State v. Gross
| Decision Date | 31 October 1977 |
| Docket Number | Nos. 7615,7829,s. 7615 |
| Citation | 117 N.H. 853,379 A.2d 804 |
| Parties | The STATE of New Hampshire v. Robert D. GROSS. |
| Court | New Hampshire Supreme Court |
David H. Souter, Atty. Gen., and Richard B. McNamara, Concord, Atty., for the state.
Devine, Millimet, Stahl & Branch, Manchester, and McSwiney, Jones & Semple, Concord (Shane Devine, Manchester, orally), for defendant.
The defendant was found guilty of criminal contempt for violating an injunction issued by the Rockingham County Superior Court on August 20, 1976. During the course of trial, defendant excepted to the denial of his motion for a directed verdict of acquittal at the close of the state's evidence and excepted to the finding of guilty and the imposition of sentence. After filing a reserved case, defendant filed a motion for new trial based on newly discovered evidence. A hearing was held under an agreement that the trial court would hear the evidence that would have been presented at a new trial and the motion was therefore waived. After the hearing, the Trial Court (Bois, J.) reaffirmed its finding of guilt. Defendant excepted to this ruling. All questions of law raised by the defendant's exceptions were reserved and transferred.
Properties, Inc. and Public Service Company of New Hampshire own a tract of land in Seabrook upon which a nuclear power plant is being constructed. These two owners of the property, joined by various labor unions which had members working on the construction of the nuclear power plant, petitioned the superior court for an injunction alleging that twenty-one named individuals "and other persons and groups of persons whose names are unknown, a/k/a Clamshell Alliance, John Doe and Jane Doe" intended to occupy the Seabrook construction site in order to protest the construction of the power plant. The defendant's name was not included as a party defendant in the petition. On August 20, 1976, the superior court issued a temporary injunction enjoining the "named defendants, and all members of the groups named in the petition" from entering or occupying the site without the express permission of the plaintiffs; obstructing the entrance or exit of the site; destroying or damaging any property on the site; or committing any other act that would obstruct the activities of the Public Service Company on the site.
The demonstration which the injunction sought to prevent occurred on August 22, 1976. The defendant was present at the demonstration acting as a legal observer at the request of the New Hampshire Civil Liberties Union. Various individuals, including the defendant, testified at the trial that a legal observer's function is to act as a neutral witness to insure that civil rights are observed, violence does not occur, and unfounded allegations against law enforcement officials are not made. Three of them were attorneys, all of the other 15 were either law students, paralegals, or otherwise trained in law. The defendant entered the site to discuss various matters with law enforcement officials, and was on the premises when the demonstrators entered the construction site and were arrested. The record indicates that at some point between the time the demonstrators entered the premises and when the arrests commenced, the defendant and two other observers received permission to remain on the premises by a representative of Public Service Company. The record is in conflict on whether the defendant had permission to originally enter the premises. This issue, however, was resolved against the defendant by the trial court's finding of guilty. The defendant was not arrested at the site, as were the demonstrators. He was arrested three days later by the sheriff's department at his law office in Manchester.
Criminal contempt proceedings in this state are based on an affidavit reciting the contemptuous acts alleged to have been committed by the defendant followed by the issuance of a warrant of attachment of his person to answer before the court to the charges made. See Douglas, Civil and Criminal Contempt in New Hampshire, 17 N.H.B.J. 13, 24-25 (1975). The affidavit in this case set forth the elements of the charges against the defendant: They are the following: (1) an injunction existed prohibiting certain named individuals and organizations "from entering upon or occupying without express permission of the owners thereof a certain tract of land located in Seabrook"; (2) by its terms this order temporarily enjoined one Robert D. Gross "from going upon or occupying the land described in said order"; (3) Robert D. Gross "was duly notified of the temporary injunction"; (4) Robert D. Gross "without authority did intentionally, and with knowledge of the Court's injunction, go upon the . . . site . . . and did thereby engage in conduct which was in violation of the said injunction and constituted a...
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...444 U.S. 915, 100 S.Ct. 229, 62 L.Ed.2d 169 (1979). 9 The Court has had first-hand experience, both as trial counsel, State v. Gross, 117 N.H. 853, 379 A.2d 804 (1977), and as trial judge, Santasucci v. Gallen, 607 F.2d 527 (1st Cir.1979), with the continuing controversy over the constructi......
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