State v. Russo

164 N.H. 585

62 A.3d 798

The STATE of New Hampshire

v.Amato John RUSSO.

No. 2011–624.

Supreme Court of New Hampshire.

Argued: Oct. 18, 2012.

Opinion Issued: Feb. 25, 2013.

Michael A. Delaney, attorney general (Nicholas Cort, 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.

BASSETT, J.

The defendant, Amato John Russo, appeals his conviction by a jury on two counts of theft by deception, see RSA 637:4 (1996), and two alternative counts of theft by unauthorized taking, see RSA 637:3 (1996). He argues that the Superior Court (Tucker, J.) erred in denying his motion for a mistrial and allowing standby counsel to participate in the trial. He also argues that the court erred when it imposed an extended term of imprisonment. We affirm.

The record supports the following facts. In 2004, the defendant met Rosetta Judge at a gas station in Manchester where Judge worked, and they developed a close relationship. During their relationship, the defendant expressed a desire to start a business making sausage pies. At some point, he asked Judge to borrow money from her to buy equipment for the business, and she agreed. In early 2005, the defendant accompanied Judge to Citizens Bank where she obtained a personal line of credit and gave the defendant $4,000. Subsequently, Judge obtained two other loans and gave the money to the defendant. In total, the defendant received a little over $24,000 from Judge. The defendant eventually admitted to Judge's son that the sausage pie business was a ruse.

The defendant was charged with two counts of theft by deception and two alternate counts of theft by unauthorized taking. After a two-day trial in February 2010, at which the defendant represented himself, with standby counsel, the jury convicted him of all charges, and the court later imposed an extended term of imprisonment. See RSA 651:6 (2007 & Supp.2012). This appeal followed.

I. Denial of Mistrial Request

The defendant first argues that the trial court erred in refusing to grant a mistrial following testimony by Judge that he was on parole. Before trial, the State moved in limine to admit evidence of the defendant's prior convictions for theft by deception and forgery to prove his intent to commit the subject offenses. After hearing arguments, the court decided to "withhold ... ruling on [the State's] motion ... and ... see how things go.... [R]ight now let's say no reference to the prior convictions until you get a ruling that they're admissible."

During the State's direct examination of Judge, the following exchange occurred:

[Prosecutor:] Let me ask you. At some point, did the two of you talk about how he could raise this money or how he was going to get this money to start the business?

[Judge:] Well, you know, he couldn't because I found out, of course—eventually he admitted to me he was on parole. He had no credit whatsoever, no credibility. So the only way he could get started was with me, because I have excellent credit, you know.

(Emphasis added.) The defendant immediately moved for a mistrial. The court dismissed the jury for the day and heard arguments from the parties.

The following day, the court denied the defendant's motion, but offered to give the jury a limiting instruction. The defendant rejected the offer, explaining that he believed the only remedy was a mistrial. The defendant then absented himself from the remainder of the trial. No instruction was given at that time.

At the close of evidence, the court gave the jury the following instruction:

There was certain testimony that you may consider only for a limited purpose. Two of the indictments in the case charge the defendant with theft by deception and allege the defendant made certain statements to Rosetta Judge that he did not believe to be true. Near the end of her first day of testimony, Rosetta Judge made a reference to the defendant telling her he was on parole. If you believe Rosetta Judge's testimony as to that statement, you may consider it only as evidence of what Rosetta Judge says the defendant told her.

The statement is not to be used by you as evidence that the defendant was in fact on parole. There was no evidence presented on whether the defendant was or was not on parole, and you should not speculate whether the defendant was or was not on parole. Whether or not a person on trial has or has not been on parole has no bearing on whether the person is guilty or not guilty.

The defendant argues that Judge's testimony regarding his parole status was improper and that it "revealed the highly prejudicial fact that [he] had a previous criminal conviction." The State disagrees that the testimony was improper. Further, the State maintains that even if the testimony was improper, it did not reveal the nature of any prior crimes committed by the defendant and, thus, it was the kind of testimony that can be adequately addressed through a jury instruction.

A mistrial is appropriate "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, 33 A.3d 1166 (2011) (quotation omitted). When reviewing a trial court's ruling on a motion for a mistrial, 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. We will not overturn the trial court's decision on whether a mistrial or other remedial action is necessary absent an unsustainable exercise of discretion.

Id. (quotation omitted).

"It is well-settled that an incurable prejudice may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense." State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012) (quotation omitted). "The infusion of such evidence into a trial is probably only equaled by a confession in its prejudicial impact upon a jury." Id. (quotation omitted). Accordingly, we have held that a mistrial is appropriate when "a defendant's prior criminal conduct has been unambiguously conveyed to the jury." State v. Kerwin, 144 N.H. 357, 360–61, 742 A.2d 527 (1999) (quotation omitted). However, we have never addressed the question of whether testimony referencing a defendant's parole status can unambiguously convey to the jury a defendant's prior criminal conduct so as to require a mistrial.

In cases in which we have held that a mistrial was warranted, we have often looked to whether the jury was improperly exposed to testimony concerning prior criminal acts similar to the acts charged. In Kerwin, for instance, we held that the sexual assault victim's statement "that man raped some girl" was highly prejudicial and warranted a mistrial because the statement "unambiguously conveyed to the jury the fact that the defendant allegedly had engaged in similar culpable conduct." Id. at 361, 742 A.2d 527. Similarly, in State v. LaBranche, 118 N.H. 176, 177, 385 A.2d 108 (1978), we held that a mistrial was required where witnesses testified about a charge that had previously been filed against the defendant arising out of another instance of criminal conduct similar to the charge before the jury. See also State v. Woodbury, 124 N.H. 218, 221, 469 A.2d 1302 (1983) (detective's testimony regarding identical charge which had previously been filed against the defendant required a mistrial). At the heart of these cases is a concern about the unfairness of allowing the jury to hear evidence of other crimes committed by the defendant that are similar to that for which the defendant is on trial. See State v. Ellison, 135 N.H. 1, 5, 599 A.2d 477 (1991). Notably, other courts have found that mere reference to a defendant's parole status does not convey evidence of prior criminal conduct so as to require a mistrial. See Lanier v. State, 288 Ga. 109, 702 S.E.2d 141, 144 (2010) (holding that passing reference to parole did not place the defendant's character in evidence so as to warrant a mistrial); State v. Mackin, 927 S.W.2d 553, 555–56 (Mo.Ct.App.1996) (finding that testimony by State's witness that the defendant "had to get some travel papers from his parole officer" could lead the jury to infer the defendant "had been convicted in the past for committing some sort of crime," but did not require a mistrial).

Assuming, without deciding, that Judge's testimony that the defendant stated to her that he was on parole was improper, we hold that this testimony did not unambiguously convey the defendant's prior criminal conduct to the jury. Cf. Willey, 163 N.H. at 538, 44 A.3d 431 (holding that trooper's testimony regarding an unrelated investigation involving the victim's half-sisters "was not specific and did not clearly convey criminal conduct by the defendant"). Unlike in Kerwin, LaBranche, and Woodbury, Judge's reference to parole did not improperly expose the jury to testimony concerning prior criminal acts similar to the acts charged. Indeed, the testimony did not identify any specific prior charge or conviction. Rather, Judge's testimony in this case was more akin to the testimony in Mackin, where the Missouri Appeals Court found that the witness's "isolated reference" to the defendant's parole officer "was brief and identified no specific crime" and did not warrant a mistrial. Mackin, 927 S.W.2d at 556. Thus, we conclude that Judge's testimony regarding the defendant's parole status was not so prejudicial as to constitute an irreparable injustice.

Moreover, the trial court's limiting instruction at the close of evidence eliminated any prejudice that might have been caused by Judge's testimony. The court instructed the jury to consider the testimony only as evidence of what Judge said that the defendant told her, and not as evidence that the defendant was in fact on parole. The court...