2011-414, State of New Hampshire v. Kevin Guay

The defendant, Kevin Guay, appeals his convictions in

brief and orally, for the defendant. Dorothy E. Graham, assistant appellate defender, of Concord, on the

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

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 whole, and our review of the trial court’s statutory interpretation is de novo.

p. 2 the legislature’s intent regarding the meaning of a statute considered as a

penalty provisions of RSA 485-A:43, I (2001) and IV. We are the final arbiter of IV (2001). Resolving this issue requires us to interpret RSA 485-A:37 and the a violation of that provision is civil forfeiture in accordance with RSA 485-A:43,

the State to charge him with a misdemeanor because the exclusive penalty for On appeal, the defendant first argues that RSA 485-A:37 does not allow

Clinton Street. After a week-long trial, the jury convicted him on all counts.

Street; and (3) unlawful maintenance of a subsurface septic system at 180 Villanova Drive; (2) unlawful operation of a solid waste facility at 180 Clinton with three misdemeanors: (1) unlawful operation of a solid waste facility at 30 Based upon this and other evidence, the State charged the defendant

found fecal contamination. investigator tested samples of the liquid in the hose and the soil beyond it and

field and discharging liquid in the direction of the Turkey River. The

channeled untreated brown water from the septic tank, bypassing the leach defendant’s septic system and a garden hose attached to a sump pump that an expert in subsurface systems compliance, observed liquid on top of the During the search of 180 Clinton Street, a DES investigator, who is also

including sheet rock and tree stumps. exposed to the elements and was not in usable condition – and buried items – an oil tank, metal debris, and insulation, the majority of which had been

including mattresses, appliances, chairs, couches, ceiling tiles, a snowmobile,

paint cans. At 180 Clinton Street, they found both above-ground items – insulation, a metal stove, shingles, wiring, a hot tub broken into pieces, and items, a 275-gallon home heating oil tank, carpeting, old mattresses, foam

meanings to the words used. Id. When a statute’s language is plain and properties. At 30 Villanova Drive, the authorities unearthed, among other

unambiguous, we need not look beyond it for further indication of legislative

language of the statute, and, where possible, we ascribe the plain and ordinary Ouellette v. Town of Kingston, 157 N.H. 604, 609 (2008). We first examine the Environmental Services (DES), Ford obtained search warrants for both in collaboration with investigators from the New Hampshire Department of and septic system violations at 180 Clinton Street. After an investigation, and

Police Department to report hazardous materials buried at 30 Villanova Drive In February 2009, Vera contacted Detective Sean Ford of the Concord

basement of 180 Clinton Street.

Among those working for the defendant was Paul Vera, who lived in the owned property at 180 Clinton Street and 30 Villanova Drive in Concord. defendant’s contention that the exclusive penalty for failing to operate and p. 3 The language of RSA 485-A:37, if read in isolation, might support the

under RSA 485-A:43, IV. under RSA 485-A:43, I, and may also subject the violator to civil forfeiture

the other hand, contends that a violation of RSA 485-A:37 is a misdemeanor

any additional penalty beyond that stated in RSA 485-A:43, IV.” The State, on 485-A:43, IV,” and that “[n]othing in the plain language of the statute allows for 485-A:37 specifies that a violation is subject to the penalty provided in RSA On appeal, the defendant contends that “[t]he plain language of RSA

if any other person. be guilty of a misdemeanor if a natural person, or guilty of a felony

department issued under the authority of this subdivision . . . shall

any order of the department or member or authorized agent of the

subdivision or who shall knowingly fail, neglect or refuse to obey Any person who shall violate any of the provisions of this

misdemeanor pursuant to RSA 485-A:43, I:

RSA 485-A:37, the defendant was charged with and convicted of a Based upon his alleged unlawful maintenance of a septic system under

provided for in RSA 485-A:37.

to exceed $1,000 for each day of neglect or refusal after notice as provisions of RSA 485-A:37 shall be subject to a civil forfeiture not Any person neglecting or refusing to comply with the

RSA 485-A:43, IV, in turn, states:

RSA 485-A:43, IV. 3 of this chapter and shall be subject to the penalty as provided in

Failure to so operate and maintain shall be considered a violation

a nuisance or potential health hazard due to failure of the system. operate and maintain said system in such a manner as to prevent accordance with the provisions of this subdivision is required to

statute. Id. Finally, we interpret a statute in the context of the overall

subsurface sewage or waste disposal system installed in Any person who has installed or otherwise acquired a

RSA 485-A:37 provides:

language that the legislature did not see fit to incorporate in the intent, and we refuse to consider what the legislature might have said or add

(2011). statutory scheme and not in isolation. State v. Etienne, 163 N.H. 57, 72 violations. See Pennelli v. Town of Pelham, 148 N.H. 365, 367-80 (2002) p. 4 forfeiture under RSA 485-A:43, IV is the exclusive penalty for RSA 485-A:37

RSA 485-A:37 would be rendered superfluous were we to conclude that civil Furthermore, the statute’s reference to “a violation of this chapter” in

remedial action.

(2001); see Etienne, 163 N.H. at 72. We do not believe the legislature intended

485-A:37, as well as a civil administrative penalty designed to compel prompt

the state and to prevent nuisances and potential health hazards.” RSA 485-A:1

system in a manner as to prevent a “nuisance or potential health hazard,” RSA criminal deterrent to the “failure to so operate and maintain” one’s septic it makes eminent sense that the legislature would enact both a general

protect water supplies, to prevent pollution in the surface and groundwaters of interpretation is plainly inconsistent with the statute’s express purpose “to create a nuisance or potential health hazard with impunity. Such an

violation and issues a written compliance order to enjoin or remedy it. Indeed,

whatever reason, a person is at liberty to allow his or her sewage system to used superfluous or redundant words.” (quotation omitted)). Had the

health hazard,” RSA 485-A:37, punishable only after DES learns about a

refusal after notice as provided for in RSA 485-A:37” – i.e., after DES issues a fine for such “neglect or refusal” is to be levied “for each day of neglect or

mean that as long as DES does not issue a written compliance order, for statute must be given effect and that the legislature is presumed not to have subdivision. As a result, the defendant’s interpretation of the statute would (“Basic statutory construction rules require that all of the words of a whenever there has been any “violat[ion]” of the sewage disposal systems [a sewage] system in such a manner as to prevent a nuisance or potential

civil forfeiture for “neglecting or refusing” to comply with RSA 485-A:37. The

of State action, the misdemeanor provision of RSA 485-A:43, I, is triggered to make a public health risk as serious as the failure to “operate and maintain

statutes in isolation, however, but “in the context of the overall statutory subdivision is guilty of a misdemeanor, RSA 485-A:43, IV subjects a person to any person who “shall violate” any provision of the sewage disposal systems As an initial matter, unlike RSA 485-A:43, I, which provides simply that

forfeiture penalty of RSA 485-A:43, IV, which is conditioned upon the initiation “compliance order[] in writing,” RSA 485-A:37. Thus, in contrast to the civil

health hazard is civil p. 4 forfeiture under RSA 485-A:43, IV. We do not interpret maintain a sewage disposal system so as to prevent a nuisance or potential

485-A:37 may be subject to both criminal and civil penalties. and purpose, we agree with the State’s interpretation that violations of RSA omitted). Viewing the statute in the context of the overall statutory scheme policy sought to be advanced by the entire statutory scheme.” Id. (quotation statutes in light of the legislature’s intent in enacting them, and in light of the scheme.” Etienne, 163 N.H. at 72 (quotation omitted). “Our goal is to apply prosecutor on cross-examination of the defendant that required the defendant p. 5 The second asserted impropriety involved questioning pursued by the

on one occasion. behavior was unworthy of belief. Ford also described the defendant as “shifty”

actions, thereby, the defendant suggests, implying that the defendant’s

“coincidentally” on two other occasions when referring to the defendant’s several septic companies to . . . come and fix the problem.” Ford used the word defendant “said that he was coincidentally in negotiations right now with

warrant, he asked him about “the septic problem.” Ford testified that the

investigation. Ford testified that, after serving the defendant with a search suggested the defendant did not provide credible answers during the police The first asserted impropriety involved testimony of Detective Ford that

turning to the merits of the defendant’s assertion of plain error.

The defendant also cites State v. Bell, 125 N.H. 425, 432 (1984), for the

credibility of other witnesses. We briefly discuss these exchanges before closing argument, the prosecutor discussed the defendant’s answers about the questioned the defendant about the credibility of other witnesses; and (3) in her

prosecution. “a violation” in that provision – subjects the violator to misdemeanor

commented upon Guay’s credibility in his testimony; (2) the prosecutor

to the conclusion that non-compliance with RSA 485-A:37 – expressly labeled

violations of the sewage disposal systems subdivision are considered criminal improprieties during his trial, to which he did not object: (1) Detective Ford He rests this argument upon the cumulative effect of three asserted witness credibility was presented at trial and discussed in closing argument.”

to any person who “shall violate” the sewage disposal systems subdivision leads misdemeanor provision of RSA 485-A:43, I, specifically provides that it applies conflict.” There is no conflict, however, between a provision stating that subject to the penalty as provided in RSA 485-A:43, IV.” That the

plain error doctrine because certain “[i]nadmissible evidence concerning The defendant next argues that he is entitled to a new trial under the

485-A:43, IV. to a civil fine for each day of noncompliance with a written DES order, see RSA acts, see RSA 485-A:43, I, and a provision stating that a person may be subject

will be regarded as an exception to the general enactment where the two resulting in a provision reading, “Failure to so operate and maintain shall be another deals with a part of the same subject in a more detailed way, the latter legislature intended as much, it could have simply omitted that clause, proposition that “where one statute deals with a subject in general terms, and p. 6 Q. You . . . were supposed to cover that leech [sic] field at

questioning:

Later in the cross-examination, the prosecutor pursued a similar line of

A. Absolutely.

Q. Is he lying about that?

A. Correct.

Q. So he lied about that, as well. was hard to work on the site as a result. Q. And that the next day it would be covered again, and it

did, he said he ran into trash. A. I don’t know if he referred to “all kinds,” but yes he

him say that? Q. He said he ran into all kinds of trash. Did you hear

A. That was incorrect.

to save money.

A. Correct.

Q. You heard him testify that you wanted to do it yourself

propane tank when he was doing the cellar hole on that property. Q. And you heard Mr. Phillips say that he ran into a

A. No. Bob Phillips was to cover the leech [sic] field.

Villanova property, among other tasks, had testified truthfully: Phillips, a contractor hired by the defendant to help dig a cellar hole at the The prosecutor then asked the defendant to opine as to whether Robert

That was part of the agreement.

180 Clinton Street yourself. Is that correct?

when he said that?” The defendant said, “If he said that, he did.” denied having said this, the prosecutor said, “So you’re saying . . . Ford lied hooked up the septic to the sump pump and pumped it.” After the defendant

asked the defendant if he “told Detective Ford that you were the one . . . who to opine as to the credibility of other witnesses. For example, the prosecutor what the defendant told him – i.e., that it was a coincidence he was being

p. 7 equally plausible reading of the transcript is that Ford was simply repeating

amounts to an “impermissible comment on [the defendant]’s credibility,” an “coincidentally.” Although the defendant asserts that Ford’s use of that term At the outset, we find no impropriety in Detective Ford’s use of the word

He’s the only one who doesn’t lie here.

things. points, and Ed Tucker, his own witness, he said lied about some

trial court. State v. Russell, 159 N.H. 475, 489 (2009). “A plain error that Under the plain error rule, we may consider errors not raised before the

Vera is a liar, Detective Ford is a liar, Carl Woodbury is a liar at

and accordingly review it for plain error. reputation of the judicial proceedings. State v. Lopez, 156 N.H. 416, 423 deciding, that a timely objection to this testimony should have been sustained,

everybody but he, essentially, is a liar. Mr. Phillips is a liar, Paul test with respect to the second and third improprieties. In that case, we conspiracy, because from what [the defendant] testified to, Is [Vera] in cahoots with Craig Walker? Is it all a giant

and (4) the error must seriously affect the fairness, integrity, or public defendant on appeal. As to Ford’s use of the word “shifty,” we assume, without Russell, 159 N.H. at 489. Our plain error rule requires: (1) there must be an

defendant has met his burden to satisfy the first two prongs of the plain error The State concedes that, as a consequence of our holding in Lopez, the prosecutor’s questions about the credibility of other witnesses: (2007). argument, in which the prosecutor referred to the defendant’s answers to the The third and final asserted impropriety involved the State’s closing

error; (2) the error must be plain; (3) the error must affect substantial rights; would not have been compelled to accept the interpretation advanced by the circumstances in which a miscarriage of justice would otherwise result. However, the rule should be used sparingly, its use limited to those the attention of the trial court or the supreme court.” Sup. Ct. R. 16-A. affects substantial rights may be considered even though it was not brought to

investigated just as he was in the process of fixing the problems. The jury

Edward Tucker, a witness for the defense. The prosecutor also asked the defendant to comment on the credibility of

A. Correct. p. 8 Vera testified, for example, that he helped the defendant fix the broken septic

septic system in a manner as to prevent a nuisance or potential health hazard.

overwhelming amount of evidence to support the charge of failing to maintain a both 30 Villanova Drive and 180 Clinton Street. The State also produced an 2009, they discovered large quantities of buried and above-ground waste at

When the police and DES investigators executed search warrants in March

However, in contrast to the undisputed Lopez errors and Ford’s reference to the

and several others, offered testimony confirming the substance of the charges. employee Paul Vera, his friend Allan Evans, his subcontractor Robert Phillips, 8 jury followed these instructions. State v. Smith, 149 N.H. 693, 697 (2003). Street and 30 Villanova Drive. Many witnesses, including the defendant’s witness and give it the weight that you think it deserves.” We presume that the decide what the truth is”; and “you should consider the testimony of each

him as a conspiracy theorist . . . and that his version was implausible.”

junk removal business and stored junk, without a permit, at both 180 Clinton

among other things, “it is up to you to decide who to believe”; “you must . . .

worthy of its belief”; and (2) “the State used [the defendant]’s testimony to paint witnesses lied in their testimony.” Souksamrane, 164 N.H. at __ (quotation Ford’s testimony “communicated to the jury that [the defendant] was not The defendant further contends that he was prejudiced in two ways: (1)

172 exhibits, supporting the State’s allegations that the defendant operated a overwhelming. This evidence included eighteen witnesses for the State and however, that their duty was to judge the credibility of witnesses, stating, defendant as “shifty,” the evidence of the defendant’s guilt in this case was

The defendant argues that the Lopez errors “relieved the jury of its duty

cross-examination that compels a defendant to state that the police or other

defendant in this case did. Id. at 424. More recently, in State v. Souksamrane,

contrary,” Lopez, 156 N.H. at 424 (quotations omitted), they do not amount to been obvious in the sense that the governing law was clearly settled to the to determine witness credibility.” The trial judge properly instructed the jurors, Although these exchanges constituted error that “was or should have

N.H. at 425. was prejudicial, i.e., that it affected the outcome of the proceeding. Lopez, 156 and used the “opportunity to condemn, as forcefully as possible, prosecutorial an error affected substantial rights, the defendant must show that the error N.H. 719, 720 (2005). Generally, to satisfy the burden of demonstrating that plain error test, the error must affect substantial rights. State v. Taylor, 152 plain error under the third prong of that test. To meet the third prong of the upon the credibility of other witnesses,” as the prosecutor’s questions of the adopted “a broad prohibition on questions requiring a witness to comment

omitted).

164 N.H. __ (decided Dec. 21, 2012), we examined a similar line of questioning p. 9 Affirmed.

affected the outcome of the case. evidence, the defendant has not met his burden to demonstrate that the errors showing the septic system’s unlawful operation. In light of this and other

down, I’m the guy.” Further, numerous photographs were offered into evidence

in this manner, the defendant told Detective Ford, “[I]t was me, just put me fecal pollution. When asked whether he or Vera configured the septic system including on the bank of the river itself, and discovered E. coli, a product of

direction of the river. The investigator tested the soil and liquid in the area,

that the defendant’s system bypassed the leach field and discharged in the Turkey River, where the effluent was discharged. The DES investigator testified submergible pump attached to a garden hose that was directed towards the

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

Clinton Street, and, second, when that plan created an odor, installing a pump by, first, digging a trench to allow the “brown water” to drain onto