2006-036, STATE OF NH v. ADAM R. LAVOIE

Kelly A. Ayotte

No. 2006-036 Hillsborough-northern judicial district

aggravated felonious sexual assault. See parties. On October 14, 2004, the defendant was indicted for attempted

The following facts are supported in the record or are not disputed by the

affirm. days to determine whether involuntary treatment would be appropriate. We (2005) (amended 2006) and ordering that he remain in custody for up to ninety Christopher M. Johnson

A:2 (Supp. 2006). On the same day, the defendant was charged by information

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

“dangerous to himself . . . or others” within the meaning of RSA 135:17-a, V Superior Court (Lewis, J), following an evidentiary hearing, finding him HICKS, J. The defendant, Adam R. Lavoie, appeals an order of the

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: , attorney general (Susan G. Morrell, senior assistant

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as pending, we decided In the Matter of B.T.

p. 2 explicitly do so in its order. The defendant notes that while this appeal was

The statute itself does not define “dangerous,” nor did the trial court

RSA 135:17-a, V.

treatment pursuant to RSA 135-C:34 or RSA 171-B:2.

90 days, to be evaluated for the appropriateness of involuntary person to remain in custody for a reasonable period, not to exceed dangerous to himself or herself or others, the court shall order the

regained competency, and the court determines that he or she is

If the court has determined that the defendant has not

term “dangerous” in RSA 135:17-a, V. The statute provides, in relevant part:

The defendant first argues that the trial court erred in interpreting the

merits of the defendant’s claims. in the future.” Given the parties’ agreement on this point, we turn to the

decide the issues raised in this appeal because they “will be raised repeatedly

contends that the defendant’s claims are moot, but agrees that we should

notwithstanding that his ninety-day commitment has ended. The State The defendant also argues that we should reach the merits of his appeal apply the proper definition of dangerousness and the proper standard of proof.

On appeal, the defendant argues that the trial court erred in failing to

definition, its finding of dangerousness must be vacated.

argues that “[b]ecause in B.T.

171-B:2.” evaluated for the appropriateness of involuntary treatment pursuant to RSA same.” He further argues that because the trial court did not apply the proper definition retroactively to the parties in B.T. itself, this Court must here do the ‘dangerousness’ by reference to other relevant statutes, and applied that

C:34 (2005) by reference to a similar standard in RSA 135-C:27 (2005). He which we interpreted the phrase “danger to himself or to others” in RSA 135-

period not exceeding ninety days from the date of the court’s order, “to be

remain in custody, “by continuation of [his] present bail conditions,” for a that the State had met its burden of proof and ordered that the defendant “dangerous to himself . . . or others.” Following the hearing, the court ruled

within one year. pending criminal charges and that he could not be restored to competency a hearing, the court found that the defendant was incompetent to face the

hearing to determine, pursuant to RSA 135:17-a, V, whether the defendant was

The defendant’s counsel raised the issue of his competency to stand trial. After with committing the crime of indecent exposure. See RSA 645:1 (Supp. 2006). further stated:

p. 3 “potentially serious likelihood of dangerousness” in forming his opinion. He

turn, testified that he “look[ed] to the civil commitment standard” of vacate the court’s finding. examiner, and the only witness who testified at the hearing.” Dr. Adams, in considered the testimony of James J. Adams, M.D., the chief forensic

See court. Thus, we conclude that we may decide this issue as a matter of law.

B.T. B.T. . . . or others” in RSA 135:17-a, V by reference to RSA 135-C:27 as we did in likelihood of serious debilitation if admission is not ordered. capacity to care for one’s own welfare such that there is a factual determination of dangerousness, we need not, as the defendant urges, Although the trial court did not apply these precise criteria in making the In assessing dangerousness, the trial court noted that it “carefully

fact finder necessarily would have reached the same result as did the trial

matter of law.” State v. Berry necessarily would reach a certain conclusion, we may decide that issue as a The parties agree that we should define the phrase “dangerous to himself

infliction of “serious bodily injury” to oneself or another or a lack of

dangerousness under RSA 135:17-a. id.

record shows that under the legal standard articulated herein, a reasonable

addressed a factual issue, but the record reveals that a reasonable fact finder

essentially the same standard that the defendant now urges this Court to a threat of, a likelihood of, an attempt to inflict, or an actual

holding above, these same criteria also apply to determinations of admission under RSA 135-C:34. Id. at 261. By the parties’ agreement and our criteria for dangerousness under RSA 135-C:27 as stated above apply” to , 153 N.H. at 260 (quoting RSA 135-C:27). We then concluded that “the

did apply the proper criteria. It therefore concludes that “[s]ince this is danger to others, in the context of an IEA, RSA 135-C:27 requires In establishing the criteria for proving either danger to oneself or 135-C:34 in [B.T. admission (IEA) statute, to RSA 135:17-a, V, as this Court applied it to RSA B.T.: Nault v. N & L Dev. Co., 146 N.H. 35, 38 (2001), and we so hold. We stated in . Their accord rests upon sound principles of statutory construction, see

refer” to the definition of dangerousness in RSA 135-C:27, II, it nevertheless

].” It argues that, although the trial court did not “specifically

dangerousness found in RSA 135-C:27, II, the involuntary emergency The State agrees that “it is sound to apply the definition of p. 4 B.T. actual infliction of ‘serious bodily injury’ to . . . another” by the defendant. necessarily would find “a threat of, a likelihood of, an attempt to inflict, or an

We conclude, upon the record before us, that a reasonable finder of fact

whole.” State v. Leonard

intent of the legislature as expressed in the words of a statute considered as a the mother seemed frightened and the defendant seemed to be aware of that.” In matters of statutory interpretation, we are “the final arbiter of the defendant trying to get close to his mother while he was unclothed and “that fought with the father periodically.” Dr. Adams also noted a report of the

that time would be clear and convincing evidence.” attempting to strangle her; had assaulted his grandmother; and physically 135:17-a is civil in nature. “In a civil action the burden of proof is generally on erred in applying the preponderance standard. A proceeding under RSA

defendant’s competency, see standard was the same burden the State was required to meet regarding the requisite burden of proof. The trial court reasoned that the preponderance

proceedings are instituted pursuant to RSA 171-B, the standard of proof at and physically threatening to the parents: spitting in the mother’s face; treatment. The court also noted that “[s]ignificantly, if [involuntary admission] defendant’s self-control potential,” included instances of having “been verbally As a matter of statutory interpretation, we cannot say that the trial court not longer than ninety days to evaluate the appropriateness of involuntary Prior reported incidents that Dr. Adams found “indicative of the

determination under RSA 135:17-a, V. The statute itself does not specify the 4

more than keep the defendant in some form of custody for a reasonable period 182 (2006). in the probate court that that’s ample evidence. review questions of constitutional law de behavior. I think that’s enough, and certainly that’s my experience novo. See State v. Hall, 154 N.H. 180, mental disorder and intermittent propensity to out-of-control, 151 N.H. 201, 203 (2004) (quotation omitted). We

preponderance of the evidence standard of proof to the dangerousness The defendant next contends that the trial court erred in applying the

appropriate given that the result of a finding of dangerousness would do no

history of impulsive behavior, records suggesting, you know,

court’s finding of dangerousness. , 153 N.H. at 260 (quoting RSA 135-C:27). Accordingly, we uphold the trial

considered a very serious attempt at a violent crime. He has that society. . . . There’s ample evidence that he performed what’s against a minor which is considered a heinous crime in our

standard. He’s charged with attempted felonious sexual assault I see no question at all about whether the defendant fits that p. 5 Addington

decision.

and to indicate the relative importance attached to the ultimate

standard serves to allocate the risk of error between the litigants factual conclusions for a particular type of adjudication. The confidence our society thinks he should have in the correctness of

factfinding, is to instruct the factfinder concerning the degree of

embodied in the Due Process Clause and in the realm of

The function of a standard of proof, as that concept is , the United States Supreme Court held that due process used by the trial court, we note:

231-33 (1983). Our due process analysis has three factors: and cite federal opinions for guidance only. See p. 5 Addington v Texas State v. Ball, 124 N.H. 226, We first address the defendant’s claims under our State Constitution,

Preisendorfer, 143 N.H. 50, 54 (1998).

, 441 U.S. at 423 (quotation and citation omitted); see also Petition of Before addressing the defendant’s challenge to the standard of proof

its case by clear and convincing evidence. In support, the defendant cites Constitutions require the proponent in a civil commitment proceeding to prove dangerousness must be vacated because the New Hampshire and Federal clear and convincing evidence. Sanborn

p. 5 Addington involuntary civil commitment for an indefinite period to a state mental hospital. considered dispositive of “proper standard of proof for a 14-day certification”). longer periods of commitment and commitments to state hospitals” not 1989) (Addington and state case “addressing the required standards of proof for issue before us. Cf. In re Azzarella, 254 Cal. Rptr. 922, 925, 926 (Ct. App. periods than the one at issue here. We do not find them dispositive of the evaluations and they dealt with detentions for potentially substantially longer and Sanborn involved actual civil commitments rather than preliminary

The defendant nevertheless argues that the trial court’s finding of burden of proof in civil commitment proceedings pursuant to RSA 135-C:34 is

, 441 U.S. at 419-20, 427. In Sanborn, we announced that the

requires proof by more than a preponderance of the evidence to justify In p. 5 Addington

(1988).

, 441 U.S. 418 (1979), and In re Sanborn, 130 N.H. 430

legislature intended the general civil burden of proof to apply. omitted). Absent legislative direction to the contrary, we conclude that the v. R.A. Earnhardt Textile Mach. Div., 139 N.H. 356, 357 (1995) (quotation the plaintiff to establish its case by a preponderance of the evidence.” Hancock unrestorable by clear and convincing evidence. See

p. 6 to five years in Sanborn

imposed upon . . . the petitioner in Addington months or, prior to the expiration of twelve months, has been found to be competent to stand trial and has either not regained competency within twelve 135:17-a, V, by contrast, has already been found by a preponderance not

commitment proceedings. The Addington days to allow for further evaluation in connection with involuntary treatment.” stigmatization, cf defendant in a form of custody for a reasonable period not to exceed ninety (90). Smith v. State, 18 S.W.3d 770, 771-72 (Tex. Ct. App. 2000) Because the competency determination itself subjects the defendant to social

In re Richard A. certification for fourteen-day involuntary treatment was “far less than that permanency of the threatened loss.” Santosky v. Kramer U.S. at 425-26. A person subject to a dangerousness determination under RSA procedural requirement would entail. [that] can have a very significant impact on the individual.” Addington, 441 dangerousness to self or others can engender adverse social consequences . . . that involuntary commitment to a mental hospital after a finding of probable commitment proceedings, these same interests are “substantial.” Id Court stated: “[I]t is indisputable RSA 135:17-a, V dangerousness determination is less than that at issue in civil We similarly conclude that the potential for stigmatization involved in a consequence [of a finding of dangerousness] is to do no more than to keep the

254 Cal. Rptr. at 926 (observing that deprivation of liberty involved in factfinder turns on both the nature of the private interest threatened and the 135:17-a, V carries markedly less potential for a loss of liberty. Cf. Azzarella, Addington fiscal and administrative burdens that the additional or substitute, 441 U.S. at 419-20, a determination of dangerousness under RSA

the private interests at stake. We have noted that in the case of civil a loss of liberty and carries a potentially significant social stigma. These are The defendant argues that a finding of dangerousness results directly in reasons for confinement are . . . relevant”). As the trial court observed, “the the significance of a deprivation of liberty, “the length of confinement and the (1982); see also In re Azzarella, 254 Cal. Rptr. at 926 (noting that in assessing

sufficiently grave to warrant more than average certainty on the part of the “Whether the loss threatened by a particular type of proceeding is Government’s interest, including the function involved and the additional or substitute procedural safeguards; and finally, the through the procedures used, and the probable value, if any, of.

, 146 N.H. 295, 298 (2001) (quotation omitted).

second, the risk of an erroneous deprivation of such interest First, the private interest that will be affected by the official action; determination of dangerousness was erroneous, and move to release the p. 7 Thus, within ninety days, the State will either: (1) discover that the

procedural safeguards.” Richard A. procedures, “and the probable value, if any, of additional or substitute risk of an erroneous deprivation of the protected interests under current

the litigants.” Preisendorfer

held only for a reasonable period not to exceed ninety days. RSA 135:17-a.

Finally, we turn to the second factor in our due process analysis: the

a societal judgment about how the risk of error should be distributed between reflects not only the weight of the private and public interests affected, but also “[d]ue process dictates the adoption of a minimum standard of proof that corrected relatively quickly. The statute provides that a defendant shall be undoubtedly serious and highly significant to the defendant himself, would be An erroneous determination that a defendant is dangerous, although

135:17-a, V. the State has the same interests in dangerousness determinations under RSA

risks of erroneous deprivations of the protected private interests. However, Addington

Santosky, 455 U.S. at 761. risk of an erroneous factfinding between” the defendant and the State. relevant question is whether [the] preponderance standard fairly allocates the

evaluation for the appropriateness of involuntary treatment – we conclude that interest. Richard A.

clear and convincing burden of proof urged by the defendant would reduce the they were in Addington, 146 N.H. at 298. We assume that the conclude that the private interests at issue are less significantly at risk than dangerous tendencies of some who are mentally ill.

The state has a legitimate interest under its parens

specifically by keeping the defendant in custody for up to ninety days for For ease of analysis, we now turn to the third factor, the government’s 135:17-a, V constitutes a preliminary step in a potential civil commitment –

, 441 U.S. at 426. As a dangerousness determination under RSA

commitment causes little additional harm in this respect”). Accordingly, we authority under its police power to protect the community from the emotional disorders to care for themselves; the state also has powers in providing care to its citizens who are unable because of under RSA 135:17-a, V is a matter of degree. Cf patriae

following state interests in civil commitment:

defense necessarily is stigmatized by the verdict itself, and thus the (noting that “[a] criminal defendant who successfully raises the insanity

any additional stigmatization caused by a determination of dangerousness (observing that a finding of incompetence to stand trial stigmatized defendant), p. 8 Federal Constitution under these circumstances. See The State Constitution provides at least as much protection as the

standard of proof.” Santosky

The Addington

the obvious cases of homicide or suicide, irreversible. concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

conclusion. 8 borne in roughly equal fashion by use of the preponderance-of-the-evidence court correctly applied the proper burden of proof and came to a sustainable conclude that it does not violate due process “that the risk of error should be as to require that the risk of error be allocated to one side or the other[,]” we

RSA 135:17-a, V. The consequences of such a failure could be tragic and, in important to society.” (quotation omitted)).

possible harm to the state.” Addington.

Constitution as we do under the State Constitution. In summary, the trial 298; Addington, 441 U.S. at 425. We reach the same result under the Federal Because “it cannot be said that either set of interests is so clearly paramount Richard A., 146 N.H. at

considered in Addington the general public a person who is “dangerous to himself or herself or others,” 135:17-a, V are readily distinguishable from the civil commitment proceedings have drastic consequences. The effect of such a failure would be to release into fashion, it applies only in situations where the parties’ interests are equally On the other hand, an erroneous failure to find dangerousness could evidence requires that the litigants share the risk of error in a roughly equal also when the possible injury to the individual is significantly greater than any Preisendorfer, 143 N.H. at 55 (“Because proof by a preponderance of the individual should not be asked to share equally with society the risk of error, 455 U.S. at 791 (Rehnquist, J., dissenting); see substantial than a mere preponderance of the evidence,” reasoned: “The

determination is at least as great as the possible harm to a defendant.

stated above, we conclude that dangerousness determinations under RSA

required to prove dangerousness by clear and convincing evidence, see mental hospital for an indefinite period must be “justif[ied] . . . by proof more

correct the error. Sanborn, 130 N.H. at 446; RSA 171-B:2 (2002), and its inability to do so will

pursuant to either RSA 135-C:34 or RSA 171-B:2, at which time it will be defendant from custody; or (2) seek to involuntarily admit the defendant