GUILTY NH - AH, 14, North Conway, 9 October 2013 - #14

[Dixie811]

I think that dog belongs to the chief of police. Kibby is just casually chatting with those two guys. His body language looks very relaxed to me. He is also dressed quite youthfully.

Yes... once I saw Kibby for the first time I thought it was possible he could have fooled Abigail into getting in his car on 10/9/2013 by presenting himself as much younger than he truly is. Young women are much more likely to trust a guy who they think may be just a few years older (perhaps early 20's, in Abby's case), than a guy they know is in his mid-30's.

 

[Not Without Peril]

There's been case law that covers the issue [of] whether [a mobile home is] a home or a vehicle, at least with regard to probable cause/searches/warrants/etc.

I wasn't introducing the automobile exception into the conversation - it doesn't apply in this case.

When I saw your reference to "case law that covers the issue [of] whether [a mobile home is] a home or a vehicle[] ... with regard to probable cause/searches/warrants[]," I thought that you were referencing case law that covers the issue of whether a mobile home is categorized as a home or a vehicle in the Fourth Amendment context (i.e., whether a warrantless search of a mobile home, supported by probable cause, is constitutionally permissible). Instead of drawing that conclusion, I should have requested clarification. I will do so now: in your reference to "case law that covers the issue [of] whether [a mobile home is] a home or a vehicle[] ... with regard to probable cause/searches/warrants[]," what was the nature of the legal issue before the court?

My second statement was that I don't think this [would be] the first time ... [that] the State collect a mobile home into evidence.

That sounds reasonable. What is the relevance?

 

[Not Without Peril]

By the way, there was, in fact, a "search warrant issued for Kibby's property."

 

[AnaTeresa]

When I saw your reference to "case law that covers the issue [of] whether [a mobile home is] a home or a vehicle[] ... with regard to probable cause/searches/warrants[]," I thought that you were referencing case law that covers the issue of whether a mobile home is categorized as a home or a vehicle in the Fourth Amendment context (i.e., whether a warrantless search of a mobile home, supported by probable cause, is constitutionally permissible). Instead of drawing that conclusion, I should have requested clarification. I will do so now: in your reference to "case law that covers the issue [of] whether [a mobile home is] a home or a vehicle[] ... with regard to probable cause/searches/warrants[]," what was the nature of the legal issue before the court?



That sounds reasonable. What is the relevance?

If you go back to my original post (#869), Miss Diana asked whether a mobile home is considered a vehicle. My reply in full:

1) It can be. There's been case law that covers the issue - whether it's a home or a vehicle, at least with regard to probable cause/searches/warrants/etc. I think it's a matter of titling. If it's registered with the DMV, it's a vehicle; if it's en route somewhere, it a vehicle. If it's attached to land, it's considered a residence. I think once you convert it from a mobile property to a real estate property, it can't go back - but that might vary by state, I'm not sure.

There have been cases which debate whether a mobile home is a vehicle or a residence. This has mostly been litigated in search and seizure cases. I'm sure there are other cases outside of it that also talk about whether or not they are considered a residence or a motor vehicle, but all I was looking for was a quick legal categorization of a mobile home, which I found. My response, if you read it in full, is focused on answering whether or not a mobile home is considered a vehicle or residence, which I answered. Other posters have also chimed in, talking about DMV titles and whatnot. Basically, it has a lot to do with how it's registered. My response was not intended to bring up some sort of Fourth Amendment argument into this case.

If you read upthread, some posters were finding it odd that LE wanted to remove the mobile home from the property, and thought it was extreme. Other posters talked about cases where mobile homes were removed. Still others mentioned structures/homes which were cordoned off. I was simply posting my opinion that LE has seized mobile homes before, it's not unprecedented; and that a mobile home is not as immune to the elements as a regular home. It's relevant because some posters thought it was odd the State wanted to remove the mobile home, and in my opinion, it doesn't seem unusual.

 

[SStarr33]

It struck me, watching the video of Kibby's hearing (the "Hearing"), that, perhaps, Kibby could rely on the Sixth Amendment to frame his preservation argument.

The Sixth Amendment requires a criminal defense attorney to either conduct a "reasonable investigation" or make a "reasonable decision" to refrain from investigating. [link] Strickland v. Washington, 466 U.S. 668, 691 (1984). [link II] See Commonwealth v. Baker, 440 Mass. 519, 529 (2003), citing Strickland, supra at 690 ("[The Sixth Amendment requires an attorney] to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the [state] intend to rely to prove the defendant's guilt."). The court, when assessing the "reasonableness" of an attorney's decision, must "apply[] a heavy measure of deference to [the attorney's] judgments." Strickland, supra at 691.

In this case, Kibby's lawyer has determined that he must conduct an independent examination of the alleged scene of the crime. See Hearing. If the state prevents him from conducting this investigation, has the state deprived Kibby of the effective assistance of counsel? (Note: this a question, and not a conclusion).

Does anyone know of any decision where, due to the acts or omissions of the prosecutor, a defendant has been denied his right to the effective assistance of counsel?

Not sure if the Brad Cooper case would apply. He won his appeal.

Here is the court's decision:

http://appellate.nccourts.org/opinions/?c=2&pdf=29994

and the summary from his attorney:

http://www.kurtzandblum.com/criminal-defense-attorneys/blog/new-trial-for-brad-cooper

 

[PoirotryInMotion]

Another well-written article by the Law Columnist/Reporter for the Boston Herald re the hearing yesterday:

http://bostonherald.com/news_opinio...per_fights_to_keep_his_mobile_home_from_being

 

[Max17]

The Conway Daily Sun

The probable cause hearing for Nathaniel Kibby, the man accused of kidnapping Abby Hernandez, will be postponed 30 days. It had been scheduled for Aug. 12. The defense needs time to determine whether the hearing should be waived or not.

https://www.facebook.com/TheConwayDailySun/posts/10152593602892232

 

[lillygator]

wow, this is such a weird case.

 

[tlcya]

“I have never been involved in a case ... where I have been put in a position to have to come before a court and ask that the state should maintain and preserve a crime scene,” attorney Jesse Friedman said today during an impassioned plea in defense of his client, 34-year-old Nathaniel Kibby. “This is his home. The state is waving this around like it’s a tangible good. ... This is this man’s home.”

http://bostonherald.com/news_opinion/local_coverage/2014/08/accused_nh_kidnapper_fights_to_keep_his_mobile_home_from_being

IMO it is personal property - but NH specifically has a different take on things and considers mobile homes real property.

If the mobile home is located on rented land the home is considered “Personal property” similar to automobiles and boats. Exception: New Hampshire considers all mobile homes “real property” and therefore no Titles are available.

http://www.mobilehomeinvesting.net/are-mobile-homes-personal-property-or-real-property

New Hampshire
A manufactured home placed on a site not owned by the homeowner but connected to utilities shall be deemed real estate for the purposes of transfer and shall be subject to attachment, liens, foreclosure and execution in the same manner as real estate.55 However, security interests in manufactured housing may also be created and perfected under the U.C.C. as adopted by New Hampshire.56 The statute does not address homes placed on land owned by the homeowner. Owners of manufactured homes in this situation must rely upon common law to determine if the home becomes real property. New Hampshire also has a statute which allows any lending institution to treat a manufactured home the same as realty for the purposes of securing loans to finance the home. When a lending institution exercises this option, no certificate of title is required, and all of the provisions of real estate law, including conveyances, deeds, and foreclosure, apply to the home. The home must be placed on a foundation or slab and hooked up to all conventional and necessary utility systems and must be intended to be used as a permanent dwelling unit.57

http://cfed.org/assets/pdfs/mh_realproperty.pdf

ETA this is simply my own non verified non attorney opinion

 

[Fireweed]

This is simply my own opinion being expressed here and I hope that it won't get taken as being argumentative in any way. But I want to assure those who've been entering the conversation regarding legal nuances in this case that, regardless of whether or not you've been "verified," your contributions in here have been vital and personally appreciated. JMO, but for me, I can tell whether or not someone is an expert in a field without someone having to have that title under their moniker. I believe most of us have shared our professions in here in various posts in one way or another, and we as individuals can be privately discerning as to how much someone's said profession is helpful to understanding a particular case. That is because, to claim to be in a profession is not the same as to be at the top of one's field or expert in it. And if people don't understand that, they should, when reading in these forums.

Also...I could claim to be a senator, doctor, or forensics expert...but if I posted that claim in conjunction with my response to relevant forum posts, people would know within a post or two from my embarassingly poor knowledge in those fields that I was either being extraordinarily generous with my self-assessment or outright lying. JMO, but because of that, it's different in an important way than if someone claims to be an "insider." That is something we on the forum couldn't so easily ascertain by one's posts. Someone making those specific claims, as pertains to a specific crime being discussed, unless "verified," could either be on the inside or could be a troll spreading rumor and lies, and completely disrupting a thread.

All JMO etc. and not meant to be taken as a criticism of policy. But wanted to let our legal-type posters know that your knowledge base is much appreciated and helpful to someone like myself who has scant knowledge of the nuances of law. I love court cases and the chess game involved with trials--but I'd sooner poke myself in the eye with a sharp stick than take a bar exam. So please keep posting.

This is why I do not want to be verified as an attorney. I enjoy talking about various legal aspects of this case (and it really is interesting), but unless an attorney has experience actually working as a criminal law attorney, then his or her knowledge is going to be limited to what we learned in law school. Let me tell you this too, you learn a lot in law school, but you do not learn hardly anything practical there. So no one here who is an attorney is going to know how many days each side has in New Hampshire to reply to certain motions, unless that person actually worked in some capacity in New Hampshire (yes other states have different procedural rules) as a criminal defense attorney or prosecutor.

I am not saying that attorneys will not have some unique knowledge, and we certainly are trained to examine things from unique angles, but unless someone here is a New Hampshire criminal defense attorney (or prosecutor), then none of us is an expert at this at all.

Cool. Now I have a treatise on EU public law to translate.

 

[Fireweed]

New Hampshire
A manufactured home placed on a site not owned by the homeowner but connected to utilities shall be deemed real estate for the purposes of transfer and shall be subject to attachment, liens, foreclosure and execution in the same manner as real estate.55 However, security interests in manufactured housing may also be created and perfected under the U.C.C. as adopted by New Hampshire.56 The statute does not address homes placed on land owned by the homeowner. Owners of manufactured homes in this situation must rely upon common law to determine if the home becomes real property. New Hampshire also has a statute which allows any lending institution to treat a manufactured home the same as realty for the purposes of securing loans to finance the home. When a lending institution exercises this option, no certificate of title is required, and all of the provisions of real estate law, including conveyances, deeds, and foreclosure, apply to the home. The home must be placed on a foundation or slab and hooked up to all conventional and necessary utility systems and must be intended to be used as a permanent dwelling unit.57

To me, that law would pertain to a mobile home's status under property law, not criminal procedure law.

 

[tlcya]

But if there is no specific criminal cases to guide the judge's decision on this would not she then be looking at property and other civil statutes as part of weighing the merits of the motion? That would just seem logical to me.

 

[Fireweed]

But if there is no specific criminal cases to guide the judge's decision on this would not she then be looking at property and other civil statutes as part of weighing the merits of the motion? That would just seem logical to me.

It is just that the standards are so different. The statute that you posted mainly addresses the issues of mortgages and liens, which are private contract issues between two parties. For example, you and I could contract for all sorts of things relating to your real property and I could enter onto your property and do things that a government actor could never do without a warrant. I could give you a purchase-money mortgage and later do a non-judicial foreclosure on your mobile home and take it away. What that statute is establishing, is how to decide who has priority either in the actual ownership of the mobile home itself, or who has priority in the event of a foreclosure.

It is not exactly applicable to whether or not a person has a reasonable expectation of privacy under the 4th amendment.

 

[tlcya]

But if I understand the argument from the defense it is that this is NEK's residence, not some tangible item of personal property to be seized like evidence. If the home had a basement or foundation and was a part of the land beneath it in the way that other homes are considered, it would be considered a crime scene, the scene examined and then eventually, released once that was accomplished. It would not be physically removed from the land upon which it sat and taken to some other location lock stock and barrel. So I would think property laws would come into play. The point has been raised by the defense that moving the trailer is unreasonable because it should not be considered tangible property but rather it is real property and an accused's real property is not seized and disposed of by the state while the accused still sits in jail awaiting his chance to learn what evidence prompted his arrest in the first place.

 

[AnaTeresa]

This is why I do not want to be verified as an attorney. I enjoy talking about various legal aspects of this case (and it really is interesting), but unless an attorney has experience actually working as a criminal law attorney, then his or her knowledge is going to be limited to what we learned in law school. Let me tell you this too, you learn a lot in law school, but you do not learn hardly anything practical there. So no one here who is an attorney is going to know how many days each side has in New Hampshire to reply to certain motions, unless that person actually worked in some capacity in New Hampshire (yes other states have different procedural rules) as a criminal defense attorney or prosecutor.

I am not saying that attorneys will not have some unique knowledge, and we certainly are trained to examine things from unique angles, but unless someone here is a New Hampshire criminal defense attorney (or prosecutor), then none of us is an expert at this at all.

Cool. Now I have a treatise on EU public law to translate.

It is difficult because things vary so much by state. Sometimes being an attorney just means that you know the term to Google. When someone asked upthread what the deadline was to turn over discovery for someone who hasn't entered a plea - no one except someone who practices criminal law in NH would likely know. Their rules of criminal procedure(1) don't even address that option.

But if there is no specific criminal cases to guide the judge's decision on this would not she then be looking at property and other civil statutes as part of weighing the merits of the motion? That would just seem logical to me.

It depends on the statutory construction in NH (2). It's possible that a mobile home is defined either as a residence or a vehicle somewhere in NH statutes, and that the criminal code would adopt that definition. For example, in Ohio (3), if there is apparent legislative intent for a definition to apply broadly in all types of cases, or unambiguous text that says the definition should apply in the entire Code, then it is possible for a civil definition to apply in a criminal case.

In NH, a motor vehicle is defined as:

259:60 Motor Vehicle. – "Motor vehicle'' shall mean:
I. Except where otherwise specified in this title, any self-propelled vehicle not operated exclusively on stationary tracks, including ski area vehicles;
II. As used in RSA 261:148 relative to municipal permits for registration, includes all trailers and semi-trailers as defined herein and travel trailers as determined by the commissioner of revenue administration; however, snowmobiles as defined herein, mobile homes, house trailers and mopeds shall not be so included;
III. For purposes of the financial responsibility statutes, any self-propelled vehicle not operated exclusively upon stationary tracks, except farm tractors, crawler-type tractors, and mopeds;
IV. For purposes of the road toll statutes, all vehicles, engines, machines, or mechanical contrivances, except electric personal assistive mobility devices as defined in RSA 269:1, which are propelled on the public highways by internal combustion engines, electric motors, steam engines, or other alternate sources of energy except human or animal power.

(3)

In NH, the definition of a mobile home has been repealed. (5)

It's my assumption that the definition of a manufactured home has taken its place. (6)

205-A:1 Definitions. – As used solely in this chapter unless the context specifically requires otherwise:
I. "Manufactured housing'' includes, but is not limited to, manufactured housing as defined by RSA 674:31, and also includes any prefabricated dwelling unit which:
(a) Is designed for long term and continuous residential occupancy;
(b) Is designed to be moved on wheels, as a whole or in sections; and
(c) On arrival on the site, is complete and ready for occupancy, except for incidental unpacking, assembly, connection with utilities, and placing on support or permanent structure.
Nothing herein shall be construed to include campers or recreational vehicles within the definition of "manufactured housing''.
II. "Manufactured housing park'' means any parcel of land under single or common ownership or control which contains, or is designed, laid out or adapted to accommodate 2 or more manufactured houses. Nothing herein shall be construed to apply to premises used solely for storage or display of manufactured housing.
III. "Person'' means any natural person, corporation, partnership, or sole proprietorship.
IV. "Tenant'' means any person who owns or occupies manufactured housing and pays rent or other consideration to place said manufactured housing in a manufactured housing park.
V. "Manufactured housing park owner'' means the person holding title to the manufactured housing park to be sold.
VI. "Family member'' includes the owner's spouse, son, daughter, mother, father, brother, sister, grandson, granddaughter, stepchildren, stepgrand-children, or first cousins.
VII. "Final unconditional offer'' means a fully executed agreement for the sale of a manufactured housing park.

However, this definition is applied solely to the Housing chapter, rather than broadly applied to the criminal code, unless otherwise specified. That said, while I could not find a definition of mobile home or manufactured home in the criminal code, I found other instances where terms are defined by referring to the definition in parts of the code that regulate civil matters.


(1) http://www.courts.state.nh.us/rules/criminal-rules/crimpro-12.htm
(2) http://www.gencourt.state.nh.us/rsa/html/nhtoc.htm
(3) See Summerville v. Forest Park; Proctor v. Kardassilaris; Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd.
(4) http://www.gencourt.state.nh.us/rsa/html/XXI/259/259-60.htm
(5) http://www.gencourt.state.nh.us/rsa/html/XXI/259/259-56.htm
(6) http://www.gencourt.state.nh.us/rsa/html/XVII/205-A/205-A-1.htm

 

[AnaTeresa]

Per AAA, in NH, manufactured homes are real estate, not personal property.
http://drivinglaws.aaa.com/laws/titles-for-mobile-homes/

 

[SilkySifaka]

But if I understand the argument from the defense it is that this is NEK's residence, not some tangible item of personal property to be seized like evidence. If the home had a basement or foundation and was a part of the land beneath it in the way that other homes are considered, it would be considered a crime scene, the scene examined and then eventually, released once that was accomplished. It would not be physically removed from the land upon which it sat and taken to some other location lock stock and barrel. So I would think property laws would come into play. The point has been raised by the defense that moving the trailer is unreasonable because it should not be considered tangible property but rather it is real property and an accused's real property is not seized and disposed of by the state while the accused still sits in jail awaiting his chance to learn what evidence prompted his arrest in the first place.

I think the defense attorney has a good point. Houses are crime scenes all the time and handled perfectly adequately by LE and the prosecution. There is no expectation of lifting it up and coralling it. The defense should have the right to have forensic experts be able to examine the property and container in situ (at least the property) and yet the decision of whether its necessary may not be made until after full discovery and ceding to the schedule and hiring of said forensics experts. They may want to take a jury on a walk through to see the lines of sight themselves etc. How do you do that if the home has been moved.

So far it seems this attorney is honestly working to get a fair trial, not playing smoke and mirrors. That may change and most people aren't pro defense attorney but surely this request is fair.

 

[AnaTeresa]

I think the defense attorney has a good point. Houses are crime scenes all the time and handled perfectly adequately by LE and the prosecution. There is no expectation of lifting it up and coralling it. The defense should have the right to have forensic experts be able to examine the property and container in situ (at least the property) and yet the decision of whether its necessary may not be made until after full discovery and ceding to the schedule and hiring of said forensics experts. They may want to take a jury on a walk through to see the lines of sight themselves etc. How do you do that if the home has been moved.

So far it seems this attorney is honestly working to get a fair trial, not playing smoke and mirrors. That may change and most people aren't pro defense attorney but surely this request is fair.

It's smart legal wrangling, for sure. I've been impressed with him so far.

 

[Fireweed]

But if I understand the argument from the defense it is that this is NEK's residence, not some tangible item of personal property to be seized like evidence. If the home had a basement or foundation and was a part of the land beneath it in the way that other homes are considered, it would be considered a crime scene, the scene examined and then eventually, released once that was accomplished. It would not be physically removed from the land upon which it sat and taken to some other location lock stock and barrel. So I would think property laws would come into play. The point has been raised by the defense that moving the trailer is unreasonable because it should not be considered tangible property but rather it is real property and an accused's real property is not seized and disposed of by the state while the accused still sits in jail awaiting his chance to learn what evidence prompted his arrest in the first place.

I think people would be surprised that different areas of law use different definitions for the same thing. What we would be asking here is whether taking the mobile home is an unreasonable search and seizure under the fourth amendment. For this, you would have to go to case law that addresses these issues, and not housing codes.

 

[Fireweed]

I think the defense attorney has a good point. Houses are crime scenes all the time and handled perfectly adequately by LE and the prosecution. There is no expectation of lifting it up and coralling it. The defense should have the right to have forensic experts be able to examine the property and container in situ (at least the property) and yet the decision of whether its necessary may not be made until after full discovery and ceding to the schedule and hiring of said forensics experts. They may want to take a jury on a walk through to see the lines of sight themselves etc. How do you do that if the home has been moved.

So far it seems this attorney is honestly working to get a fair trial, not playing smoke and mirrors. That may change and most people aren't pro defense attorney but surely this request is fair.

I think that Jesse Friedman is a great attorney. I would be happy to have him if I were ever in a pickle in New Hampshire.