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 ...