2012-047, State of New Hampshire v. Brendan Bisbee

defendant charging seven separate counts of perjury. Four indictments Rockingham County grand jury returned seven indictments against the The record establishes the following pertinent facts. In January 2011, a

mistrial following the prosecutor’s closing argument. We affirm. dismiss the indictments as insufficient; and (2) denying his request for a argues that the Superior Court (McHugh, J.) erred in: (1) denying his motion to jury on five counts of perjury. See RSA 641:1, I(a) (2007). On appeal, he LYNN, J. The defendant, Brendan Bisbee, appeals his convictions by a

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

the brief and orally), for the State. Michael A. Delaney, attorney general (John J. McCormack, attorney, on

No. 2012 - 047 Rockingham

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 p. 2 22 as 2

Constitution and Part I, Article 15 of the State Constitution, he contends that different statement s is not sufficiently specific.” Citing the Federal indictment which summarizes testimony in such a way as to encompass making of false statements, not the creation of false impressions,” “[a]n prior testimony. He argues that because RSA 641:1, I(a) “criminalizes the indictments, which, he contends, merely represent a “summ ary or gist” of his offense.” He maintains that he did not make the statements alleged in the the indictments charging him with perjury “did not adequately allege an The defendant first argues that his convictions must be vacated because

I. S ufficiency of the Indictments

on the remaining two counts, he filed this appeal. the jury found the defendant guilty of five counts of perjury and acquitted him “[T] he only prob lem with [the State’s argument] is it’s overly descriptive.” After and a “mope.” The court denied the defendant’s motion. The court explained: his personal opinion into the closing when he ca lled the defendant a “dirty cop” moved for a mistrial. He argued that the prosecutor had improperly interjected At the conclusion of the prosecutor’s closing argum ent, the defendant

motion at trial was similarly unsuccessful. [d]efendant.” The court denied the motion. The defendant’s renewal of the face since none of them alleges any ‘statement’ actually made by the repeating his argument that “all of these indictments are insufficient on their court denied the motion. The defendant then filed a motion to reconsider, the indi ctments did not allege specific statements made by him. The superior of [p]erjury, i.e. a statement by the [d]efendant under oath.” He asserted that and accusations against him”; and ( p. 2 2) failed to allege “an element of the offense that they: (1) failed to “fully and substantially inform him of the allegations Before trial, the defendant moved to dismiss the indictments, argu ing

cell phone to call 679 - p. 2 2225 during the evening of May 4, 2008.” 2008”; and ( p. 3 3) “he could not remember if he or Kristin Ruggiero had used his police officer did not come t o 13 Pinewood Road during the evening of May 4, picked up Kristin Ruggiero at the Oakland Airport on March 20, 2008”; (2) “a Court, on or about April 27, 2010, that: (1) “he could not remember if he had Ruggiero, Docket No. 09 - S - 1290 - 1302, in the Rockingham County Superior committed perjury when he testified in the criminal trial of State v. Kristin the evening of May 4, 2008.” Three indictments charged that the defendant and (4) “Kristin Ruggiero had not used his cell phone to call 679 - 2225 during officer did not come to 13 Pinewood Road during the evening of May 4, 2008”; Ruggiero at the Oakland [California] Airport on March 20, 2008”; (3) “a police the state of Tennessee”; (2) “he could not remember if he had picked up Kristin jury, on or about March 6, 2009, tha t: (1) “Kristin Ruggiero had never been to charged that the defendant committed perjury when he testified before a grand 3

(7th Cir. 1989) (“The law does not require that a perjury indictment or indictment” (quotation omitted)); United States v. Yasak, 884 F.2d 996, 1002 requirement that a particular statement serve as the basis for a perjury defendant’s testimony “in substance and effect” because “[t]here is no 881 (Mass. 2001) (perjury indictment sufficient although it alleged the have rejected this argument. See Commonwealth v. Alliso n, 751 N.E.2d 868, a way as to encompass different statements is not sufficiently specific.” Courts argument that an indictment for perjury “which summarizes testimony in such allegedly false statements). We are n ot persuaded, however, by the defendant’s N.H. 570, 589 (198 p. 3 3) (noting that perjury indictments quoted the defendant’s particular material fact is the gravamen of the crime.”); State v. Sands, 123 indictment fo r perjury, the making of the assertion under oath concerning a false impressions. See State v. Settle, 132 N.H. 626, 632 (1990) (“In an that the statute criminalizes the making of false statements, not the creation of does not believe the statement to be true.” Thus, we agree with the defendant or swears or affirms the truth of a material statement previously made, and he proceeding . . . [h]e makes a false material statement under oath or affirmation, RSA 641:1, I(a) provides that a person commits perjury “if in any official

charges against him. Mars hall, 162 N.H. at 661 - 62. elements of the offense and enough facts to warn a defendant of the specific could have been more certain and comprehensive, but whether it contains the 588 (2011) (quotation omitted). The question is not whether the indictment are not essential to the elements of the crime.” State v. Ortiz, 162 N.H. 585, not specify the means by which the crime was accomplished or other facts that generally is sufficient if it recites the language of the relevant statute; it need sufficient allegations to identify the offense in fact.” Id. “An indictment charged; the indictment must inc lude the elements of the offense with is not enough merely to state the crime with which a defendant is being in jeopardy a second time for the same offense.” Marshall, 162 N.H. at 661. “It enable him to prepare for trial and at the same time protect him from being put defendant of the offense with which he is charged with sufficient specificity to 15. “To meet this constitutional standard, an indictment must inform a plainly, substantially and formally, described to him.” N.H. CONST. pt. I, art. shall be held to answer for any crime, or offense, until the same i s fully and Part I, Article 15 of the State Constitution provides that “[n]o subject

Ball, 124 N.H. 226, 2 p. 3 31 - 33 (1983). Constitution and rely upon federal law only to aid in our analysis. State v. 657, 661 (2011). We first consider the defendant’s argument under the State and statutory interpretation, our review is de novo. State v. Marshall, 162 N.H. Becaus e the defendant’s argument raises questions of constitutional law

jury unanimity, and to protect against doub le jeopardy.” such indictments are “insufficiently specific to provide fair notice, to assure p. 4 4

consistently held, the sufficiency of an ind ictment is measured against the depends in part on its ability “to assure jury unanimity.” As we have argument rests upon the faulty premise that the sufficiency of an indictment insufficient because they do not allow him “to assure jury unanimity.” This We also disagree that the indictments returned against the defendant are

however, and therefore we need not address it. State v. Keegan, 106 N.H. 152, 15 p. 4 4 (1965). He d id not make this argument, variance existed between the indictmen t s and t he evidence offered at trial. See from the indictments’ sufficiency. The defendant could have argued that a fatal statements alleged in the indictments raises an issue of proof that is distinct State.” (quotation and brackets omitted)). W hether the defendant m ade the only when the facts alleged on its face fail to make out an offense again st the (Me. 2013) (“A n indictment is subject to dismissal for failure to state an offense with the defendant’s prior testimony. Cf. State v. Strong, 60 A.3d 1286, 1289 indictment, the trial court need not compare the alleged ly perjurious statement procedure in criminal cases.”). In evaluating the sufficiency of a perjury Ct. App. 2012) (“Unlike civil proceedings, there is no summary - judgment evidence.” (quotation omitted)); State v. Parkman, 106 So. 3d 378, 381 (Miss. F.2d at 1001 (“A motion to d ismiss is not intended to be a s ummary trial of the sufficiency of a criminal indictment is determined from its face.”); Yasak, 884 provide for a pre - trial determination of sufficiency of the evidence.. . . The (“There is no summary judgment procedure in criminal cases. Nor do the rules argument. See United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) because he did not make the statements contained therein, we reject this To the extent the defendant argues that the indictments are insufficient

trial preparation can begin.”). whatever he knows about the offense, so that investigation, discovery and other effectively invo ke double jeopar dy protection [and] educate his counsel on 129 N.H. 765, 770 (1987) (“[A] defendant charged with a specific offense may prosecute him for perjury for the same alleged statement. Cf. State v. Th err i en, He may al so raise the defense of double jeopardy if the State seeks to re prior testimony and argue at trial that he did not make the alleged stat ement. the State must prove at trial. The defendant may review the transcripts of his an indictment informs the defendant of the allegedly perjurious statement that alleged statement represent s a summary of the defendant’s testimony. Such statement to the defendant does not fail for insufficiency even though the W e conclude that an indictment for perjury that attributes a f alse

false statement either verbatim or in its substance”). 1972) (perjury indictment insufficient because it failed to “set forth the alleged (c itation and quotation s omitted)); People v. Aud, 288 N.E.2d p. 4 4 p. 5 53, 454 (Ill. if the indictment or information pr ovides such testimony in substance.” information reiterate the exact words of the perjured testimony. It is sufficient 5

Ballard v. Bengston, 702 F.2d 6 p. 5 56, 660 (7th Cir. 1983) (“Because the constitutional requirement of every accused in a criminal proceeding in all courts, state or federal.”); United States ex rel. heard in a trial of the issues raised by that charge, if desired, are among the constitutional right s process is more clearly established than that notice of the specific charge, and a chance to be Amendment. See Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of procedural due the charged offense applies to the states through the Due Process Clause of the Fourteenth criminal defendant’s federal constitutional right to an indictment that provides adequate notice of no greater protection with respect to the sufficiency of an indictment. To be clear, however, a Constitution would not have affected our decision as the Federal Constitution affords a defendant stateme nt of the law is correct, and consideration of the defendant’s claim under the Federal incorporated into the Fourteenth Amendment, and, thus, does not apply to the states.” Id. This Federal Constitution because “the Grand Jury Clause of the Fifth Amendment has not been argument only under the State Co nstitution. Id. We declined to address his argument under the the elements of the charged offense.” Id. (quotation and brackets omitted). We addressed his “implicate[d] his constitutional rights to due process and a grand jury indictment that alleges all of Federal Constitution. Marshall, 162 N.H. at 661. He alleged that defic iencies in the indictment under Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments to the In Marshall, the defendant argued that the indictment underlying his conviction was insufficient

162 N.H. at 661. Compare Hamling v. United States, 418 U.S. 87, 117 - 18 (1974), with Marshall, Constitution, we reach the same result under the Federal Constitution. protection with respect to the sufficiency of an indictment than the State Because the Federal Constitution affords the defendant no greater

defendant did not object to the court’s jury instructions. violated the defendant’s right to jury unanimity. Id. at 131. H ere, the Rather, we held that the trial court’s jury instruction was in error because it the sufficiency of the charging document, and we did not address the issue. ability “to assure jury unanimity.” In Greene, the defendant did not challenge proposition that the sufficiency of an indictment depends upon the defendant’s Contrary to the defendant’s argument, Greene does not stand for the

gu ilt.” Id. at 129. entitled to jury unanimity as to the factual predicate supporting a finding of finding an element of the offense to have been established, a defendant is that “[w]here discrete factual predicates can provide alternative bases for element of unprivileged physical contact.” Id. at 131. We reversed. We held instruct the jury that it had to agree “to the factual predicate constituting the Greene, 137 N.H at 127 (quotation omitted). At trial, the trial court failed to her fist and in the torso with her fist and did further kick him about the bod y.” contact” with a police officer when she “punch [ed] the [officer] in the face with assault charged that the defendant “did knowingly cause unprivilege d physical Greene, 137 N.H. 126 (1993). In Greene, a complaint for m isdemeanor simple In support of his argument, the defendant relies solely upon State v.

N.H. at p. 5 588. defendant’s ability to “prepare for trial and avoid double jeopardy.” Ortiz, 1 p. 6 62 6

claim. See State v. Lamarche, 157 N.H. 337, 341 (2008). sufficiency of an indictment under the Federal Constitution, our state courts must address the brackets om itted)). Accordingly, lest there be any confusion, where a defendant challenges the requiring that a defendant is entitled to fair notice of the charges against him.” (quotation and states, the Fourteenth Amendment’s due process clause generally has been interpreted as omitted)); Chandler v. Moscicki, 253 F. Supp. 2d 478, 48 p. 6 6 (W.D.N.Y. 2003) (“As applicable to the measurement against general fourteenth amendment guarantees of due process.” (citation indictment is largely one of state law. However, the validity of an indictment is subject to of a grand jury indictment is not applicable to the states, the issue of the sufficiency of the

Guay, 1 p. 6 62 N.H. 375, 378 (2011) (quotation omitted). action is necessary absent an unsustainable exercise of discretion.” State v. overturn the trial court’ s decision on whether a mistrial or other remedial jury instructions.” State v. Willey, 163 N.H. 532, 538 (2012). “We wi ll not prejudicial that it constitutes an irreparable injustice that cannot be cured by evidence or comment complained of is not merely improper, but is so 582 (1997) (quotation omitted). “M istrial is the proper remedy only if the to bias and prejudice.” LeBlanc v. American Honda Motor Co., 141 N.H. 579, to pleas of pure passion and there must be restraints against blatant appeals accused,” State v. Bujnowski, 130 N.H. 1, 4 (1987), and “there must be limits their personal opinions as to the credibility of a wi tness or the guilt of the (quotation omitted). At the same time, prosecutors may not “profess to the jury of guilt from the evidence.” State v. Demond - Surace, 162 N.H. 17, 26 (2011) discuss the evide nce presented to the jury and to urge them to draw inferences facts proven and has great latitude in closing argument to both summarize and (quotation omitted). “[A] prosecutor may draw reasonable inferences from the compromised in the process.” State v. Mussey, 153 N.H. 272, 280 (2006) fashion argument with the need to ensure that a defendant’s righ ts are not argument, we face the delicate task of balancing a prosecutor’s broad license to “In examining claims of prosecutorial misconduct during closing

prosecutor’s use of the term “mope” was improper or prejudicial. that the defendant was a ‘dirty cop.’” He makes no argument as to why the and improperly communicated to the jury the prosecutor’s “personal opinion perjuries,” created “a risk that the jury would convict on an improper basis,” characteristics beyond those associated with his commission of the a lleged the epithet “dirty cop” suggested to the jury that the defendant “has negative advocacy from an illegitimate appeal to passion and prejudice.” He argues that the evidence presented at trial” and “crossed th e line separating legitimate the prosecutor “failed to place his argument securely within the framework of the defendant a “dirty cop” and referred to him as a “mope.” He contends that motion for a mistrial after the prosecutor, in his closing argument, twice called The defendant next argues that the trial court erred in denying his

II. C losing Argument p. 7 7

defendant’s motion for a mistrial. Guay, 162 N.H. at 3 p. 7 78. conclude that the trial court sustainably exercised its discretion in denying the term “mope” was improper or prejudicial, we need not address this issue. We Given that the defendant has not argued why the prosecutor’s use of the

being used to express his personal opinion. See Wood, 150 N.H. at 236. prosecutor’s contention that the defendant was guilty of perjury, and were not context, the term s “dirty cop” and “dirty ex - cop” merely summarized th e to object to prosecutor’s characterizatio n of defendant as a “predator”). In Kepple, 155 N.H. 26 p. 7 7, 271 - 72 (2007) (defense counsel not ineffective for failing the term “child molester” did not amount to prosecutorial misconduct); State v. with” the crime of perjury. Cf. State v. Wood, 150 N.H. 233, 236 (2003) (use of they may have suggested “negative characteristics beyond those associated defendant as a “dirty cop” and “dirty ex - cop” were not improper simply because 26 (quotation omitted). Furthermore, the prosecutor’s characterizations of the “to draw inferences of guilt from the evidence.” Demond - Surace, 162 N.H. at grounded his argument in the evidence presented at trial, and asked the jury transcripts – that is, to examine the evidence. The prosecutor properly the prosecutor directed the jury to use its common sense and to look at the Similarly, in asking the jury to tell the defendant that he was a “dirty ex - cop,” perjurious testimony of the defendant and the testimony of Officer Iannuccillo. cop in this case,” the prosecuto r asked the jury to compare the allegedly served as a police officer in Massachusetts. In stating that “[t]here is a dirty prejudice.” E vidence adduced at trial revealed that the defendant had formerly express his personal opinion, or “illegitimate[ly] appeal to passion and improper. Contrary to the defendant’s argument, the prosecutor did not references to the defendant as a “dirty cop” and “dirty ex - cop” were not We conclude that in the context of the facts of this case, the prosecutor’s

there, the dirty ex - cop, the State asks th at you tell him that. charges, because he is guilty. As he sits there today right over The State asks that you find [the defendant] guilty of all the working today. Use your common sense, look at the transcripts. Their lies didn’t work before, ladies and gen tlemen, they’re not

At the end of his closing argument, the prosecutor stated:

refer to him as an ex - cop. It’s a damn shame. this case. He’s right there. And it’s too bad that we even have to you, [the defendant] or Officer Iann uccillo. There i s a dirty cop in When you go in the deliberation room you decide who’s lying to

testimony of the defendant and Officer Mark Iannuccillo: In closing argument, the prosecutor asked the jury to compare the p. 8 8

DALIANIS, C.J.