2012-0561, State of New Hampshire v. Barion Perry

recorded. Prior to the defendant’s first trial, counsel for the defendant and the defendant following his arrest for theft and burglary. The interview was The record supp orts the following facts. Detectives interviewed the

indictments against him on double jeopardy grounds. We affirm. Superior Court (Nicolosi, J.) erred in denying his motion to dismiss the taking, RSA 637:3 (2007), and burglary, RSA 635:1 (2007), arguing that the following a trial in Superior Court (Kissinger, J.) for theft by unauthorized BASSETT, J. The defendant, Barion Perry, appeals his convictions

brief and orally, for the defendant. David M. Rothst e in, deputy chief appellate d efender, of Concord, on the

assistant attorney g eneral, on the brief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2012 - 561 Hillsborough - southern judicial district

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, Concor d, 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

scheduled a new trial. mistrial. The trial court declared a mistrial over the defendant’s objection and assistance of counsel” for another lawyer to advise the defendant not to seek a prejudicial nature of the unredacted statements, it “could be ineffective court did not assign independent counsel because it concluded that, given the curative instruction would not have been able to address adequately. The mistrial because the jury heard “damaging,” “inflammatory” information that a The court ultimately concluded, however, that manifest necessity required a independent counsel to speak with the defendant about the mistrial request. two of the statements for redac tion prior to trial, it considered assigning effectively advise the defendant about a mistrial as counsel had failed to “mark” Because t he court was concerned that defense counsel could not

and affected the defendant’s right to a fair trial. decision not to request one, because the statements were extremely prejudicial declared based on manifest necessity,” notwithstanding the defendant’s that ha[d] nothing to do with a mistrial.” The State urged that “a mistrial be interview, he wanted to go forward with the trial because he had “other options convicted because the jury heard potentially prejudicial statements in the During the colloquy, the defendant stated that, although he did not want to be Defense counsel requested neither a mistrial nor a curative instruction.

court assumed that at least one of th e jurors also had heard them. because the attorn eys and the defendant had heard the statements, the trial poor quality of the recording and the acoustics in the courtroom. Nonetheless, references. T he court stated that she had not hear d the statements due to the him when the statements were played and that he believed that they heard the told the court that he had noticed “at least four or five of the jurors” looking at T he trial court conducted a colloquy with the defendant, during which he

failed to do so. However, he had requested that the third statement be redacted, but the State he had failed to request that the S tate redact the first two statements. statement contained a reference to prison. Defense counsel acknowledged that defendant referred to his “PO,” apparently meaning his parole officer. The final his prior conv iction for theft and burglary. In the second statement, the parties agreed that, in his first statement, the defendant apparently referred to was poor and portions of the interview transcript were marked “inaudible,” the b een redacted were not, in fact, redacted. Although the quality of the recording counsel advised the trial court that three of the statements that should have Shortly after the State played a redacted version of the recording, defense interview should be redacted before the recording was played for the jury. State agreed that certain statements made by the defendant during the p. 3 3

expense and ordeal and compelling him to live in a continuing state of for an alleged offense, thereby subjecting him to embarrassment, should not be allowed to make repeated attempts to convict an individual Such a right exists because the State with all its resources and power

judge, in a bench trial.” Id. (quotation omitted). particular tribunal: either the same chosen jury, in a jury trial; or the same “A defendant normally has the right to complete a trial before a

judgment.” Id. (citation, quotation, and ellipses omitted). or conviction, or upon an unnecessarily declared mistrial preventing either thereby prohibiting retrial for the same offense — upon a judgment of acquitta l omitted). “After jeopardy attaches for a particular offense, it ‘ terminates ’ — case of a bench trial, when the judge begins to hear evidence.” Id. (citation defendant is placed in jeopardy when a jury is empaneled and sworn, or, in the offense.” State v. Ojo, 165 N.H. ___, ___ (decided February 21, 2014). “A State from placing a defendant in jeopardy more than once for the same “The Double Jeopardy Clause of the New Hampshire Constitution prohibits the 124 N.H. 226, 2 p. 3 31 - 33 (1983); see State v. Howell, 158 N.H. 717, 719 (2009). Constitution and rely upon federal law only to aid our analysis. State v. Ball, We first address the defendant’s double jeopardy claim under the State

introducing the prejudice. statements and by concluding that defense counsel was to blame for He further argues that the trial court erred by assuming that the jury heard the even following the introduction of prejudicial inf ormation. (Quotation omitted.) should have been able to “retain primary control” over the course of his trial, “the court was not authorized to end [his] trial over his objection” because he to override [his] valued right to a tria l before a single tribunal.” He asserts that “[t] he fact that the jury might have heard prejudicial information i s insufficient the “high degree” of necessity required by the law. He specifically argues that supported by manifest nec essity” because the circumstances failed to satisfy that its decision to declare a mistrial over [the defendant’s] objection was On appeal, the defendant argues that “[t]he trial court erred in ruling

the State, and denied the defendant’s motion to dismiss. counsel claim had the first trial been completed. The trial court agreed with things, the defendant would have had a successful ineffective assistance of necessity supported the court’s declaration of mistrial because, among other pt. I, art. 16; U.S. CONST. amend. V. The State objected, arguing that manifest Hampshire and United States Constitutions barred retrial. See N.H. CONST. necessity, and, therefore, that the double jeopardy provisions of the New wit h prejudice. He argued that the mistrial was not supported by manifest Prior to the second trial, t he defendant moved to dismiss the indictments p. 4 4

supports it.” Id. at 720 - 21 (quotation, brackets, and ellipses omitted). court’ s find ing of manifest necessity only where the record affirmatively implicates such a fundamental constitutional right, we will defer to a trial N.H. at 720. “In such instances, because a mistrial is of such gravity and prudence in declaring a mistrial, our deference is diminished.” Howell, 158 any findings or state its reasoning on the record, or otherwise fail s to exercise will bar retrial.” Solomon, 157 N.H. at 51. “If... the trial court fails to make that manifest necessity required a mistrial, then the Double Jeopardy Clause “However, if the trial court unsusta inably exercised its discretion in concluding generally defer to its declaration of a mistrial.” Howell, 158 N.H. at 720. trial court clearly indicates on the record its findings and reasoning, we time for reflection. Petition of Brosseau, 1 p. 4 46 N.H. 339, 341 (2001). “Where the have encourag ed them to discuss lesser sanctions with counsel and to take W e have cautioned trial courts not to terminate trials too quickly, and

consider alter natives before declaring a mistrial.” Howell, 158 N.H. at 720. circumstances into account, and should allow counsel to comment as well as 52 (2008) (quotation omitted). “A trial court must therefore take all the strength of the justification for a mistrial.” State v. Solomon, 157 N.H. p. 4 47, completing his trial in a single proceeding before a particular tri bunal versus requires a balancing of competing concerns: the defendant’ s interests in whether manifest necessity exists to justify the declaration of a mistrial mechanically.” State v. Gould, 144 N.H. 415, 417 (1999). “Determining declared, ‘ manifest necessity ’ is a variable standard which cannot be appli ed “Although a high degree of necessity is required before a mistrial is

circumstances, jeopardy does not terminate but instead continues.” Id. justice would otherwise be defeated.” Id. (quotation omitted). “Under these court that there is manifest necessity for the act, or that the ends of public defendant consents to the mistrial, or, if he objects, upon a finding of the trial Double Jeopardy Clause does not bar retrial after a mi strial when the mistrial over the objection of the defendant.” Id. (quotation omitted). “The urgent circumstances, and for very plain and obvious cau ses, declares a such instance occurs wh en a trial court, with the greatest caution, under in fair trials designed to end in just judgments.” Id. (quotation omitted). “One however, and must in some instances be subordinated to the public’s interest “The right to complete a trial before a particular tribunal is not absolute,

Id. (quotation omitted).

though innocent he may be found guilty. anxiety and insecurity, as well as enhancing the possibility that even p. 5 5

with “a tribunal he might belie ve to be favorably disposed to his fate”). mistrial decision must consider defendant’s interest in proceeding to a verdict 1 p. 5 57 N.H. at 51 (noting that United States Supreme Court has stated that this e vidence [would] come in nearly as favorably at a retrial.” See Solomon, a s the defense could reasonably have hoped,” and that “it [was] highly unlikely defendant argued that this information was presented to the jury “as favorabl y missing witness had failed to positively identify the defendant in a lineup. The a decision to allow him to elicit testimony from a police detective that the favorable to him after a State’s witness failed to appear. These rulings included well for [him].” He further explained that the court had made several rulings from the three erroneously admitted statements ... [,] the [fi rst] trial had gone jeopardy grounds, the defendant clarified this point by explaining that, “[a]side to do with a mistrial at all.” In his motion to dismiss the indictments on double before the assigned jury, stating that he had “other options that ha[d] nothing the colloquy a t trial, the defendant expressed his desire to complete the trial concerns,” Solomon, 157 N.H. at 52; see also Howell, 158 N.H. at 722. During arguments,” Howell, 158 N.H. at 722, and “balanc [ed]... [the ir] competing Before declar ing a mistrial, the trial court “considered the parties’

Brosseau, 146 N.H. at 342. acted unreasonably or without plain and obvious causes.” Petition of whether ‘manifest necessity’ existed here, we are not persuaded that the court continue with the trial. However, “[w] hile reasonable minds might differ on the jury heard damaging testimony, he should have had the opportunity to the jury and defense counsel was to blame.” He further contends that even if mistrial was required because “prejudicial information had been conveyed to The defendant argues that the trial court erred by concluding that a

exercise of discretion. See Howell, 1 p. 5 58 N.H. at 721. rulings on the record; a ccordingly, w e review its decision for an unsustainable defendant not to seek a mistrial. The trial court made these fin dings and be ineffective assistance of counsel” for an independent attorney to advise the unredacted statements cre ated actual, incurable prejudice; and that it “could concluded that a non - prejudicial instruction could not be fashioned; that the upon the defense theory of misidentification. Ultimately, the trial court but also, in its order declaring a mistrial, addressed the statements’ i mpact trial court not only considered the general prejudic ial effect of the statements, courses of action with counsel for both parties, and with the defendant. The audible. The next day t he court discussed the potential prejudice and possible recording in order to determine whether the challenged statements were prejudicial information, th e trial court directed the attorneys to listen to the Brosseau, 14 p. 6 6 N.H. at 341. After learning that the jury m ight have heard record, and it “did not act precipitously” in declaring a mistrial. Petition of Here, the trial court made its findings and stated its reasoning on the 6

result of his prior theft and burglary charge. This conclusion would have been concluded that the defendant had been in prison and had a parole officer as a the three statements are considered together, the jury might well have unambiguously convey defendant’s prior criminal conduct). However, when did not identify any specific prior charge or conviction and therefore did not of a specific charge. See id. (holding mistrial not required because testimony might not have required a mistrial given that they were not made in the context conduct. In isolation, t he individual references may have been ambiguous and In this case, the jury hear d evidence of the defendant’s prior criminal

which the defendant is on trial.” Russo, 1 p. 6 64 N.H. at 5 9 0. evidence of other crimes committed by the defendant that are similar to that for of these cases is a concern about the unfairness of allowing the jury to hear “inadmissible and sufficient ly prejudicial to require a new trial”). “At the heart during trial on separate charge of aggravated felonious sexual assault was defendant’s pending charge of attempted aggravated felonious sexual assault LaBranche, 118 N.H. 176, 177 (1978) (h o ld ing that witness es ’ testimony about defendant allegedly had enga ged in similar culpable conduct”); State v. because statement “unambiguously conveyed to the jury the fact that the assault victim’ s statement that “that man raped some girl” warranted mistrial e.g., State v. Kerwin, 144 N.H. 357, 360 - 61 (1999) (ho lding that alleged sexual concerning prior criminal acts similar to the acts charged.” Id. at 590; s ee, often looked to whether the jury was improperly exposed to testimony “In cases in whic h we have held that a mistrial was warranted, we have

N.H. 585, 589 - 90 (2013) (quotation omitted). conduct has bee n unambiguously conveyed to the jury.” State v. Russo, 1 p. 6 64 we have held that a mistrial is appropriate when a defendant ’ s prior criminal in its pr ejudicial impact upon a jury.” Id. (quotation s omitted). “Accordingly, infusion of such evidence into a trial is probably only equaled by a confession offense.” State v. Willey, 163 N.H. 532, 538 (2012) (quotation s omitted). “The testimony of a witness conveys to a jur y the fact of a defendant ’ s prior criminal I d. at 52. “It is well - settled that an incurable prejudice may result when the justification for a mistrial” following the introduction of prejudicial information. the defendant’s in terest in continuing the trial against “the strength of the The trial court, however, sustainably exercised its discretion in balancing

notwithstanding the potential prejudice to his case. See id. object ing to the mistrial and for wishing to proceed with the empaneled jury, through the system. Thus, the defendant articulated specific reas ons for pending, and that the mistrial prolonged the time required for him to move that he could not progress toward being paroled while the charges were prison while awaiting resolution o f the theft and burglary charges. H e argued to a speedy trial because he was not entitled to pretrial credit for his time in T he defendant also argued that granting a mistrial infringed on his right p. 7 7

vague references to defendant’s other conduct and statement expressing acts by the defendant”); State v. Ca r bo, 151 N.H. 550, 554 (2004) (holding that unrelated matter” “did not unambiguously reveal evidence of prior criminal (concluding that trooper’s statement that he had been “investigating an contemporaneous jury instructions.”); see also Willey, 163 N.H. at 538 innocuous, the testimony is not so prejudicial as to be incurable by could draw several inferences from challenged testimony, one of which is testimony. See State v. Gibson, 153 N.H. 454, 460 (2006) (“Where the jury have considered ambiguity only as it is attributable to t he substance of the must be unambiguously revealed to the jury in order to warrant a mistrial, we Although we have previously held that testimony of prior criminal acts

court “declared a mistrial over [his] objection for no reason.” not, in fact, hear or understand the statements in the recording, then the trial comprehended the “brief, isolated comments.” He asserts that, if the jury did recording, the trial court erred in assu ming that the jury heard and The defendant also argues that, given the poor quality of the audio

N.H. at p. 7 720 - 21. trial after the jury was exposed to prejudicial information. See Howell, 158 exercise its discretion by assessing whether the defendant could receive a fair 720. Consequently, we conclude that the trial court did not unsustainably judgments.” Ojo, 165 N.H. at ___ (quotation omitted); see Howell, 158 N.H. at subor dinated to the public’s interest in fair trials designed to end in just befo re a particular tribunal is not absolute... and must in some instances be trial.” We have previously observed that a defendant’s “right to complete a trial the extent that it considered the “benefit” to the defendant in “receiv[ing] a fair We disagree with the defendant ’s argument that the trial court erred to

prejudice” (quotation omitted)). of the prejudicial evidence and would have served only to emphasize the “cautionary or limiting instructions would not have been able to erase the taint 221 (when testimony revealed to jury inadmissible evidence of identical charge, could not “have a fair trial with that information in the jury’s hands.” See i d. at jury.” T hus, the trial court did not err when it concluded that the defendant prejudicial effect of this information could not be cured by instruction to the we cannot conclude that the trial court unreasonably found that “the had been previously filed against defendant required mistrial). Furthermore, N.H. 21 p. 8 8, 219, 221 (1983) (detective’s testimony regarding id entical charge that found sufficiently prejudicial to require a mistrial. See State v. Woodbury, 124 consequently, was exposed to the type of information that we have previously concerning prior criminal acts similar to the charged crimes. See id. The jury, burglary, the unredacted statements exposed the jury to inadmissible evidence with the defendant. Thus, because the defendant was on trial for theft and reasonable because the thr ee statements were made during a single interview 8

redacted, it did so only in the context of determining whether defense counsel considered defense counsel’s failure to request that some of the statements be trial court’s rationale for finding manifest necessity. Although the court U.S. at 513. Th is argument, however, stems from a misunderstanding of th e evidence that he had been told was inadmissible.”); see also Washington, 434 that the defendant created this predicament by interjecting into his testimony Petition of Brosseau, 146 N.H. at 342 (“It is especially important to our analysis misconduct ... that has led courts to rule that a retrial is permissible.” See request that the State redact prejudicial passages was “not the type of assessment of whether to declare a m istrial,” the failure of his trial counsel to that, although “[c]onduct by defense counsel can be a factor in the trial court’s passages in question is ... unsupported by the record.” The defendant argues court’s finding t hat defense counsel was to blame for the jury hearing the We are equally un persuaded by the defendant’s argument that “[t]he trial

jurors heard the statements. we find no error in the trial court making the assumption that one or more recording before assuming that the jurors heard the statements. Accordingly, the defendant’s contention that the trial court erred by not listening to the the jury in assessing whether a mistrial was warranted. Nor do we agree with cannot conclude that the trial court erred by considering his observations of the accused may have influenced his perception of the jurors ’ reactions, we “may have been skewed.” While it may be true that the defendant’s status as defendant now argues that his perception of the jurors’ re actions and gestures were played, and that he believed that the jury had heard the statements. The noticed “at least four or five of the jurors” looking at him when the statements W e note that it was the defendant himself who told the court that he

by the statements. Arizona v. Wa shington, 434 U.S. 497, 51 1 (197 p. 8 8). likelihood that the impartiality of one or more jurors may have been affected” accord the highest degre e of respect to the trial judge’ s evaluation of the overriding in terest in the evenhanded administration of justice requires that we statements because the defendant and the attorneys heard them. “[T] he jury. H owever, it assumed t hat one or more of the jurors may have heard the potentially prejudicial reference s during the play ing of the recording for the N.H. at 554. As t he trial court observed, it was not able to hear any of the has broad discretion to decide whether a mistrial is appropriate.” Carbo, 151 the best position to gauge the prejudicial nature of the conduct at issue and court’s ruling on a motion for a mistrial, we rec ognize that the trial court is in heard and comprehended the recorded statements. “When reviewing a trial statements, but as a result of the uncertainty as to whether the jury actually Here, the purported ambiguity arises not from the content of the

unambi guously reveal evidence of specific bad acts”). skepticism about whether defendant had engaged in unlawful conduct “did not p. 9 9

DALIANIS, C.J.