Summary
The New Hampshire Supreme Court reversed Derek Sean Pierce’s harassment conviction under RSA 644:4, I(f). The court held that even if the statute’s clause concerning lawful or constitutionally protected communications were treated as an affirmative defense, the statute would be unconstitutionally overbroad under the New Hampshire Constitution. The court did not reach Pierce’s federal constitutional or vagueness claims.
Topics
Practice areas
Questions Presented
- Whether RSA 644:4, I(f) and III unconstitutionally shifted to the defendant the burden of disproving an element of harassment.
- Whether, if the statutory savings clause constituted an affirmative defense rather than an element of the offense, RSA 644:4, I(f) was unconstitutionally overbroad under the New Hampshire Constitution because it criminalized protected speech.
Holdings
- The court did not need to decide whether the clause stating that the communication must not be for a lawful purpose or constitutionally protected was an element of the offense or an affirmative defense, because the statute was unconstitutional even under the State's proposed affirmative-defense construction.
- RSA 644:4, I(f) was unconstitutionally overbroad under Part I, Article 15 of the New Hampshire Constitution because, if the savings clause were treated as an affirmative defense, the statute would criminalize protected speech and would be no narrower than the harassment statute previously invalidated in State v. Brobst.
Key quotations
“Even if we assume that, under Bell, the savings clause is an affirmative defense, the statute is unconstitutional.” (152 N.H. at 793)
“So construed, the statute would be unconstitutionally overbroad as it would be no narrower than the criminal statute we struck down in State v. Brobst, 151 N.H. 420, 425 (2004).” (152 N.H. at 793)
Factual background
Pierce was charged under RSA 644:4, I(f) after calling a victim's cell phone in the early morning despite having been told not to call her. During the call, he used profane and insulting language concerning her AOL account. The harassment statute criminalized communication made with the purpose to annoy or alarm after prior notice that the recipient did not desire further communication, unless the communication was for a lawful purpose or constitutionally protected.
Procedural history
Pierce was charged with misdemeanor harassment after making a telephone call to a person who had previously told him not to call. The trial court denied his motion to dismiss, and he was convicted after trial. He appealed to the Supreme Court of New Hampshire, which reversed the conviction on state constitutional grounds.