2009-797, State of New Hampshire v. Michael Euliano

Michael A. Delaney

No. 2009-797

Hillsborough-southern judicial district

one count of second degree assault, see HICKS, J. The defendant, Michael Euliano, appeals his conviction on

Lisa L. Wolford indictments. We affirm. presence of the jury; and (2) denied his motion to dismiss the reckless conduct Superior Court (Barry, J.) erroneously: (1) commented on the evidence in the reckless conduct, see RSA 631:3 (2007). On appeal, he argues that the count of conduct after an accident, see RSA 264:25 (2004), and two counts of

and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as between his trial testimony and the information he gave to the police in his

p. 2 The State cross-examined the defendant concerning inconsistencies

kept driving. He further stated that he did not “tr[y] to hit anybody.” sidewalk” and hitting Pech. The defendant admitted that after he hit Pech, he around them as much as [he] could,” but that he “[e]nded up driving on the stated that “the road was full of people.” He explained that he “[s]werved friend’s shoulder with a machete and he “took off . . . down Cross Street.” He up the street with bats and machetes.” He stated that he saw someone hit his because he “noticed in [his] rearview mirror that about 30 kids were running told him to stop. The defendant explained that at this point he turned around Cross Street when a van pulled up to his right and his friend jumped out and The defendant asserted self-defense. He testified that he was driving up

his testimony, the State played the videotape of the defendant’s interview. Detective Sweeney testified about his interview with the defendant and during Pech and Bisono, the defendant did not stop at the scene of the accident. hit Pech. He stated that the car also made contact with him. According to the sidewalk with Pech when he observed a car go “on top of” the sidewalk and that he felt the mirror of the car touch him. Bisono testified that he too was on 2 with Pech when Pech was hit by a car driven by the defendant. He testified not remember anything after that. Baez testified that he was on the sidewalk towards him and his friends and then “g[et] on the sidewalk,” but that he did walking on the sidewalk when he noticed the defendant’s vehicle speeding Pech, Baez and Bisono also testified at trial. Pech testified that he was

“shouted stop, police, several times,” but the defendant did not stop. within two feet of him and, as it did so, he observed the defendant driving and that car just ran over my friend.” Officer Mabry stated that the car drove and exited his cruiser, he heard “[s]omeone in the crowd yell[] -- you know -disturbance with approximately 15 people.” He testified that after he parked he was dispatched to the area of Cross Street for “a report of a large Police Department testified that shortly after midnight on November 12, 2007, accident and reckless conduct. At trial, Officer Sean Mabry of the Nashua The defendant was indicted for second degree assault, conduct after an

morning but denied that he swerved onto the sidewalk to do so. During the interview, he admitted to accidentally hitting someone earlier that was interviewed by Detective Steve Sweeney and Detective Jonathan Lehto. to the Nashua Police Station. He complied and was arrested. The defendant morning, a number of officers went to the defendant’s home and told him to go also hit Miguel Bisono and Jose Baez. The defendant did not stop. Later that the sidewalk of Cross Street in Nashua and struck and injured Juan Pech. He early morning hours of November 12, 2007, the defendant drove his car onto The jury could have found or the record supports the following. In the not raised before the trial court. See p. 3 The plain error rule allows us to exercise our discretion to correct errors

the plain error rule. Nonetheless, he contends that we should review the trial court’s conduct under defendant concedes that he did not object to the trial court’s comments. Constitution and Part I, Articles 15 and 35 of the State Constitution. The impartial judge under the Fifth and Sixth Amendments to the Federal during the course of his trial in violation of his rights to due process and to an The defendant first argues that the trial court made improper comments

concerning his involvement in the investigation: direct examination of Detective Dennis Lee of the Nashua Police Department thereby denying him a fair trial. The first comment occurred during the State’s credibility.” The defendant maintains that this conduct prejudiced him, “expressed a judicial opinion on the evidence, on [his] guilt, and on his The defendant argues that, on three separate occasions, the trial court 3

miscarriage of justice would otherwise result. See id. appeal followed. used sparingly, however, and is limited to those circumstances in which a denied the motion. The jury found the defendant guilty of all charges and this reputation of judicial proceedings. See Panarello, 157 N.H. at 207. The rule is the defendant in committing the crime constituted a deadly weapon. The court fourth criterion: the error must seriously affect the fairness, integrity or public felony reckless conduct because they fail to allege that the instrument used by exercise our discretion to correct a forfeited error only if the error meets a reckless conduct indictments, arguing that they are insufficient to charge 156 N.H. 416, 425 (2007). If all three of these conditions are met, we may then prejudicial, i.e. At the close of the evidence, the defendant moved to dismiss the two, that it affected the outcome of the proceeding. State v. Lopez, substantial rights, the defendant must demonstrate that the error was Generally, to satisfy the burden of demonstrating that an error affected v. Panarello, 157 N.H. 204, 207 (2008) (quotation and brackets omitted). the error must be plain; and (3) the error must affect substantial rights.” State N.H. 475, 489 (2009). For us to find plain error: “(1) there must be error; (2)

around and drove towards the crowd. could have left the area by taking an alternate route but that instead he turned the sidewalk and hit [Pech] on the sidewalk.” Additionally, he conceded that he morning of the incident.” He indicated that he “crossed over the lane and onto “story” was “considerably different from the one [he] gave the police on the videotaped statement. He agreed with the prosecutor’s statement that his interview of the defendant. After the videotape concluded, the court stated: p. 4 The final comment followed the State’s introduction of the videotaped

I’ll allow it. Objection overruled. And there’s been evidence so far of a hit and run taking place. And got admitted to the bar in 1968. And it still is as far as I know. THE COURT: Hit and run is a crime . . . . At least it was when I

refer to it as a crime scene. It was an accident scene. defense. It was an act. So I object to the Prosecutor continuing to defendant]. But that’s not a crime -- it was an occurrence of self- -- and I stipulate now -- that [the victim] was hit by [the hasn’t established that any crime occurred. It said in the opening [Defense counsel]: Objection, Your Honor. Your Honor, the State

A. Approximately it was in the area of --

general vicinity it was of the crime scene that you found? Q. And with this map of Nashua, could you just indicate where the

examination of the same witness: The second comment occurred shortly thereafter during the State’s direct

the rosary from what I can get so far . . . . THE COURT: Well, you know, the people weren’t out there saying

heard about any crime from this witness.

[Defense counsel]: For any crime scene. What crime? We haven’t

THE COURT: For what?

[Defense counsel]: There’s no foundation.

. . . .

[Defense counsel]: Objection, Your Honor, foundation for this?

A. Just north of the intersection of Canal Street and Cross Street.

Q. And where was that located?

A. We did.

scene? Q. And while you were there, did you locate any type of a crime or credibility. Cf p. 5 of an Academy Award. It was not a specific comment on the defendant’s guilt the comment suggests that the video did not exhibit the type of material worthy 5 evidence.” People v. Harris only the defendant but also Detective Sweeney and Detective Lehto. At most, the evidence, so long as he does not “manifest[ ] bias in the presentation of would have been preferable, a trial judge is not prohibited from summarizing that the comment solely referred to the defendant. The interview involved not statement regarding the individuals on the videotape, there is no indication dire investigation of a hit and run. While a single direct response to the objection substantially prejudiced the defendant’s right to a fair trial). interview of the defendant. To the extent the comment could be construed as a capable of telling the truth and had answered questions truthfully during voir reflected the evidence offered by the officers in their testimony regarding the The third comment followed the State’s introduction of the videotaped 1114, 1118 (Kan. Ct. App. 1999) (trial court’s comment that child victim was indicated that a hit and run had occurred. Thus, the trial court’s statement behalf of the State, all in the presence of the jury”); State v. Chappell his investigation of a hit and run. Prior testimony by Officer Mabry also, 987 P.2d his defense was “‘immaterial and irrelevant,’ and consistently interject[ed] on (defendant was prejudiced when the trial court essentially told defendant that

. State v. Houston, 139 S.W.3d 223, 229 (Mo. Ct. App. 2004)

denied The second comment was made during Detective Lee’s testimony about, 547 U.S. 1065 (2006). several witnesses and questioned the defendant during his testimony), cert. presence of the jury, interrupted defense counsel during cross-examination of against the defendant where the court commented on the evidence outside the crime.” Cf, 118 P.3d 545, 571 (Cal. 2005) (no judicial bias trial court believed the defendant to be “a bad person who had committed a cannot reasonably be construed to imply, as the defendant alleges, that the have understood the comment to be referring to the “large disturbance.” It acting disorderly” and “bordering” on a riot. As such, the jury could easily testimony describing “a large disturbance” involving “multiple people fighting -during testimony about the defendant. The first comment was made following suggested by the defendant. Indeed, the first two comments did not occur do not express a judicial opinion on the defendant’s guilt or credibility as reasonableness of the plaintiff’s conduct and was improper”). rise to plain error affecting the defendant’s substantial rights. The comments court’s dialogue with a witness “could have colored the jury’s decision as to the record in this case, we are not persuaded that the challenged comments give While we do not condone the trial court’s conduct, after reviewing the. Young v. Clogston, 127 N.H. 340, 344 (1985) (finding that the trial

recess at this point and we’ll resume at ten o’clock tomorrow.” “Well, I don’t think that’s going to win any Academy Awards. We’re going to instructions. See p. 6 cure the prejudice.” We disagree. Jurors are presumed to follow the court’s in this case.” The defendant argues that this instruction “was insufficient to rulings, you should ignore that belief. It is up to you alone to decide the facts you believe that I have expressed or suggested an opinion as to the facts in my Finally, the trial judge instructed the jury at the close of evidence: “If been disqualified from the proceedings, see Sixth Amendment to the United States Constitution, and, thus, should have impartial under Part I, Article 35 of the New Hampshire Constitution and the To the extent that the defendant argues that the trial judge was not

motion to dismiss the reckless conduct indictments. He maintains that the The defendant next argues that the trial court erred in denying his

jury is necessarily great. See Accordingly, we decline to address it. See id. at 307. must be mindful of comments from the bench, as the judge’s influence on the (2010), he has not adequately developed this argument for appellate review. Nevertheless, the facts of this case warrant a note of caution. A judge State v. Belyea, 160 N.H. 298, 303 incident.” “considerably different from the one [he] gave the police on the morning of the Indeed, he agreed with the prosecutor’s statement that his “story” at trial was defendant made statements that were inconsistent with his testimony at trial. he hit Pech. Further, in the videotape of his interview with the detectives, the (1986). accident and other witnesses corroborated that the defendant did not stop after defendant’s guilt or innocence. See State v. Rosencrans, 128 N.H. 399, 401 In addition, the defendant admitted to leaving the scene after the any way be interpreted as going to the weight of testimony, see id., or the to refrain from making ostensibly witty or sarcastic remarks, which could in

proceeding. See Lopez, 156 N.H. at 425. court’s conduct amounted to plain error that affected the outcome of the conclude that the defendant has not carried his burden to show that the trial

State v. Cosme, 157 N.H. 40, 46 (2008). Accordingly, we

route but chose not to do so. hitting the crowd, he conceded that he could have left the area by an alternate driver. While the defendant testified that he swerved onto the sidewalk to avoid made contact with them. Pech and Baez both identified the defendant as the onto the sidewalk and struck Pech. Bisono and Baez testified that the car hit Pech with his car. Pech, Bisono and Baez confirmed that a car was driven of the proceeding. The defendant admitted that he drove onto the sidewalk and has failed to demonstrate that the trial court’s comments affected the outcome Moreover, in view of the entire trial record, we find that the defendant in RSA 625:11, V.” Id p. 7 State to charge and prove that the defendant used a “deadly weapon as defined offense of reckless conduct from a misdemeanor to a felony by requiring the reckless conduct is a misdemeanor.” RSA 631:3, II. Section II elevates the the person uses a deadly weapon as defined in RSA 625:11, V. All other danger of serious bodily injury.” RSA 631:3, I. The crime “is a class B felony if “if he recklessly engages in conduct which places or may place another in RSA 631:3 provides that a person commits the crime of reckless conduct

serious bodily [sic

did recklessly engage in conduct which placed another in danger of did commit the crime of Reckless Conduct, in that [the defendant],

victims’ names. The indictments state, in relevant part, that the defendant: 7 defendant was charged reference RSA 631:3, II and are identical, except for the

(Bolding omitted.) substance or thing which, in the manner it is used, intended to be used, or thereby placing [the victim] in danger of serious bodily injury.. A “[d]eadly weapon” is “any firearm, knife or other

In this case, the reckless conduct indictments under which the

by driving his vehicle onto the sidewalk, striking [the victim]

punished.” Hamling, 418 U.S. at 117 (quotation omitted). set forth all the elements necessary to constitute the offence intended to be Constitution pertaining to indictments apply. But themselves fully, directly, and expressly, without any uncertainty or ambiguity, We will assume, without deciding, that requirements under the Federal forth the offense in the words of the statute itself, as long as those words of LaMarche, 157 N.H. at 341. “It is generally sufficient that an indictment set the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); enables him to plead an acquittal or conviction in bar of future prosecutions for informs a defendant of the charge against which he must defend, and, second, sufficient if it, first, contains the elements of the offense charged and fairly not apply to the states”). Under the Federal Constitution, “an indictment is repeatedly asserted “that the Grand Jury Clause of the Fifth Amendment does 467 F.3d 527, 532 (6th Cir. 2006) (noting that the Supreme Court has

Constitution. See State v. LaMarche, 157 N.H. 337, 340 (2008). therefore, confine our constitutional analysis to the requirements of the Federal defendant failed to raise a state constitutional claim in the trial court; we, Sixth Amendments to the United States Constitution. We note that the under Part I, Article 15 of the New Hampshire Constitution and the Fifth and conduct, namely, the deadly weapon element, and, thus, they are insufficient indictments fail to allege a material element of the crime of felony reckless conduct. Since the defendant does not argue that the indictments failed to p. 8 indictments would have charged the defendant with felony-level reckless circumstances, we find that any rational grand jury presented with proper admitted that he hit Pech, in the prosecutor’s words, “hard.” Based upon these testified that they were standing with Pech when he was hit, and the defendant he struck Baez and Bisono with his car. Furthermore, Baez and Bisono bodily injury.” (Bolding omitted.) At trial, the defendant did not dispute that object, to strike Baez and Bisono “thereby placing [them] in danger of serious B felony. The indictments allege that the defendant used his car, and no other reference the felony-level offense, RSA 631:3, II, and each is marked as a class Here, the grand jury returned indictments for reckless conduct that

reckless conduct, we conclude that any error was harmless. See assuming that the indictments do not allege all the elements of felony-level 8

reckless conduct. We need not address this question, however, because even We next turn to whether the indictments sufficiently allege felony-level

F.3d at 311 (quotation and brackets omitted). minimum, persuasive evidence of how a grand jury would find.” Dentler, 492 the [trial] jury’s unanimous findings – which are considered to be, at a Fichera, 160 N.H. at 663. “In conducting that examination, we may consider question.” Dentler, 492 F.3d at 311 (quotation and brackets omitted); see indictment would have charged that the defendant committed the offense[s] in wording of section I of the statute. See available to the grand jury, any rational grand jury presented with a proper In this case, the language of the reckless conduct indictments tracks the consider only whether, on the basis of the evidence that would have been violation concerning an omission from an indictment). Under federal law, “we harmless error review to an Apprendi v. New Jersey, 530 U.S. 466 (2000), an indictment); State v. Fichera, 160 N.H. 660, 662-63 (2010) (applying Cir. 2007) (applying harmless error review to failure to include an element in denied, 532 U.S. 1065 (2001); United States v. Dentler, 492 F.3d 306, 310 (5th provided the defendants with fair notice of the charges against them”), cert. applies “to the failure to include an element in an indictment that otherwise v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000) (harmless error review

dismiss the indictments. conclude that the trial court did not err in denying the defendant’s motion to arson because it sufficiently alleged misdemeanor arson). Therefore, we arson indictment that failed to include the aggravating factors of felony-level 118, 119-22 (1979) (finding that the trial court did not err by not dismissing a motion to dismiss. Hamling, 418 U.S. at 117; State v. Champagne, 119 N.H. alleged misdemeanor reckless conduct with sufficient definiteness to withstand

bodily injury.” RSA 625:11, V (2007). threatened to be used, is known to be capable of producing death or serious p. 9 9

DALIANIS, C.J.