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The State of New Hampshire v. Brendan Bisbee

May 14, 2013

THE STATE OF NEW HAMPSHIRE
v.
BRENDAN BISBEE



The opinion of the court was delivered by: Lynn, J.

Argued: February 21, 2013

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

The record establishes the following pertinent facts. In January 2011, a Rockingham County grand jury returned seven indictments against the defendant charging seven separate counts of perjury. Four indictments charged that the defendant committed perjury when he testified before a grand jury, on or about March 6, 2009, that: (1) "Kristin Ruggiero had never been to the state of Tennessee"; (2) "he could not remember if he had picked up Kristin Ruggiero at the Oakland [California] Airport on March 20, 2008"; (3) "a police officer did not come to 13 Pinewood Road during the evening of May 4, 2008"; and (4) "Kristin Ruggiero had not used his cell phone to call 679-2225 during the evening of May 4, 2008." Three indictments charged that the defendant committed perjury when he testified in the criminal trial of State v. Kristin Ruggiero, Docket No. 09-S-1290-1302, in the Rockingham County Superior Court, on or about April 27, 2010, that: (1) "he could not remember if he had picked up Kristin Ruggiero at the Oakland Airport on March 20, 2008"; (2) "a police officer did not come to 13 Pinewood Road during the evening of May 4, 2008"; and (3) "he could not remember if he or Kristin Ruggiero had used his cell phone to call 679-2225 during the evening of May 4, 2008."

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

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

I. Sufficiency of the Indictments

The defendant first argues that his convictions must be vacated because the indictments charging him with perjury "did not adequately allege an offense." He maintains that he did not make the statements alleged in the indictments, which, he contends, merely represent a "summary or gist" of his prior testimony. He argues that because RSA 641:1, I(a) "criminalizes the making of false statements, not the creation of false impressions," "[a]n indictment which summarizes testimony in such a way as to encompass different statements is not sufficiently specific." Citing the Federal Constitution and Part I, Article 15 of the State Constitution, he contends that such indictments are "insufficiently specific to provide fair notice, to assure jury unanimity, and to protect against double jeopardy."

Because the defendant's argument raises questions of constitutional law and statutory interpretation, our review is de novo. State v. Marshall, 162 N.H. 657, 661 (2011). We first consider the defendant's argument under the State Constitution and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

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

RSA 641:1, I(a) provides that a person commits perjury "if in any official proceeding . . . [h]e makes a false material statement under oath or affirmation, or swears or affirms the truth of a material statement previously made, and he does not believe the statement to be true." Thus, we agree with the defendant that the statute criminalizes the making of false statements, not the creation of false impressions. See State v. Settle, 132 N.H. 626, 632 (1990) ("In an indictment for perjury, the making of the assertion under oath concerning a particular material fact is the gravamen of the crime."); State v. Sands, 123 N.H. 570, 589 (1983) (noting that perjury indictments quoted the defendant's allegedly false statements). We are not persuaded, however, by the defendant's argument that an indictment for perjury "which summarizes testimony in such a way as to encompass different statements is not sufficiently specific." Courts have rejected this argument. See Commonwealth v. Allison, 751 N.E.2d 868, 881 (Mass. 2001) (perjury indictment sufficient although it alleged the defendant's testimony "in substance and effect" because "[t]here is no requirement that a particular statement serve as the basis for a perjury indictment" (quotation omitted)); United States v. Yasak, 884 F.2d 996, 1002 (7th Cir. 1989) ("The law does not require that a perjury indictment or information reiterate the exact words of the perjured testimony. It is sufficient if the indictment or information provides such testimony in substance." (citation and quotations omitted)); People v. Aud, 288 N.E.2d 453, 454 (Ill. 1972) (perjury indictment insufficient because it failed to "set forth the alleged false statement either verbatim or in its substance").

We conclude that an indictment for perjury that attributes a false statement to the defendant does not fail for insufficiency even though the alleged statement represents a summary of the defendant's testimony. Such an indictment informs the defendant of the allegedly perjurious statement that the State must prove at trial. The defendant may review the transcripts of his prior testimony and argue at trial that he did not make the alleged statement. He may also raise the defense of double jeopardy if the State seeks to re-prosecute him for perjury for the same alleged statement. Cf. State v. Therrien, 129 N.H. 765, 770 (1987) ("[A] defendant charged with a specific offense may effectively invoke double jeopardy protection [and] educate his counsel on whatever he knows about the offense, so that investigation, discovery and other trial preparation can begin.").

To the extent the defendant argues that the indictments are insufficient because he did not make the statements contained therein, we reject this argument. See United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) ("There is no summary judgment procedure in criminal cases. Nor do the rules provide for a pre-trial determination of sufficiency of the evidence. . . . The sufficiency of a criminal indictment is determined from its face."); Yasak, 884 F.2d at 1001 ("A motion to dismiss is not intended to be a summary trial of the evidence." (quotation omitted)); State v. Parkman, 106 So. 3d 378, 381 (Miss. Ct. App. 2012) ("Unlike civil proceedings, there is no summary-judgment procedure in criminal cases."). In evaluating the sufficiency of a perjury indictment, the trial court need not compare the allegedly perjurious statement with the defendant's prior testimony. Cf. State v. Strong, 60 A.3d 1286, 1289 (Me. 2013) ("An indictment is subject to dismissal for failure to state an offense only when the facts alleged on its face fail to make out an offense against the State." (quotation and brackets omitted)). Whether the defendant made the statements alleged in the indictments raises an issue of proof that is distinct from the indictments' sufficiency. The defendant could have argued that a fatal variance existed between the indictments and the evidence offered at trial. See State v. Keegan, 106 N.H. 152, 154 (1965). He did not make this argument, however, and therefore we need not address it.

We also disagree that the indictments returned against the defendant are insufficient because they do not allow him "to assure jury unanimity." This argument rests upon the faulty premise that the sufficiency of an indictment depends in part on its ability "to assure jury unanimity." As we have consistently held, the sufficiency of an indictment is measured against the defendant's ability to "prepare for trial and avoid double jeopardy." Ortiz, 162 N.H. at 588.

In support of his argument, the defendant relies solely upon State v. Greene, 137 N.H. 126 (1993). In Greene, a complaint for misdemeanor simple assault charged that the defendant "did knowingly cause unprivileged physical contact" with a police officer when she "punch[ed] the [officer] in the face with her fist and in the torso with her fist and did further kick him about the body." Greene, 137 N.H at 127 (quotation omitted). At trial, the trial court failed to instruct the jury that it had to agree "to the factual predicate constituting the element of unprivileged physical contact." Id. at 131. We reversed. We held that "[w]here discrete factual predicates can provide alternative bases ...


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