2006-033, REBECCA MILLER v. BRIAN BLACKDEN

The defendant, Brian Blackden, appeals the entry of a final

Penny S. Dean, of Concord, by brief, for the defendant.

to press. Errors may be reported by E-mail at the following address: Rebecca Miller, pro se, filed no brief.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-033 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Concord District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

offense of stalking if he or she “[p]urposely, knowingly, or recklessly engages in petition, she saw the defendant waiting for her near her home.

Miller has not appealed the denial of his motion to intervene. attempted to intervene in the action, but his request to do so was denied. which the trial court denied. The defendant’s business partner, Robert Miller, judge erred by not recusing himself. We address each argument in turn. insufficient to support the trial court’s order. Finally, he argues that the trial provisions of the stalking statute. Third, he contends that the evidence was

constitutional rights to due process. 633:3-a, is vague on its face and as applied, in violation of his state and federal RSA 633:3-a provides, in pertinent part, that a person commits the followed her to a traffic light. When she returned to her home after filing the I. Constitutionality of Stalking Statute

confronted the defendant and told him to leave the plaintiff alone. he is a licensed private detective. The defendant moved for reconsideration, her knowledge or consent. She informed a nearby police officer, who failed to find that, as a licensed private detective, he was exempt from the CONST. amends. V, XIV. Second, he asserts that the trial court erred when it

When asked, he asserted that he could not disclose what Raymond wanted him On appeal, the defendant first argues that the stalking statute, RSA saw the defendant traveling in the opposite direction. He made a U-turn and surveillance of the plaintiff in his capacity as a licensed private detective. again. When she then drove to the courthouse to file the stalking petition, she son from school, she saw the defendant drive up the street and stare at her

RSA 633:3-a, and that he was not immune from the stalking statute because removed some belongings of her former boyfriend from her parked car without The court found that the defendant engaged in stalking within the meaning of Following the hearing, the trial court entered a final protective order.

November 1, p. 2 2005. He testified that Raymond had hired him to conduct The defendant admitted that he followed the plaintiff on six occasions on her. She testified that “he . . . stared me down.” After she had retrieved her

The plaintiff testified that before the stalking began, the defendant

pulled into the parking lot of her son’s school, she saw the defendant drive by children to spend the night with her mother. The following day, when she me.” The plaintiff felt “nervous” after receiving this call and went with her doors and my windows were locked[ ] because [the defendant] was watching lights off.” The officer told her “to be precautious [sic] and make sure all my p. 3 1999); reasonable person to fear for his personal safety.” RSA 633:3-a, I(d)(4) (Supp.

person’s immediate family. RSA 633:3-a, II(a)(2).

statute, which measures the offending conduct by an objective standard, did

following, approaching or confronting the targeted person or a member of that “is genuine or accordant with law.”

enforcement.”

purpose in proximity to the residence, place of employment, or other place stalking, in part, as appearing “on more than one occasion for no legitimate 633:3-a (1996 & Supp. 1999). The earlier version of the statute defined that the phrase “no legitimate purpose,” read in the context of the entire

shall not include constitutionally protected activity, nor shall it include face and as applied. Porelle, 149 N.H. at 422, 425. that the phrase “for no legitimate purpose” was unconstitutionally vague on its analyze the defendant’s claim under the State Constitution, and “[s]econd, if it authorizes or even encourages arbitrary and discriminatory Porelle, 149 N.H. at 422. The defendant argued, among other things, is undefined and does not sufficiently limit the trial court’s discretion. We first

interests.”

(2003), where we construed an earlier version of the stalking statute, RSA We addressed a similar challenge in State v. Porelle, 149 N.H. 420

530 U.S. 703, 732 (2000). continuity of purpose.” Pursuant to RSA 633:3-a, II(a), “[a] course of conduct Burke, 153 N.H. at 364 (quotations omitted); Hill v. Colorado,

intelligence a reasonable opportunity to understand what conduct it prohibits,” unconstitutionally vague under the State and Federal Constitutions because it Burke, 153 N.H. at 364. “First, if it fails to provide people of ordinary Vagueness may invalidate a criminal law for either of two independent reasons.

Id. (quotation omitted); Chicago v. Morales, 527 U.S. 41, 52 (1999).

public that are sufficient to guard against the arbitrary deprivation of liberty impermissibly vague because it fails to establish standards for the police and novo. State v. Burke, 153 N.H. 361, 364 (2006). “A statute may be The constitutionality of a statute is a question of law, which we review de

N.H. 226, 231 (1983), citing federal authority for guidance only, id. at 233. “2 or more acts over a period of time, however short, which evidences a State v. Ball, 124 such fear.” RSA 633:3-a, I(a). RSA 633:3-a, II(a) defines “course of conduct” as member of that person’s immediate family, and the person is actually placed in The defendant argues that the term “legitimate purpose” is

reasonable person to fear for his or her personal safety or the safety of a a course of conduct targeted at a specific person which would cause a p. 4 4

statute do not apply to licensed private investigators “acting during the course

purpose independent of making contact with the targeted person”),

stalking statute does not specifically exempt licensed private detectives.

Rev. Stat. Ann. § 1 p. 4 4.40.2(F) (LexisNexis Supp. 2005) (provisions of stalking

protected activity or “conduct that was necessary to accomplish a legitimate Compare RSA 633:3-a, II(a) (stalking does not include constitutionally

Unlike the stalking statutes in some other states, New Hampshire’s

greater protection than does the State Constitution under these circumstances, employment as a licensed private detective. RSA 633:3-a, II(a). that would cause a reasonable person to fear for his or her safety.” conduct was for a “legitimate purpose” because it was within the scope of his See RSA 106-F: p. 4 4, I-b(c) (2001) . He argues that, as a matter of law, his “clandestine surveillance” of the plaintiff was exempt from the stalking statute. The defendant next asserts that, as a licensed private detective, his

do under the State Constitution. see id. at p. 4 423, we reach the same result under the Federal Constitution as we

1 p. 4 49 N.H. at 425-26. As the Federal Constitution offers the defendant no 64. We disagree for the same reasons that we set forth in standard, in that the offending conduct is only prohibited under circumstances Porelle. See Porelle, has found unconstitutionally vague.” Id. at 425; see Morales, 527 U.S. at 47, 633:3-a is similar to loitering statutes that the United States Supreme Court Like the defendant in the defendant in Porelle, the defendant in this case argues that “RSA

p. 4 425-26. require a person of common intelligence to guess at its meaning. See id. at See id. This phrase, read in conjunction with the rest of the statute, does not with an objective standard, does not give too much discretion to the trial court. phrase “legitimate purpose” read in the context of the entire statute, coupled

ignores the fact that the statute measures a defendant’s actions by an objective As we explained in Porelle, “By taking this phrase out of context, the defendant

Porelle, the defendant here takes the phrase out of context.

unconstitutionally vague, either on its face or as applied to the defendant. Like in RSA 633:3-a, II(a), does not render the current version of the statute For similar reasons, we hold that the phrase “legitimate purpose” as used

the defendant. Id. render the statute unconstitutionally vague, either on its face or as applied to be determined, we concluded that the phrase “no legitimate purpose” did not of a genuine or lawful purpose for appearing in proximity to another can readily not give too much discretion to police officers. Id. As the presence or absence statute governing such investigators).

p. 5 proviso, or exemption shall be upon the defendant.

investigator “acting within the capacity of his or her license” as provided by

633:3-a, IV provides: 5 that his conduct was necessary to accomplish a legitimate purpose. RSA defendant has the burden of proof. a, II(a). Pursuant to RSA 633:3-a, IV, the defendant has the burden to show

contained herein and the burden of proof of any exception, excuse,

46.110(3) (2006) (defense to crime of stalking that defendant is licensed private investigator was acting within scope of employment); Wash. Rev. Code § 9Aassignment”); N.D. Cent. Code § 12.1-17.07.1(4) (1997) (defense that private

purpose is an “exception, excuse, proviso, or exemption” upon which the purpose independent of making contact with the targeted person.” RSA 633:3- accomplish a “legitimate purpose” refers to conduct that is “accordant with As we held in Porelle, 149 N.H. at 425, conduct that is necessary to

detective. We disagree. that he secretly followed the plaintiff in his capacity as a licensed private necessary to negate any exception, excuse, proviso, or exemption The defendant contends that he met this burden of proof by testifying

offense of stalking upon which defendant has burden of proof). (2004) (assuming without deciding that “legitimate purpose” is defense to of his or her duty while conducting surveillance on an official work Cf. State v. Small, 150 N.H. 457, 461-62

That the defendant’s conduct was necessary to accomplish a legitimate private detective as it is under stalking statutes in some other states. protected conduct and conduct “that was necessary to accomplish a legitimate

enforcement of any provision of this statute, it shall not be In any complaint, information, or indictment brought for the

that actor is a licensed private investigator “acting within the reasonable scope

prosecution brought under New Hampshire law that the defendant is a licensed Rather, New Hampshire’s stalking statute exempts only constitutionally

acting in their official capacity).

client and the private investigator”) services or an investigation as described in detail in a contract signed by the (stalking statute does not apply to “licensed private investigator performing

Code Ann. § 5-71-229(c) (2005) (it is affirmative defense to stalking prosecution

Nor is it specifically an affirmative defense to a stalking petition or

(stalking injunctions may not be obtained against licensed private investigators

conducting of an investigation”), S.C. Code Ann. § 16-3-1700(G) (West 2005) and scope of . . . employment and performing . . . duties relative to the the stalking began after a complaint by the plaintiff caused the boyfriend to be

p. 6 II(a) as authorizing stalking by proxy. safety, that purpose also would be unlawful. We do not construe RSA 633:3-a,

evidential support or tainted by error of law.

plaintiff’s former boyfriend, after the couple ended their relationship and that

follow the plaintiff for the purpose of causing her to fear for her own personal

uphold the findings and rulings of the trial court unless they are lacking in

also asserts that the evidence did not support a finding that his conduct would not support a finding that he engaged in conduct that constituted stalking. He support the trial court’s entry of a final order. He implies that the evidence did The evidence included testimony that the defendant was hired by the

515 (2001). could be used by stalkers to harm victim). Similarly, had he been hired to Fichtner v. Pittsley, 146 N.H. 512,

he engaged in it in his capacity as a licensed private detective. We review sufficiency of the evidence claims as a matter of law and

The defendant next contends that the evidence was insufficient to

information to client, in part, because of foreseeable risk that such information

that the defendant’s conduct was not for a “legitimate purpose” merely because abetting the commission of any criminal offense”); which he was hired was lawful. Thus, the trial court did not err when it ruled Accordingly, by his own election, he failed to demonstrate that the purpose for In this case, the defendant refused to testify as to why he was hired.

He also had to show that the purpose for which he was hired was itself lawful. that he was a licensed private detective who was hired to follow the plaintiff.

have duty to exercise reasonable care in disclosing third party’s personal Docusearch, 149 N.H. 148, 154-55 (2003) (ruling that private investigators conduct was lawful, irrespective of the stalking statute. see also Remsburg v. lawful and honest manner without committing, compounding, aiding or conditioned that the person bonded shall conduct his or her business in a See RSA 106-F:9 (Supp. 2005) (investigators must file surety bond that is “so third party could kill her, the purpose for which he was hired was not lawful. See id. at 7-8. For instance, had he been hired to follow the plaintiff so that a

To meet this burden, the defendant had to do more than merely testify

Henderson & Associates Invest., 691 N.W.2d 1, 7 (Mich. 2005).

accomplish a legitimate purpose, the defendant was required to show that the law.” To prove that the conduct in which he was engaged was necessary to p. 7 Miller. He is

recused himself from cases involving Miller. The instant case does not involve

questioned and to avoid even the appearance of impropriety. judge’s impartiality in this case on the ground that the judge had previously

judge’s prior decisions to recuse himself indicate that the judge was biased. case, the plaintiff’s petition was based upon conduct of which she was aware. person could fear something of which he or she was not aware because, in this

objective standard,

not a party to the petition. Even if he were a party, recusal would

a judge in a proceeding in which the judge’s impartiality might reasonably be We conclude that a reasonable person would not question the trial

it, the defendant was waiting for her near her home. 261, 268 (1998) (quotation omitted). doubt that justice would be done in the case.” Taylor-Boren v. Isaac, 143 N.H. himself from other cases involving Miller. The defendant contends that the disinterested observer, fully informed of the facts, would entertain significant the appearance of partiality is an objective one, that is, whether an objective, Finally, we need not address the defendant’s contention that no reasonable question the impartiality of the court.” Blaisdell, 135 N.H. at 593. “The test for

(1992). “Whether an appearance of impropriety exists is determined under an 38, Canon 3E(1); continuity of purpose. see also Blaisdell v. City of Rochester, 135 N.H. 589, 593

Canon 3E(1) of the Code of Judicial Conduct requires disqualification of

to the courthouse to file the petition; and, when she returned home from filing

He asserts that the judge was required to recuse himself because he recused recuse himself upon learning that Miller is the defendant’s business partner. would have a caused a reasonable person to fear for his or her personal safety. Finally, the defendant argues that the trial judge erred when he failed to

made aware supported finding of stalking). communication between defendant and third party of which victim was later Cf. State v. Gubitosi, 152 N.H. 673, 682-83 (2005) (holding that her to her son’s school and “stared [her] down”; he followed her when she came plaintiff’s home with the vehicle’s lights turned off; the next day, he followed There was also evidence that: the defendant was in a parked vehicle near the

this evidence supports the trial court’s finding that the defendant’s conduct

Thus, there was evidence that the defendant followed, approached or

lock all of her doors and windows because the defendant was watching her. arrested. The plaintiff testified that the police told her to take precautions and the defendant’s partner.

judge did not err when he did not recuse himself upon learning that Miller was

matters involving Miller. Under these circumstances, we hold that the trial review. not provided a record to establish why the trial judge recused himself from recusal was prompted by any interest in case). Moreover, the defendant has detective partners. process; and (2) the court’s order unlawfully abrogated the rights of his thus any arguments he attempted to make were not before the trial court. trial court’s order violated his constitutional rights to bear arms and to due

trial court.

matters not raised in the forum of trial.

arguments to the trial court and, thus, he has not preserved them for our BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

originally disqualified himself, and there was no showing that his original Affirmed.

preserve them for our review. Miller was not a party to this proceeding and has not preserved them for our review. Specifically, he argues that: (1) the

See id. Miller’s attempt to raise some of these arguments did not

defendant has the burden of demonstrating that he raised his arguments to the

(2004). It is a long-standing rule that parties may not have judicial review of

See N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619

II, XIV. The defendant, however, has failed to demonstrate that he raised these

We decline to address the defendant’s remaining arguments because he

N.W.2d 40 p. 8 8, 417 (Minn. Ct. App. 1996) (judge who had previously recused judge recused self in earlier action out of excess caution); Oslin v. State, 543 F.3d 223, 235-36 (3d Cir. 2001) (judge not required to recuse self even though not necessarily be mandated. See Martin v. Monumental Life Ins. Co., 240