State v. Cooper

498 A.2d 1209, 127 N.H. 119, 1985 N.H. LEXIS 375
CourtSupreme Court of New Hampshire
DecidedAugust 15, 1985
DocketNo. 84-150; No. 84-145
StatusPublished
Cited by10 cases

This text of 498 A.2d 1209 (State v. Cooper) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cooper, 498 A.2d 1209, 127 N.H. 119, 1985 N.H. LEXIS 375 (N.H. 1985).

Opinion

Batchelder, J.

These consolidated appeals raise State and federal constitutional challenges to New Hampshire Supreme Court Rules 3 and 7 which permit this court to decline to accept an appeal. We hold the rules to be constitutional as we construe them in this opinion.

Lon Cooper was convicted by a jury in Merrimack County Superi- or Court (Cann, J.) of operating a motor vehicle after revocation of his driver’s license. He was sentenced to serve ninety days in the house of correction, loss of license for an additional year, and a $250 fine. He filed a notice of appeal alleging that the trial court erred: (1) in denying his motion to dismiss at the close of the State’s case; (2) in instructing the jury that evidence that notice of revocation was sent to the defendant’s last known address is prima facie evidence that the defendant was notified of the revocation; and (3) in denying defendant’s motion to dismiss on the ground that recent amendments to RSA 263:64, under which the defendant was convicted and sentenced, failed to provide sufficient notice of the conduct forbidden or the punishment authorized. On June 13, 1984, we declined acceptance of the appeal under Supreme Court Rule 7.

Elroy Dupuis and Diane Therriault were jointly tried before a jury in Coos County Superior Court (Dickson, J.). Both were charged with drug sales to a police informer. The sales, which occurred on August 29, 1983, involved five tablets of LSD for $15 and two grams of marijuana for $16. Both were sentenced to the State prison for terms of two to five years with one year suspended. Both were released on $1,000 personal recognizance bail pending appeal. Their joint notice of appeal raised the question whether the superior court committed reversible error both in denying defendants’ motion for a directed verdict of acquittal and in permitting the State to reopen its case and recall its principal witness for the purpose of identifying the defendants as the persons who conducted the sale. On June 13,1984, we declined to accept the appeal.

On June 21, 1984, the defendants in both of these appeals moved for reconsideration of the declination orders, challenging the constitutionality of the declination procedure under both the New Hampshire and the United States Constitutions. On July 31, 1984, we consolidated these cases for purposes of considering the constitutionality of Rule 7(1).

Supreme Court Rule 7(1) provides: “The supreme court may, in its discretion, decline to accept an appeal from a lower court after a decision on the merits, or may summarily dispose of such appeal as provided in [supreme court] rule 25.” Supreme Court Rule 3 defines “Declination of acceptance order” to mean that: “The supreme court does not deem it desirable to review the issues in a case, as a matter [122]*122of sound judicial discretion and with no implication whatever regarding its views on the merits.”

Defendants contend that, under the State and Federal Constitutions, the declination procedure denies due process, equal protection, and the effective assistance of counsel. Specifically, they argue that: (1) the rules permit this court arbitrarily and capriciously to decline acceptance of an appeal; (2) the “desirability” standard is vague and cannot properly form the basis for deciding which cases this court will or will not accept; (3) the distinctions made pursuant to the declination standard create irrational distinctions between “meritorious” and “non-meritorious” appeals; and (4) the declination procedure precludes counsel from effectively advocating the interests of his client before the court.

We begin, as we must, by first making an independent analysis of the protections afforded under the New Hampshire Constitution. State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). In this case, decisions of the United States Supreme Court are particularly helpful as aids in our State constitutional analysis. See Michigan v. Long, 103 S. Ct. 3469, 3476 (1983).

The defendants do not argue that this court must hear all appeals. Federal cases have held that the Due Process Clause of the fourteenth amendment of the United States Constitution does not require appellate review by a State supreme court in a criminal case absent State constitutional or statutory authority to the contrary. See McKane v. Durston, 153 U.S. 684, 687 (1894); Ross v. Moffitt, 417 U.S. 600, 611 (1974). The defendants advance no claim that the State Constitution grants such a right. Nevertheless, we have demonstrated by our rules and long-standing practices, a solicitous regard for defendants who desire to obtain appellate review of their convictions. State v. Howard, 109 N.H. 518, 520, 257 A.2d 17, 19 (1969).

The New Hampshire Constitution guarantees both due process and equal protection. N.H. Const, pt. I, arts. 15 and 12; see Appeal of Portsmouth Trust Co., 120 N.H. 753, 756, 423 A.2d 603, 605 (1980); Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147, 151 (1980); see also U.S. CONST, amend. XIV; Griffin v. Illinois, 351 U.S. 12 (1956). If a State has created appellate courts as “an integral part of the [State] trial system for finally adjudicating the guilt or innocence of a defendant,” the procedures used in deciding appeals must comport with due process and equal protection. Griffin v. Illinois, supra at 18; Evitts v. Lucey, 105 S. Ct. 830, 834 (1985).

Due process and equal protection guarantee a variety of rights on appeal. N.H. Const, pt. I, art. 15 (indigents’ right to coun[123]*123sel at expense of State); see Griffin v. Illinois supra (right of indigents to free transcript); Evitts v. Lucey supra and Anders v. California, 386 U.S. 738 (1967) (right to effective assistance of counsel). The line of demarcation between equal protection and due process in appellate rights cases was aptly stated recently by the United States Supreme Court as follows:

“In Griffin, for instance, the State had in effect dismissed petitioner’s appeal because he could not afford a transcript. In establishing a system of appeal as of right, the State had implicitly determined that it was unwilling to curtail drastically a defendant’s liberty unless a second judicial decisionmaker, the appellate court, was convinced that the conviction was in accord with law. But having decided that this determination was so important — having made the appeal the final step in the adjudication of guilt or innocence of the individual — the State could not in effect make it available only to the wealthy. Such a disposition violated equal protection principles because it distinguished between poor and rich with respect to such a vital right. But it also violated due process principles because it decided the appeal in a way that was arbitrary with respect to the issues involved. In Griffin,

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Cite This Page — Counsel Stack

Bluebook (online)
498 A.2d 1209, 127 N.H. 119, 1985 N.H. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cooper-nh-1985.