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State v. Hanes

Supreme Court of New Hampshire, Merrimack

July 18, 2018


          Argued: March 8, 2018

          Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

          Christopher M. Johnson, chief appellate defender, on the brief and orally, for the defendant.

          HANTZ MARCONI, J.

         The defendant, Michael Hanes, appeals his conviction, following a jury trial in Superior Court (McNamara, J.), for improper influence. See RSA 640:3 (2016). He argues that there was insufficient evidence to sustain the verdict, that the speech underlying his conviction enjoys constitutional protection, and that the trial court committed plain error in failing to sua sponte strike part of a witness's testimony. We affirm.


         The relevant facts follow. The defendant lived in Pembroke, in an "older part of the town," on an "extremely narrow" street. His house was "very close to the street," and to get out his front door, he had to walk on the sidewalk. When the town's Department of Public Works (DPW) plowed the road after a snowfall, the snow bank would be up to the defendant's front steps.

         The DPW plows the town roads and sidewalks according to policies and procedures established by the board of selectmen, including a snow removal policy plan that identifies the sequence in which roads and sidewalks are plowed. The town administrator, David Jodoin, was one of the town's employees responsible for implementing this plan. In addition, Jodoin was responsible for discipline and other personnel matters regarding town employees, supervising the department heads of several municipal departments, including the director of the DPW, advising those departments how to implement the town's policies and procedures and ensuring that they were followed, and responding to citizen complaints. The town has over 80 miles of road and employed eight town employees to plow the roads and sidewalks.

         Around February 2015, the defendant contacted Jodoin and complained about the snow removal on his street and the fact that he had been "plowed in." Jodoin explained to the defendant that the town's board of selectmen had adopted a snow removal policy and that DPW employees "would go out and take care of it and clean it up once [they] could, but [they] were behind on the snow removal and . . . had other issues that [they] had to deal with, with sidewalks and things of that nature, . . . but [they] would be back." The defendant did not "threaten anyone during that conversation."

         Approximately one year later, on February 16, 2016, the defendant again telephoned Jodoin to complain about the snow plowing. At 9:17 a.m., the defendant left the following message on Jodoin's voicemail as transcribed by the Pembroke Police Department:

Dave Jodoin this is Mike Haynes [sic] . . . . I called you last year because we were having a problem with the city plowing the snow right up onto my sidewalk. Well today, and this isn't a whole [lot] of snow that we're getting, but they, the little bit of snow, it's accumulated in front of my house over the winter, they pushed all of that and the snow from today, last night up onto my damn sidewalk. I got two feet of snow in my f**king front yard! I want Jimmy fired! I want to see somebody fired down there! I want you to f**king fire some goddamn plow drivers! You come and look in front of my goddamn house! I am f**king just mad as hell! I want a plow driver fired for this and I want Jimmy's f**king head on a goddamn stick! I'm gonna start shooting these bastards if they keep this up! I will kill every f**king plow driver in this mother f**king goddamn city if they do this one more f**king time! Thank you!

         Jodoin testified that the defendant's message "started out pretty calm, reasonable, and then it just went from like zero to 60 and accelerated within like three seconds. It was loud, yelling, screaming, threatening, wanted somebody fired, and then the threats came in."

         After listening to the message, Jodoin contacted the police because "[a]ny time anybody . . . threatens another individual, that . . . becomes a police issue," and because he was concerned about the safety of town employees. He also contacted the DPW and advised the director's secretary to contact the police if any DPW employees had any communication with the defendant. In response, the police chief made a recording of the message and took it to the police station where he played it for Detective Foster and another police officer. Given "the nature of the threat" and its "immediacy," the police went to the defendant's house. The defendant acknowledged leaving "a pretty nasty voicemail for the Town Administrator" and stated that he "thought it was a mistake." The officers then arrested him at approximately 11:45 a.m.

         The defendant was subsequently indicted on one class B felony count of improper influence. See RSA 640:3, I(a). ...

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