State v. Flynn

• Decision Date: 07 July 1983
• Docket Number: Nos. 83-115,83-212,s. 83-115
• Citation: 123 N.H. 457,464 A.2d 268
• Parties: , 43 A.L.R.4th 1145 The STATE of New Hampshire v. John P. FLYNN, Jr.
• Court: New Hampshire Supreme Court

Page 268

464 A.2d 268

123 N.H. 457, 43 A.L.R.4th 1145

The STATE of New Hampshire v. John P. FLYNN, Jr.

Nos. 83-115, 83-212.

Supreme Court of New Hampshire.

July 7, 1983.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on the brief and orally), for the State.

Vincent J. Nardi (on brief), Manchester, and Lawrence F. O'Donnell (on brief), Boston, Mass., for defendant.

CANN, Justice.

The State brought a petition for a writ of prohibition to vacate a ruling of the Superior Court (Pappagianis, J.) which suppressed certain financial records because they were obtained in contravention of the New Hampshire Right to Privacy Act, RSA chapter 359-C (Supp.1981). The State also challenged the defendant's standing to assert the rights of third parties in his motion to suppress the evidence obtained from the third parties' financial accounts relying on alleged violations of RSA chapter 359-C (Supp.1981). This question is before us upon an interlocutory transfer without ruling. For the reasons set forth, we dismiss the petition and, with regard to the interlocutory transfer, remand for findings consistent with this opinion.

In April 1981, the Hillsborough County Grand Jury petitioned the superior court to issue a subpoena duces tecum for certain financial records maintained in the name of the defendant and/or his wife, Joan Flynn, maintained at several Manchester area banks. The grand jury requested these records in connection with its investigation of John P. Flynn, an attorney, who was suspected of theft crimes related to the "Stewart-Meyers" case and to alleged improper activities of certain of the defendant's clients. The petition stated that the grand jury had "found probable cause that the records set forth below contain evidence of possible criminal offenses" involving Flynn and others unnamed. On June 8, 1981, the Superior Court (Flynn, J.) issued the requested subpoena, and the State acquired the specified documents.

In June 1982, the grand jury again petitioned the superior court to issue a subpoena duces tecum for additional financial records in connection with its investigation of John Flynn. This petition requested "[a]ny and all records including but not limited to: deposit records, cancelled checks, bank statements ... relating to a joint savings account of Mildred M. Flynn [the defendant's mother] and Blanche M. Waddick [the defendant's grandmother]." The Superior Court (Pappagianis, J.) issued the subpoena on June 15, 1982. The requested financial records were obtained, and the grand jury thereafter returned thirteen indictments against the defendant on various theft offenses.

Although each of the two petitions was approved by a different superior court judge, neither judge made an independent finding of probable cause before issuing the subpoena. Prior to trial, the defendant filed a motion to suppress the evidence obtained from the banks pursuant to these subpoenas. He contended that the evidence and information received by the grand jury pursuant to the subpoenas were not described with the requisite particularity, and that the subpoenas were not supported by a judicial finding of probable cause, as required by RSA 359-C:10, II (Supp.1981). He also contended, inter alia, that the failure to provide him with notice as required by RSA 359-C:10, III (Supp.1981) in itself necessitated suppression of the evidence obtained from the banks.

After a hearing on the motion to suppress, the trial judge, who incidently had approved one of the two challenged grand jury subpoenas, ruled that the subpoenas were invalid because RSA 359-C:10, II (Supp.1981) requires the superior court judge who signs and authorizes the issuance of the subpoena to make the finding of probable cause. The judge further held that suppression of the evidence obtained pursuant to the invalid subpoenas was the appropriate remedy for violations of RSA 359-C:10, II (Supp.1981). The State challenges the court's rulings by means of a petition for writ of prohibition because the State's request for leave to bring an interlocutory appeal of these rulings was denied by the trial court. The trial court, however, did permit an interlocutory transfer of issues regarding the defendant's standing to challenge the admissibility of evidence obtained from the accounts of the defendant's wife, mother and grandmother.

I. Petition for Writ of Prohibition

We first resolve the State's petition for a writ of prohibition in regard to the trial court's ruling suppressing bank records of the defendant obtained by the State by means of the subpoena issued in June 1981.

"A writ of prohibition is an extraordinary writ issued to prevent the exercise of jurisdiction not granted, and is to be used with caution and forbearance." Wyman v. Durkin, 114 N.H. 781, 783, 330 A.2d 772, 773 (1974). Our criteria in reviewing a petition for writ of prohibition is that we will not exercise this extraordinary action, unless there is a clear case of necessity. Hillsborough v. Superior Court, 109 N.H. 333, 334, 251 A.2d 325, 326 (1969). When there is no other remedy, this court may exercise its supervisory powers and countermand, by means of a writ of prohibition, a trial court's order which is not supported by any legal authority. State ex rel. Regan v. Superior Court, 102 N.H. 224, 226-27, 153 A.2d 403, 404-05 (1959). Accordingly, we must determine whether the trial court in this case was without any legal authority to support its order to suppress the various financial records.

The State's argument that a judicial finding of probable cause is not required by the statute is twofold: first, that the plain reading of RSA 359-C:10, II (Supp.1981) is that the grand jury, not the judge, makes the finding of probable cause upon which the issuance of a subpoena is conditioned; and second, that, even if the statute's language is ambiguous, the trial court erred in interpreting it to require that a judge make the finding of probable cause prior to the issuance of a subpoena. Alternatively, the State argues that even if the statute requires a superior court judge to make a finding of probable cause prior to issuing a subpoena, suppression of evidence obtained pursuant to a subpoena issued without such a finding is not the appropriate remedy.

"It is well established law that the words in the statute itself are the touchstone of the legislature's intention." Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040, 453 A.2d 1295, 1296 (1982) (citations omitted). When the language used in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction. Corson v. Brown Prod., Inc., 119 N.H. 20, 23, 397 A.2d 640, 642 (1979). Although the legislature is not compelled to follow technical rules of grammar and composition, a widely accepted method of statutory construction is to read and examine the text of the statute and draw inferences concerning its meaning from its composition and structure. 2A Sutherland, Statutes and Statutory Construction § 47.01, at 70 (Sands ed. 1973). "This court ascribes to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise." Silva v. Botsch, 120 N.H. 600, 601, 420 A.2d 301, 302 (1980); see RSA 21:2.

RSA 359-C:10, II (Supp.1981) states that "[a] grand jury, upon resolution adopted by a majority of its members, may obtain financial or credit records pursuant to a judicial subpoena or subpoena duces tecum which, upon a showing of probable cause, is personally signed and issued by a judge of the superior court." The statute clearly requires a finding of probable cause prior to issuance of a subpoena. (Emphasis added).

The term "judicial" is key to understanding the intent of the above passage. The adjective "judicial" means "ordered or enforced by a court ... [or] belonging to or appropriate to a judge or the judiciary...." Webster's Third New International Dictionary 1223 (1961). It describes an act involving the exercise of judgment or discretion, as distinguished from a mere ministerial act. Black's Law Dictionary 759 (rev. 5th ed. 1979). Therefore, a judicial subpoena issued under the statute is one ordered or enforced by the court upon a showing of probable cause.

Thus, a reasonable reading of RSA 359-C:10, II (Supp.1981) is that a grand jury, if a majority so votes, may request a judicial subpoena or a judicial subpoena duces tecum in order to obtain financial records governed by RSA chapter 359-C and that a judge issue and sign such a subpoena if there is a showing of probable cause. Therefore, we hold that the trial court in this case did not act without legal authority when it ruled that a judge must determine whether there is probable cause prior to issuing a subpoena for bank records pursuant to this statute.

The State argues that suppression is not an appropriate remedy for violations of the statute because RSA chapter 359-C does not specifically provide for suppression of evidence as a remedy for such a violation. The State supports its argument that suppression is an inappropriate remedy by pointing to the sections of the statute which provide criminal penalties for anyone who knowingly violates its provisions and provides for injunctive relief, contending that these remedies are exclusive. See RSA 359-C:12 through :14 (Supp.1981).

The State's argument is not convincing. Merely because the legislature wanted to penalize willful violators of the privacy act does not mean that it intended to eliminate the judicial and equitable remedy of suppression of wrongfully acquired evidence in a criminal proceeding. Contrary to the State's argument, RSA 359-C:14 (Supp.1981) provides in part:

"In addition to any other remedy contained in this chapter or otherwise available, injunctive relief shall be available to any customer aggrieved by a violation, or threatened violation, of this chapter in the same manner as such injunctive relief would be...