finally took a Superior Court
Order, App. at p. 73, to accomplish what should have been handled as a matter of course and right
in the District Court but for the District Court Trial Judge’s clear intention to incarcerate the
Defendant, without a bail hearing, as soon as possible and without regard to his legal obligations to
grant to the Defendant bail pending appellate proceedings after the Defendant invoked RSA 599:1.
Quite succinctly, the Superior Court noted that personal recognizance (hereinafter “PR”) is the
24
standard of bail in a “routine DWI case which is appealed to the Supreme Court” and correctly
cited State v. Wheeler, 120 NH 496, 500 (1980) as support for that proposition. Additionally, this
Defendant, in order to obtain relief from the Superior Court, had to bring to the Superior Court’s
attention a pre-printed Bail Order form utilized, upon information and belief, only by the
Manchester District Court (and likely developed by the Judges in that Court) which established a
process whereby a person who remands their case to the District Court rather than indulge in a jury
trial but nonetheless wishing to appeal to the Supreme Court has his/her bail “automatically
revoked” and the sentence imposed by the District Court “…imposed without further notice or
hearing”. App. at p. 48. This is not a simple overlooking of the relevant bail statutes but is a
procedure utilized in the Manchester District Court which completely undermines the statutory
scheme for appellate review of misdemeanor cases and plainly abrogates the Defendant’s State
constitutional rights as well as the U.S. Const., Amend. 8. This could not be a more glaring example
of a violation of the due process rights accorded to defendants wishing to appeal misdemeanor cases
to this Court by Pt. I, art. 15 of the NH Const. It was for that reason that this Defendant not only
was forced to take a de novo appeal to the Superior Court but, once there, was obligated to include
the details of these due process violations in his Motion to Remand without the “automatic” bail
revocation that apparently is so close to the hearts of the District Court Judges in Manchester. App.
at p. 59.
Even before the Defendant sought relief from the Superior Court, but after he was forced to
avoid incarceration only by a de novo appeal, State v. Flynn, 110 NH 451 (1970), the Defendant
sought to have the District Court reconsider its actions by filing a Motion for Reconsideration and to
Temporarily Stay the Superior Court Appeal as well as the Imposition of any Sentence. App. at p.
54. At the time the time the Motion for Reconsideration was filed, the Defendant had already filed
25
a timely post-trial Motion to Set Aside the Verdict as he had represented to the trial court would be
forthcoming. This, too, was to no avail because the trial court, after unlawfully forcing the
Defendant to elect a de novo appeal to avoid incarceration, latched on to that election as a means to
declare that it no longer had jurisdiction or legal authority to take any further action because the
matter had been appealed to the Superior Court. App. at p. 58. For at least two reasons, this course
of action and conduct by the District Court Trial Judge was improper and unsustainable.
Firstly, and for the reasons already argued, the District Court Judge could not, on the one
hand, compel the Defendant to take a de novo appeal that he didn’t want to take but for avoidance of
incarceration and then, when relief was sought, deny it because the Defendant had taken the very
appeal he was forced to undertake due to the improper conduct of the District Court. Secondly, the
somewhat convoluted language of 599:1 in fact and in law really does not divest the district court of
jurisdiction to rule on post-trial motions timely filed with the district court and, the Defendant would
argue, notwithstanding an appeal to the Superior Court. This is because the appeal to the Superior
Court, if abandoned, returns the matter to the district court where an appeal can be taken pursuant to
Sup. Ct. R. 7 where errors originally committed by the district court can be challenged before this
Court. The Defendant would argue, given the language of the appeal statute, that unless and until
jeopardy attaches and a trial commences de novo in the Superior Court, the matter is subject to the
continuing possibility of remand which would require the District Court to address errors brought
to its attention before a defendant is obliged to seek appellate review. Ayer, supra. Thus, even
allowing for the initial refusal of the District Court to address the post-trial motion, it should have
been addressed when the matter was remanded but, still, the District Court declined to do that and
was apparently then disinclined to conduct a bail hearing pending the appeal as would have been
permitted under the order of the Superior Court. App. at p. 73. The inquiry that this Court must
26
make, therefore, is if the District Court was content with PR bail for the Defendant as made clear by
the remand order from the Superior Court why, then, was the District Court so compelled to try at
any cost to incarcerate the Defendant when he was first sentenced on January 20, 2009? The clear
answer is that the District Court simply wanted to incarcerate the Defendant regardless of its
obligations to address the matter of bail pending appeal as has been previously argued and, frankly,
would have been equally happy to incarcerate the Defendant under its clearly illegal “Bail Order –
Pending Appeal”, App at p. 48 but for the necessary and appropriate intervention of the Superior
Court which apparently was finally able to remind the District Court of the Defendant’s legal rights
and constitutional protections which had, to that point, been completely violated. What is clear is
that the Defendant’s due process rights were repeatedly violated by the District Court throughout
the entire post-trial proceedings as evidenced by the Hobson’s choice given to the Defendant at his
sentencing hearing, the failure to conduct a bail hearing pending appeal, and the unique “Bail Order
– Pending Appeal”, App. at p. 48 utilized by the Manchester District Court which implements an
“automatic” revocation of bail upon remand despite being contrary to not only RSA 599:1 but RSA
502-A:12 (II) as well. This does not even take into consideration the substantial stress, costs,
expenses and legal fees that the Defendant was forced to incur simply to get the District Court to do
what it was legally obligated to do pursuant to the plain and unambiguous statutory provisions
relating to Rule 7 appeals and bail pending appeal in misdemeanor cases. Indeed, had these actions
been undertaken by a party litigant rather than by a Judge, it is obvious that the offending party
would have been appropriately subject to sanctions. See, e.g. Harkeem v. Adams, 117 NH 687
(1977). Lest this Court be tempted to consider that, in spite of all of the foregoing, the District
Court did not realize that what it was doing was illegal, the Trial Judge expressly informed the
parties at the sentencing hearing as follows:
27
“Bail and conditions are continued. If the matter is returned to this Court, sentence goes into effect forthwith”. Sent. Tr. at p. 9 (emphasis added).
While it is clear that substantial due process violations were visited upon the Defendant, the
position of the District Court as evidenced by the Sentencing Transcript, the “form” uniformly
utilized by that Court and the District Court Judge’s strained evasion of his obligation to apply the
laws which are on the books, this Court, as it has in the past, is also in a position to exercise its
supervisory power to insure the fair administration of justice. State v. Barnett, 147 NH 334, 337
(2001). Obviously, this Defendant is not the only one who is being routinely subjected to automatic
bail revocation and immediate incarceration under circumstances where he/she is entitled to bail as
a matter of right in cases involving misdemeanor appeals. RSA 597:1-a (IV) and RSA 597:2 (II). It
is equally clear that unless this practice is terminated then other similarly situated defendants will
suffer the same fate and may not be so fortunate as to avoid incarceration through the use of a series
of complex proceedings, all of which should have been entirely unnecessary. The Defendant was, at
the time of sentencing, either clearly eligible for PR bail or at least subject to a hearing to determine
whether or not the PR bail originally set should be changed because the criteria established, and
met, by the Defendant at the time it was originally set had changed in the interim in a manner
consistent with RSA 597:2 (II). The Defendant respectfully submits that the conduct of the Trial
Judge either standing alone or in conjunction with the routine process of automatic bail revocation is
so fundamentally unfair that this Defendant was deprived of due process under Pt. I, art. 15 of the
NH Const. regardless of whether the problem was eventually cured by the Superior Court that this
Court must afford the Defendant the only appropriate remedy, namely a reversal of the conviction
and dismissal of the predicate complaint.
28
IV. WHETHER THE DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUITTAL N.O.V. AS A MATTER OF LAW BUT FOR THE TRIAL COURT’S
IMPROPER DECLINATION TO RULE THEREON
The Defendant filed a timely Motion to Set Aside the Verdict and for Judgment of Acquittal
N.O.V.. App. at p. 49. For reasons already discussed and argued the District Court undertook a
Herculean effort to avoid ruling on it despite the longstanding rule in this jurisdiction that errors
committed by the Trial Court must be brought to that Court’s attention before appellate review is
undertaken. Ayer, supra. It follows that if a litigant is obliged to bring such miscues to the Trial
Court’s attention in order to properly preserve the issue before appellate review is undertaken then
there is clearly a corresponding obligation on the part of the Trial Judge to rule thereon before
appellate review commences. The District Court Trial Judge in this case committed error by
refusing to do so despite having at least two opportunities. Had the Trial Judge ruled on the
properly and timely filed Motion to Set Aside, he would have had no choice but to grant it.
In order to succeed on a motion to set aside the verdict, the Defendant had the burden of
establishing that the admissible evidence, viewed in its entirety and with all reasonable inferences
drawn in favor of the State, was insufficient to prove beyond a reasonable doubt that he was guilty
of the crime charged. State v. Kousounadis, 159 NH 413 , 421 (2009). In his Motion to Set Aside
the Verdict, App. at p. 49 the Defendant pointed out the errors committed by the trial Court when it
admitted the BAC and further raised, and argued, the due process violation occurring when, on the
state of the trial record, the State had failed to establish compliance with both statutory and
regulatory procedures with respect to sample capture tubes. The Defendant respectfully submits
that a properly adjudicated motion to set aside the verdict would have led the Court to the
inescapable conclusion that it erred when it admitted the BAC result and that upon striking that
result there remained insufficient evidence for the State to have established the Defendant’s guilt
29
beyond a reasonable doubt. Kousounadis, supra citing State v. Huffman, 154 NH 678, 685 (2007).
Consequently, the errors committed with regard to the admission of the BAC result was
compounded by the fact that not only did the Trial Court decline and/or avoid to addressing a timely
filed post-trial motion to set aside a verdict but that such a motion would, if properly adjudicated,
have resulted in the motion being granted. That error, now, requires that this Court do what the
District Court failed to do and reverse the Defendant’s conviction.
30
CONCLUSION
In the first instance the Trial Court should have disallowed the testimony of Aquino along
with the BAC result because of the undisputed discovery violation. That would have left the State
with insufficient evidence to have established the Defendant’s guilt beyond a reasonable doubt and
his conviction must now be reversed.
On the merits, the Trial Court erred when it admitted the BAC result and did so by applying
an improper standard of admissibility rather than suppressing it. The admission of the BAC result
was the “final nail in the coffin” and was indeed the “nail” that was necessary to sustain the
conviction and without which the outcome would have been entirely different i.e. an acquittal. It
was not a harmless error to have admitted the BAC result and, accordingly, the Defendant’s
conviction must be reversed.
The Defendant’s Federal and State constitutional rights were violated during the entire
course of the post-trial proceedings and were cured only by an appropriate Order that the Defendant
was forced to seek from the Superior Court. As a matter of State and Federal constitutional law as
well as under the general supervisory authority of this Court, the Defendant’s conviction must be
reversed.
Had the Trial Court adjudicated the Motion to Set Aside the Verdict and for Judgment of
Acquittal N.O.V., as it was obliged to, and for the reasons therein stated, the Defendant’s conviction
would have been set aside and a Judgment of Acquittal N.O.V. would have been mandated. This
error was compounded by the fact that the Trial Court manipulated the process by forcing the
Defendant to take a de novo appeal because it would not adhere to its legal obligation to grant PR
bail pending appeal and then, when the Defendant appealed to the Superior Court to avoid the
improper incarceration, claimed that it could not rule on the post-trial motion because it no longer
31
had jurisdiction because of the Superior Court appeal. This flies in the face of the Defendant’s
Federal and State Constitutional Rights and the language of RSA 599:1 which really never divests
the District Court of jurisdiction to rule on post-trial motions unless and until jeopardy attaches in
the Superior Court as part of a completely perfected de novo appeal. Accordingly, and on this
ground as well, the Defendant’s conviction must be reversed.
Respectfully submitted, Harold Gill, By his Attorney, LAW OFFICES OF ROBERT J. MOSES ______________________________ Robert J. Moses Route 101-A, P.O. Box 8 Amherst, N.H. 03031-0008 (603) 673-5260 May 28, 2010
Bar Id. #1814 CERTIFICATE OF SERVICE I hereby certify that on May ___, 2010 I mailed postage prepaid a copy of the within to Susan McGinnis, Esquire, opposing counsel and to the Defendant, Harold Gill. _____________________________ Robert J. Moses
