State of New Hampshire v. Thabiti Hill

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0253, State of New Hampshire v. Thabiti
Hill, the court on July 11, 2019, issued the following order:

Having considered the memoranda of law and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). We affirm.

The State appeals a decision of the Superior Court (Houran, J.), granting
the defendant, Thabiti Hill, release pending trial in the circuit court on certain
misdemeanor charges, following the defendant’s de novo appeal of a decision of
the Circuit Court (Donovan, J.) that had placed him in preventative detention
without bail. See RSA 597:2, :6-e, II (Supp. 2018). Although the superior
court found both that the defendant poses a flight risk and that his release will
endanger his safety and the safety of the public, it determined that restrictive
conditions would address those concerns. Accordingly, it granted the
defendant release on an unsecured appearance bond of $10,000 and certain
restrictive conditions. On appeal, the State argues that the superior court
erred by construing RSA 597:2 so as to require that it consider conditions of
release after it determined that the State had established that the defendant
posed a risk of flight and was a danger.1

It is a longstanding rule that parties may not have review on appeal of
issues that were not raised in the trial court. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004). The purpose of this rule is to give the trial
court an opportunity to correct any errors it may have made before those
alleged errors are presented for review on appeal. State v. Mouser, 168 N.H.
19, 26 (2015). To preserve an issue that could not have been raised prior to
the trial court’s decision, it is incumbent upon the appealing party to raise the
issue in a motion for reconsideration. Id. at 27; see N.H. R. Crim. P. 43(a).

In arguing that the superior court misinterpreted RSA 597:2 to require
that it consider whether conditions of release might address the State’s
concerns after determining that the State had met its burden of proof, the State
relies heavily upon the following statements of the superior court:

1 We note that the argument in the State’s memorandum of law is slightly different than the

issue presented in its notice of appeal. In its notice of appeal, the State framed the issue on
appeal as follows: “Whether, after finding that the defendant presented both a risk of flight and
danger to the community, it was nevertheless within the court’s discretion to release him.”
 It’s a two-part analysis that I need to perform. Part one, has the
State met its burden of proof, and if so, part two is whether there
are, nonetheless, terms and conditions which could address the
concerns that lead to that finding.

That is where I am here. [The State] has met its burden of
proof . . . .

...

So part two of the analysis is whether there are conditions
which can address those [concerns]. My answer is yes. . . .

...

And then, finally, and I stress this, if you violate [the
conditions] in any way . . . , at that point bail is revoked . . . .
That’s a violation of the bail order. I have the authority to impose
that and it’s the alternative I have other than agreeing with the
State that you should be held. That’s the way I make sure that
you’re here; that’s the way I protect the public because I do share
the State’s concern. But under the new bail statute, since there
are terms and conditions which address the issues the State’s
raised, I’m obligated to give them a try and give you a chance to
make this work.

At no point after the trial court made these statements did the State object on
the basis that, under RSA 597:2, the trial court was not required to consider
restrictive conditions of release. Nor did it move for reconsideration on that
basis, or otherwise argue that it was not within the trial court’s discretion to
release the defendant with restrictive conditions after finding that he posed a
risk of flight and danger to the community. Under these circumstances, we
conclude that the State’s argument is not preserved.

Affirmed.

Lynn, C.J., and Hicks, Bassett, and Hantz Marconi, JJ., concurred.

Eileen Fox,
Clerk

2