2021-0168, State of New Hampshire v. Volodymyr Zhukovskyy

attached trailer when he collided with a group of motorcyclists, killing seven June 21, 2019, the defendant was operating a Dodge Ram 2500 truck with an The following facts are established by the record or are undisputed. On

motion, we affirm. court su stainably exercised its discretion when it denied the defendant’s when the parties dispute facts relevant to dangerousness, and that the trial 597:2, III - IV does not require the trial court to hold an evidentiary hearing bail hearing. See RSA 597:2 (Supp. 2020). Because we conclude that RSA the Superior Court (Bornstein, J.) denying his third motion for an evidentiary BASSETT, J. The defendant, Volodymyr Zhukovskyy, appeals an order of

memorandum of law and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

general, on the memorandum of law and orally), for the State. John M. Formella, attorney general (Scott D. Chase, assistant attorney

No. 2021 - 0168 Coos

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e mail at the following address: reporter@courts.state.nh.u s. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

his dangerousness. and the trial court issued a new bail order continuing the defendant’s preventive detention due to the manslaughter, negligent homicide, neglig ent homicide — DUI, and reckless conduct charges, I n March p. 2 2021, a month prior to the filing of this motion, the State reindicted the defendant on 1

dangerousness. This appeal followed. history,” justified the defendant’s continued preventive detention due to his was on bail, the defendant’s unyielding drug use, and his prior related criminal “the facts surround ing the crash on June p. 2 21, 2019, the fact that the defendant the State’s objection. The court relied, in part, upon the State’s reasoning that, court denied the motion, citing the reasons set forth in specific paragraphs of evi dence, and that the court reassess its dangerousness finding. The trial an evidentiary hearing at which he could present the relevant, newly available weakened the State’s case against him. He requested that the trial court hold the State’s crash report and other discovery, which, the defendant contended, passage of time, occasioned by delays in scheduling trial, as we ll as updates to justifications for continued preventive detention were undermined by the hearing, which is the subject of this appeal. He argued primarily that the 1 In April 2021, the defendant fil ed a third motion for an evidentiary bail

part of the State’s objection. arguments. The court again denied the motion, referencing the reasoning in motion for an evidentiary bail hearing in September p. 2 2020, which raised similar defendant’s motion to reconsider that ru ling. The defendant filed a second reasons set forth in a portion of the State’s objection and denied the preventive detention. The trial court denied the defendant’s motion for the that the court should hold an evidentiary hearing on the continuing need for discovery, the defendant filed a motion for an evidentiary bail hearing, arguing In March 2020, based on new evidence that the State had provided in

reckless conduct, RSA 6 p. 3 31:3, I - II ( p. 2 2016). aggravated DUI, RSA 26 5 - A:3, I(b) (2014); and one class B felony count of influence of a controlled drug (DUI), RSA 630:3, II (2016); one count of RSA 630:3, I (2016), and negligent homicide — driving while under the seven counts each of manslaughter, RSA 630:2, I(b) (2016), negligent homicide, jury indicted the defendant on the following charges arising from the collision: operating a motor vehicle in a dangerous manner.” In October 2019, a grand that of the public because his “criminal and driving history exhibit a pattern of that, if released, the defendant would likely prese nt a danger to his safety or the public. See RSA 597:2, III(a). The trial court explained in its bail order he be placed in preventive detention due to the danger he posed to himself and defendant waived arraignment and a bail hearing, and the parties agreed that charged with seven counts of negligent homicide. At a hearing on June 25, the people and seriously injuring another. The defendant was arrested and initially 3

presented via video conferencing, unless the court determines that (b) At any subsequent hearing, such testimony may be live testimony is presented to the court. time, the defendant may re quest a subsequent bail hearing where by offer of proof at the initial appearance before the court. At that (a) Evidence in support of preventive detention shall be made

Paragraph IV provides, in relevant part:

through the procedures set forth in paragraph IV. See RSA 597:2, III - IV. the trial court may consider evidence of all relevant factors presented to it paragraphs III and IV provide that, in making its dangerousness determination, o pposition to, preventive detention. See RSA 597:2, IV. Construed together, process by which the trial court may receive evidence in support of, or presented pursuant to paragraph IV.” Id. Paragraph IV, in turn, governs the dangerousness of a defendant, “the court may consider all relevant factors safety of [the defendant] or the publi c.” Id. When evaluating the determines by clear and convincing evidence that release will endanger the detention without bail on the basis of dangerousness “only if the court t he statute, the court may order that a defendant be held in preventive the public and the defendant upon his or her release. RSA 597:2, III(a). Under pending trial, the trial court must consider, among other things, the safety of pending trial. When considering whether to release or detain a defendant RSA 597: 2 authorizes the trial court to release or detain a defendant

(201 p. 3 3). legislature did not see fit to include. Petition of Carrier, 165 N.H. 719, 721 will not consider what the legislature might have said or add language that the words used. Id. We interpret legislative inten t from the statute as written and language of the statute, we ascribe the plain and ordinary meaning to the of the statute considered as a whole. Id. at 530. When examining the (2014). We are the final arbiter of legislative intent as expressed in the words Accordingly, our review is de novo. See State v. Tsopas, 166 N.H. 528, 529 - 30 to hold an evidentiary bail hearing raises an issue of statutory interpretation. Resolving the issue of whether RSA 597:2, III - IV requires the trial court

decision sustainable. For the reasons that follow, we agree with the State. decision under our unsustainable exercise of discretion standard and find its evidentiary bail hearing, and, therefore, we should re view the trial court’s statute does not expressly or impliedly grant a de fendant the right to an his third motion for an evidentiary bail hearing. The State counters that the dangerousness finding, the trial court erred as a matter of law when it denied evidentiary hearing when, as here, the parties dispute facts relevant to the argues that, because RSA 597:2, III - IV creates an implied right to an the defendant’s third request for an evidentiary bail hearing. The defendant The sole issue on appeal is whether the trial court erred when it denied p. 4 4

dispute issues of fact material to dangerousness. create a statutory entitlement to an evidentiary bail hearing when the parties that “evidentiary hearing”). Thus, we conclude that RSA 597:2, III - IV d oes not hearing” on the relocation of a child’s residence and describing the timing for 2020) (providing that “[a]t the request of either parent, the court shall hold a . . . conduct a hearing and make written findings”); R SA p. 4 461 - A:12, IV (Supp. that a person be detained based upon dangerousness, “the superior court shall (Supp. 2020) (providing that, when reviewing a circuit court’s determination grant a right to a hearing, it kno ws how to do so. See id.; cf. RSA 597:6 - e, II contention, this language demonstrates that, when the legislature intends to shall be entitled to a bail hearing.” RSA 597:2, II. Contrary to the defendant’s that, subject to cer tain exceptions, “a person charged with a probation violation entitled to a bail hearing under paragraphs III and IV. RSA 597:2, II provides legislature intended that individuals who are charged with an offense are also charged with a probation violation to a bail hearing establishes that the argument that the fact that paragraph II of RSA 597:2 entitles a pers on In addition, we are not persuaded by the defendant’s assertion at oral

did not see fit to include”). 165 N.H. at 721 (stating that we “will not . . . add language that the legislature the legislature did not include, which we will not do. See Petition of Carrier, construction of the statute, we would have to add language to the statute that request for a hearing. See id. Consequently, to adopt the defendant’s dangerousness, nor specifies when a trial court m ust grant a defendant’s hearing when there are disputed issues of material fact related to Indeed, the statute neither states that a defendant is entitled to an evidentiary grant that request w hen the parties dispute facts relevant to dangerousness. evidentiary hearing, the statutory language does not require the trial court to Although the statute contemplates the defendant’s ability to request an appearance or by written motion at any other time. See RSA 597:2, IV(a) - (b). request” an evidentiary bail hearing: either by oral motion at the ini tial omitted)). The statute then outlines how and when the defendant “may general rule that in statutes . . . the word ‘shall’ is mandatory.” (quotation RSA 597:2, IV(a); see Appeal of Rowan, 1 p. 4 42 N.H. 67, 71 (1997) (“It is the preventive detention at the defendant’s initial appear ance before the court. mandatory method by which the State must present evidence in support of RSA 597:2, IV(a) - (b). This statutory language establishes offers of proof as the

hearing. distributed to the parties at least p. 4 48 hours prior to any sub sequent hearing. Any order granting the defendant’s request shall be the initial hearing or by written motion prior to any subsequent defendant for in - court testimony shall be made by oral motion at witness testimony in court is necessary. A request by t he p. 5 5

persuaded. Furgal, 161 N.H. 206 (2010), in support of this argument. We are not defendant relies on United States v. Salerno, 481 U.S. 739 (1987) and State v. can reasonably assure the safety of the defendant and the community.” The detention, “find by clear and convincing evidence that no conditions of release Constitution s because it does not require that the trial court, before ordering contrary to the substantive due process guarantees of the Federal and State such detention.” The defendant argues that this statement in Spaulding is consider less restrictive alternatives to detention without bail before ordering substantially similar, version of RSA p. 5 597:2 did not “require the tri al court to Spaulding, 172 N.H. 205, 209 (2019), where we observed that an earlier, but As an initial matter, the defendant draws our attention to State v.

nature of the ch arged offenses. We agree with the State. released on bail for a pending DUI charge at the time of the collision, and the history of substance use, his prior convictions, the fact that he had been was sustainable based on the undisputed facts relating to the defendant’s material factual disputes. The State counters that the trial court’ s decision court erred when it declined to hold an evidentiary hearing to resolve those initial impact and whether the defendant was impaired at the time — the trial numerous facts germane to these three fa ctors — including who caused the without bail. He further contends that, because the parties disputed the defendant; and whether there are less restrictive alternatives to detention pose[s]”; the strength of the State’s case on the merits of the charges against by the trial court: the defendant’s “character and . . . the risk of danger he the court’s dangerousness finding and therefore should have been considered matter of statutory interpretation, the following three “factors” are relevant to hearing was not a sustainable exercise of discretion. He argues that, as a conclude that the trial court’s denial of his third request for an evidentiary challenge to this standard of review, he argues that, if we apply it, we should Although, as addressed above, we have rejected the defendant ’s

case. Id. court’s ruling was clearly untenable or unreasonable to the prejudice of his court’s decision is not sustainable, the defendant must demonstrate that the made.” State v. Lambert, 147 N.H. 29 p. 5 5, 29 p. 6 6 (2001). To show that the trial establishes an objective basis sufficient to sustain the discretionary judgment unsustainable exercise of discretion, we consider “whether the record N.H. at 530. When determining whether a trial court ruling is an hearing under our unsustainable exercise of discretion standard. T sopas, 166 (2012); cf. Super. Ct. R. 13(b). We review a court’s determination not to hold a necessary. Tsopas, 166 N.H. at 530; see State v. McGurk, 163 N.H. 584, 587 evidentiary hearing, the court has discretion to determine whether a hearing is In the absence of a statutory mandate that the trial court hold an 6

the defendant highlights disputed facts ab out whether he was impaired at the As to the defendant’s “character and . . . the risk of danger he pose[s],”

sufficient to sustain the trial court’s judgment. undisputed facts presented to the trial court provide an objective basis making these assumptions in the defendant’s favor, we concl ude that the identifies in his memorandum are material to each of those three factors. Even defendant and the community; and (3) the factual disputes the defendant that no conditions of relea se could reasonably assure the safety of the required to find by clear and convincing evidence, before ordering detention, dangerousness determination; (2) with respect to the third factor, the court was str ength of the merits of the State’s case — are relevant to the court’s identifies — the defendant’s character and the danger he poses, and the deciding, in the defendant’s favor that: (1) the first two factors the defendant Nonetheless, for the purposes of this appeal, we will assume, without

at 214. community and the defendant. See Salerno, 481 U.S. at 7 52; Furgal, 1 p. 6 61 N.H. evidence that no conditions of release can reasonably assure the safety of the that trial courts, before ordering detention, find by clear and convincing Federal and State Constitution s, a bail statute like RSA 597:2 must require to be constitutional under the substantive due process guarantees of the contention, neither Salerno nor Furgal stand s for the proposition that, in order Constitutions. Id. at 210 - 15, 218. Thus, contrary to the defendant’s facial substantive due process challenge under the State and Federal RSA 597:1 - c (Supp. 2009), which prohibits bail in certain cases, withstood a constitutional scrutiny.” Furgal, 161 N.H. at 214. In Furgal, we held only that only the narrow issue of whether that par ticular scheme could survive Salerno the Court “was confronted with one specific bail scheme and decided Salerno set a minimum threshold for all bail inquiries, observing that in and t he community. However, in Furgal, we rejected the argument that that no conditions of release can reasonably assure the safety of the defendant trial courts, before ordering detention, find by clear and convincing evidence minimum constitutional threshold for all bail statutes, which requires that all The defendant here essentially asserts that Salerno es tablished a

interest at stake. Id. at p. 7 747 - 52. the procedural safeguards provided in the statute, outweighed the liberty that the government’s legitimate interest in community safety, combined with against the defendant’s facial substantive due process challeng e, concluding community or any person.” Id. at 750. The Supreme Court upheld the statute that no conditions of release can reasonably assure the safety of the trial court, before ordering detenti on, to find “by clear and convincing evidence Federal Constitution. Salerno, 481 U.S. at 745 - 4 p. 6 6. That statute required the basis that it violated, among other things, the Due Process Clause of the Salerno involved a facial challenge to the federal Bail Reform Act on the 7

arrest for driving while under the influence of drugs. Thus, the undisputed influence of drugs in violation of release conditions following his May 2019 he allegedly committed the June 21, 2019 offenses while d riving under the detained in a restrictive environment does not negate the undisputed fact that whether he is currently dangerous. Although commendable, his sobriety while has been sober while in pretrial d etention raises “an important doubt” about We are not convinced by the defendant’s argument that the fact that he

influence of drugs at the time of the collision. influence of a controlled substance, and is alleged to have been under the been charged one month earlier in Connecticut with driving while under the not cease prior to the charged offenses, as evidenced by the fact that he had possession of drug paraphernalia. The defendant’s substance use issues did convictions in 2018 and 2019 for possession of a controlled substance and he has a “history of substance abuse.” That history includes misdemeanor the defendant’s acknowledgement in the trial court that it is “not a secret” that Also telling of his character and the risk of danger he poses if released is

defendant had been released on bail for the Connecticut offense. under the influence of drugs. At the time of the June 21 collision, the conduct in Connecticut that resulted in a charge that he was driving while to the charged incident, the defendant is alleged to have engaged in similar the street, and then fleeing the scene. Notably, approximately one month prior legal limit, running a stop sign, striking a parked vehicle on the opposite side of operating a vehicle while under the influence of alcohol at almost twice the Massachusetts. The conduct underlying that offense involved the defendant offense of operating a vehicle while under the influence of alcohol in 2014, the defendant pleaded to sufficient facts to support a conviction for the the defendant has been charged with driving while under the influence. In character and the risk of danger he poses given that this i s not the first time The charge d offenses are especially indicativ e of the defendant’s

that the defendant committed a crime” (quotation and brackets omitted)). “sufficient, trustworthy information to warrant a reasonable person to believe (quotation omitted)); id. (explaining that “[p]robable cause” means that there is to believe that the defendant committed the crime with which it charged him.” jury’s decision to indict conclusively determines the existence of probable cause numerous others. See State v. Castine, 1 p. 7 72 N.H. 562, 56 p. 8 8 (2019) (“A grand the serious bodily injury of an eighth person, and the endangerment of controlled drug, caused a collision that led to the death of seven individuals, alleged in the indictments, that the defendant, while under the influence of a is conclusively established that there is at least probable cau se to believe, as the grand jury indicted the defendant on the charged offenses. Accordingly, it time of the collision and whether he crossed into oncoming traffic. However, 8

court were limited to legal analysis of the facts asserted by the plaintiff”). hearing on defendant’s motion to dismiss when “the issues before the trial 711 - 12 (2010) (affirming trial court’s decision not to hold an evidentiary facts on which it could prevail); Beane v. Dana S. Beane & Co., 160 N.H. 70 p. 8 8, evidentiary hearing when party requesting hearing failed to allege sufficient Church of N.H., 157 N.H. 254, 257 (2008) (affirming trial court’s refusal to hold have altered its dangerousness determination. Cf. State v. Korean Methodist undisputed facts, an evidentiary hearing was unnecessary because it would not other wor ds, the trial court could have reasonably determined that, given these which was premised solely upon the circumstances of the alleged crime). In (affirming trial court’s dangerousness determination and detention order, sustain the court’s dangerousness finding. See Spaulding, 172 N.H. at 208 - 09 third request for an evidentiary bail hearing because they are sufficient to objective basis sufficient to sustain the trial court’s denial of the defendant’s Considering all these undisputed facts, we conclude that they provide an factors identified by the defendant that support the trial court’s decision. In sum, there are sufficient undisputed facts related to each of the three

releas e, he is unlikely to do so now. lead a law - abiding life free from controlled substances when on conditional based solely on the undisputed facts, that, because the defendant had failed to similar offense. Put differently, it was reasonable for the court to conclude, and, second, at the time of the collision, he had been released on bail for a probable cause to believe that the defendant committed the charged offenses; would not have altered two undisputed facts: first, there is, at a minimum, impaired or driving dangerously at th e time of the collision, that evidence hearing, the defendant would have presented evidence that he was not defendant and the community. Even if we assume that, at an evidentiary there were no conditions that could reasonably assure the safety of the finding by the trial court as to the third factor identified by the defendant: that Similarly, the above undisputed facts also provide a sufficient basis for a

despite the updated discovery. of the up dated reports, probable cause continues to support the allegations reindicted the defendant on all but one of the pending charges after the release motion for a bail hearing, do not undermine that fact. Because the grand jury updated crash reports, which the defendant relied upon to support his third supporting the State’s case. See Castine, 172 N.H. at 56 p. 8 8. T he State’s indictment of the defendant establishes that there is at least probable cause strength of the merits of the State’s case. As explained above, the grand jury’s court’s decision regarding the second factor identified by the defendant — the These undisputed facts also provide an objective basis for the trial

public. operation o f motor vehicle s while impaired to the detriment of the safety of the facts establish a pattern of reckless behavior involving the defendant’s p. 9 9

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

hearing. discretion when it denied the defendant’s third motion for an evidenti ary bail relevant to dangerousness and that the trial court sustainably exercised its court to hold an evidentiary bail hearing when the parties dispute facts In sum, we conclude that RSA 5 p. 9 97:2, III - IV does not require the trial

developed, and we decline to review it. See id. factor analysis in his memorandum, we deem this argument inadequately 258. However, because the defendant neither cites nor discusses this three procedural requirements would entail. Korean Methodist Church, 157 N.H. at and the fiscal and administrative burdens that the additional or substitute sa feguards; and (3) the government’s interest, including the function involved used, and the probable value, if any, of additional or substitute procedural (2) the risk of erroneous deprivation of such interest through the procedures factor analysis addressing: (1) the private interest affected by the official action; process right to an evidentiary hearing, we normally would engag e in a three that argument. To determine whether the defendant had a procedural due process rights under the State and Federal Constitutions, we decline to address of hi s third request for an evidentiary b ail hearing violated his procedural due To the extent that the defendant also argues that the trial court’s denial

the prejudice of his case. See Lambert, 147 N.H. at 2 p. 9 96. showing that the trial court’s ruling was clearly untenable or unreasonable to Accordingly, we conclude that the defendant has not carried his burden of