2015-0155, The State of New Hampshire v. Dominick Stanin, Sr.

count of being a felon in possession of a dangerous weapon, see RSA 159:3 two counts of reckless conduct, see RSA 631:3 (2007) (amended 2014), and one The relevant facts follow. In April 2014, the defendant was convicted of

or, alternatively, to “sever” the bases for the motion to impose. We affirm. pretrial motion in limine seeking to limit the State’s cross - examination of him sentences. On appeal, he argues that the trial court erred by denying his of the Superior Court (Abramson, J.) to impose his t wo previously suspended CONBOY, J. The defendant, Dominick Stanin, Sr., appeals the decision

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

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney

No. 2015 - 0155 Hillsborough – northern 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

years, but further suspe nded o ne and one - half years of the minimum term for charge, the court imposed the suspended term of three and one - half to seven (three and one - half years to seven years). As for the April felon - in - possession conduct charge, the court imposed the entire previously suspended sentence imposed his two previously suspended sentences. On the April reckless found that the defendant had violated the condition of good behavior, it August robbery charge and August resisting arrest charge. Because the court found that the State had failed to meet its burd en of proof with respect to the charge, and the August first degree assault charge were true. The c ourt also evidence, that the June resisting arrest charge, the Augu st felon - in - possession good behavior. Specifi cally, the court found, by a preponderance of the preponderance of the evidence, that the defendant had violated the condition of The trial court found that the State had met its burden of proving, by a

Nor did he put on an affirmative case. in a motion to impose hearing.” The defe ndant did not testify at the hearing. selectively;. . . if he takes the stand, he waives his Fifth Amendment privilege motion to impose, the trial court ruled that the defendant could not “testify New Hampshire Constitution. During the February p. 2 2015 hearing on the favorable and against self - incrimination provided in Part I, Ar ticle 15 of the Amendments to the United States Constitution and the rights to all proofs wanted to invoke his right to remain silent pursuant to the 5th and 14 th testify” as to the June resisting arrest charge, but, as to the August cha rges he motion to impose. In that motion, the defendant explained that he “might the State’s cross - examination of him or, alternatively, to sever the bases for the good behavior. The defendant filed a pretrial motion in limine seeking to limit June and August charges established that he had violated the condition of consecutive three - and - o ne - half - to - seven - year sentences on the ground that his In October 2014, the State moved to impose the defendant’s two

resisting arrest in conne ction with the August incident. S ee RSA 64 p. 2 2:2. in a stabbing incident. He was subsequently also charged with misdemeanor felon in possession of a dangerous weapon, see RSA 159:3, for his involvement RSA 631:1 (2007) (amended 2014), robbery, see RSA 636:1 (2007), and being a In August 2014, the defendant was charged with first degree as sault, see

arrest matter “on file without a finding.” court acquitted the defe ndant of the loitering charg e and placed the resisting 64 p. 2 2:2 (Supp. 2015). Th o se charges were tried in September 2014. The trial offense), see RSA 644:6 (2007), and resisting arrest (a misdemeanor), see RSA In June 2014, the defend ant was arrested for loitering (a violation - level

of good behavior. one - half - to - seven - year sentences, both suspended for 10 years on the condition sentence. On the two remaining charges, he received c onsecutive three - and - ( p. 2 2014). On one of the reckle ss conduct charges, he received a time - served p. 3 3

not testify, the reviewing court . . . has no way of knowing whether the was contained in his proffer. Id. at 41. Moreover, “[w]hen the defendant does unfolds and because a defendant’s actual testimony may differ from that which wholly speculative” because a trial court may change its ruling as the case [trial] court’s in limine ruling permitting impeachment by a prior conviction is without the defendant’s trial testimony, “[a]ny possible harm flowing from a impeachment was unreviewable. See i d. at 4 p. 3 3. The Court explained that, argument that the trial court erred by ruling the prior conviction admissible for The Supreme Court ruled that, because the petitioner neve r testified, his

testify. Id. the prior conviction would be excluded. Id. at 40. The petitioner did not limited his testimony to explaining his attempt to flee from arresting officers,” 609(a). Id. at p. 3 39 - 40. The trial court did state, however, that if the “petitioner was admissible for impeachment purposes under Federal Rule of Evidence t estimony would be. Id. The trial court determined that the prior conviction testifying if the motion were granted and gave no proffer as to what his substance to impeach him if he testified. Id. The petitioner did not commit to g overnment from using a prior state conviction for possession of a controlled intent to distribute. Luce, 469 U.S. at 39. He moved to preclude the petitioner in Luce was charged with conspiracy and possession of cocaine with U.S. at 39 - 43; see also State v. Bruneau, 131 N.H. 104, 114 - 15 (1988). The failing to restrict the s cope of the State’s cross - examination. See Luce, 469 impose hearing renders unreviewable his argument that the trial court erred by t he State argues that the defendant’s decision not to testify at the motion to Relying upon Luce v. United States, 469 U.S. 38 (1984), and its progeny,

examination about only the June resisting arrest charge. him about the August charges even though he intended to testify on direct violated the privilege when it ruled in limine that the State could cross - examine affecting his credibility. Thus, the defendan t asserts that the trial court self - incrimination only as to the June resisting arrest charge and to matters the trial court should have ruled that he waived his privilege against compelled matters not tes tified to on direct examination”). The defendant contends that interests of justice, the judge may limit cross - examination with respect to matter relevant to any issue in the case, including credibility,” but “[i]n the R. Ev. 611(b) (providing that a cross - examiner may question a witness “on any testify during direct examination (the June resisting arrest charge). See N.H. limit the State’s c ross - examination to the subject about which he intended to N.H. CON ST. pt. I, art. 15; U.S. CONST. amend. V, required the trial court to self - incrimination, as guaranteed by the State and Federal Constitutions, see On appeal, the defendant argues that the privilege against compelled

appeal followed. a period ending five years from the defendant ’ s release on the charge. This p. 4 4

could challenge the trial court’s in limine ruli ng on appeal where he supported But cf. State v. Blackstock, 1 p. 4 47 N.H. 791, 797 (2002) (ruling that the defendant offers of proof is irrelevant” because trial testimony can differ from proffers). in the context of actual testimony” and finding that “[t]he specificity of the prosecutor’s testimony were not preserved because the trial court “never ruled (1997) (ruling that the defendant’s arguments regarding the admissibility of a ripe for adjudica tion here.” Id.; accord State v. Croft, 142 N.H. 76, 78 - 79 the stand and suffered impeachment by the statement’s use would an issue be Relying, in part, on Luce, we held that “[o]nly if the defendant had taken

Id.

would actually have used the statement to impeach him. differed from the substance of his statem ent, or whether the State had testified. We do not know whether his testimony would have limine, any more than we can tell what would have happened if he remain off the stand was influenced to any degree by the ruling in We have no way of knowing whether [the defend ant’s] decision to

he “never testified and was never impeached.” Id. at 115. We explained: defendant’s appellate argument to be “too speculative for adjudication” because and the Sixth Am endment to the Federal Constitution. Id. We found the right to counsel as guaranteed by Part I, Article 15 of the State Constitution On appeal, the defendant argued that the trial court’s decision violated his chief, but was admissible to impeach the defendant, if he took the stand. Id. The trial court ruled that the statement was inadmissible in the State’s case - in obtained in violation of Miranda v. Arizona, 38 p. 4 4 U.S. 436 (1966). Id. at 114. pretrial motion to suppress a statement that the State conceded had been See Bruneau, 131 N.H. at 114 - 15. In Bruneau, the defendant had filed a 609(a), when w e adopted Luce, we applied it to a constitutionally - based claim. Although Luce concerned impeachment under Federal Rule of Evidence

Id.

reversible error in the event of conviction. also tend to discourage making such motions solely to “plant” impeachment may have had in light of the record as a whole; it will enable the reviewing court to determine the impact any erroneous that a defendant testify in order to preserve Rule 609(a) claims will that presumptively kept the defendant from testifying. Requiring the appellate court could not logically term “harmless” an error almost any error would result in the windfall of automatic reversal; Were in limine rulings under Rule 609(a) reviewable on appeal,

p. 4 42. The Court also explained: Government would have sought to impeach with the prior conviction.” Id. at p. 5 5

to preserve for the court’s review whether the trial court violated his 199 p. 5 5) (unpublished) (ruling that, by choosing not to testify, the defendant failed Johnson, Nos. 94 - 5088, 94 - 5099, 1995 WL 530088, at * 4 - 5 (4th Cir. Aug. 31, motion to withdraw” his plea, because he did not testify); United States v. privilege against self - incrimination with regard to all grounds asserted in his that if he testified “regarding the terms of his plea bargain, he would waive his unreviewable the defendant’s argument t hat the trial court erroneously decided United States v. Bond, 87 F.3d 695, 700 - 01 (5th Cir. 1996) (finding in limine to restrict the scope of the government’s cross - examination of hi m); reviewing his argument that the trial court should not have denied his motion defendant’s decision not to testify at trial precluded the appellate court from States v. Ferrer, 441 Fed. Appx. 867, 869 (3d Cir. 2011) (determining that the jurisdictions have applied the Luce rule to similar arguments. See United intended to testify is a question of first impression. However, n umerous federal restrict the State’s proposed c ross - examination to the subject about which he renders unreviewable his argument that the trial court erred by failing to those in this case. Thus, w hether the defendant’s decision not to testify W e have not previously applied the Luce rule to circumstances similar to

violation of his constitutional rights). court’s decision to allow impe achment with evidence allegedly obtained in as to the testimony he would have given, he may challe nge on appeal the trial when a defendant elects not to testify, but has made an adequate offer of proof State v. Cherry, 83 P.3d 123, 12 p. 5 5 - 26 (Idaho Ct. App. 2003) (concluding that rights, even though he neither testif ied nor made an offer of proof at trial); cf. impeach him with evidence that had been obtained in violation of his Miranda could challenge on appeal the trial court’s decision allowing the State to Brunelle, 534 A.2d 198, 199 - 200, 204 (Vt. 1987) (ruling that the defendant that allow ed into evidence his post - arrest silence). But see, e.g., State v. at trial to preserve for review his challenge to the trial court’s in limine ruling 682 N.W.2d 459, 459 - 60 (Mich. 2004) (ruling t hat the defendant had to testify confession to impeach him because he elected not to testify); cf. People v. Boyd, the trial court erred by allowing the State to use his allegedly involuntary appellate court could not review the defendant’s constitutional argument that jury”); Jordan v. State, 591 A.2d 875, 87 6 - 7 8 (Md. 1991) (concluding that the with his police statement, or whether this evidence would have affected t he decision not to testify, whether the prosecution would have impeached him testimony, “it is impossible to tell whether the court’s ruling affected [his] him with a statement obtained in violation of Miranda because, without his defendant’s claim that the trial court erred by allowing the State to impeach Wagner v. State, 347 P.3d 109, 109 - 10 (Alaska 2015) (declining to review the statement obtained i n violation of a defendant’s Miranda rights. See, e.g., Other state courts have also applied Luce to impeachment by a

during cross - examination” and renewed his request at trial). his motion “with an explanation of the line of questioning he sought to p ursue p. 6 6

defendant in that case “wanted[ ] to give testimony only on some discrete The defendant argues that Turner is distinguishable because the

hypothetical cross - examination on a particular subject.” Id. at 434. have said, [it] cannot review the relevance and appropriateness of a The court explained that “without any record of what [the defendant] would that his failure to testify rendered his argument unreviewable. Id. at 433 - 34. that the district court’s ruling was erroneous, the appellate court concluded omitted). The defendant did not testify. Id. Although t he defendant argued motive, plan, knowledge, and modus operand i.” Id. (quotation and brackets would be relevant to, and probative of, his credibility and his “intent, identity, about the state robbery charges because his testimony about those charges defendant testifi ed about the federal charges, he could be cross - examined charges.” Turner, p. 6 674 F.3d at 433. The district court ruled that, if the against self - incrimination as to” a robbery “for which he faced only state testimony about his federal charges “would waive his Fifth Amendment right limine requesting that the federal district court rule upo n whether his F.3d 420 (5th Cir. 2012). The defendant in that case brought a motion in We find persuasive the court’s reasoning in United States v. Turner, 674

examination). the defendant’s motions in limine seeking to limit the State’s cross testified, the court could not review whether the trial court erred by denying 94 (Ill. 1987) (ruling that because neither the witness nor the defendant issues because he did not testify); Peopl e v. Whitehead, 508 N.E.2d p. 6 687, 693 punishment phase of his trial for the limited purpose of raising mitigation could cross - examine him about certain offenses if he testified in the appellant ’s assertion that the trial court erred when it ruled that the State S.W.2d 469, 479 - 80 (Tex. Crim. App. 1999) (en banc) (declining to review the circumstances that are similar to those in this case. See Jackson v. State, 992 Moreover, a t least two state courts have also applied Luce to

testified, he did not, in fact, mention the associa te (quotation omitted)). had originally mentioned to a federal agent because, although the defendant introduce evidence of his “selective silence” if he referred to the “associate” he violated by the trial court’s conditional ruling to allow the government to defendant’s assertion that his Fifth Amendment right to remain silent was v. Wilson, 30 p. 7 7 F.3d 59 p. 6 6, 598 - 601 (7th Cir. 2002) (holding unreviewable the credibility was f oreclosed becaus e he never, in fact, testified); cf. United States upon matters about which he testified on direct examination and about his ruling that would have limit ed the government to cross - examining him only argument that the trial court erred when it denied his request for a pretrial 887 F.2d 1110, 1115 - 17 (1st Cir. 1989) (concluding that the defendant’s examine him about “everything” (quotation omitted)); United States v. Nivica, if he testified for a limited purpose at sentencing, the government could cross constitutional privilege against compelled self - incrimination when it ruled that, 7

trial court to treat the State’s motion to impose as if it were two motions — one In effect, the defendant asserts that the “interests of justice” required the

these circumstances, Superior Court Rule 9 p. 7 7 - A is of no avail to the defendant. criminal convictions. See State v. Gibbs, 157 N.H. 538, 540 - 42 (2008). Under previously suspended sentences, regardless of whether those acts resulted in State’s evidence that he had violated the good - behavior condition of hi s “offenses” for which the defendant was to be tried. Rather, they constituted the offenses for trial is misplaced. T he alleged June and August acts were not The defendant’s reliance upon the rule regar ding severance of criminal

charges and severance was in the “interests of justice.” the August charges) because the June charge was not “related” to the August of the two bases for the motion to impose (the June resisting arrest charge and New Hampshire Rule of Criminal Procedure 20), he had a “right” to severance He asserts that, pursuant to former Superior Court Rule 9 p. 7 7 - A (superseded by the alternative relief of severance of the June charge from the August charges.” Alternatively, the defendant argues that the trial cour t “erred in denying

cross - examination remain “unknowable.” Luce, 469 U.S. at 41. case because the defendant’s precise testimony and the State’s anticipated examination was unconstitutional. Meaningful review is impossible in this whether the trial court’s failure to restrict the scope of the State’s cross - State’s proposed cross - examination of him, we cannot meaningfully determine of what the defendant would have said during direct examination and of the examination to the subject about which he intended to testify. Absent a record State and Federal Con stitutions when it failed to restrict the State ’s cross violated his privilege against compelled self - incrimination as protected by the record renders unreviewable the defendant’s argument that the trial court But see Bruneau, 131 N.H. at 115; Croft, 142 N.H. at p. 7 78 - 79. We hold that this the defendant did not make such a proffer. See Blackstock, 147 N.H. at 797. detailed proffer as to the defendant’s intended testimony would have sufficed, Here, the defendant did not testify. Moreover, even if we assume that a

incrimination as to the August charges. resisting arrest charge, he would waive his privilege against compelled self - Likewise, the court here ruled that if the defendant testified about the June privilege against compelled self - incrimination as to the other charge s. See id. that if the defendant testified about one set of charges, he would waive his being cross - examined about the August charges. The court in Turner ruled defenda nt sought to testify about the June resisting arrest charge without examined about another set of charge s. Id. at 433. Similarly, in this case, the in Turner sought to testify about one set of charges without being cross charge. The defendant’s characterization of Turner is mistaken. T he defendant “to give testimony on any and all matters bearing” on the June res isting arrest matters bearing on a given charge,” whereas the defendant in this case sought p. 8 8

DALIANIS, C.J.