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Court tosses felony wiretap conviction in taping of Manchester police captain, high school officials
Mueller, 31, formerly of Jackson, Wis., but now residing in Laconia, was convicted of secretly recording telephone conversations he had with a Manchester police captain, the Manchester West High School principal and her assistant in 2011 and spent three months in jail.
He was seeking their comments on a video he posted on YouTube that showed a confrontation between West High student Frank Harrington III, 17, and police detective Darren Murphy in the school's cafeteria. Harrington was charged with disorderly conduct and resisting arrest.
Murphy was recorded roughly pushing Harrington down onto a cafeteria table. A police department internal review concluded Murphy did not use excessive force.
Mueller, a Free Stater who goes by the name "Ademo Freeman," posted the telephone recordings online. Police learned of them when Mueller mentioned them on a local radio show and acknowledged he did not tell Capt. Jonathan Hopkins, then West High School principal Mary Ellen McGorry, or her assistant Denise Michael that he had recorded the conversations.
The Supreme Court, in its decision released Tuesday, said Hillsborough County Superior Court Judge Kenneth C. Brown erred when he instructed the jury that a violation of the felony wiretapping statute requires a mental state of "purposely," when the statute specifically identifies "wilfully" as the applicable mental state.
Under state law, "wilful" means the defendant must act with an intentional or reckless disregard for the lawfulness of his conduct. In other words, the defendant has not violated the law if he has a "good faith" belief his conduct was lawful, according to the unanimous decision written by Justice Robert J. Lynn.
The court said the erroneous instruction likely affected the outcome of the proceedings and to allow the convictions to stand "would seriously affect the fairness and integrity of judicial proceedings."
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