2011-909, State of New Hampshire v. Michael Carpenter Noucas

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant

invoked his right to counsel following his arrest. We affirm. trial court committed plain error when it admitted testimony that the defendant (3) sustained a hearsay objection made by the State. He also argues that the

No. 2011-909 Belknap

to instruct the jury on defense of another under RSA 627:4 (Supp. 2012); and

when it: (1) found that sufficient evidence supported his conviction; (2) failed (2007) (accomplice liability). On appeal, he argues that the trial court erred reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 accomplice to armed robbery. See RSA 636:1 (2007) (robbery); RSA 626:8 defendant, Michael Carpenter Noucas, appeals his conviction for being an LYNN, J. Following a jury trial in Superior Court (O’Neill, J.), the

attorney general, on the brief and orally), for the State.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as armed robbery. p. 2 The defendant was subsequently charged with being an accomplice to

defendant’s DNA.

inside the spare bedroom on the third floor of the house tested positive for the his hands or arms. An orange ski mask and a rubber glove recovered from nearby. The intended victim of the robbery, David Rivera, had cuts on one of

head. He was found wearing rubber gloves and a bat was lying on the floor

had sustained approximately a dozen stab wounds to his chest, back, and found Hart dead in a spare bedroom on the third floor of Longval’s house. He Sallies drove to the Meredith police station to get help. The police subsequently

cuts on his arms and hands. When Hart failed to appear after a few moments,

a stab wound in his throat, a small wound on the top of his head, and smaller

car. He was bleeding “everywhere.” His left ear was nearly severed, and he had Approximately fifteen minutes later, the defendant staggered back to the

the car and collected a knife. Sallies stayed in the car.

I. Sufficiency of the Evidence

and went into the tree line behind the house. The defendant soon returned to defendant and Hart then got out of the car, put on the two orange ski masks, instructed her to park in a small gravel area behind Longval’s house. The

After Sallies drove the defendant and Hart to Meredith, the defendant

was sufficient evidence to support his conviction.

After a jury convicted the defendant, he appealed. residence while armed with a knife and wearing a mask and rubber gloves. armed robbery, agreed to assist Hart and accompanied him to Longval’s

obtained two orange ski masks, and Hart or Sallies grabbed a baseball bat. prepared to commit the robbery. Hart dressed in dark clothing, Sallies intended victim had cocaine and cash, Sallies, Hart, and the defendant The defendant first argues that the trial court erred in finding that there

conviction on grounds not material to the issues raised on this appeal. trial court subsequently granted the defendant’s post-trial motion to set aside the conspiracy The jury convicted him of the conspiracy charge, but acquitted him on the burglary charge. The 1 The State also charged the defendant with burglary and conspiracy to commit armed robbery. It further charged that the defendant, knowing that Hart was about to commit

her house. After a brief discussion, in which the defendant said that the

commission of armed robbery with the purpose that the offense be committed.

1 The indictment charged that the defendant aided Hart in the

Longval was the mother of the defendant’s son, and the defendant had a key to who was staying at Sarah Longval’s house at 16 Lake Street in Meredith. defendant told Julie Sallies and Robert Hart that he wanted to rob “some guy”

The jury could have found the following facts. On June 5, 2010, the have found guilt beyond a reasonable doubt.” State v. Langill, 161 N.H. 218, p. 3 reasonable inferences from it in the light most favorable to the State, could

must show that “no rational trier of fact, viewing all of the evidence and all

To prevail on a challenge to the sufficiency of the evidence, a defendant

[the State] failed to do so.” admit sufficient evidence that [he] did not abandon his intent to aid Hart but

renunciation an element of the offense,” and that the “State was required to

person of another. RSA 636: I, III; State v. Glanville, 145 N.H. 631, 633 (2000). of Rivera.” Finally, the defendant argues that “RSA 626:8, VI(c) makes lack of [he] entered the room to assist Hart but did not assist in Hart’s armed robbery armed robbery.” He further contends that “a rational conclusion remains that circumstantial evidence” supported the charges against the defendant. The

weapon; or (3) inflicted or attempted to inflict death or serious injury on the

or into the room, his presence would not have aided Hart in committing an record establishes that the prosecutor merely informed the court that “plenty of

be of sufficient strength that guilt is the sole rational conclusion. See id.

weapon; (2) reasonably appeared to the victim to be armed with a deadly robbery if, while committing robbery, he was: (1) actually armed with a deadly immediate use of physical force.” RSA 636:1. A person commits armed charge was circumstantial.” He contends that if he “did not accompany Hart to “[t]he State conceded that its evidence on the accomplice to armed robbery circumstantial.” We agree that the State did not make this concession. The concerning his “actions in the house was entirely circumstantial,” and that that its evidence on the accomplice to armed robbery charge was As an initial matter, we note that the State disputes that it “conceded

evidence is solely circumstantial, the inferential chain of circumstances must State v. Saunders, 164 N.H. 342, 351 (2012). On the other hand, where the evidence, it need not exclude all rational conclusions other than guilt. See 228 (2010). Where the evidence does not consist solely of circumstantial

such force,” or “[t]hreatens another with or purposely puts him in fear of

conclusions consistent with innocence.” He asserts that the evidence other person in planning or committing it.” RSA 626:8, III(a); see Formella, 158

of such other person in the commission of the offense.” RSA 626:8, II(c); State

he “[u]ses physical force on the person of another and such person is aware of

sufficient to support his conviction because it “failed to exclude all rational such other person in committing it, or aids or agrees or attempts to aid such The defendant argues that the evidence presented at trial was not

accountable for the conduct of another person when . . . [h]e is an accomplice RSA 626:8 provides, in relevant part, that an individual is “legally

N.H. at 116. A person commits robbery if, in the course of committing a theft,

purpose of promoting or facilitating the commission of the offense, he solicits v. Formella, 158 N.H. 114, 116 (2008). A person is an accomplice if “[w]ith the facilitating its commission, aided Hart in committing armed robbery. See RSA p. 4 jury could have found that the defendant, with the purpose of promoting or all p. 3 reasonable inferences from it in the light most favorable to the State, the

wearing rubber gloves with a baseball bat nearby. Viewing all the evidence and

the scene tested positive for the defendant’s DNA and that Hart was found the State presented evidence that a ski mask and rubber glove recovered from inside the house during the robbery and used force against Rivera. Moreover,

were not presented in the [trial] court.” State v. Winstead, 150 N.H. 244, 246 have “consistently held that we will not consider issues raised on appeal that

and arming himself with a knife. The defendant also admitted that he was

renunciation under RSA 626:8 VI(c) is an element of accomplice liability. We

defendant failed to preserve this issue for appellate review.

alleged error never addressed by the trial judge that could be used to set aside commission of the robbery, and prepared for the robbery by wearing a ski mask

court’s jury instructions, which did not inform the jury that lack of effort to prevent the commission of the offense.” See Formella, 158 N.H. at 116. the offense or gives timely warning to the law enforcement authorities or otherwise makes proper prior to the commission of the offense and wholly deprives it of effectiveness in the commission of 2 RSA 626:8, VI(c) provides that a person is not an accomplice if he “terminates his complicity prove that he did not abandon his intent to aid Hart, we conclude that the

unhappy with the trial result to comb the record, endeavoring to find some planned robbery, directed her to park behind Longval’s house before (2003) (quotation omitted). “This requirement is designed to discourage parties wanted to commit robbery, traveled with Hart and her to the destination of the commission. Sallies testified that the defendant told Hart and her that he

motion to dismiss for insufficient evidence. Nor did he object to the trial Winward, 161 N.H. 533, 542 (2011). He did not make this argument in his State, could have found guilt beyond a reasonable doubt.” Langill, 161 N.H. at 2 See State v.

renunciation an element of the offense, and that the State was required to Insofar as the defendant argues that RSA 626:8, VI(c) makes lack of

robbery occurred and that the defendant aided and agreed to assist Hart in its

evidence and all reasonable inferences from it in the light most favorable to the defendant has failed to show that “no rational trier of fact, viewing all of the Based upon the evidence presented at trial, we conclude that the

sufficient to support a conclusion beyond a reasonable doubt that an armed from Longval’s house supported the charges. See State v. Newcomb, 140 N.H. house, the totality of the evidence, both direct and circumstantial, was prosecutor also noted that witness testimony and physical evidence recovered 228. Although there was no direct evidence of what transpired inside the

omitted)). to have personal knowledge of facts about the crime charged” (quotation 72, 80 (1995) (direct evidence includes “the testimony of a person who claims p. 5 Longval’s house to “take care of” Rivera. The defendant followed in pursuit.

from the neighbor’s house, Sallies told him that Hart had gone back inside

Bar Association’s Criminal Jury Instructions. See N.H. Bar Assoc. Criminal neighbor’s house while Hart and Sallies argued. After the defendant returned Hart then exited the house and returned to the car. The defendant went to a conversation left Hart not “totally happy with [Rivera].” The defendant and

the offense that the State must prove beyond a reasonable doubt.” State v. defense of another in accordance with relevant sections of the New Hampshire

The defendant, Hart, and Rivera then spoke at Longval’s house. The

in defense of another, conduct “negating such a defense becomes an element of defendant testified, it would instruct the jury regarding self-defense and court then informed the parties that, depending entirely upon whether the responded that he would pursue such a defense if the defendant testified. The defendant agreed and traveled with Sallies and Hart from Laconia to Meredith. Hart asked him to arrange a conversation with Rivera at Longval’s house. The armed robbery with Hart. He testified that, on the day of the alleged robbery, The defendant subsequently testified that he did not participate in an

We have held that when there is “some evidence” that the defendant used force

whether he was planning to pursue such a defense. Defense counsel purpose. such force which he reasonably believes to be necessary for such

instructions”). Jury Instructions 3.10, 3.13, 3.14 (1985) (hereinafter “model jury

order to defend himself or a third person,” the court asked defense counsel reserving the right to argue that if he used force against Rivera “he did so in deadly force by such other person, and he may use a degree of instructions with the parties. Because the defendant had filed a pretrial notice At the close of the fifth day of trial, the trial court reviewed jury

Etienne, 163 N.H. 57, 81 (2011); State v. Hast, 133 N.H. 747, 749-50 (1990).

reasonably believes to be the imminent use of unlawful, nonperson in order to defend himself or a third person from what he the verdict.” LaMontagne Builders v. Bowman Brook Purchase Group, 150 A person is justified in using non-deadly force upon another

RSA 627:4, I, provides in pertinent part:

instruction on defense of another under RSA 627:4. The defendant next argues that the trial court erred in failing to give an

II. Defense of Another Instruction

N.H. 270, 274 (2003) (quotation omitted). would “negate one of the elements of the offense.” (Emphasis added.) The p. 6 defense or defense of another would be a justification for using force” and

robbery “alleged, if not the use of force, certainly the threat of force,” then “self

because the indictment charging him with being an accomplice to armed

constitutes a defense to any [offense].” More specifically, he argued that, (2007) provides that “[c]onduct which is justifiable under this chapter armed robbery because it involved the use of force. He noted that RSA 627:1

robbery. He contends that “[w]ithout knowing the law about when a person is defense and because it applies to the offense of being an accomplice to armed responded that the defense applied to the charge of being an accomplice to

another because the trial court found that sufficient evidence supported the nothing to do with the charges against the defendant. The defendant jury would not reach “the issue of . . . defense of another” because it had entitled to the instructions because he was “not charged with assault” and the

defense,

conviction. He argues that he was entitled to an instruction on defense of the jury on defense of another was a structural error, requiring reversal of his On appeal, the defendant argues that the trial court’s refusal to instruct on self-defense and defense of another. The State argued that he was not

although sufficient evidence supported that the defendant acted in self-

rubric.”). adopted objection include the ‘defense of another’ objection under the self-defense objection another’. We are convinced that the court and the defendant intended that the proposed and another. Cf. Hast, 133 N.H. at 748-49 (“The court’s chosen words did not include ‘defense of finding that there was sufficient evidence that the defendant acted in self- p. 6 defense or defense of another], all rights reserved.” the issue of whether the defendant was entitled to the model jury instructions in self-defense, not defense of another. Nevertheless, we understand the ruling to include a Based upon the defendant’s testimony, the court and parties revisited 3 The trial court informed the parties that sufficient evidence supported that the defendant acted before sustaining serious injuries.

on self defense.” After considering the parties’ arguments, the court ruled that, argued that “it [did]n’t matter if he got up to the room and went into the room that he was wearing a mask, gloves, and had a knife with him.” It further

to deny your request for model instructions [on self-defense and defense of defense of another as a matter of law. It informed defense counsel: “I’m going 3 the defendant was not entitled to jury instructions on self-defense or stabbing the defendant. The defendant eventually managed to escape, but not break up the fight by pushing Rivera against a wall. Rivera, in turn, began bat and Rivera “stabbing [Hart] in the chest.” The defendant attempted to

robbery the jury only needed “to find that the [d]efendant accompanied [Hart], State responded that to convict the defendant of being an accomplice to armed

stabbed repeatedly.” He then saw Rivera and Hart struggling over a baseball Upon reaching the third floor of the house, the defendant heard “[Hart] getting his actions such that he thereby escapes liability.” Id. (quotation omitted);

p. 7 defendant’s “theory of defense,” but not on a “theory of the case.” See State v.

finding in favor of that defense,” State v. Vassar, 154 N.H. 370, 373 (2006), this instruction on a specific defense if there is some evidence to support a rational discussed at trial. See State v. Perri, 164 N.H. 400, 410 (2012) (refusing to substance of the allegation but points to facts that excuse, exonerate or justify Although we have held that a “trial court must grant a defendant’s requested

defense” and a “theory of the case.” A trial court must instruct a jury on a Our case law distinguishes between what we have called a “theory of

involves a jury instruction.” (quotation omitted)).

State v. Guaraldi, 124 N.H. 93, 97 (1983). It “is a proposition about the legal

the trial court erred in failing to give the jury instructions considered and plea of confession and avoidance, by which the defendant admits the there was sufficient evidence that the defendant used force in defense of Hart. Bruneau, 131 N.H. 104, 117-18 (1988). A “theory of defense” is akin to a “civil State v. Hernandez, 159 N.H. 394, 400 (2009). We review the trial court’s instruction raises a question of statutory interpretation, which we review de

defendant was legally entitled to the instruction. Cf. State v. Furgal, 164 N.H. the trial court correctly concluded that it also had to determine whether the light of the charged offense and the evidence adduced at trial. In other words, opportunity to correct error is particularly appropriate where an alleged error State v. Davidson, 163 N.H. 462, 472 (2012) (quotation omitted). “We Blomquist, 153 N.H. 216, 223 (2006) (“Providing the trial court with the would have understood them, and in light of all the evidence in the case.” consider a jury instruction that the defendant did not request); cf. State v.

in failing to instruct the jury on defense of another,” we review only whether court was required to instruct on defense of another because it found that novo”). And although the defendant broadly argues that “the trial court erred As an initial matter, we reject the defendant’s argument that the trial wording of the instruction, are within the sound discretion of the trial court. 430, 435 (2012) (“whether a statute provides a basis for a requested jury Whether a particular jury instruction is necessary, and the scope and cover the issues of law in the case.” Id. (quotation omitted). to determine whether the elements of the offense had been proven.”

requirement presumes that the requested instruction is legally available in

interpreting the disputed instructions in their entirety, as a reasonable juror

each element of the offense and reverse only if the instructions did not fairly determine whether the jury instructions adequately and accurately explain [the defendant’s] admitted force could be legally justified or could only be used entitled to use non-deadly force, the jury was unable to properly judge whether

“When reviewing jury instructions, we evaluate allegations of error by decisions on these matters for an unsustainable exercise of discretion. Id. physical force element of the crime of robbery, see RSA 636:1, or to establish

p. 8 against Rivera may have been improperly utilized by the jury to establish the Nevertheless, the defendant contends that his admitted use of force

of another. See State v. Gingras, 162 N.H. 633, 639 (2011) (defendant entitled to jury accomplice to armed robbery based upon justifiable conduct under RSA 627:4. legal significance of his admitted use of force and found him guilty of being an

interpreted by the jury.” Ramos, 149 N.H. at 274. Such a defense creates a 8 the State, and then argue[s] how the facts and evidence should be evaluated or

jury in accordance with the model jury instructions on self-defense and defense

because, without such an instruction, the jury may have misunderstood the

simply presents “evidence of a different factual scenario than that presented by

facts to “excuse, exonerate or justify his actions,” Bruneau, 131 N.H. at 117, instruction on legal significance of claimed facts).

precedents demonstrate that the trial court did not err in failing to instruct the Hart and prompted the defendant to use force in defense of Hart. Thus, our to have a conversation with Rivera, a conversation which led Rivera to stab should have instructed the jury on defense of another under RSA 627:4 to Hart in robbing Rivera. Thus, he appears to argue that the trial court that the defendant, as charged in the indictment, agreed to provide assistance

defendant is not entitled to a jury instruction on a proffered “defense” when he necessarily had to find that victim did not consent). In other words, a jury to find, as charged, that he did so through concealment or surprise, jury of admitting that he aided Hart in the commission of the crime and pointing to

Here, the defendant did not admit to any of the facts alleged in the

and to believe instead his testimony that he and Hart went to Longval’s house disbelieve Sallies’ testimony that he planned and committed armed robbery, the State.” Ramos, 149 N.H. at 274. In short, the defendant asked the jury to the defendant testified to a “different factual scenario than that presented by

because although he admitted to sexually penetrating the victim, in order for indictment charging him with being an accomplice to armed robbery. Instead

excuse or justify his conduct, but [was] denying criminal behavior”); State v. charge.” Id. “credibility contest,” which we have recognized “is not a legal defense to any

responsibility to instruct the jury on the law.” Bruneau, 131 N.H. at 117-18. significance of claimed facts, and it thus falls within the scope of a judge’s

felonious sexual assault was not entitled to instruction on defense of consent Ramos, 149 N.H. 272, 274-76 (2003) (defendant charged with aggravated

because he was “not admitting liability and pointing to facts that exonerate, N.H. 653, 662 (1984) (defendant was not entitled to requested jury instruction the evidence should be evaluated and interpreted.” Id.; State v. Shannon, 125 By contrast, a “theory of the case” is “simply the defendant’s position on how defense counsel was “getting into hearsay.” In response, defense counsel made

p. 9 At this point, the State objected. At sidebar, the State argued that

was planning on trying to get . . . . Q: Okay. Well, do you remember David Rivera telling Pat that he

III. Hearsay Objection

A: I don’t remember.

Rivera, and Pat McIntyre at your house?

Q: Do you remember a conversation between yourself, . . . David

defense and defense of another. trial court did not err in refusing to give the model jury instructions on selfindependent of his admitted use of force. Accordingly, we conclude that the

lot. I was friends with both of them. A: I don’t remember. Pat and his mother both were at my house a

told to acquit the defendant even if it found evidence sufficient to convict him

instructions on self-defense and defense of another, the jury would have been

[the day of the robbery] at your house?

commission of the robbery. In short, had the trial court given the model jury admitted use of force that he agreed to provide assistance to Hart in the Rivera. The State also presented evidence independent of the defendant’s

Q: Do you ever remember Pat McIntyre . . . coming over to visit on

exchange preceded the objection:

defendant or Hart used or threatened physical force in furtherance of robbing

hearsay objection during his cross-examination of Longval. The following that the State had to prove beyond a reasonable doubt. See Etienne, 163 N.H. The defendant next argues that the trial court erred in sustaining a conduct negating the defenses would have become an element of the offense model jury instructions on self-defense and defense of another had been given, evidence independent of the defendant’s admitted use of force that the

must find the defendant not guilty.” N.H. Bar Assoc. Criminal Jury whether the defendant acted in self-defense [or in defense of another], you

entitled to a jury instruction narrowly crafted to address this concern. If the have been guilty of being an accomplice to armed robbery. The State presented We need not decide, however, whether the defendant would have been here, the defendant could have used force defensively against Rivera and also of law because, unlike in a typical self-defense or defense-of-another situation, Instructions 3.10. Such an instruction would have been erroneous as a matter

at 81. The jury would have been told, “If you have reasonable doubt as to remembered or believed.” State v. Hall, 152 N.H. 374, 378 (2005) (quotation p. 10 health), but not including a statement of memory or belief to prove the fact condition (such as intent, plan, motive, design, mental feeling, pain, and bodily

are clearly untenable or unreasonable to the prejudice of a party’s case.” State unsustainable exercise of discretion standard and reverse only if the rulings “We review challenges to a trial court’s evidentiary rulings under our

declarant’s then existing state of mind, emotion, sensation, or physical

correction in the trial court.” Saulnier, 132 N.H. at 414 (quotation omitted).

excluded evidence. See N.H. R. Ev. 103(b); State v. Saulnier, 132 N.H. 412,

additional reasonable doubt about the State’s theory of the case.” interacted with Rivera before the night in question,” and “may have provided admitted for the truth of the matter asserted if it is “[a] statement of the or intent.” Rule 803(3) provides that an out-of-court statement may be alleged statement was admissible as “a statement of Rivera’s then existing plan claim of error [so] that [it] can be addressed before any damage is beyond The defendant maintains that the trial court erred because Rivera’s

the objection. offer of proof sufficient to apprise the court of the specific nature of the prosecutor briefly discussed the scope of Rule 803(3), the trial court sustained

untenable or unreasonable to the prejudice of his case. See State v. Ruggiero, statement “would have corroborated [the defendant’s] testimony that he had As in Saulnier, in this case the question asked by defense counsel sought to decision made. State v. McDonald, 163 N.H. 115, 121 (2011). The defendant

413-14 (1989). “[T]he object [of Rule 103(b)] is to advise the trial judge of a

the proponent of the evidence bears the burden of making a contemporaneous something in the future is admissible.” After defense counsel and the In order to predicate error on a trial court’s ruling excluding evidence,

bears the burden of demonstrating that the trial court’s ruling was clearly exclusion of this evidence prejudiced [his] case.” He argues that the excluded version of what had occurred, consistent with his innocence, the court’s the record establishes an objective basis sufficient to sustain the discretionary Rivera’s lack of credibility, and where [the defendant] offered a contrasting whether a ruling is a proper exercise of judicial discretion, we consider whether v. Brooks, 164 N.H. 272, 283 (2012) (quotation omitted). In determining

803(3) “an out of court statement about somebody’s plans and intent to do $20.00.” Defense counsel argued that under New Hampshire Rule of Evidence that David Rivera told him he was planning on robbing [the defendant] for

State offered no direct evidence of what happened in the room and admitted omitted); N.H. R. Ev. 803(3). Thus, according to the defendant, “[w]here the

I have a good faith [belief] . . . based on the statement by Pat McIntyre who said the following offer of proof: “I don’t know what this witness is going to say, but p. 11 McIntyre may have told Longval. Id.

concluding that the question would not elicit inadmissible hearsay about what have found that the defendant failed to establish an objective basis for of mind hearsay exception under Rule 803(3), the trial court could sustainably have been. See McMullin v. Downing, 135 N.H. 675, 679 (1992) (holding that

circumstances, even if we assume that Rivera’s statement falls within the state statement and thus no foundation for determining what her testimony would offer of proof, we have no basis for concluding that Longval heard Rivera’s prejudiced the defendant. Based on Longval’s testimony and defense counsel’s

McIntyre that this is what Rivera said, which would make Rivera’s declaration Longval heard Rivera make this statement – as opposed to having been told by

predict what Longval would say in answer to the question at issue. Given these

planned to rob the defendant, we cannot conclude that the trial court’s ruling

absent from the offer of proof was any indication of a basis for believing that we could not “weigh the prejudice suffered” as a result of the exclusion of

her house frequently. In addition, counsel acknowledged that he could not the robbery, and had further said that McIntyre was a good friend who was at remember a conversation between herself, Rivera and McIntyre on the day of inquire whether Longval remembered hearing Rivera tell McIntyre that he In any event, even if we assume that the defendant was entitled to

that Rivera told McIntyre he planned to rob the defendant, conspicuously Although counsel told the court he had a good faith basis for believing

exception). The defendant failed to meet this burden. constitute inadmissible hearsay. Saulnier, 132 N.H. at 414-15; see Bohan v.

time the objection was posed, Longval had already testified that she did not

evidence.” (citations and quotations omitted)); People v. Morrison, 101 P.3d

hearsay statement has burden to demonstrate admissibility under applicable testimony to satisfy the trial court that what he sought to elicit did not the evidence.”); State v. Sweeney, 151 N.H. 666, 677 (2005) (proponent of to make an adequate offer of proof regarding the relevance or admissibility of 568, 586 (Cal. 2004) (“Evidence is properly excluded when the proponent fails

what it tends to show, and, second, identify the grounds for admitting the hearsay. N.H. R. Ev. 801(c) (“‘Hearsay’ is a statement, other than one made by an adequate offer of proof, the proponent must, first, describe the evidence and elicit an out-of-court statement made by Rivera that was presumptively content . . . of proposed testimony is not an offer of proof. In order to qualify as Adams, 271 F.3d 1236, 1241 (10th Cir. 2001) (“[M]erely telling the court the basis for admissibility of the proffered evidence”); accord United States v. Ritzo, 141 N.H. 210, 218 (1996) (offer of proof must “set[] forth the specific

a sufficiently specific offer of proof as to the substance of the expected the truth of the matter asserted.”). It thus was the defendant’s burden to make the declarant while testifying at the trial or hearing, offered in evidence to prove guilt.”

p. 12 face of police questioning cannot be used in the State’s case-in-chief to infer requesting the presence of a lawyer” and that the “choice to remain silent in the contends that “[a] defendant may invoke [his] right to remain silent by

and the Fifth and Fourteenth Amendments to the Federal Constitution. He

invoked his right to counsel violated Part I, Article 15 of the State Constitution The defendant argues that Eichhorn’s testimony that the defendant

stated was not true at the time.

knife with him that Rivera had taken away from him. Which he was wrong . . . . [I]t said in the paper that he had brought the him talk. He then stated to me that what he had read in the paper

questions. I didn’t answer him in any way, and just kept letting

he had read in the paper was wrong. I didn’t ask him any

fairness, integrity or public reputation of judicial proceedings.” Randall v. error must affect substantial rights; and (4) the error must seriously affect the

his right to counsel. See Miranda v. Arizona, 384 U.S. 436 (1966). 4 The record does not establish whether the defendant received Miranda warnings before invoking

plain error rule.” State v. Cassavaugh, 161 N.H. 90, 100 (2010). result. Id. “We have looked to the federal plain error analysis in applying our to those circumstances in which a miscarriage of justice would otherwise Abounaja, 164 N.H. 506, 510 (2013). The rule is used sparingly and is limited he said to me, that he wished he could talk to me. Because what we did not ask him any questions. During the transport to the jail A: Yes. . . . [The defendant] had invoked his right to counsel. So find plain error: “(1) there must be an error; (2) the error must be plain; (3) the trial court. State v. Russell, 159 N.H. 475, 489 (2009); Sup. Ct. R. 16-A. To to your police station? Under the plain error rule, we may consider errors not raised before the Q: Did anything happen . . . in transit in the police car on the way

of the trial. 4 He argues that the error affected his substantial rights and the fairness

At trial, Detective Corporal John Eichhorn testified without objection:

IV. Invocation of Right to Counsel

testimony would have been“); Saulnier, 132 N.H. at 415 (“Absent an offer of plaintiff’s testimony because “we ha[d] no way of knowing what the plaintiff’s

admitting testimony that he invoked his right to counsel when he was arrested. Finally, the defendant argues that the trial court committed plain error in

impossible to ascertain what the testimony of the witness would have been.”). proof indicating what response, if any, the question sought to elicit, it is p. 13 State v. Lopez, 156 N.H. 416, 424 (2007) (quotations and citations omitted).

In the same answer in which Eichhorn testified that the defendant invoked his

time of appeal, a decision by the trial court cannot be plain error. law is not clear at the time of trial, and remains unsettled at the

objecting to the testimony of the defendant’s invocation of his right to counsel.

law was clearly settled to the contrary . . . . Generally, when the 13

We also note that defense counsel may have had strategic reasons for not

invoked his right to counsel or impeach the defendant with his invocation. police station following the defendant’s arrest. Cf. Cassavaugh, 161 N.H. at 99question about whether anything happened in the police car on the way to the

was or should have been obvious in the sense that the governing the error is clear under current law. Thus, an error is plain if it minimum, a court of appeals cannot correct an error . . . unless

was error”). Here, the prosecutor did not deliberately elicit that the defendant prosecutor to ask the defendant to opine upon the credibility of other witnesses counsel was a passing reference in response to the prosecutor’s general improper questioning of a witness. Lopez, 156 N.H. at 424 (“permitting the is not a case in which the trial court allowed the prosecutor to engage in asserted the privilege against self-incrimination on the witness’s behalf”). This v. King, 146 N.H. 717, 722 (2001) (trial court erred “when it sua sponte have suggested that courts should refrain from taking such action. See State Plain is synonymous with clear or, equivalently, obvious. At a instruction with respect to witness testimony. Indeed, in another context, we court committed plain error. We have never held that a trial court must sua sponte strike or issue a curative We conclude that the defendant has not demonstrated that the trial

the jury sua sponte to disregard witness statement).

testimony. Eichhorn’s testimony that the defendant invoked his right to “failure to strike [witness testimony] or give a limiting instruction sua sponte” was arrested. The trial court did not rule on the admissibility of Eichhorn’s trial court “admitted” testimony that he invoked his right to counsel when he the defendant invoked his right to counsel. See United States v. Rodriguez,

pertinent question is whether the trial court erred in failing sua sponte to

2003) (reviewing whether trial court committed plain error in failing to instruct constituted plain error); United States v. Newton, 326 F.3d 253, 262 (1st Cir.

302 Fed. Appx. 468, 471 (7th Cir. 2008) (reviewing whether the district court’s As an initial matter, we disagree with the defendant’s assertion that the strike or issue a curative instruction with respect to Eichhorn’s testimony that

and videotaped recording of defendant’s invocation of his right to silence). The 100 (trial court committed plain error when it admitted portion of transcript p. 14 Affirmed.

counsel with a strategic reason not to object). defendant was aware he had no obligation to speak to the police. See United being wrong would take on added credibility if the jury understood that the

counsel’s strategic reasons not to object, the court would thereby provide have concluded that the defendant’s statement about the newspaper story

court were to review evidentiary rulings for plain error without factoring in the defendant’s arguably exculpatory statements. Defense counsel also may finding of plain error is rarely appropriate.”); United States v. Smith, 459 F.3d because of fear that the court would strike Eichhorn’s entire answer, including robbery was wrong. Thus, defense counsel may have refrained from objecting Massey v. State, 771 P.2d 448, 453 (Alaska Ct. App. 1989) (“[U]nless the record Defense counsel may have had strategic reasons for not objecting. . . .”); DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.

1276, 1302 (11th Cir. 2006) (Tjoflat, J., concurring) (noting that if an appellate

precludes the possibility that counsel’s actions may have been tactical, a statements “that he wished he could talk” and that a newspaper account of the right to counsel, he also testified to the defendant’s arguably exculpatory remark or give a curative instruction limiting the effect of the comment. however, that it was plain error for the court not to sua sponte strike the States v. Lin, 101 F.3d 760, 770 (D.C. Cir. 1996) (“We cannot conclude,