2007 Autumn, Pg. 84. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

• Author: By Attorney Charles A. DeGrandpre

New Hampshire Bar Journal

2007.

2007 Autumn, Pg. 84.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawLex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreThe New Hampshire Supreme Court recently handed down two monumental constitutional opinions, in each of which the Court split three to two. One case involved the Federal Constitution and the other, our New Hampshire Constitution. In each case, Chief Justice Broderick was in the dissent and both illustrate the best workings of our New Hampshire appellate system. In the first, State v. O'Maley, opinion issued September 5, 2007, the issue was an alleged Federal Confrontation Clause violation, the claim of the defendant being that the admission of a blood sample collection form and blood tests upon which the state's medical doctor witness based his testimony, violated the Federal Confrontation Clause.(fn1) The issue arose in the context of a simple DWI bench trial in the Derry District Court where the court admitted certain out-of-court statements (specifically, documents such as blood sample collection forms and laboratory test results, upon which the state's expert had based his testimony). It's important to note that neither the technician who drew the blood nor the analyst who chemically tested it testified at trial. As the dissent acknowledged, the consequences of the Court's ruling "would be of no slight consequence for the prosecution of certain offenses in this State and for expert witnesses." Indeed, had the dissenters' view prevailed, the prosecution of hundreds, if not thousands, of everyday cases, most in the district courts, would have become more costly, lengthier and more complex.

The issue was whether the admission of this hearsay evidence was testimonial in nature and thus violated the Confrontation Clause which gives a criminal defendant "the right. . . to be confronted with the witness against him." The three-judge majority, writing through Justice Dalianis, ruled that the blood sample collection form and the blood test result were not testimonial and held that the admission of the form and the professional expert's testimony did not violate the Federal Constitution's Confrontation Clause. A vigorous dissent followed, authored by Justice Duggan, in which Chief Justice Broderick concurred. While acknowledging the majority's "thoughtful opinion," the dissenters argued that the statements and expert opinion were testimonial as they constituted the "use of ex parte affidavits to secure criminal convictions [which] was `the principal evil at which the Confrontation Clause was directed.'"

In the second important appellate analysis case, Petition of the State of New Hampshire (State v. Johanson, Jr.),(fn2) the question was whether the New Hampshire Constitution's venue provision,(fn3) which presently clearly provides, as amended in 1978, that "no crime or offense ought to be tried in any other county. . . than that which it is committed," was violated in the present case. The constitutional provision goes on to provide that, under certain circumstances the defendant may move for a change in venue. The unusual facts of this case were that the crime was alleged to be committed in Cheshire County, but because of a conflict with available judges, the chief judge of the superior court, on his own motion, moved the trial of the case to a different county. The defendant did not object until at the close of the state's case and jeopardy attached, at which point the defendant raised the claim that the constitutional provision was mandatory and could only be waived by his written assent, which he had never given. The question turned on the question of whether the constitutional prohibition was absolute or could be waived by the defendant by his failure to object when the venue change was made. The trial court considered the matter at length and dismissed the indictment, ruling that the bench trial violated the constitutional venue provision.

A three-judge majority of the Supreme Court, speaking through Justice Duggan, examined in great detail the venue clause and its history and concluded that venue is not a "material element of every criminal offense and that the defendant could waive the provision and he had done so when he failed to timely object to the change in venue. The majority then held that the Double Jeopardy Clause of our State Constitution did not bar remand of the case to the county in which it was tried. The majority specifically found the ruling of the trial court to be erroneous as a matter of law, vacated the trial court's decision, and sent the case back to the trial court. Are we confronted by an activist court which does not carry out by their decisions the "original intent" of the drafters of our State Constitution?

The dissents, authored by Chief Justice Broderick and by Justice Galway, separately, provide an intriguing discussion of the venue clause and whether or not the order of the judge of the superior court changing venue was constitutional. The Broderick dissent pointed out that "both parties agreed that the respondent had a constitutional right to...