State of New Hampshire v. Troy Burpee

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0179, State of New Hampshire v. Troy
Burpee, the court on February 18, 2015, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Troy Burpee, appeals his conviction following a jury trial in
Superior Court (Delker, J.) on one count of operating a vehicle after having been
certified as a habitual offender. We affirm.

On appeal, the defendant argues that the arresting officer’s testimony that,
after speaking to the defendant’s girlfriend, he was “led to believe that [the
defendant] had been driving” the vehicle at issue, was so prejudicial that limiting
instructions could not cure the taint, and, therefore, a mistrial was required.

Before addressing the merits of the defendant’s argument, we briefly
address the State’s contention that it is not preserved. The defendant argued in
the trial court, as he argues on appeal, that the challenged testimony was so
prejudicial that limiting instructions could not cure the prejudice. Although the
defendant did not use the word “mistrial,” the exchange made clear to the trial
judge that a mistrial was sought. See State v. Demeritt, 148 N.H. 435, 439
(2002) (concluding that defendant’s due process argument was preserved
because, even though “defense counsel did not specifically state that the
admission of the defendant’s statement would violate his due process rights, the
exchange made clear to the trial judge that due process was the basis of the
objection”); see also State v. Tarasuik, 160 N.H. 323, 326-27 (2010).

Having concluded that the argument is preserved, we now address its
merits. A mistrial is warranted when the circumstances indicate that justice may
not be done if the trial continues to a verdict. State v. Wells, 166 N.H. 72, 76
(2014). “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) (quotation omitted). “The prejudicial effects of
the inadmissible evidence must be such that the trial court cannot unring a bell
once it has been rung.” Wells, 166 N.H. at 77 (quotation, brackets, and
emphasis omitted). The trial court is in the best position to gauge the prejudicial
nature of the evidence or conduct at issue and has broad discretion to decide
whether a mistrial is necessary. See id. at 76-77. “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. at 77 (quotation omitted).

Here, a mistrial was not required. The trial court's curative instruction
eliminated any prejudice that might have been caused by the officer’s testimony.
The trial court immediately instructed the jury that it was striking the
inadmissible hearsay testimony from the record and that the jury should
disregard it. The jury is presumed to follow the trial court’s curative instruction.
State v. Ploof, 165 N.H. 113, 119 (2013).

Moreover, the inadmissible hearsay was cumulative of admissible evidence.
The defendant’s friend testified that he told her that he had been drinking and
driving “and that [he] drove off the road and into a ditch and he didn’t want to be
charged for it, so he wanted someone else to say that they were driving.” The
jury could have fully credited this testimony. Under these circumstances, we
conclude that the trial court did not unsustainably exercise its discretion by
issuing a limiting instruction instead of ordering a mistrial.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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