State v. Scovill

9 Citing cases

  1. In re Kevin Gendron

    157 N.H. 314 (N.H. 2008)   Cited 15 times
    Concluding that, “[b]y signing the acknowledgment, the mother, by her own volition, accepted that the father is the child's biological father,” and that “[a]ccordingly ... the acknowledgment now has the same force and effect as a Massachusetts court judgment”

    She also never asserted it to the trial court, and the trial court did not consider it in reaching its decision. We generally decline to address issues raised for the first time during oral argument, see, e.g., Petition of Beauregard, 151 N.H. 445, 449, 859 A.2d 1153 (2004) (declining to reach the merits of an argument raised by the appellee for first time at oral argument); State v. Scovill, 144 N.H. 409, 414, 743 A.2d 303 (1999) (declining to reach merits of State's harmless error argument raised for first time at oral argument); cf. Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 617-18, 529 A.2d 976 (1987) (court will not address an issue raised for the first time on appeal in a reply brief), because, otherwise “a party [could] wait until oral argument and then surprise opposing counsel with a new issue not previously addressed in that party's brief,” Scovill, 144 N.H. at 414. “There is a fundamental unfairness in not adequately and fully presenting one's position in the brief and waiting until oral argument to clarify it.”

  2. In re Grand

    155 N.H. 557 (N.H. 2007)   Cited 10 times
    Stating that legislature is institutionally better equipped to decide whether adopting new privilege is in society's best interests

    The petitioner did not brief this argument, although a footnote in his brief alluded to it. Assuming, without deciding, that the petitioner has standing to raise an argument based upon the social worker's Garrity rights, we decline to address it because: (1) he did not brief it, see State v. Scovill, 144 N.H. 409, 414, 743 A.2d 303 (1999); (2) he did not raise it before the trial court and, thus, did not preserve it for our review, see Miller v. Blackden, 154 N.H. 448, 457, 154 N.H. 448, 913 A.2d 742 (2006); and (3) it was the subject of a trial court order that is not part of this appeal. This issue was raised before the trial court by the social worker in his motion to intervene, not by the petitioner.

  3. State v. Pelletier

    149 N.H. 243 (N.H. 2003)   Cited 20 times
    Holding as privileged any conversation or act performed by a spouse "attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation"

    We agree that the trial court did not issue a limiting instruction, but the record is clear that the defendant neither asked for such an instruction, nor objected to the trial court's failure to give one. As such, he cannot now complain of error. State v. Simonds, 135 N.H. 203, 207 (1991); see State v. Scovill, 144 N.H. 409, 413 (1999). Second, the defendant contends that "when a prior consistent statement is admitted to rebut a charge of recent fabrication as contemplated under Rule 801(d)(1)(B), it is admitted substantively" and the State is "required to make an affirmative showing, and the trial court must make findings, that the statement was made before a motive to fabricate came into being."

  4. State v. Mitchell

    166 N.H. 288 (N.H. 2014)   Cited 8 times
    Holding that exclusion of evidence of defendant's offers to take polygraph examination did not create misleading impression where defendant was allowed to elicit other evidence that he adamantly denied guilt and observing that "the doctrine of completeness does not require the admission of otherwise inadmissible evidence simply to bolster a defendant's claim of innocence"

    The doctrine of completeness does not require the admission of otherwise inadmissible evidence simply to bolster a defendant's claim of innocence, but rather exists to correct misleading impressions by omission. SeeBotelho, 165 N.H. at 761–62, 762–63, 83 A.3d at 823, 824 ; State v. Scovill, 144 N.H. 409, 413, 743 A.2d 303 (1999) ; State v. McSheehan, 137 N.H. 180, 183, 624 A.2d 560 (1993). Inasmuch as the record supports the trial court's view that excluding evidence of the polygraph offers did not create a misleading impression, we do not find the trial court's decision to exclude the offers untenable or unreasonable to the prejudice of the defendant's case.

  5. Petition of Beauregard

    859 A.2d 1153 (N.H. 2004)   Cited 4 times
    Declining to reach the merits of an argument raised by the appellee for first time at oral argument

    The petitioners did not, however, present this argument in their brief; nor was it raised below and considered by the superior court. We, therefore, do not reach the merits of the petitioners' argument. See State v. Scovill, 144 N.H. 409, 414 (1999). RSA 195:16-c provides for the appointment of an agent "if there shall arise an occasion which shall require the doing of any act or thing by or in behalf of a pre-existing district which has ceased to exist by reason of its inclusion in a cooperative school.

  6. State v. Bader

    148 N.H. 265 (N.H. 2002)   Cited 38 times
    Upholding trial court's determination of an absence of “sine qua non” on the part of the State in return for its witness's testimony and allowing cross-examination of the witness “regarding the terms and his understanding of his plea agreement, even if that understanding differed from the actual agreement”

    Accordingly, we decline to address it. See State v. Scovill, 144 N.H. 409, 414 (1999). We next turn to the defendant's claim that the admission of Dr. Fieseher's testimony violated his rights under the Confrontation Clause of the Sixth Amendment.

  7. State v. Francoeur

    146 N.H. 83 (N.H. 2001)   Cited 6 times

    Although not ruled upon by the trial court, the State contends that the victim's assertion satisfies the medical diagnosis or treatment exception to the hearsay rule. While we will uphold a trial court's admission of evidence on erroneous grounds if alternative grounds for admission exist, see State v. Scovill, 144 N.H. 409, 410-11 (1999), whether the victim's assertion meets the medical diagnosis and treatment exception to the rule against hearsay requires factual findings, which we cannot make in the first instance. See Dunn v. CLD Paving, 140 N.H. 120, 123 (1995) ("We do not find facts in the first instance. . . .").

  8. State v. Tucker

    145 N.H. 723 (N.H. 2001)   Cited 5 times
    Affirming on alternative grounds the trial court's ruling on the admissibility of a statement allegedly obtained in violation of Miranda

    See State v. Santana, 133 N.H. 798, 807-09, 586 A.2d 77, 83 (1991). In order to fully address this issue, we requested that the parties submit supplemental memoranda on whether we should consider a preservation argument raised for the first time at oral argument, see State v. Scovill, 144 N.H. 409, 414, 743 A.2d 303, 308 (1999) (declining to address issue raised for the first time during oral argument), and what obligation, if any, a non-appealing party has to preserve an issue for our review. The defendant argues that contesting preservation is not raising a new issue within the meaning of Scovill; rather, it is a rebuttal to an issue raised in a responding brief and, therefore, appropriate for a reply brief, see Panas v. Harakis K-Mart Corp., 129 N.H. 591, 617-18, 529 A.2d 976, 992 (1987), or oral argument.

  9. State v. Patterson

    145 N.H. 462 (N.H. 2000)   Cited 10 times
    Construing statutes dealing with similar subjects "so that they lead to reasonable results and do not contradict each other"

    Accordingly, the issue is not preserved for appeal, and we decline to review it. See State v. Scovill, 144 N.H. 409, 414, 743 A.2d 303, 308 (1999) (party precluded from raising an issue for the first time at oral argument). Affirmed.