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State v. Hill

Supreme Court of New Hampshire, Cheshire

December 13, 2019


          Argued: October 16, 2019

          Gordon J. MacDonald, attorney general (Lisa L. Wolford, senior assistant attorney general, on the brief and orally), for the State.

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          HICKS, J.

         The defendant, Christina A. Hill, appeals an order of the Superior Court (Ruoff, J.) releasing her before trial on the condition that she pay $10, 000 cash bail, among other conditions. Although, since filing her appeal, the defendant has resolved the charges against her by plea, the parties agree that her appeal is not moot "because it presents legal issues that are of pressing public interest and are capable of repetition yet evading review." Olson v. Town of Grafton, 168 N.H. 563, 566 (2016) (quotation omitted). They have asked that we decide "the primary issue raised in her bail appeal - whether under RSA 597:2, a trial court may set bail at an amount the defendant cannot meet, on the sole basis that the defendant is a flight risk."

         We agree that this issue is not moot, and now hold that RSA 597:2 (Supp. 2018) (amended 2019) permits a trial court to set unaffordable bail "on the sole basis that the defendant is a flight risk."

         The defendant was charged with, and pleaded not guilty to, three drug-related charges: possession of heroin, possession of crack cocaine, and sale of crack cocaine. At her arraignment, the State requested that the court preventively detain the defendant because her release posed a danger to the community. According to the State, the defendant engaged in the charged conduct while released on her own recognizance on another drug possession charge. The State contended that, by possessing and selling controlled drugs and engaging in other conduct, the defendant violated the terms of her release. In addition, the State informed the court that the defendant engaged in the conduct while under the terms of a suspended sentence. According to the State, in August 2018, the defendant had been convicted of felony possession of a controlled drug for which she was sentenced to one-to-two years in prison, suspended for three years.

         The State described, in detail, the defendant's "significant criminal record," dating from 2007, which included prior convictions for felony theft, forgery, endangering the welfare of a child, receipt of stolen property, and felony possession of a controlled drug. The State also observed that the defendant had shown through prior conduct that "she's not likely to abide by [the court's] bail conditions," noting that she had been convicted of violating the terms of her probation on multiple occasions over a ten-year period (from 2008 to 2018). In 2011, the defendant was convicted of "bail jumping." In addition, the State informed the court that the defendant had "two failures to appear on her record, one in October of 2007 . . . and . . . another in December of 2010."

         Defense counsel requested that the defendant be released with nonmonetary conditions because there was not "clear and convincing evidence" that such conditions would fail to assure her appearance at trial. Defense counsel suggested that such conditions include that the defendant enroll in an intensive outpatient program for drug addiction and have "daily check-ins with the Court."

         The trial court originally set cash bail at $25, 000, because it was "not satisfied that any . . . conditions that [it] could set" would assure the defendant's compliance with the law. The court explained that "driving [its] decision" were the facts that the defendant committed the charged offenses while "out on bail" and under a deferred sentence.

         The court specifically determined that the defendant's release would not be dangerous because she had not been charged with "selling large volumes of drugs," selling drugs in a school zone, or selling while "armed and dangerous." Rather, the court stated that its bail decision was based upon its determination that the defendant posed "just a risk of flight."

         Defense counsel objected, arguing that under RSA 597:2 as amended in 2018, "the Court is required to set an amount of cash bail that will not result in detention simply because the defendant is not able to post the amount of money." Defense counsel represented that the defendant lacked the ability to post $25, 000 cash bail, but that her uncle could post $300. Thus, defense counsel requested that the court set cash bail at $300.

         The trial court disagreed, ruling that RSA 597:2 "allows [the court] to set an amount [of cash bail] regardless of [the defendant's] ability to post it if [the court] make[s] sufficient findings by [a] preponderance of the evidence that just a bail that she can . . . post is not sufficient." The court reiterated, however, that there was not clear and convincing evidence that the defendant's release would be dangerous.

         Defense counsel argued that an amount less than $25, 000 cash bail would suffice to assure the defendant's appearance, explaining that the defendant "is not a person of great means" and that $25, 000 cash "is not just a substantial amount of money to her, it's a fortune." The trial court reduced the cash bail to $10, 000, but stated that the reduction likely would not "make that much of a difference" because that amount is not "something that [the defendant] can post." This appeal followed.

         On appeal, the defendant contends that RSA 597:2 precludes the trial court from setting cash bail in an amount that the court knows will result in a defendant's detention unless the court determines by clear and convincing evidence that the defendant's release will endanger the safety of the defendant or the public. The State counters that, under RSA 597:2, a trial court may set unaffordable cash bail that results in detention when the preponderance of evidence establishes that the defendant poses a flight risk. For the reasons that follow, we agree with the State.

         Resolving this issue requires that we engage in statutory interpretation. When construing statutes, we first look to the plain and ordinary meaning of the words used. Petition of Second Chance Bail Bonds, 171 N.H. 807, 811 (2019). We discern legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. If a statute's language is plain and unambiguous, then we need not look beyond it for further indication of legislative intent. State v. Rosario, 148 N.H. 488, 489 (2002). By contrast, if the statutory language is ambiguous or subject to more than one reasonable interpretation, we will review legislative history to aid in our analysis. Id.

         RSA 597:2 provides, in relevant part:

III. (a) The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required. A person who the court determines to be a danger to the safety of that person or the public shall be ...

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