Argued: October 16, 2019
J. MacDonald, attorney general (Lisa L. Wolford, senior
assistant attorney general, on the brief and orally), for the
M. Rothstein, deputy director public defender, of Concord, on
the brief and orally, for the defendant.
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
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."
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.
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
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."
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.
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."
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.
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.
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.
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.
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.
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 ...