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State of New Hampshire v. Roy Rogers

October 2, 2023 - Brief

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Docket: 2022-0025

Date Record Text Type Party PDF
October 11, 2024 State v. Rogers Opinion Supreme Court Pre-Reporter
May 14, 2024 State of New Hampshire v. Roy Rogers Oral argument text State of New Hampshire; Roy Rogers
May 14, 2024 May 14 2024 Supreme Court oral argument calendar - PDF
October 2, 2023 State of New Hampshire v. Roy Rogers Current page Brief PDF
September 12, 2023 State of New Hampshire v. Roy Rogers Brief State of New Hampshire PDF
June 27, 2023 State of New Hampshire v. Roy Rogers Brief PDF
December 31, 2022 2022 Fourth Quarterly Status Report Supreme Court case status list - PDF
September 30, 2022 2022 Third Quarterly Status Report Supreme Court case status list - PDF
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2022-0025
State of New Hampshire
v.
Roy Rogers
Appeal Pursuant to Rule 7 from Judgment
of the Ninth Circuit Court – District Division – Milford
REPLY BRIEF FOR THE DEFENDANT
Thomas Barnard
Deputy Chief Appellate Defender
Appellate Defender Program
10 Ferry Street, Suite 202
Concord, NH 03301
NH Bar # 16414
603-224-1236
(15 minutes oral argument)

TABLE OF CONTENTS

Page
Table of Authorities 3
Summary of the Argument 5
Argument I. THE COURT ERRED BY DENYING ROGERS’S MOTION TO ENFORCE THE AGREEMENT THE STATE MADE WITH HIM 6
Conclusion 14

TABLE OF AUTHORITIES

Page
Cases Bergeron v. N.Y. Community Bank, 168 N.H. 63 (2015) 7
Bilodeau v. Antal, 123 N.H. 39 (1983) 7
Fletcher v. Merrimack County, 71 N.H. 96 (1901) 11
Petition of N.H. Div. for Children, Youth & Families, 175 N.H. 596 (2023) 7
In re Omega Trust, 175 N.H. 179 (2022) 7
State by Tucker v. Gratta, 101 N.H. 87 (1957) 11
State (Haas Complainant) v. Rollins, 129 N.H. 684 (1987) 12
State (Premo Complainant) v. Martineau, 148 N.H. 259 (2002) 11
State v. Aberizk, 115 N.H. 535 (1975) 8, 13
State v. Boiselle, 83 N.H. 339 (1928) 11
State v. Cook, 125 N.H. 452 (1984) 8
State v. La Palme, 104 N.H. 97 (1962) 8, 12
State v. Lordan, 116 N.H. 479 (1976) 9
State v. Urban, 98 N.H. 346 (1953) 7
State v. Whippie, 114 N.H. 369 (1974) 8, 13
State v. Wilson, 7 N.H. 543 (1835) 11
United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000) 8
Waldron v. Tuttle, 4 N.H. 149 (1827) 12
Statutes RSA 41:10-a 7
RSA 105:4 11
RSA 592-A:7 8
Other Authorities Restatement (Second) of Agency (Oct 2023
update) 8
SUMMARY OF THE ARGUMENT
In New Hampshire, police officers have the authority to
prosecute criminal cases on behalf of the State. The power to
prosecute on behalf of a government implies the power to
promise that that government will not prosecute. At the time
he made the promise at issue, Officer David Torrisi was a
police officer in New Hampshire. Thus, he had actual
authority to promise that the State of New Hampshire would
not prosecute Rogers.
I. THE COURT ERRED BY DENYING ROGERS’S MOTION TO ENFORCE THE AGREEMENT THE STATE MADE WITH HIM. Rogers moved to dismiss the pending charges prior to trial. DBA* 12. He argued that Brookline Police Officer David Torrisi promised not to prosecute him if he took the breathalyzer and exhibited an alcohol content of less than .08 percent, which he did. DBA 12–14. The court denied the motion to dismiss on various grounds — that there was no “legal authority” for the proposition that contracts could be formed during the “booking process, ” AD 3, that the agreement was “verbal, ” AD 3, that there was no “meeting of the minds, ” AD 3, and that the contract was “against public policy, ” AD 3. The court did not find that Torrisi lacked authority to promise that the State would not prosecute Rogers. AD 3. In his opening brief, Rogers argued that the court erred by refusing to enforce the agreement not to prosecute him for any offense other than driving while suspended. SB 23–38. Rogers addressed all the grounds upon which the court relied in denying his motion. DB 26–38. The State, in its brief, argued, among other things, that Torrisi lacked authority to promise that the State would not prosecute Rogers. SB 15– 22. Rogers files this reply brief to address the State’s argument. This Court may consider alternative grounds for affirmance, not relied on by the trial court. Petition of N.H. Div. for Children, Youth & Families, 175 N.H 596, 602
(2023). In general, “[t]he existence of an agency relationship
is a question of fact.” Bergeron v. N.Y. Community Bank,
168 N.H. 63, 69 (2015). Questions of fact must be
determined, in the first instance, by the trial court.
In re Omega Trust, 175 N.H. 179, 185 (2022). Here, however,
as a matter of law, Torrisi had actual authority to promise
that the State would not prosecute Rogers. Thus, remand is
unnecessary.
Three undisputed premises lead to the conclusion that
Torrisi had actual authority to promise that the State would
not prosecute Rogers.
First, in New Hampshire, police officers have the
authority “to prosecute criminal cases on behalf of the State.”
Bilodeau v. Antal, 123 N.H. 39, 45 (1983) (emphasis omitted);
see also State v. Urban, 98 N.H. 346, 347 (police officers may
prosecute misdemeanors in municipal court “in behalf of the
State”) (1953); RSA 41:10-a (recognizing that police officers
have the authority to prosecute violations and
misdemeanors); RSA 592-A:7 (recognizing that criminal
prosecutions in the Circuit Court may be initiated by police
officers). “The legislature has permitted and even directed
police officers to prosecute minor criminal cases for more
than a century.” State v. Aberizk, 115 N.H. 535, 535 (1975).
“The prosecution by an arresting officer of misdemeanor cases
in our district and municipal courts has been common-place
from early times.” State v. Whippie, 114 N.H 369, 369
(1974); see also State v. Cook, 125 N.H. 452, 456 (1984)
(noting that, “[i]n the district courts..., the prosecutor is
usually a police officer”); State v. La Palme, 104 N.H 97, 98
(1962) (“The prosecution of misdemeanors by police officers is
a practice that has continued in one form or another since
1791 and is still permissible under existing statutes.”).
Second, t
he power to prosecute on behalf of a
government implies the power to promise that that
government will not prosecute. United States v. Flemmi,
225 F.3d 78, 87 (1st Cir. 2000). This is so because an agent’s
authority to engage in an activity on behalf of a principal
“includes authority to do acts which are incidental to it,
usually accompany it, or are reasonably necessary to
accomplish it.” Restatement (Second) of Agency § 35
(Oct. 2023 update).
The overwhelming majority of actual and potential criminal charges are resolved by plea agreements or similar resolution1. In many of these agreements, the prosecutor expressly promises to nolle pross existing charges or to refrain from filing new ones. Even when the prosecutor makes no such express promise, every plea agreement involves, unless disclaimed, an implied promise not to prosecute the defendant for other offenses that are part of the same transaction and within the prosecutor’s knowledge and jurisdiction. State v. Lordan, 116 N.H. 479, 482 (1976) 543, 545
(1835), it is not “instituted... in behalf of... the State.”
State by Tucker v. Gratta, 101 N.H. 87, 88 (1957). In a
private prosecution, the private citizen is “complainant” on
his or her own behalf. State (Premo Complainant) v.
Martineau, 148 N.H. 259, 260 (2002). When a police officer
files a complaint, in contrast, “[t]he... officer is the
complainant, not in his [or her] own behalf, but in behalf of
the [S]tate.” State v. Boiselle, 83 N.H. 339, 340 (1928);
see also Fletcher v. Merrimack County, 71 N.H 96, 102
(1901) (distinguishing between “the complainant, ” who
pursues private prosecutions and “the [S]tate, ” which pursues
public ones). Private prosecutors “ha[ve] no duty to the
public, ” while police officers and other public prosecutors
“prosecut[e] for the public benefit.” State (Haas Complainant)
v. Rollins, 129 N.H. 684, 686 (1987). It is for this reason that
the doctrine of prosecutorial immunity applies to the latter,
but not the former, id. at 685–87, and that unsanctioned
private prosecutions cannot be pursued with public funds,
Waldron v. Tuttle, 4 N.H. 149, 152 (1827). Because private
citizens, unlike police officers, are not authorized to prosecute
on behalf of the State, they have no authority to promise that
the State will not prosecute.
Finally, the State argues that even if police officers have
the authority to promise that the State will not prosecute,
they have that authority only “when... they are functioning
as... a prosecutor, ” by, for instance, “making charging
decisions, engaging in discovery, filing motions, etc.” SB 22.
When they are “functioning as... a police officer, ” by, for
instance, “pull[ing] a car over” or “conduct[ing] a roadside
investigation, ” it argues, they have no such authority. SB 22.
As this Court has repeatedly recognized, however, police
officers may perform prosecutorial functions at the same time
as they perform traditional law-enforcement functions. In
La Palme, this Court held that a police officer may testify as a
witness while prosecuting. La Palme, 104 N.H. at 98–99. In
Whippie, this Court held that a police officer may, while
prosecuting, “appear[] in uniform... and testify wearing his
side-arm in full view.” Whippie, 114 N.H. at 369. Finally, in
Aberizk, this Court reaffirmed that a police officer may testify
as “the arresting officer” while prosecuting. Aberizk, 115 N.H.
at 535.
Just as police officers may perform traditional law-
enforcement functions while prosecuting, they may perform
prosecutorial functions while engaged in traditional law-
enforcement tasks. That is exactly what Torrisi did here.
When he offered to forego prosecution if Rogers took the
breathalyzer test and exhibited an alcohol content below 08
percent, he was “making [a] charging decision[], ” SB 22, albeit
a contingent one, an activity the State concedes constitutes
“functioning as, and with the authority of, a prosecutor, “
SB 22.
For these reasons, Torrisi, as a matter of law, had
actual authority to promise that the State would not
prosecute.

CONCLUSION

WHEREFORE, Roy Rogers respectfully requests that this Court reverse.

Undersigned counsel requests 15 minutes oral argument.

This brief complies with the applicable word limitation and contains 1, 906 words.

Respectfully submitted,
By /s/ Thomas Barnard
Thomas Barnard, #16414
Deputy Chief Appellate Defender
Appellate Defender Program
10 Ferry Street, Suite 202
Concord, NH 03301

CERTIFICATE OF SERVICE

I hereby certify that a copy of this brief is being timely provided to Sam M. Gonyea, counsel for the State, through the electronic filing system’s electronic service.

/s/ Thomas Barnard
Thomas Barnard
DATED: October 2, 2023

Footnotes

  1. *

    Citations to the record are as follows: “AD” refers to the appendix to Rogers’s opening brief setting forth the appealed decision; “DB” refers to Rogers’s opening brief; “DBA” refers to the appendix to Rogers’s opening brief setting forth documents other than the appealed decision; “SB” refers to the State’s brief; “T” refers to the transcript of the two-day bench trial on November 15 and 29, 2021.

  2. Not every agreed resolution involves the defendant pleading guilty. Prosecutors often dismiss charges, or promise not to bring them, based on a defendant’s agreement to complete a diversion program, pay restitution, or remain of good behavior for a specified period of time.

  3. Rogers recognizes that, at any given time, a police department may assign prosecutorial tasks to all, some, or none of its police officers, just as a police department may assign some police officers, but not others, to patrol a particular section of the city or town. The question here, however, is one of legal authority under state law, not internal police department assignments. Just as any police officer has the legal authority, under state law, to arrest a suspect in any section of their town or city, regardless of their assigned section, RSA 105:4, any police officer has the legal authority to prosecute on behalf of the State, regardless of their assigned tasks.