2010-439, State of New Hampshire v. Corey Furgal

Michael A. Delaney

No. 2010-439

Hillsborough-southern judicial district

Superior Court (Groff DUGGAN, J. The defendant, Corey Furgal, appeals an order of the

Christopher M. Johnson

its face and denying the defendant’s request for bail. We affirm.

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: 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 bail.” RSA 597:2, III(b)(2). p. 2 “bail . . . with sufficient sureties or by deposit of moneys equal to the amount of latter section authorizes the court to consider monetary conditions including the provisions governing such release in RSA 597:2, III (Supp. 2009). The conditions, including monetary conditions, authorized by RSA 597:2, I(b) and Only if the court makes that determination can it consider the

II. the safety of the person or of any other person or the community.” RSA 597:2, reasonably assure the appearance of the person as required or will endanger under RSA 597:2, I(a), the court must determine that “such release will not 2009) (provisions governing release under RSA 597:2, I(a)). To deny release combination of conditions that the court may require.” RSA 597:2, II (Supp. crime during the period of his release and “such further condition or additional non-monetary conditions including that the defendant not commit a recognizance or upon execution of an unsecured appearance bond with Under RSA 597:2, I(a) the court must release the defendant on personal

(Supp. 2009). release of a defendant pending trial is governed by RSA 597:2, I(a) and (b) proceedings.” RSA 597:1 (2001). Except for certain categories of arrestees, the persons arrested for an offense shall be eligible to be released pending judicial In New Hampshire, the general rule regarding pretrial release is that “all

followed. found that the State had sustained its burden in this case. This appeal that carries a potential life sentence in order to deny bail under the statute and clear and convincing evidence that the defendant will be convicted of an offense him without bail. Finally, the trial court ruled that the State must prove by then consider the defendant’s risk of flight or dangerousness before holding would shift to the defendant to rebut the State’s case, and that the court could ruled that once the State sustained its burden under the statute, the burden inherently considered in the “proof is evident” analysis. The trial court also interests are overwhelming,” and that flight risk and dangerousness are “narrowly focuses on a particularly acute problem in which the Government to deny bail pending trial. The trial court disagreed, ruling that the statute constitutional, the State must demonstrate his guilt beyond a reasonable doubt strength of the State’s evidence of guilt and that, alternatively, if the statute is bars the court from considering any facts other than those related to the The defendant argued that the statute denied him due process because it

while awaiting trial in accordance with RSA 597:1-c. of second degree murder. The State requested that he be held without bail exists under which the Act would be valid.” United States v. Salerno p. 3 successfully, since the challenger must establish that no set of circumstances challenge to a legislative Act is, of course, the most difficult challenge to mount The defendant has mounted a facial challenge to RSA 597:1-c. “A facial

inescapable grounds.” State v. Gubitosi, 157 N.H. 720, 727 (2008). evidence. presume it to be constitutional and will not declare it invalid except upon “We review a trial court’s interpretation of a statute de that carries a potential life sentence, rather than by clear and convincing (2009) (quotation and ellipses omitted). “[I]n reviewing a legislative act, we beyond a reasonable doubt that the defendant will be convicted of an offense advanced by the entire statutory scheme.” State v. Jennings, 159 N.H. 1, 3 State meets its initial burden. Finally, he argues that the State must prove the legislature’s intent in enacting them, and in light of the policy sought to be erred in finding that the statute shifts the burden to the defendant after the statutory scheme and not in isolation. Our goal is to apply statutes in light of such as flight risk or dangerousness. He further contends that the trial court to include.” Id. “We also interpret a statute in the context of the overall process rights because it limits the court’s consideration of individual factors legislature might have said nor add language that the legislature did not see fit On appeal, the defendant argues that RSA 597:1-c violates his due legislative intent from the statute as written and will neither consider what the ordinary meaning to the words used.” Id. (citations omitted). “We interpret begin by examining the language of the statute and ascribe the plain and intent as expressed in the words of the statute considered as a whole.” Id. “We Lamy, 158 N.H. 511, 515 (2009). “We are the final arbiters of the legislative

withstand a facial challenge. the statute is to be construed and then whether that construction can 739, 745 (1987). To analyze his facial challenge, we first must determine how

(Emphasis added.) presumption great. In such cases, a person “shall not be allowed bail.” 597:1-c leaves the court with no discretion where the proof is evident or the may be denied . . . when the proof is evident or the presumption great”), RSA the court discretion in denying bail, see, e.g., MICH. CONST. art. I, § 15 (“bail bail pending trial. RSA 597:1-c. Unlike bail provisions in some states that give great” that the defendant will be convicted, the defendant must be held without prison and the State can show that “the proof is evident or the presumption provides that if a person has been charged with a crime punishable by life in general rule that all persons are eligible to be released pending trial. It RSA 597:1-c, which is the subject of this appeal, is an exception to the or detained in prison unless by the law of the land.’” Foote, The Coming p. 4 of the famous 39 chapter of Magna Carta that ‘no freeman shall be arrested, th Bail emerged in medieval England as an effort to “implement the promise

American legal system. process. We begin our analysis with a brief review of bail in the Anglo- Accordingly, we turn to whether, as construed, the statute violates due permit the trial court to consider factors such as flight risk or dangerousness. We thus conclude that the plain language of RSA 597:1-c does not

defendant “shall not be allowed bail.” RSA 597:1-c. language of the statute provides that once the State meets its burden, the establishes that the proof is evident or the presumption great. The plain statute does not shift the burden of proof to the defendant once the State 4 Additionally, contrary to the trial court’s order, the plain language of the

United States: 1964 1 (1964). The Petition of Right of 1628 established that no would be bailable and which crimes would not. D. Freed & P. Wald, Bail in the procedures. The Statute of Westminster of 1275 delineated which crimes established the framework for what would later become American bail omitted). Subsequently, several significant developments in English law Constitutional Crisis In Bail: I not see fit to include.” Lamy, 113 U. Pa. L. Rev. 959, 965-66 (1965) (ellipses risk or dangerousness, and we will not “add language that the legislature did the language of the statute permits the court to consider factors such as flight and then show that the proof is evident or the presumption great. Nothing in that the person is charged with an offense punishable by up to life in prison The plain language of the statute thus requires the State to show first

the court will not rewrite the language of the provisions). require that a risk of flight or recidivism be considered before bail is denied and language of bail statute using identical “proof is evident” phrase does not with a crime punishable by life in prison. See Simpson, 85 P.3d at 494 (plain focuses solely upon the strength of the evidence against a defendant charged

(quotations and brackets omitted). to prove a negative.” Simpson v. Owens, 85 P.3d 478, 487 (Ariz. Ct. App. 2004) person. Otherwise, placing the burden on the accused is, in effect, forcing him because it already will have presented evidence in the process of charging the a position superior to that of the accused to produce evidence during a hearing Pima, 548 P.2d 1198, 1199 (Ariz. Ct. App. 1976). Furthermore, “the State is in burden under the statute. See Martinez v. Superior Court, In & For County of are ordinarily entitled to bail prior to trial, it is the State that must bear the presumption great, shall not be allowed bail.” Since in this state defendants punishable by up to life in prison, where the proof is evident or the RSA 597:1-c provides that “[a]ny person arrested for an offense p. 5 [W]here the imprisonment is only for safe custody before

. . . .

impunity?

murderer, if the murderer himself be suffered to escape with

American colonies as part of the Massachusetts Body of Liberties of 1641, The influence of the English bail jurisprudence first appeared in the

W. Blackstone, Commentaries on the Laws of England

to the public, to seize the effects of them who have bailed a forfeit to save his own life? and what satisfaction or indemnity is it of the person. For what is there that a man may not be induced to nature, no bail can be a security equivalent to the actual custody the inferior crimes; but in felonies, and other offences of a capital will answer the same intention, it ought to be taken; as in most of commitment, therefore, being only for safe custody, wherever bail

but the four walls of the prison. him, if guilty. Such persons, therefore, . . . have no other sureties 5

less than the highest security that can be given, viz enormous nature: for then the public is entitled to demand nothing

4th ed., The Banks Law Publishing Co. 1914) (1765-69). for his appearance, to answer the charge against him. This 1001-02 (George Chase either be committed to prison, or give bail: that is, put in securities

the accused; in order to insure that justice shall be done upon

is ousted or taken away, wherever the offence is of a very conviction, and not for punishment afterwards, in such cases bail

must: carried a severe sentence. Blackstone noted that once arrested, a prisoner granting of bail, an exception was made for those accused of crimes that While the development of bail procedures in England tended to favor the

through the excessive bail clause. Id. at 968. the English Bill of Rights of 1689 provided protection against judicial abuse admit defendants to bail even when required by statute. Id. at 967. Finally, obtain release on bailable offenses when the King’s bench judges refused to 966. The Habeas Corpus Act of 1679 provided a mechanism for defendants to indefinitely without ever being informed of the charges against them. Id. at Petition was a response to several high profile cases involving defendants held defendant had the right to release on bail. Foote, supra at 966-68. The and thus ensured that a determination would be made as to whether a man could be imprisoned without being informed of the charges against him p. 6 W. Witmore, A Bibliograhical Sketch of the Laws of the Massachusetts Colony

with rights implicit in the concept of ordered liberty.” Salerno government from engaging in conduct that shocks the conscience, or interferes

under the State Constitution, citing federal opinions for guidance only. See States Constitutions. We first address the defendant’s due process arguments argument that RSA 597:1-c violates both the New Hampshire and United It is against this historical backdrop that we turn to the defendant’s

cases where some expresse act of Court doth allow it. in Crimes Capital, and Contempts in open Court, and in such government action. So-called ‘substantive due process’ prevents the “[T]he Due Process Clause protects individuals against two types of

person of life, liberty, or property survives substantive due process scrutiny, it (quotations and citations omitted). “When government action depriving a

appearance, and good behaviour in the meane time, unlesse it be If he can put in sufficient securitie, bayle or mainprise, for his

State v. Ball, 124 N.H. 226, 231-33 (1983).

267, 283-84 (2009). Interpretations of the State Constitutional Right to Bail, 78 Fordham L. Rev. Thorpe, 5 American Charters Constitutions and Organic Laws containing similar language. See Note, What the Right Hand Gives: Prohibitive capital offences, where the proof is evident, or the presumption great.” F. (1867). Approximately forty states now have constitutional bail provisions provided: “That all prisoners shall be bailable by sufficient sureties, unless for offences where the proof is evident or the presumption great.” GS 240, § 18 Authority whatsoever, before the law hath sentenced him thereto, appeared in the Frame of Government of Pennsylvania in 1682, which shall, before conviction, be bailable by sufficient sureties, except for capital The “Crimes Capital” exception eventually evolved into a statute that first Statutes codified this rule, providing that “[a]ll prisoners arrested for crime alleged with sufficient certainty.” In 1867, the New Hampshire General court to suppose he may be innocent, and in every case where the charge is not not capital, and in capital cases where there is any circumstance to induce the will, in general, exercise [the power to bail] in favor of a prisoner in every case N.H. 160, 163-64 (1849), where we quoted approvingly the rule that “judges Comparable language first appeared in New Hampshire in State v. McNab, 20

No mans person shall be restrained or imprisoned by any

From 1630 to 1686 37 (1890).

colonies. Liberty 18 provided that: which would serve as the model for the development of the bail system in the and to ensure that he would submit to punishment if convicted. See p. 7 circumstances of each defendant’s risk of flight before denying bail. To the Historically, the purpose of bail was to ensure the defendant’s presence at trial must consider the defendant’s individual flight risk before denying bail. The defendant also contends that, to satisfy due process, a trial court

discovered any precedent that requires a court to consider the specific A.2d 859 (N.J. 1959). However, the defendant does not cite and we have not overwhelming, there should be no bail” (quotation omitted)), cert. denied, 149 A.2d 828, 834 (N.J. Super. Ct. App. Div.) (“where the probabilities of flight are bail necessary to ensure his presence at trial. See Application of Corbo, 149 There is a clear relation between a defendant’s risk of flight and the amount of indictment, and to submit to a trial, and the judgment of the Court thereon.”). taken to secure the due attendance of the party accused, to answer the Milburn, 34 U.S. 704, 709 (1835) (“A recognisance of bail, in a criminal case, is

defendant’s dangerousness be taken into account. The defendant asserts that Salerno a statute that permits detention without bail must require that the individual survive constitutional scrutiny. The court did not hold that to be constitutional and decided only the narrow issue of whether that particular scheme could inquiries, the Court in Salerno was confronted with one specific bail scheme constitutional muster. Rather than setting a minimum threshold for all bail individualized inquiry into a defendant’s dangerousness in order to pass read Salerno to hold that all statutory bail schemes must include an The defendant conflates sufficient conditions with necessary ones. We do not consider whether the individual defendant poses a danger to the community. held without bail is constitutional only if it expressly requires the court to order to pass constitutional muster, a statute that permits a defendant to be The defendant relies upon Salerno stands for the proposition that in defendant’s risk of flight or dangerousness when deciding whether to deny bail. defendant’s facial challenge. Id process rights because it does not permit the trial court to consider a. at 748, 751-52. the defendant’s liberty interest, and accordingly upheld the statute against the The defendant first argues that RSA 597:1-c violates substantive due combined with the procedural protections provided in the statute, outweighed Id. at 742. The Court held that the Government’s interest in community safety, were released, and, based upon such a finding, allowed the court to deny bail. evidence that the defendant posed a substantial risk to the community if he at 746. The statute required the Government to show by clear and convincing Process Clause and the Excessive Bail Clause of the Federal Constitution. Id. challenge to the Bail Reform Act of 1984, arguing that it violated both the Due

been referred to as ‘procedural’ due process.” Id. (citation omitted). must still be implemented in a fair manner. This requirement has traditionally statute does not permit a flight or dangerousness inquiry, the Salerno p. 8 burden must be “beyond a reasonable doubt,” and, alternatively, that if the evidence. The defendant argues that the statute requires that the State’s show that the proof is evident or the presumption great by clear and convincing standard of proof under RSA 597:1-c. The trial court ruled that the State must The defendant next contends that the trial court erred in determining the 8 buttressed by the fact that, as noted in Salerno Our conclusion that RSA 597:1-c passes constitutional muster is

demands that the State be held to the reasonable doubt standard. The State

no set of conditions that could assure the defendant’s presence at trial. See denied bail because the flight risk associated with such punishment allowed for court speedy trial policy creates guidelines for the trial courts. statutorily enforceable rights, see 18 U.S.C. §§ 3161-3162 (2006), the superior (citation omitted)). We note that while the federal Speedy Trial Act provides Barker v. Wingo, the case should be dismissed for lack of a speedy trial.” forthwith for a show cause hearing as to whether, under the principles of disposition after 4 months from date of entry or indictment shall be scheduled Trial Policy) (“Where the defendant is incarcerated, every case pending without court’s speedy trial policy. See Super. Ct. R. Appendix (Superior Court Speedy Act.” Id. at 747. In this state, pretrial detention is limited by the superior detention was limited by “the stringent time limitations of the Speedy Trial strictly limited in duration. In Salerno, the Court made note that pretrial

Historically, persons charged with crimes carrying a severe sentence were flight and dangerousness are inherent in the “proof is evident” analysis. outweigh an individual’s liberty interest.”). required by the constitution, we agree with the trial court that both risk of regulatory interest in community safety can, in appropriate circumstances, While a specific inquiry into the individual factors in each case is not See Salerno, 481 U.S. at 748 (“We have repeatedly held that the Government’s community becomes significantly compelling, thus justifying the denial of bail. when “the proof is evident or the presumption great,” the risk to the most serious offenses. The legislature has made a reasoned determination that Blackstone, supra at 1001-02. The denial of bail in this state is limited to the

Thorpe, supra at 3061. cannot be said to be “implicit in the concept of ordered liberty.” See, e.g., the defendant’s guilt, the individualized inquiry for which the defendant argues courts in a narrow category of cases to focus exclusively upon the evidence of See, e.g., Whitmore, supra at 37. Given this long history of bail permitting crimes that focused the inquiry solely on the evidence of the defendant’s guilt. exception to the rule favoring bail was made for persons accused of serious contrary, as explained above, from the beginning of the bail system, an probable cause in any instance.” Id p. 9 the accused’s rights, since a suspect may not be held without a showing of statute] were to be read in such a manner, the guarantee would add nothing to

As the Arizona Court of Appeals in Simpson 9

generally persuaded by the Simpson court’s overall burden of proof analysis, to one of the offenses enumerated in [the statute].” Id. at 491. While we are well-guarded, dispassionate judgment of the court that the accused committed plain and clear to the understanding, and satisfactory and apparent to the burden is met if all of the evidence, fully considered by the court, makes it state cases and the history of the phrase, the court concluded: “The State’s We reject the cases requiring mere probable cause because “if [the since there is no comparison for recourse.” Id. at 487. After examining other phrase alone suggests that it is unique and that it establishes its own standard

resources . . . .” Simpson, 85 P.3d at 489 (quotation omitted). answered at the trial itself, but such duplication obviously wastes judicial [legislature] intended the bail hearing to determine the precise question to be reasonable doubt” standard). “Not only is it highly improbable that the State v. Bartlett, 43 N.H. 224 (1861) (discussing use of the “beyond a reasonable doubt. See appropriate language had it intended for such a standard to be imposed. See with the beyond a reasonable doubt standard and could have used the likelihood of conviction” to a standard that is more stringent than beyond a courts in other states have reached a variety of conclusions ranging from “a fair McNab, 20 N.H. at 163 (quotation omitted). The legislature was well familiar In deciding the burden of proof required by the “proof is evident” standard, “circumstances to induce the court to suppose [the accused] may be innocent.” We begin by determining the standard of proof imposed by the statute. allowed for the denial of bail in capital cases only if there were no Indeed, the bail statute replaced the common law rule from McNab, which [statute] had in mind in providing for bail.” Id. at 489 (quotation omitted). “That degree of proof is reserved for trial and is not what the writers of our burden of proof should be put on the State to convict the accused.” Id. at 490. reject the cases that require proof beyond a reasonable doubt. “The greatest

great by clear and convincing evidence. and require that the State show that the proof is evident or the presumption accused committed the crime. See id. We adopt the second standard of proof those requiring a variation of evidence beyond a reasonable doubt that the of clear and convincing evidence that the accused committed the crime; and (3) likelihood that the accused committed the crime; (2) those requiring a variation into three categories: (1) those requiring a variation of probable cause or fair

that roughly equates with “clear proof.” argues that the burden imposed by the statute has an independent meaning protections cited in Salerno p. 10 have reasoned that all or most of the federal Bail Reform Act’s procedural required by the statute. The defendant states that courts in other jurisdictions Finally, we briefly address the issue of the procedural protections

where he learns the charge against him and his liberty is subject to restriction, (2008) (“[A] criminal defendant’s initial appearance before a judicial officer, such a hearing. See Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578, 2592 make a flight or dangerousness inquiry, the decision in Salerno c other than to say that at a minimum the defendant has a right to counsel at Alternatively, the defendant argues that if the court is not permitted to the specific procedural protections required at a bail hearing under RSA 597:1bail hearing. Because this issue was not sufficiently briefed, we do not decide not directly address other procedural protections that would be required at a standard of proof required and which party must bear the burden, and does process.”). The defendant’s brief focuses his procedural argument upon the provided in the Bail Reform Act] as minimum requirements of procedural due Salerno analysis have adopted all or most of [the procedural protections process. See Simpson, 85 P.3d at 491 (“Courts that have incorporated the

required by the statute. constitutionally defective, we see no reason to impose a greater burden than is process. Because we reject the defendant’s contention that RSA 597:1-c is a defendant’s dangerousness or flight risk in order to comport with due hold that all statutory bail schemes must include an individualized inquiry into them is strong, clear, and convincing”); see the reasonable doubt standard. As discussed above, we do not read Salerno to circumstances are such that the inference of guilt naturally to be drawn from that the only way to remedy the defective statute would be to hold the State to conclusion that RSA 597:1-c violates due process. The defendant contends

conviction, the evidence should at least be clear and convincing.”). purpose guilt need not be shown ‘beyond a reasonable doubt,’ as it must for is great’”); Application of Haynes, 619 P.2d 632, 636 (Or. 1980) (“While for this convincing evidence if ‘the proof of guilt is evident, or the presumption thereof 404, 408 (Okla. Crim. App. 1998) (“the court must determine by clear and

been committed as charged” while presumption great means “the strong evidence, which leads to a dispassionate conclusion that the offense has presumption great. See 8 C.J.S. Bail § 28 (2005) (Proof is evident “means clear, determining whether or not the State has shown that the proof is evident or the that the clear and convincing evidence standard is the standard for understand and apply.” Id. at 497 (Foreman, J., concurring). We conclude use a definition of ‘proof is evident or the presumption great’ that is easy to “The best way to avoid the arbitrary and unequal application of the law is to create greater confusion among the trial courts in making bail determinations. adopt an independent standard like that used in Arizona would serve only to p. 11 11

claims, we reach the same result under the Federal Constitution. See than does the State Constitution with regard to the defendant’s due process Because the Federal Constitution does not provide any greater protection

DALIANIS, HICKS and CONBOY, JJ., concurred.

Affirmed

representation by counsel).

Shelby R., 148 N.H. 237, 239 (2002); cf. Salerno, 481 U.S. at 752.

may be the sanction, requiring due process protections including 1088 (1982) (finding that a significant liberty interest exists when commitment Sixth Amendment right to counsel.”); cf. Stapleford v. Perrin, 122 N.H. 1083, marks the start of adversary judicial proceedings that trigger attachment of the