This page is an unofficial LFoD record and is not legal advice. Verify the document against the official source before relying on it.

State of New Hampshire v. Michael R. Smith

December 18, 2023 - Brief

Official source

Case records

Open case page

Docket: 2022-0647

Date	Record Text	Type	Party	PDF
January 7, 2025	State v. Smith	Opinion	Supreme Court	Pre-Reporter
September 25, 2024	State of New Hampshire v. Michael R. Smith	Oral argument text	State of New Hampshire; Michael R. Smith
September 25, 2024	Sept 25 2024	Supreme Court oral argument calendar	-	PDF
December 18, 2023	State of New Hampshire v. Michael R. Smith Current page	Brief		PDF
November 28, 2023	Michael R. Smith v. State of New Hampshire	Brief	State of New Hampshire	PDF
September 1, 2023	State of New Hampshire v. Michael R. Smith	Brief		PDF
December 31, 2022	2022 Fourth Quarterly Status Report	Supreme Court case status list	-	PDF

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

No. 2022-0647

State of New Hampshire

Michael R. Smith

Appeal Pursuant to Rule 7 from Judgment

of the Strafford County Superior Court

REPLY BRIEF FOR THE DEFENDANT-APPELLANT

Jeremiah R. Newhall

Newhall Law Firm

1630 Empire Blvd., Suite 3

Webster, NH 14580

NH Bar # 21195

585-865-5441

(15 min. oral argument requested)

Page

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 3

REPLY ARGUMENT 4

I. This Court Has Rejected Retrospective Competency Determinations When There Has Never Been A Competency Hearing, And There Was None In This Case 4

II. Mr. Smith Preserved His Argument That The Government (a) Admitted It Was Uncertain The Restitution Numbers Were Correct, (b) Promised The Court And Defendant Additional Information, And Then (c) Refused To Provide That Information 5

III. Applying Plain Error Review, The State’s Own Brief Asserts That The Restitution Amount Was Incorrect. Because No One Defends The Restitution Calculation In The Judgment, The Error Was Plain 8

CONCLUSION 11

TABLE OF AUTHORITIES

Page

Cases State v. Bertrand, 123 N.H. 719, 465 A.2d 912 (1983) 4, 5

State v. Haycock, 146 N.H. 5, 766 A.2d 720 (2001) 5

State v. Stiles, 123 N.H. 680, 465 A.2d 908 (1983) 4, 5

State v. Stillwell, 172 N.H. 591, 232 A.3d 363 (2019) 9

REPLY ARGUMENT

I. This Court Has Rejected Retrospective Competency

Determinations When There Has Never Been A

Competency Hearing, And There Was None In This

Case.

The State asks, in its alternative argument, that this

Court consider remand for a “retrospective” competency

hearing. This Court should follow its own precedent and

reject that invitation.

In State v. Bertrand, this Court provided a simple rule:

When there has never been a competency hearing, a

retrospective competency hearing would be unfair to the

defendant. State v. Bertrand, 123 N.H. 719, 727, 465 A.2d

912, 916 (1983) (“We believe that the defendant in this case

should receive a new trial, however. Otherwise, he would run

the risk of an erroneous retrospective determination of

competency in the absence of a record of a hearing on the

competency issue at the time of his trial.”) (bold added).

This Court in Bertrand contrasted that ruling with its earlier

ruling in State v. Stiles allowing a retrospective competency

ruling, a difference this Court explained arose “in light of fact

that record existed of competency hearing at time of trial.” Id.

at 727, citing State v. Stiles, 123 N.H. 680, 685, 465 A.2d 908,

911 (1983).

In both cases cited by the State, this Court’s decision

permitting a retrospective competency hearing began with the

words: “Because there is a record of the [pretrial] competency

hearing.” See, e.g., State v. Haycock, 146 N.H. 5, 9, 766 A.2d

720, 724 (2001) (“Because there is a record of the pretrial

competency hearing…”); State v. Stiles, 123 N.H. 680, 685,

465 A.2d 908, 911 (1983) (“Because there is a record of the

competency hearing held in the superior court…”). The State

does not dispute there was no such hearing in this case.

And the failure to hold a pretrial hearing on competency

was particularly injurious to Mr. Smith because he

represented himself during what should have been his second

competency hearing. Mr. Smith objected to the new

examiner’s entire report, but instead of being allowed to

cross-examine the witness or to make his own arguments at a

hearing, Mr. Smith was told there would be no hearing, only

written argument from his “stand-by” attorney. On this

record, as in Bertrand, Mr. Smith would unfairly face the “risk

of an erroneous retrospective determination of competency”

because there was never “a hearing on the competency issue

at the time of his trial.” Bertrand, 123 N.H. at 727.

II. Mr. Smith Preserved His Argument That The

Government (a) Admitted It Was Uncertain The

Restitution Numbers Were Correct, (b) Promised The

Court And Defendant Additional Information, And Then

The State argues that Mr. Smith has waived challenges

to restitution, because he did not raise the concern during the

sentencing hearing and did not timely file a motion to

reconsider. The State is incorrect. To determine Mr. Smith’s

deadline to file his motion seeking a further hearing on

restitution, App. 400, the relevant question is when the State

filed with the Court its promised additional information about

restitution. The answer to that question is “never, ” so

Mr. Smith was not dawdling when he filed his motion for a

further hearing on the State’s failure to provide the promised

documentation for restitution. The trial court should have

held the State to its word or else held a hearing on why

further information should now be excused.

Contra the State’s Br. 43, confusion here did not arise

from any witness’s testimony but from the State’s conduct.

The State told the Court and the Defendant that the

restitution numbers might be inaccurate:

MR. GAROD: Let me bring something

to the Court's attention before we

proceed. I just want to make sure

that my representation to the record

is 100 percent accurate. So the

restitution figure came from the money

that was spent out of the Citizen's

Bank account; the money that was

spent out of the Northeast Credit

Union account; and the money that

was transferred from Mary Kibbe's

Northeast Credit Union account into a

newly created Northeast Credit Union

account solely name of Michael Smith.

A lot of that money was withdrawn, it was the 200 thousand dollars in cash that we heard about in the trial; the money that was spent on purchasing the vehicle and the trailers, et cetera. But as the evidence in the trial showed, there as [sic] still a substantial amount of money in that account when it was frozen by Northeast Credit Union. I believe that that money is still there because it is an account solely in the name of Michael Smith and that they were not able to transfer it elsewhere. I should have verified that before coming to court today. So there is at least a potential that has been repaid to the estate. So I don't want him to be ordered to pay more than, potentially, he needs to be. So I believe that the figure that has been represented by the State is the correct figure. And I believe that that money that's sitting in Mr. Smith's account could easily be transferred to the estate and satisfied a portion of that restitution figure. I believe it's roughly 109 thousand dollars. But I would ask the Court -- or what I would suggest is that later today, I will verify that; file a pleading with the Court that we'll inform the Court as to the status of that, approximately 109 thousand dollars that remained in Mr. Smith's personal Northeast Credit Union account just to make sure that he's not charged for restitution that has already been satisfied. THE COURT: Mr. Smith, do you wish to comment at all on that particular issue? MR. SMITH: No, Your Honor. SH 35:21-37:8 (bold added). Thus, it was the State that raised concerns about the restitution amount being incorrect and promised to provide the Court (and impliedly Mr. Smith) with additional information. Without that additional information, in the State’s own words, the record would not be “100% accurate.” SH 35:23. The State never came forward with additional information or documentation. Mr. Smith waited a reasonable period in reliance on the State to keep its word, and when it was clear it would not, he filed a motion seeking a further hearing to find out why. App. 400. The State opposed the motion without ever acknowledging its promise or the concern about inaccuracy raised by the State and agreed to by Mr. Smith. App. 404. The trial court then denied the motion. That was error, and Mr. Smith preserved review of that error. III. Applying Plain Error Review, The State’s Own Brief Asserts That The Restitution Amount Was Incorrect. Because No One Defends The Restitution Calculation In The Judgment, The Error Was Plain. The State argues that any review of restitution is limited to plain error review. “For [this Court] to find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” State v. Stillwell, 172 N.H. 591, 608, 232 A.3d 363, 376 (2019) 4, 000

too high—and would be even further reduced by accounting

for the funds that the State itself suggested may have already

been recovered. App. Br. 34. The State’s brief puts forth its

own loss calculation and posits that the correct loss amount

was “$508, 345.51, more than the court’s $495, 043.53 order.”

State’s Br. 41. No one defends as accurate the court’s finding

of $495, 043.53. That is error, and it is plain that no party

defends it.

The trial court also committed a legal error when it

denied Mr. Smith’s motion for a further hearing. The State

introduced ambiguity into the amount of restitution,

spontaneously raising doubt about the accuracy of the

restitution order. Mr. Smith sought a further hearing on

restitution because he had agreed with the State that it

should provide more information about the statute of the

account funds and whether they had been recovered. Funds

already restored to a victim are not subject to restitution

because they are not a “loss.” RSA 651:62.

The trial court’s denial of a further hearing on

restitution was plain error because no party defends

calculations supporting the restitution amount ordered, and

because the State promised to provide additional information

critical to setting a correct restitution amount and refused to

do so. Those plain errors affect Mr. Smith’s substantial rights

and the fairness of the proceedings.

CONCLUSION

WHEREFORE, Defendant-Appellant respectfully requests that this Court reverse the judgment below, vacate the convictions, and remand for a new trial.

This brief complies with the applicable word limitation and contains 1787 words.

Respectfully submitted,

By___/s Jeremiah R. Newhall_______

Jeremiah R. Newhall

Newhall Law Firm

1630 Empire Blvd.

Webster, NH 14580

NH Bar # 21195

585-865-5441

CERTIFICATE OF SERVICE

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.

___/s Jeremiah R. Newhall_______ Jeremiah R. Newhall

DATED: December 18, 2023