2010-610 Nashua Housing Authority v. Wendy Wilson

Gormley & Gormley, P.C.

No. 2010-610

Nashua District Court

of the Nashua District Court (Bamberger DUGGAN, J. The defendant, Wendy Wilson (tenant), appeals a decision

New Hampshire Legal Assistance

with the plaintiff, Nashua Housing Authority (NHA or landlord). We reverse. , J.) ruling that she breached her lease

and orally), for the defendant.

and orally), for the plaintiff.

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 individual.

p. 2 A. Yes, sir. Several minutes later with the cooperating

Q. Did you see the detective leave the building?

individual.

observed the detective enter the building with the cooperating

area in one of the adjacent parking areas on surveillance and A. On the 5th and the 7th, I was positioned in the immediate

undercover detective’s] conduct?

Q. And what did you see or notice with respect to [the

. . . .

morphine from the defendant.

A. I oversaw, or supervised, the controlled purchase of

Q. And how were you personally involved?

A. Yes, I was.

purported purchasing of drugs at 57 Tyler Street?

2

Q. Sergeant Sullivan, were you personally involved with the

At trial, Sergeant Sullivan provided the following testimony:

three counts of unlawful sale of morphine.” See “arrest[] for three counts of sale of a narcotic drug” and being “charged with possessory action against the tenant for breaching her lease as a result of her the landlord sent her an eviction notice. The landlord then brought a On May 11, 2010, after reading in a newspaper about the tenant’s arrest, narcotic drug, to wit: morphine.” on three occasions the tenant “unlawfully did dispense and sell a certain Frank Sullivan of the Nashua Police Department. The complaints stated that evidence the three criminal drug complaints through the testimony of Sergeant At the trial of the eviction proceeding, the landlord introduced into

The tenant had not yet been tried on any of these counts.

(same). tenant’s drug-related criminal activity); 24 C.F.R. § 966.4(l)(5)(i)(B) (2010) agreements must include a provision for mandatory lease termination for a §1437d(l)(6) (2006) (setting forth requirement that public housing lease cause for termination of tenancy, and for eviction from the unit.” See 42 U.S.C. lacking in evidential support or tainted by error of law.” Fisher v. Minichiello p. 3 law and uphold the findings and rulings of the trial court unless they are “On appeal, we review sufficiency of the evidence claims as a matter of

burden of proof. the evidence and circumstances before the trial court are sufficient to meet its lease by engaging in drug-related criminal activity. The landlord argues that Sullivan’s testimony are not sufficient evidence to prove that she breached her The tenant contends that the criminal complaints and Sergeant

eviction. This appeal followed. to [New Hampshire] law [and] the lease between the parties” and ordered to suggest that [the tenant had] engaged in the sale of narcotic drugs contrary of a controlled drug. The trial court found that there was “compelling evidence testified that the tenant was subsequently arrested and charged with the sale Sergeant Sullivan did not testify as to the content of the recordings. He

A. Of the defendant.

3

Q. Recordings of whom?

indictments, relying on Moody v. Cunningham argues that the complaints have insufficient probative value and likens them to We first address the probative value of the complaints. The tenant

Id. at 553-54. Similarly, complaints only require a showing of probable cause, violation must be proven by a higher preponderance of the evidence standard. to believe that a defendant has committed a particular crime,” but a parole indictment represents the conclusion of a grand jury that probable cause exists a defendant violated his parole. Id. at 553. We held it is not because “[a]n Moody recordings during this investigation., we addressed whether an indictment is sufficient evidence to prove that one-party authorization for recordings, and I have listened to the, 127 N.H. 550, 554 (1986). In A. Yes, sir. I debriefed the detective, as well as we did obtain

v. Lavoie, 155 N.H. 477, 481 (2007) (quotation omitted). on the plaintiff to establish its case by a preponderance of the evidence.” State II(c) (2007) (amended 2010). “In a civil action the burden of proof is generally “[f]ailure of the tenant to comply with a material term of the lease.” RSA 540:2 authority may evict a tenant for one of six statutory reasons, including the plaintiff. Comer v. Tracey, 156 N.H. 241, 246 (2007). A public housing 155 N.H. 188, 190 (2007). We view the evidence in the light most favorable to ,

the supervisor of this unit after that occurred? Q. And then did you take – did you undertake any activity as p. 4 4

such activity. See must prove by the preponderance of the evidence that the tenant engaged in In order to evict a tenant for drug-related criminal activity, a landlord

C.F.R. § 966. p. 4 4(l)(5)(iii)(A), the criminal complaints and Sullivan’s testimony proof that the tenant “has been arrested or convicted for such activity,” 24

Lavoie, 155 N.H. at p. 4 481. Although this does not require

substance or testified that she was even present at the time of the sale. This case is factually indistinguishable from Vachon v. New Hampshire Sullivan never identified the tenant as the person who sold the controlled of the sale or present in the store at the time.” Id substance.. at p. 4 479. Similarly, here the store owner “personally sold the girl the button or even that he was aware this particular tenant was in any way involved in the sale of a controlled substance occurred. In other words, Sullivan’s testimony failed to show that the store.” Id. at 479-80. Thus, there was insufficient evidence to prove that substance or was even in the building when the sale of the controlled did not say that [the store owner] was that person, or even that she saw him in controlled substance occurred, he offered no testimony that the tenant sold the some person in the store . . . and paid that person 25 cents for the button. She building. Although Sullivan’s testimony corroborated the claim that a sale of a the person who sold the button. The Court observed that the minor “went to cooperating individual ever saw or spoke to the tenant at any time while in the selling her an obscene button because the store owner was never identified as substance. Indeed, he did not testify that the undercover officer or the conviction of a store owner for contributing to the delinquency of a minor by individual identified the tenant as the person who sold the controlled 414 U.S. 478, 480 (1974), where the United States Supreme Court reversed the identify, nor did he testify that the undercover officer or the cooperating, on the recordings or how they related to any criminal activity. He did not tenant as the person on the recordings, he did not testify as to what was said “recordings” of the tenant during the investigation. While he did identify the lives and exited a few minutes later. He testified that he also listened to an officer and a cooperating individual entered the building where the tenant sufficient additional evidence to satisfy the landlord’s burden. He testified that We next address whether Sergeant Sullivan’s testimony provides

three complaints is required to prove that the tenant breached her lease. that he had been involved in criminal activity). Thus, something more than the convicted, remained qualified for public housing because arrests did not prove an individual who had been arrested nine times in three years, but never Housing Authority, 936 N.E.2d 73 p. 5 5, 739, 7 p. 4 42 (Ill. App. Ct. 2010) (ruling that preponderance of the evidence burden of proof. See Landers v. Chicago probative value. Accordingly, complaints, like indictments, do not satisfy the making them functionally equivalent to indictments with regard to their 5

Reversed

DALIANIS, C.J.