Preview:

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

Hillsborough-southern judicial district No. 2010-439

THE STATE OF NEW HAMPSHIRE v. COREY FURGAL Argued: September 15, 2010 Opinion Issued: November 24, 2010 Michael A. Delaney, attorney general (Michael S. Lewis, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Corey Furgal, appeals an order of the Superior Court (Groff, J.) finding RSA 597:1-c (Supp. 2009) constitutional on its face and denying the defendant's request for bail. We affirm. The following facts are relevant to the disposition of this case. In the early morning hours of November 1, 2009, Christopher Vydfol was stabbed to death in Merrimack. Several witnesses identified the defendant as the assailant, and the grand jury subsequently indicted him on alternative counts

of second degree murder. The State requested that he be held without bail while awaiting trial in accordance with RSA 597:1-c. The defendant argued that the statute denied him due process because it bars the court from considering any facts other than those related to the strength of the State's evidence of guilt and that, alternatively, if the statute is constitutional, the State must demonstrate his guilt beyond a reasonable doubt to deny bail pending trial. The trial court disagreed, ruling that the statute "narrowly focuses on a particularly acute problem in which the Government interests are overwhelming," and that flight risk and dangerousness are inherently considered in the "proof is evident" analysis. The trial court also ruled that once the State sustained its burden under the statute, the burden would shift to the defendant to rebut the State's case, and that the court could then consider the defendant's risk of flight or dangerousness before holding him without bail. Finally, the trial court ruled that the State must prove by clear and convincing evidence that the defendant will be convicted of an offense that carries a potential life sentence in order to deny bail under the statute and found that the State had sustained its burden in this case. This appeal followed. In New Hampshire, the general rule regarding pretrial release is that "all persons arrested for an offense shall be eligible to be released pending judicial proceedings." RSA 597:1 (2001). Except for certain categories of arrestees, the release of a defendant pending trial is governed by RSA 597:2, I(a) and (b) (Supp. 2009). Under RSA 597:2, I(a) the court must release the defendant on personal recognizance or upon execution of an unsecured appearance bond with additional non-monetary conditions including that the defendant not commit a crime during the period of his release and "such further condition or combination of conditions that the court may require." RSA 597:2, II (Supp. 2009) (provisions governing release under RSA 597:2, I(a)). To deny release under RSA 597:2, I(a), the court must determine that "such release will not reasonably assure the appearance of the person as required or will endanger the safety of the person or of any other person or the community." RSA 597:2, II. Only if the court makes that determination can it consider the conditions, including monetary conditions, authorized by RSA 597:2, I(b) and the provisions governing such release in RSA 597:2, III (Supp. 2009). The latter section authorizes the court to consider monetary conditions including "bail . . . with sufficient sureties or by deposit of moneys equal to the amount of bail." RSA 597:2, III(b)(2).

2

RSA 597:1-c, which is the subject of this appeal, is an exception to the general rule that all persons are eligible to be released pending trial. It provides that if a person has been charged with a crime punishable by life in prison and the State can show that "the proof is evident or the presumption great" that the defendant will be convicted, the defendant must be held without bail pending trial. RSA 597:1-c. Unlike bail provisions in some states that give the court discretion in denying bail, see, e.g., MICH. CONST. art. I,

Download 2010-439, State of New Hampshire v. Corey Furgal.pdf

New Hampshire Law