The defendant, Aaron Morton, appeals his conviction for first degree assault. He argues that the trial court erred in: (1) admitting portions of his sister's statement under the recorded recollection exception to the hearsay rule; and (2) denying his request for a mistrial. We affirm.
We briefly set forth facts relevant to this appeal. In February 2010, the defendant and his girlfriend were part of a group that gathered at his home in anticipation of his aunt's wedding the next day. At some point, a physical altercation began between the defendant's girlfriend and his sister. As the defendant moved toward the women, he was restrained by his cousins. At some point, the victim awoke, came into the kitchen and attempted to intervene. During the melee, he was stabbed by the defendant.
The defendant was originally charged with falsifying physical evidence and first degree assault. In October 2010, a jury found the defendant not guilty of the falsifying evidence charge. The jury was unable to reach a verdict on the first degree assault charge and the trial court declared a mistrial.
The defendant was retried on the assault charge. At the retrial, he admitted that he stabbed the victim but asserted that he did so in self-defense. See RSA 627:4, II (Supp. 2012) ("A person is justified in using deadly force upon another person when he reasonably believes that such other person . . . is about to use unlawful, deadly force against [him]."). Following his conviction, he filed this appeal.
The defendant first argues that the trial court erred when it "allowed the State to play portions of [his sister's] statement to the police under the recorded recollection exception to the hearsay rule." We review challenges to a trial court's evidentiary ruling under our unsustainable exercise of discretion standard and will reverse only if the ruling is clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Brooks, 164 N.H. 272, 283 (2012).
After observing that "[h]er ability to be convincing that she has no recollection of anything has varied, " the trial court allowed the State to play for the jury a portion of the defendant's sister's statement. We need not determine whether the trial court erred in making that ruling as we conclude that, based upon the record before us, any error was harmless. See, e.g., State v. McDonald, 163 N.H. 115, 123 (2011) (error may be harmless beyond reasonable doubt if alternative evidence of defendant's guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt).
The evidence presented at trial included the victim's testimony that: (1) the defendant had been drinking; (2) at the time of the assault, he was "becoming excessively, extremely, quickly aggravated"; and (3) the victim tried to restrain him from attacking another guest. At trial, the defendant admitted that, although he had reported to the police that his cousins were restraining him at the time the victim attacked him, it was not a true statement. The defendant's cousin testified that: (1) he watched the victim struggle with the defendant; (2) contrary to the defendant's report to the police, the defendant and victim did not end up on the floor; (3) the victim never had the defendant in a headlock; and (4) the cousin lied in his original call to 9-1-1 because he wanted to "check with [the victim] to see if he wanted to kind of cover this up[.]" The defendant's fiancée testified that: (1) she never saw the victim put the defendant in a headlock; (2) she was lying when she said she saw the victim choke the defendant; and (3) she moved the knife because she did not believe that anyone would think that the defendant had acted in self-defense. The court also admitted a letter of apology written by the defendant to the victim approximately twelve days after the assault which included the following: "I don't know why I did it, really, and I will have a lot of time to think about it."
Given the record before us, we conclude that the admission of the limited excerpt of the defendant's sister's statement to the police was cumulative of the other evidence presented at trial. Accordingly, any error in admitting it was harmless.
The defendant also argues that the trial court erred in denying his request for a mistrial. While the defendant was incarcerated, he spoke to his girlfriend on the telephone; the calls were recorded. The defendant concedes that the actual recordings have not been transcribed. It appears from the record and the parties' briefs, however, that when the State attempted to play a recording of a conversation for the jury, the jury learned that he had called her from jail. The defendant then requested a mistrial, stating: "The prejudice is that the Defendant is in jail, and to say that there's no prejudice would sort of undermine the previous intention that it would be played without that recording, specifically." The court denied his request.
A mistrial is appropriate only if the evidence complained of was not merely improper but also so prejudicial that it constituted an irreparable injustice that cannot be cured by jury instructions. State v. Russo, 164 N.H. 585, 589 (2013). When reviewing a trial court's ruling on a motion for mistrial, we recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and that it has broad discretion to decide whether a mistrial is appropriate. Id. Absent an unsustainable exercise of discretion, we will affirm the trial court's decision on whether a mistrial or other remedial action is necessary. Id; see State v. Lambert, 147 N.H. 295, 296 (2001) (to establish that trial court ruling is unsustainable, defendant must demonstrate that it was clearly untenable or unreasonable to the prejudice of his case).
In support of his claim of error, the defendant argues: "The jury could have inferred that the defendant was incarcerated because he was too dangerous to be released into the community. From the view that the trial court, acting in a bail capacity, found him to be dangerous, the jury could have inferred that the trial court believed [him] to be guilty." We note that the defendant did not request a limiting instruction.
Having reviewed the record provided to us, we conclude that the defendant has failed to establish prejudice from what appears from the record before us to be a very brief reference to his incarceration at the time the telephone calls were placed. See Lambert, 147 N.H. at 296; United States v. Johnson, 624 F.3d 815, 821-22 (7th Cir. 2010) (occasional reference to fact that defendant had at some point been in jail is quite different than the "constant reminder of the accused's condition implicit in such distinctive, identifiable attire" that underlies injustice inherent in requiring a defendant to stand trial in prison garb) (quoting Estelle v. Williams, 425 U.S. 501, 504-05 (1976)). Indeed, without a developed record of the timing and content of the telephone calls, he has failed to provide support in the record for the conjecture set forth in his brief.
Although the defendant has advanced constitutional arguments in his brief on appeal, he did not advance them in the trial court. Accordingly, we do not address them. See, e. ...