The defendant, Bruce Syphers, appeals his conviction for driving while impaired, third offense. He argues that the trial court erred in: (1) denying his motion for a mistrial; (2) ruling that he had opened the door during his testimony to allow the State to question him "about three prior occasions [when] he was investigated for driving under the influence"; and (3) ruling that a juror should be dismissed from the panel and replaced by an alternate juror after deliberations had begun. We affirm.
We briefly set forth the relevant facts in this case. Just after midnight on March 5, 2013, Hampton Falls Police Officer Fowler was conducting a radar check when he observed a vehicle driven by the defendant driving at more than fifty miles per hour in a thirty-five mile per hour zone. As he followed the vehicle, he observed it travel over the double yellow line, partially within the center turn lane. After he stopped the vehicle, Officer Fowler made several observations that led him to believe that the defendant was operating under the influence of alcohol. He asked the defendant to perform field sobriety tests, which the defendant failed. He was subsequently placed under arrest, and following a jury trial, he was convicted of driving while impaired.
On appeal, the defendant first argues that the trial court erred in denying his motion for a mistrial based on the following testimony. At trial, Officer Fowler was asked, "What happened after he told you that he had one drink at the casino?" He responded, "He then told me that he was okay. He also told me that he's only had six drinks in the last ten months because of his prior problems." Defense counsel then moved for a mistrial, stating, "I'm going to move for a mistrial and the basis for it is his statement was - - was he's only had, I think, four drinks in the last six months because of his prior problems." The State objected, arguing that the "problems" could be interpreted to be "prior problems with alcohol, not with the law." The State also indicated that it intended to elicit testimony about a letter that the defendant wrote to Officer Fowler after his arrest, in which he addressed "his AA and his problem drinking." The court offered to give a curative instruction but reserved judgment on whether it would declare a mistrial, stating in relevant part: "But at this point, based upon your offer of proof, I will not because, frankly, I think that the statement could be equally beneficial to the Defendant as harmful." The defendant declined the trial court's offer to give a curative instruction.
Mistrial is the proper remedy only if the evidence or comment 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. Guay, 162 N.H. 375, 378 (2011). When reviewing the trial court's ruling, we recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and 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.
On appeal, the defendant cites the State and Federal Constitutions and Rules 401, 403 and 404(b) of the New Hampshire Rules of Evidence and argues that "[a]ny probative value of [his] drinking and prior problems was substantially outweighed by unfair prejudice." He then argues that "[s]uch a danger of prejudice makes the statement inadmissible under NHRE 403, and therefore the trial court committed an unsustainable exercise of discretion that required reversal." As the State observes, this is not the argument that the defendant raised in the trial court. Accordingly, he has not preserved this issue for appellate review. See State v. Blackmer, 149 N.H. 47, 48 (2003). To the extent that the defendant's argument might be construed to be that this alleged error required a mistrial, we conclude that, given the ambiguity of the defendant's statement, the trial court did not err in denying his request. See, e.g., State v. Gibson, 153 N.H. 454, 460 (2006) (where jury could draw several inferences from challenged testimony, one of which is innocuous, testimony is not so prejudicial as to be incurable by contemporaneous jury instructions).
The defendant next argues that the trial court erred in ruling that he had opened the door during his testimony to allow the State to question him "about three prior occasions [when] he was investigated for driving under the influence." Defense counsel's questioning of the defendant included the following exchange:
Q: And after he came back to your vehicle, what happened?
A: He asked me to take the sobriety test outside the vehicle.
Q: And did you do that?
A: I did.
Q: Okay. And when you got out of your vehicle, did you have any difficulty getting out?
A: No. No. I get [sic] out normally and stood there and waited for whatever he wanted me to do.
Q: How did you feel when you were outside your vehicle?
A: Oh, I felt chilly because it was the first week of March and I was chilly and nervous because you don't often have to be ...