2011 Fall, Pg. 56. LEX LOCI.

AuthorBy David W. Ruoff

New Hampshire Bar Journal


2011 Fall, Pg. 56.


New Hampshire State Bar JournalVolume 52, No. 3Fall 2011LEX LOCIBy David W. RuoffState v. Andre Rivera, No. 2010-130, decided on June 28,2011, is a case involving Rivera's improvident participation in an armed home invasion that resulted in a murder Rivera and four other like-minded men plotted to rob a known drug dealer They agreed to bring a Mac 11 submachine gun with them to help convince the drug dealer to turn over his drugs and money. They knew their target also had a gun, which he kept in a safe in his house. The gaggle of fve men drove to the victim's house where they confronted him. One of the co-defendants (the one with the submachine gun) confronted the victim (who was armed) and shot him. Rivera, meanwhile, was in a downstairs bedroom rummaging through a dresser Upon hearing the shot, the co-defendants all fed in their car.

Rivera was indicted for, among other things, reckless second degree murder under the theory that he was an "accomplice-in-conduct." Under normal circumstances, the state must allege and prove that the accomplice acted with the purpose to promote or facilitate the commission of the underlying offense, but the indictment failed to contain that allegation. Rivera moved to dismiss the indictment by arguing that, in essence, the state had to prove that he specifcally intended for the victim's death to occur He relied heavily - too heavily - on a 1984 case that would have directly applied to him in 1984. State v. Etzweiler, 125 NH 57 (1984), interpreted an older version of the accomplice statute (RSA 628:8, IV) that supported Rivera's argument. The hint here is "older version."

The Court correctly pointed out that - arguably in response to Etzweiler - the legislature amended the accomplice statute by removing the requirement that it must be proven that an accomplice must act to promote or facilitate the commission of the underlying offense. Instead, to address cases like Rivera's, the statute only required that the prosecution prove that he acted with same mental state as the underlying offense (recklessly not purposely) as long as "the result was a reasonably foreseeable consequence of the conduct." In this case, the Court had little trouble fnding that a gunfght with the resulting death was a reasonably foreseeable consequence of an armed home invasion even if Rivera did not directly participate in the actus reus of the murder.

InState v. Ryan Laplaca, No. 2010-042, decided June 28,2011, the last sentence of the opinion completely defates the main holding in the case. The Court found that the trial court violated Laplaca's due process rights by summarily imposing a suspended sentence without affording Laplaca the opportunity to be heard at an evidentiary hearing. The seed of the due process violation was planted when Laplaca admitted that he had violated the terms of his probation on an underlying felony As a result of the violation, the trial court sentenced him to the state prison, but suspended the sentence on the condition that he complete the Grafton County Drug Court Sentencing Program. A specifc provision of the sentencing order stated that the defendant waived "any and all" rights to a hearing on any potential claims that he had violated the terms of the Program or that he had been terminated from it. Borrowing a phrase from Monopoly if Laplaca was terminated from the Program, he would go directly to jail (no passing Go, no collecting $200).

Laplaca was terminated from the program six months later and the prosecution moved to summarily impose the full suspended sentence. The trial court granted the motion and imposed the full suspended sentence. On appeal, the Court found that this procedure, or lack of procedure, violated the defendant's right to due process. The State - taking a cue from the trial court's order - argued that the defendant had waived his right to a hearing. The logical (and fatal) extension of this argument, though, is that the defendant waived his right to due process (to be treated fairly).

In its analysis, the Court found that the defendant had a legally protected interest, a liberty interest, that triggered the fundamental requirements of due process. The Court reaffrmed the well-settled, bedrock procedures that must be followed when the State seeks to incarcerate a defendant by moving to impose a suspended sentence: 1) written notice; 2) disclosure of the evidence; 3) opportunity to be heard in person and offer evidence; 4) right to confront evidence; 5) right to counsel. In this case, it appears from the record that three out of fve steps were missed. The Court found that Laplaca could not have prospectively entered a knowing and intelligent waiver of his right to a hearing to contest allegations of misconduct months before he knew...

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