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State v. Stanin

Supreme Court of New Hampshire

July 12, 2016

THE STATE OF NEW HAMPSHIRE
v.
DOMINICK STANIN, SR.

          Argued: February 10, 2016

         Hillsborough–northern judicial district

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

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

          CONBOY, J.

         The defendant, Dominick Stanin, Sr., appeals the decision of the Superior Court (Abramson, J.) to impose his two previously suspended sentences. On appeal, he argues that the trial court erred by denying his pretrial motion in limine seeking to limit the State's cross-examination of him or, alternatively, to "sever" the bases for the motion to impose. We affirm.

         The relevant facts follow. In April 2014, the defendant was convicted of two counts of reckless conduct, see RSA 631:3 (2007) (amended 2014), and one count of being a felon in possession of a dangerous weapon, see RSA 159:3 (2014). On one of the reckless conduct charges, he received a time-served sentence. On the two remaining charges, he received consecutive three-and-one-half-to-seven-year sentences, both suspended for 10 years on the condition of good behavior.

         In June 2014, the defendant was arrested for loitering (a violation-level offense), see RSA 644:6 (2007), and resisting arrest (a misdemeanor), see RSA 642:2 (Supp. 2015). Those charges were tried in September 2014. The trial court acquitted the defendant of the loitering charge and placed the resisting arrest matter "on file without a finding."

         In August 2014, the defendant was charged with first degree assault, see RSA 631:1 (2007) (amended 2014), robbery, see RSA 636:1 (2007), and being a felon in possession of a dangerous weapon, see RSA 159:3, for his involvement in a stabbing incident. He was subsequently also charged with misdemeanor resisting arrest in connection with the August incident. See RSA 642:2.

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

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

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

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

         The Supreme Court ruled that, because the petitioner never testified, his argument that the trial court erred by ruling the prior conviction admissible for impeachment was unreviewable. See id. at 43. The Court explained that, without the defendant's trial testimony, "[a]ny possible harm flowing from a [trial] court's in limine ruling permitting impeachment by a prior conviction is wholly speculative" because a trial court may change its ruling as the case unfolds and because a defendant's actual testimony may differ from that which was contained in his proffer. Id. at 41. Moreover, "[w]hen the defendant does not testify, the reviewing court . . . has no way of knowing whether the Government would have sought to impeach with the prior conviction." Id. at 42. The Court also explained:

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

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