State v. Furgal, 2010–439.

CourtSupreme Court of New Hampshire
Citation13 A.3d 272,161 N.H. 206
Docket NumberNo. 2010–439.,2010–439.
PartiesThe STATE of New Hampshirev.Corey FURGAL.
Decision Date24 November 2010

161 N.H. 206
13 A.3d 272

The STATE of New Hampshire

No. 2010–439.

Supreme Court of New Hampshire.

Argued: Sept. 15, 2010.Opinion Issued: Nov. 24, 2010.

[13 A.3d 274]

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.

[161 N.H. 208] 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 [161 N.H. 209] 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,

[13 A.3d 275]

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).

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 [161 N.H. 210] 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, § 15 (“bail may be denied ... when the proof is evident or the presumption great”), RSA 597:1–c leaves the court with no discretion where the proof is evident or the presumption great. In such cases, a person “ shall not be allowed bail.” (Emphasis added.)

On appeal, the defendant argues that RSA 597:1–c violates his due process rights because it limits the court's consideration of individual factors such as flight risk or dangerousness. He further contends that the trial court erred in finding that the statute shifts the burden to the defendant after the State meets its initial burden. Finally, he argues that the State must prove beyond a reasonable doubt that the defendant will be convicted of an offense that carries a potential life sentence, rather than by clear and convincing evidence.

The defendant has mounted a facial challenge to RSA 597:1–c. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). To analyze his facial challenge, we first must determine how the statute is to be construed and then whether that construction can withstand a facial challenge.

“We review a trial court's interpretation of a statute de novo.

[13 A.3d 276]

State v. Lamy, 158 N.H. 511, 515, 969 A.2d 451 (2009). “We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole.” Id. “We begin by examining the language of the statute and ascribe the plain and ordinary meaning to the words used.” Id. (citations omitted). “We interpret legislative intent from the statute as written and will neither consider what the legislature might have said nor add language that the legislature did not see fit to include.” Id. “We also interpret a statute in the context of the overall statutory scheme and not in isolation. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme.” State v. Jennings, 159 N.H. 1, 3, 973 A.2d 340 (2009) (quotation and ellipses omitted). “[I]n reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds.” State v. Gubitosi, 157 N.H. 720, 727, 958 A.2d 962 (2008).

RSA 597:1–c provides that “[a]ny person arrested for an offense punishable by up to life in prison, where the proof is evident or the [161 N.H. 211] presumption great, shall not be allowed bail.” Since in this state defendants are ordinarily entitled to bail prior to trial, it is the State that must bear the burden under the statute. See Martinez v. Superior Court, In & For County of Pima, 26 Ariz.App. 386, 548 P.2d 1198, 1199 (1976). Furthermore, “the State is in a position superior to that of the accused to produce evidence during a hearing because it already will have presented evidence in the process of charging the person. Otherwise, placing the burden on the accused is, in effect, forcing him to prove a negative.” Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478, 487 (App.2004) (quotations and brackets omitted).

The plain language of the statute thus requires the State to show first that the person is charged with an offense punishable by up to life in prison and then show that the proof is evident or the presumption great. Nothing in the language of the statute permits the court to consider factors such as flight risk or dangerousness, and we will not “add language that the legislature did not see fit to include.” Lamy, 158 N.H. at 515, 969 A.2d 451. The “proof is evident” analysis focuses solely upon the strength of the evidence against a defendant charged with a crime punishable by life in prison. See Simpson, 85 P.3d at 494 (plain language of bail statute using identical “proof is evident” phrase does not require that a risk of flight or recidivism be considered before bail is denied and the court will not rewrite the language of the provisions).

Additionally, contrary to the trial court's order, the plain language of the statute does not shift the burden of proof to the defendant once the State establishes that the proof is evident or the presumption great. The plain language of the statute provides that once the State meets its burden, the defendant “shall not be allowed bail.” RSA 597:1–c.

We thus conclude that the plain language of RSA 597:1–c does not permit the trial court to consider factors such as flight risk or dangerousness. Accordingly, we turn to whether, as construed, the statute violates due process. We begin our analysis with a brief review of bail in the Anglo–American legal system.

Bail emerged in medieval England as an effort to “implement the promise of the famous 39th chapter of Magna Carta that ‘no freeman shall be arrested, or detained in prison unless by the law of the land.’ ” Foote, The Coming Constitutional Crisis In Bail: I, 113 U. Pa. L.Rev. 959, 965–66 (1965) (ellipses omitted). Subsequently,

[13 A.3d 277]

several significant developments in English law established the framework for what would later become American bail procedures. The Statute of Westminster of 1275 delineated which crimes would be bailable and which crimes would not. D. Freed & P. Wald, Bail in the United States: 1964 1 (1964). The [161 N.H. 212] Petition of Right of 1628 established that no man could be imprisoned without being informed of the charges against him and thus ensured that a determination would be made as to whether a defendant had the right to release on bail. Foote, supra at 966–68. The Petition was a response to several high profile cases...

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