Argued: October 16, 2013.
Petition for certiorari filed at, 10/09/2014
Hillsborough-southern judicial district.
Michael A. Delaney, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
[166 N.H. 299] Bassett, J.
The defendant, Barion Perry, appeals his convictions following a trial in Superior Court ( Kissinger, J.) for theft by unauthorized taking, RSA 637:3 (2007), and burglary, RSA 635:1 (2007), arguing that the Superior Court ( Nicolosi, J.) erred in denying his motion to dismiss the indictments against him on double jeopardy grounds. We affirm.
The record supports the following facts. Detectives interviewed the defendant following his arrest for theft and burglary. The interview was recorded. Prior to the defendant's first trial, counsel for the defendant and the State agreed that certain statements made by the defendant during the interview should be redacted before the recording was played for the jury. [166 N.H. 300] Shortly after the State played a redacted version of the recording, defense counsel advised the trial court that three of the statements that should have been redacted were not, in fact, redacted. Although the quality of the recording was poor and portions of the interview transcript were
marked " inaudible," the parties agreed that, in his first statement, the defendant apparently referred to his prior conviction for theft and burglary. In the second statement, the defendant referred to his " PO," apparently meaning his parole officer. The final statement contained a reference to prison. Defense counsel acknowledged that he had failed to request that the State redact the first two statements. However, he had requested that the third statement be redacted, but the State failed to do so.
The trial court conducted a colloquy with the defendant, during which he told the court that he had noticed " at least four or five of the jurors" looking at him when the statements were played and that he believed that they heard the references. The court stated that she had not heard the statements due to the poor quality of the recording and the acoustics in the courtroom. Nonetheless, because the attorneys and the defendant had heard the statements, the trial court assumed that at least one of the jurors also had heard them.
Defense counsel requested neither a mistrial nor a curative instruction. During the colloquy, the defendant stated that, although he did not want to be convicted because the jury heard potentially prejudicial statements in the interview, he wanted to go forward with the trial because he had " other options that ha[d] nothing to do with a mistrial." The State urged that " a mistrial be declared based on manifest necessity," notwithstanding the defendant's decision not to request one, because the statements were extremely prejudicial and affected the defendant's right to a fair trial.
Because the court was concerned that defense counsel could not effectively advise the defendant about a mistrial as counsel had failed to " mark" two of the statements for redaction prior to trial, it considered assigning independent counsel to speak with the defendant about the mistrial request. The court ultimately concluded, however, that manifest necessity required a mistrial because the jury heard " damaging," " inflammatory" information that a curative instruction would not have been able to address adequately. The court did not assign independent counsel because it concluded that, given the prejudicial nature of the unredacted statements, it " could be ineffective assistance of counsel" for another lawyer to advise the defendant not to seek a mistrial. The trial court declared a mistrial over the defendant's objection and scheduled a new trial.
Prior to the second trial, the defendant moved to dismiss the indictments with prejudice. He argued that the mistrial was not supported by manifest necessity, and, therefore, that the double jeopardy provisions of the New [166 N.H. 301] Hampshire and United States Constitutions barred retrial. See N.H. Const. pt. I, art. 16; U.S. Const. amend. V. The State objected, arguing that manifest necessity supported the court's declaration of mistrial because, among other things, the defendant would have had a successful ineffective assistance ...